The Cross Road

Where the constitution meets the pragmatism of the court's obligation.
The realities of the break-up of a mok(married with one kid) and the transition into a single sex relationship.

We have been fighting over it for decades - the right of two people of the same sex to marry. Hollingsworth v. Perry decided by the United States Supreme Court in 2013 was heralded as the final answer, but in reality it held nothing. In this decision the Supreme Court noted that while the debate over marriage of same-sex couples has been on- going, it then side stepped the issue completely based upon the issue of "Standing".

In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. Later that year, California voters passed a ballot initiative known as "Proposition 8" which amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Shortly thereafter, the California Supreme Court rejected a procedural challenge to the amendment, and held that the Proposition was properly enacted under California law. Thereafter, two same-sex couples who wanted to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants - California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. California officials refused to defend the law, although they continued to enforce it. The District Court allowed the official proponents of the initiative to intervene to defend it. After a 12-day bench trial, the District Court declared Proposition 8 unconstitutional, permanently enjoining the California officials from enforcing the law, and directing the State of California not to enforce it. Those same California officials chose not to appeal the District Court order but the official proponents of Proposition 8 did appeal the trial court's ruling. The Ninth Circuit asked the appellants: “Why should this appeal not be dismissed for lack of standing?” and asked the California Supreme Court: Can official proponents of the initiative measure assert the State’s interest in the initiative’s validity? The California Supreme Court said yes.

Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8 and on the merits, affirmed the District Court decision and held that Proposition 8 was unconstitutional. The United States Supreme Court, however, was not so accommodating. It said (with all due respect to the California Supreme Court) that recognizing California’s sovereign right to maintain its initiative process, standing in federal court is a question of federal law, not state law. And no matter the reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override a federal law to the contrary. It went on to state that a party invoking the jurisdiction of a federal court seek relief must assert a personal, particularized injury. Refusing to entertain generalized grievances ensures that federal courts exercise power that is judicial in nature, ensures that the Federal Judiciary respects the proper and properly limited role of the courts in a democratic society. States cannot alter that role simply by issuing, to private parties who otherwise lack standing, a ticket to the federal courthouse. Federal courts have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. The judgment of the Ninth Circuit was, and the appeal was, dismissed for lack of jurisdiction. Thus, in general, Hollingsworth v. Perry set forth no ruling by the high court regarding the right of a same sex couple to marry. The Supreme Court was able, as many other courts have done, to side step the issue. Co-incidentally, the State of California, apparently by choice of its officials, stood idly by and watched the entire matter unfold.

The obligation of a sovereign to marry same sex couples and the right of same sex couples to agree to become life partners or sex partners are two separate issues. The United States Supreme Court held, in the case of Lawrence vs. Texas (2003) that two adults have a protected liberty interest in private, adult, consensual, noncommercial intimate sexual conduct. The question there was whether a statute making it a crime for two people of the same sex to engage in sexual conduct was unconstitutional. Seventeen years earlier, the same court (in 1986) held that there was no constitutional right for homosexual couples to engage in consensual sex. The Lawrence Court held that the asserted right in that case was protected on the "emerging awareness" model observing that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." Sexual privacy is a right that is so deeply rooted in this Nation's history and tradition that it is implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed. The "emerging awareness" model is apparently one of enormous potential and has since been asserted by medical marijuana patients in Raich II with a certain amount of success.

The constitutional right to sexual privacy and the right to same sex marriage does not automatically eliminate the issue in a custody and visitation battle in marital cases. California's Family Code grants the court the widest discretion to choose a parenting plan that is in the best interests of the child. There is no abuse of discretion by a trial judge if there is substantial evidence to support the findings of the trial court. Substantial evidence has been defined as evidence that is reasonable in nature, credible, and of solid value. An abuse of discretion does exist, however, if the court rules on the basis of preexisting bias, rather than on the evidence adduced.

The guiding principle followed by the courts in making child custody determinations is - the best interest of the child under the California Family Code. Courts must determine the child's best interests solely from the child's standpoint, and should not consider the feelings and desires of the parents, except insofar as they affect the child's best interests. The most important caveat for parents to understand is that the court's determination as to what is in the child's best interest is more important than the parent's exercise of his or her constitutional right.

Psychological Factors to consider

Any divorce is likely to have some adverse effect upon a child of the marriage. A child, whose parents divorce, may feel like they got sucked into a vortex of loneliness, guilt and fear. When one parent leaves, he or she may fear the other one will follow. Even when both parents reassure him or her of their love, the child may be tormented by the belief that he or she caused the break. Almost always, children worry about what is going to happen to them. From the point of view of a youngster, that fear is quite reasonable.

Children react in different ways with the onset of divorce. Some will be extremely sad and show signs of depression and sleeplessness. Anxiety levels peak as they feel they are going to be abandoned or rejected by one or even both parents. Some divorce situations may make the child feel lonely. This may be due to a long absence of one of the parents. Divorce deranges the idea of order for a child. This is why broken promises -- something as small as showing up for a baseball game -- take on a magnitude far beyond its actual significance. No matter what the situation, the child will be affected in some way by a divorce. Some children may become psychologically scarred from the experience, and still other children may not be affected emotionally at all. Much depends on how well the parents are able to handle the situation.

Psychologists rate divorce as one of the most stressful events in a person's life, just below the death of a spouse. Divorce is like getting into a lifeboat. For sure, the lifeboat offers the chance of escape from a terrible situation, but abandoning ship holds little appeal because of the enormous uncertainties. The same is true for divorce. From a child’s point of view, divorce is enormously dislocating because he or she lacks the life experience to envision possible good outcomes. A divorcing parent, in addition to all his or her problems, must support the child in what may be the most difficult experience in his or her young life. This is a tough set of marching orders.

Add to that mix a factor where one marital partner is exchanging a traditional heterosexual relationship for a homosexual relationship, which will make the transition for the child even more complex. Granted, there is a huge amount of accumulated research that indicates that children with gay parents are just as well developed as those with heterosexual parents. In addition, in California, a court may not determine custody on the basis of sexual preference alone (See In re Marriage of Birdsall, 197 Cal. App. 3d 1024 (Cal. App. 4th Dist. 1988), it would be wrong for a parent going through a divorce of a heterosexual marriage and entering a homosexual relationship or marriage to march into court waiving their constitutional rights without considering the effect upon their child. A parent has no constitutional right to unrestricted visitation with his or her child and the majority of American jurisdictions allow reasonable restrictions if they are found to be in the best interests of the child. (See Annot., Visitation Rights of Homosexual or Lesbian Parents (1985) 36 A.L.R.4th 997, 999.).

Homosexual parents in this situation should be prepared to be proactive. This means seeking the advice of a professional and devising a plan that address the best interests of the child under the circumstances. Plans as to how and when to introduce the child to the idea of a homosexual partnership or marriage with professional guidance would be highly advisable. Above all, your approach should always take into consideration that the position of the court will put the child's best interest above all else - including your constitutional rights. Your presentation to the court should be designed so that your desire to act in the child's best interest is clearly evident to the judge.

Charles M. Farano

Charles M. Farano is a civil rights and family law attorney who has been in practice in Southern California since 1979. He has been recognized as one of Southern California's "Super Lawyers" each year since 2009.