(I've never spoken my mind on gay marriage in public, and seldom in private. But with my friends and colleagues having a big debate on it here at the State Bar meeting, at least ten years too late, it's time. I thought that if I get a chance to speak I had better prepare carefully, make sure I include the most important things, and boil it down as far as I can. Got it down to a little over three minutes. Wish it could be shorter, as I once performed a Christian marriage in two minutes. But this thing has as many sharp angles and hidden dangers as, well, a Christian marriage.)
[Remarks prepared for a State Bar forum on marriage, June, 2014.]
I’m John Crouch, a divorce lawyer from Arlington. I’m active in the Coalition for Divorce Reform and the Marriage Opportunity Project, which wants to strengthen, deepen and improve marriage for all economic classes, races and orientations.
When gay marriage first came along, they called it “redefining marriage”. That was deeply scary, arrogant and Orwellian, to think government could redefine a basic fact of human life that’s older than government. And thus could redefine it out of existence, or “redefine” other crucial facts of life, such as parenthood. Many people would not have minded keeping marriage the same and just letting more people into it. But they put an immense amount of energy into “defending” marriage that could have gone into improving it and adapting it to modern life.
20 years later, the question is not whether the law should be used to change family life, but whether the law should adapt to changes in life that have already happened. Gay people have formed traditional families and raised kids. Like the rest of us, they want to form binding, exclusive contracts of marriage, which make it safer for each of them to play complementary roles, increase their combined self-sufficiency, and give back more to their children, friends, and communities.
But we lawyers know that it’s not just the result that matters, sometimes how you get to the result is just as important. Because of all the side effects on how other things are done in the future.
If this change happens in constitutional litigation instead of by legislation, it’s probably going to weaken America’s Constitution and weaken marriage for everyone. In the past generation we’ve escaped from the dangerous, lawless idea that the Constitution says whatever the elites want it to say. Liberals and conservatives now look at the text and the intent of the framers, even on tough political issues like campaign finance and gun control. But lately even conservatives, belatedly racing for the exits of the gay marriage debate, are abandoning that constitutional conservatism.
If the courts protect gay marriage rights by agreeing with the great Supreme Court Justice Joseph Story, that it’s an unconstitutional impairment of contract to void a marriage without fault or mutual consent, that would certainly strengthen marriage. Or if they decide purely on equal protection grounds, that wouldn’t do violence to marriage. But far more likely and worrisome is if courts find new rights to complete sexual freedom, or say we can’t regulate coupling and uncoupling at all, can’t make marriage exclusive, permanent or binding. That will destroy the fundamental building block of society. The little bit of leverage that family law still has to influence our behavior - - the mild marriage-saving devices built into no-fault divorce laws, the fact that a man can’t marry the other woman until a court has sorted out what he owes his first wife and children - - will be the next dominoes to fall. We’ll have the shallow, adolescent freedom that people have in Las Vegas, to do what we want in the moment and keep our options open. But we won’t have freedom that matters, the adult freedom to truly choose by forsaking other choices, binding ourselves over time, so that others can rely on us.
So don’t make the Constitution the battlefield, and don’t destroy what both sides are fighting for. Conservatives can conserve, liberals can liberate, by ending these lawsuits and legislating to amend the state constitution and legalize same-sex marriage. And then join in a Marshall Plan for marriage, so we can all say we didn’t fight this war in vain.
Oklahoma's governor has signed a law requiring educational programs for divorcing parents who have children under 18. It amends a law that already lets courts require such classes, following a model common in many states and localities around the country. But it adds a few new topics, to help couples work on their marriage, if they want, as well as their coparenting. It also teaches communication and cooperation skills that are useful for the current marriage, and/or for divorced co-parenting, and for later relationships with others if they do divorce. The relevant part reads:
B. In actions for divorce based upon incompatibility filed on or after November 1, 2014, where the interest of a child under eighteen (18) years of age is involved, the adult parties shall attend, either separately or together, an educational program concerning the impact of divorce on children. The program shall include the following components:
1. Short-term and longitudinal effects of divorce on child well-being;
2. Reconciliation as an optional outcome;
3. Effects of family violence;
4. Potential child behaviors and emotional states during and after divorce including information on how to respond to the child's needs;
5. Communication strategies to reduce conflict and facilitate cooperative coparenting; and
6. Area resources, including but not limited to nonprofit organizations or religious entities available to address issues of substance abuse or other addictions, family violence, behavioral health, individual and couples counseling, and financial planning.
Program attendees shall be required to pay a fee of not less than Fifteen Dollars ($15.00) and not more than Sixty Dollars ($60.00) to the program provider to offset the costs of the program. A certificate of completion shall be issued upon satisfying the attendance and fee requirements of the program, and the certificate of completion shall be filed with the court. The program provider shall carry general liability insurance and maintain an accurate accounting of all business transactions and funds received in relation to the program. The program shall be completed prior to the temporary order or within forty-five (45) days of receiving a temporary order. However, and in all events, a final disposition of child custody shall not be granted until the parties complete the program required by this subsection. The court may waive attendance of the program for good cause shown.
C. Each judicial district may adopt its own local rules governing the program programs.
D. The Administrative Office of the Courts may enter into a memorandum of understanding with a state entity or other organization in order to compile data including but not limited to the number of actions for divorce that were dismissed after participating in the program, the number of programs that were completed and the number of program participants for each fiscal year. The report shall include data collected from each judicial district. The report shall be published on the Administrative Office of the Courts website and distributed to the Governor, Speaker of the House of Representatives, Minority Leader of the House of Representatives, President Pro Tempore of the Senate and Minority Leader of the Senate.
The provincial Law Societies that govern bar admissions in Ontario and Nova Scotia have decided not to admit graduates of a new law school at a long-established university, Trinity Western University in Langley, B.C. But the Federation of Law Societies of Canada, and Law Societies in BC, Alberta, Saskatchewan, PEI, Newfoundland and Labrador, and Nunavut have decided to accredit the law school and admit its graduates.
Piecing together what actually is happening by looking at what people on both sides are saying, it seems clear that the reason for the ban is not the issues of quality and professionalism that are typically cited in US accreditation. Rather, the proponents of the ban cite the University's sex policy. It requires students, faculty and staff to sign a "Community Covenant Agreement" to limit “sexual intimacy” to the context of marriage between opposite genders, whether, on or off campus. Penalties for violations may include expulsion or firing.
Lawyer Lea Singh writes, in "Christian Lawyers Are The New Racists": "Support for gay marriage has come to be viewed as obligatory to the point of being a litmus test of whether admission among their numbers will be allowed at all. ... Back in 2005, before same-sex marriage became legal in Canada, supporters of traditional marriage still had the perceived backing of the majority, and our views were treated with (at least feigned) respect and consideration. There were mighty overtures to placate us with reassurances of freedom of speech and freedoms of religion and conscience. ... Less than a decade later, defenders of traditional marriage are being shunned as equivalent, for all intents and purposes, to racists."
Vancouver lawyer Tony Wilson said that in voting to accredit TWU, "Despite being an atheist with 'no horse in this race,' I voted the way I did because of something called the rule of law, which among other things, dictates that courts and administrative bodies like ours shouldn’t cherry pick the laws we like from the ones we don’t. I don’t believe we can choose to disregard the leading case on this issue just because we don’t like the case or we don’t like the covenant. ... [A] 2001 case, from the Supreme Court of Canada, determined that the B.C. College of Teachers could not deny accreditation of TWU’s teaching degree (and those who graduated from such program) because TWU insisted upon a similar covenant from its students. “For better or for worse” the Court said, “tolerance of divergent beliefs is a hallmark of a democratic society.” I believe that the benchers must follow the decisions of higher courts, particularly the Supreme Court of Canada. That’s the way our justice system works. Otherwise the law is nothing more than the political, ethical and unpredictable partialities of one judge, and laws developed in this fashion are neither fair, consistent nor predictable." But by the same token, he said, if the Supreme Court changed the law, he would support changing the bar's admission policy accordingly.
The B.C. Civil Liberties Association, according to Wilson, said "that its commitment to a society in which LGBTQ people are free from unlawful discrimination on the basis of sexual orientation did not give anyone licence to discriminate against others on the basis of their conscientiously held religious beliefs, nor to deny them their fundamental freedoms." Non-accreditation, it said, "would result in unlawful discrimination against and infringement of the fundamental freedoms of those who seek only to be able to study law and be allowed entry to the legal profession without discrimination based on their religious beliefs.”
Lawyers' Rights Watch Canada's letter to the Law Society of Upper Canada offered a very thorough exploration of the constitutional issues. It points out that for non-discrimination purposes, some universities are considered arms of the government and some are not, although in many cases the line is not as clear as one might thing. And likewise, it notes, Law Societies are governmental, because they exercise a monopoly "gatekeeper" power over admission to practice law in their provinces. So I thought it would conclude, from that, that there can be no religious viewpoint discrimination against lawyers in bar admissions. But instead, it argues that the Law Societies have delegated that "gatekeeper" function to law schools, so in effect, the law schools are the "gatekeepers" of the right to practice law, and thus they cannot discriminate against gays and lesbians. This overlooks the fact that any single law school is not a monopoly gatekeeper to bar admissions.
In "What a progressive used to be", Anthony Esolen ranges into a variety of issues here where I'm not always sure I agree with him, but his point is fresh and important — the original, populist, progressives sought to build up institutions based on individuals, families and communities, empowered by "group self-respect", to resist the growth and power of huge impersonal bureaucracies, public or private. He tells the story of Samuel W. Dike, founder of the Divorce Reform League. To which I would add Gov. Pat Brown, who launched the marriage-strengthening reform commission that later devolved into unilateral no-fault divorce; Justice Louis Burke and other founders of the family Conciliation Courts, and various recent and contemporary "healthy marriage movement" activists such as Diane Sollee of Smart Marriages, family therapy professor Bill Doherty, and radical divorce-mediator-turned-marriage-mediator Judy Parejko.
Something bothered me about the commercial where a woman said it was her job to keep her husband from leaving the house in pajamas, but I didn't know what it was until Bonnie Algera put her finger on it:
"Really? That's not his job? Did you ever think that infantilizing your spouse is why you feel like you are responsible for everything on earth and can't catch a break?"
That is at the root of so many problems in people's marriages. It's also a problem to be the kind of person who would do that, but it doesn't help that we're in a culture that encourages it.
Virginia's former Attorney General Ken Cuccinelli has launched "Virginia Self Defense Law: Defending Those Who Defend Themselves", a law firm that describes its services as, "If you have a retainer agreement with Virginia Self Defense Law PLC and you have a self-defense or law enforcement harassment situation, arising out of the use of your firearm, in which you or a family member end up being a named defendant in a Criminal, Civil, or administrative proceeding Virginia Self Defense Law PLC’s experienced trial ready attorneys will step in and defend you for no additional legal fees!"
My state legislator said yesterday on his Facebook page, Patrick Hope for Congress:
"I am absolutely appalled to see the news that former VA Attorney General Ken Cuccinelli has founded a new law firm to specialize in defending people who commit crimes with guns. His website even highlighted George Zimmerman as the kind of defendant they could help. Even worse, the firm is soliciting payments of around $10 a month as a retainer should their client commit a crime with a gun.
At a minimum this type of behavior is unethical for an attorney to be paid in anticipation of a crime- especially one with guns. I believe we can outlaw this in the U.S. Congress by passing a bill that would prohibit such arrangements in criminal cases.
Tony Soprano might appreciate this type of legal offering, but we need to outlaw this type of solicitation before it encourages more people like George Zimmerman to commit a crime with a gun.
Several Virginia State Bar Legal Ethics Opinions, culminating in the comprehensive Opinion 1606, allow non-refundable "retainers" to guarantee future availability for unknown future legal work, but say they are refundable 'advance" payments if they are for a specific job that is already planned. However, the nonrefundable retainers allowed by those opinions were only for "availability," and there were further charges for the actual legal work. With Virginia Self Defense Law there are not any further charges. The closest thing to that in Opinion 1606 is a "retainer" which is later credited toward the actual fees, and 1606 says that that must be treated as an "advance fee", which must be refundable, and not a "retainer". But what Virginia Self-Defense Law's retainer really is like is "prepaid legal", which is not covered in 1606 and was not common in this area in 1994, when 1606 was issued. But it is very common now. There is one Virginia State Bar Legal Ethics Opinion that mentions a prepaid legal services arrangement, but it focuses on a few specific questions that arose in it that were not related to prepayment, and does not even question the overall propriety of the arrangement. (LEO 1453).
I'm sensitive about this kind of thing, as a former campus ACLU chapter president. And because when I was growing up, my father and law partner defended people from all kinds of constitutional ourtrages, in criminal, civil and administrative litigation. And as a family law attorney, who sees every day the effects of the ruinous cost of private legal representation, not only for lower-class, but even middle-class people. And as a member of the Council of the Virginia State Bar, where we are preparing to tackle that very problem, and hoping that the Bar can be part of the solution to it, not part of the problem. Too often, court rules and sometimes even ethics rules have made affordable legal representation impossible for most people.
Comments on Delegate Hope's post include:
I'm posting this because family law attorneys need to know about it, or more to the point, need to THINK about it even though we already know it. But it's something that everyone should be concerned about.
"Problem gambling among vulnerable older women is strongly linked to the proliferation of the modern slot-machine-dominated casino.
"Simply put, the new slot machine is engineered to addict people. It produces a mesmerizing experience of sound, lights and repetitive motion that makes both time and money vanish. Players talk of disappearing into the machine and getting into a zone.
"Seniors, who may suffer from physical, mental and emotional health problems, are especially at risk of succumbing to computerized slots. Medication, cognitive impairment, depression and just plain sadness can interfere with judgment and decision-making. And the casino itself dark, smoky, and filled with incessant noise, pulsating light and dizzying carpet patterns and layout can contribute to mental confusion and disorientation. It is not uncommon for older people to suffer sudden heart attacks while playing the slots."
If you have opinions about "the government getting involved in marriage", you need to get some facts about it, too. I can't think of a better place to start than this article by Scott Stanley. Dr. Stanley had been a leader in marriage skills education, and in studies of its impact, long before conservatives or the media ever heard of it.
The image of officious moralizers "promoting marriage" to the great unwashed is what political people on both extremes WANT to have a debate about, but it has no relation to what the people who design and deliver these services actually do. They actually help couples improve their marriages and other relationships, and also teach individuals relationship skills to help them build healthy relationships - - but just as often, to avoid or end bad relationships.
Studies portrayed as finding that the programs didn't help actually found, in one case, a 20 percent increase in family stability after three years, and in the other case, "modest" positive impacts. Which sounds, well, modest, but when you actually look at researchers' definition of "modest" and compare it with all other studies of government programs, it's about as much impact as any government program ever has on individuals' outcomes.
Much more is at "About Those Controversial “Marriage” Programs Funded by the Government", by Scott Stanley on the "Sliding Versus Deciding" Blog.
I and other practicing lawyers rarely seek out student law review articles. I always thought they were too trivial, academic and/or political to be useful for working lawyers. My father told me so. So it was only when googling something completely different that I found this 50-year-old article, dealing with the same themes that have animated Dad's entire career — the rights and integrity of families; the civil liberties of criminal defendants and all Americans; and the nightmares visited on real, everyday people when "helping professionals" ignore those values in the belief that their benevolence and expertise justify whatever they do.
"Procedural Problems in Virginia Juvenile Delinquency Hearings" by Richard E. Crouch, 5 Wm. & Mary L. Rev. 76 (1964). http://scholarship.law.wm.edu/wmlr/vol5/iss1/5
I generally don't agree with Kathryn Jean Lopez on politicized "social issues". But in this interview with National Review Online, she is unusually realistic and insightful about what really happens in divorce, and how it compares to, and is worsened by, the stilted, cornball, anachronistic discourse on marriage, separation and divorce, which dominates both media and professional discussions of them:
We tend to view divorced couples in one of two ways: either as two impetuous adolescents in adult bodies who argued too much and made the best choice to move on, or as two unfortunate souls who simply “fell out of love.” My observation of many divorced couples suggests a third scenario that is far more common: A couple is married with children. One spouse is frequently (but not always) from a home where one parent abandoned the other. Their level of conflict is within the range of normal. There are no red flags that the marriage is floundering until around the time when an adulterous relationship begins, and at some point is revealed. Once this happens, the spouse who is having the affair is usually supported by his or her parents and adult siblings, and if not explicitly encouraged to leave the marriage, is enabled by them to do so. A divorce lawyer is hired, and the process of dismantling the marriage and the family (which is virtually inevitable at this point) begins.
Here is the part that may surprise people: It is the abandoned spouse who is frequently ready and willing to forgive the infidelity and go to marriage counseling to save the marriage. It is the abandoned spouse who often puts his or her personal anguish and betrayal aside for the sake of the commitment they have made. In the old days, we called this emotional maturity; it was a desirable trait. Today resisting a divorce because it runs contrary to your religious beliefs (or for any reason, for that matter) brings mockery and ridicule. It can cost you your children and your livelihood.
... Young people, in particular, deserve to hear the truth about what to expect from a vocation to married life at this time in history. It can be the most fulfilling, joyful part of your entire life, and yet it is so very hard! At some point (and for many couples, extended periods of time), it will hurt if you’re doing it right.
... The theme that always seems to emerge in my discussions about, and observations of, marriage is community. Who we associate with — those with whom we share our intimate thoughts, beliefs, and dreams — these are the folks who influence the most important decisions we make. This means our clergy, our friends. Frequently (and perhaps surprisingly) it also means our family of origin: our parents and our siblings. And I wonder sometimes if parents realize the power they have over their adult children to influence their decisions for good or for bad. They can often be the deciding factor in whether a son or daughter chooses to abandon a marriage, or instead sets about the hard task of putting an end to an adulterous relationship, asking for forgiveness, and going home to start again. ... Every one of us is susceptible to peer pressure, of either the positive or the negative variety. In generations past there was a natural sort of positive peer pressure within families, churches, and communities to conform to basic standards of integrity, maturity, and sexual restraint in (and prior to) one’s marriage. Of course people didn’t always meet these standards, but they existed and they served a very important function for marriages — a safety net, if you will.
As a divorce lawyer I see first-hand how badly people need marriage, so I read the Bostic v. Rainey opinon by Norfolk federal judge Arenda Wright Allen to see how it affects government's role in all marriages, not just gay marriages.
Judge Allen emphasizes that an expansion of the fundamental right to marriage, "the right to make a public commitment to form an exclusive relationship and create a family with a partner", is "not some new creation", nor "any dilution of the sanctity of marriage":
"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Griswold, [citation omitted].
The parties before this Court appreciate the sacred principles involved in our fundamental right to marry. Each party cherishes the commitment demonstrated in the celebration of marriage; each party embraces the Supreme Court's characterization of marriage as "the most important relation in life" and "the foundation of family and society, without which there would be neither civilization nor progress". . . . Plaintiffs honor, and yearn for, the sacred values and dignity [of] marital vows . . ."
That's the kind of thing I like to hear. Removing barriers and expanding entry into traditional marriage is one thing. "Redefining marriage" - - which is how the gay marriage movement was billed when it first became prominent, in an era when even the most fundamental institutions and concepts seemed vulnerable to destruction via Orwellian "redefinition", was quite another.
More worrisome is the opinion's quote from the 2013 Utah federal court opinion in Kitchen v. Herbert, saying a right to marriage "protects an individual's ability to make deeply personal choices about love and family free from governemnt interference". I guess I should be glad that this is described only as a protected "ability", not a "right" that continues unchanged after marriage and childbirth. No one who has spent time in family court - - not just on divorce, but especially in child custody litigation - - would think that such an "abililty", nor right, is anywhere near absolute, nor could be, without drastic changes to most areas of family law. But I increasingly encounter clients who think they have such a "right". And if it grows into a full-fledged right, it will be in an irrepressible conflict with all the other values of "sanctity" and "commitment" that Judge Allen invokes. Which will dilute and diminish all marriages, gay and straight.