New York Law School

Art Leonard Observations

Presumed Parenthood for California Domestic Partners – Did This Issue Have to Be Litigated?

May 18, 2013

Under longstanding legal principles in most American jurisdictions, and definitely in California, when a married woman has a child, her spouse is presumed to be the legal parent of the child.  When California first established legally-recognized domestic partnerships for same-sex couples, this status brought with it only a limited menu of rights and responsibilities.  However, through a few rounds of amendments, the domestic partnership status was expanded to come close to matching the legal rights and responsibilities of spouses.  The last such round of amendments, taking effect on January 1, 2005, provides that “the rights and obligations of registered domestic partners with respect toa  child of either of them shall be the same as those of spouses.”

On October 19, 2006, C.P., a party to a domestic partnership with D.F., filed a petition in San Bernardino County Superior Court seeking a dissolution of the domestic partnership.  C.P. is the biological mother of their child, H., who was born in 2004, shortly after the women registered their domestic partnership.  In the context of the dissolution proceeding, D.F. sought joint custody of H.  C.P. objected to this, asserting that as the biological mother she was entitled to sole legal custody, and that under California law a child could have only one mother.  The trial judge overruled this objection, and awarded joint legal custody and physical custody, ordering as well that D.F. make monthly child support payments to C.P.  C.P. appealed.

The 4th District Court of Appeal ruled on May 16 that C.P.’s argument was inconsistent with California law.  Indeed, since 2005, in Elisa B. v. Superior Court, 37 Cal.4th 108, the California Supreme Court has adopted the view that a child can have two mothers, and that in a scenario similar to that of the C.P.-D.F. situation, California law should be interpreted to recognize presumptive parental statute for a lesbian co-parent of a child conceived within the partnership of the two women and jointly raised by them until they decided to end their relationship.

So one wonders why C.P. was litigating this question of established law?  The answer, apparent from the face of the opinion, see 2013 Westlaw 2099156, was that C.P. was representing herself in appealing the trial judge’s order to the Court of Appeal.  Presumably a competent lawyer would have figured out that the chances of winning this case on appeal, in light of the findings and reasoning of Superior Court Judge John M. Pacheco, were nil.  Indeed, the result is so uncontroversial that the court has designated its decision as unpublished, since it is virtually superfluous. 

So, it’s time to get the word out in California, to the lay public as well as the practicing bar, that when it comes to issues of parental status and rights, registered domestic partners have the same rights as legal spouses.  If that wasn’t totally clear prior to the tumultuous events of 2008/9 — when the California Supreme Court ruled that same-sex couples have  a right to marry under the state constitution, the voters passed Proposition 8 taking that right away, and then the Supreme Court ruled in 2009 that California constitutional law after enactment of Prop 8 required that domestic partnerships carry all the same rights as marriage — it is clear now.

Which raises an interesting question about the opinion by Acting Presiding Justice McKinster.  Why not just declare that D.F.’s right to seek custody is presumptively established by her domestic partnership status at the time the child was born?  Instead, the court goes through the analysis of the Elisa B. case to independently establish D.F.’s parental rights apart from any presumption.  In a footnote, the court suggests that D.F. did not rely on the presumptive parentage doctrine to see her parental rights affirmed by the court.  But these short-cuts and presumptions exist in support of judicial economy, so it would undoubtedly have been better for the court to apply the presumption without engaging in the extended factual analysis, which sends the wrong signal to trial courts in the state. 

Perhaps this will all be rendered superfluous when the U.S. Supreme Court ruled in Hollingsworth v. Perry next month.  One can hope.

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D.C. Officials May Face Liability for Mistreatment of Transgender Detainee

May 15, 2013

A transgender woman complaining of mistreatment by District of Columbia police and federal marshalls after her arrests has convinced a U.S. District Judge that she has pled viable 4th and 5th Amendment complaints against several officers and the D.C. city government.  Ruling on May 13, Judge Ellen Segal Huvelle did dismiss some charges against some defendants, but allowed most of Patti Shaw’s claims to continue to discovery and, perhaps, to trial.

 Shaw states in her complaint that she is a “transgender woman” who “has undergone sex reassignment surgery,” and “had her sex legally changed to female.”  Since her change of sex designation, fully documented, she has been arrested three times.  Each time, both the D.C. policy and federal marshalls refused to treat her as a woman, placing her in confinement in the men’s area of Metro Police Department’s Central Cellblock, putting her in situations where she felt herself to be in danger from male detainees, subjecting her to sexist comments and unwanted touching, including physically intrusive contact strip searches.  These problems continued on occasions when she was remanded to the custody of the U.S Marshall’s Service.

 The events in issue occurred in 2009 and 2012.  Some of the named defendants moved to dismiss claims against them on grounds of qualified immunity.  Under the qualified immunity doctrine, the Supreme Court has established that government officials may not be held liable for unconstitutional conduct unless it was clearly established at the time of their actions that their conduct was unconstitutional.  The defendant corrections officers in this case argued that at the time of the events there were not any federal appellate rulings clearly establishing that their actions regarding a transgender woman detainee would violate the 4th and 5th amendments of the Constitution.

 Judge Huvelle accepted Shaw’s argument that this was the wrong analysis.  Rather, Shaw argued, as she was recognized as a woman by the District of Columbia, the issue was whether the government officials knew or should have known that their treatment of her was inappropriate for a female arrestee, in clear violation of rules and guidelines covering the treatment of female detainees.

 For example, on the 4th Amendment claim, which concerned the physical searches, including strip searches, to which Shaw was subjected, the Marshall Service defendants argued that “at the time of the searches in June 2009, December 2009, and June 2012, the state of the law was not clearly established as to the classification and searches of transgender female detainees.”  “The flaw in this argument,” wrote Judge Huvelle, ” is that it fails to account for the fact that the plaintiff is legally a female and that the USMS employees knew it.  Thus, contrary to what the USMS defendants argue, the searches of plaintiff were ‘cross-gender’ searches.  As the law on cross-gender searches is relevant, the absence of cases directly addressing the constitutional bounds of searches of transgender arrestees is not dispositive.”

 The court also found that the existing cases on “cross-gender” searches — that is, searches where a detainee is subjected to physical search by a law enforcement officer of the opposite sex — did not support the defendants’ position that the searches they made were presumptively “reasonable” for 4th Amendment purposes.  In each of the cases they cited, the search was not as “intrusive” as the searches performed on Shaw.  Indeed, the officers allegedly crossed the permissible line by the way in which they touched her, subjecting her to intimate contact.  “In similar cases,” wrote the judge, “courts have consistently held that, absent emergency circumstances, such a search is unreasonable.”  Another factor cutting against reasonableness was the conduct of these searches in the view of male detainees and corrections officers, rather than in a private setting.  Quoting one from pithy statement by the 9th Circuit, the judge wrote that “the litany of cases over the last thirty years has a recurring theme: cross-gender strip searches in the absence of an emergency violate an inmate’s right under the Fourth Amendment to be free from unreasonable searches.”  Judge Huvelle also pointed out that the Marshall Service’s own regulations “do not permit physical touching of any kind for either an ‘in-custody’ or a ‘strip search.’”

 Concluded the judge, “Based on the alleged facts, which must at this stage be accepted as true, the Court concludes that a reasonable officer would have known that a cross-gender search of a female detainee by male USMS employees that included intimate physical contact, exposure of private body parts, and verbal harassment, all in front of male detainees and male USMS employees in the absence of an emergency, was unreasonable.”

 Shaw’s 5th Amendment claims assert that the conditions of confinement to which she was subjected violate her due process rights by placing her in danger of harm.  “Specifically,” noted Judge Huvelle, “she objects to the USMS’s decision to hold her in a bullpen with male detainees, have her urinate in a cup in front of male detainees, transport her while chained to male detainees, and have her searched by male USMS employees and the MPD’s decision to hold her in a single cell in the male area of the Central Cellblock.”  Judge Huvelle’s analysis here was similar to that in the 4th Amendment claims: the issue was whether treating a female detainee in this way posed a “substantial risk of harm.”  Again, Judge Huvelle rejected the argument that the lack of appellate cases concerning due process claims by transgender detainees was sufficient to protect the defendants from liability based on qualified immunity.

 “Defendants’ arguments against miss the significance of the fact that plaintiff is legally a female and that defendants are alleged to have known that.  Thus, the absence of transgender cases is not itself dispositive. . .  Rather, as with the Fourth Amendment claim, plaintiff’s ‘clearly established’ rights include the same rights as any other female detainee,” and the cases involving treatment of female detainees are not “irrelevant,” as the defendants had argued.   Once again, Judge Huvelle noted that District and federal rules and guidelines for treatment female detainees were allegedly routinely violated in dealing with Shaw.  Although such rules and guidelines do not set a standard of constitutional violations, she conceded, they certainly are relevant to the question whether the defendants should enjoy immunity because they would not know that their conduct was improper.

 The court considered various other subsidiary issues and determined that certain claims against certain defendants should be dismissed, however in the end substantial federal constitutional claims remain against several District and federal officers, as well as the District of Columbia as a municipal defendant.  Shaw is represented by Jeffrey Louis Light, a D.C. solo practitioner.  The defendants are represented by attorneys from the U.S. Attorney for D.C. and the Justice Department.  In light of this ruling on dismissal motions, a settlement of Shaw’s claims would seem advisable, although, of course, if the case continues, Shaw will need to provide proof her factual allegations in order to win relief from the court.

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Hong Kong’s Highest Appeal Court Says Transgender Woman Can Marry Her Boyfriend

Overruling the Registrar of Marriages in Hong Kong, who refused to issue a marriage license to a “post-operative” transgender woman who sought to marry her male partner, the Court of Final Appeal of the Hong Kong Special Administrative Region ruled on May 13 that the woman, identified as W in court papers, was entitled to the license, although the majority of the court was not unanimous in its reasoning.  Ironically, such a right for a transgender woman to marry in her preferred gender is already recognized in mainland China, according to the court.  The Registrar’s position reflects Hong Kong’s previous status as a British possession in which the courts continue to follow British legal precedents.  In the U.K., such marriages are now legal by virtue of legislation enforcing a ruling by the European Court of Human Rights, but former British colonies may continue to enforce outdated British court rulings on the subject.

For the majority of the court, the ruling here was premised on the fact that W has gone through the entire cycle of gender transition, including surgery necessary to make it possible for her to engage in sexual intercourse with her male partner although, of course, such intercourse cannot lead to pregnancy.  The court noted that the ability to procreate through sexual intercourse is not a necessary feature of marriage in the modern state, in which people who are incapable of conceiving due to age or medical conditions are fully able to marry.  Indeed, the court majority was not even willing to hold that the ability to consummate the marriage through sexual intercourse was a necessary prerequisite.  Focusing on the facts of the case before it, the court held that surely W qualified, and that it would be up to the Hong Kong legislature to respond to the decision with a statute that develops the necessary criteria to govern in other cases.

The major different between the majority of the court and the concurring judge was over whether this case required resort to constitutional interpretation or could be resolved through statutory interpretation.  The marriage laws in Hong Kong unequivocally require that marriage be between a man and a woman, so the question is whether W can be deemed a woman for purposes of these laws.  Hong Kong has already gone a long way towards this conclusion by authorizing the issuance of new identity papers and passports designating somebody as legally a woman after gender transition, but the jurisdiction does not allow for changes on birth certificates, taking the position that such certificates are a historical record of gender as determined at birth.

The Registrar, in denying the license, relied on old British precedents holding that a person’s sex for purposes of the right to marry is the sex identified at birth.  As a matter of normal statutory interpretation, the majority of the Court held that this could not be questioned, and it was necessary to consider constitutional arguments over equality, especially as the Hong Kong legislature had followed the lead of the British Parliament in1971 when that body codified the old judicial precedent of Corbett v. Corbett, a 1970 decision by the Law Committee of the House of Lords.  Hong Kong had adopted amendments to its marriage law incorporating the same view.

The court looked to Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights.  Article 37 provides: “The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”  Article 19(2) provides: “The right of men and women of marriageable age to marry and to found a family shall be recognized.” 

The court concluded that under the Corbett ruling and the Registrar’s decision implementing it in W’s case, W would, in effect, be precluded from the right to marriage.  Having gone through a total gender transition, including anatomical alteration, she is physically a woman who desires to marry a man, and her right to marry as a woman is thus totally denied.  She can’t marry another woman even if she wanted to, because Hong Kong law makes marriage available only to different-sex couples, and the court emphasized that this case did not, in its view, involve the question of same-sex marriage, since W is legally recognized as a woman.  Since Hong Kong recognizes W in law as a woman, the court found that the only way to effectuate her right to marry is to declare the existing statute unconstitutional insofar as it would preclude her from marrying.

However, the majority recognized the administrative difficulties this might create due to the different degrees of transition through which any particular transgender woman might have gone when she seeks a marriage license.  The court pointed out that the U.K. has established through legislation a detailed procedure for determining gender identity as a response to the European Court’s ruling that transgender individuals should be not deprived of their right under the European Convention to marry and form a family.  Under the British model, surgical transition is necessary for a transgender woman to be able to marry a man.  While the court ordered that W be granted the license she is seeking, it stayed its ruling as to any other persons for up to a year to give the legislature time to enact the necessary provisions through which a determination can be made in any particular case whether the transgender women seeking a marriage license is qualified to receive one.  The court strongly hinted that a law patterned on the U.K. measure would be appropriate.  Although of course the ruling is not binding on the Hong Kong court, the court paid much attention to the European Court of Human Rights’ Goodwin decision, which had prompted the U.K. to adopt its Gender Recognition Act.

The concurring judge, Justice Bokhary, differed with the majority on the need to reach the constitutional question, opining that the court could, through “remedial interpretation,” bring the existing law up-to-date consistent with current understandings of gender identity and the ability of modern surgery to alter a transgender woman so as to justify a legal sex designation change.   Dissenting, Justice  Chan contended that society’s views on these matters had not evolved so far in Hong Kong as they had in Europe, and that the question of marriage should be dealt with legislatively, not through a constitutional ruling of the court.

W was quoted in the press as hailing the decision but insisting that it was just one step in a larger struggle to achieve equal rights for transgender individuals in Hong Kong.   Chief Justice Ma and Justice Ribeiro were identified as joint authors of the majority decision, to which Lord Hoffmann signified concurrence.  Justice Chan dissented.  Justice Bokhary concurred in the result.

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NY Family Court Uses Judicial Estoppel In Lesbian Co-Parent Custody Case

Suffolk County, N.Y., Family Court Judge Theresa Whelan used the doctrine of judicial estoppel to find that a lesbian mother who had previously acknowledged her former partner’s parental status when seeking a support order from the court, was precluded from denying the partner’s parental status in opposition to a custody/visitation petition.  Judge Whelan’s April 2, 2013, ruling was published in the New York Law Journal on May 10.

The parties, identified as Estrellita A. and Jennifer D., registered as domestic partners in 2007.  They decided to have a child and chose a sperm donor through North Shore University Hospital.  Jennifer became pregnant through donor insemination and their child was born on November 23, 2008.  Because of the donor conception, no father was identified on the birth certificate, and Jennifer was identified as the sole parent. Although the women had discussed having Estrellita adopt their daughter, no adoption petition was filed.  In September 2012, the women stopped living toether, and on October 24, 2012, Jennifer filed a petition with the Family Court seeking child support payments from Estrellita. 

Jennifer’s petition stated that she and Estrellita had a child in common, and asked the court to rule upon whether Estrellita should be delcared a parent for purposes of establishing a child support order.  After a hearing, the court found that Estrellita was a parent to the child and charged her with a duty to pay child support.  Judge Whelan issued that order on January 16, 2013.  Meanwhile, Estrellita filed her own petition on January 10, seeking custody of the child.  In her petition, Estrellita contended that it would be in the child’s best interest that she have custody as ”she is better suited to foster a relationship between the child and her biological mother,” according to Judge Whelan’s summary of the petition.  After  Judge Whelan’s support order was issued, Estrellita amended her petition to refer to the finding that she is a parent of the child.  On January 30, Jennifer filed a motion to dismiss the Custod/Visitation Petition, arguing that as a matter of New York child custody law, Estrellita is a “legal stranger” under Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), and thus lacks standing to seek custody.

In the Alison D. case, the New York Court of Appeals construed the domestic relations law to limit the right to seek custody or visitation to a person who is either a biological or adoptive parent of a child.  This, the court asserted, would meet the intent of the legislature that adopted the statute.  Reflecting this case law, Judge Whelan wrote, “In the realm of same-sex parents, the Court of Appeals has consistently ruled that absent an adoption, the non-biological partner is not a parent under Domestic Relations Law Sec. 70,” the provision authoring custody/visitation petitions. 

Jennifer argued that under this case law, Estrellita as precluded from seeking custody or visitation.  “If the facts present here were the same as in the cases cited by respondent,” wrote the judge, “the Court would agree.  Of course, the Family Court is mandated to apply the rulings of the Court of Appeals.  However, respondent omits critical facts from her argument and it is these facts that defeat her argument.  Respondent, in her own child support petition alleges that she and the petitioner herein have ‘a child in common’.  Further she requested and received an estoppel hearing.  At that hearing respondent testified, among other things, that petitioner not only performed as a parernt, she was in fact a parent.  The court relying on this testimony issued an order adjudicating petititoner to be a parent and referred the matter to the support magistrate for the entry of an appropriate child support order.  Now, in a complete reversal, and in an effort to preclude petitioner from having her day in court, respondent now claims that petitioner has no standing to bring a custody/visitation proceeding because petitioner is not a parent.  Colloquially, this is known as ‘having your cake and easting it too.’  Judicially, it is referred to as ‘inconsistent positions’ which this court will not countenance.”

Judge Whelan pointed out that a court can resort to the doctrine of judicial estoppel to prevent a party from taking such an inconsistent position.  “Having petitioned this court to recognize the petitioner herein as a parent, having testified that petitioner is in fact a parent and having prevailed in that matter, the respondent is judicially estopped in this custody/visitation proceeding from asserting that petitioner is not a parent.”  Judge Whelan observed that this basis of decision was distinct from “equitable estoppel,” which the Court of Appeals had ruled out in the Alison D. case as a basis for finding custody standing, since the ruling was based on Jennifer’s own prior conduct in court proceedings basically asserting the fact of Estrellita’s parenthood, under oath, in order to get the support order.

Taking note of case law supporting the “important liberty interest of the biological parent to exercise control over who associates with their child,” Judge Whelan concluded: “This biological parent deliberately sought to involve her former partner in her child’s life at least until her financial majority.”

Interestingly, Judge Whelan did not mention the parties’ domestic partnership in support of her decision.  Perhaps this is because domestic partnership in New York is a creature of local law (county or municipal) and so cannot create rights under state law.  Had Estrellita and Jennifer been legally married when their child was born, the result would be different.   Indeed, the Court of Appeals has even recognized an out-of-state civil union as being relevant to an individual’s standing to petition for custody of a child born after the civil union was contracted.  And, under the New York Marriage Equality Law enacted in 2011, of course, a child born to a married woman will be presumptively the legal child of her same-sex spouse.

This, of course, is not a ruling on the merits of the Custody/Visitation petition, but merely a ruling that Estrellita may proceed to a hearing on the merits in her attempt to prove that it would serve the best interest of the child to award custody to her.  Estrellita is represented by the firm of Gervase & Mintz, Garden City.  Jennifer is represented by Margaret Schaefler, Central Islip.  Attorney appointed to represent the interest of the child is Jennifer Marin, Legal Aid Society of Suffolk, Central Islip.    Ms. Marin had argued to the court an alternative theory for allowing Estrellita to petition: the “extraordinary circumstances” doctrine under which a court will a “legal stranger” to seek custody.  However, this constellation of facts has become too common — and is too much like the facts in Alison D. — to be a convincing instance of “extraordinary circumstances,” at least in the view of Judge Whelan.

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Iowa Supreme Court Rules for Lesbian Couple in Birth Certificate Dispute

May 6, 2013

The Iowa Supreme Court ruled on May 3 that a state law providing that the husband of a married woman who gives birth to a child is the presumptive father is unconstitutional to the extent that it doesn’t also provide such a presumption of parentage for married lesbian couples.  Although the court rejected a lower court ruling interpreting the statute to lead to such a result, the court affirmed the lower court using its alternative constitutional ruling.  The ruling in Gartner v. Iowa Department of Public Health also evidences the changes in the court due to the defeat of three members in a retention election the year after the court ruled in favor of same-sex marriage.

Melissa and Heather Gartner have been a couple since December 2003.  They held a commitment ceremony in 2006 and decided to have children together, with Heather becoming pregnant through anonymous donor insemination.  When their child was born, they went through a second-parent adoption ceremony, obtaining a substitute birth certificate showing both women as parents of the child. 

After Heather became pregnant a second time using the same anonymous donor, the unanimous Iowa Supreme Court ruled in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), that same-sex couples are entitled to marry.  Shortly thereafter but before their second child was born, Melissa and Heather were married.  After the birth of their child, they applied for a birth certificate showing both women as parents, on the assumption that a child born to a married woman would also be deemed the child of the mother’s spouse.  But the State Health Department issued a certificate listing only one parent, Heather, and the Department insisted that if Melissa wanted to be listed on the birth certificate, she would have to go through an adoption proceeding.

Polk County District Judge Eliza J. Ovrom ruled in favor of the Gartners’ claim that both women should be listed on the birth certificate, construing state law to require it.  She was interpreting Iowa Code sec. 144.13(2), which provide that if a “mother was married at the time of conception, birth, or at any time during the period between conception and birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered by the department.”  Relying on another statute that provides that state laws should be interpreted as applying to both men and women when only one gender was used in the statute, and in light of the Iowa Supreme Court’s ruling that same-sex couples were entitled to the same marital rights as different-sex couples, Judge Ovrom found that the statute should be construed in a gender neutral manner, requiring the listing of the birth mother’s spouse regardless of sex.  The state appealed.

Writing for the Supreme Court, Justice David Wiggins found that the trial court’s interpretation was inconsistent with the statutory language and the law.  While the Iowa Code does provide for gender neutral interpretation when a statute refers to a particular gender, he found, this principle of gender neutral interpretation is not used when a statute refers to both genders.  The parental presumption statute refers to both the mother and the father, each having a distinct role, so Justice Wiggins asserted that these nouns could not be given gender-neutral meanings in construing the statute.

Thus, the Supreme Court needed to address an issue that the trial court had avoided: whether the statute is constitutional.  And the court found that it was not, applying a straightforward equal protection analysis.  Noting that the state was not asking the court to reconsider its same-sex marriage decision in this case, Justice Wiggins noted that in Varnum the court had ruled that cases of discrimination on account of sexual orientation are subject to heightened scrutiny under Iowa’s constitution.  This put the burden on the state “to show the statutory classification is substantially related to an important governmental objective,” because the statute was treating like classes differently.  Under the statute, when a married woman bears a child through anonymous donor insemination, her husband is listed as the father on the birth certificate, but her wife is not listed as the mother.  (Indeed, the parents are not required by law to disclose to the state that whether the husband is the biological father of the child, as the statute is indifferent to this  unless the biological father comes forward to rebut the presumption.)  Married lesbians and married heterosexual women who become pregnant through donor insemination are similarly situated, as are their spouses.

The state argued some purported state interests to justify differential treatment, but the court made mincemeat out of them.  The state’s three “interests” were “accuracy of birth certificates, efficiency and effectiveness of government administration, and the determination of paternity.” 

As to the first, the court pointed out that the current system “does not always accurately identify the biological father,” since a married woman who becomes pregnant through donor insemination has no obligation to reveal that fact to the state.  Her husband is presumed to be the father and will be listed as such.  “In that situation,” wrote Wiggins, “the Department is not aware the couple conceived the child by an anonymous sperm donor.”  Requiring a lesbian mother’s spouse to adopt does not provide for any more accuracy on birth certificates in terms of identifying the child’s lawful parents.

Turning to the issue of administrative efficiency and effectiveness, the court opined that requiring married lesbian co-parents to go through adoption procedures is less efficient, not more efficient, than just automatically listing the legal spouse on the certificate.  As to the part of the provision involving rebuttal of the presumption, the court wrote that it is rare for a sperm donor to come forward to rebut the presumption of paternity, and of course it never happens with anonymous donors, who are not informed about the use of their sperm.

As to establishing paternity, the court said, “When a lesbian couple is married, it is just as important to establish who is financially responsible for the child and the legal rights of the nonbirthing spouse.  It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children.  By naming the nonbirthing spouse on the birth certificate of a married lesbian couple’s child, the child is ensured support from that parent and the parent establishes fundamental legal rights at the moment of birth.  Therefore, the only explanation for not listing the nonbirthing lesbian spouse on the birth certificate is stereotype or prejudice.”  Indeed, the term “stereotype or prejudice” occurred several times in the opinion, as the court concluded that each of the state’s proffered reasons fails and the Department’s refusal to list Melissa on the birth certificate was due to “stereotype or prejudice.”

The trial court had ordered the Department to issue the requested birth certificate to the Gartners, but had stayed its order regarding any other lesbian couples.  In affirming the trial court on constitutional grounds, the court also lifted that stay.

Although there was no dissent, the three justices who were appointed in 2011 in place of the three who were denied retention by the voters in 2010 did not join the court’s opinion.  One was noted as not participating in this case.  The other two, in a brief “special concurrence,” observing that the state “accepts the decision in Varnum v. Brien for purposes of this appeal,” agreed that “if Varnum is the law, then Iowa Code section 144.13(2) cannot be constitutionally applied to deny Melissa Gartner’s request to be listed as parent on the birth certificate of the child delivered by her same-sex spouse.”  Not to put too fine a point on it, these justices are leery about appearing to accept the validity of the Varnum decision, although the successful retention last fall of another member of the Varnum majority should have put their fears to rest.

Lambda Legal represents the Gartners in their quest for a proper birth certificate for their second child, with attorneys from Lambda’s Chicago office, Camilla B. Taylor and Kenneth D. Upton, Jr., joined by local counsel Sharon K. Malheiro of Davis, Brown, Koehn, Shors & Roberts P.C. of Des Moines.  Amicus support came from the National Association of Social Workers, Iowa Chapter, the ACLU, and an amicus on behalf of family law professors by attorneys from National Center for Lesbian Rights.  Of course, the anti-gay Iowa Family Policy Center weighted in on behalf of the Department of Public Health.

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Early Music Weekend – Machaut Mass & Songs for a Parisian Spring

May 5, 2013

I found myself in Ithaca, N.Y., for a meeting at Cornell Saturday afternoon, so checked out the bulletin board in the Music Department building to discover that a student group was presenting a performance last night of Guillaume de Machaut’s Messe de Nostre Dame, the earliest complete mass setting to survive (from the 14th century) and one of my favorite pieces of “early music.”  I hastened to attend, of course.  Graduate student Lorraine Fitzmaurice put together her own little “Cornell Scholar Cantorum” to present this piece, and it was a delightful concert.   She recruited a dozen students (some undergrads, some graduate students) and they learned the piece quite well, presenting it with chants interspersed between the movements.  Before beginning the performance, she taught the audience how to chant the Salve, Regina hymn that she selected as postlude to the mass.  At the end of the mass, the audience rose and we chanted the hymn together with the chorus.  [Well, that's one way to have the audience on their feet when they start clapping at the end! :) )]   Altogether a special event.

Upon arriving back in the NYC early this afternoon, I found myself with sufficient time to attend the last Five Boroughs Music Festival presentation of the season, a collaboration with Parthenia (viol consort) and Blue Heron (Boston-based vocal ensemble) in “Songs for a Parisian Spring.”   The concert was at the Church of St. Luke in the Fields in Greenwich Village.  These “songs” were actually chorus works by Renaissance composers – Claude Le Jeune and Jan Pieterszoon Sweelinck being much in evidence.  The two ensembles were joined by guest-artists Emily Walhout (viol) and Henk Heijink (lute), and Blue Heron director Scott Metcalfe had his violin along as well.  The program was artfully constructed to alternate vocal and instrumental segments and provide a conspectus of the kind of music composed for home use during the 1500-1600′s.  It was all very well done, with great spirit, fine intonation, and some good humor in a few particularly wry madrigals by Le Jeune toward the end of the program.  As a “psalms” collector, I was especially gratified to hear several selections of psalms based on the Genevan Psalter (a prominent French translation by Clement Marot).

Five Boroughs Music Festival has now completed six season with distinction and I hope they will find the support to keep going, as these concerts distributed over all five boroughs of New York have provided an excellent showcase for many young performers (and composers, with last season devoted to the Five Boroughs Songbook of thirty commissioned pieces, which are available on a recording).  Kudos to 5BMF Artistic Director Jesse Blumberg and Executive Director Donna Breitzer!

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Cultural Diary – March 23 through May 1, 2013 – A Busy Season in NYC

May 2, 2013

Between work, concerts and theater, I’ve been so busy that I’ve generally avoided blogging about the things I’ve been attending over the past five weeks or so.  This is a catch-up posting, briefly mentioning that things I haven’t had time to write about in longer posts.  This post details the musical events (including opera).  In another, I’ll address the theatrical ones.

Beginning at the beginning, with Richard Goode, and – surprise – ending with him as well, because the first concert I’ll note included his performance of Robert Schumann’s Piano Concerto with Orpheus Chamber Orchestra at Carnegie Hall on March 23, and the last is his solo recital last night in the same location, devoted to late piano music by Ludwig van Beethoven.

The Schumann Concerto was excellent, in the best “Goode” manner – solid, mainstream tempi, beautiful piano sound, careful but energetic navigation of the rhythmically difficult finale.  Indeed, it is hard to understand how a pianist and orchestra can get through that finale without a conductor at a reasonably fast tempo (it is marked “Allegro vivace”), because of the syncopation in the score that must make coordination difficult unless everybody figures out how to ignore the bar lines and just go with the flow…  They obviously figured that out here, and the effusive ovation of the audience earned a more bountiful encore than usual: the “Adagio” second movement from Wolfgang Amadeus Mozart’s Piano Concerto No. 17 in G, K. 453!   For the first half of the program, Orpheus gave us a fleet, songful run through Mendelssohn’s Symphony No. 4 in A, Op. 90, the “Italian” symphony.

The next afternoon, I was in for another pianistic treat as Yevgeny Sudbin presented a brilliant recital at Town Hall under the auspices of Peoples’ Symphony Concerts.  Sudbin has been a favorite since I acquired his first solo recording on the BIS label of sonatas by Domenico Scarlatti.  His BIS albums are cherishable as much for his revelatory program notes as for his playing.  This is a man who thinks deeply about everything he plays, and always has cogent reasons for his departures from tradition — such as his decision to record the original version of Rachmaninoff’s 4th Piano Concerto rather than the composer’s revision.   He presented a mixed recital on March 24, beginning with four Scarlatti sonatas, continuing with Frederic Chopin’s Ballade No. 3, Op. 47, and completing the first half with Claude Debussy’s L’isle joyeuse.  After intermission, we had Franz Liszt — Funerailles from the Harmonies poetiques et religieuses, and Harmonies du soir from the Transcendental Etudes.  The final programmed piece was Alexander Scriabin’s Sonata No. 5, Op. 53.  Encores included more Scarlatti, some Rachmaninoff, and Sudbin’s paraphrase on Chopin’s Minute Waltz.  Some people find Sudbin too cerebral or too dry, but I find him wonderfully clear-eyed and totally engaged in whatever he is playing.  I enjoyed every moment of this concert, and could have listened to him play even more encores!  He is in the midst of recording a Beethoven Concerto cycle with Vanska and the Minnesota Orchestra, and every one will be worth hearing, but his newest recording, just out, of Rachmaninoff’s First Piano Concerto with Lan Shui and the Singapore Symphony is superb in every way, and Shui’s urgent traversal of the rarely performed Symphony No. 1 must be heard to be believed.  He makes more sense out of this piece than anyone I’ve heard.

On April 17, I experienced a feeling of deja vu when I opened the program book in Carnegie Hall for the concert by Christian Thielemann and the Staatskapelle Dresden: An all-Johannes Brahms program: Academic Festival Overture, Violin Concerto (with Lisa Batiashvili), and Symphony No. 4.  Deja vu because this is exactly the program I heard in the fall of 1974 when Klaus Tennstedt made his conducting debut with the Boston Symphony Orchestra!  Exactly the same!!  And what a difference.  Tennstedt made the BSO sound like a rich, luxuriant central European big-city orchestra.  By contrast, Thielemann made his group — a central European big-city orchestra — sound nothing like that at all.  The sound was much more tightly defined, the strings less luxuriant, and phrasing more clipped, less songful…  At every turn, this Dresdners sounded less central European than that long-ago evening with the BSO.  Of course, memory can play tricks, and perhaps my memory has enlarged the differences.  In any event, Thielemann and his band were definitely worth hearing, especially in the Symphony, which got an excellent performance, particularly in the intense and dramatic finale.  The Academic Festival was big-boned and joyous, the Violin Concerto sweetly songful with Batiashvili a stronger soloist than was Miriam Fried in my recollection of that long-ago Boston affair.   Thielemann has a sense of humor as well: For an encore they played the Prelude to Act III of Lohengrin by Richard Wagner.  Only a conductor with a real sense of humor would cap an all-Brahms program with a Wagner encore.

On April 19 I enjoyed the rare treat of a New York Philharmonic program devoted entirely to American music – almost unheard of in these parts.  Alan Gilbert led the world premiere of Christopher Rouse’s “Prospero’s Rooms” and was joined by Joshua Bell for Leonard Bernstein’s Serenade (after Plato’s Symposium) for Violin, String Orchestra, Harp and Percussion.  After intermission, we had Charles Ives’s Symphony NO. 4, with Eric Huebner the prominent piano soloist, members of the New York Choral Consortium intoning the opening hymn and the worldless choral lines in the finale, and Case Scaglione occasionally standing up to co-conduct during the most rhythmically complex passages of the second and fourth movements.  This was a wonderful concert!!  I always experience some nostalgia for my college days when I hear works by composers who were among the musical composition graduate students at Cornell when I was there as an undergraduate.  Earlier this season, it was Steve Stuckey, and at this concert, Christopher Rouse.  His piece was inspired by Edgar Allen Poe’s “The Masque of the Red Death,” and paints a vivid, moody picture with his usual extreme dynamic contrasts.  It was much fun to hear the first time through, and I hope a recording eventuates, since I’d like to get to know this one better.  The Berstein is always a pleasure to hear, and Bell knows how to dramatize the music effectively.  I’ve yet to hear a totally convincing concert performance of the Ives — I’ll always have the Stokowski/ASO world premiere version in my head from listening to that old LP so many times and trying to figure out what was going on in the even-numbered movements.  Gilbert has the measure of the piece, and actually made an even richer thing out of the third-movement fugue than Stokowski.  But nobody exceeds the old wizard in finding the transcendental pitch of the last movement.  This performance left me engaged, but not quite exalted.

Then to NYC Opera at City Center for Gioachino Rossini’s “Moses in Egypt” in a rather minimalist production relying on projections rather than sets.  I thought the cast was better than the show in many respects, and David Salsbery Fry, who stood in on short notice for the indisposed David Cushing as Moses was excellent.  This is not an opera that we are going to hear at the Metropolitan any time soon, so City Opera does a distinct service in giving it a short revival for our delectation.  But it is clear why it is not in the standard repertory.  Rossini in a serious mood does not entertain as well as Rossini in a more frivolous mood – think Barber of Seville – and there are only a handful of really memorable moments in the score. 

As the season neared its end, I managed to squeeze in a last visit on March 31 to the ongoing Schubert & Co. lieder project.  I wish I could have attended more of these, because the young artist performing at these concerts — all volunteers — have been superb, and the opportunity to hear so much rarely, if ever, performed music is unlikely to recur soon.  Schubert wrote more than 500 songs, and the goal of Lachlan Glen and Jonathan Ware, pianists and co-Artistic Directors of this series, was to present all of them over the course of the season.  By March 31, they had really and truly gotten the hang of the challenging acoustics at Central Presbyterian Church, producing a fine balance of voice and piano, and they assembled a terrific cast to explore settings of verses by Ruckert, Holty, Schreiber and Pyrker — not all deathless poets, but usually deathless music.  Singers for the evening were Simone Easthope (soprano), Michael Kelly (baritone), Alexander Lewis (tenor), and Jazimina MacNeil (mezzo-soprano), and Glen and Ware shared collaborative honors with pianist Ken Noda, who partnered with Lewis for his extended set of eight songs in the middle of the concert.  Lewis was a new discovery for me, very exciting, brilliant dramatization of the texts, large handsome voice, and a very attractive manner.  But all the performers were great, and I so regret I’ll be out of town this weekend and so will miss the big finale of concerts on Friday night, Saturday afternoon and Saturday evening – Schwanengesang, of course, to wind things up, with baritone Edward Parks and pianist Lachlan Glen, whose growth as a collaborate keyboard artist over the course of this season has been extraordinary!  Congratulations to this enterprising crew!

It was back to the New York Philharmonic for me on April 3, for a collaboration with pianist Andras Schiff in Bach keyboard concerti (Nos. 3 and 5) and orchestral music by Mendelssohn and Schumann.  I find Schiff’s approach to the keyboard concerti a bit heavy-handed compared to Murray Perahia, whose recording of this repertory I love.  Also, he’s a bit more straight-laced than David Fray, whose recording and DVD of this repertory are most entertaining.  But Schiff’s approach has it’s place, too, bringing lots of beefy good cheer to the fast movements — played at a more moderate pace than the competition, it must be said — and much poetry to the slow ones.  The early Mendelssohn string sinfonia (the composer was 14 when he wrote it, and not yet the mature musical thinker he would become in just a few short years) was a bit of a throw-away on this program, but the best came last.  Schiff’s conducting of the Schumann 4th Symphony was superb in every respect.  I would love to hear him conduct the entire cycle.

For an interesting break, I went up to Miller Theatre at Columbia University on April 6 to hear baroque ensemble “Les Delices” play a program they called “The Age of Indulgence,” a collection of instrumental music by French baroque composers: Philidor, Rameau, Mondonville, Duphly, and Dauvergne.  One might think that an entire evening of French baroque chamber pieces would blend into an indistinguishable blur, but not so in the hands of these excellent musicians – Debra Nagy, Julie Andrijeski, Scott Metcalfe, Emily Walhout and Michael Sponseller.  Everything was richly characterized, contrasts were pointed up, and teh evening ended on a sprightly note with Dauvergne, a composer rarely encountered.  One could easily hear why Rameau is the one of these still best remembered today, as his Concert No. 3 from the Pieces de clavecin en concert was the most inspired piece of the evening, but everything heard on this program was worth hearing and in the context provided an interesting display of the variety possible within a very narrow range of stylistic permissibility.

On April 7, back to Town Hall for PSC’s presentation of the Johannes String Quartet, playing Brahms (naturally!) No. 1, Op. 51, No. 1, Dutilleux’s “Ainsi la nuit”, and then Brahms No. 3, Op. 67.  The Johannes are well-named. They do know how to play the music of their namesake composer with grace, poise and insight.  That said, I like the rather more assertive performances on the Emerson Quartet’s recording, but the Johannes’ way was no less valid.  The Dutielleux is a startlingly modern effusion of the mid-1970s, treasurable more for sound effects than for melody or motivic development. 

PSC provided a very different string quartet experience with the Quatour Ebene, performing at the High School of Fashion Industries (as the renovation of Washington Irving High School’s auditorium drags on and on).  I am a big fan of Quatour Ebene, four young Frenchmen who play with incredible subtlety.  Perhaps they could have been a bit more forceful in Mozart’s Quartet K. 465, the “dissonant” quartet, but after that was out of the way, the evening was sheer bliss.  Their performance of Schubert’s Quartet D. 804, called the “Rosamunde” because its variations movement uses a theme from the composer’s incidental music for the play of that name, was incredible. That’s the only word for it. They found a degree of mystery, pathos and tension throughout the piece that was unrivalled in my experience.  At the end of each movement, there was a collective feeling of “wow!” from the audience.  Everybody was buzzing during intermission.  And then the Mendelssohn, ending with an “allegro molto” supercharged to the finish line!!  (I promptly ordered a copy of their new recording, which includes the Mendelssohn Op.80 – just arrived and not heard yet, so I hope it adequately recreates the experience!  For encores they played some selections from their “Fiction” album, short pieces based on popular songs, including “Some Day My Prince Will Come” from Disney’s Snow White and the Seven Dwarfs.  You haven’t really heard it until you hear what these guys can do with it.  They even sing some of it.  (I already knew they could sing… Their brief vocal performance with Philippe Jaroussky on his new DVD recital release is worth the price of admission.)  Can’t get enough of the Ebene.  This was probably the most memorable concert I’ll mention in this diary.

On April 21 I was up at Symphony Space for the last of this season’s Classics Declassified programs by the American Symphony Orchestra.  Leon Botstein selected music from Lohengrin and Tristan and Isolde, marking the Wagner bicentennial year.  But I thought this program was a rare misfire from Botstein and the orchestra.  His talk verged on incoherence, disorganized, rambling, and full of too-long orchestral examples with no real follow-up to tie up his pre-playing propositions.  The performances themselves sounded underrehearsed and uninspired, with the possible exception of the Lohengrin Prelude to Act III, although I still had the triumphal sound of Thieleman and the Dresdners in my ears, so it wasn’t a fair comparison.

On April 25 it was back to City Center for Jacques Offenbach’s La Perichole – or what was purported to be La Perichole – presented by New York City Opera.  This was one of Christopher Alden’s re-imaginings of a classic musical theater piece, and I thought he managed to trash the piece pretty well.  The singing and acting was fine, but the staging was bizarre, reducing the French light opera tradition to slapstick and pratfalls.  I was not amused, just aghast.  I give the cast credit for gamely going along with the shenanigans and doing their best, but still…. 

For a complete contrast April 28 I journeyed to the East Village for the Greenwich Village Orchestra’s Wagner program, conducted by Pierre Vallet.  This is an amateur neighborhood orchestra with high goals, and they set themselves quite a challenge with this program.  Indeed, some of this music would put the most exalted professionals to the test, and it was to the credit of orchestra and conductor that they got through the program with honor. (Indeed, their playing of the Prelude and Leibestod bested the ASO from a week early, IMHO, although they had the advantage of Christine Goerke singing the Liebestod while the ASO went it alone.)  Madame Goerke, a fine Wagnerian soprano, also gave us two arias from Tannhauser and Senta’s Ballade from Dutchman.  Jesse Blumberg, in splendid voice, sang Wolfram’s Hymn to the Evening Star from Tannhauser as well.  This was an afternoon well spent.

On April 30 I attended the last NYFOSNext program of the season.  This is a series mounted by the New York Festival of Song to showcase music by living composers in the intimate surroundings of the DiMenna Center on West  37th Street.  Each program is “curated” by a composer, who assembles a program from the music of his or her friends and acquaintances calling upon a variety of talented young performers.  For this program Mohammed Fairouz brought together fellow composers Daniel Bernard Roumain, Paola Prestini and Huang Ruo to provide a very diverse evening of song.  I have been a Fairouz fan since hearing his contribution to the 5 Boroughs Songbook, and it was a delight to hear three offerings from him: Tahwidah and For Victims (both on the new Naxos CD of his chamber works) and The Poet Declares His Renown.  I would say that the strongest of these is For Victims, a Holocaust remembrance piece that was strikingly sung by baritone Adrian Rosas with the Catalyst String Quartet.  (The equally striking performance on the recording is by David Kravitz and the Borromeo Quartet.)  Other excellent singers for the evening included Kristina Bachrach and Fang Tao Jiang (sopranos) and Samuel Levine (tenor).  I enjoyed hearing so much new music, so well and energetically performed. Thanks to NYFOS for putting on this series!!

Finally, coming full circle, last nights recital at Carnegie Hall by Richard Goode.  Goode chose to play the last three Beethoven piano sonatas, Opp. 109, 110 and 111, with six bagatelles from Op. 119 to introduce the second half of the program.  I had the strange feeling of duality in this program.  The first half struck me as a bit sleepy, even boring.  Maybe it was me.  I don’t know. But I found Goode’s approach to Op. 109 and Op. 110 to be so restrained, flowing, understated, as to pass by uneventfully, which one doesn’t expect with Beethoven. But something really seemed to charge him up during the intermission, because the second half was Beethoven on steroids.  The Bagatelles were charming and sparkling, the firsrt movement of Op. 111 ferociously dramatic, and the final movement, the extended variations, a symphony of contrasts culminating in that heavenly, quiet ending.  He refused to play an encore, despite the rapturous audience response, and I fully agreed – one can’t play anything after Op. 111.  It’s a natural concert closer, puts a period to things, and shouldn’t be followed by some trifle.

Thus ends a prolonged period of season-ending musical activities.  (But not entirely, of course, since the season has weeks to run, and because the Philharmonic will be away on tour for part of that time, the season is really extended to the end of June, so more to come…)

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Orpheus Chamber Orchestra in Gabriel Kahane Premiere

April 28, 2013

I was blessed to be present in Carnegie Hall this evening for the first New York performance of Gabriel Kahane’s absolutely gorgeous song cycle, “Gabriel’s Guide to the 48 States,” performed by the composer with the Orpheus Chamber Orchestra.  This was the final OCO Carnegie subscription concert of the season, and it really ended on a high note.  Before Kahane’s piece, the ensemble performed the string orchestra version of Arnold Schoenberg’s Verklaerte Nacht with silken grace.

Kahane, composer-in-residence with OCO this year, was commissioned to write a season-ending work.  He selected passages from the American Guide Series, a set of state tour books commissioned by the Depression-era Works Progress Administration as a “make work” project for unemployed writers.  The resulting books provide a panoramic accounting of the United States in the New Deal period, struggling to regain its economic and social footing, bursting with new-found energy and hopeful optimism, but still struggling.  In addition to these texts, he also used some interviews that were conducted by the writers, as well as some commentary about the project by WPA’s director, Harry Hopkins.

The result is an eleven-section song cycle in varying styles creating a musical panorama to reflect the verbal panorama.  In addition, whether consciously or not, Kahane’s musical settings reflect the influences of the early-20th-century American symphonists whose music defined an Americana sound at that time: Aaron Copland, Roy Harris, William Schuman, Walter Piston, Virgil Thompson.  I even heard bits that sounded like Charles Ives.  But none of this was quotation, and none of its was heavy-handed or derivative.  The musical language seemed very fresh and original, as a natural development or synthesis of that American national orchestral sound of the period — although precisely this music would not have been written at that time, because it is also a product of somebody who grew up and absorbed his musical influences from the later age of Leonard Bernstein, Stephen Sondheim, and the popular music of the rest of the 20th century and into the 21st.  (Kahane was born in 1981 in California and now lives in Brooklyn.) 

Kahane stood in front of the orchestra, electric guitar and banjo at the ready, serving as narrator and troubador.  He has a pleasant singing voice, which was perfect to “put over” this music, and the Orpheus Chamber Orchestra was astonishing in their close partnership with the composer.  I was impressed by his masterful orchestration, his rich harmonies, the way the music naturally fitted with the texts and enhanced them.  There was humor and pathos, and he had me close to tears at least once.  In short, this is a terrific piece of work by an important young composer.

I am hoping that it is a work in progress, since I think he could well write a few more songs to hit parts of the country that are a bit underrepresented.  This is, after all a “Guide to the 48 States,” but the states of the old Confederacy are largely ignored (one song evoking musical traditions in Alabama), the southwest apart from California is ignored (no Texas!!!!), and other areas could use some representation as well.  (Hello, New England??  One humorous anecdote about George Washington at a Connecticut tavern en route to take command of the Continental Army in Cambridge is all there is for that region.)   Orchestra commissions tend to be specific about desired lengths, so I expect he was limited as to what he could comfortably include, but I hope this work evolves to contain more.  And, of course, having had the experience of performing it, I expect the composer can see places to cut and tighten, to revise orchestration, and to continue shaping the piece.  But what he has thus far is really prime stuff, and congratulations are surely in order.

My prior experience with this composer has been limited to a handful of songs with piano accompaniment – his amusing Craigslistlieder cycle and a fine song about his neighborhood in Brooklyn that was part of the 5 Boroughs Songbook commissioned by 5 Boroughs Music Festival.  This new piece suggests to me that this composer is worth hearing in larger forms using larger forces, and I hope to hear much more of his music in the future.

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Circuit Judge Dings DOMA and Oregon Marriage Amendment in Grievance Ruling on Benefits

April 26, 2013

Judge Harry Pregerson of the U.S. Court of Appeals for the 9th Circuit, sitting as Chair of the 9th Circuit’s Standing Committee on Federal Public Defenders, ruled that Alison Clark, an assistant federal public defender in the Office of the Federal Public Defender for the District of Oregon, is entitled to received coverage for her same-sex spouse under the Federal Employees Health Care Benefits Program.  In the Matter of Alison Clark, Case No. 13-80100 (9th Circuit, April 24, 2013) (unpublished).   In the course of reaching this decision, Judge Pregerson found that Oregon’s Measure 36, the 2004 ballot initiative that bans recognition of same-sex marriages in Oregon, violates the 14th Amendment, and he made a similar finding as to Section 3 of the federal Defense of Marriage Act.  Furthermore, he found that the federal government must recognize Clark’s same-sex marriage, contracted in Canada, even though she and her spouse live in a state where that marriage might not be recognized.
 

Clark married her same-sex partner, Anna Campbell, on June 23, 2012, in British Columbia, Canada.  A few weeks later, she applied for benefits under the Federal Employee Health Benefits Act, which applies to lawyers employed as federal public defenders.  The Act allows federal employees to elect family coverage, which can include their “spouse.”  The Administrative Office of the Federal Courts rejected the application, asserting that it was bound under Section 3 of DOMA to find that Campbell is not Clark’s spouse.  Furthermore, under Measure 36, Campbell and Clark are not recognized as spouses by their state of residence, either.  Clark filed a complaint under the Plan’s grievance system, arguing that the Benefit Plan’s own non-discrimination provision, which lists sexual orientation as a prohibited ground of discrimination, was violated, as well as the 5th Amendment equal protection and due process requirements.  Clark’s complaint ended up before the Committee, chaired by Judge Pregerson, and his opinion is consistent with rulings in two prior 9th Circuit cases presenting similar facts from federal court employees in California who had married in 2008 prior to the passage of Proposition 8, the main difference being that this marriage was contracted in Canada.

First Judge Pregerson found that this was an instance of sexual orientation discrimination, stating, “The only reason Clark was unable to make her spouse a beneficiary under the FEHB program was that, as a homosexual, she had a same-sex spouse.”  Thus, the Plan’s non-discrimination provision was violated.

Next, he addressed the issue of whether Oregon could refuse to recognize the marriage.  Before Measure 36 was passed, he observed, “Oregon law did not expressly limit marriage as between a man and a woman,” although the courts had construed the marriage law to be so limited.  Measure 36 amended the state constitution to provide: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”  Pregerson opined that heightened scrutiny was the appropriate standard to evaluate Clark’s claim, but that it was unnecessary to reach that issue because “Measure 26 fails under rational basis review.”  He pointed out that under the Supreme Court’s 1996 decision, Romer v. Evans, 517 U.S. 620 (1996), “a classification treating homosexual individuals differently from heterosexual individuals cannot rationally be justified by the government’s animus towards homosexuality. . .  Here, Oregon does not state any reason for preventing same-sex couples from marrying.” 

Based on the arguments that had been made by proponents of California’s similarly-worded Prop 8 in Perry v. Schwarzenegger, Pregerson found that none of the purported state interests were “rationally related to prohibiting same-sex marriages.”  He made short work of the “responsible procreation,” “stable and enduring families for raising children,” and “proceed with caution in changing a basic social institution” arguments.   “While other possible objectives for Measure 36 exist,” he wrote, “I can see no objective that is rationallyr elated to banning same-sex marriages, other than the objective of denigrating homosexual relationships,” and such an objective would be impermissible under Romer.  Although he didn’t then go on to expressly  connect the dots, the implication was that Clark and Campbell’s marriage would be entitled to recognition in their state of residence, Oregon, as a matter of equal protection.

Having thus concluded, Pregerson did not need to address the alternative due process argument, but did so anyway.  He found that strict scrutiny should apply, because Supreme Court precedents supported the conclusion that the right to marry is a fundamental right.  However, again, he found that it wasn’t necessary to go this far, since Measure 36 flunked rational basis review, and thus, that Measure 36 “violates the due process rights of same-sex couples.”  “I next consider whether, given Clark and Campbell’s valid marriage, it is constitutionally permissible for the federal government to deny Clark’s request for spousal FEHB benefits.  I hold that it is not.”

Here, the barrier is Section 3 of DOMA.  Judge Pregerson found that “three rationales” for Section 3 listed in the House of Representatives report on DOMA to be insufficient under rational basis review.  He noted the Congressional Budget Office report, cited by the 1st Circuit in Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012), to the effect that DOMA did not save the federal government money, because the net effect of repealing Section 3 would be to save money for the government, cost savings from recognizing same-sex families outweighing possible tax revenue losses.  Furthermore, he wrote, “there is no rational basis for distinguishing between same-sex couples and opposite-sex couples if the government’s objective is to cut costs.”  He concludes that Section 3 is unconstitutional under both the equal protection and due process requirements of the 5th Amendment.

The Obama Administration’s stance since February 2011 has been that Section 3 is unconstitutional but will be enforced until it is repealed or definitely invalidated by the courts.  The Supreme Court heard oral argument in March in United States v. Windsor, whose resolution may determine whether Section 3 is constitutional.  But Judge Pregerson is apparently not inclined to wait for that ruling.  Having held that denial of Clark’s application violates the Plan and the Constitution, provided a remedy.  “I therefore order the Director of the Administrative Office of the United States Court to submit Clark’s FEHB Health Benefit Election form, which she signed and submitted on July 12, 2012, to the appropriate health insurance carrier.”  He also affirmatively orders that the Office process future “beneficiary addition requests without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by a state.”   In case the federal Office of Personnel Management “blocks this relief,” he would alternatively order monetary relief, along the lines that the 9th Circuit has approved in the Levenson case from California, providing the funds necessary to compensate Clark for the cost of obtaining insurance coverage for her spouse.  This, of course, would cost the government more than including Clark’s spouse under the employee group insurance policy. 

Judge Pregerson’s ruling, which is non-precedential and only binds the parties, nonetheless takes on a question left hanging during the Windsor oral argument, of whether the constitution would require the federal government to recognize legally-contracted marriages, regardless where the married couple resides.  This is a significant question because state marriage laws generally do not have residency requirements, so many same-sex couples who live in states that do not authorize or recognize same-sex marriages have gone to other states (or countries, usually Canada) to get married, but are living in jurisdictions that don’t recognize their marriages.  When questioned about such situations during the Windsor argument, her counsel, Roberta Kaplan, stated that the plaintiff was only asking for federal recognition in states that recognized the marriages, but it is difficult to see how a federal constitutional right could be so cabined, and it would be unfortunate if the Supreme Court were to hold Section 3 invalid without addressing this question of broader application.

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Federal Judge Certifies Class Actions Against DOMA Section 3

April 23, 2013

A federal district judge in Los Angeles has certified a nationwide class action lawsuit attacking the constitutionality of Section 3 of the Defense of Marriage Act in the context of spousal immigration rights.  Having denied a motion to dismiss the case by the  Justice Department and the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) on April 19, Judge Consuelo B. Marshall then determined in a separate ruling that plaintiff Jane DeLeon and her attorneys, Peter A. Schey and Carlos R. Holguin of the Center for Human Rights & Constitutional Law, may sue on behalf of “all members of lawful same-sex marriages who have been denied or will be denied lawful status or related benefits under the Immigration and Nationality Act (INA) by the Department of Homeland Security (DHS) solely due to Section 3 of the Defense of Marriage Act (DOMA).”

The INA extends special status to foreign nationals who are lawfully married to U.S. citizens for purposes of residency and applications for citizenship, but  DHS has refused to recognized lawfully married same-sex couples because Section 3 of DOMA provides that only a marriage of one man and one woman will be recognized for purposes of federal law.  The Supreme Court is expected to rule on a constitutional challenge to Section 3 by the end of its current term in June, in a case where Edie Windsor, the surviving same-sex spouse of a U.S. taxpayer, is suing for a refund of estate taxes that would not have been due if the government had recognized their marriage.

If the Supreme Court rules on the merits that Section 3 violates the 5th Amendment, this national class-action lawsuit could be quickly resolved with an order to DHS to stop relying on DOMA and to extend equal treatment to same-sex marriages.  If, as is possible but less likely, the Supreme Court resolves the Windsor case on narrower grounds, this new lawsuit would proceed with the potential to bring the question back up to the Supreme Court in the immigration context.

Jane DeLeon, a citizen of the Philippines, came to the United States on a visitort visa late in 1989 and stayed.  She had lived for several years in the Philippines in a non-ceremonial marriage with Joseph Randolph Aranas, with whom she had two sons, but that relationship appeared to be over when she came to the United States.  Aranas followed her here, however, and they lived together again briefly.  However, in 1992 she met Irma Rodriguez, and they started living together in California.  In August 2008, they were married there.

A few years prior to the marriage, DeLeon’s employer had applied on her behalf for permanent resident status, her visa petition was approved, and she filed an application for “adjustment of status” for herself and her son, Aranas, but DHS decided she and her son were inadmissible because, they claimed, she had misrepresented her name and marital status when she first entered the U.S.  At that time, she had identified herself as “Jane L. Aranas,” a “housewife.”  DHS instructed her to apply instead for a “waiver of inadmissibility,” premised on hardship to her U.S. citizen spouse or parent, and she applied for such a waiver, citing her elderly father, who is a U.S. citizen.  But this application was denied in 2011.  On advice of her attorneys, she then filed a new application, citing her wife, Irma Rodriguez, as the person who would suffer hardship if DeLeon was required to leave the U.S.  DHS denied this application, citing DOMA Section 3 and refusing to recognize her marriage with Rodriguez.

DeLeon’s lawsuit claims a violation of her rights under the 5th Amendment, citing both equal protection and due process of law, as well as sex discrimination. Her son and wife also joined as co-plaintiffs, but Judge Marshall found that neither of them had “standing” to be in the case.  However, the court found that DeLeon’s complaint stated a claimed for violation of her equal protection rights.

The Justice Department, representing DHS, raised various technical defenses and succeeded in getting Judge Marshall to remove the co-plaintiffs and narrow the legal theories of the complaint.  Applying 9th Circuit precedents, Judge Marshall found that Section 3 will be subject to judicial review using the rational basis test.  In line with Obama Administration policy, the Justice Department conceded various points on the merits of the equal protection claim.  However, BLAG, which was allowed to intervene as a defendant, made much the same arguments that it put forward in the Windsor case, including arguments that the Administration no longer makes about defending traditional marriage and preferring different-sex couples as parents.

 Judge Marshall observed that the 9th Circuit Court of Appeals, whose rulings are binding on her court, had already rejected most of those arguments in recent rulings such as Perry v. Brown, the Proposition 8 case, and Diaz v. Brewer, a ruling concerning domestic partner benefits claims by Arizona state employees.  There was one argument, however, that had not yet been considered by the 9th Circuit, as it has not yet ruled on the merits in a challenge to Section 3 of DOMA.  That is the argument, pushed strongly by BLAG in the oral argument before the Supreme Court in the Windsor case, that the federal government needs to have a uniform national definition of marriage to administer its myriad programs, and can insist on using the “traditional” definition that is followed in an overwhelming majority of the states.

Judge Marshall, observing that under this argument legally-married same-sex couples are treated differently from different-sex couples, found that such an approach failed the rationality test.  “This Court finds that the broad distinction created by DOMA Section 3 is not rationally related to Congress’ interest in a uniform federal definition of marriage,” she wrote.  “Contrary to [BLAG]’s argument, DOMA Section 3 does not ‘ensure that similarly situated couples will be eligible for the same federal marital status regardless of the state in which they live.’  Opposite-sex couples may receive federal marriage-based benefits if joined in a valid state marriage.  Same-sex couples will not, even if like Plaintiffs, they are joined in a valid state marriage.  The Court further finds that Plaintiffs have stated a claim that DOMA Section 3 violates their equal protection rights.”

However, Judge Marshall rejected the claim that failure to recognize same-sex marriages violates the 5th Amendment’s substantive due process requirements.   “To sustain a due process challenge,” she wrote, “Plaintiff DeLeon must show that her ‘right to maintain family relationships and personal choice in matters of marriage and family life free from undue government restrictions’ is a qualifying liberty interest of which she was deprived.”  While conceding that DeLeon has a liberty interest in ‘autonomy…in her personal decisions relating to marriage, procreation, family relationships and child rearing,” she wrote, citing Lawrence v. Texas,” she asserted that “it is not readily apparent, however, how DOMA infringes on DeLeon’s liberty interests,” since it does not involve the imposition of any criminal or civil penalties on DeLeon “based on her homosexuality.”  Finding that DeLeon’s due process rights “are not implicated by DOMA,” the court dismissed this part of her case.

The court’s decision to certify this case as a nationwide class action is particularly significant, as it involved the court’s finding that there is a common question of law for everybody included in the description of the class.  A ruling on the constitutionality of Section 3 will be dispositive in rejecting the DHS’s reliance on that provision to refuse recognition to same-sex marriages involving foreign nationals and U.S. citizens.  The court rejected the government’s argument that ultimately every status petition turns on its own individual facts, such that its ultimate disposition will depend on much more than the Section 3 issue.  Since the Section 3 issue is the threshold issue prior to any ruling in individual cases, the court concluded that it was appropriate for it to be decided in one proceeding, and that DeLeon and her attorneys were qualified to represent the interests of a broadly-defined national class of plaintiffs, even though some of those in the class might be disqualified for other reasons from being allowed to remain in the U.S., to work here, or eventually to become a citizen.

In a further ruling, however, Judge Marshall rejected DeLeon’s motion for preliminary injunctive relief pending trial.  This motion argued that the court could decide, as a matter of law, that Section 3 is unconstitutional and immediately order DHS not to rely upon it.  In order to grant such a motion, the court would have to find that it was highly likely that DeLeon would prevail after a trial on the merits, that she would suffer “irreparable injury” if preliminary relief isn’t granted, that the hardship on the government of receiving such a ruling did not outweigh the hardship on DeLeon of denying it, and whether the public interest would be advanced by granting such relief.  All four of these criteria must be met for relief to be granted, and Judge Marshall concluded that three of the criteria were present, but that the irreparable injury was not.

She found persuasive the government’s argument that under recent Obama Administration policy directives, DHS is not actively seeking to remove same-sex spouses of U.S. citizens while all await a ruling on the merits from the Supreme Court in the Windsor case.    “Defendants and Intervenor provide evidence that the appropriate application of prosecutorial discretion to immigrants in same-sex marriages has already been clarified as part of a comprehensive policy update in three memoranda issued by ICE Director John Morton to all ICE employees,” she wrote.  “While DeLeon and the plaintiff class have undeniably been harmed by the potentially unconstitutional application of DOMA Section 3 to their immigration petitions, it is less clear whether any members of the plaintiff class are likely to suffer irreparable injury pendent lite [while the case is pending].  The Morton memo provides detailed guidance on the proper exercise of ICE’s prosecutorial discretion.  The October 5, 2012, amendment to the Morton Memo specifically expanded ICE prosecutorial discretion for the benefit of those in same-sex family relationships.”  The judge observed that none of the cases cited by the plaintiffs to support their irreparable injury argument actually post-dated October 5.

Having satisfied itself that preliminary relief was not necessary to prevent injury to the plaintiff class, the court denied the petition.

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