Law Commons^™

Family Law, Allison Anna Tait

Law Faculty Publications

In the past year, Virginia courts have addressed a range of family law questions—new and old—that reflect the changing landscape of families and marriage. Questions related to same-sex marriage and divorce have begun to appear on Virginia court dockets, including an important case the Supreme Court of Virginia decided this year with respect to same-sex couples cohabiting and the termination of spousal support. Family law courts also saw shifts in gender norms—wives paying spousal support to their husbands and fathers being awarded physical custody of their children. These legal questions tested the limits of statutory language and helped to expand …

Reading Deboer And Obergefell Through The "Moral Readings Versus Originalisms" Debate: From Constitutional "Empty Cupboards" To Evolving Understandings, Linda C. Mcclain

Faculty Scholarship

This article assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation by evaluating the momentous constitutional controversy in the United States over access by same-sex couples to civil marriage. Justice Kennedy’s landmark opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing dual forms of evolving understanding: of constitutional guarantees of equality and the “promise of liberty” and of the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry – and marriage …

Outliving Love: Marital Estrangement In An African Insurance Market, Casey Golomski

Anthropology

Marital estrangement and formal divorce are vital conjunctures for married women’s kinship relations and life course, where a horizon of future possibilities are revalued and negotiated at the interstices of custom, law, and social and ritual obligations. In this article, after delineating the forms of customary and civil marriage and the possibilities for divorce or estrangement from each, I describe how some married women in Swaziland and South Africa mediate this complex social field for their children and families through pensions and continuing to pay for their partners’ insurance coverage. This was not solely out of avarice to reap future …

Conscience Protection And Discrimination In The Republican Party Platform And Mississippi's H.B. 1523, Religious Freedom Institute, Linda C. Mcclain

Faculty Scholarship

Last May, before the Supreme Court issued its landmark opinion in Obergefell v. Hodges,Cornerstone sponsored a symposium on “Responding to Indiana RFRA and Beyond,” which focused on Governor Mike Pence’s swift “fix” of Indiana’s RFRA, after protests and threats of boycotts, to clarify that it would “not create a license to discriminate.” Particularly controversial were provisions protecting the conscience of persons operating for-profit businesses. In that symposium, I observed that public discourse frequently referred back to the Civil Rights Act of 1964, because “many people relate the current battle over protecting conscience in the context of …

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

Articles

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 …

The Family, The State, And American Political Development As A Big Tent: Asking Basic Questions About Basic Institutions, Linda C. Mcclain

Faculty Scholarship

This article, contributed to a symposium on “The Family, the State, and American Political Development”, evaluates the proposition that the relationship between the basic institutions of the family and the state should be more central to the study of American political development (“APD”). It argues that, happily, such relationship is no longer as neglected by scholars as it once was, but that much work remains to be done. The article begins by comparing parallel efforts by pioneering feminist political and legal theorists to put on the table such issues as the public/private distinction between the polity and the family, assumptions …

South African Marriage In Policy And Practice: A Dynamic Story, Michael W. Yarbrough

Publications and Research

Law forms one of the major structural contexts within which family lives play out, yet the precise dynamics connecting these two foundational institutions are still poorly understood. This article attempts to help bridge this gap by applying sociolegal concepts to empirical findings about state law's role in family, and especially in marriage, drawn from across several decades and disciplines of South Africanist scholarly research. I sketch the broad outlines of a nuanced theoretical approach for analysing the law-family relationship, which insists that the relationship entails a contingent and dynamic interplay between relatively powerful regulating institutions and relatively powerless regulated populations. …

Inequity In Private Child Custody Litigation, Dale Margolin Cecka

Law Faculty Publications

This article explores the history and implications of a two-tiered system for adjudicating matrimonial-as opposed to nonmatrimonial- custody matters. As the author uncovered by calling every clerk's office in every major city in the country, matrimonial matters are under a different jurisdiction or part of court in nine states.' This differential treatment has implications for the outcome of private custody cases. It also reflects a bias in the administration of justice, based on race and socioeconomic class. Perhaps most importantly, it causes the government and other outside parties (such as court appointed guardians ad litem) to be more involved …

Understanding Your Domestic Relations Rights In Virginia, 2016-2017, Julie Ellen Mcconnell

Law Faculty Publications

The Metropolitan Richmond Women’s Bar Association has published this booklet to help you understand the general legal circumstances that you may face in resolving domestic relations problems under Virginia law. Each person faces unique circumstances that may not be specifically addressed in a broad overview. This booklet is not intended to provide specific advice to you or to address your specific situation. You should use this document only as an introduction to understanding your legal rights.

This booklet is based on laws in effect in Virginia on July 1, 2016. Because laws are always subject to change, you should consult …

Find Out What It Means To Me: The Politics Of Respect And Dignity In Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

Faculty Publications

This accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where …

Governed By Marriage Law, Deirdre Mcgowan

Books/Book Chapters

Marriage law links the private and the political, connecting the aspirations of individuals to the regulatory ambitions of the state. Marriage has significant social and cultural importance, but the assumptions of stability and care it entails are also useful to government. As a result, marriage law has, both historically and in the present, been offered as the solution to a range of social problems. Using Ireland as a case study example, this essay focuses on the problems which marriage law reform has attempted to address and the political frameworks within which reform took place. It suggests that marriage law is …

Stepfamilies Are Becoming The Norm, So Let's Retire Cinderella: How Stepfamilies Can Learn To Thrive, Glen-Peter Ahlers Sr.

Faculty Scholarship

No abstract provided.

Legal Recognition Of Same-Sex Relationships: New Possibilities For Research On The Role Of Marriage Law In Household Labor Allocation, Deborah A. Widiss

Articles by Maurer Faculty

Research comparing the relative significance of economic exchange theories and gender norms on parents’ division of income-producing and domestic responsibilities often fails to consider sufficiently the role that marriage may play. This article shows that, in the United States, numerous aspects of state and federal law relating to marriage encourage spouses to specialize in distinct breadwinning and caretaking roles. Same-sex marriage offers new opportunities to assess the importance of marriage in household labor allocation decisions while controlling for gender. For any data gathered before June 2015, however, it may be distorting to characterize same-sex couples as simply “married” or “un-married”; …

Opinion Of Justice Katherine Franke In Obergefell V. Hodges, Katherine M. Franke

Faculty Scholarship

Professor Jack Balkin has assembled a group of 9 scholars and advocates to write opinions in the Obergefell v. Hodges case for a forthcoming volume, What Obergefell Should Have Said (Yale University Press 2017). Balkin writes for the majority of the Court and I provide a concurrence along with a short commentary explaining my approach and reasoning. In summary, I conclude that: Laws barring same-sex couples from eligibility for licensure as civil marriages violate the Equal Protection Clause of the Fourteenth Amendment because they find their origin in and perpetuate notions of heterosexual supremacy, and have the aim and effect …

Civil Marriage For Same-Sex Couples, "Moral Disapproval," And Tensions Between Religious Liberty And Equality, Linda C. Mcclain

Faculty Scholarship

In the United States and Europe, an increasing emphasis on equality has pitted rights claims against each other, raising profound philosophical, moral, legal, and political questions about the meaning and reach of religious liberty. Nowhere has this conflict been more salient than in the debate between claims of religious freedom, on one hand, and equal rights claims made on the behalf of members of the lesbian, gay, bisexual, and transgender (LGBT) community, on the other. As new rights for LGBT individuals have expanded in liberal democracies across the West, longstanding rights of religious freedom—such as the rights of religious communities …

From Outlaw To Outcast To In-Law? Contesting The Perils Of Marriage Equality, Linda C. Mcclain

Faculty Scholarship

I am pleased to offer the opening commentary in this BU Law Review Annex symposium on Professor Katherine Franke’s provocative new book, Wedlocked: The Perils of Marriage Equality. As previewed by the book’s additional subtitle, “How African Americans and Gays Mistakenly Thought the Right to Marry Would Set Them Free,” Franke aims to provide “cautionary tales” gleaned, or lessons learned, from juxtaposing post-Civil War regulation of the marriages of African Americans freed from slavery with today’s movement for marriage equality for gay men and lesbians.3 Long a skeptic about the gay community’s focus on the goal of marriage—its (in …

Resurrecting Islam Or Cementing Social Hierarchy?: Reexamining The Codification Of 'Islamic' Personal Status Law, Haider Ala Hamoudi

Articles

There is a regrettable tendency to equate social conservatism with religious adherence. Nowhere does this occur more than in the Muslim world, where conservatives are closely associated with adherence to shari’a. The more unyielding the conservative, the “stricter” the supposed adherence to shari’a, or, alternatively, the more “literal” the version of shari’a adhered to.

While almost any social conservative movement in the Muslim world or otherwise professes adherence to religious doctrine as being the core of its ideological commitment, and while there are important ways in which Muslim social conservatives insist on adherence to religious rules in their most traditional …