Honoring Obergefell

June 28th, 2015 / By Deborah J. Merritt

I’m elated by the Supreme Court’s decision in Obergefell. The decision affirms so many things I value: marriage, human bonds, tolerance, and constitutional principle. The decision also demonstrates the role that law plays in pushing us to examine prejudices; it gives me hope for further progress.

I value even the negative reactions to the opinion: they remind us that courts and legislatures maintain a delicate balance in a democracy like ours. I believe that the Obergefell majority properly interpreted and applied the Constitution but, to borrow a word from a different inspiring source, raucous discussion of our constitutional process is an essential part of that process.

Obergefell, of course, will jump into the law school curriculum. Professors and students will debate the majority’s reasoning, as well as the dissents’ attacks. They will explore Obergefell‘s implications for tax, family law, and other subjects. Even my Evidence book will include Obergefell in its summer supplement; it’s time to update the discussion of marital privileges.

All of this is as it should be. I challenge law schools, however, to take another, more difficult step in honor of Obergefell: to use this occasion to recognize how poorly we serve clients in the family law field.

Legal Needs

Marriage, as Obergefell recognizes, is one of our most important legal institutions. Marital status affects rights and duties related to “taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation.”

Couples need legal assistance to maintain this key status, to implement it, and (if necessary) to dissolve it. Yet hundreds of thousands of individuals cannot obtain that legal assistance. For many, the assistance is too expensive. For others, it is cumbersome or intimidating to obtain. Studies of the family law system reveal shocking gaps in legal assistance: In Milwaukee, 70% of family law litigants lack counsel. In California, 80% of family law cases include at least one pro se litigant. In Philadelphia, 89% of child custody litigants proceed without counsel. No city or state has produced a report showing that its residents are able to satisfy their legal needs in family-related cases.

Whose Problem Is It?

We’ve talked for decades about addressing these legal needs through increased legal aid funding or enhanced pro bono efforts. But governments are already struggling to balance budgets, and taxpayers show little inclination to raise taxes. Lawyers praise pro bono, but our efforts chronically fall far short of our rhetoric. Many of us lack the skills and experience needed for effective family law representation.

To solve the legal crisis affecting families, we need to start in law school. We need to champion the importance of representing individuals with family-related legal needs. Divorce, child custody, and other domestic relations work have languished at the bottom of the status heap in law practice. If we believe in Obergefell, it’s time to change that.

We have to teach students the skills they need for success in family law practices. This is a tough practice area, with particularly challenging issues of client counseling, negotiation, and ethical responsibilities. Doctrine matters in this area, but so do skills. Family law practitioners are already struggling to serve their clients and make ends meet; we can’t rely on them to educate law graduates on the skills they missed in law school.

Equally important, we need to devise systems that deliver these essential legal services more efficiently and economically. Researchers, educators, and practitioners should work together to design new systems and test their impact. Unbundled services? Limited license professionals? Online resources? Prepaid plans? What combination of these approaches–and others–will best meet the needs of potential clients?

Professional Responsibility

Lawyers own the legal profession. We control entry, education, and practice. Society allows us to bar others from performing our work. That ownership confers a responsibility: to operate the profession in a manner that assures access to needed services.

Legal educators sometimes stand apart from the profession, forgetting our key gatekeeper role–and the financial benefits we derive from that status. We are the ones who choose potential lawyers and chart their course of study. We also have the resources to research new methods of delivering legal services. We, along with other lawyers, bear responsibility for persistent flaws in the legal system. It’s time to act on that responsibility.

Access to Justice

It may seem odd to honor Obergefell by discussing a practice area that reflects the heartaches of marriage more often than its joys. I hope that none of the couples who marry in the coming months will ever separate, fight over their children, or suffer domestic abuse. But at least some of them, both same-sex and opposite-sex, will.

The legal system recognizes grand ideals of justice, but it also acknowledges our human weaknesses. We make mistakes. We commit crimes. We break contracts. We abandon our partners and fight over our children. Sometimes we even abuse the people we love most.

Laws exist to cope with all of our mistakes. In the family law system, a good attorney can help change personal tragedy to a new beginning. At the very least, an attorney can mitigate the damage. But today, a majority of Americans face these personal and legal tragedies without sufficient guidance. It’s up to us–the gatekeepers, educators, and researchers of the legal system–to design a better system.

The Challenge

I challenge every law school to create a clinic or post-graduate firm focused on family law issues. If you already have one, make it better. Encourage faculty to work with practitioners, designing and testing new systems of delivering legal services. If none of your current professors are interested in improving the delivery of legal services, hire one who is. Teach students that family law is an essential area of law practice, and help them create sustainable practices. Enforce the promise of justice for everyone who has ever been part of a family.