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Unsolicited commentary on the legal clusterf*ck facing homosexuals

Posted by T. Greg Doucette on Jun 11, 2010 in Unsolicited Commentary

For the next few weeks I’ll be spending my Saturdays in 7-hour-long classes for our ADR Clinic at the N.C. Central University School of Law. Our topic for tomorrow’s class is the complexity involved in mediating disputes across a wide range of cultural differences.

I got a taste of those challenges back on my very first day dealing with real disputes, where we had an older white guy and a younger white guy (me) mediating a dispute between a middle-aged black lady and a middle-aged Indian lady. Needless to say all 4 of us had widely divergent cultural backgrounds ;)

In reading through the ~65ish pages we’re supposed to have digested by 9am tomorrow, one section details the unique challenges facing same-sex couples who find themselves in a dispute needing mediation — and a whole litany of complications mediators need to navigate.

And as I’m reading through this all I keep thinking is “What a clusterf*ck” :crack:

It’s not that I was oblivious to the legal issues facing homosexuals per se. I had already learned quite a bit just through general education and reading the news, enough to get me booted from the Wake County GOP (see 2004-05 in that entry). Then a couple years later I got a more-detailed briefing when a trio of us in N.C. State‘s Student Senate shepherded through a resolution supporting the creation of the University’s LGBT Center. And not surprisingly the topic has occasionally come up in conversations with my gay friends, particularly whenever something Prop 8-related is in the news.

But it’s a whole different wheel of cheese when you’re having an ideological discussion with college-aged peers — none of whom have even the slightest intention of potentially entertaining the thought of maybe considering possibly getting married any time soon — versus when you’re in a courthouse with a real dispute being resolved in a legal framework with so many holes it’d make a slice of Swiss envious.

Now I’ll concede I haven’t supported gay marriage myself, though in my case it’s due to a relatively small and personal issue of me not knowing how it would affect case law on family rights1 and not having an opportunity to have an informed discussion with someone who could give me some insight into it. Beyond that minor point I say go for it; clearly it’s not like we heterosexuals care about marriage vows all that much given our 50%+ divorce rate… :beatup:

But even if I woke up tomorrow as the most vociferous anti-gay marriage advocate on the planet, our current legal structure just makes no d*mn sense. Consider this example from the reading:

“The lack of uniformity across state lines also has worsened the legal complexities, as partners may marry in one location (i.e. Canada), register in California, and then end up in New York -– which may not recognize either of these “marriages.” Some states are even refusing to dissolve same-sex marriages or partnerships created elsewhere, seeing such adjudication as a form of legal recognition, and thus leaving many couples in a terrible state of legal limbo.”

Can anyone explain to me how that setup is good for the legal system? “We won’t recognize what you have, but we won’t say you don’t have it because that would be recognizing it.” :crack:

I realize Congress adopted DOMA out of political cowardice, because (let’s be honest with each other) that’s what Congressmen do in election years. But the mess it’s created vis-à-vis the Full Faith and Credit Clause alone is really mind-boggling in its application.

And that’s just on the issue of marital status!

Think of all the other almost-contractual issues that come up in any given relationship: child custody, adoption, purchasing real property, distribution of assets, pension proceeds, insurance policies, inheritance, the list goes on and on and on (and on). And at least based on this reading there seems to be exceedingly little legal framework in place at all for same-sex couples, and what little exists is essentially completely inconsistent across state lines.

I wish I had the time to go into this in a bit more detail, but unfortunately I’ve gotta get to bed so I can be up on time for class. I’d like to hear from you, dear readers, about your thoughts on the issue — not so much the impassioned human rights arguments (those are important too but this is a law-oriented blog :P ) but whether the legal structure we’ve currently got in this country is tenable in the long-run or if/how it should change. My personal $.02 is that something’s gotta give, and fairly soon.

But I’m just a 2L so what do I know ;)

Have a great night y’all! :D

  1. I learned the hard way when I was younger that the statutes and case law in several states heavily favor the mother in child custody cases. I’m not a fan of the favoritism, but assuming the laws on it don’t change how would that translate to same-sex couples? For example, where one lesbian partner donates an egg and the other partner carries the pregnancy via IVF? Or for same-sex males who use a surrogate, where one partner is the sperm donor and the other takes on the primary caregiver role of the child? []

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