Analysis and Commentary on Family Law

The Red State Scare: Federal Court in Texas Invalidates Ban on Marriages by Same-Sex Couples

Justia columnist and Hofstra law professor Joanna Grossman notes that first Utah, then Oklahoma, then Kentucky, and now Texas have seen at least some aspects of their anti-same-sex marriage rules invalidated by federal courts. Red states are unlikely to shift as quickly as blue states, Grossman notes, but change on this issue is inevitable, and only in one direction. She also notes the irony of Justice Scalia's words being used against him.

Kentucky to Become a “Second Paradise” for Same-Sex Married Couples

Justia columnist and Hofstra law professor Joanna Grossman comments on the status of same-sex marriage in Kentucky. There, a federal court’s ruling in Bourke v. Beshear concluded that whether or not a state has the power to refuse to authorize same-sex marriages on its own turf, it does not have the constitutional power to refuse to recognize those that are validly celebrated elsewhere. Grossman notes that Bourke joins a growing number of cases in which recognition issues are at the forefront, a trend that was ignited by the Supreme Court’s ruling last year in United States v. Windsor, which found fault in the federal government’s decision to single out same-sex marriages for non-recognition.

Secrets and Lies: A New Ohio Law Opens the Adoption Closet

As Justia columnist and Hofstra law professor Joanna Grossman explains, under a newly enacted law, adult adoptees in Ohio can now seek access to their original birth certificates, with the State’s joining a small number of other States that have made an about-face in their thinking about the role of secrecy in adoption, and have joined the gradual shift towards greater openness. Grossman also describes the three key eras in American adoption law.

Ohio’s March Toward Marriage Equality

Justia columnist and attorney David Kemp discusses a recent ruling by a federal judge in Ohio striking down that state’s laws banning recognition of same-sex marriages validly performed in other states. Kemp describes the facts and legal reasoning of that case and explains how the ruling affects residents of Ohio and its potential implications outside that state. He predicts that although the scope of the ruling is quite narrow—affecting only death certificates for Ohio residents with same-sex surviving spouses—it strongly suggests an imminent change in that state and elsewhere in the country.

De Facto Parentage and the Rights of Former Stepparents

Justia columnist and Hofstra law professor Joanna Grossman comments on a complicated and still somewhat novel area of family law: the rights of former stepparents. Focusing on a recent case in this area of law that was decided by the Washington State Supreme Court, Grossman discusses that court's reasoning regarding both children's interests and parents' constitutional rights.

Sperm Donors on the Large and Small Screen

Justia columnist and Hofstra law professor Joanna Grossman comments on instances of real-life and fictional complications regarding sperm donation. The fictional story is told through the Vince Vaughan film Deliveryman. The real-life stories are told on a new MTV show, Generation Cryo, which depicts the quest of a teenage girl to meet her fifteen half-siblings and the anonymous sperm donor responsible for all of their conceptions.

Hawaii Comes Full Circle on Same-Sex Marriage

Justia columnist and Hofstra law professor Joanna Grossman chronicles Hawaii’s role in the same-sex marriage controversy—including its being the site of the beginning of the modern battle over same-sex marriage, although back then, Hawaii did not itself legalize same-sex marriage. But as Grossman notes, 20 years later, Hawaii now finally has legalized same-sex marriage, thus closing the circle. She also explains why Hawaii’s action should never have had the impact it did, given the proper interpretation of the Full Faith and Credit Clause.

Same-Sex Weddings at the Jersey Shore

Justia columnist and Hofstra law professor Joanna Grossman discusses the recent developments in New Jersey culminating in today’s first same-sex marriages performed in that state. She describes the relatively complex journey to marriage equality in that state and explains how the U.S. Supreme Court’s decision last term in United States v. Windsor led to the New Jersey Supreme Court refusing to delay enforcement of a lower court’s ruling striking down the ban on same-sex marriage.

California Allows Children to Have More Than Two Legal Parents

Justia columnist and Hofstra law professor Joanna Grossman comments on a ruling allowing a child to have three legal parents, and a related measure that California Governor Jerry Brown signed into law. Grossman covers both the facts and law pertaining to the case, and explains why California, alone among the states, allowed a three-parent situation to be established.

Is Virginia the Next Major Same-Sex Marriage Battlefield?

Justia columnist and attorney David Kemp describes two recent lawsuits filed in Virginia challenging that state’s laws prohibiting same-sex marriages. Kemp describes the two cases, explains why Virginia is a favorable venue for such legal challenges, and notes the prevalence of other similar cases around the country. Kemp concludes that the existence of so many cases challenging discriminatory laws must be seen as a step in the right direction for same-sex marriage advocates.

Last Rights and the Battle Over Huguette Clark’s Will

Justia columnist and Hofstra law professor Joanna Grossman and Justia guest columnist and Stanford law professor Lawrence Friedman together comment on an epic contest over an estate that totaled over $300 million. Grossman and Friedman explain why the estate at issue, belonging to a woman named Huguette Clark, raised a host of complex issues that were ripe for a will contest, and they comment on the possibility that the will contest might have been avoided in various ways.

A South Carolina Same-Sex Marriage Challenge, and Predictions as to the Outcome of Future Litigation in This Area

Justia columnist and attorney David Kemp discusses a recent case filed in federal court in South Carolina challenging the state’s prohibition on same-sex marriages. Kemp describes the facts and arguments of that case, Bradacs v. Haley, and compares it to another recent case filed in Ohio challenging that state’s own laws precluding recognition of same-sex marriages. Kemp notes one particular parallel between arguments in the two cases and predicts, based on this parallel, that we will see similar challenges in several other states with comparably structured domestic relations laws.

Falling Dominoes: Same-Sex Spouses Gain More Recognition Rights

Hofstra law professor and Justia columnist Joanna Grossman comments on recent same-sex marriage developments, including Justice Ginsburg’s performing a same-sex wedding ceremony; the ruling in United States v. Windsor; changes in the way in which same-sex couples now will be treated by the IRS and Social Security Administration, as well as by HHS regarding Medicare benefits; and the Obergefell v. Kasich case, which raised the issue of whether a same-sex marriage would be reflected on a death certificate.

And They Shall Call Him . . .? Post-Divorce Disputes Over Children’s Surnames

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent New Jersey Supreme Court case that involved the following question: Should the custodial parent have the presumptive right to change his or her child’s surname after a divorce? Grossman considers this and other questions and conflicts, that can arise regarding child-naming. She also puts these conflicts in the context of the U.S.’s tradition of patronymy, under which children take their father’s surname, and explains how that tradition emerged.

The Imminent Demise of Section 2 of the Defense of Marriage Act

Justia columnist and attorney David Kemp discusses the recent grant of a temporary restraining order by a federal judge in Ohio, effectively suspending that state’s ban on recognition of out-of-state same-sex marriages. Kemp discusses the facts and reasoning behind the decision in that case, Obergefell v. Kasich. He then considers the background of Section 2 of the Defense of Marriage Act (DOMA). He concludes that although Obergefell does not expressly address DOMA, in practice it signals an imminent shift toward overturning the remaining section of that federal law.

A Matter of Contract: The Wisconsin Supreme Court Rules Traditional Surrogacy Agreements Are Enforceable

Hofstra law professor and Justia columnist Joanna Grossman discusses a complex Wisconsin family law case, which led the Wisconsin Supreme Court to validate traditional surrogacy contracts—that is, ones where the surrogate provides the egg and the womb. This kind of surrogacy, as Grossman explains, is now rare. The arrangement, Grossman points out, was also unusual in another way: It was an altruistic—that is, uncompensated—surrogacy. Unfortunately, the arrangement led to a post-birth controversy, and then to litigation, as Grossman explains.

Solomon’s Child: How Baby Veronica Came to Be Returned Home After a Long Legal Battle

Justia columnist and Hofstra law professor Joanna Grossman chronicles and comments on the legal fight over Baby Veronica, which went all the way to the U.S. Supreme Court. As Grossman explains, the case was complicated due to an apparent conflict between the federal Indian Child Welfare Act (ICWA), a 1978 law designed to reduce improper removals of Indian children from their parents and their placement with non-Indian families, and South Carolina’s rules regarding the rights of unwed fathers. Grossman explains the reasoning of majority opinion, as well as that of the opinion of Justice Sotomayor, who wrote the principal dissent.

How to Read United States v. Windsor to Understand What Gay Couples Won This Week, But Why They Still Have a Long Way to Go

Justia columnist and Cardozo law professor Marci Hamilton comments on a little-remarked but important aspect of the recent Supreme Court decision in United States v. Windsor: the limits of the decision. For instance, she notes that gay people were not granted a constitutional right to be married in any state by the decision. Moreover, Hamilton points out that, despite the decision, there are only 14 jurisdictions, including the District of Columbia, where gay people will be able to marry, and where they also will be able to receive the identical federal benefits received by heterosexual couples. And, in the 37 states left to persuade, federal benefits for married couples can be limited to heterosexual couples. Thus, Hamilton notes that we are far from true equality for gay Americans.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more