Thursday, May 15, 2014

60s Style Divorce

Marriage is a noose.
—Miguel de Cervantes, Don Quixote de la Mancha

Acrimonious divorce may be making a comeback thanks to the actions of enlightened state legislatures! This does not refer to the process of splitting a finite number of children and a finite number of dollars between two parties, a process that has always had the potential to be acrimonious. It refers to the simple act of ending the marriage. And that’s great news for the lawyers, the private investigators and the tabloids, all of which made big bucks out of the unhappiness of unhappily married couples when acrimonious divorce was the rule. The more prominent the divorcing pair, the bigger the bucks. It was a win win for all but the principals.

Until 1969, most state legislatures decreed that unhappily married couples should not be rid of one another until periods of time varying from a few months to more than one year had elapsed. In addition to imposing long waiting periods, in days gone by the person seeking the divorce was forced to make specific allegations about the misconduct of the other spouse, allegations that were often salacious, even more often fictional and in many states, absolutely essential if the divorce was to be granted. In those states the proof could be provided by a private investigator equipped with a camera and the ability to follow a wandering spouse into the confines of a hotel room and a non-spouse’s arms.

Unfortunately for those profiting from the divorce business, the legal system slowly acquiesced to demands that it reform, recognizing the absurdity of forcing unhappy couples to make up reasons for bringing their marriages to an end. People thought reform made great good sense and what became known as no-fault divorces became the law of the land.

The first state to adopt no fault divorce was California under Ronald Reagan in 1969. The last state to adopt this common sense approach to marital discord was New York in 2010. Lengthy waiting periods and the need to fabricate reasons for the divorce became vestiges of a bygone era. If it all seemed too good to be true, it may prove to have been.

No-fault divorce was not intended to lessen the importance of marriage nor its beneficial effects. During the 2012 presidential campaign Rick Santorum explained the virtue of marriage at a campaign rally in Iowa. Addressing the crowd he said: “What two things, that if you do, will guarantee that you will not be in poverty in America? Number one, graduate from high school. Number two, get married. Before you have children. If you do those two things, you will be successful economically.” Although not articulated in that particular speech, it follows that to fully enjoy the prosperity that accompanies marriage, people should stay married and the best way to insure that happens is to make it harder to get divorced. And many states are now considering how to do that. Oklahoma is one of the leaders in that movement.

Oklahomans know the importance of marriage as demonstrated by the fact that, according to the Pew Research Organization, 10% of all ever-married adults in that state have had at least three spouses,. That is twice the national average. Recognizing that, and because Oklahoma has the second highest divorce rate of any state in the country, (you can’t have had “at least three spouses” without having had at least two divorces) a state representative introduced a bill in early 2014 that would impose a six-month waiting period for most divorces. Another bill was introduced that would eliminate incompatibility as a ground for divorce. Although those two bills have not advanced, a third bill introduced a 90-day “cooling down period” following the filing of a divorce petition. That bill has passed the Senate but has not yet been considered in the House. Oklahoma is also considering extending the time between filing for divorce and getting a decree to six months. In Kansas a legislator has introduced a bill that would remove incompatibility as a ground for divorce. If incompatibility is no longer a ground for divorce, divorcing couples can once again come up with creative reasons for splitting up. In 2011 Arizona enacted a law that enables either divorcing spouse to extend the process by four months. In 2013 three North Carolina state senators introduced a bill they called the “Healthy Marriage Act” that would replace the existing one year waiting period from the time a proceeding is begun until a divorce is granted, to two years following the date a spouse give the other spouse written notice, duly notarized, that he or she intends to file for divorce at the end of the two year period. That has not yet been enacted.

Today a steadily increasing number of people are cohabiting rather than marrying. According to the National Health Statistic Report in 1995 39% of women in the United States between the ages of 15-44 entered into marriage as their first union. In the 2006-2010 period that percentage decreased to 23%. Those cohabiting as their first unions went from 34% in 1995 to 48% in the later period. Thanks to the efforts of legislatures in states like Oklahoma and Kansas, these numbers are sure to increase. One can’t help but wonder if those trying to make it more difficult for unhappily married couples to get divorced know what they are doing. The answer is, probably not.

Thursday, April 17, 2014

Fuzzy Thinking and Woolly Mammoths

Remember me when I am gone away,
Gone far away into the silent land.
—Christina Georgina Rossetti, Remember (1862)

The news is out! All it will take for South Carolina to join 47 other states in having an official state fossil is agreement on whether it is important to let people know how old the fossil in question is. The idea of having a state fossil in South Carolina came from eight-year old Olivia McConnell.

Olivia was dining in a restaurant whose menu included not only food selections but also interesting facts about South Carolina. She noticed that the state had no state fossil. Olivia sent a letter to two members of the legislature asking them to introduce legislation designating the woolly mammoth as the official state fossil. She gave the legislators three reasons to designate the woolly mammoth including the fact that one of the first discoveries of a vertebrae fossil in North America was in South Carolina where in 1725 slaves dug up woolly mammoth teeth on a plantation.

Given the tradition of state fossils one might have thought that it would be a no brainer for the South Carolina legislature to designate the woolly mammoth as its state fossil. Lots of states have them. Colorado named the Stegosaurus its state fossil in 1982. Less than a month ago Kansas designated the flying pteranodon and the sea-roaming tylosaurus as official state fossils. In 1981 by concurrent resolution, rather than legislation, Mississippi designated the prehistoric whale as the state fossil.

Designating the woolly mammoth as South Carolina’s state fossil proved to be a no brainer, but not in the usual sense. It was a no brainer because two senators of limited capacity but of religious fervor and legislative clout, insisted that if South Carolina were to have an official fossil, the state should at the same time affirm that the woolly mammoth and the other creatures of the world were created on the sixth day. Senator Kevin Bryant who, among other things, believes climate change is a “hoax”, wanted the bill amended to include three verses from the Book of Genesis that explain how the woolly mammoth and the rest of us came into existence.

When the bill was first introduced it included recitals that said the “giant mammoths used to roam South Carolina” and its “teeth were discovered in a swamp in South Carolina in 1725 and the wooly mammoth is the “ first scientific identification of a North American vertebrate fossil.” The statute itself simply read as follows: “Section 1-1-691. The Columbian Mammoth is designated as the official State Fossil of South Carolina.” Senator Kenneth Bryant thought the bill would be even better if it described the other animals that were created along with the woolly mammoth. Accordingly, he proposed that the following language from the book of Genesis be added to the bill: “And God made the beast of the earth after his kind, the cattle after their kind, and everything that creepeth upon the earth after his kind: and God saw that it was good.” With the addition of that language Senator Bryant, like God viewing creation, viewed the bill designating the woolly mammoth as the state fossil as good. His colleagues did not agree. The amendment went nowhere.

Another amendment was offered and accepted by the senate that included the wooly mammoth’s birthday. That amendment makes it plain that as complex a being as the woolly mammoth may have been, it didn’t take God very long to create it and lest there be any confusion, it recites that twice. The amendment reads in its entirety as follows although because of a misplaced quotation mark it probably does not accomplish what its supporters intended: “Section 1-1-712A. The Columbian Mammoth, which was created on the Sixth Day with the other beasts of the field, is designated as the official State fossil of South Carolina and must be officially referred to as the ‘Columbian Mammoth’, which was created on the Sixth Day with the other beasts of the field.” (Because of the amendment’s focus on the fact that the woolly mammoth was created on the sixth day presumably the author wanted the official name to include that fact. The author was better at bible studies than grammar. By placing the quotation mark around “Columbian Mammoth” all the author has created is a redundancy. God did better when creating the woolly mammoth even though it is no longer with us.

The South Carolina House has refused to go along with the sixth-day business. Kevin Johnson, one of the senators who sponsored the bill has suggested that if the sixth day language and another more innocuous amendment are rescinded, the woolly mammoth will enjoy all the benefits that come with being an official state fossil. The woolly mammoth should not yet mention the prospect of its new position in South Carolina to any of its family, however. Two of its direct descendants in the South Carolina senate may prevent that from happening.

Wednesday, April 9, 2014

Heeere's Johnny

No matter whether th’constitution follows th’ flag or not, th’ supreme coort follow th’ iliction returns.
—Finley Peter Dunne, Mr. Dooley’s Opinions

As usual, I am indebted to readers whose perceptive questions cause me to reflect on matters raised by them. The question this week is why Chief Justice John Roberts did not insert any smiley faces in his opinion in the case of McCutcheon v. Federal Election Commission. It is obvious to any reader of the opinion that he was having a good time writing that opinion and the friendly gloss he bestowed on bribery would have been enhanced by a smiley face. Since we have incorruptible politicians running the country (except for the few who inadvertently end up in jail) Chief Justice Roberts and four of his colleagues assure us we need not be alarmed by the effect of gifts of large sums of money to the campaigns of those seeking elected office.

It is difficult, but not impossible, to select one sentence in 46 pages of the Chief Justice’s opinion that stands out as the most amusing. A good candidate is found on page 2 of his opinion, however, where he says: “We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” For the benefit of my non-lawyer readers, “general gratitude” is not a term taught in law school nor is it a particular word of art. It simply describes the warm feeling a political candidate has upon receiving a large sum of cash from someone who, before the gift, was a complete stranger. To bolster that bit of jurisprudential nonsense the Chief Justice hearkens back to an earlier triumph in judicial nonsense, Citizens United v. Federal Election Comm’n. He quotes approvingly from that opinion that: “Ingratiation and access . . . are not corruption.” (“Ingratiation” is the product of “general gratitude.”) Those are but a couple of the Chief Justice’s attempts at whimsical analysis. Early in his opinion he approvingly notes that the Court has historically said that Congress cannot “regulate contributions simply to reduce the amount of money in politics or to restrict the political participation of some in order to enhance the relative influence of others.” What the Chief Justice means by “enhance the relative influence of others” is that if the election process were a level playing field, the poor and the rich would have exactly the same opportunity to influence the outcome of the election. Money would not make a difference. The result of that would be to deprive the wealthy of the ability to obtain “ingratiation and access” that large contributions give them. Chief Justice Roberts observes that current law permits a voter to contribute up to $5,200 to nine candidates but not an additional $5,200 to a tenth. If there are more than nine candidates the wealthy voter would like to support, “the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences.” That he describes as a “clear First Amendment” harm. It penalizes the voter for “robustly exercising his First Amendment rights.” He observes that working for a candidate by going door to door on the candidate’s behalf is no substitute for giving money since if a voter wants to support 50 candidates the voter cannot possibly have enough time to do canvassing for all 50 candidates. By removing the limit on the total amounts a voter can give during an election cycle, a voter can contribute in a meaningful way to the campaigns of 50 or even 500 candidates.

If the reader wants one thing to carry away from the opinion the reader should focus on the Chief Justice’s elaborate discussion of quid pro quo. If there’s a quo for the quid, then it’s bad. “Access” and “ingratiation” are not quos because, according to the Chief Justice, they are not tangible benefits. A quo that has a tangible benefit for the donor is a no-no-quo. That, to someone not as sophisticated as the Chief Justice and his four concurring colleagues, would seem to be a difference that makes no difference. As Justice Breyer explains in his dissent, “Bribery laws. . . address only the most blatant and specific attempts of those with money to influence governmental action. The concern with corruption extends further.” He observed that in an earlier case the court considered undue influence to be as corrupt as a quid pro quo agreement. Chief Justice Roberts and his colleagues do not see it that way.

There is much more to the Chief Justice’s opinion than limited space permits me to explain and reading a column such as this is no substitute for reading the entire United States Supreme Court opinion-unless a reader’s time is valuable. In that case this is an adequate substitute.

Only a Justice more interested in the outcome than the law could write an opinion like the one in the McCutcheon decision. Chief Justice Roberts is such a Justice.