Sunday, August 31, 2014

Why We Need the Fair Debt Collection Practices Act

Several lawyers in my firm make their living navigating the intricacies of the Fair Debt Collection Practices Act.   Many disputes under the Act strike me as angels dancing on the heads of pins.   However, a novel I am reading effectively illustrates the need for this type of legislation.  

I am reading Ready Player One, a novel by Austin author Ernest Cline, about a dystopian version of America in 2044.   In the book, an evil corporation controls most aspects of daily life.   If a poor sap defaults in payment of his debts, the creditor can send their private security men to break down the door and take the debtor into indentured servitude where he must work off his debt as a tech support rep.   Of course, due to late charges, interest and deductions for the cost of room and board, the debtor can never pay off the debt.   Thus, failure to pay debts equates to a life sentence.

While arguing about whether a debt collector overshadowed the Mini-Miranda warning on his collection letter may seem trivial, it is better to fight these battles than to have corporate goons breaking down the door as a collection method.


Friday, August 22, 2014

Law Enforcement in Black & White & Blue

The killing of Michael Brown, an unarmed African American, has raised a media storm as bloggers, tweeters and even more or less legitimate news outlets spread information, rumors and outright fabrications about the incident.    Unfortunately, this tragedy, like that of Trayvon Martin, is a national Rorschach test--people see what they want to see in it.    A lot of that perspective has to do with how people view the police and young African-American males.   My perspective is a bit different.  I completely trust the police to treat me fairly, but I am wary of how they treat young African American males.   This is based on my experience.

In January 1983, my car broke down about ten miles outside of Ozona, Texas.   There had been a heavy snowfall and it was getting dark.   This was well before anyone had cell phones.   As I was stuck by the side of the road, wondering what I was going to do, a DPS trooper stopped by, gave me a jump and helped me on my way.   You don't forget being helped in a time of need.   On the other hand, when I have been stopped for speeding or having an expired registration sticker, it's been because I was actually speeding or had an expired inspection sticker.   The police in those instances treated me respectfully.    My personal experiences with the police have shown them to be helpful and professional time and time again.   If I happen to see the flashing blue lights behind me, my first thought is what did I do wrong, not why I am being hassled.      

However, after I had been practicing for a few years, I got a call from one of my professors from Texas Lutheran.   He said that two of his students had been arrested in Austin and asked if I could help them.   The students had been attending a party in East Austin when the police were called out to break it up.  One of my clients had spoken to the police in an attempt to defuse the situation. However, there was a confrontation between a female police officer and a party goer which resulted in the female officer trying to tackle a much larger male.   In the course of the struggle, she lost her nightstick.  According to my clients, they were then approached by officers who asked them if they had the nightstick.   When they said no, one of the officers asked them three times in rapid succession if they were going to leave.   When they told the officer that they were trying to leave, the officer arrested both of them for failing to obey a lawful order and charged one of them with public intoxication.    As a result, they had to spend the weekend in jail.    The situation was especially severe for one of my clients who was planning a career in law enforcement.   Had he been convicted, he could have kissed his future career goodbye.

I entered the case as a young, idealistic attorney hoping to clear up what was an obvious misunderstanding.   What followed was a series of events that could have been innocent or could have been harassment.   The three charges were filed as separate cases.   Every time one of the cases would be set for hearing, my clients would have to come up from Seguin.   Every time this happened, I would find out that the prosecutor had filed a motion for continuance at the last minute without telling me.    Eventually, two of the three cases were dismissed when the officer failed to appear.   When the third case came up for trial, the prosecutor asked me if my remaining client had the nightstick.   My client said that no, he had never seen the nightstick, but if it was that important, he would buy the officer a new one.   At that point, the final case was dropped.

My conclusion from this was that my clients were arrested on a pretext based on the mistaken belief that they had taken the officer's nightstick.   Of course, once they were arrested and booked, it should have been readily apparent that they didn't have it.   Nevertheless, two innocent college students and one naive lawyer went through a dance of last minute continuances and no-show dismissals until the final case was resolved.    My former professor and I saw these students as promising young men seeking to obtain an education and better themselves.   Law enforcement saw them as thugs and petty thieves.   

My experience with the case of the college students and the missing nightstick was disillusioning.   It took away my illusion that law enforcement could be trusted to "protect and serve" everyone.   Now whenever, I hear about police shooting an armed black man who allegedly grabbed for the officer's weapon or reached into his belt or otherwise made a threatening move, I have to wonder whether it went down that way or whether it was just an after the fact excuse for an inexcusable action.   I don't know whether police racism is widespread or whether it is only the unusual cases that make the news.   However, I do believe that in some cases, it does exist.    I know because I have seen it.

  

   

Monday, August 18, 2014

What is Marriage?

I am married.   So are my parents and my brothers. Between us we have over a century of marriages.  I also know a lot of people who are married.   However, recent events have left me wondering about what marriage really means.   On the one hand, there is the view that marriage is any voluntary arrangement between two (or possibly more) people.   This view is expressed in the statement that no one should be allowed to tell you who you can love.   On the other hand, Texas Attorney General Greg Abbott recently filed a brief in which he stated that the purpose of marriage was procreation, which, by definition, can only occur between a man and a woman.   So what is marriage?

History of Marriage

Marriage has been around for a long time.  According to one source I read, "Pair bonding began in the Stone Age as a way of organizing and controlling sexual conduct and providing a stable structure for child-rearing and the tasks of daily life."   In Genesis 2:24, we read "For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh."    According to scholars, Genesis was written down about 2,500 years ago.    Thus, marriage as the idea of the joinder of a man and a woman in a permanent commitment goes back thousands of years.

Monogamy was not always the sole narrative, even in the Judeo-Christian tradition.   Jacob and King Solomon had multiple wives.   In the West, the battle for monogamy occurred between the Sixth and Ninth Centuries when the Catholic Church told the nobility that no, you cannot have a second wife.   By the Ninth Century, monogamy was the rule, although sects such as the Mormons challenged this status quo from time to time.   One practical limitation on polygamy was that, except in unusual circumstances, one man with many wives meant many men with no wives.   

Throughout history, there have been both civil (government-sanctioned) and religious marriages.   The ancient Greeks, Romans and Hebrews all had government recognized marriages.     On the other hand, religious marriage in the Christian church goes back about one thousand years.  The Catholic Church began speaking of marriage as a sacrament in the 12th century and required that couples publish notice of intent to marry, known as banns, in 1215.    The Catholic Church formally recognized marriage as a sacrament in 1536.   The Protestant churches did not define marriage as a sacrament, but solemnized them with a religious ceremony.   The current protestant marriage ceremony dates back to Thomas Cranmer and the Book of Common Prayer which had a service defined in 1549.  Massachusetts began requiring marriage licenses in 1639. After the French Revolution in 1792, only civil marriages were recognized.   England, on the other hand, required that legal marriages be performed in the Anglican Church (although they had exceptions for Jews and Quakers) in the Clandestine Marriage Act of 1753.    However, the English did allow civil marriages in 1836.        

While same sex relationships existed in the ancient world, they generally did not have the same status as legal marriages.   Under Roman law, legal marriage could only exist between a male Roman citizen and a female Roman citizen, although some Emperors allowed themselves same-sex marriages.   Same-sex marriage was outlawed by the Christian church in the Theodosian Code in 324.  The first gay marriage in the United States was performed in 1969, although it was not legally recognized.    Denmark recognized a "registered partnership" status in 1989 and the Netherlands allowed same sex marriage in 2001.   Massachusetts became the first U.S. state to recognize same sex marriage in 2004.    

Purposes of Marriage

For much of history, marriage was intended to promote alliances between families or clans.   Marriages were negotiated by the families with little input from the couple.    Thus, marriage served the purpose of building ties between groups of people.    It was not until 1140 that the Benedictine monk Gratian required couples to give their verbal consent in order to have a valid marriage.

Producing children has also been an important purpose of marriage.   Children benefited the family by providing for its continuance and by providing workers to support the family.   Children benefited the larger group by increasing its numbers and thereby its power and influence.    However, producing children was not a requirement.   According to Stephanie Coontz, the Catholic church would annul a marriage that was not consummated but not one where the couple was unable to have children.  

Marriage also provided a structure for raising children.   This benefits the larger society which does not have to incur the cost of taking care of the children.

Romantic marriage did not become common until more recently.   Different sources date it to the Victorian era in England or the last century.   Romantic marriage bound a couple together through emotional ties and improved the well-being of the partners.   The Catholic priest and sociologist Andrew Greeley wrote extensively about marital love as an experience of the divine love for mankind.

Characteristics of Marriage

While marriage has changed over the centuries, some generalizations can be made about marriage today. 

First, marriage is a relationship recognized and regulated by the state.   State laws contain extensive rules as to who can marry, when a person can marry and how many spouses a person can have.   Thus, you cannot marry a sibling or a first cousin, you cannot marry (even with a parent's consent) at age 12 and you cannot enter into a new marriage until the old one has been dissolved.    You also cannot marry your dog or your pickup truck.    Civil marriage and religious marriage co-exist in this country.    The state has the right to tell individuals who they can marry, but it cannot compel religious institutions to officiate any civilly valid marriage.   

Marriages tend to be a long-term commitment.   While it is a common trope that most marriages result in divorce, the opposite is actually true.   According to the U.S. Census Bureau, the percentage of women who were once married but were now divorced ranged from a low of 13.8% among 25 to 29 year olds to a high of 41.1% among those 50 to 59.   Thus, there is no age group in which more half of those ever married were divorced.    According to the CDC, the likelihood of a first marriage lasting at least twenty years was 52% for women and 56% for men.  However, there is a lot of variation among age groups. For those born between 1960-64, 70.2% of men and 67.0% of women made it to their 20th anniversary.  However, for those born between 1980-1994, the percentages were 60.0% and 56.6% respectively.  The meaning of these statistics depends on whether you are a glass half full or a glass half empty person.  If your expectation is that 100% of marriages should last a lifetime, then the stats are pretty grim.   However, I would say that having more than half of first marriages last 20 years shows that the institution is pretty healthy.

Marriage is also the prevalent status of heterosexuals, although the date of first marriage has grown later.  Among those aged 50-59, 89.2% of men and 90.9% of women had been married at one time.   In the same age group, 70.2% of men and 65.0% of women were currently married.   

A married couple is also the prevalent status for households with children under age 18.  According to the U.S. Census Bureau, in 2011, 66.8% of households with children under 18 were married couples, 7.8% had male heads of household and 25.3% had female heads of household.   On the other hand, the CDC found that in 2012, 40.7% of births were to unmarried women.   These figures varied from 17.1% among Asian Americans to 72.2% among non-Hispanic Blacks.    Taken together, these statistics suggest two possible alternatives.   One is that women are giving birth out of wedlock and then later getting married.   The more depressing possibility is that the overall statistics reflect an earlier trend and that raising children in married couple households is on the decline.   

Same-Sex Couples

Statistics for same sex couples are harder to come by.   According to the U.S. Census Bureau, there were 901,997 same sex households in the United States in 2010, making up 0.8% of total households.   (The same report showed that husband-wife households made up 48.4% of households). This number further breaks down into 552,620 households with unmarried same sex partners and 349,377 same sex households with spouses.    Since only a few states recognized same sex marriage in 2010, the number of  same-sex "spouse" households may include couples whose relationship was not recognized by the state.  A different Census Bureau report, also based on the 2010 Census, pegged the number of same-sex households at 594,000 with 131,794 married couples.   It also estimated that 115,064 same-sex households included children.    Thus, the percentage of same-sex households with children was only 19.4% of the total.

According to a recent study, about nine million Americans are gay, lesbian, bisexual or trans-gender, representing 3.8% of the population.   The percentage of married couples makes up just 2.9% of the GLBT population (131,794*2/9,000,000).   However, that doesn't say much about how many GLBT couples would wed, since most states do not allow gay marriage.  However, taking the total number of same-sex households and dividing by the estimated number of GLBT individuals in the country, indicates that only 13.2% of the GLBT population would be interested in same sex marriage if it were available.    13.2% of a total population of 3.8% indicates, a total percentage of 0.5% of the population that might opt for same-sex marriage if it were available.

Statistics on duration of same-sex relationships are harder to find. Many of the articles that I found were either advocacy pieces for or against same sex marriage or were abstracts of scholarly articles that I would have had to purchase to get the details.  One study which had a small study size determined that there was a 25% probability that a same-sex relationship would last eight years compared to a 60% rate for opposite sex couples.    A Scandinavian study found that divorce risks in same sex couples was "considerably higher" than with opposite sex couples.   

Monogamy is not as common in same sex relationships are opposite sex relationships.  A study of 556 same sex couples who wed in California during the brief window in which same sex marriage was legal found that 50% had sex outside the relationship.   

An article in Psychology Today contradicted both of the conclusions discussed above.  It said that same sex couples were more likely to have stable relationships and less likely to cheat than opposite sex couples.  

I am not qualified to interpret the limited data I could find.    I think it is at least an open question as to whether same sex relationships are "just like" opposite sex ones.  

Conclusions


It looks to me like there are three different types of marriage running through history:  religious marriage, which is marriage according to the doctrines of a religion; civil marriage, which is marriage recognized by the government; and social marriage, which is people's actual practices.    

Under the First Amendment, religious groups are free to bless or not bless relationships according to their beliefs.   As demand for same-sex marriage has built up, some religions have adapted to meet that demand, while others have not.   While it seems crass to refer to religious beliefs being evaluated in the marketplace of ideas, that is precisely what is happening.    Over time, people whose beliefs compel them to support same-sex marriage will flock to flocks which offer it, while people with more traditional beliefs will seek out more traditional churches.   While people's choices do not establish the validity of a religious belief, they do show support for it.   If same-sex marriage is inherently right and just, you would expect to see growth in churches supporting it and decline in those which don't.


Civil marriage is whatever the government chooses to recognize.    Historically, civil marriage and religious marriage have been closely intertwined, but that is not a given.   In this country, civil distinctions between who can marry are regulated by the equal protection clause which says that the government cannot draw arbitrary distinctions between similar classes of people.    The people who favor mandating recognition of same-sex marriage argue that same-sex attraction is an unchangeable characteristic like race.    Those who argue against it, such as Atty. Gen. Abbott, argue that same-sex relationships are substantively different than opposite sex ones.   My personal belief is that same-sex marriage is too new of an institution for the courts to mandate its recognition.   The better approach is to let the states experiment with allowing it or not.   Of course, this may lead to de facto recognition of same-sex marriage.   Under the Constitution, the states may be compelled to recognize marriages performed in other states which allow same sex marriage.   


Finally, there is what people actually do.   Pair-bonding has existed since the Stone Age, long before there was religion or government.   The fallacy in the argument that the government can't tell you who to love (and that therefore same-sex marriage should be legal) is that the government never could tell you who to love.   While the government can withhold recognition from same-sex marriages, it can't force anyone to wed.   As a result, those people who choose not to enter into a legally recognized marriage are free (within limits) to create their own relationships.   Indeed, there are more unmarried opposite sex couples in this country than there are opposite sex households.    In the long run, if same-sex relationships turn out to be more like Cam and Mitch from Modern Family, then societal acceptance of same-sex relationships will eventually reach a tipping point and government and most religions will embrace it.   On the other hand, if same-sex relationships turn out to be transient and insubstantial, or worse, inconclusive, we will continue to rock along much the same way that we are now.   


Nevertheless, however the courts define marriage will not affect my own marriage.   If the courts were to legalize same-sex marriage in Texas, I am not going to leave my wife for a guy.   Similarly, if the government were to withdraw all legal benefits for opposite-sex marriage, it would not change our relationship.   

When people talk about same-sex marriage destroying "traditional" marriage, I think they are worried about the slippery slope argument.   If marriage is extended from one man and one women to two individuals of the same or opposite sex, what is to prevent marriage from being extended to one man and three women or a man and his pickup truck?    What if marriage is ultimately expanded to any relationship between any combination of consenting, sentient beings?   Will marriage become defined so broadly that it become meaningless?   I don't think so.   Civil marriage is only one of three forms of marriage.   Religious marriage and social marriage would exist even if the government expanded it beyond recognition.   Marriage will still fulfill a function in society which will not go away based on what the government says.   

Does this mean that the government should be required to recognize same-sex marriage?    Not necessarily.   Oppose-sex relationships date back tens of thousands of years, while same formalized same-sex relationships are of much more recent origin.   Opposite-sex relationships remain the norm while same-sex households are a minority of a minority.    Under our federal system, the states should be allowed to experiment with allowing or not allowing same-sex marriage, recognizing that in the sweep of human history this is a relatively new innovation.    The Defense of Marriage Act (DOMA), which has now been invalidated, was a bad idea because it did not defend marriage and because it interfered with the traditional right of the states to define marriage.    However, now that it is gone, there is no need to go the opposite way and hold that everything not forbidden is required.