Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

I’ve written about the Defense of Marriage Act (DOMA) here before.  My beliefs are clear on what I believe to be a law that institutionalizes discrimination in our federal government.  In addition, it is a law that in essence defines marriage and takes that right away from the states – a right that has traditionally been reserved to the individual states.

The Obama administration has announced that it will no longer defend DOMA in court, where it is being challenged in federal court in several states.  This means that the Justice Department will no longer argue that the law is constitutional.  However, the law is still federal law and cannot be overturned simply because this administration refuses to defend it.  Therefore, it is still on the books as law until it is either ruled unconstitutional by the courts or it is repealed by the Congress.

But this is a step in the right direction.  It is the first step in ending this discriminatory law in the country that prides itself on freedom and tolerance.  I believe that this is going to be the Loving v. Virginia of our generation.  For those that are not lawyers, Loving v. Virginia is the Supreme Court case that allowed people of mix race to marry in this country.  In that decision, the Supreme Court wrote:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

I believe that you can substitute the words race for sexual orientation and have it be as applicable and as powerful as its original meaning.

In 2007, Mildred Loving, the named party in the seminal Supreme Court case above, said the following:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Here are the facts:  A couple who doesn’t live or reside in Massachusetts, comes to Massachusetts solely for the purpose of getting married.  They are allowed to be married because Massachusetts allows same-sex couples to get married.  They return to their home state where same-sex marriage is not allowed.  Now, time passes and their marriage breaks down and they want to get a divorce.  Can they get a divorce in Massachusetts?

The simple answer is no.

In order for a couple to get divorced in Massachusetts, they have to have lived here in the Commonwealth for 1 year prior to filing for a divorce OR the grounds for the divorce must have occurred in Massachusetts.  Simply put, it doesn’t matter where you get married, it matters where you live that determines where you get divorced.

So what does that mean for gay couples who are married yet live in a state that doesn’t recognize same-sex marriage?  Several things are possible.  They either can not get divorced or their state can be one of the few states that don’t allow same-sex marriage but will grant a same-sex divorce.  Their last option is for one of them to move to Massachusetts for 1 year and then file for divorce here.

This definitely places a tremendous burden on same-sex couples but as long as the Defense of Marriage Act is in place, states can continue to refuse divorces for same-sex couples despite another state legally recognizing their marriage.

*Update* September 22, 2010 – Florida Appeals Court strikes down the ban on gay adoption. Read it here.

Dan Savage presents his viewpoint on the state of gay adoption in America today by reframing the argument.  The issue is not “gay parents vs. straight parents.”  The issue should be whether it is better for a child to have parents at all vs. having no parents.

Gay people are allowed to foster children but not adopt them in some states.

“Every child deserves a mother and father.  It would be nice wouldn’t it if it did work out that way. But it’s not gonna work out that way.”

“Why are they in foster care? Because their gay parent abandoned, neglected and abused them? No. Because their straight parents abandoned, neglected and abused them.”

“Gay people don’t have children by accident…Every child that’s been adopted by a gay and lesbian couple is a wanted child.”

I’ve been posting a lot here recently about marriage despite this being a blog about divorce.  But obviously divorce and marriage is related.  As a divorce attorney, I don’t celebrate when my clients get a divorce.  My job is a necessary evil.  Divorce happens and it is the role of the divorce attorney to help lay a foundation out of the financial and emotional ruins of a divorce.

Therefore, I often ask myself the most basic question in my practice – what does being married mean or rather, what should it mean.

The bill did not pass.