LegalMatch: Family Law

Why Is Polygamy Illegal?

In many cultures throughout the world, the practice of having more than one spouse is common. In Muslim countries in particular, bigamy is accepted and embraced as normal. One quarter of sovereign states throughout the globe permit multiple spouses; however, these are all related to legalizing one man to have multiple wives. One woman having multiple husbands is illegal in every country in the world.

In the United States, polygamy is illegal, but polyamory is not. Polygamy was made illegal in July 1962 with the passing of the Morrill Anti-Bigamy Act. This made polygamy a misdemeanor. More than 20 years later, the Edmunds Act made polygamy a felony. While people can live with and have as many domestic and sexual partners as they like, only one spouse is recognized as legal in the eyes of the law.

Polyamory is the practice of having more than one close intimate sexual or romantic partner. Polyamory is distinguished from cheating because each polyamorous partner has full knowledge of all the other partners, and each partner gives consent to the others to permit this practice of sexual multiplicity.

While same sex marriage was debated among Americans, many people made comparisons between same sex marriage and polyamorous marriage. Opposition to same-sex marriage reasoned that if it was permissible to change the definition of marriage from a legal union between a man and a woman to a legal union between two men or between two women, this would open the door for other kinds of legal unions, including those between multiple people.

In America, some religions claim that polygamy is part of their religious practice. Mormons in particular were well known for having multiple spouses for each husband. Utah’s ban on polygamy was challenged in 2013 by a man who wanted to legally call each of his multiple partners his wives in the eyes of the law. Although the courts refused to legally recognize the marriages, the law criminalizing polygamy was overturned.

In the Supreme Court decision on this case, a judge compared polyamorous cohabitation to sodomy. From a legal perspective, although sodomy may not technically be legal, the judge wrote that it was not up to authorities to enforce such restrictions. The judge compared sodomy to the practice of multiple sexual partners: the state can’t punish men or women for this practice. This may be partly due to simple logistical reasons. It would be more than the police could possibly enforce.

There are moral and religious arguments against bigamy customs. However, from a legal perspective, most of the country’s laws about family, taxes, estates, and spousal privileges are dependent on the concept of pair-bonding. Changing laws regarding how many spouses one can have would require changing laws in many sectors. Similar to enforcement problems, this would create an overhaul of the legal system that is not likely to be possible in the foreseeable future.

Authored by Danielle Winterton, LegalMatch Legal Writer

Mississippi Law Now Says You Can Say No to Gay Marriages

Mississippi has passed a religious freedom bill that stops any progression made in the LGBT community since the Supreme Court ruled in favor of gay marriages in Obergerfell v. Hodges.

The bill, known as the “Protecting Freedom of Conscience from Government Discrimination Act”, essentially allows both private and state employees to discriminate against those in the LGBT community. House Speaker Phillip Gunn stated he wrote the bill in response to the jailing of Kim Davis for refusing to issue marriage licenses to same-sex couples after Obergerfell. 

Upon signing the bill, Governor Phil Bryant stated it was, “to protect sincerely held religious beliefs and moral convictions…from discriminatory action by state government,” and that the bill “merely reinforces” existing religious freedom rights without limiting any constitutional rights.

The Bill Is a Roundabout Way of Making it Legal To Discriminate Against LGBT

The beginning text of the bill states:

“Section 2. The Sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) and female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

It looks discriminatory, but the bill says the “state government shall not take any discriminatory action against a religious organization…” that promotes or does business based upon personal and religious beliefs. The government cannot change tax treatment, take away previously allowed rights, contracts and benefits, fine, charge fees, or refuse to hire, among many others, anyone that refuses service based upon their religious beliefs. 

The bill isn’t necessarily promoting a ban on gay marriages so much as they are granting protection from governmental backlash to those that refuse to render services to the LGBT community. Regardless of how it’s worded, the application of the law will no doubt have an extremely negative and unfair impact on the LGBT community.

Law Will Be Unfairly Applied Regardless of Intent to Protect Religious Freedom

Below is a summary of how the bill will affect the LGBT community. Individuals/businesses will be able to do the following without governmental repercussions:

• Individuals, including government employees, can refuse to perform marriages, issue marriage licenses, decline accommodations, facilities, goods or privileges for the purpose of recognizing a gay marriage. This includes photography, videography, disc-jockey services, wedding planning, and cake services, among many others.  Pretty much anything you would need to plan a wedding is protected.
• Individuals can make employment decisions based on sexual orientation and gender identity, which includes decisions on whether to hire or terminate an employee.
• Individuals can refuse to sell, rent, or make other terms and conditions about occupying a dwelling or other housing based on sexual orientation and gender identity.
• Adoption agencies can refuse to place a child in your care based on sexual orientation or gender identity.
• Medical professionals can refuse services related to counseling, treatment, or surgeries related to sex reassignment or gender identity transition.
• Medical professionals can refuse to participate in fertility services for a gay couple. Legislature did include a stipulation that medical professionals cannot deny visitation, recognition of designated representatives for health care decision-making, or emergency medical treatment. How generous of them.
• Individuals and businesses can establish sex-specific standards concerning employees or students in how they groom themselves and dress themselves and can restrict access to bathrooms and locker rooms based upon sex. Essentially, an employer can refuse to allow a transgender individual to dress how they want or go in the restroom they identify with.

Drafters of the bill did include language that the government must take steps necessary to ensure that a marriage could be performed and not delayed due to one employee’s refusal to perform said services. If every government employee able to issue marriage licenses refuses due to their personal religious beliefs, then what? Delay would be inevitable.

Time Will Tell Whether the Bill Will Be Upheld

I’m sure the bill, and others like it, will inevitably be challenged all the way up to the Supreme Court. The Supreme Court will always protect religious freedom, but there has to be a line when it comes to discrimination.

Ever heard of the Federal Civil Rights Act? Sexual orientation isn’t specifically covered under the Act yet, but the federal EEOC does consider sexual orientation and gender identity protected classes and has recently filed federal lawsuits against private employers for sexual orientation discrimination. In light of recent rulings made by the Supreme Court, no doubt they will rule in favor of the LGBT community if a case makes its way up the chain.

Although the text of Mississippi’s bill itself may not be violating any rights, it may not survive an as-applied challenge. Even though the law only prohibits the government from taking governmental action against those that choose to discriminate, if you consider the fact that all government employees could essentially refuse to issue a marriage license because of this new law, then it’s in direct contradiction to Obergerfell. Don’t even get me started on the housing, employment and right to privacy issues that arise out of the bill.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

SCOTUS Gives Full Faith and Credit to Same-Sex Adoption

The Alabama Supreme Court is on the losing end of a continuing fight against LGBT rights. After the Supreme Court ruled in favor of same-sex marriages, Chief Justice Roy Moore of the Alabama Supreme Court prohibited probate judges in Alabama from performing same-sex marriages. 

In another attempt to further quash any movement forward for LGBT rights, the Alabama Supreme Court recently refused to give full faith and credit to an out-of-state judgment allowing a same-sex partner to adopt her partner’s children.

Georgia Allowed Woman to Adopt Partner’s Children

E.L. is the biological mother of three children and V.L. was her same-sex partner who raised the children as a joint parent.  Wanting to give legal status to V.L., the couple rented a house in Georgia where they subsequently filed an adoption petition.  E.L. never relinquished her rights as the mother, but rather the petition asked V.L. to be a second parent to the children.  The Georgia court found that the couple had complied with all the requirements under Georgia law and allowed V.L. to adopt the children.

After a move to Alabama and 7 years of co-parenting the children, the couple split up. V.L. alleged the biological mother was denying her access to the children as a result of the breakup and subsequently filed a petition with an Alabama circuit court to register the Georgia adoption decree so she could exercise her parental rights.  After being transferred to a family court, the court ruled in favor of V.L. and awarded her visitation with the children.

The case was appealed all the way up to the Alabama Supreme Court, which ultimately ruled Georgia did not have proper jurisdiction under Georgia’s law to enter the adoption decree in the first place. In other words, the Alabama Supreme Court held that the courts were not required to give full faith and credit to the Georgia judgment and, therefore, refused to recognize the adoption and V.L.’s parental rights.

The U.S. Supreme Court got their hands on the case and reversed Alabama’s ruling, finding that Alabama must afford full faith and credit to the Georgia judgment. V.L.’s rights as an adoptive parent of the children were confirmed and her parental rights restored.

What is the Full Faith and Credit Clause?

Article IV, Section 1 of the U.S. Constitution is known as the Full Faith and Credit Clause and provides that “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial Proceedings of every other State.” Each state must recognize the judgments made by other state’s courts.

Additionally, a state may not inquire into the actual merits of another case or judge why another state made a particular judgment or decision. Further, it may not question the validity of the state’s legal principles applied to base the decision. 

The Exception to Full Faith and Credit

An exception applies. The state can inquire into jurisdictional issues on a limited basis. States are not required to afford full faith and credit to another state’s judgment if that judgment was not rendered under proper jurisdiction. 

Alabama was looking to the merits of the case, rather than jurisdictional issues. The Alabama Supreme Court improperly reasoned that Georgia lacked jurisdiction to order the adoption decree because they tried to interpret Georgia’s laws and how they applied to the original judgment. 

It didn’t matter why or how the Georgia court came to the ruling it did. It only mattered that the Georgia court had the proper jurisdiction to make the decision.

What Does This Mean For LGBT Issues Outside of Marriage?

The case is more about the Full Faith and Credit Clause of the U.S. Constitution than it is about same-sex adoptions or other LGBT issues. As LGBT issues continue to be at the forefront of issues in our country, those opposing any furtherance of LGBT rights will continue to fight the issue, especially cases like this where an out-of-state judgment clashes with their own laws and principles. 

Regardless, the ruling should still be considered a victory for the LGBT community because it will affect future LGBT decisions and how they are honored by other states. This case ensures states have to honor out-of-state judgments, including those judgments made in favor of LGBT rights. 

The U.S. Supreme Court made the distinction simple—courts only need to ask one question when determining whether to afford full faith and credit to an out-of-state judgment.

Now, Alabama is not only recognizing out-of-state adoption, but the Alabama Supreme Court has conceded and is now issuing same-sex marriage licenses.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Heterosexual Couple Fights London Court For Right To Civil Partnership

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.”

Many strongly believe those words and many have fought for the right to marry, but a London couple is doing the opposite. Rebecca Steinfeld and Charles Keidan don’t want a marriage—instead, they’re pushing for the right to form a civil partnership because they don’t hold the value of marriage to the same high regard as most. 

The U.K. passed the Civil Partnership Act of 2004 affording same-sex couples the right to a civil partnership. Then, in an even greater stride towards equality, the Marriage Act of 2013 was passed awarding same-sex couples the right to marry in the U.K. Same-sex couples now have the option to choose either civil partnership or marriage. 

Marriage is the only option for heterosexual couples, which is a distinction Steinfield and Keidan are adamant shouldn’t exist. The couple lives together, are raising a child together, and want to celebrate their relationship in a way that reflects their own personal beliefs.

Marriage, to the couple, is a “patriarchal” institution with a lot of bad history. The couple hopes to raise their child “as equal partners and believe that a civil partnership – a modern, symmetrical institution – best reflects our beliefs, and sets the best example” for their daughter.

The couple has lost their initial fight with a London court, but plan to appeal their case.

Is a Civil Partnership Different Than a Marriage?

In substance, it’s not really any different than a marriage; it’s different only in name. In the U.K., a civil partnership is a legally recognized union between same-sex couples, which affords them the same rights and responsibilities as a marriage. 

So, what’s the big deal you ask? The couple believes the institution of marriage has too many social expectations. Without the right to form a civil partnership and gain all the same legal rights and protections that a marriage affords, the couple will either be forced to enter into a marriage against their beliefs, or continue without any legal protection or benefits.

Do We Have Civil Partnerships in the United States?

The U.S. has what’s called a domestic partnership or a civil union. Both are generally the same concept.

A civil union provides similar legal protections as marriage, but is a state recognized union and, therefore, does not offer the same federal protections and benefits as marriage. Although initially created primarily to offer equality to same-sex couples, most states that allow civil unions allow both same-sex and opposite-sex couples. 

Domestic partnerships generally differ from civil unions in that they were created for unmarried couples, whether same sex or opposite sex, in order to be awarded the same legal protections as a married couple. These are often recognized in order to receive employment and/or health insurance benefits through a partner’s employer.

What Does Same-Sex Marriage Mean for Civil Unions and Domestic Partnerships?

“Decisions about marriage are among the most intimate that an individual can make. This is true for all persons, whatever their sexual orientation.”

You may not know it by name, but you’ve most definitely heard the outcome. In 2015, this quote was referenced in the Supreme Court’s ruling in Obergefell v. Hodges, which found same-sex couples would have the right to marry. This ruling was different than DOMA, in that it made same-sex marriage legal on a federal and state level. Although the ruling brought equality in marriage, it didn’t strike down the legality of civil unions and domestic partnerships.  

It’s difficult to say how the status of civil unions and domestic partnerships will play out after Obgerfell. If decisions about marriage are truly left up to each individual person, then why shouldn’t a couple be able to choose between a marriage and a civil union/domestic partnership?

Only 4 states currently allow civil unions, all of which are available to both same-sex and opposite-sex couples: Colorado, Hawaii, Illinois, and New Jersey. Vermont converted civil unions for gay couples to marriage under their own state law in 2009. Connecticut, Delaware, New Hampshire, and Rhode Island have followed in Vermont’s footsteps and converted civil unions into marriages. It seems unnecessary and unlikely any other states would create laws recognizing civil unions after Obgerfell, especially since they weren’t willing to do so prior.

California, Oregon, Washington, Maine, Hawaii, D.C., Nevada, and Wisconsin are all among the list that allows domestic partnerships for unmarried couples, whether same-sex or opposite-sex. In terms of employment benefits, coverage under domestic partnerships lack the same tax benefits for employers as coverage under marriages, which could possibly have an effect on an employers decision to cover unmarried couples.

It makes sense that heterosexual couples should be allowed the same rights as same-sex couples. However, it’s more likely the states that did offer civil unions or domestic partnerships will eventually follow Vermont’s footsteps. Marriage means different things to different people, but the definition of marriage itself has already evolved to form a new meaning. Instead of putting so much emphasis on what marriage has been historically, it seems a whole lot easier to focus on what marriage means for your own individual relationship today and make it what you want it to be.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law