Analysis and Commentary on Family Law

Considering a New York Bill to Legalize Compensated Surrogacy

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Cornell University law professor Sherry F. Colb considers some pros and cons of legalizing and enforcing gestational surrogacy agreements, as the New York State legislature is currently considering doing. Colb points out that legalizing these agreements would help clean up the patchwork of different surrogacy laws in different states (and thus make the outcome of conflicts more predictable), but she also notes that government endorsement of surrogacy may perpetuate or ignore related issues of equality and born children seeking adoption.

Getting it Right: The Arizona Supreme Court Applies Marital Presumption to Same-Sex Spouse

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Arizona Supreme Court that correctly applies the US Supreme Court’s reasoning in Obergefell v. Hodges to hold that the marital presumption applies to same-sex couples just as it applies to opposite-sex couples. Grossman provides a brief legal history of same-sex marriage and the attendant obligations and benefits and praises the Arizona court for its clear and well reasoned opinion.

Unprotected: Lesbian Co-Parent in Idaho Has No Rights to Her Partner’s Biological Child

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Idaho Supreme Court taking a narrow view of the parental rights of lesbian co-parents. Grossman explains the background of that case and the patchwork of laws state courts across the United States use to reach inconsistent, and often unpredictable, results with respect to the parental rights of unmarried same-sex partners.

California Considers Bill to Regulate (But Not Prohibit) Child Marriage

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Cornell University law professor Sherry F. Colb comments critically on a California bill that would regulate (but not prohibit) child marriage. Colb argues that the law, which in its current proposed form would allow parents and courts to give consent for a minor child to marry, disregards important norms about children’s rights and the importance of real consent to a sexual relationship.

Independence Day: The Texas Supreme Court Refuses to Hold That the Federal Constitutional Right of Same-Sex Couples to Marry Has Full Force in Texas

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SMU Dedman School of Law professors Joanna L. Grossman and Dale Carpenter comment on a recent decision by the Texas Supreme Court in which it refuses to give effect to the U.S. Supreme Court’s ruling in Obergefell v. Hodges, which recognized a constitutional right of same-sex couples to marry. Grossman and Carpenter explain why the Texas court’s decision was clearly wrong and why factors other than merits might have (though they should not have) affected the ruling in that case.

Summarily Reversed: Arkansas’s Attempt to Flout Obergefell v. Hodges Is Blocked

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SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent summary reversal of the Arkansas Supreme Court’s ruling that upheld that state’s attempt to avoid the marriage equality decision in Obergefell v. Hodges. Grossman describes the ways in which some states, such as Arkansas in this case, have tried to avoid, subvert, or limit Obergefell’s holding, and she discusses the Supreme Court’s simple yet clear response, as well as the significance of Justice Gorsuch’s dissent from the per curiam opinion.

“Dot the i’s and Cross the t’s”: Louisiana Supreme Court Voids Prenuptial Agreement for Signature Defect

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SMU Dedman School of Law professor Joanna L. Grossman describes a case in which the Louisiana Supreme Court voided a prenuptial agreement for its failure to abide by strict formalities required in that state. Grossman discusses the history of prenuptial and postnuptial agreements and uses this case and one from New York to illustrate the importance of paying attention to the details when forming these documents.

A Cool Wind Blows Over an Alaska Marriage, but Alienation of Affections Claim Not Viable

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Alaska Supreme Court holding that alienation of affections is not a cognizable claim in that state. Grossman explains the history of so-called heart-balm actions, including alienation of affections, and chronicles their gradual decline over time in most states.

Is Sex Necessary? (Legally Speaking)

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SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law professor Lawrence M. Friedman consider whether a sexual tie should continue to be a component of the institution of marriage. Grossman and Friedman describe the history of marriage and provide two examples where two people who cannot marry each other arguably still deserve some sort of legal protection for their relationships.

“When Love Yielded to Litigation”: Virginia Court Says Engagement Ring Goes Back

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Virginia Supreme Court holding that the recipient of an engagement ring must return it after the engagement was called off. Grossman explains the legal background of engagement rings and other gifts and provides some sage wisdom to couples wishing to become engaged and eventually to marry.

Friends with Benefits: Texas Man Who Donated Sperm to a Friend Has Parental Rights

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SMU Dedman School of Law professor Joanna L. Grossman describes a recent decision by a Texas appellate court applying that state’s parentage laws to a situation involving a man who donated his sperm so his friend could become pregnant. Grossman notes that while resolution of the “donor versus dad” question differs from state to state depending on the particular laws that apply, the facts of this case proved straightforward given the language of the Texas statute at issue.

The Ripples After the Splash: Parentage Law Takes Shape After Obergefell v. Hodges

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SMU Dedman School of Law professor Joanna L. Grossman comments on some of the parentage cases that have arisen since the U.S. Supreme Court decided in Obergefell v. Hodges that same-sex couples have a constitutional right to marry. Grossman describes the patchwork of cases that generally trend toward greater recognition of same-sex co-parents.

Limits on Grandparent Visitation: The Continuing Ripples of Troxel v. Granville

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SMU Dedman School of Law professor Joanna L. Grossman discusses the continuing impact of Troxel v. Granville, a seminal case in family law that addressed third-party visitation rights, particularly those of grandparents. Grossman lays out Troxel’s holding and explains how it relates to family law in a larger context, then analyzes a more recent Pennsylvania Supreme Court family law case with facts that the court held distinguished it from the broader statute addressed in Troxel. This decision, Grossman posits, was correct. The legislature in the Pennsylvania case had overstepped its bounds, to the significant detriment of parental rights.

The New York Court of Appeals Confers Parental Status on Same-Sex Partners Intending to Parent

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Cornell University law professor Sherry Colb discusses a recent decision by New York’s highest court expanding the definition of parental status to include same-sex partners intending to parent. Colb explains the court’s ruling and discusses a U.S. Supreme Court decision regarding the rights of non-parents that might stand in the New York court’s way.

Separated Spouses Beware: Post-Separation Adultery Bars Fault-Based Divorce

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SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the New Hampshire Supreme Court in which it held that a man’s adultery after separating from his wife barred him from seeking a divorce on the grounds on her prior adultery. Grossman provides the historical background of fault and no-fault divorces and explains why the court reached this correct, albeit strange, conclusion.

The Broken Clock: The Illinois Supreme Court Affirms Misguided, 37-Year-Old Ban on Economic Rights for Cohabiting Couples

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SMU Dedman School of Law Professor Joanna Grossman comments on a recent decision by the Illinois Supreme Court reaffirming a decades-old decision by the same court that seemed obsolete even at the time. Grossman argues that the recent decision unfairly withholds protections from nonmarital families and does not actually serve the purported public policy purpose of favoring marriage.

A Safe Haven for Kody? Sister Wives Star Loses on Appeal, but Protected From Bigamy Prosecution in Utah

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Hofstra University law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Tenth Circuit reinstating Utah’s criminal law banning bigamy. Grossman explains the facts leading up to the lawsuit, the holding of the district, and the reasoning behind the Tenth Circuit’s reversal.

North Carolina’s HB 2: Does Passing an Obviously Unconstitutional Law Make the Law Even More Unconstitutional?

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Hofstra University law professor Joanna Grossman discusses North Carolina’s recent passage of House Bill 2 (HB 2), which purports to take away existing anti-discrimination rights from LGBT people. Grossman explains why the law is unconstitutional and considers whether, in light of the law’s patent unconstitutionality, the law reflects even greater animus by those who passed it.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Amar served as the Senior Assoc... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and four books on constitutional la... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from Rice University and his J.D. from the University of California, Berkeley, School of Law (Boalt Hall)... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Fowler School of Law. He joined the faculty in 2008. Before that, he was Univ... more