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Post DOMA: Now That Gays Can Marry, What About D-I-V-O-R-C-E?



Professor Katherine Franke takes on the thorny issues of how divorce between gay and lesbian couples will confront stereotypical notions of gender and what that could mean for gay and lesbian families

Lesbian and gay people and their families have much to celebrate in the Supreme Court’s rulings in the DOMA and Proposition 8 cases. While not going so far as to declare a constitutional right for same-sex couples to marry, Justice Kennedy’s decision in Windsor called out DOMA as an unambiguous expression of animus toward gay people, decrying it for writing “inequality into the entire United States Code.”

But winning at the Supreme Court doesn’t settle the problem of injustice in one fell swoop. The NAACP’s 1954 victory in the Brown v. Board of Education case didn’t put an end to racism in public education. Instead, African American families were confronted with the difficult, often violent task of integrating their children into school districts that had been structured around racial separation in communities that presupposed their children’s inferiority.

Rolling out the promise of equality secured for same-sex couples in the Windsor decision will no doubt be met with push-back and hostility, but the process is likely to engender far less violence and resistance than the implementation of the Brown decision did.  In fact, we already have quite a bit of experience integrating same-sex couples into the institution of civil marriage – 12 states and the District of Columbia have lifted the ban on gay marriage and tens of thousands of same-sex couples have gotten marriage licenses as a result.

So what can we expect in the aftermath of the Supreme Court’s ruling?

For many lesbian and gay couples this transition from exclusion to inclusion has been long-sought: a marriage license delivers the state’s imprimatur to relationships that have suffered second class status before the law for no reason other than bias.

For others though, the transformation from partners to husbands of husbands and wives of wives isn’t going so smoothly.  Most straight couples have always seen marriage as the natural end point of a serious committed relationship.

Not so with same-sex couples.

Long accustomed to organizing our intimate lives well outside law’s reach, our relationships have been less influenced by the magnetic pull of the marital form.   Gay and lesbian couples have innovated a range of commitments to one another: sometimes monogamous, sometimes not; sometimes sharing assets, sometimes not; sometimes committing forever, sometimes not, sometimes sharing parenting responsibilities, sometimes not. Many of us treasure the freedom that living outside marriage provides while also recognizing the stigma and discrimination that laws barring same-sex marriage created.

Now that marriage is increasingly possible for same-sex couples, new spouses will find themselves governed by a set of legal rules that allocate rights and responsibilities and distribute and redistribute property in ways that were developed with heterosexual relationships in mind.

After all, marriage has been one of society’s most gendered institutions.

In the bad old days, husbands were expected to be breadwinners while wives stayed home, took care of the kids, and kept the household running.  Feminist reforms in the last 50 years pushed marriage law to come to terms with the gender inequality that flows from these rigid roles of husbands and wives.   Modern rules of support within marriage and rules of distribution upon divorce are designed to correct the underlying structural gender inequality that left wives penniless and husbands well-off after divorce.

In a relationship where the wife stays home to take care of the kids and the house while the husband builds a career, the old rules would treat his investment in his career and his wage labor market power as “his” to take with him at the end of the marriage, while the wife’s failure to invest in her own labor market power would be a “cost” she would have to absorb herself.  Modern rules of equitable distribution treat the wife’s work at home as integral to the husband’s ability to better his career, and as such divorce law now considers his wage labor market power as a marital asset to be divided fairly between the two spouses.  The fairness of modern rules that take note of gender-based role specialization in marriage seem hard to deny, but it is worth noting that such a rule takes the gendered specialization as a given and then corrects for it afterwards, at divorce – thus incentivizing a division of labor where one spouse works at home and the other works at the office. But how will the rules that are sensitive to the disadvantage women often suffer in marriage impact same-sex couples when they chose to marry – or more aptly – divorce?

Most of the political discussion within the gay community has centered on gaining the right to enter the institution of marriage, putting off the uncomfortable conversation about what should happen if the marriages end.  To be sure, marriage brings with it a bundle of rights and responsibilities, not to mention social respect and dignity, which many in the gay community yearn for deeply.   But getting married also means living by the rules of marriage and divorce: ending a relationship will no longer be a privately negotiated matter.  Divorce law sets the rules of separation and judges decide how those rules are applied.

At the point of divorce, family court judges will be inclined to apply the rules of equitable distribution of the marital assets in ways that are familiar to them – such as ensuring that the weaker party, usually the “wife,” is not unduly disadvantaged.  Some gay men have resisted this kind of gendering when their marriages end, choosing to forego entitlement to an even share of the couple’s wealth upon divorce.  They’d rather leave the relationship with their masculinity intact than accept a payment that might turn them into a “wife.”

On the other hand, some lesbians welcome the legal advantage of being treated like the wife. Consider two women who have lived together for many years, each contributing to joint household expenses but otherwise keeping their finances separate.  When they marry they make clear in a pre-nuptial agreement the desire to continue this arrangement. Yet when they break up, the law of divorce tends to favor the lesbian wife who argues that the pre-nuptial agreement should be ignored—the law would, instead, push the couple to divide both members’ assets more evenly.

In heterosexual divorces, there is a presumption against the enforceability of pre-nuptial agreements where the weaker party, usually the wife, waives her right to equitable distribution or community property. Should there be the same presumption in a same-sex divorce? In a same-sex couple, would a court be justified in overriding a wife’s “choice” to forgo a claim on her spouse’s assets? As a matter of policy, judges in divorces see their job as looking out for the weaker party, but the spectre of same-sex couples marrying raises the hard question of what it means to be “weaker” in a context where gender-based power is not creating an unequal playing field for the two parties negotiating rights and responsibilities in a marriage

Those in our community who regard marriage as entailing an inflexible set of rules that equalize resources available to the divorcing couple might support having divorce law override a pre-nup that is less generous to the lesbian wife.

Yet others, myself included, worry that the diverse, non-traditional relationships and families we formed before marriage was a possibility will be shoe-horned into a one-size-fits-all kind of justice, slotting gay men and lesbians into the pre-determined gender roles of marriage: husbands and wives.  Gay and lesbian couples prize how we’ve disorganized gender roles in our relationships in ways both mundane and significant: there usually isn’t one partner who just happens to do the driving, manage the family’s finances, and teach the kids how to the throw a ball, while the other just happens to do the grocery shopping, get the food on the table, and clean up runny noses.  We mix it up.  It’s not obvious that family law is equipped to adjudicate fair separations of same-sex couples when it encounters the ways we’ve busted out of gendered notions of relationship, responsibility, and family.  Even worse, modern divorce law may end up gendering us into “wives” and “husbands” because that’s all it is equipped to recognize.

Even if gender-based inequality does not characterize same-sex relationships to the same degree as heterosexual relationships, there are other forms of inequality between same-sex couples about which the law should take note, such as differences in race, class, and citizenship status.  Marriage law can be a force for good in checking any inclination the more advantaged party may have to exploit their spouse’s vulnerability.  But family court judges are less comfortable addressing these inequities, preferring to focus on eradicating gender-based disadvantage.

The Supreme Court’s marriage decisions signal a momentous and pivotal moment in American history: one that repudiates public policy motivated by open dislike of gay people.  Yet these cases ought to motivate a range of thorny conversations within the gay community about what we expect from marriage and what marriage expects from us.

The image of a marriage equality rally at the U.S. Supreme Court is courtesy of Flickr

A version of this article was originally published on July 3rd, 2013 in The Nation.

KatherineFrankeheadshotKatherine Franke is the Isidor and Seville Sulzbacher Professor of Law and Director of the Center for Gender and Sexuality Law at Columbia Law School.


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Mike Johnson Likens Himself to Moses, Tells Christian Nationalists God Charted His Path to Speaker



Mike Johnson, delivering the keynote address to a far-right Christian nationalist group Tuesday, likened himself to Moses and declared God had charted his path to become the Republican Speaker of the House, after telling him in his prayers to prepare.

Speaker Johnson, a Christian nationalist who falsely claims the Constitution’s separation of church and state is a “misnomer” and has declared the United States is not democracy but a “biblical” republic, is an attorney who once worked for a far-right organization that has since been designated an anti-LGBTQ extremist group by the Southern Poverty Law Center. Johnson was the lead sponsor last year of a federal “Don’t Say Gay” bill and has bragged that he and his teenaged son are accountability partners in a no-porn pledge that includes installation of monitoring software on all their devices.

“I’ll tell you a secret since the media is not here,” Speaker Johnson said at the National Association of Christian Lawmakers (NACL) Gala (video below), where he was honored with their American Patriot Award for Christian Honor and Courage, as Right Wing Watch reported.

“Thank you for not allowing the media in, I’ll tell you a secret because they wanted to come because they wanted to, you know, take my comments out of context as they’ve been doing with with great joy for the last few weeks,” Johnson charged, not specifying which of his remarks he believes have been taken out of context.

READ MORE: Jim Comer Decimated by NBC Reporter in ‘Under Two Minutes’

“The Lord impressed upon my heart a few weeks before this happened, that something was going to occur,” Johnson continued. “And the Lord very specifically told me in my prayers to prepare, but to wait. ‘Prepare for what?’ I said to the Lord. You know, I had this sense that we were going to come to a Red Sea moment in our Republican conference and the country at large.”

“And look, I’m a Southern Baptist, I don’t want to get too spooky on you. Okay, but you know, you know okay,” he continued. “All right. But you know, the Lord speaks to your heart. And He had been speaking to me about this and the Lord told me very clearly to prepare and be ready. Be ready for what? Okay, I don’t know. We’re coming to a Red Sea moment. ‘What does that mean, Lord?’ And then when the Speaker’s race happened.”

He said, “the Lord began to wake me up through this three-week process we’re in in the middle of night and to speak to me and to write things down plans and procedures and ideas on how we could pull the conference together.”

“Now at the time I assumed the Lord is going to choose a new Moses. And oh, thank you the Lord. Lord, you’re gonna allow me to be Aaron to Moses,” Johnson told the attendees.

Johnson reminded his audience of the Speaker’s debacle, going down the line of friends who he tried to help become Speaker, acknowledging that all of them failed.

READ MORE: ‘Does America Need More God?’: Mike Johnson Laments LGBTQ High School Kids

He continued, explaining that “at the end, when it came to the end, the Lord said, ‘Now step forward.’ ‘Me? I’m supposed to be Aaron.’ Now the Lord said, ‘Step forward.’ Psalm 77 speaks of the Exodus in the 14th chapter of Exodus and it says, ‘Only God saw the path through the roiling sea, we could not see it, men could not see it.’ And I believe deep in my heart, is my core conviction, that God wants us to seek Him for the path through the roiling sea.”

As Right Wing Watch reports, after Johnson’s speech, “NACL founder Jason Rapert presented Johnson with the Honor and Courage award, along with a piece of a destroyed Ten Commandments monument that Rapert had placed in front of the Arkansas state capitol in 2017.”

“’It’s very obvious to see, you’re one of us,’ Rapert told Johnson.”

Rolling Stone adds that Johnson’s speech Tuesday is “just the latest evidence that the politician who is now second in line for the presidency views himself as on a divine mission.”

Watch the video of Speaker Johnson below or at this link.

READ MORE: Mike Johnson Once Fought to Block a Married Same-Sex Family’s Adoption: Report


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‘Hardball? You Bet’: Dems ‘Need to Be Prepared’ After McCarthy Exit Urges Top Political Scholar



The American voters sent 222 Republicans and 213 Democrats to the House of Representatives in the 2022 elections, the exact same margin, but flipped, as the 2020 election. But today, with the announcement that ousted, former GOP House Speaker Kevin McCarthy is not only not running for re-election but is quitting Congress at the end off the year, Republicans have a big majority crisis — because of their now tiny majority.

It’s no longer 222 to 213.

After McCarthy’s exit, and with the recent expulsion of now-former Congressman George Santos (R-NY) Republican Speaker Mike Johnson will have a very slim majority.

“The party’s margin in the House fell to three seats from four with the expulsion of Representative George Santos of New York last week,” The New York Times explains. “That leaves almost no wiggle room for Mr. Johnson, who is already dealing with a revolt from the far right for working with Democrats to keep the government funded and faces another pair of shutdown deadlines in mid-January and early February.”

READ MORE: Comer Threatens ‘Contempt’ Despite Hunter Biden’s Lawyer Quoting Chairman’s Media Appearances

“When the House returns in January,” The Washington Post adds, “Republicans can lose only two votes from their ranks to pass any legislation at a time when the chamber faces major decisions on government spending and foreign aid. That dynamic could force Speaker Mike Johnson (R-La.), who assumed the post after a tumultuous three weeks following McCarthy’s ouster, to work with Democrats to avert a partial government shutdown as soon as mid-January.”

U.S. Rep. Bill Johnson (R-OH) has announced he will retire and exit Congress early next year.

But possibly even before that, Speaker Johnson’s tiny majority could at some point become an opening for Democrats, according to a top political scientist and scholar, Dr. Norman Ornstein.

“Democrats need to be prepared to act swiftly and decisively if the numbers drop below 218– even if only for a day. Quick motion to vacate, [Hakeem] Jeffries as Speaker, immediate agenda,” writes Dr. Ornstein, a senior fellow emeritus at the American Enterprise Institute (AEI), “where he has been studying politics, elections, and the US Congress for more than four decades.”

Ornstein offers more opportunities should Democrats be able to take the majority back soon.

READ MORE: Jim Comer Decimated by NBC Reporter in ‘Under Two Minutes’

“Reconciliation bill to secure robust spending, eliminate debt limit permanently, taxes on rich to pay for permanent child tax credit.”

He adds, the number of Republican members “would need to get down to 213. But any set of problems– a Covid outbreak, for example– could bring those numbers down, if only for a day or two. Have a plan ready! Hardball? You bet.”

David Rothkopf, the noted foreign policy, national security and political affairs analyst and commentator, responding to Ornstein’s remarks appeared to urge Republicans to join with Democrats to elect a Democratic Speaker, or even to switch parties:

“This. C’mon you GOPers from purple districts. Trump will have you purged and sent to Siberia. We just need 2 of you. You can be unloved by the GOP or heroes to the rest of America! Make your move now.”

Of course, special elections will be held to replace both Santos (scheduled for February 13, 2024) and McCarthy (likely summer, according to The Post), and at some point Johnson.

But with the extremely large number of members of Congress who have exited or will be, as Ornstein says, Democrats need to be ready.

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Comer Threatens ‘Contempt’ Despite Hunter Biden’s Lawyer Quoting Chairman’s Media Appearances



Republican House Oversight Committee Chairman Jim Comer is now threatening Hunter Biden with “contempt” of Congress if he refuses to testify behind closed doors. The President’s son has repeatedly offered to testify in public.

Abbe Lowell, the attorney with “close ties inside the Trump White House” who is now representing Hunter Biden, Wednesday morning again reiterated his demand that any testimony before the House Oversight Committee be in a public hearing, and he used Chairman Comer’s own words to make his point.

But Comer, who is moving toward impeaching President Joe Biden despite having offered no actual proof of any impeachable offense, was quick to tell Politico: “He’s been subpoenaed. We expect him to show up. They don’t get to make the rules.”

“I would expect Congress to hold the president’s son in contempt,” Comer said, if Hunter Biden refuses to testify in a closed-door session.

READ MORE: Jim Comer Decimated by NBC Reporter in ‘Under Two Minutes’

“As indicated in my November 28, 2023, letter,” Lowell wrote to Chairman Comer earlier on Wednesday, in a letter published by The Washington Examiner, “Mr. Biden has offered to appear at a hearing on the December 13, 2023, date you have reserved, or another date this month, to answer any question pertinent and relevant to the subject matter stated in your November 8, 2023, letter.”

Lowell made clear his motivation for a public hearing before cameras.

“He is making this choice because the Committee has demonstrated time and again it uses closed-door sessions to manipulate, even distort, the facts and misinform the American public—a hearing would ensure transparency and truth in these proceedings.”

But Lowell cited Comer’s own words from a few of his numerous media appearances to demonstrate how the Chairman welcomed an open-door public hearing. The Daily Beast’s Justin Baragona noted that Lowell, in his letter, “again cites Comer practically daring Hunter to publicly testify.”

Lowell cited Comer’s remarks on October 31 on “The Benny Show.”

READ MORE: ‘Does America Need More God?’: Mike Johnson Laments LGBTQ High School Kids

“We’re in the downhill phase of this investigation now because we have so many documents, and we can bring these people in for depositions or committee hearings, whichever they choose , . . . .”

Also, his September 13 statement on Newsmax.

“Hunter Biden is more than welcome to come in front of the committee . . . he’s invited today. We will drop everything.”

He also cited Comer’s “November 8, 2023, statement in your cover letter addressed to me: ‘Given your client’s willingness to address this investigation publicly up to this point, we would expect him to be willing to testify before Congress.”

(Emphasis included in Lowell’s letter.)

“We look forward to working out the schedule,” Lowell concluded.

READ MORE: ‘Authoritarianism’: Florida Says Its Public Schools Exist to ‘Convey Government’s Message’




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