Where do the candidates stand on DOMA?

The Defense of Marriage Act (DOMA) has been held unconstitutional by both the 1st and 2nd U.S. Circuit Courts of Appeals.  While we wait to see whether the Supreme Court will review these cases, you may have heard that there is an election coming up.  Whether or not the Supreme Court overturns DOMA, congress has the authority to repeal the Act if they so chose.  Since the major party presidential debates ignored this issue, you may not be fully aware of the party platforms on this issue.

Each of the following parties has a presidential candidate running for president in 2012, and below we have excerpted their platforms' references to DOMA, same-sex marriage, and discrimination based on sexual orientation (click the links to read the entire platform):


2012 Republican Party Platform excerpts:

"Defending Marriage Against An Activist Judiciary
A serious threat to our country’s constitutional order, perhaps even more dangerous than presidential malfeasance, is an activist judiciary, in which some judges usurp the powers reserved to other branches of government. A blatant example has been the court-ordered redefinition of marriage in several States. This is more than a matter of warring legal concepts and ideals. It is an assault on the foundations of our society, challenging the institution which, for thousands of years in virtually every civilization, has been entrusted with the rearing of children and the transmission of cultural values.

A Sacred Contract: Defense of Marriage

That is why Congressional Republicans took the lead in enacting the Defense of Marriage Act, affirming the right of States and the federal government not to recognize same-sex relationships licensed in other jurisdictions. The current Administration’s open defiance of this constitutional principle—in its handling of immigration cases, in federal personnel benefits, in allowing a same-sex marriage at a military base, and in refusing to defend DOMA in the courts— makes a mockery of the President’s inaugural oath.  We commend the United States House of Representatives and State Attorneys General who have defended these laws when they have been attacked in the courts. We reaffirm our support for a Constitutional amendment defining marriage as the union of one man and one woman. We applaud the citizens of the majority of States which have enshrined in their constitutions the traditional concept of marriage, and we support the campaigns underway in several other States to do so."

2012 Democratic Party Platform excerpts:

"Freedom to Marry. We support the right of all families to have equal respect, responsibilities, and protections under the law. We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference.

We oppose discriminatory federal and state constitutional amendments and other attempts to deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples. We support the full repeal of the so-called Defense of Marriage Act and the passage of the Respect for Marriage Act.

Gay Rights as Human Rights. Recognizing that gay rights are human rights, the President and his administration have vowed to actively combat efforts by other nations that criminalize homosexual conduct or ignore abuse. Under the Obama administration, American diplomats must raise the issue wherever harassment or abuse arises, and they are required to record it in the State Department's annual report on human rights. And the State Department is funding a program that finances gay rights organizations to combat discrimination, violence, and other abuses. "

2012 Green Party Platform excerpt:

"5. Sexual Orientation and Gender Identity

In keeping with the Green Key Values of diversity, social justice and feminism, we support full legal and political equality for all persons, regardless of sex, gender, sexual orientation, or gender identity, characteristics, and expression.

a. The Green Party affirms the rights of all individuals to freely choose intimate partners, regardless of their sex, gender, gender identity, or sexual orientation.

b. The Green Party recognizes the equal rights of persons who identify as gay, lesbian, bisexual, intersex, transsexual, queer, or transgender to housing, jobs, civil marriage, medical benefits, child custody, and in all areas of life including equal tax treatment.

c. The Green Party will be inclusive of language in local, state and federal anti-discrimination law that ensures the rights of intersex individuals and prohibits discrimination based on gender identity, characteristics, and expression as well as on sex, gender, or sexual orientation. We are opposed to intersex genital mutilation.

d. The Green Party affirms the right of all persons to self-determination with regard to gender identity and sex. We therefore support the right of intersex and transgender individuals to be free from coercion and involuntary assignment of gender or sex. We affirm the right of access to medical and surgical treatment for assignment or reassignment of gender or sex, based on informed consent.

e. We will pursue legislation against all forms of hate crimes, including those directed against people who identify as lesbian, gay, bisexual, queer, transgender, and intersex. Offenders must pay compensation to the LGBTIQ people who have suffered violence and injustice.

f. The Green Party will end all Federal military and civilian aid to national governments whose laws result in the imprisonment or otherwise bring harm to citizens and residents based on sexual orientation, or gender identity, characteristics, and expression.

g. The Green Party will enact a policy that the U.S. Government recognize all international marriages and legal equivalents, such as civil unions, in processing visitor and immigration Visas.

h. The Green Party would repeal don't ask don't tell, abolish security clearances denied on the basis of sexual orientation and/or gender identity, and supports the rights of defense personnel and volunteers to serve their country openly without penalty irrespective of sex, sexual orientation, and gender identity.

i. The Green Party would end security surveillance and covert infiltration of organizations that promote equal rights on the basis of sexual orientation and gender identity."

2012 Libertarian Party Platform excerpt:

"1.3 Personal Relationships

Sexual orientation, preference, gender, or gender identity should have no impact on the government's treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships.


3.5 Rights and Discrimination

Libertarians embrace the concept that all people are born with certain inherent rights. We reject the idea that a natural right can ever impose an obligation upon others to fulfill that "right." We condemn bigotry as irrational and repugnant.  Government should neither deny nor abridge any individual's human right based upon sex, wealth, ethnicity, creed, age, national origin, personal habits, political preference or sexual orientation. Parents, or other guardians, have the right to raise their children according to their own standards and beliefs.  This statement shall not be construed to condone child abuse or neglect."

2012 Justice Party Platform excerpt:

"• End discrimination based on race, gender and sexual orientation
 • Support marriage equality"

2012 Constitution Party Platform excerpt:

"Family

No civil government may legitimately authorize or define marriage or family relations, as affirmed by the 10th amendment, delegating to the people as our founders understood the family as necessary to the general welfare.

We affirm the importance of Biblical scripture in the founders’ intent as eloquently stated by Noah Webster: “The moral principles and precepts contained in the Scriptures ought to form the basis of all our civil constitution and laws… All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery, and war proceed from their despising or neglecting the precepts in the Bible.”

The law of our Creator defines marriage as the union between one man and one woman. The marriage covenant is the foundation of the family, and the family is fundamental in the maintenance of a stable, healthy and prosperous social order. No government may legitimately authorize or define marriage or family relations contrary to what God has instituted. We are opposed to any judicial ruling or amending the U.S. Constitution or any state constitution re-defining marriage with any definition other than the Biblical standard.

We call for an end to all taxation and economic formulas that discourage marriage, incentivize co-habitation and child bearing outside of marriage or authorize or provide government funding for policies and programs that further erode the jurisdiction of the family or parental rights.

We reject the notion that homosexuals, transgenders or those who are sexually deviant are deserving of legal favor or special protection, and affirm the rights of states and localities to proscribe offensive sexual behavior. We oppose all efforts to impose a new sexual legal order through any courts or legislatures. We stand against so-called "sexual orientation" and "hate crime" statutes that attempt to legitimize inappropriate sexual behavior or stifle public opposition to its expression. We oppose government funding of "partner" benefits for unmarried individuals. Finally, we oppose any legal recognition of homosexual or civil unions.

We recognize that parents have the fundamental right and responsibility to nurture, educate, and discipline their children. We oppose the assumption of any of these responsibilities by any governmental agency without the express delegation of the parents or legal due process. We affirm the value of the father and the mother in the home, and we oppose efforts to legalize adoption of children by homosexual singles or couples."

Is it Moral? Is it Legal? These are not the same Question.

Dammit Jim, I'm a Lawyer not a Priest!


I often have to refer my clients to other professionals when issues arise in a divorce case that I do not have professional training to deal with. The most common example is when I tell clients that they need to seek the assistance of a therapist, because they are using me to help deal with emotional problems. But there is also the rare occasion when a client will ask me whether they should do something which I find morally offensive but which is technically not illegal. In these situations I will explain to a client that their actions may not have legal consequences but they may have other (moral) consequences. In other words, just because something is legal doesn't mean you'll be able to sleep at night.


A good example of this distinction is the latest case of divorced parents acting inappropriately:


Mr. Morelli published a Blog entitled "The Psycho Ex-Wife" where he and his current significant other bash his ex-wife and even, in some instances, his own children. The Court ordered him to take the site down, and this has sparked significant controversy over his potential First Amendment rights.


There are really two issues at play in this case, and many commentators seem to be confusing the two. The first issue is whether or not Mr. Morelli should be legally allowed to publish this material. Or put another way, is his speech protected by the First Amendment? The second, and just as important, issue is whether or not Mr. Morelli's actions are moral.


Because this is a Blog devoted to legal issues in family law, I will address the legal question first:


1. Is the Psycho Ex-Wife Blog protected by the First Amendment?


I have seen many Judges order parents not to disparage the other parent in front of, or within earshot of the children. In addition, we often include this provision in our parenting plan agreements. Obviously parents can agree to limit their rights, but is it a violation of the First Amendment to prohibit parents from speaking their mind to their children?


The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

The Courts have expanded this limitation on Congress to include any "state action" by officials of any level of government, which would include state Judges. But that doesn't mean that freedom of speech is absolute. There are limitations which the U.S. Supreme Court has found are permissible.


The most common example is that you are not free to yell "fire" in a crowded theater if there is no fire. The incitement to riot or violence is considered unprotected for obvious reasons.


But there are other limitations that should be common-sense as well. You do not have the right to slander others, and in fact you may be subject to civil litigation if you do. You also don't have the right to publish obscenities. While these limitations are often difficult to pinpoint and usually involve some gray area, the overriding theme is that the government is not allowed to limit your speech because it is unpopular or distasteful, but can limit speech to protect the public.


In the Psycho-Ex Wife Blog case, the state Judge is trying to protect the children, and most state laws give Judges broad discretion to protect the best interest of children in custody disputes. In most cases, the Judge is not ordering that a parent cannot complain about their ex, but only that they can't do it in front of their children, who could obviously be damaged by such comments. It seems that this type of limitation is within the scope of restrictions which have previously been allowed.


Fortunately (or unfortunately, depending on your perspective), we are unlikely to see such a clear-cut case address this issue in front of the Supreme Court, because what parent wants to be the one to take an appeal to the Supreme Court claiming they should be able to tell their children directly that their Mom is a psycho.


In this case, Mr. Morelli has not taken it that far. Instead he has attempted to blur the line by claiming that his Blog was sufficiently anonymous and that the children would not have known about it if not for their Mother showing them the website. If the Mother showed the children the site then certainly her actions are as deplorable as his, but the legal question is: would they have found it anyway? The distinction he is attempting to make is that telling your children directly that their Mom is a psycho is different than writing it on the internet. But is it really that different?


Given how often we write on this blog about being careful with anything you put on the internet, you can probably guess where we come down on this issue. You should assume that everything you put on the internet is public and will be seen by anyone who can access the internet, especially the people you least want to see it. The idea that Mr. Morelli can protect his children from something he writes on the internet forever is laughable, and clearly that is where his argument breaks down. I can't recognize the practical distinction between saying something directly to your children and writing something on the internet in a forum where it can be copied, reposted, discussed on other blogs, and even end up on the Today Show.


The simple fact that this story has now made national news proves my point that once you put something on the internet you risk it having a life of its own and growing to a point where you do not control who sees it. This is especially true for your own children who have all the motivation in the world to read everything you tell them not to.


If there is no practical distinction between calling your ex a psycho on the internet, and saying it in front of your children, then the only way that you can support Mr. Morelli's First Amendment argument is to agree that he should have a constitutionally protected right to say these things directly to his children. Given the amount of psychological damage that can cause children of divorce, I don't think the First Amendment stretches that far.


2. But even if the First Amendment does protect his speech, Is it Right?


On principle, we don't endorse asking your lawyer for moral advice. But if you've read this far, you probably already know what our answer to this question is. Mr. Morelli doesn't seem to understand that his actions increase the conflict, not minimize them. He claims he chose this outlet as a way to help others, but there is a distinction between wanting to tell the world how bad your ex is and trying to find solutions about how to deal with those problems. This is a distinction lost on many, especially those who are particularly angry about how their divorce went. Complaining can be cathartic, but it doesn't solve problems and if you complain in a forum accessible to your ex, then you are more likely increasing the conflict, not trying to deflate it.


Many people will try to turn this case into a forum to talk about how hard it is to be a divorced mother vs. a divorced father (just read the comments on Huffington Post to see how far this has gone). This is exactly what Mr. Morelli was trying to do. Like many on the internet he was seeking validation through shared experience, and that validation was more important to him than his children's well-being. If he truly believes that his children would never see the words he wrote on the obviously public form of the internet than he is delusional.


Unfortunately, it is much more likely that he is looking for the same validation from his children that he is from the public. It is far more likely that when he wrote this blog he was actually hoping his children would see it some day.


This desire to be the "validated" parent is a common feeling. Parents often want their children to be on "their side" and understand that the other parent is at fault. The reason that the court has to tell parents that they shouldn't bad-mouth their ex-spouse in front of their children, is exactly because this feeling is common-place. Sometimes common-sense and moral judgment must be used to overcome strong emotional responses. Sometimes being a good parent is about biting your tongue. Mr. Morelli and his "psycho ex-wife" would be better off if they learned that lesson, or at least their children would be.