Greenberg Traurig is the kind of law firm that has come to be associated with the phrase “Biglaw,” meaning it’s a multiple-state law firm employing hundreds of lawyers, most of whom likely have never met one another. GT was founded in Florida and has a very large presence there and we are nominally concerned in this essay with four of its attorneys there, but its headquarters are in New York, from whence its 1,750 or so attorneys operate in ten countries globally. (It’s okay to be impressed. It’s impressive.)
So I was going to lampoon Fred Baggett, John Londot, Hope Keating, and Michael Moody, who are based in Greenberg Traurig’s Tallahassee office (the first three of these are “shareholders,” which means they hold equity in the firm, and Mr. Moody is an associate, meaning he is a regular employee) who were hired by the Florida Association of County Clerks to prepare a memorandum concerning the recent ruling in Florida’s same-sex marriage case, Grimsley et al. v. Scott et al., which was imminently to take effect and bring marriage equality to the Sunshine State. The Baggett memo, however, opined that the District Court’s order required exactly one county clerk to issue exactly one marriage license to a same-sex couple and warned that any county clerk issuing a license to any other same-sex couple would be at risk of criminal sanction.
If you want to see just how plastic the sensibilities of a Biglaw firm can be when appropriately paid by a cynical client, you can read the Baggett memo here.
This was, of course, not what the judge had in mind, and the Miami Herald reports that the judge took the unusual step of issuing a clarifying order on New Year’s Day, clearing the way for same-sex marriage licenses to issue across Florida on Tuesday, as anyone with a whit of common sense would have understood to be the effect of a Federal judge’s order finding a same-sex marriage ban unconstitutional. So same-sex couples can get married on the same terms as mixed-sex couples, as early as January 6, 2015.
But the Herald also included this cryptic description of what those terms are:
A deputy clerk can perform a marriage ceremony immediately after the license is issued, if the spouses have taken a four-hour premarital course. There is no other waiting period for those who have taken the course. The courses are given in person and online, and can be completed in one day. Search online: ‘Florida premarital course.’
All Florida residents must take the course, or wait three days for a license to become valid. This does not apply to nonresidents. Marriage ceremonies must be performed within 60 days of a license being issued.
Wow. Can’t get married for three days after the license is issued, unless you take a four-hour class? I was married in Clark County, Nevada, which as one might imagine, is not quite so precious about ensuring the vitality of marriages created under its marriage licenses as this. So I had a lot of questions.
I notice that the pre-marriage class is not mandatory; if you don’t want to take the course, you just have to wait three days between applying for the license and actually getting married. If the course is the equivalent of three days’ experience of time together (valued at $32.50 in discounted fees for the license), then this pretty much amounts to preventing people from getting drunk together in a watering hole outside of Lake Okeechobee and running down to the pastor and getting hitched before so much as sobering up. So I guess there’s some value in that.
But I also notice that nonresidents don’t have to take the course. They can meet up, drink down in Margaritaville, and get hitched like lovebugs all in one fell swoop. And presumably, that’s because the State of Florida doesn’t much care if they go home and get divorced in some other state’s courts.
And I notice that residents don’t have to take the course, either. But if they don’t, the cost of license jumps up from $61.00 to $93.50.
When I googled “Florida marriage course” I found that the providers have be registered in each of the various counties throughout the state, which looks like basically some paperwork and fee-paying, and at least one of the popular online providers being taught by a minister. They’re all pretty firm that you have to actually do four hours’ worth of actual work, instead of just clicking through (for example, the way you would if you were taking online traffic school) and that it seems they have to process enrollment in their course by hand, which is presumably a safeguard built in to prevent those drunken hookups from turning in to quickie marriages.
So I asked my wife: “What do you think of this?” Her first response was the same as my initial instinct: there shouldn’t be such a course. People should be able to get married when and on what terms they want and it’s none of the state’s business to tell them they can’t. But then she asked, “Does it work? Has the divorce rate among Florida residents gone down since they passed this law?”
So after that it was off to Florida’s Bureau of Vital Statistics, and its statutory archive. I learned that the law was passed in 1998 and so presumably took effect in either 1998 or 1999. So I found the dissolution rate for marriages in Florida from 1990 to 2014:
Florida’s numbers look different from those reported by the Centers for Disease Control and Prevention, which also tracks vital statistics like this nationally and state-by-state. Florida’s divorce rates according the CDC have, in fact, declined since 1998, but so have divorce rates in essentially every other state as well; Florida’s rate of improvement (query if a low divorce rate is more desirable than a high one; presumably a marriage ending in divorce is one that creates unhappiness, so divorce would be an improvement for at least one divorcing spouse) roughly tracks that of the country as a whole., and Florida’s rate is about .5 per 1,000 population higher than the national average for the whole time, which is well within a standard deviation of the median rate.
So it doesn’t look like this law has particularly helped reduce the divorce rate in Florida. “Well, that’s dumb,” my wife said. Which is right: the law doesn’t seem to serve any point. As a social engineering experiment, it presumably has failed, because it diverts some revenue from the state to private parties (often as not, clerics, at least as far as my very brief survey of the counseling providers seems to reveal, despite the absence of mention of clergy as providers in the statute) without actually affecting the apparent goal: making marriages successful, with “successful” defined as “not ending in divorce.”
But I wonder — well, there are some people who do seem to rush into marriages without a lot of thought. Maybe some sort of good could be realized through this kind of social engineering? The statute speaks of classes addressing the subjects of conflict management, communication skills, financial responsibilities, and children and parenting responsibilities. Those seem like good things for people to have given some thought to before getting married! My wife doesn’t disagree, but she kept coming back to, what’s the point? You can tell people all sorts of good things, but that doesn’t mean they’re going to listen to them or do them in real life.
If you were like my wife and I, you independently gave some thought and discussion to these subjects before you got married anyway — probably not enough in our case, but at least we gave some thought to those sorts of subjects, and we were fortunate enough that the things we didn’t talk about before tying the knot we were able to amicably resolve afterwards. But why should I assume your marriage is like mine? Why should the state of Florida?
One might point out that the course is so poorly incentivized financially (it saves you a whopping $32.50!), and so easily circumvented, means that it probably isn’t actually being done a whole lot and certainly isn’t taken seriously.
One might point out that whatever benefit we might imagine from a mandatory premarital educational class is so easily avoided that the requirement is probably little more than an inconvenience, which might catch some couples unawares and cause some moments of panic and annoying additional paperwork.
Really, the best I can say for the law is that it might prevent some drunken hook-ups from becoming marriages.
But all of that misses the point. It’s a well-intentioned but at the end of the day offensively paternalistic bit of failed social engineering, premised upon the patently false assumption that the state knows what your marriage is all about. For you and your spouse, marriage might not be about good communication, shared finances, sex and monogamy, or childrearing. Maybe it’s a social or economic arrangement between your family and your spouse’s. Maybe it’s low-cost estate planning. Maybe it’s about helping your friend get a green card. Who knows? Who cares? No one gets to tell you what your marriage is or ought to be. That’s for you and your spouse and no one else. Ultimately, whose business is it but yours?
Image source: wikimedia commons: detail, William Hogarth: The Tête à Tête from the Marriage à la Mode series (No. 2). Artwork in public domain.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.