What A Year It’s Been!

I’ve just finished the revision to Nolo’s Legal Guide for Lesbian & Gay Couples, and I did the revision for Making It Legal’s 3rd Edition just a few weeks ago. It’s been a joy summarizing the amazing developments that have occurred in the past year.  The legal lives of same-sex couples are still fairly complicated, but in a much better way.

Marriage: Wow!  Marriage is now available to lesbian and gay couples in Hawaii, Illinois, New Jersey, Minnesota, California and soon, in Illinois.  Each of these states have endured hard fought battles, in the courts and the legislatures, and in the public arenas, and the political efforts by the marriage equality advocates have been truly impressive.  Minnesota is especially significant – not just because it’s my home state – as that is where the first legal action to allow a gay couple to marry was launched, more than 40 years ago.  And Hawaii is equally important, as that is where the current campaign for marriage equality was launched, more than 15 years ago.   As for California, it’s been a roller coaster ride for the past ten years, and it’s great to have the access to marriage be finally resolved, hopefully for good this time!

Federal Benefits: The Supreme Court’s invalidation of Section 3 of DOMA is perhaps the most important step in this long journey, for both symbolic and practical reasons.  As the nation’s highest court, its opinions are closely followed, and the analysis in the Windsor case really was wonderful to read.   It’s clear that the opinion has already had a significant impact on how legislators and politicians approach this issue, and it sends a strong signal of the political direction this country is headed towards.   On the practical level, it immediately opens up the plethora of federal benefits to same-sex married couples – in many instances, even for those living in non-recognition states.  The most dramatic of these benefits is the immigration privileges extended to married spouses, and it’s been a joy to see the smiling faces of new green-card holders everywhere.  Federal tax and Social Security benefits now apply to married same-sex couples, as well as benefits for spouses of federal employees.

Remaining Issues: the biggest areas of legal confusion involve married couples living in non-recognition states, and the status of marriage-equivalent civil union and domestic partnership registrants.  Some federal laws only apply to couples living in recognition states (the state of residence rule) while others apply to all couples, wherever they reside (the state of celebration rule).  It will take some time for the multitude of federal agencies to work out their rules for same-sex couples, but if you live in a non-recognition state you can not assume you will obtain federal benefits.  As for the marriage-equivalent registrations, most federal agencies will not treat these couples as married, and so spousal benefits won’t extend to those couples.  In many instances (such as tax and immigration purposes) a couple can get married and get the benefits, and in many states the partnership is “upgraded” to marriage by statute.

It will take some time for all the legal complexities to be worked out, and the problems in non-recognition states will be especially difficult for some time to come.  But there is much to celebrate this year!

 

 

 

Proposition 8 at the Supreme Court

Today’s hearing at the United States Supreme Court on the validity of Proposition 8 was quite fascinating both from a substantive and historic perspective.    Substantively, the key issues were standing, and the breadth of the claims made by the parties.  The standing issue focuses on whether the proponents of the anti-gay-marriage initiative have the right to bring this appeal to the court, where the State of California officials refused to do so.  Most of the justices seemed genuinely critical of extending appeal rights to the proponents, given that they do not truly represent the state’s interest.  There was discussion of the various options the state might have, including naming an independent party to challenge the lower court’s ruling, but this didn’t make much sense to the other justices.

On the merits, the discussion mostly focused on whether this could really be a California-onlly ruling – on the grounds that once the State Supreme Court had extended marriage rights to same-sex couples, it was wrong for the voters to take those rights away – or whether they needed to rule on the broad right of same-sex couples to marry everywhere.  It seemed absurd to some of the justices, and rightly so, that states that offered no rights (neither domestic partnership or some kind of constitutional protection) would be left alone, while those states that had gone most of the way to protect same-sex couples, such as California, would be more heavily scrutinized.

From a historical perspective, what is most important was listening to the complexity of the arguments, the sincerity of the claims and responses, and the realities of same-sex couples being discussed at such a high level.  Even the proponents of Proposition 8 did not really argue against same-sex couples having marital rights; rather, they emphasized their assertion that it would be premature for the courts to intervene, preferring instead to let the political process work this out.

But perhaps most surprising was the comment by Justice Kennedy, asking whether it was possibly wrong for the court to have taken on this case in the first place.  Were his suggestion to gather support, the Court could simply say “sorry, never mind” and let the 9th Circuit’s positive ruling stand.  Should this be the outcome – or perhaps more likely, a refusal to rule on the merits based upon the standing question – marriages would be allowed once again in California, leaving the bigger constitutional questions unanswered for years to come.

Today’s arguments on Proposition 8

Today’s arguments on Proposition 8

Here is an excellent analysis by Nancy Polikoff — complete with insightful arguments about the “what’s good for the children’ arguments raised at the hearing today.

Israeli Civil Court Grants Gay Divorce

In a landmark legal decision just issued in a Tel Aviv family law court, a judge has granted an order of divorce for a same-sex couple that married in Canada.  Divorces are generally granted only by religious courts in Israel, and the civil family court usually only steps in for interfaith straight couples that married overseas, since they are unable to get married (or, until recently, divorced) in Israel.  Jewish couples – even those that married in the United States or elsewhere – still have to go through the rabbinical courts to obtain a divorce.

Several years ago the Supreme Court in Israel ruled that the government was required to register same-sex couples as married, if they got married overseas, though it was uncertain as to what that registration really meant.  For the most part these couples were not given all of the rights of married couples directly, as a married couple, though most of them were treated as equivalent to married, as cohabitating couples.  But it’s been a rocky road for many such couples, with different government agencies and courts treating them unequally.

The judge’s logic in this case was simple.  He based his ruling on two key points: first, if the government was going to register a same-sex couple that married overseas as a married couple, then they were required to register their divorce as well.  If they refused to do that, then the couple would be married unto eternity – and never again be acknowledged as two single individuals.  Second, it was seen as inherent in the court’s equitable powers to grant the divorce, as something that is only fair for the couple.

What’s most interesting here is who was involved in this case.  Uzi Even, the petitioner, was the successful claimant in a variety of gay rights cases in Israel, involving security clearances, military benefits, and adoption.  Perhaps it is only fitting that he would also be the ground-breaking claimant in a divorce case, demonstrating most dramatically that the right to a divorce is truly one of the essential “benefits” of marriage.

Thanks to Judith Meisels, the attorney who brought the case on Uzi’s behalf.  She is one of the best family lawyers in private practice in Israel, and she has persevered in her representation of lesbian and gay couples in their quest for equality under the law, with regard to marriage, surrogacy and parenting, and now divorce.

But before anyone concludes that the legal issue of access to civil divorce is resolved for all purposes, it’s important to keep in mind that most likely this decision will be appealed – or alternatively, the government may defy the court’s order and force the petitioner to file an appeal. Thus, it will likely be several years before the Supreme Court of Israel rules on this issue — and the outcome is far from certain.  One final note: ironically, this decision on behalf of a gay couple could pave the way for straight couples to obtain civil divorces, something that Jewish couples have been unable to obtain so far.  It would truly be terrific if a gay activist couple ended up helping to extend civil legal rights to straight non-religious couples in Israel!

For more information on the case check out: http://www.haaretz.com/news/national/court-grants-divorce-to-gay-couple-for-first-time-in-israeli-history.premium-1.481951

Good News from the Federal Appeals Court on DOMA

More good news on the appellate court DOMA front. The Second Circuit Federal Court of Appeals has upheld the summary judgment ruling in the appeal of Windsor v. USA, Docket No. 12-2335-cv(L), issued October 18, 2012. Edith Windsor’s wife Thea died in 2009, and because their Canadian marriage was not recognized by the IRS, Thea’s estate (and thus Edith) had to pay more than $300,000 in estate taxes. Had they been recognized as legal spouses, her wife’s substantial estate would have passed to Edith tax-exempt. Whatever sympathy one might or might not have for such wealthy lesbians, the issue is one of equity. Straight widows are entitled to inherit an unlimited amount of money from their husbands, tax free, and so should lesbian widows.

The justices based their ruling on the following key factors.

First, they ruled that even though same-sex marriage was not recognized in New York State at the time Thea died, they were able to “predict” that the state of New York would have recognized their marriage. They based that conclusion on the positive ruling from most of the intermediate New York appellate courts, and thus they did not see the need to refer the question to the New York Supreme (highest appellate) court.

Second, they concluded that the 1971 United States Supreme Court’s affirmation of the Baker same-sex marriage case was not binding on them. To some degree this is a highly technical issue, since others (including the dissenting judge) had argued that the summary disposition of the Baker case was binding precedent. Perhaps most importantly, the justices in this case found other rulings of the United State Supreme Court that were issued post-Baker (i.e. the Lawrence decision) that justified this conclusion.

Third, they concluded that same-sex couples are entitled to “heightened scrutiny” in the review of the passage by the United State Congress of the Defense of Marriage Act. Again, this is a fairly technical issue, but it’s an important one. If only “ordinary” scrutiny is used to evaluate the law, it only has to have a rational basis, and nearly every law withstands such a review. There are certain classifications that are “strictly” scrutinized, such as those that affect racial and gender minorities, and those laws are almost always struck down. Here, the justices applied an “intermediate” level of scrutiny, which resulted in a closer analysis of DOMA to determine whether it should be upheld as constitutional. The Court’s invocation of this mid-level scrutiny was that lesbians and gay men have historically suffered from social and political discrimination, unrelated to their ability to contribute to society, and similarly they have been the targets of political and legal discrimination.

Lastly, the justices readily concluded that under the heightened scrutiny they elected to apply to their analysis, there wasn’t sufficient justification to uphold DOMA. Marriage was traditionally been a matter of state law, not federal law, and there was simply no good reason for the federal authorities to create their own definition of marriage.

Thus, the Court of Appeal upheld the trial court’s summary judgment, and concluded that DOMA is unconstitutional, as applied to a couple living in a state that recognizes their marriage.

Two crucial points to keep in mind. First, under this Court’s approach only those couples that live in a recognition state would benefit from federal law protection. If Edith and Thea had moved to Pennsylvania, a non-recognition state, most likely the Court would not have extended federal marriage protections to them. And second, this case will most likely become combined with the other cases involving DOMA that are pending at the United States Supreme Court. Assuming the Court elects to take up these cases, we won’t know until some time next year whether this Court’s wise decision will be the law of the land.

Bigamous Marriages in Massachusetts

The Massachusetts Supreme Court has recently issued an important ruling, holding that a prior Vermont Civil Union is equivalent to a marriage – and therefore the subsequent marriage of on of the civil union partners was bigamous.  The case was brought by Todd Elia-Warnken against his Massachusetts spouse, and can be read in its entirety at http://www.glad.org/uploads/docs/cases/elia-warnken-v-elia/elia-sjc-decision-7-26-12.pdf.

The analysis of the court was logical and, in my mind, entirely fair.  The judges ruled that the Vermont civil union was a “marriage equivalent” registration.  Thus, since Todd and his civil union partner had never obtained a marital divorce of their civil union Todd’s subsequent Massachusetts marriage was bigamous.  Ironically, while it invalidated Todd’s Massachusetts marriage, the broader principle of recognition of the Vermont civil union is what is most important. 

There are two key consequences of this ruling.  First, those who registered as civil union partners in Vermont but live in Massachusetts will be treated as married — and that is a good thing for couples living together, or having to go through a divorce in Massachusetts.  It means that all of the rights and duties of marriage will apply to those couples.  The second consequence is that if anyone has married someone other than their civil union partner, without having obtained a dissolution of their civil union, is in a bigamous marriage.  They will need to go back and dissolve their civil union – which they can do in Massachusetts – and then marry again their new partner. 

It is most likely that other state courts will follow the lead of Massachusetts, and treat the Vermont civil union as a marriage when it comes to deciding if a subsequent marriage is bigamous.  This may be inconvenient for the partners who failed to get a dissolution before remarrying, but it’s the right decision.

Federal Court Grants Marital Estate Exemption to Lesbian Widower

In another heavy blow to the Defense of Marriage Act (DOMA), a federal court in New York has ruled that the federal estate exemption granted to married spouses must be honored in the case of a surviving lesbian partner.  The case of Edith Windsor (Windsor v. USA, SD New York, US District Court, 1:10 ev-08435-BSJ, issued June 6, 2012) was filed by Windsor after her partner of more than 45 years died.  Because of DOMA Windsor’s partner (Thea Spyer)’s estate had to pay more than $350,000 in estate taxes – which would not have been paid had their marriage been federal recognized. 

Windsor faced a great many hurdles in this case.  Windsor and Spyer had gotten married in Canada in 2007, but their marriage was not legally recognized in a statutory sense in their home state of New York at the time of Spyer’s death in 2009.  The court disregarded this argument, relying on a variety of trial court and appellate court decisions honoring out-of-state marriages prior to 2009.  The court also refused to defer to the 40-year-old United States Supreme Court case ofBaker v. Nelson (409 U.S. 10), which affirmed a Minnesota statute disallowing same-sex marriages. 

Fortunately, the court had the courage to look to broader legal principles to reach its decision.  The judge asserted that courts need to strictly scrutinize legislation that infringes on a fundamental right, and that the doctrine of equal protection requires the government to treat all similarly situated persons alike.  From this perspective, DOMA cannot be upheld by the court.  There was no rational basis for Congress to enact DOMA, especially to the extent requires the federal government to disregard a lawful marriage of another state or country. The arguments proffered by the proponents of DOMA do not meet constitutional standards, and there is no rational link between the stated arguments and the impacts of DOMA. 

For these reasons, the court ruled that DOMA is unconstitutional, and therefore Windsor is entitled to a full refund of the estate taxes paid by Spyer’s estate.

This is a strongly-written decision, and follows the trend of a series of federal trial court cases declaring DOMA unconstitutional.  Most likely it will be appealed — perhaps not by the government lawyers but by the same Congressional “team” that is appealing the other DOMA decisions.  While it will take at least another year, maybe two, before there is certainty from the appellate courts – and perhaps the U.S. Supreme Court, every positive trial court decision is a helpful voice added to the choir.

Israeli Court Grants Parentage to Lesbian Donor Partner

In a decision that closely resembles the California Supreme Court’s ruling in 2005 in the case of K.M v. E.G., a trial court in Israel has recognized the egg-donor mother as a legal co-parent of the child born to her lesbian partner. Interestingly, this case did not arise out of a custody or parentage dispute as a result of a break-up of the partners’ relationship. Rather, it was the government (the Department of Interior) that had ruled administratively that the donor mom was not a legal mom — and that she would have to adopt her own biological child to become a legal parent. The partners appealed that decision to the local court, and the trial court judge overturned the government’s administrative decision. This decision is part of a growing trend of decisions emerging from the courts in Israel to recognize same-sex partners as legal parents of their children. A summary of the case can be found here:
http://www.haaretz.com/news/national/israeli-court-recognizes-lesbian-couple-as-mothers-of-child-1.416637

Why the Bankruptcy Court Ruling Matters

In a recent ruling by the Central District of California’s Bankruptcy Court division, a nearly-unanimous block of 20 judges signed on to an opinion holding that the federal Defense of Marriage Act is unconstitutional. The issue arose when a married same-sex couple in California elected to file a joint bankruptcy petition – which can be beneficial and result in some cost-savings for some couples in debt. Predictably the bankruptcy trustee rejected the filing on the grounds that DOMA precluded any recognition of their same-sex marriage, and the couple filed an appeal. Typically only one judge signs an appeal decision, but in this case 20 out of the court’s 23 judges joined in the opinion.

In simple terms the judges ruled that DOMA violates the constitutional equal protection clause. They said that there is no rational basis for the law, focusing on the obvious truth that allowing a couple to file a joint bankruptcy petition could not have any effect on anyone else’s marriage. They focused on the structure of the bankruptcy process, and concluded that none of the reasons cited by Congress in passing DOMA made any sense in the context of the debtor protection laws.

While the practical impact of this ruling may be slight – and the financial implications are rather minor – the symbolic importance is enormous. Bankruptcy judges are not considered flaming radicals or “activist” judges, and the mundane world of creditor-debtor relations is not usually seen as a hotbed of political controversy. But this ruling reveals the many practical consequences of a law that has no legal merit – and hopefully will help pave the way to its demise, either judicially or legislatively.

California Supreme Court to Rule on Prop 8 Question

Not surprisingly, the California Supreme Court has agreed to answer the question posed by the Ninth Circuit Court of Appeals judges on the Proposition 8 standing issue. The question revolves around the arcane doctrine of standing, which determines who has the right to challenge a proposition on appeal. The trial court allowed the proponents of Proposition 8 to defend its validity at trial, because the Governor of California elected not to defend it. However, the rules for an appeal are slightly different, and once the proponents lost at trial and the State of California elected not to appeal that decision, it was not clear if the proponents could appeal that loss.

Because this is primarily a question of state law, the federal appeals court had two options. They could have tried to answer the question on their own, or they could refer it to the State Supreme Court for an answer, which is what they did. Interestingly, the State court could have refused to answer, punting the question back to the federal court. But as expected, the State court agreed to answer the standing question.

The court has asked the parties to submit supplemental briefs on the issue by May, and they will hold oral argument in September. That means they will likely issue a decision some time late in the year, probably in December.

If the State court rules that the proponents do not have standing, the federal appeal will be dismissed and the trial court decision will stand. This probably means that the ban on same-sex marriage will be lifted – though there is some uncertainty as to the procedures in this sort of situation. On the other hand, if the State court rules that the proponents do have standing to file an appeal, then the federal appeals court will have to rule on the substance of the appeal, i.e. whether Proposition 8 is constitutionally valid. This could take as long as another year, especially because the three-judge panel’s decision could be reviewed by a larger number of appellate judges.

Many folks have wondered what would happen if this case ever got to the United States Supreme Court. Given how long this process is taking and how many more steps there are in this process, chances are Proposition 8 will be back on the ballot in November 2012, before any final decision is reached. If the proposition is reversed by the voters in 2012 then we will never have to worry about how the Supreme Court would decide.