Connect with us

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

Published

on

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.

 

Related Topics:
Continue Reading
Click to comment
 
 

Enjoy this piece?

… then let us make a small request. The New Civil Rights Movement depends on readers like you to meet our ongoing expenses and continue producing quality progressive journalism. Three Silicon Valley giants consume 70 percent of all online advertising dollars, so we need your help to continue doing what we do.

NCRM is independent. You won’t find mainstream media bias here. From unflinching coverage of religious extremism, to spotlighting efforts to roll back our rights, NCRM continues to speak truth to power. America needs independent voices like NCRM to be sure no one is forgotten.

Every reader contribution, whatever the amount, makes a tremendous difference. Help ensure NCRM remains independent long into the future. Support progressive journalism with a one-time contribution to NCRM, or click here to become a subscriber. Thank you. Click here to donate by check.

News

Trump Appears to Confuse America’s Revolutionary War With the Civil War

Published

6 hours ago

on

June 18, 2025

By

President Donald Trump, speaking about war as he attempts to decide whether or not to actively support Israel by bombing Iran, appeared to confuse America’s war for independence —the Revolutionary War—with America’s Civil War.

Asked in the Oval Office on Wednesday afternoon if he’s made a decision about what, if anything, he will do regarding Iran, the President told reporters, “I have ideas as to what to do, but I haven’t made a final.”

“I like to make the final decisions one second before it’s due, you know, ’cause things change. I mean, especially with war, things change with war, it can go from one extreme to the other.”

READ MORE: ‘Feckless or Complicit’: Hegseth Blasted in Heated Hearing Over Social Media Influencer

“War’s very bad. There was no reason for this to be a war,” he said, apparently about Israel and Iran.

“There was no reason for Russia, Ukraine. A lot of wars, there was no reason for.”

“You look right up there,” Trump said, pointing to the wall, “I don’t know, you see the Declaration of Independence, and I say, I wonder if you, you know, the Civil War always seemed to me maybe that could have been solved without losing 600,000 plus people.”

The Declaration of Independence was America’s declaration it would no longer be ruled by England. It effectively became a declaration of war: the American Revolutionary War, or the American War of Independence, which lasted from 1775 to 1783.

By contrast, the American Civil War was fought in the following century, from 1861 to 1865, over slavery.

READ MORE: ‘Middle Finger to Parental Rights’: SCOTUS Conservatives Scorched Over Trans Kids Ruling

Critics were quick to mock the President.

“I think we all remember our schooling, when we learned how the Declaration of Independence led to the Civil War,” snarked former journalist Landon Hall.

“As a Canadian, even I know that the Declaration of Independence has absolutely zero to do with the Civil War, what is going on down there?” asked filmmaker Robert Fantinatto.

“Does he think the Declaration of Independence was written in response to the Civil War?
What is he talking about?” asked attorney Robyn J Leader.

Watch the video below or at this link.

READ MORE: ‘It’s Biblical’: House Republican Defends His Support for Israel

 

Image via Reuters

Continue Reading

News

‘Feckless or Complicit’: Hegseth Blasted in Heated Hearing Over Social Media Influencer

Published

10 hours ago

on

June 18, 2025

By

U.S. Secretary of Defense Pete Hegseth faced sharp and stern criticism during a Senate Armed Services Committee hearing over his highly controversial decision to fire Air Force General Timothy D. Haugh, head of the National Security Agency and U.S. Cyber Command. Reports suggested a far-right social media influencer was behind the move to terminate the NSA Director in what some have called a “loyalty purge.”

Calling General Haugh’s dismissal “sudden and inexplicable” and “deeply concerning,” U.S. Senator Jackie Rosen (D-NV) told Secretary Hegseth it “raises significant questions about the decision-making process,” and “its potential consequences.”

“Public reports indicate that the removal of General Haugh, who has served his country proudly, has been influenced by social media influencer, an influencer— a personality on social media, Laura Loomer—spreads conspiracy theories. She’s been denounced even by Republicans,” Senator Rosen charged. “And the idea that any leaders within our agency responsible for out nation’s security—somebody would be dismissed based on the advice of a social media influencer is alarming to say the least. It’s surely not how we should be running our military.”

READ MORE: ‘Middle Finger to Parental Rights’: SCOTUS Conservatives Scorched Over Trans Kids Ruling

Senator Rosen demanded to know if Hegseth was “consulted” regarding the dismissal of General Haugh.

“Well, Senator, I would not advise believing everything you read in the media,” was Secretary Hegseth’s response.

After a heated back-and-forth, Hegseth declared, “I’m the decision-maker for the department. And we all serve at the pleasure of the President, and we have the prerogative to make those decisions.”

Refusing to state specifically that he personally relieved general Haugh, Hegseth served up a more generic response.

“Anyone at that level who was relieved would be relieved by the Secretary of Defense,” he stated.

Hegseth also refused to respond when asked if there was a specific justification for General Haugh’s dismissal.

“Uh, Ma’am, we all serve at the pleasure of the President and the President deserves the type of Commanders and advisers that he thinks will best equip…to accomplish the mission.”

Hegseth also refused to say if he discussed dismissing Haugh with Laura Loomer.

“I don’t discuss who I talk about anything with, but ultimately, this is my decision, and he serves at the pleasure of the president, and that’s why he’s no longer there,” was the Secretary’s reply.

After another question, Hegseth told Senator Rosen, “Uh, I believe your time is up, Senator.”

READ MORE: ‘It’s Biblical’: House Republican Defends His Support for Israel

“Oh,” Rosen vehemently responded, “it is not up to you to tell me when my time is up.”

“Well, the time—” Hegseth continued.

“I am going to say, Mr. Secretary, you’re either feckless or complicit. You’re not in control of your department. You are unserious. It is shocking. You’re not combating antisemitism within your ranks. It’s a dangerous and pivotal time in our nation’s history,” Senator Ro9sen warned.

“And I don’t appreciate the smirk, sir. You are the Secretary of Defense.”

Watch below or at this link.

READ MORE: Dr Oz: Americans Must ‘Earn the Right’ to Be on Medicaid

 

Image via Reuters

Continue Reading

News

‘Middle Finger to Parental Rights’: SCOTUS Conservatives Scorched Over Trans Kids Ruling

Published

11 hours ago

on

June 18, 2025

By

Legal experts, advocates for transgender youth, and the liberal justices of the U.S. Supreme Court are condemning SCOTUS’s 6–3 decision to uphold a Tennessee law banning gender-affirming care for minors. All six conservative justices sided with the ban—some going further to disparage scientific expertise, dismiss the value of medical consensus, and signal that transgender Americans should not be granted protected class status.

Chief Justice John Roberts authored the majority opinion upholding the ban, known as SB1.

“An estimated 1.6 million Americans over the age of 13 identify as transgender, meaning that their gender identity does not align with their biological sex,” Justice Roberts wrote at the opening of his opinion, acknowledging that transgender youth exist. In his footnotes he also acknowledged their use of pronouns: “We use ‘transgender boy’ to refer to an individual whose biological sex is female but who identifies as male, and ‘transgender girl’ to refer to an individual whose biological sex is male but who identifies as female.”

Approximately 25 states across the country have some form of ban on medical care for transgender youth. Those bans—including puberty blockers—likely will now stay in place, affecting more than 100,000 transgender youth (as of 2023), according to the Williams Institute.

READ MORE: ‘It’s Biblical’: House Republican Defends His Support for Israel

Justice Amy Coney Barrett took extra steps to write that “transgender status” does not constitute “suspect,” class deserving of strict scrutiny, a higher level of judicial review.

“The Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status,” she also wrote.

Justice Clarence Thomas denigrated what he called “the expert class.”

“There are several problems with appealing and deferring to the authority of the expert class,” he wrote. Justice Thomas added, “whether ‘major medical organizations’ agree with the result of Tennessee’s democratic process is irrelevant.”

“To hold otherwise would permit elite sentiment to distort and stifle democratic debate under the guise of scientific judgment, and would reduce judges to mere “spectators . . . in construing our Constitution.”

Meanwhile, Justice Sonia Sotomayor’s dissent is being praised by transgender advocates and trans-supporting legal experts. And in her dissent she directly opposed Justice Barrett’s claims.

“To give meaning to our Constitution’s bedrock equal protection guarantee, this Court has long subjected to heightened judicial scrutiny any law that treats people differently based on sex,” Justice Sotomayor wrote.

She said in her opinion that Tennessee’s law discriminates against transgender adolescents, and “expressly classifies on the basis of sex and transgender status.” In its ruling, the Supreme Court, Sotomayor wrote, “abandons transgender children and their families to political whims.”

“Tennessee’s ban applies no matter what the minor’s parents and doctors think, with no regard for the severity of the minor’s mental health conditions or the extent to which treatment is medically necessary for an individual child,” she noted.

READ MORE: Dr Oz: Americans Must ‘Earn the Right’ to Be on Medicaid

“This case presents an easy question: whether SB1’s ban on certain medications, applicable only if used in a manner ‘inconsistent with . . . sex,’ contains a sex classification,” Justice Sotomayor concluded. “Because sex determines access to the covered medications, it clearly does. Yet the majority refuses to call a spade a cspade. Instead, it obfuscates a sex classification that is plain on the face of this statute, all to avoid the mere possibility that a different court could strike down SB1, or categorical healthcare bans like it.”

“The Court’s willingness to do so here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight. It also authorizes, without second thought, untold harm to transgender children and the parents and families who love them. Because there is no constitutional justification for that result, I dissent.”

Attorney Andrew L. Seidel labeled Sotomayor’s dissent, “Clear, concise, and brilliant.”

Attorney Aaron Reichlin-Melnick, responding to the ruling, wrote: “Solidarity with trans people today, who are facing growing state oppression here and globally.”

Writer and former Human Rights Campaign spokesperson Charlotte Clymer wrote on the ruling: “The Supreme Court’s ruling prioritizes the discomfort and fear of some non-trans people over the health and wellbeing of trans youth. It disregards science and every major medical authority. It endorses the state controlling parents and doctors. Every resulting suicide is on the hands of these anti-trans justices.”

Illinois Democratic Governor JB Pritzker, responding to news of the decision, wrote: “Illinois has enshrined protections to meet this very moment. In a time of increasing overreach and hateful rhetoric, it’s more important than ever to reaffirm our commitment to the rights and dignity of the LGBTQ+ community. You have a home here always.”

Political scientist Dr. Norman Ornstein, a contributing editor to The Atlantic, declared: “In effect, the Supreme Court has given a middle finger to parental rights by accepting a Tennessee law banning gender- affirming care for youth. This is a decision that should be made within the family. They love parental rights when it fits right wing aims.

READ MORE: Tapper Tells Ex-Viewer Trump’s Behavior Is More About ‘Personality’ Than Cognitive Decline

 

Image via Shutterstock

 

 

 

Continue Reading

Trending

Copyright © 2020 AlterNet Media.