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

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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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Senator Suggests Trump Engaging in ‘Stochastic Terrorism’ Amid Pet-Eating Immigrant Lies

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September 13, 2024

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Donald Trump is on his fourth day of promoting his false claim that 20,000 undocumented Haitian migrants were dumped on Springfield, Ohio and have destroyed the townsfolk’s way of life, including by stealing people’s pet cats and dogs and eating them. Now, one U.S. Senator is suggesting the Republican presidential nominee is using “stochastic terrorism” to help his flailing presidential campaign.

A bomb threat and another, unspecified threat forced several Springfield elementary schools and one middle school to evacuate or not open Thursday and Friday. On Thursday, the Springfield city hall was evacuated and shut down, as were some state motor vehicle offices.

The emailed bomb threat on Thursday echoed Donald Trump’s and U.S. Senator JD Vance’s racist lies.

“My hometown of Springfield is becoming a thirdworld (expletive) because you allowed the federal government to dump these (expletive) here,” the email stated, USA Today reports. “We have Haitians eating our animals and then you lie and claim this is not happening when we see this happening. I’m here to send a message, I placed a bomb in the following locations…”

RELATED: ‘Hell Isn’t Hot Enough’: Fury at Trump as More School Evacuations Follow ‘Pet-Eating’ Lies

During Tuesday’s presidential debate Trump had falsely said: “In Springfield, they’re eating the dogs. The people that came in, they’re eating the cats, they’re eating, they’re eating the pets of the people that live there.”

On Thursday he used the lie to promote the candidacy of a Republican seeking to unseat Ohio Democratic U.S. Senator Sherrod Brown.

And on Friday, despite the bomb threat and other unspecified threat, Trump said in a press conference he would travel to Springfield and vowed to do “large deportations” from that city and send the legal immigrants he removes to Venezuela.

The “20,000 illegal Haitian migrants” are reported 12,000 to 15,000, ABC News reports, and they are not “illegal.” They are in the country legally, and the town as far back as a decade ago resolved to invite immigrants to help rebuild their failing economy and businesses.

Also on Friday, while reportedly not repeating the racist pet-eating lie, Trump dismissed the bomb threats as unimportant.

U.S. Senator Brian Schatz (D-HI) is not dismissing them, but he is asking how anyone could function again under a Trump presidency, and suggesting Trump is engaging in stochastic terrorism.

RELATED: Loomer Invokes Hannibal Lecter as Trump Triples Down on Lies About Immigrants Eating Pets

“Think about what it would be like to have four years of a President engaging in overtly racist stochastic terrorism against people pursuing the American dream and then just ask yourself what your immigrant grandparents would want you to do. Kids deserve to go to school safely,” Senator Schatz wrote.

Wajahat Ali is a New York Times contributing op-ed writer, Daily Beast columnist, and author of “Go Back to Where You Came From.” Responding to the news Friday of more school evacuations, Ali wrote: “Stochastic terrorism thanks to Trump and Vance.”

Mother Jones’s D.C. bureau chief David Corn, an MSNBC analyst, also noted: “Trump and Vance incite. Look up stochastic terrorism.”

And Mother Jones on X posted: “Days after Trump went on a racist rant during the presidential debate, the city of Springfield, Ohio, received a bomb threat that was explicitly hostile to immigrants and Haitians. This further proves that Trump’s demonizing rhetoric portends violence.”

Watch the videos above or at this link.

READ MORE: Trump Faces Increasing Calls to Participate in Second Debate

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‘Hell Isn’t Hot Enough’: Fury at Trump as More School Evacuations Follow ‘Pet-Eating’ Lies

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September 13, 2024

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For the second day in a row, elementary school children in Springfield, Ohio, were forced to be evacuated due to threats: a bomb threat on Thursday and an unspecified threat on Friday. The threats come after Republican presidential nominee Donald Trump and his running mate, Ohio U.S. Senator JD Vance, have repeatedly spread lies about Haitian immigrants in Springfield this week, including that they are stealing residents’ cats and dogs and eating them.

Thursday’s bomb threat specifically mentioned the false claims about Haitian immigrants eating people’s pets, USA Today reported.

“Three schools in Springfield were evacuated or closed Friday, based on guidance from police, school officials said,” local NBC affiliate WLWT reports. “Officials with the Springfield City School District said that based on information they got from the Springfield Police Division, students at Perrin Woods and Snowhill Elementary were evacuated and moved to another district location.”

A Springfield middle school was also ordered closed Friday morning, before classes began, and “at least one Springfield location of the Ohio Bureau of Motor Vehicles is closed.”

READ MORE: ‘Screaming About Eating Cats Is Not a Solution’: Walz Rallies Michigan Crowd, Slams Trump

On Thursday, a bomb threat targeting Springfield city hall and an elementary school forced evacuations of those buildings.

“Police Chief Allison Elliott said that due to the seriousness of the threat, officials evacuated multiple buildings in addition to City Hall, including BMV Springfield Driver’s Exam Station, Ohio License Bureau Southside, Springfield Academy of Excellence and Fulton Elementary School.”

Despite the reports of the bomb threat on Thursday, hours later Donald Trump used his Truth Social platform to promote the Republican nominee working to unseat Democratic U.S. Senator Sherrod Brown of Ohio, by spreading more anti-Haitian immigrant racism.

“Bernie Moreno has a very good chance of winning Ohio against a Radical Left Democrat, Sherrod Brown, with what is happening in Springfield, and other parts of the State,” Trump declared Thursday afternoon, referring to the far-right extremist Republican who is currently leading in the polls by low single digits.

Trump then invoked his racist Haitian immigrant lies.

“Ohio is being inundated with Illegal Migrants, mostly from Haiti, who are taking over Towns and Villages at a level and rate never seen before.”

On Truth Social, Trump on Thursday also posted memes of cats, including one with them holding a sign that says, “Don’t let them eat us, vote for Trump.”

RELATED: Loomer Invokes Hannibal Lecter as Trump Triples Down on Lies About Immigrants Eating Pets

During Tuesday’s presidential debate, Trump had falsely claimed, “In Springfield, they’re eating the dogs. The people that came in, they’re eating the cats, they’re eating, they’re eating the pets of the people that live there.”

USA Today also reported that the “false rumor that Haitian migrants were stealing and eating pets began to circulate in the days leading up to the debate and was further popularized through posts from running mate J.D. Vance about his own state and AI-generated images shared by Trump, Elon Musk and the Republican House Judiciary Committee.”

J.J. Abbott, former press secretary to then-Pennsylvania Governor Tom Wolf, responded to ABC News immigration reporter Armando Tonatiuh Torres-García’s viral social media post reporting Friday’s threat and evacuations:

“In 2018, the GOP and Trump’s anti-immigrant conspiracies led to the deadliest mass shooting in recent PA history at a synagogue in Pittsburgh. The gunman took him seriously and literally. There’s nothing funny or intriguing about this dangerous racism.”

Many others responded to that reporter’s post.

“No sanitizing this. @jdvance and @realDonaldTrump bear full responsibility. They’re promoters of terrorism; and they did it intentionally,” wrote columnist, reporter, and former editor in chief of Crooked Media Brian Beutler.

“Ohio should look at this insanity and vote accordingly. Conspiracy peddling has real consequences. You can’t unring that bell. Donald Trump and JD Vance don’t care,” noted constitutional law professor and political scientist Anthony Michael Kreis.

“Donald Trump and JD Vance are terrorizing schoolchildren. They are unfit for any public office, let alone the highest,” responded attorney Andrew L. Seidel.

“JD Vance and MAGA influencers whipped up a blood libel panic and now children in Springfield are being traumatized by their lies. Hell isn’t hot enough,” commented the co-executive director of the progressive group Indivisible, Leah Greenberg.

“There’s a line from Charlottesville to Jan 6 to this. Trump speaks, his supporters act,” wrote political analyst and researcher Arieh Kovler.

“Trump could stop this but he won’t because he believes it serves his interests. It’s the same J6 behavior of spreading false conspiracy theories to inflame his supporters and then sitting back and watching instead of stopping it,” noted political science professor Michael McDonald.

READ MORE: Trump Faces Increasing Calls to Participate in Second Debate

 

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‘Screaming About Eating Cats Is Not a Solution’: Walz Rallies Michigan Crowd, Slams Trump

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September 13, 2024

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Minnesota Governor and Democratic Vice Presidential nominee Tim Walz took aim at Donald Trump Thursday night at a rally in the battleground state of Michigan, where the Harris campaign is leading the ex-president by an average of less than two points.

The Detroit News’ Craig Mauger posted a photo of the overflow crowd at the Grand Rapids Public Museum:

Gov. Walz’s speech (full video here) was decidedly down-home and neighborly, but he had no trouble going on the attack as well.

He told the audience that their friends and neighbors had watched Tuesday night’s presidential debate, during which Trump had lied that Haitian immigrants in Springfield, Ohio, are “eating the dogs” and “eating the cats. They’re eating — they’re eating the pets of the people that live there.”

Walz did not denigrate Trump supporters. Instead, he said that after the debate, “I don’t hear them out there much. I don’t see them out there much. They’re a little bit – because they’re good people. They’re our neighbors. They’re like, ‘that didn’t look very presidential.’ Screaming about eating cats is not a solution. It’s not a solution.”

RELATED: Loomer Invokes Hannibal Lecter as Trump Triples Down on Lies About Immigrants Eating Pets

“Well,” Walz continued, “what Kamala Harris was talking about is things that you actually care about. They might not be sitting down at the bar talking about banning books, but they might down there be talking about, ‘how can I afford a house? I’m working hard. I’m working hard. I want to have a house,’ and because that house becomes a home to some of these folks. Your real estate mogul, venture capitalist, whatever, that’s just an asset to be traded and sold to whoever you want. For us, it’s a place we gather around the kitchen table to talk to our kids about what happened in school. That’s what Kamala Harris wants for you. That’s what she wants for you.”

The 60-year old governor who is the only one of the four candidates on either ticket with a positive net approval rating (Harris comes in second), focused on midwestern values.

“What I am most proud of is because of all the things Donald Trump has stolen and all the things he did, what is unforgivable, is him stealing our joy. So here’s the thing, Kamala Harris is bringing not only solutions that focus on you. She’s doing it with a smile and joy on her face.”

“This guy, this guy on purpose, and make no mistake, it’s on purpose. He broke our political system. He tried to break our faith in one another. He tried to break the thing that makes Midwesterners stick together. We’re positive people, for God’s sakes. We walk on water half the year, we have to be it’s cold as hell,” Walz said. “We don’t care. We dig our neighbors out. This guy is trying to tell you your neighbors the enemy. This guy’s trying to tell you that he knows best about what folks in Grand Rapids need. Well, trust me, nothing could be further from the truth.”

“So here’s the deal, we’re nice folks. We’ll dig you out after a snow storm. We’ll say ‘hi’ at the store. Some of us might even let you merge on the highway. Not all of us,” he joked. “We have a saying for that. It’s Minnesota Nice, is what we call it. I’m sure you have it too. But the one thing I’ll tell you about Midwesterners that stretches across that beautiful blue wall of Northern America here, the one thing about us is, don’t ever mistake our kindness for weakness.”

READ MORE: Multiple-Location Bomb Threat Follows Trump and Vance’s False Dog-Eating Immigrants Claims

Walz also went after school shootings while reassuring supporters Democrats support the Second Amendment.

“Leaves are changing,” Walz said, as The Detroit News reported. “Friday night football’s back. Our kids have a new start and they’re going in. It’s a time of excitement and hope. Everything we want. That’s what we want for our kids.”

“But too many of our kids, these first days of school, are a time of sheer terror. A time that is going to stick with them forever,” he said, referencing school shootings.

“I know guns, you know guns,” he said. “Kamala Harris is a gun owner, by the way, which you found out. I’m not going to take any crap (from Republicans) about the Second Amendment. We support the Second Amendment.”

“But our first responsibility,” Walz continued, “is keeping our children safe. And you can have both.”

He also referred to shootings as “that crap,” and reminded the crowd that it “does not happen in other places in the world.”

Walz, a former U.S. Congressman who served for 24 years in the U.S. Armed Forces, called Donald Trump a “criminal.” Trump was convicted of 34 felony counts in New York for business fraud in an attempt to subvert the 2016 election.

He told the crowd Vice President Harris’s debate performance should have not been a surprise.

“She took on the predators. She took on the fraudsters,” Walz said. “She took down career criminals and powerful corporate interests, which, by the way, was on the stage the other night, all those things so, so this time, just to be clear, that criminal being on the stage got put in his place.”

“And this is what true leadership looks like. And she says this time and time again, and I love it. A mark of true leadership is not who beats people down, it’s who lifts people up, who lifts them up. So so when it’s a bully, and there’s a time she proved she can beat some people down if they need it.”

Watch the videos above or at this link.

READ MORE: Trump Faces Increasing Calls to Participate in Second Debate

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