Since same-sex marriage first became legal in Massachusetts in 2004, I’ve been watching to see if marriage trends and divorce trends mirror what we see in the heterosexual world. Because just as anyone can fall in love, anyone can fall out of love, too.
Not all marriages are meant to last forever!
Since 2015, same-sex couples have been allowed to legally marry in all 50 states, but the effort began way back in the 1970s, as part of the Civil Rights movement to extend the rights of a democratic nation to all of its citizens. I believe strongly that all couples who want to marry should be allowed to do so.
A 2011 study initially reported that same-sex couples divorced at a slightly lower rate than their opposite-sex couple counterparts. According to a 2021 article by Pride Legal, lesbian marriage has a high divorce rate. The article cites a 16% divorce rate for gay marriages compared with a 34% divorce rate for lesbian couples – against a 19% divorce rate for heterosexual couples.
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(Check out this 2013 New York Magazine article about same-sex splits.)
In the LGBTQ community, there is not always consensus on the formal institution of marriage. Some eagerly march to the altar, excited to finally have the option to be equal under the laws of our nation.
Other couples, however, won’t marry on principle, seeing it as a backwards, archaic institution foisted upon people as a way of locking in property and control.
With legal recognition comes legal quandaries, and a legally-married same-sex couple who wants to split must go through the same processes as a heterosexual couple seeking to divorce. The tricky part comes when they have children.
Six states have attempted to deny same-sex couples full adoption rights when one partner (or both) is not the biological parent of the child. Not having both parents’ names on a child’s birth certificate can cause immense problems if a couple parts ways.
In 2017, the Supreme Court ruled in the case of Pavan v. Smith that same-sex couples must be treated equally to opposite-sex couples in the issuance of birth certificates.
Divorce occurs according to state specifications, which dictate child support, child custody, division of assets and spousal support. If an LGBTQ couple married before 2015, a local judge may split assets unfairly or not be open to shared custody or parental rights.
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If the couple can create a harmonious parenting plan on their own, it will serve them well when they go to court. If they leave it up to the court, they may find that the non-biological parent, if they have not adopted the child legally, may be out in the cold.
If a spouse was never considered the child’s parent in the eyes of the law, the court may not grant visitation, custody, or parental rights. How devastating for both the child and the non-custodial parent!
After the Supreme Court leak highlighting the forthcoming overturning of Roe v. Wade, many of us in the law are concerned that this will spark a trend of overturning long-fought-for laws affecting other American rights, including same-sex marriage. We’ve fought so hard for so long to give all our citizens equal representation under the law.
As we watch or listen to the confirmation hearings for Supreme Court nominee, Judge Ketanji Brown Jackson, I want to finish off Women’s History Month by paying homage to powerful women in the law who have led our nation’s legal thinking – and broken through previously thick ceilings to get there.
If confirmed, which I hope she will be, Judge Jackson will serve as the first Black woman on the highest court in the land. This is groundbreaking but frankly, it shouldn’t be. That she is Black and a woman should not factor into her candidacy, nor should these details provide obstacles or barriers to her ascension.
One thing I loved and admired about the late Justice Ruth Bader Ginsburg was how she was able to develop an argument and get buy-in from people not directly affected by the issue at hand. Before she was even a judge, in her legal cases, she had a way of phrasing things that built compassion and showed the humanity behind a situation.
She made progress by not making something a “women’s issue,” but rather by showing how it was a human issue.
Similarly, Judge Jackson has already shown in her confirmation hearings that she can remain cool under pressure, and rise above the pettiness of politicians. When she was attacked by Senator Lindsey Graham about being too lenient against people convicted in child pornography cases, she responded brilliantly – by turning it into a big-picture issue and showcasing how Senator Graham only spotlighted a tiny detail in a complex and expansive case, where she applied the rules Congress set to decide the legal outcome.
The dignity of these impressive leading women in the law detailed below is something we as a nation need to reclaim. These are challenging times, and people on both sides of the aisle are far from their best behavior.
I hope judicial leaders can reset the tone of our nation by having open eyes, and strong constitutional basis, for how we move forward.
Notable Women In Law
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Female lawyers comprise only 36% of the legal workforce, and yet some (like those mentioned below) shared their passion for the law, and built a foundation for a future filled with females at the highest level of the law. These are but some of the impressive women across American history who paved the way for women like me to build thriving legal careers.
Margaret Brent: In 1638, Brent became the first woman to practice law in colonial America. She was executor of the estate of Lord Calvert, governor of the Maryland colony. Brent brought more than 100 cases in Maryland Virginia courts.
Myra Bradwell: The founder of the Chicago Legal News in 1868, Bradwell wrote a column on “Law Relating to Women.” In 1873, she appealed to the Supreme Court in what may be the first sexual discrimination case in America.
Lemma Barkaloo: The first woman to apply to Columbia University Law School. (She was rejected in 1868.) She was accepted a year later to Washington University in St. Louis but ultimately quit after being harassed by her male classmates. She did eventually pass the Missouri bar exam, but tragically died in a typhoid epidemic in 1870, never actually practicing law.
Lettie Burlingame: Founder of The Equity Club at the University of Michigan (my alma mater!!) in 1886, a club for female law students and alumni. Eventually, it became the first professional organization for women lawyers.
Lyda Burton Conley: In 1910, Conley became the first Native American female lawyer in America. She taught herself the law to protect her tribe’s cemetery burial land in Huron Park Indian Cemetery from being sold. (She was not successful but set a precedent for later success.)
Genevieve Rose Cline: The first female federal judge in America in 1928.
Sarah Tilghman Hughes: The only woman in history to swear in a U.S. President, following the assassination of President John F. Kennedy. As a district court judge in Texas, she was called upon to swear in then Vice President Lyndon B. Johnson.
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Sarah Weddington: Only 26 years old when she argued Roe v. Wade before the Supreme Court, the youngest person ever to argue and win a Supreme Court case!
Sandra Day O’Connor: The first woman on the U.S. Supreme Court, appointed in 1981 by President Ronald Reagan. Before that, O’Connor was a graduate of Stanford University, served two terms in the Arizona state senate and eventually served on the Supreme Court for 24 years.
Janet Reno: The first female Attorney General, appointed in 1993 by President Bill Clinton.
Ruth Bader Ginsburg: One of my favorite role models of all time and the second woman on the U.S. Supreme Court. When she attended law school at Harvard University, she was one of 8 women in a class of 500.
An Homage to Ruth Bader Ginsburg: the importance of women on the Supreme Court
When Justice Ruth Bader Ginsburg died last year, we lost a true legal leader. She sat on the federal bench for 25 years and in 1993, became the second woman ever to serve on the U.S. Supreme Court.
Throughout her career, RBG as she was affectionately known, advocated for gender equality, women’s interests and civil rights. She was truly a pioneer.
A founder of the ACLU’s Women’s Rights Project, she once said, “Women’s rights are an essential part of the overall human rights agenda, trained on the equal dignity and ability to live in freedom all people should enjoy.”
But RBG wasn’t just an advocate for women’s rights. She was an advocate for the rights of all people, and it is through that lens that her legacy is perhaps most powerful.
One of her early landmark cases was actually on behalf of a father who was denied Social Security survivor benefits after his wife died. She argued that gender distinctions were inherently unfair – in both directions – and successfully changed the law’s interpretation of and application to gender roles within families.
By being a strong voice, following her instincts and believing that she could contribute something that was missing from the legal sphere, RBG became an American icon. But why does that mean we need women on the Supreme Court?
It’s an easy question and one that many Americans may not relate to, as it feels so far from our daily lives. But it is crucial to understand how trailblazing women change the way our daily lives can be, when they dare to speak up, speak out and stand up for equal access and rights for women.
Women justices, chief justices and majority opinion authors in our nation’s courts can build large coalitions and share different, needed perspectives on legal issues. Studies reveal that women often foster more collaborative, cooperative environments than men. In a judicial context, this leads to greater consensus and moderation.
Justice Ginsburg wanted more women on our nation’s highest Court. In 2015, she spoke at Georgetown University and said she would not be satisfied until the Supreme Court featured nine female justices. She explained that no one questioned when nine men sat on the court. That answer emboldened Americans.
Legal scholars say that women bring different perspectives to court conversations. Although women were considered for the Supreme Court as early as 1930, it took until 1981 when Sandra Day O’Connor became the first woman to fill a Supreme Court seat. She was the only one until RBG joined her in 1993.
It’s not specifically “female” things that women bring to legal considerations. It’s the difference of voice and perspective and their unique experiences that need to influence decisions affecting the entire nation.
It shouldn’t be a question as to what gender decides law. If all people are bound by the law, then all people should have a voice in determining the details of that law. It seems pretty simple to me!