1975, February, Pg. 231. Federal Remedies for Sexual Discrimination Against Male Divorce Litigants.

Authorby Maurice R. Franks

4 Colo.Law. 231

Colorado Lawyer


1975, February, Pg. 231.

Federal Remedies for Sexual Discrimination Against Male Divorce Litigants

231Vol. 4, No. 2, Pg. 231Federal Remedies for Sexual Discrimination Against Male Divorce Litigantsby Maurice R. Franks[Please see hardcopy for image]In the 1973 case of Frontiero v. Richardson,(fn1) the United States Supreme Court suggested that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must be subjected to close judicial scrutiny. Following the high Court's reasoning, Judge Sybil Hart Kooper of the New York Family Court ruled that the presumption that the mother should have custody of children of tender years violates both New York law and the equal protection clause of the Fourteenth Amendment.(fn2) More recently, the Supreme Court of Pennsylvania held that insofar as earlier decisions suggested a presumption that the father, solely because of his sex and without regard to the actual circumstances of the parties, must accept the principal burden of financial support of the children, those former decisions may no longer be followed. Said the Pennsylvania court: Such a presumption is clearly a vestige of the past and incompatible with the present recognition of equality of the sexes. The law must not be reluctant to remain abreast with the developments of society and should unhesitatingly discard former doctrines that embody concepts that have since been discarded.(fn3)

A federal case from Wisconsin also casts doubt on the practice of issuing ex parte temporary restraining orders in domestic relations cases, particularly where such orders customarily issue only against male litigants.(fn4)

There are other possible federal objections to state divorce practices. For example, it can be argued that "no-fault" divorce laws impair the obligation of marriages contracted prior to their passage, in violation of Article I, § 10, of the federal constitution. The no-fault laws do more than merely change the remedy afforded for a breach of the marriage relationship: they abolish the concept of breach altogether, and substitute an entirely new understanding of the marriage relationship---one that the respondent never agreed to when he got married.(fn5)

It also can be argued that the standards of the no-fault statutes are impermissibly overbroad and void for vagueness, in violation of the due process clauses of the Fifth and Fourteenth Amendments. No objective definition is given of the term "irretrievable breakdown."(fn6)

It also can be argued that forcing a human being to labor to the profit of another, when a marriage relationship no longer exists between them, and particularly when the relationship was terminated at the option and through the fault of the individual seeking court appointment as taskmaster over the life and fortune of the

232innocent spouse, constitutes slavery and peonage within the meaning of the federal constitutional and statutory prohibitions.(fn7) The steel shackles and iron bars of bondage are every bit as real to the male slaves of the twentieth century as they were to their Black counterparts of the nineteenth.(fn8)So much for the substantive federal issues. The constitutional concepts have not yet filtered down to the trial level, Article VI, § 2, of the federal constitution notwithstanding. Many courts continue to give preference to female litigants in the division of property, award of temporary maintenance, permanent maintenance, child support, custody, attorney fees, and issuance of ex parte restraining orders directing the male to vacate his home. For example, during one year in Colorado (a supposedly "progressive" state), female litigants won custody of all children born of the marriage in 4,358 cases, whereas the hapless husband got the kids in only 251 cases.(fn9) The statistical imbalance alone creates a presumption of sexual discrimination.(fn10)

The sexist discrimination inflicted upon males by the divorce courts of our land is no less dehumanizing than the racist discrimination formerly inflicted upon Blacks by the courts in certain Southern states. Like his Black predecessor, the male who feels he is discriminated against in the state divorce courts has three alternatives: (1) he may allow the state courts, applying state law, to emasculate him without so much as a whimper; (2) he may seek relief in the state appellate system, at great cost and possbily without success;(fn11) or (3) he may pay his $15 and seek relief in federal court. It is with this last alternative that this article is concerned.


There are at least two approaches to federal jurisdiction to remedy state court discrimination against male litigants in divorce cases: (1) a suit to restrain the state trial judge from violating the male litigant's rights, or (2) a removal of the dissolution of marriage proceeding from state to federal court under 28 U.S. Code § 1443.

Suit to Enjoin State Trial JudgeAt any stage of the proceedings, the respondent (translate "male") in the state court may bring a separate suit of his own in federal court against the state trial judge to restrain him from the enforcement or execution of a state statute upon the ground that the statute is unconstitutional.(fn12) The statute need not be unconstitutional on its face; unconstitutionality as applied is sufficient.(fn13) Exhaustion of state remedies is not necessary.(fn14) The doctrine of judicial immunity does not insulate the state trial judge from suit in federal court to enjoin him from violating a state litigant's rights.(fn15)

Federal jurisdiction should be invoked under 28 U.S. Code §§ 1343(3), 2201, 2202, 2281, 2283, 2284, and 42 U.S. Code § 1983. The complaint should pray a declaratory judgment, a preliminary injunction, and a permanent injunction restraining a state official (the trial judge) from enforcement of the state statute in question.(fn16) The governor and attorney general of the state should be made parties.(fn17) Since the suit will be required to be heard by a district court composed of three judges, a motion to convene a three-judge court should be filed.(fn18)

Although there is no clear time limit on instituting such a suit, the federal issues should not be presented to the state court first. If the federal issues are litigated in state court, the right to have those issues litigated in federal court is waived.(fn19) The proper procedure is to notify the state court of the reservation of certain issues for determination exclusively in the federal forum pursuant to England v. Louisiana State Board of Medical Examiners.(fn20)

This procedure is airtight, and federal jurisdiction unquestionably is good. The major disadvantage to this procedure is that the federal court may abstain from determining the federal questions until after the state court has decided "underlying state issues."(fn21) In all but the most

233flagrant cases, it is unlikely that the federal court would enjoin state proceedings.(fn22)However, once the England reservation has been made, it can be argued in state court that the mere pendency of federal proceedings automatically divests the state court of jurisdiction to bind the parties.(fn23) Thus, the only reported case in point holds that even where the federal court abstains and remands some or all of the issues back to the state court, the state court still may not proceed.(fn24) Since under England the state court may not bind the parties until the federal case has been adjudicated to final disposition, not even an express directive from the federal court can operate to reinvest the state court with jurisdiction.

Review of orders of properly convened three-judge courts granting or denying in-junctive relief lies directly to the Supreme Court of the United States by appeal and not by certiorari.(fn25) But watch out.(fn26) The careful attorney will perfect dual appeals, one to the Supreme Court and one to the Court of Appeals.(fn27)

The three-judge suit is on sound jurisdictional footing, and is the least likely to be dismissed from federal court. Unfortunately, it is also the least likely to produce immediate, tangible relief for the client.

Removal of the Action to Federal Court

The second possibility is removal of the dissolution of marriage proceeding from state to federal court under 28 U.S. Code § 1443. The petition for removal must be filed within 30 days after receipt by the respondent, through service or otherwise, of the initial pleading setting forth the claim for relief upon which removal is based.(fn28) Although...

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