Proposition 8 at the Supreme Court

March 26, 2013

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

March 26, 2013

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.

Gay Dads in Israel

March 17, 2013

Gay Dads in Israel

Here is an article on the latest developments on gay couples seeking to become dads in Israel – fascinating reading!

Recent Court of Appeals Case on California Domestic Partnerships

January 28, 2013

Here is my recent blog for CEB on the Wilson Estate case — explaining what happens when a couple state-registers as domestic partners, then marries, and then one of them dies in the middle of their break-up.


Israeli Civil Court Grants Gay Divorce

December 2, 2012

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:

Access to Canadian Divorce Courts

November 29, 2012

As has been noted elsewhere, one of the biggest problems facing same-sex married couples is access to divorce, if they live in a non-recognition state.  Most places don’t require residency in order to get married, but they do require some duration of residency to get divorced.  There’s a long history behind this rule, called the domicile rule, having to do with preventing angry spouses from fleeing across state lines to avoid the financial burdens imposed by their state of residence. But these rules never anticipated the current situation, where a couple can be legally married in one state, but not be recognized as married in their home state.

California recently enacted a law allowing couples that married in California to come back here for a divorce, even if they live elsewhere, if their home state won’t grant them a divorce there.  A similar law has been proposed in Canada, but has not yet enacted.  The Canada situation raises some interesting challenges and questions about the complex situation now facing same-sex married couples.

First, the law would confirm that the marriages entered into in Canada are in fact valid, even if the couple lived in a state that didn’t allow same-sex couples to marry.  This was seen as necessary by some, because a government lawyer had previously asserted that the marriages were not valid if the spouses lived in a non-recognition state.  That would indeed be confusing: consider what would happen to a couple from Arizona who went to Canada to get married, and then moved to California.  California would ordinarily recognize their marriage, but if it wasn’t valid in the first place, that would create a serious problem.  This legislation would solve that problem.

Second, it appears that the legislation would only grant a “status” divorce, allowing the couples to dissolve their marriage, but would not be allowed to issue orders regarding child or spousal support, and probably not about financial or property claims either.  This is a good thing, as it would probably not be fair to extend substantive Canadian marital law to a couple that had never lived there.  But what should the couple do if they have legal conflicts over money and property?  They would still be left with no court to go to.  That can be a real problem for some couples, but better to have this legislation in effect than not.

Lastly, the proposed legislation imposes some rather steep thresholds in order to obtain a divorce.  Unless both spouses join in the request, the petitioner is supposed to get an order from his or her local court affirming that the other spouse is unwilling or unable to join in the petition.  It isn’t at all clear how a spouse would get such an order, if they live in a state that doesn’t recognize their marriage in the first place.  And, a year of separation would be required before a same-sex divorce could be granted – a requirement that is not imposed on straight divorces.  

No telling when or even if the Canadian parliament will pass the proposed legislation, but it’s good to hear that they are thinking about the problem.  Of course, if every state in the United States started recognizing same-sex marriages, this problem would disappear.  Until then, however, same-sex couples may remain “wedlocked” for some time to come. 

Good News from the Federal Appeals Court on DOMA

October 18, 2012

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.

The Problem of Bigamous Gay Marriages

September 20, 2012

Imagine discovering that your husband is still married to someone else!  In the past that was just a problem for straight couples, but now it is cropping up regularly in the gay community, and the legal issues are even more complex for us.  What constitutes a marriage, and when must there be a divorce in order for someone to re-marry?  With the wide variety of legal options out there (civil union, city domestic partnership, state-registered partnerships), many folks are uncertain as to when they need a legal divorce.  And, if they married in one state but live in a non-recognition state now, it may not be so easy to get a divorce.

This is just the problem that arose in the case of Elia-Warnken v. Elia (2012 WL 302981, July 26, 2012, in the Supreme Judicial Court of Massachusetts).  Todd had signed up for a civil union registration in Vermont with a partner in 2003, but the couple had never formally dissolved their union.  Then, a few years later, Todd re-partnered, and in 2005 he married his new partner, in Massachusetts.  In 2009, Todd filed for divorce from the new partner, and the new partner sought to dismiss the divorce action – on the grounds that they were never really married.  Putting aside the question of why Todd is hopping in and out of marriages so quickly, the legal question was whether the second marriage was void on the grounds of bigamy.

The Massachusetts court ruled – correctly I believe – that the Vermont civil union was equivalent to a marriage under Massachusetts law.  They decided this because of the doctrine of comity (each state should recognize the actions (marriages) of another state), and also, that it would lead to legal chaos to disregard a Vermont civil union.  While the civil union status was technically different than legal marriage, it invoked all the “rights and duties” of marriage and thus was equivalent to a marriage.  Since Massachusetts law deems a Vermont civil union as equivalent to marriage, the bigamy rules apply in this situation, rendering the second marriage void.

Thus, there was no need to “dissolve” the second marriage, nor did either spouse have any legal or property rights arising out of the second marriage.  By the way, Todd’s legal problems are not entirely over — he now has to formally dissolve his first marriage!

Gay Legal Issues in Israel

September 2, 2012

I recently was interviewed on “Out in the Bay” – gay radio at KALW-FM in San Francisco, hosted by Eric Jansen. Click on the link – or paste this URL into your browser – to listen to the show! The show was broadcast on August 23, 2012.

Here is the MP3 link:

Bigamous Marriages in Massachusetts

July 26, 2012

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

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.