ICWA and the Kinsman Redeemer Concept

This guest post is offered by Abigail Wenger, Regent Law 2L and current Family Law student --  

The Indian Child Welfare Act (ICWA)(25 USCA § 1915(a)) is known among policymakers as the ‘gold standard’ of adoption statutes. Before a child with any amount of Indian descent in their blood is put up for adoption, three groups must receive preferential treatment in claiming the child: (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families. ICWA directly advances the belief of the Indian culture that there are no “orphans,” but rather children in need are the responsibility of the entire tribe.

The policy of favoring a child’s relatives or cultural family before placing him or her for adoption resembles the Kinsman Redeemer concept found in Scripture. A kinsman redeemer, or guardian-redeemer, is “a legal term for one who has the obligation to redeem a relative in serious difficulty.” One of the most well-known stories exemplifying the kinsman redeemer concept is the story of Ruth and Boaz. As seen in Ruth 3, upon learning that he was one of Ruth’s potential kinsman redeemers, Boaz immediately began providing for Ruth. Later, the two were married and God blessed their union with a child (Ruth 4:13) who would be in direct lineage to King David, and ultimately to the Lord Jesus Christ Himself (Matthew 1:5).

          The greatest demonstration of the kinsman redeemer concept, however, is seen through the act of our Heavenly Father adopting us as his children (Ephesians 1:4-5). Not only do we have an eternal inheritance in Christ when we accept him as our Lord and Savior, but God has historically also provided for the earthly needs of his children – through escape from persecution and through provision in dry times (Exodus 6:6-8).

As Christians, we are called to resemble the Biblical attitude of immediately providing for our relatives in need by adopting them into our family and caring for their needs. This notion is at the core of family restoration.  May the Christian community likewise be known for seeing children in need as our responsibility, and effectively eradicate the need for the term “orphan.”

Divorce Registry

This guest blog post is by Regent Law 2L and current Family Law student Angela Sterling:

You bought your friends’ wedding gifts; now you can buy their divorce on their wedding registry.  Or… can even a complete stranger pay for your divorce? Shockingly, Yes. In this modern world, you can get strangers to pay for just about anything, including your divorce.  In 2016, Sara and Josh Margulis added a divorce registry to their crowdfunding platform, Plumfund.

For those unfamiliar with the term, crowdfunding is as its name indicates, funding from the crowd - raising small amounts of money from a large number of “investors,” usually family and friends. Crowdfunding websites allow the public to browse and donate to any campaign. The most commonly known crowdfunding website is GoFundme.

Sara and Josh Margulis first launched HoneyFund, a crowdfunding platform, for newlyweds to raise and plan the honeymoon of their dreams. When HoneyFund was a success, they launched Plumfund, a crowdfunding platform, to help people underwrite “life events” such as baby showers, birthday parties, etc. They have come full circle by adding divorce registry to Plumfund.   

The founders’ original intent was to help those married individuals going through a tough time. Divorce is not an easy matter physically, emotionally, or financially. However, being able to crowdfund a divorce seems to be pushing our society, especially younger generations, into thinking that divorce is “trendy.”  It certainly does not help that divorce selfies and divorce parties are trending on social media. To successfully crowdfund, a person has to tell a compelling story and market one's divorce.  And investors like Kevin O’Leary of Plumfund are ready and willing to make money off a person’s tragic life event. “The responsible monetization of divorce is absolutely important because 50% of marriages end in failure. I can’t wait to start promoting it – I think it’s going to be huge.” – Kevin O’Leary.

Should we be fostering the effect of people profiting from other people’s divorce? Are there any legal complications with crowdfunding?

Plumfund and many crowdfunding websites bait people in with a big sign that reads FREE. The websites allow users to create a campaign free of charge. However, when you want to cash out the website then takes 2.8% plus $0.30 of the money raised, effectively making a nice profit off of people’s divorces.

The most disturbing part of divorce registry is that many family law attorneys are indifferent or in favor of crowdfunding a divorce. There is no doubt that crowdfunding a divorce will be new revenue for attorneys, especially since it is a common knowledge that divorce can be pricy.  Some opt for a DIY (do it yourself) divorce because divorce litigation can be costly. Thus, many attorneys are embracing and giving tips on how to successfully crowdfund a divorce disregarding the possible legal complications.

Crowdfunding a divorce is a fairly new concept. Currently, there are no laws or case law regarding crowdfunding a divorce. However, just because there is no law does not mean there are no legal complications.  Some of those possible legal problems include tax complications, privacy invasion, and judicial interpretation.

First, there are tax complications. There have been a few news reports about crowdfunding becoming a tax nightmare, as people have reported that crowdfunding for a sick friend led to a big tax bill because the IRS required the funds raised be claimed as income, even if the person who raised funds doesn’t receive a cent of the funds raised.  There is little to no guidance from the IRS on this matter. In the IRS’s defense, there are no regulations regarding crowdfunding. To control the confusion, the IRS released a statement asserting that the crowdfunded funds are includible income if they are not (1) a loan; (2) capital contributed to an entity in exchange for an equity interest (stock exchange); or (3) a gift made out of detached generosity and without “quid pro quo” (favors).  However, the IRS also stated that under federal income tax rules a voluntary transfer without a quid pro quo isn’t necessarily a gift, meaning even gifts are includible income for federal tax.  (I.R.S. Information Letter 2016-0036 (March 30, 2016).)

Secondly, crowdfunding implicates a lack of privacy. Divorce is one of the most heavily litigated areas in the law. However, to run a successful crowdfunding campaign, you need to reveal a side of your divorce that you would normally keep private. During this “reveal” you may let slip an important detail about the pending litigation. In a worst case scenario, the opposing side could use what you have revealed online against you.

Third, how should courts treat the funds received through crowdfunding? If you are a disgruntled spouse who decided to raise funds during the marriage, the raised funds are marital property. Therefore, the court would have to distribute those funds accordingly based on the jurisdiction. In a community property state that would mean splitting the divorce funds 50-50. Furthermore, should the court consider the crowdfunded funds when deciding who pays spousal support or child support?

There are many unanswered legal complications with crowdfunding a divorce.  Attorneys should not be quick to endorse it, even if it pays their fees.

Most importantly, divorce is not an easy matter physically, emotionally, or financially. Divorce could be described as tearing apart a person’s body. That is how painful and emotional divorce can be.  It is not something that should be promoted or used for profiting.  A responsible society must consider whether crowdfunding a divorce is truly the type of support people need when a marriage is falling apart. We can rally around those we love who may be going through a hard time and support them physically, emotionally, and financially without endorsing the most difficult time of their lives as a spectator sport by profiting from it with crowdfunding. 

The bottom line is that a divorce registry does not advance family restoration.  Friends don’t let friends crowdfund their divorce.

Mandatory Prenuptial Agreements to Strengthen Marriage??

This guest post is offered by Regent Law 2L and current Family Law student Joseph Addink:

 

The phrase “prenuptial agreement” often carries a stigma.   Many people see it as a way for a wealthy spouse to protect his or her assets from the potential marriage partner should they divorce.   Further, if a person wants a prenuptial agreement, it is possible that he or she really seems to not expect the marriage to work out.  Or worse, that individual might already suspect the soon-to-be spouse has a hidden agenda to using the marriage as a way to gain wealth upon divorce (which may be suspected as the real reason behind the soon-to-be spouse’s interest in marriage).   The merits to these suspicions may or may not be true, however, that does not mean a prenuptial agreement has no value. 

Perhaps, however, in the culture of today they should be common place, if not a requirement of marriage as they can work to protect both parties from unforeseen circumstances, and even work to protect the marriage itself. 

There are three common requirements to make a prenuptial valid in most states today.  First, the agreement must be in writing.  Secondly, there must be a disclosure of all material considerations, including full financial disclosure by the party seeking the prenuptial agreement, and in most jurisdictions by the other party as well.   Lastly, the agreement must be voluntary; meaning not made under duress or coercion. 

The agreement must also not be unconscionable or contrary to public policy.  The standards for what is or is not unconscionable vary from state to state based on how much that state adheres to the principle of freedom to contract.   The public policy considerations include aspects like the welfare of the children that result from the marriage and the likelihood that a dependent spouse would require state assistance after the divorce. 

Currently, only about 5% of divorces have a prenuptial agreement in place.   There does seem to be a perception that the use of prenuptials is increasing, however, what if it were mandatory? 

I think Christians should embrace prenuptial agreements, but not for the reasons mentioned earlier.  Many attorneys recommend prenuptial agreements because a large percentage of marriages will end in divorce.   I believe Christians should encourage and use them as a way to counter the cultural view that marriage is something you try and if it doesn’t work out you can get divorced.  The process itself, however, can help couples to find any unforeseen difficulties prior to marriage, and even work to set a more secure foundation for the marriage.

During the process of creating a prenuptial agreement the parties must disclose all material considerations.  This includes finances, but it also includes plans for children, aspects regarding past marriages, health issues (including STDs), to name a few.   One would hope that this type of disclosure would be done during the dating process, however, if it is not done during the dating process having a mechanism in place to ensure it is done would only strengthen the marriage.  After all, if someone has hidden something material to the marriage, it does not bode well for the marriage later.

In addition, during the prenuptial agreement, the parties make decisions on what is or is not considered to be “marital property” (which is everything gained during the marriage and would be divided equally in divorce) and what is “separate property” (which goes to the original individual owner unless comingled).   This process, while it focuses on divorce, forces the couple to think about what would happen if they end up divorced.  It would force them to realize that they are entering into an agreement that will cause EVERYTHING they acquire from that point on to be divided.   Some questions that will inevitably occur are:  Is it worth the risk of losing half of what I acquire from now on to be married?  Is getting married worth the risk of having to pay spousal support if we divorce?  Do I love this person enough to take the chance that the property I own now could become marital property and I will lose half of it if we divorce?   These questions may seem harsh, especially to a couple in love who believe life will be happily ever after.  However, if the couple is not willing to say, “Yes!  It is worth the risk!” then I would submit they are not ready to make the commitment before God and others that they will love each other for better or worse for the rest of their lives.   

In addition, prenuptials also have the ability to aid in the division of assets should a divorce occur.  Often the biggest losers in a divorce action are the children.  This is a direct result of the self-centered focus of the parents over who is going to get what material possessions.   A prenuptial agreement can reduce the amount of fighting over material possessions that would occur during a divorce.  While it certainly is not going to eliminate the self-centered focus that often leaves the children as secondary considerations, anything that can help should be done. 

From a societal perspective, prenuptials can also reduce the amount of time and financial costs on our already over-burdened justice system. 

I submit that prenuptials should be mandatory for all soon-to-be-married couples because the result would be stronger marriages initially, possibly reducing the number of divorces, and if divorce should occur, it could reduce the burden on our court system and on our children.   The only casualties of such a policy might be the engagements that do not survive the prenuptial agreement process, and I would submit that the breakup of those engagements is not necessarily a bad thing.

Protecting Children's Chances for Life

This thoughtful and profound blog post is offered by John Kaptan, Regent Law 2L and current Family Law student –

On March 22, 2018 legislation known as “right to try” passed the House of Representatives.[1]  On March 25, 2015 John Alexander Kaptan, was diagnosed with Diffuse Intrinsic Pontine Glioma (DIPG).  If passed by the Senate, and signed by the President, the “right to try,” law will grant patients in the final stages of terminal illness the right to “try” experimental medicines and procedures as a last-ditch effort to save their lives.  DIPG is a rare childhood brain cancer[2] that is universally fatal.  Median survival after diagnosis is less than one year.[3]

          As a foundational legal principle, we have a constitutional bar against “ex post facto” laws.[4]  This means one cannot be prosecuted for prior conduct under a new law; if the conduct was legal at the time, a later law prohibiting it does not make the prior act criminal.  This may seem like commonsense, but how many times have you heard of a bad actor taking advantage of some legal technicality, some loophole, and thought to yourself, “that guy ought to be in jail,” or, “there ought to be a law against what she’s done.”  The Constitution allows us to liberally amend our laws so there is no “next time,” but any act legal at the time, is beyond prosecution (regardless of the morality of the act).

          Shortly after Johnny’s DIPG diagnosis he was enrolled in a Stage 2 clinical trial in which he received radiation along with a daily dose of an experimental chemotherapy.  The chemo was delivered orally, though there have been little proof that existing cancer drugs have been effective at penetrating the “blood-brain barrier,” through ingestion, and certainly not achieving uptake levels capable of treating a brain stem tumor. 

          After he completed this trial and the tumor had shrunk quickly and significantly, we contacted a Doctor running a Phase I clinical trial testing “Convection Enhanced Delivery,” a revolutionary method of chemo delivery via multiple extremely small gauge catheters inserted directly through the skull, past the blood brain barrier, through the healthy tissue directly into the tumor itself.  As promising as this breakthrough appears to be, the doctor expressed his frustration with FDA restrictions prohibiting him from using new compounds in conjunction with a new delivery method.  Instead, he was constrained to use “accepted as safe,” (but never effective) chemo drugs while proving the safety and potential efficacy of the novel delivery method. 

          We had our consultation with the doctor on July 2d.  Our son had been living with the diagnosis for 3 months.  He was put on a wait list while the FDA put the study on hold because some minor hardware (a type of catheter clamp perhaps) needed to be changed.  The study could not continue until the FDA had reviewed and approved the protocols with the single hardware change.

          The doctor got the green light the following month.  My wife and I dropped to our knees when we received the phone call in August to schedule Johnny for a battery of brain mapping imaging in preparation for the catheter implantation.  His appointment was for Sep 2d. 

          The imaging however, revealed that Johnny’s tumor had recurred rapidly.  It had begun an extremely aggressive regrowth, and his life expectancy was to be measured in weeks.  This regrowth rendered him ineligible to participate in the study, because the control group was strictly limited to pediatric patients post-radiation, prior to regrowth.

          Had the “right to try” law been in effect in September 2015, Johnny might have been able to receive CED.  Perhaps he could have received it in July of that year.

          It is tempting to venture down a path of alternate reality.  Many of our favorite entertainment is based on this conceit – an alternate history, an alternate future.   Conceit is the right word.  For in crafting these alternate realities we are really displacing God.

          The temptation to clench our fists and say, “If only. . . “ yields only bitter fruit.  C.S. Lewis noted the potency of the past to capture a man’s attention in The Screwtape Letters.  The diabolical tempter-tutor rightly declares,

“For the Present is the point at which time touches eternity. Of the present moment, and of it only, humans have an experience analogous to the experience which our Enemy [God] has of reality as a whole; in it alone freedom and actuality are offered them.[5]”

If we indulged this temptation, to play out a counter-narrative where the laws were different, and my son received a different treatment – we would not only be neglecting our duty, denying God’s wisdom, disputing His goodness – we would be missing out on the freedom and peace of living in the present.

          Although laws change, God’s Sovereignty does not.  On October 4th, 2015, my son, John Alexander Kaptan, age 6 died.  In the fullness of time, my son met his True Father. 

          When I read of the “right to try” law passing, I asked my wife her thoughts.  “God knew,” was her answer.  As David observed to God, “in your book were written, every one of them, the days that were formed for me, when as yet there was none of them,[6]” so too did He know the number of Johnny’s days.

          We are excited for families who may have another opportunity to try to fight for their lives.  This seems to be a good law, allowing doctors and patients to advance medicine to improve and lengthen the lives of those with terminal diagnosis (as to the “rights” part – we can save that for another discussion).  But, we are at peace that our son is in His Father’s presence where “there is fullness of joy . . . pleasures forevermore.”[7] 

---

[1] H.R.5247 congress.gov

[2] Roughly 200-300 cases per year are diagnosed in North America. cancer.gov

[3] Id.

[4] “No Bill of Attainder or ex post facto Law shall be passed.” U.S. Constitution, Article I § 9 cl. 3

[5] C.S. Lewis, The Screwtape Letters, letter XV.

[6] From Psalm 139, verse 16, English Standard Version

[7] From Psalm 16, verse 11, English Standard Version

Pro-Family Legislation in Virginia in 2018

State legislatures around the country met this winter to consider various legislation, and because most family statutory law is state code, much of that legislation can focus on families.  Here is a brief summary from the Virginia Family Foundation of the pro-family legislation passed by the Virginia General Assembly this year which will largely become effective as law on July 1, 2018.

 

Adoption
Making it easier for foster children to stay with their relatives – SB 636 (R-Dunnavant) and HB 1333 (R-Brewer). This bill created the “Kinship Guardianship Assistance Program” to facilitate child placements with relatives to ensure permanency for children for whom adoption or returning home are not viable options. For years, there tended to be a stigma towards foster families who were also relatives of the child, with a perception that they were only really concerned with drawing money from the state to help support the child. But in reality, it’s a very good idea for children in need of a home to have the opportunity live with relatives when possible.
Expanding opportunities for more people to adopt – SB 920 (D-Ebbin) and HB 427 (D-Herring). Under the current law, if a person has had their civil rights restored by the Governor, they are eligible to adopt a child, but only after waiting 10 years from the time of their conviction. These bills lower that wait period to eight years if they have met certain criteria such as completing a substance abuse treatment program, shown themselves to be drug free, and have complied with all court imposed obligations.
Speeding up the adoption process for close relatives – HB 241 (R-Brewer). In the cases where children are living as foster children with close relatives, the foster parents must wait three years before being able to begin the process to adopt the child. This bill lowered that time to two years.
Speeding up the adoption process for foster families – HB 418 (D-Carroll Foy). Under the current law, a court is required to grant an adoption after a child has lived with the foster parents continuously for 18 months and the child-placing agency responsible for the child consents. This bill lowered that time frame to 6 months.

Life
Helping victims of Human Trafficking – SB 725 (R-Dunnavant). This bill provides for signs to be placed at rest areas and certain health care facilities with information about the national Human Trafficking hotline to alert possible witnesses or victims of human trafficking to the availability of a means to report crimes or gain assistance. One welcome effect of this law is that abortion facilities will now post information about human trafficking. Given the pervasive connections between sex trafficking and abortion facilities, this could be a real help to victims in need.  
Providing protections for patients in end-of-life situations – SB 222 (D-Edwards) and HB 226 (R-Stolle). This bill was hammered out over a two-year study group of which The Family Foundation was apart. It establishes a more defined and robust process for situations in which a patient and/or family and the hospital disagree about the appropriate treatment for patients in end-of-lifer situations. It provides greater protections for all parties involved. For patients, it ensures that any required life-sustaining care includes hydration, nutrition, maintenance medication, and cardiopulmonary resuscitation. It also protects the rights of conscience of medical professionals. 
Helping babies affected by the opioid crisis – SB 389 (R-Chafin) and HB 1157 (R-Pillion). These bills task the Department of Heath with developing, coordinating, and implementing a plan for services for substance-exposed infants in the Commonwealth. Among other things, the plan includes improving the screening and identification of substance-using pregnant women, and the use of multidisciplinary approaches to intervention and service delivery during the prenatal period and following the birth of the substance-exposed child. With this plan, many mothers will feel better equipped to choose life for their unborn child.

Constitutional Government
Greater free speech protections for students on Virginia’s college campuses – HB 344 (R-Landes). This bill prohibits any public institution of higher education from abridging the constitutional freedom of speech on its campus of any enrolled student, faculty, employees, or invited guests. It also requires each public institution of higher education to establish and include in its student handbook, on its website, and in its student orientation programs policies regarding speech that is constitutionally protected under the First Amendment to the U.S. Constitution and the process to report incidents of disruption of such constitutionally protected speech.
Prompt payment for property taken through eminent domain – SB 278 (D-Petersen) This bill requires money judgments for the government’s taking of land to be paid to the effected person within 30 days of a final determination.
Expanding the definition of “lost profits” in the calculation for just compensation in eminent domain cases – SB 809 (D-Petersen). This bill ensures that property owners who have their farms or businesses taken through eminent domain receive the full value of their lost profits from the land they would have otherwise used for up to three years.  

Parental Rights
Providing more opportunities to restore parental rights – HB 1219 (D-Reid). This bill requires a court, at a foster care review hearing, to inquire from the child’s guardian ad litem and the local board of social services whether the foster child has expressed a preference for finding out whether the parental rights of his parents can be restored. If so, the court must order an investigation to see if that is a viable option. Following the investigation, if the local board of social services or the child's guardian ad litem deems it appropriate to do so, either may file a petition for the restoration of parental rights.
Emphasizing the value of shared parenting in custody determinations – HB 1351 (R-Davis). This bill requires courts to more closely consider whether joint custody arrangements are feasible when awarding child custody. While divorce is a terrible tragedy to be avoided if possible, in the event that it does happen, children are generally better off when they have the opportunity to be raised by both their mom and their dad, and parents are still parents even after a divorce.
Protecting parents who homeschool – HB 1370 (R-Pogge). This bill clarified a point of confusion in the law, and now makes sure that parents only need to provide their child with a program of study or curriculum, but do not need to provide such curriculum to the state or locality.    

Helping victims of Human Trafficking – SB 725 (R-Dunnavant). This bill provides for signs to be placed at rest areas and certain health care facilities with information about the national Human Trafficking hotline to alert possible witnesses or victims of human trafficking to the availability of a means to report crimes or gain assistance. One welcome effect of this law is that abortion facilities will now post information about human trafficking. Given the pervasive connections between sex trafficking and abortion facilities, this could be a real help to victims in need. 

 

State legislatures can accomplish a great deal to promote and protect family restoration.

Holding Together a Family through Political Persecution

This informative and thoughtful guest post is from by 2L Dr. Jennifer Howard Szakaly.

Perhaps it’s a strange thing for a mother of four and family dentist, to take up a cause on another continent – and a cause not about dentistry, but rather about family and farming.  It makes more sense, however, if you knew that I’m a dentist in one of the most wonderful farming communities in Virginia. And, through one of my farming patients, I was lead to an International Facebook Community for Women in Agriculture. What began as an occasional post from a South African farmer on the community page calling for prayers, eventually broke into a wave of additional posts about South African Farmers murdered at the hands of what they claimed to be racist extremists. Stories of rape, torture and mutilation of children; a world far contrasting my quiet community. 

  

The farmers of South Africa did appear to share the qualities of the farmers in my community. Farmers rely on the land and are often generationally invested. They are the people who through tremendous personal sacrifice, dirt under their nails, holes in their jeans and the toll of the sun on their faces, feed a nation. Some explained the murders as robberies gone wrong, but the facts told a different story. Days of torture as well as the targets of the crimes, diminish this explanation; targeting poor farmers in robberies certainly will not be productive, and torturing and murdering infant children certainly is not inherent to theft.

Most nations recognize their dependence on those who forage animals and plants possessing generations of unwritten wisdom farming families pass from one generation to the next. The South African Parliament, however, has unanimously voted to expel by force any white farmer from land that has been in families for generations. If there was a question of whether these horrific acts have been racially motivated, the South African President Cyril Ramaphosa made it clear in his address following the vote, violent disposal of white farmers may be an option and white farmers will not be compensated for the government seizure. This pronouncement effectively made racial persecution nationally recognized and state sanctioned.  These farmers and their families, now the target of open political persecution in South Africa, have been subjected to violent rape torture and murders for a decade and now attacks are averaging one family per day. Some claim that this is redress for a historical wrong.  Justice, however, cannot possibly come from these atrocities, and a nation cannot be healed by stabbing its families in the heart. 

I had the pleasure of interviewing Andre VanZyl, a white South African farmer who has farmed on her father’s family farm her entire adult life. She tells me that much like the settlement of the American West, generations ago families who were skilled in farming sought to claim undeveloped unoccupied land. No battles were waged over the land, no settlements were uprooted. They simply created a homestead from a vast span of opportunity. These farmers today in South Africa are similar; not oppressors, not individuals without blisters on their hands and sore backs. Andre tells me of her neighbor who was killed “three Sundays ago” and another a few years ago, and yet another that was shot but survived. “All within a 20-mile radius.” I look at her profile picture and there she is standing beside a large trademark green John Deere Tractor with her husband beside her. I then turn to her posts, threaded with faith in a God “who is a God of order, love and respect for others.”  She has no idea how this situation will resolve for her family, but her faith is not lost.  Other nations are offering solutions to rescue these families.

South Africa is a nation deeply rooted in Christianity.  I cannot help but think of Dr. King’s letters from a Birmingham jail, where he cries foul at the hypocrisy of Church leaders failing to take a stand against racial, human, injustice.  Let us learn and grow from history, let us not repeat the mistakes of our father’s father. Targeting the weak, the unsupported, and those without the resources to flee the wheel of torture is genocide.

We need farming families. We need their unique skill set and unmatched work ethic. We need those committed to feed a nation. For now, I pray for them and with all of the oppressed and their oppressors to find the power of love. I also pray that someone with power and means, beyond those I find at my disposal, could pool resources to offer opportunity for these farmers who are in high demand and short supply here, in this great country, where we respect and honor those who feed our nation.

Is Abortion a Speech Requirement in California? NIFLA at SCOTUS

Free speech in California pregnancy resource centers was on the line at the Supreme Court of the United States today.  The Washington Post sets out the first amendment issues well, emphasizing how the State of California is coercing pro-abortion speech in pro-life centers.  But see below how Bloomberg Law’s United States Law Week observed uneasiness with the state law from the most liberal Justices.  

United States Law Week     Justices Struggle with Abortion Disclosure Requirements Posted March 20, 2018, 11:45 A.M. ET By Kimberly Strawbridge Robinson The U.S. Supreme Court seemed likely to strike down California laws requiring pro-life centers to provide information about state funded family planning services, including abortion. Justice Sonia Sotomayor—considered one of the court’s more liberal-leaning justices—said that the law as broadly interpreted by the state was “burdensome” and “wrong” in some contexts. And Justice Ruth Bader Ginsburg—another liberal-leaning justice—raised concerns about the state’s requirement that the centers make disclosures in up to 13 languages. It is one thing to require a group to make factual disclosures, but it’s another to make it do so in so many languages. Justice Elena Kagan, who also often votes with the liberal bloc, was concerned that California was targeting pro-life centers while letting abortion facilities take a pass. If the law has been gerrymandered to apply only to pro-life centers, that’s a “serious issue,” Kagan said. But there’s no way to know if the law is appropriately targeted because there hasn’t been a trial in this case, Justice Stephen G. Breyer said. The case comes to the court as a challenge to the lower court’s preliminary determination that the law is likely to pass constitutional scrutiny and therefore shouldn’t be blocked from enforcing. Should the court remand the case for a trial to answer some questions left open at this point? Breyer asked rhetorically. The case is Nat. Inst. of Family & Life Advocates v. Becerra, U.S., No. 16-1140, argued 3/20/18.         Pro-life and pro-abortion positions generally do not get equal treatment in law school casebooks, but these Justices are genuinely concerned with coerced views in California. The appellant here is concerned with how abortion truly harms women, their children, and families.

 

Is Divorce Ever Easy?

Is divorce ever easy?  It’s Over Easy is a website that takes couples through divorce for a starting fee of $750.  Legal Zoom has offered a divorce platform called “Wevorce” since 2012, calling it the premier self-guided divorce solution, for $949.  State filing fees and procedural rules are still required, so any attempt to DIY divorce without an attorney is imprudent and irresponsible at best.

Some think divorce is becoming trendy.  Angelina Jolie’s divorce lawyer now offers quickie divorces online, according to the NY Times, calling the Beverly Hills lawyer “glamorous.”  Here’s the rationale – “Since couples now meet online, plan weddings online, cheat online and find couples therapists online, it is only logical that they should be able to divorce online.”  Albert Mohler discusses why divorce is never easy, suggesting that a change in marriage’s endurance led to a change in gender qualifications for marriage.  

Regardless of how it is dressed up, the effects of divorce are generally earth-shattering, as a recent article in The Federalist points out, “no matter how anyone tries to glam it up or brush it off, divorce is never over easy.” In fact, the article reminds us that “for children and nearly all couples, there is no such thing as an easy divorce. And when we tell them divorce is not that big of a deal, we invalidate their pain.”  Author Pat Conroy has said “each divorce is the death of a small civilization.”

Divorce is pervasive with pain and loss - emotionally, socially, financially, physically, and it should never be something easily entered into or done without the advice of wise spiritual and legal counsel.  American philosopher George Santayana in Reason in Society proffers that “no suggested substitute for the family is in the least satisfactory. Those forms of free love or facile divorce to which radical opinion and practice incline in these days tend to transform the family without abolishing it. The family in a barbarous age remains sacrosanct and traditional,” in its near perfection.  Marriage’s strength, however, has been subject to attack through the spiritual warfare of divorce.   The permanence aspect of the marital bond is biblically clear from Genesis 2:24, as marital partners become “one flesh,” explaining the pain experienced in divorce by separating that oneness. 

What can the law, if anything, do to strengthen marital permanence?  There are alternatives to divorce, particularly for the Christian couple, and Christian attorneys can be prepared with such alternatives when distressed clients think the only solution to their marriage problems is divorce.  Understanding and Encouraging Realistic Reconciliation in an Age of Divorce offers some solutions.  Furthermore, Scripture encourages alternative dispute resolution (I Corinthians 6).  Even if dissolution is the ultimate outcome, communication, mediation, negotiation, arbitration, and collaborative law can be better methods of problem solving in family contexts.  Litigation – online or in person - is not the only way to solve marital problems.  The truth is divorce is never easy.