New York Law School

Art Leonard Observations

Wisconsin Supreme Court Rejects Constitutional Challenge to Domestic Partnership Law

The seven-member Wisconsin Supreme Court has rejected a state constitutional challenge to the Wisconsin Domestic Partnership Act.  The July 31 ruling in Appling v. Walker, 2014 WI 96, 2014 Wisc. LEXIS 533, in an opinion by Justice N. Patrick Crooks, Jr., held that the state’s marriage amendment, passed in 2006, did not prevent the legislature from creating a legal status for same-sex couples that would carry many, but not all, of the rights of marriage.  The ruling came just weeks after a federal district court ruled in Wolf v. Walker, 2014 WL 2558444 (W.D. Wis. June 6, 2014), that the Wisconsin Marriage Amendment violates the 14th Amendment of the U.S. Constitution, a ruling that the state is now appealing to the Chicago-based 7th Circuit Court of Appeals.  Curiously, Justice Crooks’ opinion for the court did not mention the federal ruling or the recent wave of marriage equality decisions, prompting Chief Justice Shirley S. Abrahamson to write a short concurring opinion “to call the reader’s attention to these developments in the law.”

Although Governor Scott Walker and members of his administration were now the named defendants in the case, he would certainly not consider this ruling a victory, since he and the other state government defendants had filed a motion to withdraw from the case on the ground that his administration, which was not involved in the enactment of the challenged law, agreed with the plaintiffs that it was unconstitutional.  The plaintiffs, proponents of the marriage amendment, had originally filed suit against the previous Democratic administration which had enacted the challenged law.  The lower court had allowed Lambda Legal’s Chicago office to intervene as representatives of Fair Wisconsin Inc. (a gay rights group) and several individual defendants who would sustain tangible losses if their domestic partnerships and attendant benefits were invalidated by the court.

Alliance Defending Freedom, a religious litigation firm, presented the argument for the plaintiffs on appeal, using the same attorney who had defended Virginia’s same-sex marriage ban in the 4th Circuit, Austin Nimocks.  Christopher Clark from Lambda’s Chicago office argued for the intervenor-defendants, with local attorneys Brian Butler, Barbara Neider, and Stafford Rosenbaum LLP of Madison, Wisconsin, participating on the brief.  Dane County’s Corporation Counsel office filed an amicus brief defending the partnership statute as well, and amicus briefs came in from a range of organizations, including the ACLU and the LGBT Chamber of Commerce.

When the Marriage Amendment was passed in 2006, some public employees in Wisconsin were already receiving domestic partnership benefits and such benefits were a hot subject of collective bargaining with unions represented public workers in the state.  The legislature proposed the marriage amendment in reaction to same-sex marriage becoming available in Massachusetts in May 2004, as well as  the prior enactment of a civil union law in Vermont that gave civil union partners a status and panoply of state-law rights substantially similar to marriage.  The amendment, which passed by a comfortable margin (59%-41%), provided that only the union of one man and one woman would be valid or recognized as a marriage in Wisconsin, and that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

During the amendment campaign, opponents charged that the amendment would end partnership benefits for public employees and would prevent the legislature from passing a civil union act.  Proponents of the amendment, including the lead plaintiff in this case, Julaine K. Appling, countered these arguments by stating that the amendment was not intended to take away benefits from anybody.  They said that the legislature would be free to extend benefits to same-sex couples, so long as they didn’t create a “status” that was identical or substantially similar to marriage.  Both legislative leaders and private sector proponents such as Appling reiterated these points, and accused the opponents of distorting the meaning of the proposed amendment.  In fact, one legislative sponsor of the amendment even stated that the legislature could pass a civil union act, so long as it was not a “Vermont-style” act that provided all the state law rights of marriage.

After the amendment passed, the state government changed hands from Republican to Democratic control.  The new majority enacted the Domestic Partnership Act after carefully considering the limitations imposed by the Marriage Amendment.  Taking the amendments’ proponents at their word, they carefully structured the statute to create a partnership registration system that did not itself confer any rights on partners, and then amended various state laws to extend existing benefits to registered domestic partners.  The partnership system was made available only to same-sex couples, and many rights associated with marriage, such as joint tax filing, were not amended to extent to registered partners, thus preserving substantial differences.

Appling and other proponents of the marriage amendment filed suit, arguing that the statute created a status substantially similar to marriage because “the similarities it shares with marriage are actually ‘the constituent elements that make the legally recognized marital relationship what it is — the component parts of the relationship.”  These component parts they identified as the requirement that a domestic partnership be limited to two people over a certain age, competent to consent, who are in an exclusive relationship of specified sexes and who are not already closely related.  The plaintiffs argued that it was irrelevant that the number of rights and benefits extended to domestic partners were substantially fewer than those afforded married couples, because the Marriage Amendment was concerned with the creation of a “status” that was like marriage in terms of these “component parts.”  The defendants responded that this contradicted what proponents had argued during the election, that the public passed the amendment having been advised that it would not prevent the legislature from granting benefits to same-sex couples, and of course they emphasized the limited number of rights and benefits that went with partnership.  Indeed, with the demise of the Defense of Marriage Act, the difference between domestic partnership and marriage is even greater than it was when the statute was passed, since the federal government will not recognize domestic partnerships for any purpose of federal law.

The trial and intermediate appellate courts both ruled against the plaintiffs, and the Supreme Court unanimously affirmed this result.

The Supreme Court analysis started from the proposition that statutes enjoy a presumption of constitutionality, and the plaintiffs bear a heavy burden to show that the challenged statute is unconstitutional beyond any reasonable doubt.  In addition, the court pays attention to the context in which a measure is adopted, both in figuring out the meaning of constitutional language and the meaning of statutory language.  In this case, the issue was whether domestic partnerships were “substantially similar” to marriages, as the plaintiffs were not arguing that they are identical.

Justice Crooks found that by using the phrase “substantially similar” in the amendment, the drafters intended that “a status that is merely similar is not meant to be prohibited. The plain language of the Amendment,” he continued, “indicates that the framers and the voters intended to prohibit a status that gives a domestic partner a sum total of legal rights, duties, liabilities, and other legal relations that is more than just similar to the sum total of a married person’s legal rights, duties, liabilities, and other legal relations.”

Once the comparison was made, it was clear that the form of domestic partnership enacted in Wisconsin was not “substantially similar” to marriage.  Unlike marriages, registered partnerships are easily dissolved, and they impose none of the duties that marital partners have towards each other for support, mutual obligations for debts and the like.  And the list of rights and benefits for domestic partners, achieved by amending specific statutes to add mention of partners, was small by comparison to the list of marital rights.

“Marriage is unique in that it is an enforceable contract to which the state is a party,” wrote Crooks.  “Marriage carries with it an ‘equal obligation’ that spouses ‘owe to each other mutual responsibility and support.’  Once a couple is married, ‘the law steps in and holds the parties to various obligations and liabilities.’  Chapter 770 [the Domestic Partnership Act] makes no similar demands on domestic partners.  Chapter 770 does not refer to a domestic partnership as a contract; it does not obligate domestic partners to satisfy a duty of ‘mutual responsibility and support.’  While the Plaintiffs argue that this obligation can be read into ch. 770 from the co-habitation requirement, this argument is not persuasive given the specificity with which the legislature has chosen to articulate spousal obligations” under the state’s marriage laws.   Furthermore, neither the federal government nor other states — even those with their own “Vermont-style” partnership laws — accorded any recognition to Wisconsin domestic partners, since their relationship was not deemed equivalent to marriage in any relevant respect.

The plaintiffs had argued that the legislature could have avoided any clash with the Marriage Amendment by omitting the same-sex-only feature from the partnership law, thus allowing any two adults to become domestic partners if they were living together, including parents and children, siblings, and unrelated roommates.  But the court found this to be inconsistent with the positions the plaintiffs had taken during the amendment campaign, and that this was not what the voters had understood to be the purpose of the Marriage Amendment.  Indeed, such a partnership law would probably undermine marriage in the state by providing an alternative status for different-sex couples who wanted a less formal relationship by giving them access to some benefits they could only otherwise obtain through marriage!

The court concluded that the challenge should be rejected on three grounds: the strong presumption of constitutionality, the legislative history of the Marriage Amendment, and also “the legislature’s careful adoption of the first legislative act following the Amendment,” the adoption of the partnership act in its limited form.

If the current litigation surge towards marriage equality continues, this decision may be seen as a bit antiquated in sustaining a partnership law that may quickly be superseded, as signaled by the federal district court’s decision in Wolf v. Walker.  But, in the meantime, the decision, which cannot be appealed further, preserves for Wisconsin domestic partners access to important rights and benefits upon which they have come to rely.

Although Governor Walker was the “loser” in this case, he otherwise scored a big day in the Wisconsin Supreme Court, as the court ruled in other cases to uphold the VoterID law passed by the Republican legislature to suppress voting by minorities, and also upheld the governor’s collective bargaining law, which cut back on the subjects for negotiation by public employee unions, eliminated their ability to get automatic dues payments from represented employees, and required them to go through frequent costly and time-consuming recertification elections in order to maintain their representative status from year to year.  In the end he probably considered that he had a good day at court despite this setback.

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4th Circuit Votes to Strike Down Virginia’s Ban on Same-Sex Marriages

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit voted 2-1 to declare Virginia’s ban on same-sex marriage unconstitutional.  The opinion for the court issued on July 28 in Bostic v. Schaefer, 2014 U.S. App. LEXIS 14298, 2014 WL 3702493, did not go into immediate effect.  The court’s rules give the defendants up to two weeks to file a motion for rehearing or en banc review, or to file a notice to all parties that they are seeking review in the Supreme Court.  If the defendants don’t take any of those steps, the mandate must be issued within seven days, so the earliest date this ruling would go into effect would most likely be August 18.  However, since the two county court clerks who are the appellants are represented by Alliance Defending Freedom, a right-wing litigation group strongly dedicated to opposing same-sex marriage, it seems likely that a motion for en banc review or a petition to the Supreme Court will be filed, which would stay the ruling until the Supreme Court disposes of the case.

The circuit court’s decision will dictate the result of pending litigation in North and South Carolina and West Virginia, where pending cases have been “on hold” while the district judges waited to see what the 4th Circuit would do.  Those district judges might decide to wait to see whether there is further review before issuing their rulings, however.  One state in the 4th Circuit, Maryland, already has marriage equality as a result of state legislation ratified by the voters in 2012.

The consolidated cases decided by the 4th Circuit, Bostic v. Schaefer and Harris v. Rainey, took a circuitous route to get to the appeals court.  After the Supreme Court issued its decision on June 26, 2013, striking down Section 3 of the Defense of Marriage Act, the ACLU’s LGBT Rights Project announced that it was seeking plaintiffs for a lawsuit to challenge Virginia’s marriage ban, which is contained in statutes and a constitutional amendment.  While the ACLU was preparing its case, to be filed in the U.S. District Court for the Western District of Virginia, a same-sex couple in Norfolk, which is in the Eastern District of Virginia, decided to go forward on their own with their own private attorney.  Timothy Bostic and Tony London filed their lawsuit and the ensuing publicity brought an offer by the American Foundation for Equal Rights (AFER), which had litigated against California Proposition 8, to provide representation by Ted Olson and David Boies.  AFER’s offer was accepted, and the new legal team expanded the lawsuit by adding another couple as plaintiffs, Carol Schall and Mary Townley, who had married in California in 2008 and were seeking recognition of their marriage.

Olson and Boies pushed their case ahead more quickly than the ACLU, which filed its lawsuit shortly after the Bostic case was filed.  The ACLU focused on getting the trial judge in the Western District, Michael Urbanski, to certify their case as a class action, seeking to ensure that a win would be binding throughout the state.  Olson and Boies focused on pushing forward quickly to a summary judgment that would get their case up to the court of appeals, and District Judge Arenda L. Wright Allen accommodated them with a grant of summary judgment on Feburary 13, which she stayed pending appeal.  When the appeal was filed, the ACLU moved to intervene on behalf of their plaintiff class, as Judge Urbanski had put their case on hold pending a ruling by the 4th Circuit, and it was agreed that the ACLU would participate in the briefing and argument.

Things were also complicated on the defense side of the case.  Bostic and London had originally sued the governor and attorney general, as well as the local clerk in Norfolk who would not take their marriage application.  After the Schall-Townley plaintiffs were added, the amended complaint added Virginia State Registrar Janet Rainey, whose office plays a role in recognizing out-of-state marriages, as a defendant. The 2013 election in November turned out the Republicans and brought in the Democrats, and the new state leadership, Governor Terry McAuliffe and Attorney General Mark Herring, are marriage equality supporters who were not inclined to defend the ban.  Herring filed notices with the courts that the state would not provide a defense, which left that role to the clerks:  Norfolk Clerk George E. Schaefer, III, and Michele McQuigg, the Prince William County Clerk whose motion to intervene had been granted shortly before Herring, who was representing Rainey, notified the court that he would not offer a defense.  David Oakley, a local attorney from Chesapeake, Virginia, and Austin Nimocks, an attorney from Alliance Defending Freedom, a right-wing religious litigation group opposed to same-sex marriage, ended up representing the clerks in appealing Judge Wright Allen’s ruling.

At the oral argument before the three-judge panel in Richmond on May 13, Oakley and Nimocks argued for the clerks, Virginia Solicitor General Stuart Raphael argued on behalf of Rainey (now representing the Virginia executive branch’s position that the ban was unconstitutional), Olson argued for the AFER plaintiffs, and James Esseks, Director of the ACLU’s LGBT Rights Project, argued for the class action plaintiffs.

The three-judge panel selected for the argument was suitably diverse.  The senior member of the panel, Paul V. Neimeyer, was appointed to the court by George H.W. Bush in 1990.  Roger L. Gregory was appointed by Bill Clinton toward the end of his second term, was blocked in the Senate, and then was reappointed by George W. Bush as part of a deal to break a deadlock over Bush’s first group of appellate appointees.  Gregory is the first African-American to serve on the 4th Circuit.  Finally, the junior member of the panel, who ended up writing the opinion for the court, was Henry F. Floyd, appointed by Barack Obama in 2011.

Floyd’s opinion followed closely on the path set by the 10th Circuit Court of Appeals in June when it struck down the Utah marriage ban.  Both courts, faced with prior circuit precedent holding that sexual orientation discrimination claims were subject to deferential rational basis review, avoided that route entirely, instead basing their decisions on the conclusion that the plaintiffs were being denied a fundamental right, which required the court to subject the state marriage ban to strict scrutiny.  Under the strict scrutiny test, a challenged law can only survive if it is narrowly tailored to achieve a compelling state interest.  Most laws subjected to strict scrutiny are held unconstitutional.

Before getting to the main issue, however, Floyd contended briefly with the defendants’ contention that the plaintiffs lacked standing to bring the case, a make-weight argument of virtually no substance in these lawsuits, and that the Supreme Court had foreclosed this challenge by its 1972 ruling in Baker v. Nelson, a Minnesota case, that same-sex marriage did not present a “substantial federal question.”  Floyd pointed out that “every federal court to consider this issue since the Supreme Court decided U.S. v. Windsor [the DOMA case] has reached the same conclusion,” that the old case is no longer relevant.  He then cited the 10th Circuit’s ruling and ten U.S. District Court rulings.  He also quoted Justice Ruth Bader Ginsburg’s comment when this issue was raised during the oral argument in the Proposition 8 case: “Baker v. Nelson was 1971.  The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. . .  Same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”

Turning to the main issue, Floyd asserted that the plaintiffs in this case were not seeking a new constitutional right – a right of same-sex marriage – but rather an individual right to get married to the partner of their choice.  As such, the majority of the court saw this case as falling into the same category as Loving v. Virginia, the Supreme Court ruling from 1967 that struck down Virginia’s ban on interracial marriages.  Floyd went through the various Supreme Court right-to-marry cases, finding a common thread supporting the plaintiffs’ contention.  “Over the decades,” he wrote, “the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.”  After briefly describing the most important marriage precedents, he wrote, “These cases do not define the rights in question as ‘the right to interracial marriage,’ ‘the right of people owing child support to marry,’ and ‘the right of prison inmates to marry.’  Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.  The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of ‘freedom of choice’ that ‘resides with the individual.’  If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.”

Dissenting, Judge Niemeyer vehemently disagreed.  “In reaching this conclusion,” he argued, “the majority has failed to conduct the necessary constitutional analysis.  Rather, it has simply declared syllogistically that because ‘marriage’ is a fundamental right protected by the Due Process Clause and ‘same-sex marriage’ is a form of marriage, Virginia’s laws declining to recognize same-sex marriage infringe the fundamental right to marry and are therefore unconstitutional. . .  This analysis is fundamentally flawed because it fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly-proposed relationship of a ‘same-sex marriage.’  And this failure is even more pronounced by the majority’s acknowledgement that same-sex marriage is a new notion that has not been recognized ‘for most of our country’s history.’  Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation.”  Niemeyer also suggested that the majority’s approach would lead to the argument that polygamous and incestuous marriages came within the fundamental right to marry.

The difference between the majority and the dissent over whether a fundamental right was involved was determinative of their outcomes.  Judge Floyd examined the five rationales advanced by the county clerks for maintaining a ban on same-sex marriage and found that none of them met the test of strict scrutiny.  Judge Niemeyer asserted confidently that several of these rationales would suffice to uphold the ban under the rational basis approach.  While disclaiming any view about whether same-sex couples should be allowed to marry as a matter of public policy, Niemeyer asserted that this was a decision for the state to make, and its voters had made the decision by adopting their marriage amendment.

Judge Floyd’s discussion of the various state rationales followed now-familiar paths after two dozen prior marriage equality rulings by federal courts.  There was the usual quotation from Justice Scalia’s dissent in Windsor, the usual invocation of an amicus brief from various learned professional association’s pointing out the consensus of reputable authority on the parenting abilities of same-sex couples, and the usual observation that denying marriage to same-sex couples disadvantaged their children without in any way increasing the likelihood that different-sex couples would forgo procreating outside of marriage.

“We recognize that same-sex marriage makes some people deeply uncomfortable,” wrote Judge Floyd.  “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.  Civil marriage is one of the cornerstones of our way of life.  It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security.  The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life.  Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

With his dissent, Judge Niemeyer became only the second federal judge to rule against a marriage equality claim since the ruling last December by U.S. District Judge Robert Shelby that the Utah marriage ban was unconstitutional.  The first, of course, was the dissenting 10th Circuit judge, Paul Joseph Kelly, also appointed by the first President Bush a quarter century ago.  Every other federal judge to rule in a marriage equality case, regardless the party of the president who appointed her or him, has ruled for marriage equality.

There are fourteen active judges serving on the 4th Circuit, nine of whom were appointed either by Bill Clinton (counting Judge Gregory) or Barack Obama.  Faced with that line-up, it seems most likely that the clerks’ attorneys would by-pass a motion for en banc review and petition the Supreme Court directly, as the state of Utah has indicated that it will do in response to the 10th Circuit’s ruling.

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Alaska Supreme Court Rules Surviving Same-Sex Partner May Qualify for Death Benefit

The Alaska Supreme Court issued a unanimous ruling on July 25 holding that the surviving same-sex partner of an employee killed while at work may qualify to receive a death benefit under the state’s Workers’ Compensation Law.  The ruling in Harris v. Millennium Hotel, 2014 Alas. LEXIS 149, was not particularly surprising in light of this court’s recent track record in applying equal protection policies to protect same-sex couples despite the state’s anti-gay Marriage Amendment.  Justice Joel Bolger wrote the opinion for the court.

Kerry Fadely and Deborah Harris were same-sex partners for many years.  Fadely, a manager at the Millennium Hotel, was shot and killed while on duty in October 2011.  Harris filed a workers’ compensation claim for death benefits, describing herself as Fadely’s “dependent/spouse.”  Millennium opposed benefits, stating that it had not received any documentation that Harris was Fadely’s legal spouse.  Instead, Millennium described Harris as an “unmarried cohabitant” and cited a 2005 Alaska Supreme Court decision, Ranney v. Whitewater Engineering, 122 P.3d 214 (Alaska 2005), which held that unmarried cohabitants of employees were not entitled to death benefits under the Workers’ Compensation Law.

Harris responded by filing a notice that she was challenging the constitutionality of Alaska’s statutory limitation of survivor’s benefits to legal spouses.  She pointed out that she was precluded by Alaska law from marrying her same-sex partner, so denying her the death benefit violated her right to equal protection of the law.  Conceding that the Workers’ Compensation Board did not have jurisdiction to entertain a constitutional challenge to the statute, she asked the Board to issue a final decision so that she could appeal.  She attached to her notice several affidavits attesting to the facts about her relationship with Fadely.  They had lived together in “an exclusive, committed, and financially interdependent relationship” for almost ten years, had exchanged rings in 2005 and referred to themselves as spouses or partners.  They had filed an affidavit of domestic partnership with Fadely’s employer in order for Harris to be enrolled for spousal benefits.

The Board ruled that Harris was not entitled to benefits under the existing law, and this ruling was upheld on Harris’s appeal to the Alaska Workers’ Compensation Appeals Commission.  She then took a direct appeal to the Supreme Court, the first court which had jurisdiction to entertain her constitutional claim.

The first barrier Harris faced was the Alaska Marriage Amendment, and here she was helped by prior decisions by the Alaska Supreme Court, which had ruled in favor of domestic partner rights in two previous cases, ACLU v. State (2005) and State v. Schmidt (2014).  In ACLU v. State, the court held that despite the Marriage Amendment, Alaska violated the equal protection rights of state employees with same-sex partners when it failed to provide them with the same benefits provided to married employees.  In State v. Schmidt, the court said that the Marriage Amendment was no bar in cases involving same-sex couples seeking a marital property tax exemption in order to avoid a federal equal protection problem, and this case was no different.

Millennium had argued that under the Marriage Amendment the state could not provide a surviving same-sex partner with a benefit that was authorized by law only for married couples.  The court pointed out that in ACLU and Schmidt it had observed that “an interpretation of the Marriage Amendment like the one Millennium proposes could violated the federal equal protection clause as interpreted in Romer v. Evans,” a 1996 Supreme Court ruling striking down Colorado’s anti-gay Amendment 2 as a violation of the Equal Protection Clause of the 14th Amendment.

The court proceeded to evaluate Harris’s equal protection claim, noting that in its prior cases, it had ruled that “statutes making benefits available solely to spouses were facially discriminatory” on the basis of sexual orientation.  Here, Millennium argued that Harris was similarly situated to the unsuccessful plaintiff in Ranney v. Whitewater Engineering, who was denied a death benefit because she was not married to her deceased fiancé. “Ranney does not control the result in this case,” wrote Justice Bolger.  “The classes that we are comparing are different and are treated differently.  Just as in ACLU and Schmidt, here ‘the proper comparison is between same-sex and opposite-sex couples’ rather than between married and unmarried couples.  The Alaska Workers’ Compensation Act itself may deny death benefits to all unmarried individuals, but as we observed in ACLU, unmarried opposite-sex couples ‘have the opportunity to obtain these benefits, because [they] are not prevented by law from marrying.’  Unlike the survivor in Ranney, Harris could not legally marry her partner in Alaska or have an out-of-state marriage recognized here because of the Marriage Amendment.”

“We thus hold that, for purposes of equal protection here,” wrote Bolger, “committed same-sex surviving partners are similarly situated to widows or widowers, and that the death-benefits provision of the Alaska Workers’ Compensation Act, together with the Marriage Amendment, treat these similarly situated groups differently.”  The court held that it need not decide Harris’s claim that heightened scrutiny should be used in this case, because the court found that the state did not have a rational basis for the discrimination.  The state’s interests in administrative convenience and cost savings were not deemed sufficient to justify treating same-sex couples differently.

The state had argued that lacking the bright-line eligibility test of marriage, it would be put to a significant burden if it had to inquire into the details of the particular relationship to determine whether a claimed surviving same-sex partner should be treated as equivalent to a spouse in a particular case.  The court found, in light of the small number of claims that could be anticipated, that neither the administrative burden nor the costs associated in paying out such benefits were significant.  In light of the state’s small population and lack of large-scale heavy industry, there are actually few Workers’ Compensation Death benefits claims to be administered.  In the most recent year for which data was available, there were just 30 death benefit claims in the entire state.  Even if ten percent of those claims involved surviving same-sex partners, there would just be a handful of cases to consider.  Indeed, “according to the United States Census Bureau, the percentage of same-sex couple households in Alaska in the 2010 census was less than one percent of all households.”

Administrative inconvenience and costs were deemed significant in the Ranney case, because a ruling for the plaintiff would have required individualized hearings in every case involving a surviving unmarried cohabitant.  For different-sex couples, marriage is a “proxy” for the determination of emotional and economic interdependence that provides the policy justification for paying a death benefit when a worker dies leaving a dependent spouse.  But the same concern was not present here.  “In contrast to the position advocated in Ranney,” wrote Bolger, “an individualized inquiry will not be needed in all death-benefits cases because marriage is still an appropriate proxy for opposite-sex couples. Nor will allowing same-sex partners access to death benefits make workers’ compensation benefits slower or less predictable for opposite-sex couples.  In short, denying same-sex couples access to death benefits under the workers’ compensation statute does not bear a fair and substantial relationship to the purposes of the act as identified in Ranney.”

Since the Board had decided the case without a factual hearing, the court sent the case back to the Board so it could make a factual determination in line with the court’s opinion as to whether Harris and Fadely had the kind of relationship that should be qualify for the payment of survivor benefits once the marriage requirement was eliminated.

Because the equal protection conclusion turned on the refusal of Alaska to allow same-sex couples to marry, the rationale for this decision would become obsolete if pending marriage equality litigation attacking the Marriage Amendment is successful, as it seems likely that it will be to judge by the two dozen marriage equality rulings that have been issued by federal and state courts in other jurisdictions since December 2013.  If same-sex marriage becomes available in Alaska, unmarried same-sex partners would then be left in the same position as unmarried different-sex partners, disqualified for survivor benefits, because they would be able to marry to qualify for the benefits.

Harris was represented by Eric Croft of Anchorage and Peter Renn, staff attorney in Lambda Legal’s Los Angeles office.  The anti-gay Alliance Defending Freedom assisted in representing Alaska Family Action, an anti-gay group, in defending the state’s position.


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A Second Florida Trial Judge Rules for Marriage Equality

Just days after Monroe County Circuit Judge Luis M. Garcia ruled that Florida’s constitutional and statutory bans on same-sex marriage violate the 14th Amendment, a second Florida trial judge, Sarah Zabel of Miami-Dade County, reached the same conclusion in Pareto v. Ruvin and State of Florida, No. 14-1661 CA 24, announced on July 25.  As in the earlier case, Florida Attorney General Pam Bondi immediately responded by filing a notice of appeal, but Judge Zabel had anticipated this move and stayed her own decision “pending the outcome of the expected appeals.”

The Miami-Dade case was filed by attorneys from the law firm of Carlton Fields Jorden Burt, Elizabeth F. Schwartz and Mary B. Meeks and the Nation Center for Lesbian Rights earlier this year on behalf of six same-sex couples who went to the county clerk’s office and were denied marriage licenses.  Joining with the plaintiff couples was co-plaintiff Equality Florida Institute, representing its members who are also seeking the right to marry.  As none of the named plaintiffs had already been married elsewhere, the lawsuit did not specifically target Florida’s ban on recognition of out-of-state same-sex marriages, and Judge Zabel did not address that ban.

The case was originally filed only against Miami-Dade County Clerk of the Courts Harvey Rubin, but the state intervened to defend the statute, and Clerk Ruvin actually took no position as to its constitutionality.  Indeed, some local officials supported the plaintiffs, with the City of Miami Beach joining with the City of Orlando in filing an amicus brief and participating in oral argument.  In addition to the state, several amicus organizations defended the statute, having a particular interest because they had worked to pass Florida’s constitutional ban on same-sex marriage in 2008.

Although accounts of  judges’ decisions in marriage equality cases are coming to take on a repetitious character, each judge brings his or her own style to the task, and Judge Zabel took the occasion to write a thorough decision that falls solidly within the mainstream of the two dozen rulings that have been issued in support of marriage equality since last June’s Supreme Court decision striking down Section 3 of the Defense of Marriage Act, U.S. v. Windsor.  In the course of her opinion, Zabel offered several pointed and quotable comments, although much of her decision consisted of pertinent quotations from those two dozen prior decisions.

Confronting the state’s argument that the court lacked jurisdiction over this dispute because the anti-marriage amendment was “enacted via a citizen-led ballot initiative” and the court “must respect the voters’ policy preferences,” Zabel responded, “The United States Constitution would be meaningless if its principles were not shielded from the will of the majority. . .  Accordingly, the ‘will of the voters’ does not immunize Article 1, Section 27 of Florida’s Constitution from judicial review into whether it comports with the commands of the U.S. Constitution.  To hold otherwise would sanction ‘the tyranny of the majority.’”

Zabel also quickly dispatched the state’s argument that this lawsuit was precluded by the U.S. Supreme Court’s 1972 rejection of a marriage equality appeal from Minnesota, finding that in the intervening forty years the Court’s statement that same-sex marriage did not present a “substantial federal question” was no longer accurate.

Turning first to the challenge under the Due Process Clause, Judge Zabel sided with those courts that have rejected the argument that plaintiffs are seeking a “new right of same-sex marriage.”  “When analyzing the scope of the fundamental right to marry (or any fundamental right),” she wrote, “it would be both circular and insincere to use the group being denied a right to define the right itself.”   She continued, “Although this right has always been theirs, it is only recently that historical blinders have begun to fall so that we have been able to recognize that the right belongs to them as well.  Simply put, fundamental rights belong to everyone.  All individuals have a fundamental right to marry.  The inquiry is not whether there is a right to same-sex marriage, but whether same-sex couples can be excluded from the right to marriage.”

Having decided that a fundamental right is at stake, Judge Zabel determined that only a compelling state interest could justify abridging that right, and none had been advanced by the state of Florida.  This is not very surprising, since the state’s argument was that no fundamental right was at stake and this was an ordinary rational basis case.  Lacking arguments from the state, Zabel looked to the arguments by the amicus organizations, which raised the same tired arguments that have been rejected in every other marriage equality case this year.  She found them no more compelling than any other court had done.

In light of past Florida litigation over gay parenting in the context of adopt, she had a precedential state decision to quote, Florida Department of Children & Families (Adoption of XXG), 45 So. 3d 79 (Fla. 3d DCA 2010), in which the Florida 3rd District Court of Appeal summarized the expert testimony about gay parenting.  That court concluded, after discussing the various reports and studies produced in evidence, “These reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children,” and “this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise.”  Given that precedent, the argument of amicus parties in this case that the state should withhold marriage rights from same-sex couples to advance its compelling interest in having children raised in the best setting was a non-starter.

Furthermore, noted Zabel, gay people can have children without getting married and are doing so in large numbers, so “the issue of same-sex marriage is inapposite to the purported goal of preventing same-sex couples from being parents.  Rather, the marriage bans merely prevent same-sex couples from having their already existent families and partnerships recognized in the same manner as opposite-sex couples.”  She pointed out that denying marriage to same-sex couples with children “actually harm the amici’s stated objective of promoting the best interest of children.”  She was similar dismissive of the idea that the procreative capacity of heterosexual couples provided any reason for treating same-sex couples differently, since Florida was perfectly willing to let such couples marry even if they could not or did not desire to procreate.

One issue raised by amici in this case had not been addressed in prior marriage equality litigation.  Amici in this case “insist these laws prevent the spread of HIV and certain cancers that are more prevalent among gay men,” Zabel noted.  “They assert that allowing same-sex marriage will de-stigmatize homosexual conduct, and thereby encourage sexual practices which help spread those diseases.”  Zabel was not convinced.  “However,” she wrote, it is absurd to suggest that a marriage law can combat a medical disease.  The alleged connection between banning same-sex marriage and affecting homosexuals’ intimate conduct is not narrowly tailored to the result it seeks to accomplish, and it is too indirect and theoretical to pass even the rational basis test.”

Indeed, Zabel ultimately concluded, the marriage ban had to fall even under the rational basis test.  She pointed out that denying same-sex couples the right to marry had a harmful impact on them and their children, listing a variety of ways that it imposed disadvantages on them.  “Without access to these and other rights,” she wrote, “homosexuals are made second-class citizens,” and, quoting the ancient dissent of the first Justice John Marshall Harlan in Plessy v. Ferguson (1896), “our Constitution neither knows nor tolerates classes among citizens.”

Turning to the equal protection challenge, Zabel pointed out that because a fundamental right was being categorically denied to gay people, equal protection also required strict scrutiny, but even under a rational basis approach the marriage ban was unconstitutional.  Zabel was constrained in this area by a past Florida Supreme Court decision that had rejected any form of heightened scrutiny for sexual orientation discrimination cases, but this did not prove a problem because she had already found a due process violation and she had already concluded that there was no rational basis to deny same-sex couples the right to marry.

Justice Zabel concluded with a rhetorical flourish about the historic struggles to achieve equality in the U.S. for people of color and women.  “Notably absent from this protracted march towards social justice was any progress for the gay, lesbian, bisexual, and transgender community until quite recently,” she wrote.  “However, as evidenced by the avalanche of court decisions unanimously favoring marriage equality, the dam that was denying justice on this front has been broken.  The Court, nonetheless, recognizes that its decision today is divisive and will cause some Floridians great discomfort.  This decision, though, ‘is not made in defiance of the great people of [Florida] or the [Florida] Legislature, but in compliance with the United States Constitution and Supreme Court precedent.  Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution,” she concluded, adapting language from the Texas marriage equality decision issued earlier this year.  “The journey of our Nation towards becoming ‘a more perfect Union’ does not stop at any particular generation; it is instead a fluid process through every generation.  The Court, therefore, foresees a day when the term ‘same-sex marriage’ is viewed in the same absurd vein as ‘separate but equal’ and is thus forsaken and supplanted by ordinary ‘marriage.’”

This case is one of several pending in state and federal courts in Florida.  The decision will be appealed to the state’s intermediate court of appeals, but given the speed with which things are moving on the marriage equality front, it may become irrelevant if it does not move more quickly than Florida state court appeals tend to move.  The U.S. Court of Appeals for the 10th Circuit has issued two affirmative marriage equality decisions in cases from Utah and Oklahoma, the 4th Circuit is expected to rule soon in a case from Virginia, and the 6th, 7th, and 9th Circuits are hearing arguments in cases from numerous states over the next six weeks.  Thus, the likelihood that this issue will end up in the U.S. Supreme Court this term, resulting in a ruling by June 2015, makes it likely that the Florida marriage challenges will be resolved by default after a U.S. Supreme Court ruling from one of those cases that are further along, rather than by merits rulings from the Florida Supreme Court or the federal 11th Circuit Court of Appeals on a Florida appeal.

That being the case, one wonders why Attorney General Bondi and her staff would but any substantial resources into appealing these rulings.


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Nassau County (N.Y.) Family Court Rejects Lesbian Co-Parent Custody Petition

Nassau County (NY) Family Court Judge Edmund M. Dane rejected a lesbian co-parent’s joint custody petition on June 30, finding that despite the 2011 passage of New York’s Marriage Equality Law, the state’s child custody laws fail to acknowledge parental claims of a co-parent who was not married to the child’s birth mother when the child was born.  Jann P. v. Jamie P., NYLJ 1202664272007 (published July 23, 2014).

According to Judge Dane’s opinion, the child, named John, was born to Jamie P. in 2011.  Jamie P. and Jann P. were married on January 20, 2012.  The opinion does not specify whether the women were living together when the child was born, or whether the child was conceived through donor insemination by their agreement.  The women’s relationship evidently soured, and they executed a written separation agreement dated August 7, 2013.  The separation agreement described John as “a child of the marriage” and it provided that John would be raised only by Jann and Jamie, referring to both parties as “wife” and apparently providing that Jamie would have residential custody.  Under the agreement, Jann would have visitation rights at her home every Saturday and on alternate Sundays, with holidays being spent together but ultimately split between the parties upon finalization of a divorce.  The separation agreement also provides that “joint custody will be determined at a later date upon further and in depth discussions.”  No divorce petition has been filed, however.

Jann P. filed suit in Family Court on December 9, 2013, seeking joint custody of John.  The petition identifies Jann P. as John’s parent, and identifies Jamie P. as John’s mother.  The petition alleges that joint custody would be in the best interest of John, citing the “mental well being of the child.”  Jamie filed a motion to dismiss the petition, arguing that Jann is not John’s legal parent and, in the absence of extraordinary circumstances that would support terminating Jamie P.’s custody, Jann would not have standing under New York law to seek custody of John.  The attorney appointed to represent John’s interest also opposed the custody petition.

Opposing Jamie’s motion, Jann argued that the court should use equitable estoppel to block Jamie’s argument, pointing to the separation agreement under which both women were identified as parents and the reality that Jann acted as a parent to John while the women were living together and married.  Equitable estoppel is a legal doctrine that courts sometimes use to block a party from making a legal argument that would be inconsistent with their past actions.  In this case, Jann argued that Jamie had conceded Jann’s parental status by signing the separation agreement and should not be allowed to take a contrary position in court.

“This case presents a timely and important issue,” wrote Judge Dane, “the likes of which the courts and legislature of this State will likely be addressing for some time to come, namely, are there circumstances under which a spouse in a same-gender marriage has standing to seek custody of a child who is not biologically related to the petitioning spouse, but was considered by both spouses to be a child of the marriage?”  Dane observed that passage of the Marriage Equality Act in 2011 “took a significant step in redefining long-standing concepts of what constitutes a family under the laws of this State,” but that “it is apparent that this process of evolution is incomplete.”

Specifically, Dane referred to a New York Court of Appeals decision from 2010, Debra H. v. Janice R., 14 N.Y.3d 576, in which the court rejected the use of equitable estoppel by a same-sex co-parent of a child’s birth mother seeking to establish parental rights.  In that case, the women had been in a Vermont civil union when the child was born, and the court concluded that it could find standing based on the Vermont Civil Union Act, which established the presumption that a child born to a married woman was the legal child of the women’s spouse.  Also in that case, the Court of Appeals reaffirmed its terrible old decision of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which has continued to haunt LGBT family law in New York State with its refusal to readjust the interpretation of antiquated family law statutes in light of modern family realities.  Relying on these cases, both of which pre-date the Marriage Equality Law, Dane found that Jann’s equitable estoppel argument had to be rejected, and he observed that a traditional legal presumption concerning a child born to a married woman being the legal child of her spouse was a presumption of fact concerning biological parenthood that could not logically be entertained in the case of a same-sex couple.  Such a presumption would not apply in this case anyway, since John was born before the women were married.

Alternatively, Jann pointed to New York cases allowing a man who married a woman who already had children to seek to establish parental rights based on the relationship he developed with the children, but Judge Dane observed that New York law does not provide a procedure for establishing maternity, just paternity, and that the principal case cited by Jann, Jean Maby H. v. Joseph H., 246 App. Div. 2d 282 (2nd Dep’t 1998), was of questionable authority after the Court of Appeals ruling in Debra H.

The problem as Judge Dane identified it was that New York’s existing legal framework provides for paternity actions but not maternity actions.  “Accordingly,” he wrote, “it stands to reason that if the petitioner were a man who held himself out as John’s father for a period of time sufficient to establish a paternal bond with John, he would have standing to file a petition seeking a declaration of paternity under article 5 of the Family Court Act and then, if successful in the paternity proceeding, would have standing to seek custody or visitation with the child.  Unlike a man in the same position, the petitioner cannot employ a paternity proceeding as a means of establishing standing to seek custody of John because she cannot allege that she is John’s father and the law does not provide for a proceeding to declare maternity.”

Dane also dismissed as irrelevant a New York statute concerning donor insemination within marriage, under which the husband can be deemed the legitimate parent of a child conceived through donor insemination of his wife with his consent.  Dane pointed out that there was no information in the court record about whether John was conceived through donor insemination, and furthermore “he was conceived and born prior to the marriage.”

Dane suggested that the legislature should address this issue, perhaps by amending the Family Court Act to provide same-sex co-parents with the same legal remedies that a man in the same situation would have.  “The inequity of the imbalance of remedies available to the petitioner is highlighted in this case,” wrote Dane, “by the parties’ separation agreement, which clearly indicates that the parties viewed the petitioner as John’s parent, contemplated the possibility of the parties sharing custody of John, and gave the petitioner specific visitation rights. Until such time as the legislature addresses the issue, however, the court agrees with the attorney for the child’s position that the petitioner may not use equitable estoppel as a ground to establishing standing to seek custody.”

Judge Dane pointed out that separation agreements “are not enforceable in Family Court,” but that “they may be enforceable in a matrimonial action,” so it’s possible that Jann would get somewhere in her quest for custody by filing a divorce petition.  He mentioned that Jann argued that denying her standing in this case violated her constitutional right to equal protection, but then never addressed that argument anywhere in his opinion.  Certainly the one-sided statutory framework suggests that stereotypes about women and men concerning parental roles were at play when the legislature set up the statutory scheme, which should heightened scrutiny in the context of an equal protection challenge, but Dane evidently considered Jann’s lack of standing to preclude any constitutional argument.

In its article reporting on the case on July 24, the New York Law Journal quoted Jann’s attorney, William Scheeckutz, Jr., as saying that the women were a couple when John was born, that no divorce proceedings are pending, and that since the court ruled, John had been removed from Jamie and put into foster care because of a neglect petition.  Sheeckutz said that he had filed a notice of appeal from Judge Dane’s ruling, and that Jann was also considering attempting to intervene in the neglect proceeding.

Jamie is represented by the Legal Aid Society of Nassau County, and attorney Dennis Monahan was appointed by the court to represent John.



Jamie is represented by the Legal Aid Society of Nassau County, and attorney Dennis Monahan was appointed by the court to represent John.

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New Developments in Colorado on Same-Sex Marriage

Two trial judges in Colorado advanced the cause of same-sex marriage on July 23, as U.S. District Judge Raymond P. Moore in Denver issued an Order in Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, finding, in accord with recent 10th Circuit precedents, that Colorado’s ban on same-sex marriage violates the 14th Amendment, and Boulder County District Judge Andrew Hartman issued an Order in State of Colorado v. Hillary Hall, No. 2014CV30833, denying the state’s motion to order Boulder County Clerk Hillary Hall to stop issuing marriage licenses to same-sex couples.

The outcome of Judge Moore’s ruling on the merits of the plaintiffs’ motion for a preliminary injunction was foreordained, of course, by the 10th Circuit’s recent decisions holding similar marriage bans unconstitutional in Utah and Oklahoma.  The only suspense surrounding his decision concerned whether he would grant the state’s request for a stay until final resolution of the Utah case, Kitchen v. Herbert, which the state of Utah is appealing to the Supreme Court.  Moore denied the state’s motion, instead ordering a temporary stay that expires on August 25, to give the state time to seek relief from the 10th Circuit or the Supreme Court.  Moore’s preliminary injunction, if it goes into effect, would order the state not to enforce its marriage-ban, either respecting the right to marry or the right to recognition of out-of-state marriages.

Boulder County Clerk Hall had begun issuing marriage licenses to same-sex couples shortly after the 10th Circuit ruled last month that the Utah marriage ban was unconstitutional.  Since Colorado is in the 10th Circuit, she reasoned, the court’s ruling was binding there as well.  Although the 10th Circuit had stayed its order to give the state of Utah time to seek rehearing en banc at the 10th Circuit or to petition the Supreme Court for review, Hall, after consulting Boulder County legal officials, concluded that she could go ahead and ignore Colorado’s unconstitutional ban.  Judge Hartman had denied a request by Colorado Attorney General John W. Suthers for a preliminary injunction against Hall on July 10, the day after another Colorado trial judge, Scott Crabtree, issued a ruling in Brinkman v. Hickenlooper  finding the Colorado ban unconstitutional in a case against the Adams County clerk.  Crabtree’s decision led clerks in Denver and Pueblo counties to join Hall in issuing marriage licenses, even though Crabtree stayed his ruling with respect to the Adams County clerk.  The Colorado Supreme Court subsequently granted Suthers’ request to order the clerks in Adams and Denver Counties not to issue licenses, and a subsequent letter by Suthers threatening suit persuaded the Pueblo clerk to cease issuing them with an expression of reluctance.  That left Hall the only clerk still issuing licenses.

These and other developments persuaded Judge Hartman that, on balance, the state was not entitled to an order stopping Hall.  He noted Crabtree’s July 9 ruling, the 10th Circuit’s July 18 ruling that Oklahoma’s marriage ban was unconstitutional, the July 17 ruling from Monroe County, Florida, by a circuit court judge finding Florida’s ban unconstitutional, and the recent actions by Supreme Court Justice Samuel Alito, no supporter of same-sex marriage to judge by his dissenting opinion in U.S. v. Windsor, rejecting an attempt by a Pennsylvania clerk to stop marriage equality in that state while she tried to intervene to appeal a federal court decision there, noting as well that Alito had cited the Supreme Court’s prior action rejecting a stay of the Oregon marriage decision.  Had he known of Judge Moore’s decision, which was issued several hours later, he would undoubtedly have cited that as further evidence that the state’s case lacked merit.  He rejected Suthers’ argument that the Colorado Supreme Court’s order to the Adams and Denver county clerks was binding on his court in this case, observing that the Supreme Court had phrased its Order “in light of the stay entered by the Trial Court” in the Adams County case, and pointed out that he had previously denied the state’s demand for a preliminary injunction against Hall, so there was no injunction in this case to stay.

Hartman returned to the four-factor test used by Colorado courts to evaluate requests for injunctive relief, and found, as he had in his prior ruling, that each factor favored allowing Hall to continue issuing licenses: The state is unlikely to win on the merits of its defense of the marriage ban, especially in light of the recent 10th Circuit rulings; the state “has offered no additional support since this Court’s ruling two weeks ago that the same sex marriage licenses issued in Boulder County (or Denver and Pueblo Counties for that matter) had caused any harm to the State whatsoever, let alone irreparable harm”; an injunction against Hall would inflict the deprivation of constitutional rights on same-sex couples seeking to marry; and the public interest would not be advanced by denying the enjoyment of “fundamental” constitutional rights.  As to Suthers’ argument that “chaos” would ensue in the absence of an injunction, Hartman commented, “The State has simply offered no evidence of any confusion or disorder resulting from same sex couples obtaining marriage licenses in Boulder County.”

Suthers will appeal this, of course, despite Governor John Hickenlooper’s plea that he desist.  Hickenlooper is a named defendant in the pending Colorado marriage cases, although he has made clear that he supports same-sex marriage and is not interested in pursuing an appeal.  However, as the state’s chief legal officer, Suthers is autonomous in deciding whether to appeal these rulings, and has indicating his eagerness to do so.

The federal case was in a curious posture, as Suthers and the Denver county clerk had joined with Hickenlooper in asking Judge Moore to issue a preliminary injunction against enforcement of the marriage ban.  Suthers’ request was for strategic reasons: he wanted to get to the 10th Circuit to seek a stay, and the prerequisite for that was getting Moore to issue his injunction.  But, of course, Suthers had to request a stay from Moore before he could seek one from the 10th Circuit, so he did so in the course of litigating over the preliminary injunction motion.  Judge Moore devoted most of his opinion to explain why he would not stay the action pending final resolution as Suthers had requested.

Suthers had actually requested Moore to stay the entire proceeding, not just his preliminary injunction order.  Suthers was relying on the U.S. Supreme Court’s stay of the Utah marriage decision as his trump card, arguing that this was a signal to all lower courts that they must stay their marriage equality rulings until the Supreme Court was ready to resolve the matter at the national level.  And, of course, almost all lower courts have accepted this signal and stayed their decisions, apart from a few outliers that left it to appellate courts to grant stays.  But Moore was not ready to stay his preliminary injunction based on an unexplained Supreme Court order in another case, despite the July 18 Supreme Court stay issued in Herbert v. Evans, in which the trial court had ordered Utah to recognize same-sex marriages performed prior to the January 6 stay in Kitchen v. Herbert.

“There is at least one aspect of this case which differs from other same-sex marriage cases being litigated elsewhere in the federal system which has not been emphasized by the parties,” he wrote.  “Here, the applicable appellate court [the 10th Circuit] has already spoken — more than once.  Thus, it is conceivable that any perceived ‘directive’ from the Supreme Court to let appellate courts consider this issue does not apply here.  The Court has given strong consider to this difference.  The proverbial wild card in the analysis is the recent stay entered by the Supreme Court in Herbert v. Evans.”  However, he continued, “making extraction of the meaning of the stay in Evans more difficult, Evans is a ‘companion’ case to Kitchen, both addressing the application of Utah’s same-sex marriage laws.”

“Based on the most recent stay,” he wrote, “it appears to the Court that it may well be that a message is being sent by the Supreme Court.  But this Court is not some modern day haruspex skilled in the art of divination.  This Court cannot — and, more importantly, it will not — tell the people of Colorado that access to this or any other fundamental right will be delayed because it ‘thinks’ or ‘perceives’ the subtle — or not so subtle — content of a message not directed to this case.  The rule of law demands more.”

What the rule of law demands, according to Moore, is the court’s faithful application of the four-factor test set out in the Federal Rules of Civil Procedure and the precedents of the 10th Circuit.  And, he concluded, in harmony with Judge Hartman, that the state was not entitled to a stay order under that test.  “The Court recognizes that the Tenth Circuit or the Supreme Court may choose to issue a stay in this matter.  And this Court will not foreclose Defendants from having a fair opportunity to seek such a stay.  Accordingly, as it pertains to the preliminary injunction, this Court will temporarily stay the preliminary injunction order until 8:00 a.m. on August 25, 2014, to permit Defendants time to seek a stay of the injunction from a higher court.”

At the same time, Moore granted Suthers’ request that the remainder of this case at the trial level be put “on hold” rather than proceeding to a final ruling on the merits.  “Kitchen will ultimately decide this matter — by the denial of certiorari and issuance of the mandate from the Tenth Circuit or by Supreme Court ruling,” he observed.  “Indeed, Defendant Attorney General conceded at the July 22, 2014 hearing that if the Kitchen decision is upheld or becomes final, the Challenged Laws are unconstitutional.  And a final merits determination here based on Kitchen will only trail Kitchen in the appellate courts. Little would thus be served by requiring the parties to incur the costs and expenses of litigating to final proceedings in this case while trailing Kitchen.”  He rejected Suthers’ suggestion that he defer to whatever the Colorado courts decide in Suthers’ appeal of Judge Crabtree’s ruling to the Colorado Supreme Court, stating, “This Court declines to abstain from deciding, and thus defer to the state, matters of federal constitutional law.”

Thus, Judge Moore put the ball back in Attorney General Suthers’ court, and Suthers immediately announced that he would seek a stay pending final disposition from the 10th Circuit or, if necessary, the Supreme Court.  Meanwhile, same-sex couples who wish to marry in Colorado can still do so in Boulder County while Suthers appeals Judge Hartman’s ruling to the Colorado Supreme Court.

Judge Hartman was appointed to the Colorado District Court in 2013 by Governor Hickenlooper.   Judge Moore  was appointed to the U.S. District Court for Colorado in 2013 by President Barack Obama.

Plaintiffs in the federal case are represented by the Colorado law firm of Kilmer, Lane & Newman, LLP.

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National Youth Orchestra of the USA at Carnegie Hall

I was at Carnegie Hall last night to hear the first performance in their “home hall” of this year’s version of the National Youth Orchestra of the United States of America.  David Robertson, music director of the St. Louis Symphony and the Sydney (Australia) Symphony, conducted an all-teen ensemble in music by Leonard Bernstein, Benjamin Britten, Samuel Adams, and Modest Mussorgsky.  Robertson’s brother-in-law, violin virtuoso Gil Shaham, was soloist in the Britten concerto.

Last year was the first for this ensemble, but they didn’t play in New York City because of summer construction projects at Carnegie.  All the press reports last year were very positive about the quality of the group, and those reports were all confirmed last night.  These enthusiastic youngster played at a professional level.  While there were occasional signs of caution, on the whole the interpretations seemed appropriate for the music.  More importantly, the performances had distinctive personalities.  These young musicians were not playing by rote; they were throwing themselves into the music.

The Symphonic Dances from West Side Story were an audacious choice.  This music is rhythmically intricate, and many of the solo passages take the players to extremes under very exposed circumstances.  Playing this music really well is quite an accomplishment.  Robertson brought out the swing of some of the music, and the orchestra was with him every step of the way.

I have to confess that the Britten Violin Concerto is not one of my favorites, and I think there are good reasons why it has not really entered the active concert repertory, although many violinists – including Shaham – are working hard to promote it.  The structure – a moderate first movement, brief scherzo, then lengthy slow passacaglia, all linked – taxes the listener with its unbroken span of more than half an hour, and it is not exactly packed with memorable melodic material.  Perhaps the most effective part is the final few minutes, which can easily catch up the listener in an emotional experience, as one member of the orchestra commented in remarks from the stage.  Certainly Shaham does his best with it, and the orchestra seemed totally engrossed.

After intermission, we had the newly-commissioned “Radial Play” by Samuel Adams (son of John Adams, the San Francisco-based composer who has emerged as one of the most frequently played living American composers).  Is Adams a devotee of the “spectral music” crowd?  It seemed so with this piece, a short exercise in orchestral color that struck me as singularly lacking in tunes or thematic development.  That said, it was not too long to outstay its welcome, and it put the orchestra through their paces in terms of dynamic contrasts and color.

Finally, on the listed program, Maurice Ravel’s orchestra of Mussorgsky’s Pictures at an Exhibition presented an excellent show-case for the talents of this young orchestra, including numerous solo trumpet passages, the big saxophone solo in “The Old Castle,” and many other passages for wind and percussion soloists.  The program list of orchestral personnel was alphabetical within sections, so one could not know the names of the soloists, but they were uniformly excellent.  The solo trumpet cracked on one note during the exposed passages, but just one, and that is almost par for the course – I’ve heard the same from professional orchestras.  The one soloist who can be identified, Alto Saxophone player Chad Lilley, was excellent in his big solo.  Robertson adhered to moderate tempi, which took a bit of the excitement out of some of the faster “pictures,” but he built magnificent momentum in the finale, The Great Gate at Kiev, and they really raised the roof.  I especially enjoyed the vigor with which one of the percussionists had the suspended bar that produces the church bell effect in the final moments!

Encores: a brief but effective suite of selections from Gershwin’s Porgy and Bess, and an audience sing-along with America the Beautiful, both very well done.

Now, my only adverse comment: Who made the decision to dress these people in bright red pants?  I thought that was silly and infantilizing.  They play at a professional level and should be dressed as professionals.  I wouldn’t insist on formal wear for a youth orchestra, but appropriate dress would reinforce their professional status.  They were also all wearing white & red converse sneakers, as were Robertson and Shaham.  The significance of this escapes me….

I hope there will be a Carnegie Hall appearance by the NYOUSA next summer.  I’d love to hear them again.

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The Obama Government Contractor Executive Order

The White House has announced that President Barack Obama will sign an executive order on July 21, 2014, amending Executive Order 11246 to add “sexual orientation” and “gender identity” as prohibited grounds of discrimination by government contractors.  Announcements emanating from the White House suggest that the addition of these terms to the existing executive order are the only substantive changes that will be made.  The non-discrimination requirements will be included in new federal contracts made after the Labor Department has published final regulations implementing the amendments, probably beginning early in 2015.  Only new contracts entered after that date will be affected by the amendments.  [Update: The Order was signed this morning, July 21, and in addition to amending EO 11246, also amends EO 11478, which establishes non-discrimination policy within the Executive Branch, by addition "gender identity" to the categories already listed in the EO, which was originally adopted in 1969 by President Richard M. Nixon and was amended by Bill Clinton to add "sexual orientation" during the 1990s.]

EO 11246 was signed by President Lyndon B. Johnson on September 24, 1965, just a few months after Title VII of the Civil Rights Act of 1964 went into effect at the beginning of July 1965.  EO 11246 charged the Labor Department, through its Office of Federal Contract Compliance Programs (OFCCP), to oversee a program under which “government contracting agencies” would include in every contract (with some exceptions) a provision under which the contractor agreed not to discriminate in employment because of race, color, religion, sex or national origin, the categories of forbidden discrimination under Title VII, and agreed to abide by rules, regulations and relevant orders promulgated by the Labor Department to enforce this requirement.  Contractors are required generally to include similar provisions in any subcontracts they make as part of their performance of their federal contracts.  The penalty for “noncompliance” with these requirements could be cancellation, termination or suspension of the contract, and ineligibility for future contracts.  Complaints about noncompliance are handled administratively; the president does not have the power to enact laws that can be enforced by individual plaintiffs in the federal courts.  Generally EO 11246 charges the Labor Department to investigate complaints, to try to facilitate settlements, and to refer cases that involve violations of federal statutes to the appropriate enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC).  Of course, the EEOC would only have jurisdiction to initiate enforcement action over complaints involving forms of discrimination prohibited by the statutes that agency is charged with enforcing, such as Title VII.

In 2002, President George W. Bush amended the executive order to provide that “this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”  However, the Order states, “Such contractors or subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

According to advance word from the White House, President Obama’s amendments will not change this 2002 religious exemption and will not expand it in any way.  That is to say, religious corporations, associations, educational institutions or societies that contract with the federal government to provide services or goods will have to agree not to discriminate in their employment practices on the ground of sexual orientation or gender identity, which may present some of those organizations with particular challenges in light of the religious doctrines to which they adhere.  This raises immediate questions about whether religious organizations might plausibly argue that they cannot recognize a gay person as a member in good standing of their faith, regardless of that person’s professed beliefs?  Who gets to decide, for example, whether an individual professing to be Catholic but also being openly gay can be denied employment by a Catholic agency under contract to the federal government to provide social welfare services to the public, because the agency does not believe that an openly gay person can be deemed to be a practicing Catholic?

The First Amendment’s Free Exercise Clause generally protects religious organizations from interference by the government in their religious activities.  The Supreme Court has held that organizations of any type do not have a constitutional right to refuse to comply with laws of general application that do not single out religious practices for prohibition.  At the same time, the Court has held that free exercise of religion includes giving religious organizations free reign in their employment policies regarding “ministers,” persons to be employed to carry out the religious mission of the organization.  There is some controversy about who can be deemed a ministerial employee, litigation tending to focus on teachers and administrators in religious schools who teach secular subjects but are deemed by the schools to be “ministers” nonetheless and required to sign employment contracts that commit them to avoiding conduct that violates the tenets of the religion.

After the Supreme Court issued its key ruling about the requirement to comply with laws of general application, Congress passed the Religious Freedom Restoration Act (RFRA), providing that persons with religious objections to complying with laws of general application could claim a religious exemption unless the government could show that the government had a compelling interest supporting the general law and that the law provided the least restrictive alternative to achieving that interest.  In effect, Congress wanted to restore prior Supreme Court case law to the extent possible through a statute by imposing upon itself and the federal regulatory apparatus a limitation on its ability to compel people to comply with legal requirements that would violate their religious beliefs.  Many states passed similar laws placing the same restrictions on their own legislative and regulatory functions.

Last month, the Supreme Court ruled in Burwell v. Hobby Lobby Stores that the federal Dictionary Act’s definition of “person” to include corporations applies to RFRA, in a case where two closely-held family-owned business corporations claimed an exemption from complying with regulations under the Affordable Care Act requiring them to cover certain contraceptive methods in health insurance for their employees.  The Court went on to hold that, assuming the government had a compelling reason for including these contraceptive methods in its coverage requirements, requiring these employers to arrange for and pay for the coverage was not the least restrictive method of achieving the coverage goal, as the government could provide the coverage directly itself, or could provide some other mechanism that would make the coverage available without imposing on the objecting corporation.  Another example of a less restrictive alternative cited by the Court was a regulation that the administration had adopted for religiously-identified non-profit corporations, who could signify their objections to the specific items of coverage on a form provided by the government that they would submit to their health insurer, which would then be required to provide the coverage and seek reimbursement from the government.  (That regulation is under attack by some religious non-profit corporations, that claim that executing the form and sending it t0 their insurer substantially burdens their free exercise rights as well.)

The Court’s Hobby Lobby ruling raised immediate fears about whether corporations owned or operated by individuals with religious objections to homosexuality and/or same sex marriage might claim exemptions from employing or serving gay people or same-sex couples.  In her dissenting opinion, Justice Ruth Bader Ginsburg cited two cases on this point, in which state courts had rejected religious exemption claims from state public accommodations laws by a Minnesota health club, which did not want to have gay members, and a New Mexico wedding photographer, who had rejected a job preparing a wedding album for a lesbian couple.  The New Mexico case also involved that state’s version of RFRA, which the New Mexico Supreme Court held was not violated by application of the public accommodations law to a small business.  Similarly, there is litigation pending in Colorado involving a baker who rejected an order to provide a cake for the wedding celebration of a gay male couple.  These are not the kinds of businesses that would likely contract with the federal government, but the nature of the problem is clear.

Under the Executive Order, for example, could a closely-held family-owned company that produces certain technology that the federal government wants to buy, or that provides consulting services that the federal government wants to obtain, insist that for religious reasons it cannot employ gay people, or more particularly cannot continue to employee gay people who marry same-sex partners?  (There are many reports now of Catholic schools that have employed gay people as teachers and administrators for many years suddenly terminating their employment after learning that these people are marrying or have married a same-sex partner.)  Could a federal contractor refuse to include the same-sex spouse of an employee in its employee benefits plan on the same-basis that it includes different-sex spouses, because of religious objections to same-sex marriage?  EO 11246, as amended on July 21 by President Obama, would probably say no.  But if the protesting contractor sought protection from the non-discrimination requirement under RFRA, how would it fare?

These questions are difficult to answer prospectively.  In his opinion for the Court in Hobby Lobby, Justice Alito said that the court was ruling on the case before it, focusing on whether a closely-held family-owned business with religious objections to some forms of contraception was entitled to an exemption from ACA coverage requirements, at least to the extent that non-profit religiously-affiliated organizations had already been accorded by the Obama Administration in its regulations.  The Court, according to Alito, was not purporting to establish a wide-ranging exception to all legal obligations for all business corporations.  Alito commented that an employer could not rely on its religious beliefs to  seek exemption from the race discrimination requirements of Title VII.  But we don’t know whether that comment implicitly relied on the status of race as a suspect classification under the Equal Protection Clause, or the fact that Title VII recognizes a bona fide occupational qualification defense in cases involving religion, national origin or sex discrimination but not in cases involving race or color.  Did Alito mean to suggest more broadly that the RFRA exemption would not extend to any discrimination claims?  Justice Ginsburg was concerned about this in her dissent when she cited the two gay-specific examples from prior case law.  She might well have also noted the Supreme Court’s decision in Boy Scouts of America v. Dale, where the majority found that the Boy Scouts’ 1st Amendment freedom of expression and association rights took priority over whatever interest the state of New Jersey had in forbidding public accommodations such as the Boy Scouts from discriminating based on sexual orientation.  What would the Supreme Court majority think about the relative weight of an executive order banning sexual orientation or gender identity discrimination as opposed to statutory protection for free exercise of religion in RFRA?  Statutes would logically outweigh executive orders when there is a conflict between the two.  Can a presidential executive order that is not effectuating a policy adopted by Congress (as the original 11246 was effectuating the policy of Title VII, albeit going beyond it by applying the non-discrimination requirement to businesses exempt from coverage under Title VII due to their size or the nature of their business) signify a compelling government interest, or does Congress have the sole authority to establish compelling government interests, since the President’s Executive Orders as a matter of law and custom are aimed at the internal policies of the Executive Branch?

When religious opponents of the LGBT executive order suggest that it is going to lead to litigation, they are not making empty threats.  It is likely that some contractor who loses or fails to obtain a contract because they will not comply on religious grounds with the non-discrimination requirement will go to court seeking injunctive relief, and the question will be squarely presented whether RFRA applies to the situation and whether a compelling state interest can be based on an executive order that is not effectuating a policy decision by Congress?

Other questions arise about the pending version of the Employment Non-Discrimination Act, approved last year by the Senate, which provides a rather broad religious exemption beyond the narrow exemption now found in Title VII, the ministerial exemption, or the Bush amendments to EO 11246.  In the wake of Hobby Lobby, one has to ask whether a narrower exemption, similar to that in Title VII, would survive challenge under RFRA?  Questions for which there are at present no firm answers…

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Atlantic Theater Company’s Production of “Between Riverside and Crazy”

I attended a performance this afternoon of Atlantic Theater Company’s production of Stephen Adly Guirgis’s new play, “Between Riverside and Crazy.”  It was not clear to me whether this was a preview or whether the production has actually opened, but everything went very smoothly and the cast and technical crew certainly have everything under control.

I was very entertained and impressed by this story of an elderly African-American former NYC police officer, retired on a disability pension and struggling along in his rent controlled Riverside Drive apartment.  Other characters are the officer’s son, his son’s girlfriend, another friend of the son who is living in the apartment as a guest, a “church lady” who pays a visit, and a police lieutenant and his police detective fiancé who come to dinner.  This seven-member cast provides lively entertainment in a drama that has moments of comedy and is fast-paced and engaging under the direction of Austin Pendleton.  The set by Walt Spangler provides an excellent representation of one of those big old Upper West Side Manhattan rent controlled apartments.

Stephen McKinley Henderson creates an unforgettable character as “Pops” Washington, the retired cop.  He has been given witty dialogue and he makes the most of it.  Victor Almanzar is amusing and horrifying as an ex-con junkie friend of Pops’ son, and Ray Anthony Thomas is solid as the son, Junior.  Rosal Colon as Junior’s girlfriend, Lulu, provides much of the comic relief as well as some of the pathos.  Michael Rispoli and Elizabeth Canavan play the police officers who are charming at first.  Finally, Liza Colon-Zayas is a “church lady” with an agenda.

I wouldn’t call this a “deep” show, but I think there are many interesting messages buried in it as it explores the perspective of somebody in the position of Pops who is determined not to become a victim of the system that he has come to detest.  This was very much worth seeing, and I hope it draws full houses for the rest of its run.

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Stay Days in the Marriage Equality Fight

On Friday, July 18, several new “stays” were added to the mounting list of pro-marriage-equality rulings that can’t go into effect as appellate courts ponder where they stand on the issue.

The 10th Circuit Court of Appeals ruled that Oklahoma’s ban on same-sex marriage is unconstitutional, but stayed its appeal while the Tulsa County Clerk, represented by Alliance Defending Freedom and the Tulsa County Attorney’s Office, decides whether to petition the Supreme Court for certiorari.  Since Oklahoma’s Governor denounced the court’s decision and said she will fight it, perhaps the state will now step up and have the Attorney General’s office step in to provide the legal representation at the Supreme Court level.  It would be less embarrassing for the state if it were not represented by the right-wing Christian ideologues at ADF, whose attorney argued the case at the 10th Circuit.

The U.S. Supreme Court announced a stay of the injunction that had been issued on May 19 by U.S. District Judge Kimball (D. Utah) in Evans v. State of Utah.  Judge Kimball had ordered the state to recognize the same-sex marriages that were performed between December 20, 2013, and January 6, 2014, pursuant to Judge Shelby’s Dec. 20 opinion finding Utah’s same-sex marriage ban unconstitutional.  The Supreme Court stayed Judge Shelby’s order on January 6, after both Shelby and the 10th Circuit had denied a stay.  In this second case, Judge Kimball denied a stay but temporarily put his opinion on hold to let the state seek a stay from the 10th Circuit.  Just days ago the 10th Circuit saw no reason to stay Kimball’s ruling, but gave the state until July 21 to get a stay from the U.S. Supreme Court.  Utah petitioned the Supreme Court on July 16, the ACLU (representing the plaintiffs) filed its response on the 17th, and Justice Sotomayor, to whom the petition was directed, referred it to the full Court, which granted the stay pending resolution by the 10th Circuit of the state’s merits appeal of Kimball’s ruling.  I had read the state’s petition to the Supreme Court and found it very convincing, in light of the Court’s prior decision to stay Judge Shelby’s order.

In Colorado, where clerks in three counties (Adams, Denver, Pueblo) have been issuing marriage licenses to same-sex couples, the Attorney General finally prevailed in his quest to stop those activities as appeals on the constitutionality of the state’s marriage ban work their way through the system.  On July 9, a state trial judge in Adams County had declared the ban unconstitutional, but stayed his order pending appeal by the state.  The clerk in Boulder had been issuing licenses since late June, when the 10th Circuit issued its ruling in the Utah case.  Her position was that even though the 10th Circuit stayed its ruling to give the state an opportunity to seek further review, the court had declared the marriage ban unconstitutional, and she would no longer be complicit with denying same-sex couples their constitutional rights.  The Attorney General sued the clerk, seeking a court order to stop her from issuing licenses until there is a final appellate ruling on the Colorado marriage ban.  On the same date that one Colorado judge was declaring the ban unconstitutional, another Colorado judge was hearing arguments on the Attorney General’s quest for injunctive relief against the Boulder clerk.  The next day, July 10, that court denied the request, and two more clerks — in Denver and Pueblo Counties — jumped into the fray, issuing licenses.  The Attorney General appealed the denial of an injunction to the Colorado Supreme Court, which issued a terse ruling on July 18, ordering the Adams County and Denver County clerks to stop issuing marriage licenses pending resolution of the state’s appeal of the July 9 decision from Adams County.  Curiously, the court did not mention the Pueblo County Clerk in this order, which emanated from the en banc court.  Governor John Hickenlooper, a recent convert to the marriage equality cause, had urged the Attorney General to refrain from these actions and allow the issuance of licenses, and to not appeal the Adams County trial court ruling, but the A.G. disagreed.

Additionally, we should note news from Florida, where the local press reports that Attorney General Pam Bondi’s action in filing an immediate notice of appeal from the Key West marriage equality decision that was issued this week means that decision is stayed pending appeal to the Florida 3rd District Court of Appeal, so the Monroe County clerk will not begin issuing marriage licenses on Tuesday, as the trial court’s order had specified.

The other significant and somewhat puzzling development of the week was that the 7th Circuit, which had scheduled oral argument in the marriage equality cases from Wisconsin and Indiana for August 13, cancelled that argument without explanation, merely stating that it would be rescheduled.  Possibly this related to the court’s agreement to allow some briefs to be filed as late as August 11, or to a request by one or both states for more time to prepare for oral argument of their appeals, as August 13 was a super-fast-track date.  The pending marriage equality appeals in the 6th Circuit will be argued on August 6, and the pending 9th Circuit appeals will be argued early in September.  The 5th Circuit hasn’t set an argument date yet for the Texas appeal.  The 4th Circuit heard arguments in the spring and, according to press reports in Virginia, is expected to issue its ruling in the Virginia case by the end of July.  Trial courts in other states in the 4th Circuit have put pending marriage equality cases “on hold” until after the 4th Circuit’s opinion is announced.  If the 4th Circuit rules in favor of the plaintiffs, one expects it will stay its ruling to allow the defendants (two Virginia county clerks) to decide whether to petition for rehearing en banc or certiorari; this will present the trial judges in the Carolinas and West Virginia with a judgment call about whether to reactivate those cases and decide summary judgment motions, or to hold up while the case plays out in the Supreme Court.  This was actually the strategy of District Judge Kern in Oklahoma, who had put that marriage case — which also included a challenge to DOMA Section 3 — on hold while the DOMA challenges in other states worked their way through Supreme Court review.

So, at present, there are lots of balls in the air, and plenty of stayed marriage decisions in places like Idaho, all the states of the 6th Circuit, Virginia, Wisconsin, Indiana, and Texas, as well as Utah and Colorado.  At this point, it seems that the only ways to win the right to marry quickly involve either persuading state officials not to appeal a trial court ruling (see Oregon and Pennsylvania, where the late-intervening clerk has not yet given up, having filed a new petition with the 3rd Circuit seeking en banc consideration of the denial of her intervention petition), winning a state constitutional ruling (New Mexico, New Jersey), or getting a legislature to take affirmative action (Hawaii and Illinois since last year’s U.S. v. Windsor ruling from the Supreme Court, which undoubtedly had an influence on wavering legislators).


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