The unanimous judgment of the Supreme Court in Petrodel Resources Ltd v Prest led to a media circus. Now the dust has settled, we have more clarity on the repercussions of the case for those involved in family and company law. Even we were surprised by the rasp of admonition from the Court of Appeal last year in Petrodel Resources Ltd v Prest. Rimer and Patten LJJ identified a particular practice followed in the family courts, which Moylan J at first instance had adopted when giving judgment in the financial claims on divorce between Michael and Yasmin Prest (pictured). That practice was: where a spouse was the only shareholder of a company, which held assets but did not have third-party creditors, those assets could be transferred directly to the other spouse in settlement of his or her claims. Allowing the companies’ appeal, Rimer LJ described Moylan J’s reasoning as ‘heretical’; Patten LJ thundered that the practice ‘must now cease’. The unintended effect was of a Victorian maiden aunt impressing on some unruly charges the need to behave with rectitude and sobriety henceforth.
(CNN) — The Supreme Court on Wednesday gave proponents of same-sex marriage two major victories — striking down parts of the Defense of Marriage Act that denied the same benefits provided to heterosexual spouses to legally married same-sex couples, and allowing same-sex marriages to resume in California.
Same-sex marriage rulings hailed as historic victory
DOMA ruling has financial impact
Poll: Majority backs same-sex marriage
Here’s a look at same-sex marriage in the United States, by the numbers:
Eager to be eyewitnesses to history, people camped for days in the dismal cold, shivering in the slanting shadow of the Capitol dome, to claim tickets for the Supreme Court’s historic oral arguments on same-sex marriage. Some hoped that the Justices would extend marriage rights; others prayed that they would not. When at last the doors of the white marble temple swung open on March 26 for the first of two sessions devoted to the subject, the lucky ones found seats in time to hear Justice Anthony Kennedy — author of two important earlier decisions in favor of gay rights and likely a key vote this time as well — turn the tables on the attorney defending the traditionalist view. Charles Cooper was extolling heterosexual marriage as the best arrangement in which to raise children when Kennedy interjected: What about the roughly 40,000 children of gay and lesbian couples living in California? “They want their parents to have full recognition and full status,” Kennedy said. “The voice of those children is important in this case, don’t you think?” Nearly as ominous for the folks against change was the fact that Chief Justice John Roberts plunged into a discussion of simply dismissing the California case. That would let stand a lower-court ruling, and same-sex couples could add America’s most populous state to the growing list of jurisdictions where they can be lawfully hitched.
Some critics of same-sex marriage argue that the purpose of marriage is to provide institutional support for childrearing and that lesbian and gay couples, who (like infertile heterosexual couples) cannot biologically produce children by way of each other, would have no need of this institutional support. But the truth is that, according to the 2000 Census, 96 percent of U.S. counties–no matter how remote, no matter how conservative–have at least one same-sex couple with a child. However one may feel about this, it’s happening now–and if the legal institution of marriage is good for the children of heterosexual parents, why should the children of lesbian and gay couples be punished by their government simply because of the sexual orientation of their parents?
But in the final analysis, the single best reason to legalize same-sex marriage is not because it’s benign, or because it is inevitable, or because it is what our legal history demands of us, or because it is more conducive to family life. It is because legalizing same-sex marriage is the kind thing to do.
I am constantly amazed at what lesbian and gay couples tell me about the friendships they have with social conservatives have very traditional ideas of what a relationship should be, but who nevertheless treat them with great kindness, generosity, and warmth. Likewise, nearly every conservative critic of same-sex marriage will happily admit that they have close lesbian and gay friends whom they care deeply about.
Jasmyne Cannick didn’t join the folks in West Hollywood celebrating the gay marriage victory handed down by the Supreme Court this week.
She was too busy mourning the assault on minorities’ voting rights the court unleashed the day before.
Cannick is a lesbian. She’s also black. “And I didn’t feel like dancing for joy,” she said.
She’s not alone in feeling conflicted. For many people, including me, the high court’s flurry of recent rulings feels like one big step forward on civil rights, and a whole lot of shuffling back.
The day before the court expanded gays’ rights to marry, it gutted the Voting Rights Act. That gives new life to old efforts to suppress minority turnout by freeing Southern states with a history of voter discrimination from strict federal oversight.
In the weeks before that, the court toughened standards for college affirmative action programs that promote diversity; made it harder for employees to challenge workplace discrimination, harassment and firings; and narrowed constitutional protections against self-incrimination, extending law enforcement’s reach.
One reason Americans have moved so rapidly toward support of same-sex marriage is their stubborn bias toward liberty. When interest groups demand something material, or when they seek to take something from other groups, the public is apt to resist. But when a group asks to live and let live, it can usually count on getting its way.
Legal scholars have long thought that if the Supreme Court upheld same-sex marriage, it would base that decision on the 14th Amendment’s guarantee of “the equal protection of the laws.” When Justice Anthony Kennedy made the case for overturning the Defense of Marriage Act, though, he relied on a different provision. DOMA, he wrote, “is a deprivation of an essential part of the liberty protected by the Fifth Amendment.”
The right to marry a person of the same sex fits perfectly within Thomas Jefferson’s conception of freedom. “It does me no injury for my neighbor to say there are twenty gods or no God,” he wrote. “It neither picks my pocket nor breaks my leg.”