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Same Sex Marriage in PA

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It’s official:  the federal court ruling legalizing same-sex-marriage in Pennsylvania will not be appealed by Pennsylvania’s governor, meaning it is now the law of the land of the Commonwealth of Pennsylvania that gay marriage is legal.   Let’s take a look at the winners and losers.

 WINNERS

The winners include same sex couples, divorce lawyers, students of government, and the legal system.

Loving, Same-Sex Couples

The obvious winners are same sex couples in PA whose union could not be fully recognized in their home state…until now.

Students of History and Government

This is an exciting time in PA.  Marriage is the oldest and most important institution in society.   The institution of marriage predates the Roman Empire.  The first recorded evidence of marriage contracts and ceremonies dates to 4,000 years ago, in Mesopotamia.

Suddenly, in PA, the definition of marriage has changed.  Just like that.

Also exciting is how the change relates to our special form of government in the USA.  Students of political science are taught about how some governments see freedom as self-evident and independent from the state.  In the United States, our government recognizes certain basic rights.  Such rights do not come the government, or even from God.  Rather, these basic and inalienable rights come from the power of reason, according to Saint Thomas Aquinas, a profoundly religious person whose philosophical work heavily influenced Western government.  Saint Thomas Aquinas saw God as the source of our ability to reason, but he took God out of the equation when evaluating natural law, or the origin of basic rights.  He  believed:

Law is a dictate of reason from the ruler for the community he rules. This dictate of reason is first and foremost within the reason or intellect of the ruler.

Consider at the alternative, or the absence of natural law.  For example, the Constitution of the Soviet Union was 100+ pages.  It read like a beautiful and flowing declaration of freedoms.  It was more broad in scope than the United States Constitution, which, in comparison, is only 15 pages long.  But in the Soviet Union, the extensive description of  “rights” had been granted.   Soviet Russia reserved the right to take those rights away.

But now, in Pennsylvania, the right to same sex marriage is recognized. Whether one agrees with same sex marriage or not, it is pretty amazing how we arrived at this point.

Divorce Lawyers

Divorce law is big business, which is always booming.  When the economy grows, people can suddenly “afford” to get divorced.  When the economy suffers, people fight over money and… get divorced.    It’s a win-win for divorce lawyers.  But don’t resent family law attorneys.  On a daily basis, family law attorneys apply their intelligence, training, and experience to bring sanity and organization to the lives of people going through the toughest of times.  Divorce attorneys regularly see peoples’ darkest emotions:  the stuff that moves people (in some instances) to hide substantial assets from a spouse who will starve otherwise or use an innocent child as a pawn for leverage in litigation.

Family law attorneys earn every penny they take home.

And now, with same sex marriage in PA, there will be more pennies.

With the right to marry comes the need for premarital agreements and post-marital agreements.  With the right to marry comes the right to divorce, and seek spousal support and /or alimony.  Such rights never existed before in the gay and lesbian community in PA.  Thus, it would behoove many people to turn to a lawyer for representation or at least a consultation regarding family law.

As an interesting side note, on the day when same sex marriage was legalized in PA, a divorce law attorney friend of mine was attending a CLE (continuing legal education course) on gay and lesbian co-habitation agreements.  Prior to same sex marriage in PA, the main way for couples living together to organize their rights together was via a cohabitation agreement and through trusts.   That day, during the CLE class, news streamed across the CLE attendees’ smart phones:  same sex marriage is legal in PA!.  With that, the CLE (regarding cohabitation agreements and trusts in lieu of marriage) became almost irrelevant.

The Legal System

When people think of “law,” they think of lawyers and clients.  But hey, what about he sweat equity invested by judges and judicial employees, such as law clerks, who work hard to resolve disputes…before they run home at 4:30, at least.

Just kidding, judges and law clerks! (mostly)

Seriously,  judges and law clerks are people, too.  They do work hard.  Try being a judge tasked with the chore of dividing the shared and combined assets of two people are not married.   That particular task involves a cumbersome and time consuming process called an Action in Partition, requiring a judge (without the assistance of a jury) to hear detailed evidence and draft something called a decree nisi. (A what?  Yes, exactly.)  There are few (if any) judges who specialize in partition actions as a sole focus of their docket.  Such actions are time consuming, uncommon, and the courts necessarily struggle with the process.

An action for divorce, on the other hand, triggers a division of the courts dedicated to family law.  There, the judges and rules are focused on divorce and the process of  orderly dividing marital assets relative to tried and true case law and legislative authority in PA dedicated to this area of law.   Added to that, there are lawyers who specialize in family law and who can advise clients about the likely outcomes based on said attorneys’ experience with the specific judge assigned to the case.  The legal process is not perfect, but it is reasonably predictable in terms of the amount of time and money it will take to bring a case to a resolution.  Take it from former judicial law clerk for a judge handling partition actions:  any reduction in the need for cumbersome actions in partition will breath a sign of relief in the judicial system.

LOSERS

The losers include certain politicians, who have not adapted to the changing value system of the public and the courts.  Certain politicians have based their careers on a dogged attempt to define marriage as between a man and a woman in the United States.  Times are changing.  Gay marriage has taken American — and politicians — by storm.  Most if not all politicians (Democrat and Republicans alike) were against same sex marriage, until recently, including Hillary Clinton, Joe Biden, and the current President of the United States, Barack Obama.

The politicians struggle to define their stances.  Hillary Clinton’s explanation to Terry Gross on NPR left lots to be desired.  Perhaps the simplest explanation is, look, marriage comes from society, not the government.  The government only recognizes how society defines marriage.  Imagine if the government tired to ban all marriage, or if it tried to define it as a man and three men.   Society would not except either of those scenarios.  In the latter scenario, even if a state allowed a man to marry three men, chances are, once that made and his new spouses were to return home, their neighbor would not treat them as married, and that’s the point:  it’s society that defines marriage.

Society (not government) defines marriage.  Regardless of the type of government involved, government only recognizes society’s definition of marriage.  Imagine if Soviet Russia tried to outlaw all marriage.   The government would become irrelevant.  In the USA, the government runs the same risk, regarding gay marriage, albeit on a much smaller (but significant) scale.

In the USA, society has evolved pretty quickly on the same-sex marriage front.  Hence, the government scrambled and caught up, but that’s OK.  That’s how it’s supposed to be.

Going forward, politicians have certain decisions to make.  The same-sex marriage issue will work against all politicians who changed their stance on this, or who still want to outlaw it.   Plus, there are many other, really important issues out there right now: health care, the national debt (17 trillion), the economy, our standing in the world, terrorism, challenges from China and Russia, and more.  The religious right is entitled to its views, but why make the party’s other goals suffer?

At this point, the issue will only serve to anger same-sex voters and those friendly to same-sex voters, which will serve as a distraction from other GOP values:  smaller government, individual responsibility, market freedoms, etc. Politics is the allocation of values, but the public sentiment has already shifted. There are no values to “allocate” in the realm of same sex marriage.  There is nothing for the legislative process to decide, meaningfully.

Same Sex Couples Who Marry For the Wrong Reason.   Don’t marry to be a part of history.  Just because you can marry, doesn’t mean you should.  With every new right comes responsibility.

Keep it simple:  marry for the right reasons.  Call any time:

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