Law Commons^™

Hegemonic Marriage: The Collision Of 'Transformative' Same-Sex Marriage With Reactionary Tax Law, Anthony C. Infanti

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Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. Others, in contrast, saw marriage as a civil rights issue and lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better.

This Article looks back …

Marriage Is On The Decline And Cohabitation Is On The Rise: At What Point, If Ever, Should Unmarried Partners Acquire Marital Rights?, Lawrence W. Waggoner

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This article draws attention to the cultural shift in the formation of families that has been and is taking place in this country: Marriage is on the decline and cohabitation is on the rise. Part II documents this cultural shift by using recent government data to trace the decline of marriage and the rise of cohabitation. Between 2000 and 2010, the population grew by 9.71%, but the husband-and-wife households only grew by 3.7%, while the unmarried-couple households grew by 41.4%. Because of the Supreme Court's decidion in Obergefell v. Hodges, marriage is now universally available to same-sex couples. Part …

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

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These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

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Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Big (Gay) Love: Has The Irs Legalized Polygamy?, Anthony C. Infanti

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Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which …

Lgbt Families, Tax Nothings, Anthony C. Infanti

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The federal tax laws have never been friendly territory for LGBT families. Before the enactment of the federal Defense of Marriage Act (DOMA), the federal tax laws turned a blind eye to the existence of LGBT families by tacitly embracing state law discrimination against same-sex couples. When it enacted DOMA in 1996, Congress ensured that it would be able to continue to turn a blind eye to LGBT families even if one or more states were to legally recognize families headed by same-sex couples. In a real sense, LGBT families have been, and continue to be, tax outlaws.

This overt …

Doma And The Happy Family: A Lesson In Irony, Rhonda Wasserman

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In enacting the Defense of Marriage Act, Congress chose to protect heterosexual marriage because of its “deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.” Ironically, DOMA may harm, rather than protect, the interests of some children – i.e., the children of gay and lesbian couples.

Both state and federal law reflect the belief that children are better off being raised by two parents in an intact family. This belief is reflected in the marital presumption of paternity, which presumes that a married woman’s …

The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner

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In this Article, Professor Waggoner proposes reforms to the Uniform Probate Code's (UPC) treatment of the elective share of the surviving spouse. First, the Article recommends that the UPC adopt a form of presentation that more transparently reflects the normative theories and empirical assumptions underlying the UPC's elective share framework. Second, the Article presents demographic data suggesting that the UPC's current elective share approximation schedule may be inappropriatef or a sizable faction of married couples, those remarryingf ollowing widowhood. Finally, the Article proposes two substantive revisions to the UPC's election share framework-the first proposal is to lengthen the approximation schedule; …

For The Best Of Friends And For Lovers Of All Sorts, A Status Other Than Marriage (Symposium: Unmarried Partners And The Legacy Of Marvin V. Marvin)" , David L. Chambers

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American governments have recently begun to experiment with new familial statuses for gay male and lesbian couples, who have demanded the right to marry but have been appeased with more modest forms of recognition.4 What I propose here is quite different. It is a status for people who have close bonds but do not want to be married to each other. I call this status "designated friends." Once registered, "designated friends" would obtain a limited number of privileges and undertake a limited number of responsibilities relating to the care for the other when ill or incapacitated or upon death, but …

The Baker [Baker V. State, 744 A.2d 864 (Vt. 1999)] Case, Civil Unions, And The Recognition Of Our Common Humanity: An Introduction And A Speculation, David L. Chambers

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Every. Vermonter seems to know about two recent decisions of the Vermont Supreme Court. In the first, the court struck down the system of local financing of public schools. Like similar decisions in many other states, the school financing case led to a struggle in the legislature and difficulties for legislators at election time. In the second and even more controversial decision, the court reached an outcome that no other state supreme court had ever reached: it held unconstitutional the state's marriage law on the ground that it inappropriately denied the legal benefits of marriage to same-sex couples. This decision, …

Civilizing The Natives: Marriage In Post-Apartheid South Africa, David L. Chambers

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South Africa is a land of many cultures. For several hundred years, British and Afrikaaner whites controlled the country, systematically manipulating black people to the whites' advantage. For the most part, however, whites tolerated the continuation within black communities of traditional marriage practices that white Christians considered uncivilized. In 1994, South Africa changed governments. A black majority Parliament came to power, adopting a consitution dedicated to equality and human dignity. Four years later, Parliament adopted a new marriage law that, though permitting some of the external trappings of the traditional marriage system to continue, eliminated by law much of the …

Polygamy And Same-Sex Marriage, David L. Chambers

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In the American federal system, state governments bear the responsibility for enacting the laws that define the persons who are permitted to marry. The federal government, throughout our history, has accepted these definitions and built upon them, fixing legal consequences for those who validly marry under state law. Only twice in American history has Congress intervened to reject the determinations that states might make about who can marry. The first occasion was in the late nineteenth century when Congress enacted a series of statutes aimed at the Mormon Church, prohibiting polygamy in the Western territories and punishing the Church and …

Marriage Today: Legal Consequences For Same Sex And Opposite Sex Couples, David L. Chambers

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Laws that treat married persons in a different manner than they treat single persons permeate nearly every field of social regulation in this country -- taxation, otrts, evidence, social welfare, inheritance, adoption, and on and on.

What If? The Legal Consequences Of Marriage And The Legal Needs Of Lesbian And Gay Male Couples, David L. Chambers

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Laws that treat married persons in a different manner than they treat single persons permeate nearly every field of social regulation in this country - taxation, torts, evidence, social welfare, inheritance, adoption, and on and on. In this article I inquire into the patterns these laws form and the central benefits and obligations that marriage entails, a task few scholars have undertaken in recent years. I have done so because same-sex couples, a large group not previously eligible to marry under the laws of any American jurisdiction, may be on the brink of securing the opportunity to do so in …

Tribute To William F. Fratcher: Marital Property Rights In Transition, Lawrence W. Waggoner

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"Marital property rights," a term that covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse, are in a state of transition. To discuss the themes and trends that are emerging, this Article is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that much concerns high-powered estate planners because intestate estates are usually fairly small. But to the surviving spouse, …

Marital Property Rights In Transition, Lawrence W. Waggoner

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The subject of "marital property rights" is very timely because those rights are in a state of transition. The term "marital property rights" covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse. This lecture is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that high-powered estate planners get involved in very much because intestate estates are usually fairly small. …

Reforming The Law Of Gratuitous Transfers: The New Uniform Probate Code, John H. Langbein, Lawrence W. Waggoner

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In the mid-1980s the Uniform Law Commission undertook a landmark revision of the American law of gratuitous transfers. These reforms culminated in a drastically revised Uniform Probate Code ("UPC"). The revisions inspired the Albany Law Review to organize this symposium issue for the purpose of examining the 1990 UPC. In this introductory paper, we point to the main themes of the reform movement, discuss some of the traits and constraints of the uniform law process, and comment on some of the suggestions and insights that appear in the symposium articles.

Ex Proprio Vigore, James J. White

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The National Conference of the Commissioners on Uniform State Laws (NCCUSL) is a legislature in every way but one. It drafts uniform acts, debates them, passes them, and promulgates them, but that passage and promulgation do not make these uniform acts law over any citizen of any state. These acts become the law of the various states only ex proprio vigore - only if their own vitality influences the legislators of the various states to pass them.

The Multiple-Marriage Society And Spousal Rights Under The Revised Uniform Probate Code, Lawrence W. Waggoner

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Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes, from the latter half of the 1970s into the present, comprise one of the great events of our age. Articles on one aspect or another of the phenomenon frequent the popular press, and a special edition of Newsweek was recently devoted to the topic.' The traditional "Leave It To Beaver" family no longer prevails in American society. To be sure, families consisting of a wage-earning husband, a homemaking and child-rearing wife, and their two joint children still exist. …

Change In The Meaning Of Consortium, Evans Holbrook

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LAWYERS have long boasted of the flexibility of the common law, of its ability to adapt itself to the needs of changing conditions of society, of its responsiveness to sociological progress. And while eager reformers have often-and with much reason complained that the law is laggard in its response to the needs of the people, yet it is clear that sooner or later the courts generally bring themselves into accord with "what is sanctioned by usage, or held by the prevailing morality or strong and preponderant public 'opinion to be greatly and immediately necessary to the public welfare." This responsiveness …

Divorce Laws And The Increase Of Divorce, Evans Holbrook

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Along with the condemnation of the divorce evil has gone a very general disposition to condemn our divorce laws as being responsible for the evil. The committee on resolutions of the Congress on Uniform Divorce Laws in its report to the Congress at its adjourned session in Philadelphia, November 13, 1906, speaks of the "many evils engendered by the lax and unphilosophic system prevailing in many of the states."3 On this phase of the question also our late president gave his views in his special message to Congress on January 30, 1905, in the following words: "There is a wide-spread …