Family Law Quarterly
Volume 48, No. 3 (Fall 2014)
Symposium on Same-Sex Marriage,
Marital Dissolution, and Related Issues
Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.
Linda D. Elrod
Putting the Cart before the Horse: Why Supreme Court Law Regarding Access to Courts Requires Fifty State Same-Sex Divorce
Wendy Dunne DiChristina
Premarital Agreements and the Migratory Same-Sex Couple
Linda J. Ravdin
With the advent of marriage equality in the U.S., same-sex couples are increasingly seeking premarital agreements. A premarital agreement should include a choice-of-law clause specifying the law that will govern a dispute about whether the agreement is valid, a claim of breach or a disagreement about how the agreement is to be interpreted. Such a clause can provide predictability as to enforcement of the agreement when the couple divorces or one party dies in a state other than that of the chosen law. Nevertheless, choice-of-law principles allow for a court of a forum state to reject the parties’ contractual choice of law on public policy grounds. In more than half of the 20 current marriage equality states (as of June 2014), the standards for validity of the agreement as a whole, or for enforceability of a spousal support waiver, are such as to create a basis for a court of that state to invoke fundamental public policy to reject a choice-of-law clause and apply the law of the forum that may be more favorable to the challenging party. This is and likely will remain an area of uncertainty for all couples who enter into a premarital agreement and then go to live in another state whose laws may demand more procedural or substantive fairness than that of the chosen law. A court in a nonrecognition state can be expected to enforce a same-sex couple’s premarital agreement. It need not recognize the validity of the marriage to do so. There is ample authority supporting enforcement of the agreement as a contract.
The Prima Facie Parent: Implementing a Simple, Fair, and Efficient Standing Test in Courts Considering Custody Disputes by Unmarried Gay or Lesbian Parents
Kendra Huard Fershee
The Two Faces of Rational Basis Review nd the Implications for Marriage Equality
Kenneth J. Bartschi
When the Supreme Court decides whether excluding same-sex couples from marriage violates the Fourteenth Amendment, the question arises as to the level of scrutiny the Court will apply. While good reasons exist to apply some form of heightened scrutiny, the author posits that the Court will avoid this question by applying rational basis review to strike down marriage bans. After providing a brief history of marriage equality, the article explores the difference between the traditional and highly deferential form of rational basis review and the more skeptical version the Court has applied to unpopular classes or reactionary legislation or both. The author concludes that marriage bans will not survive this form of rational basis review.
Leaving No (Nonmarital) Child Behind
Courtney G. Joslin
Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, as compared to 2005, many more states today extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption. There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.
The Second Rape: Legal Options for Rape Survivors to Terminate Parental Rights
All in the Constitutional Family: Revisiting the Immigration and Nationality Act’s Definition of Family Relationships
This Article argues that the Immigration and Nationality Act’s definitional provisions unconstitutionally burden choices in family composition and structure. Absent congressional or executive action, courts following the recent same-sex marriage case, United States v. Windsor, should apply heightened scrutiny to remaining federal definitions of family relationships, or at least take a hard look at those policies under rational basis scrutiny, especially when a federal definition excludes an authentic relationship recognized by a state. The federalism, substantive due process, and equal protection principles raised in Windsor are applicable beyond the same-sex context from that case.
Overturning In re Gardiner: Ending Transgender Discrimination in Kansas
Lindsee A. Acton
Modern medical and psychological distinctions between the complex concepts of "sex" and "gender" form the basis for understanding the issues transgendered individuals face and for helping them overcome those issues, i.e. legitimizing their transition within society's binary gender model. Current judicial interpretations of this issue, like the Kansas Supreme Court's holding in In re Gardiner, are absolutely incongruent with modern medical and psychological practice, which seeks to give effect to the transgendered's transitions to promote their life-long psychological wellbeing. This paper seeks to explain how judicial adoption of the medical and psychological model stance on the treatment of transgendered individuals in no way violates public policy.
Publication Date: December 2014