Should States Stop Playing the Marriage License Game?

An Alabama bill proposes a solution to the debate over the definition of marriage that, while not unique, is at least new to modern audiences: get government out of the way. The bill would end the practice of issuing marriage licenses. Instead of government telling you that you may marry, you would tell the government that you have married.

Some will argue that this bill is simply a response to the Supreme Court’s recent gay marriage ruling in Obergefell v. Hodges. They’re not wrong. It’s hard to think that this bill would even exist without the Obergefell case bringing matters to a head. But so what? Legislatures routinely change laws in response to court decisions. Even if some supporting it are motivated by no more than the bitter taste of sour grapes, that’s hardly an argument that the proposal lacks merit.

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What should–and shouldn’t–the state do for the people? (Asheville, NC)

Stephanie Coontz, a professor of history at Evergreen State College has pointed out that marriage without the blessing/permission of government is not a new idea. Not until the 16th Century in Europe did the state take an active role in permitting marriages. Prior to that time the vow–not the law–created marriage. Even marriages that the church considered illicit (an exchange of vows outside the church) were still deemed marriages.  Coontz also notes that American colonies generally required only that marriages be registered. Until the mid-1800’s American States would still allow mere cohabitation as proof of marriage. Indiana continued to recognize common law marriages well into the 1950s.

People willing to leave public comments on the interwebs tend to say not-so-nice things about others as a rule, and opinion about the Alabama proposal was no different. “Stupid,” “1950s social values” and the inevitable comparison to separate drinking fountains dominated a recent comment section of a local news article. One commenter even said that the bill was an attempt to “dehumanize us.”  I assume this meant dehumanize gays, not dehumanize internet comments, which I don’t believe is even possible.

Is it really so surprising that proposed legislation would follow in the wake of such a landmark SCOTUS decision? Courts are not supposed to be active institutions, but reactive ones. Is judicial activism now so commonplace, and legislative complacency so rampant, that when a legislature—the entity actually elected to make changes to the law—engages in activism of its own the populace must cry foul?

*** On a side note, “Judicial activism” as an insult is quickly approaching Red Scare status. At some point after 1990, calling someone a socialist in polite society meant that reasonable people should question the accuser, not the accused. But at least that name-calling could be criticized as one-sided, since a socialist represented a particular political viewpoint, and so his attackers had an opposing view. “Judicial activism” is politically neutral activity in theory (if not in practice), and can apply equally to the substitution of any judicial view for the will of the legislature. But no matter. Like many perfectly accurate phrases before it, it’s sure to be deemed an antiquated, unfashionable dog whistle signaling some evil and unspoken larger meaning–though deciphering the meaning always seems to need a Rosetta Stone of political correctness. Its detractors will be sure to replace it with a slur far a more gentile, if less lucid. I, for one, will lament its complete unavailability at some point in the near future. So long, “Judicial activism,” we hardly knew ye.***

So who are the winners and losers if States start getting out of the marriage business entirely?

For some conservatives, a more passive role for the state may prevent them from choosing between violating their consciences and keeping government jobs. (Though if former IRS chief Lois Learner’s actions are any indication, righties aren’t much welcome as civil servants anyway).  For some liberals, the proposal would give them the freedom they seek, and then some. Not only would any two people be allowed to marry, it would be nearly impossible for the state to regulate how the marriage contract is entered into or who solemnizes it. And despite what an hour of MSNBC or FOX News would suggest, I suspect most gay couples aren’t really interested in using their wedding ceremony as political theater—knowing in their sunset years they will fondly think back on the day they tied the knot, expressed their commitment, and made that redneck probate clerk the subject of some serious HuffPo clickbait. No, for most people, it doesn’t work like that. Non-deranged folks want to marry surrounded by people happy for them, not someone resentful because the bronze bust representing the enduring legacy of Justice Kennedy needed polishing. (Just kidding! There’s no bust. It’s a life-sized Ronaldo-esque statue and on the first Monday each October, it is appeased with sacrifices of clerks from middling law schools.) It’s not sacrilege or lunacy for honest people on all sides to seriously consider removing the appendix of licensing marriages from the corpus of government. What does anyone have to lose?

The casual observer might assume that the Supreme Court’s decision ended the issue, and any further legislation is unhealthy because it keeps us fighting. The Obergefell decision does seem, on its face, to require states provide marriage licenses. However, the Court did not seem to contemplate a State not giving marriage licenses to anybody, but the Due Process implications of providing licenses to some citizens and not others.

Besides, the issue wasn’t even over when it was over. Despite the canard that plural marriages (polygamy) had no logical correlation to the gay marriage issue, such a debate is coming. Chief Justice Roberts anticipated as much in his dissent:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” . . .  why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

In fact, the other shoe has already dropped. Less than a month after Obergefell, a Montana man, Nathan Collier, already voiced his intent to sue if he is denied a marriage license to marry a second wife, a contest he considers his own fight for “marriage equality.” More plural marriage proponents are sure to follow. USA Today recently cited a 2012 survey of 4,000 polyamorous individuals, and 66% reported being open to plural marriage. In the not-too-distant future, a trial judge with a polygamous marriage license application in one hand and Obergefell in the other may have only two choices: invalidate the state’s unconstitutional exclusion of plural marriage folks from marriage licensing requirements, or become . . . a judicial activist. (McCarthyism!)

But there are factions on both sides of the issue that won’t tolerate States bowing out of the marriage license game. Some gay marriage advocates won’t like this at all because it’s not freedom that they’re after. It’s state-sanctioned acceptance. To them, it’s not enough that their relationships merely be allowed. They must be approved. Like the bratty teenager who refuses to simply raid the liquor cabinet the weekend her parents are away, her self-worth demands she badger them with sophomoric rationalizations about why no sane society would restrict a sixteen year-old from downing Mad Dog 20/20 while Mom enjoys her after-dinner sherry.  Dad eventually gives in, though more from battle fatigue than persuasion. Her victory parade is complete when she boasts to her friends that she convinced her parents to finally see the righteousness of her cause.

Likewise, some gay marriage opponents will also oppose the new proposal. They remain committed to believing that official legal rejection of gay marriage is the only acceptable answer, however diminishing its chances. If the state licensing requirement disappears entirely, the clock will have run out on their cause, and the scoreboard’s tally is not in their favor.

For these loudest voices in the echo chamber, social reformation must trump personal freedom, for social reform cannot be a private affair. For them, the Alabama bill must be opposed. Angered at the prospect of winning without continuing the fight, (or losing without a rematch) their identity depends on dragging their opponent back onto the field for humiliation. No, this proposal just won’t do. The contest for marriage equality cannot be won by forfeit.

Finally, to libertarians, this may be a panacea. Imagine what society could do if government could just get out of the business of moralizing and back to legalizing weed. Wait–on second thought, forget libertarians. Maybe we should let the adults continue the conversation.

Playing the Man Card

A recent Wall Street Journal piece spotlighted the growing trend of family law attorneys who market themselves to just one-half of the market for divorce attorneys: Men.  Doing so reinforces the perception that family courts are not a friendly habitat for those with Y chromosomes. That’s not good.  Of course, the fact that such a perception is rampant is a problem in itself.

Although I am in the process of winding down my family law practice to make room for growth in municipal, appellate and estate law, our firm’s associate attorney is still heavily involved in domestic litigation.  With 15 years as a law clerk and attorney, I can attest that the attitude of disenchantment with the courts is more common among men than women.

“The system is rigged against Dads.”

“Men do not get a fair shake in the courts.”

“Courts always side with the Wife.”

As someone who have seen both favorable and unfavorable outcomes for men, I cringe at these statements.  Mostly because the alleged bias is not consistent with my own experience. But also because courts and lawyers have much work to do if the perception is still so common.

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Are family courts biased against men?

But court statistics are notoriously difficult to quantify.  Who “won” a divorce depends on what was requested, what evidence was presented, what the other side’s desires were, and a hundred other factors.  When I was speaking at a local school once, I took some Q and A from the 8th or 9th graders.  One of the students asked me, “What’s your win rate?”   Not having twenty minutes to detail the misconceptions inherent in the question, I shot back, “One hundred per cent.  Every time I have a client who asked the court for a divorce, the client got one.”

The System

There are two reasons the phrase “the system” even exists.  The first is laziness.  The second is ignorance.  In my mind my car has an “exhaust system” perhaps because I am too lazy to study up on what a catalytic converter does exactly.  Or, maybe I use the vague phrase “system” because I decide that the time spent learning about my car could be better served learning about the law.  Or watching Burn Notice.

Whatever the individual choice, it’s natural to lump the unknowns into a pile.  Forming categories helps the brain operate.  By explaining my car’s problem as a malfunction in the exhaust “system”, my mechanic provides me with some specifics, but doesn’t waste his time–and mine–providing details that I can’t understand.

The same is true of the law.  To someone familiar with the family court system, there are distinct and important moving parts: the family court judge, the bailiff, the court clerk, the court reporter, the Sheriff’s deputy, the mediator, the family counselor, the child counselor, the volunteer child advocate, the guardian ad litem, the child custody evaluator, and the other attorneys.  They each have a different role, a different interest, and different protocols.  To Tom the mechanic, however, it’s “the system.”  It is a giant dysfunctional blob of people mindlessly pushing papers and making excuses as to why Tom can’t get what he wants.  He might want to keep his pension, to keep his house, to see his kids more, or to live in peace.  If any cog in this wheel does not work, he has neither the time nor experience to fix it–nor should he, as a mechanic.  He sees only that the system is malfunctioning.

A Teachable Moment

The best response to someone frustrated at “the system” is an offer to educate.  I tend to be less frustrated when I understand why something does not work.  And even less frustrated if I can fix it.  That being said, there are a few reasons why these perceptions persist.

Invariably, the “system is broken” crowd draw their opinions from anecdotal evidence: a brother, a cousin, a guy from work.  To a sympathetic ear, these folks all had bad experiences and that means the system is broken.  But business schools and online reputation defenders love to remind us that while a satisfied customer will tell one person about a business, a dissatisfied customer will tell six people.  So the brother, cousin and guy from work are going to grouse about their outcomes more than the man who quietly reaches an amicable settlement with his spouse during a divorce.  Misery loves company.  But sad resignation to a failed marriage just sighs and moves on–it doesn’t rent a megaphone.

Part of all education is empowerment.  The biggest mistake that most family law litigants make is assuming the “system” divorces them.  But if parents and spouses believe the path is predetermined and beyond their control, it is no wonder legal struggles are analogized to a roller coaster.  Stepping into the cart, being strapped down and having someone else flip the lever to send the rider through loops and valleys until vomiting ensues. . . no wonder it causes anxiety.  But it causes passivity, too, and that leads to helplessness.

The truth is that parents and spouses divorce each other.  The legal system is a boundary, not a path. With some exceptions, courts allow the parties a great deal of freedom to craft their own agreements.  I have never seen a judge claim to have a better plan than the parties themselves.  Spouses enduring family law cases do themselves no favors by making broad generalizations.

Pushing Them Out of the Nest

No man should bring children into the world who is unwilling to persevere to the end in their nature and education. — Plato

Human beings are the only creatures on earth that allow their children to come back home. — Bill Cosby

Whatever family dynamics control the transition to adulthood, the law occasionally factors in. Beginning July 1, 2012, Indiana will join the majority of states that end child support at an age younger than 21.  The new law essentially moves the age at which the “duty to support” a child ends from 21 down to 19.

In any legal matter–and especially in family courts–it’s important to remember that courts are reactive, not proactive.  Courts respond to requests, motions, and petitions of parties.  They do not look for opportunities to act or to insert their orders or judgments where no one has sought out their assistance. I have always advised clients to be certain that the court handling the child support matters is aware of the child’s 21st birth date (now 19th) as it approaches, and not leave it to the judge, clerk, or prosecutor to magically make the support end.  If the court is not informed, it could lead to overpayment, which leads to the sticky wicket of a support-paying parent asking to get overpayments refunded, which is sometimes difficult to do.

ImageUnder the new law, the support-paying parent will have an easier path to end support sooner. That’s not to say that the support paying parent had no solution to the problem of the lazy 19 year-old until now.  Traditionally, an ambition-deficient 19 year old who had finished high school, was not in college, and refused to find a job could find himself without child support if a parent could show that the 19 year-old was not under the care or control of either parent and that he was capable of supporting himself.  However, this meant the support-paying parent had the legal burden of proving these facts to the court.  Otherwise, he would have to wait until the “automatic” support-ending age of 21.

By moving the automatic support-ending age to 19, the new law might cause a rush of court motions in the short-run, but should reduce them over the long haul.  I expect that a fair number of petitions will come from those supporting children between ages 19 and 21.  The practical difference is that the legal presumption is now in favor of ending support, instead of in favor of maintaining it, for those children 19 or older.

The second important consideration is that the law specifically does not impact “support for educational needs.”  In other words, parents can still be required to kick-in money for college when a student is past the age of 19.  This is unchanged.  However, college support is calculated based upon the costs of college, whereas child support is calculated on the income of the parents, among other factors.

The practical impact on local courts is that it will probably put an end to the practice of what I call “floating support.” Floating Support occurs where a child graduates from high school and goes off to college and rather than put themselves through the tedious and cumbersome college costs calculation, the parents reach a agreement (unwritten or written) to continue to pay regular child support.  Because one or both may have to pay attorneys fees and take time off of work to determine a proper amount of college support (which can change as costs rise or fall every year) parents simply use the figure they know, and ignore the actual college costs.  Since support now presumptively will end when a child turns 19, the support-paying parent has little incentive agree to pay the regular support amount into college, and will be more likely to put the burden on the support-receiving parent (or the student) to prove college support is needed.

If you have a child who is under 19.  Be aware that the duty to support that child now presumptively ends at age 19.  If you believe the child should be assisted with college costs, you should make such a request prior to the child turning 19.

If you have a child who is between 19 and 21.  Be aware that a court could end the support obligation. If the child is a college student and should be assisted with college costs, you may want to petition the court to enter a college support order.

An Inquiry into the Causes of the Wealth of Parents

Instead of custom-tailoring parenting time to the children, we buy parenting time off the rack without trying it on.

Q: What’s an economist?

A: Someone who sees something work in the real world, and thinks, “Sure, but does it work in theory?”

Considered the father of modern economics, Adam Smith wrote of the “invisible hand” in his seminal work, Wealth of Nations (less commonly known by its full title: An Inquiry into the Nature and Causes of the Wealth of Nations).  The hand was Smith’s way of explaining that economic self-interest can be the engine that expands wealth to buyer and seller, employer and employee, so long as the market is open, information is plentiful, and lawlessness does not rule the day.  The study of economics is, in a word, the study of scarcity – the allocation of limited resources to unlimited needs or wants.

Adam Smith (probably gave his kids the "invisible backhand" when they got out of line).

Like many attorneys who practice in small towns, I spend a considerable amount of my time working with clients in family law matters.  Aside from matters of child abuse, the most frustrating conflicts tend to involve parenting time – the allocation of time children spend between Mother and Father, particularly after a divorce or if the parents were never married.  These are fraught with difficulty.  No father wants to spend less time throwing the baseball around with his son.  No Mother who rejoiced in relaxing every Sunday afternoon with her daughter wants to reduce that special time to merely twice a month.

Like the study of economics, parenting time is often a harsh lesson in scarcity.  But unlike theoretical economic actors using money, widgets, guns or butter, parents (and sometimes courts) measure scarcity in time. Time with their children.  I believe, however, that using time as a measuring stick for the success of parent-child relationships is unwise.  Time is fixed.  The hours in a day are unchanging.  As a consequence, parents quickly become entrenched: Mother’s time with son necessarily decreases the time available for Father.  Father’s weekend with daughter takes one more Sunday afternoon away from Mother.  Under this destructive world view, one parent’s success will always come at the expense of the other parent.

This “zero sum game” is the perception Adam Smith demonstrated could be avoided.  Smith suggested that different nations had comparative economic advantages.  Some were rich in timber, others in minerals and still others in the size of their labor force.  By playing to its strengths, each “economic actor” – whether nation or individual – could use trade for its own betterment and the betterment of others.

The principle is true with parents, too. If Smith were a family law lawyer, I think he would have suggested that parents stop using a clock or a calendar to measure the success of their relationship with their children, and realize that a better relationship between the parents always improves their relationship with their children.  A rising tide lifts all boats, so to speak.

Indiana has published the Indiana Parenting Time Guidelines that are designed to help parents and courts have a starting point for the discussion of parenting time.  They provide a rudimentary parenting time schedule and are designed to serve as an indication of the minimum amount of time for the noncustodial parent to spend with the children.  Too often, however, parents, lawyers, and judges use the IPTG as the definitive schedule to be applied in all cases.  Instead of custom-tailoring parenting time to the children, we buy parenting time off the rack without trying it on.

In my experience, the best parenting time arrangements between parents have the following attributes in common:

1.    The parents trust each other to make good decisions for the children. Trust is the spine that runs through the middle of successful parenting time arrangements.  The mechanics of even the most precise and logical schedule of parenting time cannot be an adequate substitute.

2.    The parents communicate regularly and openly. Too many parents adopt the “If you don’t have anything nice to say, say nothing” approach to co-parenting.  They are quick to pridefully note “I never say anything bad about my kids’ father. [At least not to my kids].”  But is that enough?  Not saying anything good about their father will take its own toll on how the children view both parents.  A firefight isn’t the only way to declare an enemy.  Waging a cold war still drains the precious (read: scarce) resources.  Saying nothing probably is better than a raging argument, at least in the short run. But what low expectations we have of parents if we praise their cold war silence.

3.   The children know the basic schedule. Some flexibility is essential, such as allowing extra time for a vacation, and out-of-state relative, or a special event, like a concert or ball game.  But not at the expense of planning the time.  When we plan something, it shows that we think it’s important enough to get it right:  A camping trip, a Valentine’s Day dinner, or a sales presentation.  Children who see parents planning out parenting time know that their parents think it is important.  That will rub off on the kids.  They’ll think it’s important, too, which will come in handy when they enter that I’m-fifteen-and-know-everything-and-my-lame-parents-know-nothing stage.

4.    The parents are willing to sacrifice for their children. Sacrifice is a word that conjures different images for different people: from sending a daughter to college in lieu of a mid-life crisis convertible, to Christ on the cross.  I’ve never had a client who wouldn’t have told me, “Of course I’ll sacrifice for my kids.”  But it’s human nature to want a sacrificial decision to be our own decision, not one that is made for us.  Writing a check to the Salvation Army feels sacrificial, writing a check to the I.R.S. feels like a root canal.  But sacrifice in parenting is more subtle.  Can Father sacrifice by committing not to feel slighted if Mother is habitually twenty minutes late in meeting him for the start of his weekend visit?  Can Mother resist the temptation to offer up sarcastic commentary about Father’s late support payment over dinner?  I am convinced that these small but difficult sacrifices have profound impact on children.

5.   The parents are determined that resolving parenting time disagreements in court is not an option. Let me tell you a secret: courts don’t solve disputes.  At best, they merely end them.  A mercenary approach to family law suggests that an agreement should only be reached if the costs of going to court (money, stress, risk of adverse decisions) outweigh the rewards (getting the decision you want, showing your ex you’re not a doormat, standing up for your rights).  But litigants in any court dispute tend to see the strengths of their case more clearly than its weaknesses. Also, children experience all of the costs of a family court dispute and rarely see the benefits, save perhaps the benefit that the conflict may have reached a truce, at least for a time.  Two parents committed to not going back to court will become more creative in their problem-solving, and will understand their children’s struggles and joys more thoroughly and intimately.

Childhood is too short to be spent in the midst of parental conflict.  In that respect, time is a scarce resource.  But a child’s ability to love and trust are limitless.  Parents, measure your wealth accordingly.

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For any parent looking to improve parenting time, I recommend www.UpToParents.org, and its sister websites.  Mr. Charlie Asher has put together comprehensive tools that help parents move from the cliché of “putting kids first” to finding practical ways to make it happen.

Can You Hear Me Now?

Just because you can record someone in a phone conversation doesn’t mean you should.

With the proliferation of recording devices, both video and audio, I occasionally have a client who asks that I listen to a recording — typically left on voicemail — of the other party being foul or abusive, or even threatening.  The more emotional ones come in family law cases where divorce or custody is an issue.  These are rarely directed at the children in Alec Baldwin-like tirades, but still can be pretty bitter.  Sometimes the question turns to whether the client should record another person’s phone calls: ex-spouse, neighbor, stalker, telemarketer, etc.

But what can we record exactly? Partly, it depends where you are.  I read recently about Anthony Graber, a staff sergeant in the Maryland National Guard might get jail time for recording his traffic stop by a state trooper.  Under wiretapping laws, which vary by state, it can be illegal to record audio of another person’s voice without his knowledge.  Some states require that both parties have knowledge they are being recorded, and others, like Indiana, require only one party to have knowledge.  If Maryland is a two-party consent state, then recording a private conversation without dual consent may violate state law.  However, commentators rightly point out that the weak part of the case will be in construing the conversation between he and the officer as “private.” Should officers have a monopoly on dashboard cameras?  [Insert appropriate Orwellian reference here.]  A cottage industry seems to have grown for civilian recording devices as well.  One wonders whether the charge would have come at all had Graber not posted the video on YouTube. Generally, retaliatory prosecutions are a good way for a prosecutor to lose an election.  An interesting case, but the lesson is to know the laws in your jurisdiction.

In Indiana, it is a C Felony (I.C. 35-33.5-5-5) to intercept an electronic communication without the consent of either party.  If Husband records Wife talking to Husband, then there is no violation in Indiana, because Husband has consented to his own recording.  But if Husband records Wife talking to Boyfriend, who has not consented, a crime may have occurred.  Somewhat counterintuitively, the crime of Invasion of Privacy (I.C. 35-46-1-15.1), deals almost exclusively with the violation of a protective order, also known as a no contact order, and not with recording someone’s voice or image. However, civil lawsuits for the tort of invasion of privacy can encompass wrongly using someone’s image.

There are situations where perhaps recording another person during your conversation is appropriate, particularly to prove stalking, intimidation, harassment, or other personal protection measures.  But just because you can doesn’t mean you should. In 1 Corinthians 6:12, Paul says that “[a]ll things are lawful for me, but not all things are profitable.”  If you want to record another person to demonstrate a crime committed against you, you should contact the police first.  If you want to show that your ex-spouse or neighbor is a bad person, it may make things worse by tearing down any trust that could be built up to improve that relationship.  Ask yourself: if that person recorded you would you have open and honest talks in the future?  But even if your concerns are only with the evidence you can put in front of a judge, you might be disappointed at how ineffective a recording can be.  After all, if you’re already having a dispute in court, the judge usually doesn’t need more proof that the two of you aren’t getting along.  So consider it very carefully, otherwise, recording someone in a phone or other conversation may burn a bridge for nothing.