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Posts Tagged ‘marriage equality’

Florida Ordered to Correct Death Certificates to List Surviving Same-Sex Spouses Without Requiring Individual Court Orders

Posted on: April 1st, 2017 by Art Leonard No Comments

U.S. District Judge Robert L. Hinkle, who rendered a decision prior to Obergefell v. Hodges finding that Florida’s ban on same-sex marriages was unconstitutional, had the opportunity to apply his ruling further in Birchfield v. Armstrong, Case No. 4:15-cv-00615 (N.D. Fla.), issued on March 23, 2017.  The case was brought by Lambda Legal as a class action on behalf of all survivors of same-sex spouses who died in Florida prior to the Obergefell decision, and who were thus not listed as surviving spouses on their death certificates.  Those certificate identify the decedents as being unmarried at death because Florida did not recognize their same-sex marriages, which had been performed out-of-state in jurisdictions that allowed such marriages.

There are two named plaintiffs, Hal B. Birchfield and Paul G. Mocko. Birchfield married James Merrick Smith in New York in 2012, the year after New York adopted its Marriage Equality Law.  Smith died in Florida in 2013.  Mocko married William Gregory Patterson in California in 2014, the year after the U.S. Supreme Court dismissed an appeal and left standing a federal court order striking down California Proposition 8, thus allowing the resumption of same-sex marriages in California as decreed by that state’s Supreme Court in 2008.  Patterson died in Florida later in 2014.  In both cases, the decedents were identified as unmarried on their death certificates, and any mention of their surviving spouses was omitted.

A proper death certificate is an important document for a surviving spouse to have as they settle the affairs of their decedent, especially when it comes to dealing with issues involving property ownership, bank accounts, survivor benefits under government programs, insurance policies and the like. To have to initiate litigation to obtain a proper death certificate is an inconvenience at a difficult time.

After the Obergefell decision, Birchfield and Mocko sought to get corrected death certificates.  But the state insisted, pursuant to a statute and an interpretive rule, that they could only get such certificates by obtaining an individual court order.  Lambda sued on their behalf in federal court seeking class relief, arguing that the Obergefell decision must be applied retroactively and that the state should have to issue corrected death certificates upon presentation of documentation of the out-of-state weddings, without requiring surviving spouses to go to state court for an order.

The state relied on Fla. Stat. Sec. 382.016(2), which states: “CERTIFICATE OF DEATH AMENDMENTS – Except for a misspelling or an omission on a death certificate with regard to the name of the surviving spouse, the department may not change the name of a surviving spouse on the certificate except by order of a court of competent jurisdiction.”

Judge Hinkle pointed out that one might plausibly read this statute to authorize exactly the relief that Lambda Legal was seeking in this case. “One might conclude that the explicit exception to the court-order requirement – the exception for ‘an omission on a death certificate with regard to the name of the surviving spouse’ – applies to a death certificate that both omits the fact that the decedent was married and omits the name of the surviving spouse.”  The problem, however, is that the ambiguity created by the wording of the statute had been addressed years ago through an interpretive rule adopted by the Health Department, which allows an amendment to marital statusor the name of a surviving spouse, but not both, without a court order.  “The defendants refused to depart from that interpretation,” the judge observed, without noting an explanation offered for such refusal.  The obvious explanation is sheer cussedness.  As far as Florida officials are concerned, apparently, they won’t do anything voluntarily to effectuate marriage equality beyond what a court orders them to do.  Witness, for example, the state’s obstinacy on the issue of parental status presumption for same-sex spouses of women who give birth.  Thus, the need for this wasteful litigation.

“As a matter of federal constitutional law,” wrote Judge Hinkle, “a state cannot properly refuse to correct a federal constitutional violation going forward, even if the violation arose before the dispute over the constitutional issue was settled. If the law were otherwise, the schools might still be segregated.”  Florida concedes in this case that as a result of Obergefell, declaring a constitutional right under a provision adopted as part of the Constitution shortly after the Civil War, its failure to recognize these marriages at the time of death was unconstitutional.  “They are willing to correct any pre-Obergefell constitutional violation,” Hinkle continued. “But the defendants insist that, as a prior condition to any correction, an affected party must obtain an order in response to an individual claim in state court.  Not so.  As the Supreme Court said long ago, 42 U.S.C. Section 1983 affords a person whose federal constitutional rights have been violated ‘a federal right in federal courts.’  In short, a federal court has jurisdiction to remedy a federal violation, including, when otherwise proper, through a class action.”

Hinkle found this was an appropriate case for such class relief. “To the extent the defendant state officials simply need a clear resolution of the perceived conflict between the federal constitutional requirement and the state statute, this order provides it.”  Acknowledging that state officials could legitimately seek proof that the marriages in question took place, Hinkle said that the state could require the submission of an application, affidavit, and appropriate documentary evidence.  “This order provides that, upon submission of the same materials, the defendants must correct a constitutional error that affected a death certificate’s information on both marital status and a spouse’s identity.”  If they were going to insist on a “court order” to make such a change, then a copy of Judge Hinkle’s order in this case can accompany the application.  “This injunctions binds the defendants [Florida’s Surgeon General/Secretary of Health and the State Registrar of Vital Statistics] and their officers, agents, servants, employees, and attorneys – and others in active concert or participation with any of them – who receive actual notice of this injunction by personal service or otherwise.”

Hinkle indicated that he would retain jurisdiction of the case “to enforce the injunction” if necessary and to “award costs and attorney’s fees” to the plaintiffs. If past is prologue, expect haggling about the amount of attorney’s fees the state will be ordered to pay.  Lambda Legal attorneys Karen L. Loewy and Tara L. Borelli represent the plaintiffs with volunteer co-counsel David P. Draigh and Stephanie S. Silk of White & Case LLP.

Washington Supreme Court Unanimously Rules Against Florist Who Refused Flowers for Same-Sex Wedding Ceremony

Posted on: February 17th, 2017 by Art Leonard No Comments

 

Continuing an unbroken string of appellate rulings finding that small businesses cannot refuse to supply goods or services for same-sex marriages in jurisdictions that ban sexual orientation discrimination, the nine members of the Supreme Court of the State of Washington unanimously ruled on February 16 that Barronelle Stutzman, proprietor of Arlene’s Flowers, Inc., and her business, violated the Washington Law Against Discrimination (WLAD) and the state’s Consumer Protection Act, and had no constitutional right to do so based on her religious beliefs. State of Washington v. Arlene’s Flowers, 2017 Wash. LEXIS 216, 2017 WL 629181.

This ruling follows a string of losses by businesses that sought to rely on religious objections to refuse wedding-related services to same-sex couples, involving a photographer in New Mexico (Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013)), a baker in Colorado (Mullins v. Masterpiece Cakeshop, 370 P.3d 272 (Col. App. 2015)), and a farm that provided a venue for weddings in upstate New York (Gifford v. McCarthy, 23 N.Y.S.3d 422 (N.Y. App. Div. 2016)).  So far, no final court decision has ruled in favor of a for-profit business claiming a right to discriminate against same-sex couples in connection with their weddings, either under the federal and/or state constitutions or under a state’s Religious Freedom statute.  Washington State does not have such a statute, so Ms. Stutzman’s case came down to two questions: whether her refusal of services violated the public accommodations and consumer protection statutes, and whether she was privileged to withhold her services by the 1st Amendment of the U.S. Constitution or an equivalent provision of the Washington Constitution.

Robert Ingersoll and Curt Freed had been living together in what the opinion by Justice Sheryl Gordon McCloud calls “a committed, romantic relationship” for several years. Over those years they had been regular customers of Arlene’s Flowers, spending by their estimate as much as $1,000 total at the store.  After the Washington legislature passed a bill allowing same-sex marriages in 2012, Freed proposed to Ingersoll and they planned to marry on their ninth anniversary in September 2013 with a large reception at a major event venue, “complete with a dinner or reception, a photographer, a caterer, a wedding cake, and flowers.”  Naturally, Ingersoll went to Arlene’s Flowers to make arrangements, anticipating no problems because the owner, Ms. Stutzman, knew him and Curt, knew they were gay, and had dealt with them many times.  They considered Arlene’s Flowers to be “their florist.”

So it was a big surprise when Stutzman told Ingersoll that she could not do the flowers for their wedding because of “her relationship to Jesus Christ.” Indeed, the conversation did not even get as far as discussing what kind of flowers or floral arrangements the men wanted, or whether Stutzman was being asked to deliver and set up floral arrangements at an event venue or just to prepare them to be picked up at her store.

The story quickly got media play after Ingersoll posted about it on his facebook.com page, inspiring the state’s Attorney General Bob Ferguson to initiate litigation against Stutzman and her business, and Ingersoll and Freed filed their own complaint. The cases were combined in Benton County Superior Court, where the trial judge granted summary judgment against Stutzman.

The analysis by the court will be familiar to anybody who has been following this issue as it has unfolded in parallel with the advance of marriage equality. Courts have generally rejected the argument made by Stutzman that refusing to do business with same-sex couples in connection with their marriages is not sexual orientation discrimination because the refusal has to do with “conduct” (a wedding) rather than “status” (sexual orientation).  The Washington court decisively rejected this argument, advanced by lawyers from Alliance Defending Freedom, the organization that has been involved in the other cases mentioned above and which is petitioning the Supreme Court to review the Colorado baker case.  So the major focus of the case is not on whether she violated the statutes, that being easily decided, but rather on whether she was privileged to do so because of constitutional protection for her freedom of religion, speech or association.

Most civil rights laws include provisions exempting religious institutions and their clergy from complying to the extent that their doctrines would be violated, but the exemptions usually do not extend to private, for-profit businesses. The Supreme Court of the United States ruled in the Hobby Lobby case, consistent with prior decisions going back to the 1990s, that the 1st Amendment does not require the government to exempt businesses from complying with statutes of general application, such as civil rights laws or, in that case, the Affordable Care Act.  However, under the federal Religious Freedom Restoration Act (RFRA), a statute enacted in response to the Supreme Court’s religious freedom ruling, the Supreme Court found that a for-profit business may be entitled to claim an exemption from complying with a federal statute or regulation because of the religious views of the owners of the business.  The test in such a case would be whether the challenged statute imposes a substantial burden on the free exercise rights of the business, and then whether the government has both a compelling interest for the statute and has adopted the least intrusive means of achieving that interest.

Washington State does not have a RFRA, so Stutzman was limited to making constitutional claims. The court rejected her argument that her floral arrangements were the kind of artistic creations entitled to free speech protection, or that requiring her to design and supply floral arrangements for a wedding ceremony of which she disapproved would burden her freedom of association.  The court conceded that requiring her to devise floral decorations for such an event would burden her free exercise of religion, but found that the state’s compelling interest in protecting all its residents from discrimination in places of public accommodation clearly outweighed the incidental burden on religion.

“As applied in this case,” wrote Justice Gordon McCloud, “the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious exercise under either the First Amendment or article I, section 11 [of the Washington constitution], because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.”

When the court refers to a “neutral law,” it means a law that does not expressly target religion and was not enacted for the specific purpose of imposing a burden on religion. A law that, in general, forbids all public accommodations from discrimination because of sexual orientation or gender identity, is such a “neutral law.”  Of course, one notes, religiously-inspired advocates such as Alliance Defending Freedom would argue that it is not neutral, and that legislators adopt those laws knowing that they will burden religious believers, because testimony to that effect is usually presented in legislative hearings and the argument is made during legislative debate.  But the courts generally will not attribute a discriminatory intent to the legislature as a whole on the basis of such testimony and arguments.

Stutzman had argued that her refusal to “do” the flowers for the wedding was not a serious problem for the two men because she suppled Ingersoll with the names of other florists who would readily do it, and in fact after this case got publicity several florists contacted Ingersoll and Freed and volunteered to provide flowers for their wedding. In the event, the men were so affected by what had happened to them that they dropped their plans for a big wedding ceremony and instead had a small private event with minimal fuss. The court said that being able to get flowers was not really the issue in this case.  Rather, it was about the violation of civil rights stemming from a denial of services because the customers were a gay couple.  Indeed, in her deposition Stutzman conceded that she would happily supply flowers for a Muslim wedding or a wedding for atheists, making clear that her objections here focused on the fact that it was for a “gay wedding.”  It was not relevant that she claimed she was not homophobic and happily sold flowers to Ingersoll and Freed when it was not for a wedding.  That was not the point of the case.

The timing of this decision is particularly interesting, because the Supreme Court was scheduled to discuss whether to grant review of the Colorado baker case on February 17, having listed it at two of the Court’s prior conferences and having sent for and received the full record from the state courts just recently. If the Court made a decision to review that case at the February 17 conference, it would probably be announced on Tuesday, February 21.

The ACLU of Washington has been involved in representing Ingersoll and Freed in this case. A spokesperson for Alliance Defending Freedom, representing Stutzman, announced that they would petition the Supreme Court to review this case as well as the Colorado baker case.

 

Houston Benefits Dispute May Bring Marriage Equality Issue Back to the Supreme Court

Posted on: January 25th, 2017 by Art Leonard No Comments

Conservatives eager to bring the marriage equality issue back to the U.S. Supreme Court after President Donald J. Trump has had an opportunity to appoint some conservative justices may have found a vehicle to get the issue there in an employee benefits dispute from Houston. On January 20, the Texas Supreme Court announced that it had “withdrawn” its September 2, 2016, order rejecting a petition to review a ruling by the state’s intermediate court of appeals that had implied that the U.S. Supreme Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, might require Houston to provide the same spousal health benefits to same-sex as different-sex spouses of City workers.  Instead, announced the Court, it had reinstated the petition for review and scheduled oral argument for March 1, 2017.  Parker v. Pidgeon, 477 S.W.3d 353 (Tex. 14th Dist. Ct. App., 2015), review denied, sub nom. Pidgeon v. Turner, 2016 WL 4938006 (Texas Supreme Ct., September 2, 2016), No. 16-0688, Order withdrawn, motion for rehearing granted, petition reinstated (Jan. 20, 2017).

The plaintiffs in the Houston benefits case, Houston taxpayers Jack Pidgeon and Larry Hicks, had filed a motion for rehearing with active support from Governor Greg Abbott and Attorney General Ken Paxton, both ardent marriage equality opponents eager to chip away at the marriage equality ruling or even to get it reversed. The Texas Supreme Court’s order denying review had been issued over a fervent dissenting opinion by Justice John Devine, who argued for a limited reading of Obergefell, and the Republican leaders’ amicus brief in support of review channeled Devine’s arguments.

Trump’s nomination of a conservative to fill the seat left vacant when Justice Antonin Scalia died last February would not change the Supreme Court line-up on marriage equality. Obergefell was decided by a 5-4 vote, with Scalia dissenting.  However, it is possible – even likely, if rumors of a possible retirement by Justice Anthony Kennedy at the end of the Court’s 2017-18 Term are accurate – that Trump will get an opportunity to replace the author of the Obergefell decision with a more conservative justice in time for the Court’s 2018-19 Term.  Regardless how the Texas Supreme Court rules on this appeal, its interpretation of the scope of Obergefell could set up a question of federal constitutional law that could be appealed to the U.S. Supreme Court, and once the issue gets to the Court, it is possible that the Obergefell dissenters, strengthened in number by new conservative appointees, could take the opportunity to narrow or even overrule the marriage equality decision.

The Houston dispute dates back to 2001, when Houston voters reacted to a City Council move to adopt same-sex partner benefits by approving a City Charter amendment that rejected city employee health benefits for “persons other than employees, their legal spouses and dependent children.” In 2001 same-sex couples could not legally marry anywhere in the world, so this effectively denied benefits to any and all same-sex partners of City employees.  Texas was also one of many states that put firm bans on same-sex marriage into its constitution and family law statute.

After the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in June 2013, Houston Mayor Annise Parker, an openly-lesbian longtime LGBT rights advocate, announced the extension of health benefits to same-sex spouses of City employees. Although same-sex couples could not then marry in Texas, they could go to any of a number of other states to get married, including California and New York and, most conveniently as a matter of geography, Iowa.  Parker and her City Attorney concluded that under the Supreme Court’s reasoning in the DOMA case, United States v. Windsor, 133 S. Ct. 2675, Houston’s city government was obligated to recognize lawfully contracted same-sex marriages of city employees and provide them the same benefits that were accorded to other city employees.  Federal constitutional requirements would override the City Charter ban as well as state law.

Taxpayers Pidgeon and Hicks filed suit in state court, contending that Parker’s action violated the Texas Constitution and statutes, as well as the city charter amendment. They persuaded the trial judge to issue a temporary injunction against the benefits extension while the case was pending.  The City appealed that ruling to the 14th District Court of Appeals, which sat on the appeal as new marriage equality litigation, sparked by the Windsor ruling, went forward in dozens of states including Texas.  A Texas federal district judge ruled in 2014 in the De Leon case that the state’s ban on same-sex marriage was unconstitutional.  The U.S. 5th Circuit Court of Appeals heard the state’s appeal of that ruling in January 2015.  After the U.S. Supreme Court ruled for marriage equality in June 2015, the 5th Circuit issued its decision upholding the Texas district court, 791 F.3d 619, which in turn ordered Texas to allow and recognize same-sex marriages.  This prompted the 14th District Court of Appeals to issue its decision on July 28, 2015.

The Court of Appeals ruling in Parker v. Pidgeon, 477 S.W.3d 353, said, “Because of the substantial change in the law regarding same-sex marriage since the temporary injunction was signed, we reverse the trial court’s temporary injunction and remand for proceedings consistent with Obergefell and De Leon.”  The court did not rule on the merits, merely sending the case back to the trial court to issue a decision “consistent with” the federal marriage equality rulings.  What those rulings may require in terms of city employee benefits is a matter of some dispute.

Pidgeon and Hicks petitioned the Texas Supreme Court to review this court of appeals decision, but the court denied that petition on September 2, 2016, with Justice Devine dissenting. Devine argued that the court should have taken up the case because, in his view, the majority of the court “assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.  I disagree.” He continued: “Marriage is a fundamental right.  Spousal benefits are not.  Thus, the two issues are distinct, with sharply contrasting standards for review.  Because the court of appeals’ decision blurs these distinctions and threatens constitutional standards long etched in our nation’s jurisprudence, I would grant review.”

Justice Devine was mistaken as to the court of appeals decision. That court did not hold in its July 28 ruling that same-sex spouses of Houston employees are entitled to health benefits from the city.  Rather, it ruled that because of “substantial change in the law” since the temporary injunction was issued, the injunction should be reversed and the case sent back to the trial court for “proceedings consistent with Obergefell and De Leon.”  If the trial court, on reconsideration, concluded that Obergefell and De Leon did not require the City to extend benefits to same-sex spouses of its employees, as Justice Devine argued in his dissent, the trial court could still rule in favor of Pidgeon and Hicks.  All the court of appeals directed the trial judge to do was to rethink the case in light of the new federal rulings.

Devine’s argument rests on a very narrow reading of Obergefell.  He interprets the Supreme Court’s decision to be sharply focused on the right of same-sex couples to marry, resting on the Court’s conclusion that the right to marry is a “fundamental right.”  Thus, a state would have to have a “compelling interest” to deny the right, a test that the Supreme Court found was not met.  However, pointed out Devine, the Supreme Court never explicitly said that the federal constitution requires state and local governments to treat all marriages the same, regardless whether they are same-sex or different-sex marriages.  And, he argued, public employees do not have a fundamental constitutional right to receive health insurance benefits from their employer.  Thus, he contended, the state could decide who gets benefits based on its own policy considerations, which the courts should uphold if they satisfy the relatively undemanding “rationality” test that is used when a fundamental right is not at stake.  As to that, he argued that the state’s interest in procreation by married different-sex couples could justify extending benefits to them but not to same-sex couples.

A contrary argument would note that Justice Kennedy’s opinion in Obergefell specifically listed health insurance as one of the many benefits associated with marriage that contributed towards the conclusion that the right to marry was a fundamental right because of its importance to the welfare of a couple and their children.  Similarly, Justice Kennedy did not consider the “procreation” argument persuasive to justify denying the right to marry to same-sex couples.  On the other hand, the Supreme Court did not say anywhere in its opinion that states are constitutionally required to treat same-sex and different-sex couples exactly the same in every respect, ignoring any factual distinctions between them.  Justice Devine’s argument seems strained, but not totally implausible, especially in the hands of a conservatively-inclined court.

Timing is everything in terms of getting an issue before the Supreme Court, especially if the aim of Texas conservatives and their anti-LGBT allies around the country is to get the issue there after Trump has had two appointments.  Once the Texas Supreme Court hears oral argument on March 1, it could take as long as it likes to issue a ruling on the appeal, and it could be strategic about holding up a ruling until it looks likely that any Supreme Court appeal would be considered after the 2017-18 Term of the Court has concluded in June 2018.  After the Texas Supreme Court rules, the losing party could take up to 90 days to file a petition in the Supreme Court.  If the petition arrives at the Supreme Court after the end of its term, that Court won’t decide whether to grant review until the beginning of its new term in the fall of 2018, and if the petition is granted, argument would not take place for several months, giving the parties time to brief the merits of the case.  If the Texas Supreme Court decides to affirm the court of appeals, it is highly likely that Pidgeon and Hicks, abetted by Abbott and Paxton, will seek Supreme Court review.  If the Texas Supreme Court reverses, the City of Houston will have to decide whether to seek Supreme Court review, or whether to adopt a wait-and-see attitude while the trial court proceeds to a final ruling on the merits of the case.  And the trial court could well decide, upon sober reflection, that Obergefell compels a ruling against Pidgeon and Hicks, which would put them back in the driver’s seat as to the decision to appeal to the Supreme Court.

If a second Trump appointee was confirmed while all of this was playing out, the case would be heard by a bench with a majority of conservative justices appointed by Republican presidents, one by George H.W. Bush (Clarence Thomas), two by George W. Bush (Chief Justice John Roberts and Samuel Alito), and two by Donald Trump. Trump’s appointees would be joining three Republican colleagues who filed or signed dissents in the Windsor and Obergefell cases.  Regardless of how the Petitioner frames the questions posed to the Court, the justices are free to rewrite the question or questions on which they grant review.  If a majority of the newly-constituted Court is eager to revisit Obergefell, they could grant review on the question whether Obergefell was correctly decided.  Based on past history, they could reach that issue if a majority wants to do so without signaling its salience in the Order granting review.

Much of this is conjecture, of course. Justice Devine was a lone voice dissenting from the September 2 order to deny review in this case.  But that order was issued at a time when national pollsters were near unanimous in predicting that Hillary Clinton would be elected and, consequently, would be filling the Scalia vacancy and any others that occurred over the next four years. The political calculus changed dramatically on November 8 when Trump was elected. Even though he has stated that he accepts marriage equality as a “settled issue,” his announced intention to appoint Justices in the image of Scalia and to seek reversal of Roe v. Wade, the Court’s seminal abortion decision from 1973, suggests that he will appoint justices who have a propensity to agree with the Obergefell dissenters that the marriage equality ruling was illegitimate.  (Chief Justice Roberts wrote in his dissent that it had “nothing to do with the Constitution.”)  Although the Court has frequently resisted efforts to get it to reverse highly consequential constitutional decisions, it has occasionally done so, most notably in the LGBT context in its 2003 ruling in Lawrence v. Texas, striking down a state sodomy law and overruling its 1986 decision in Bowers v. Hardwick.

After the election, many LGBT rights organizations issued statements to reassure people that marriage equality would not immediately disappear after Trump took office. That remains true.  A constitutional ruling by the Supreme Court can only be changed by the adoption of a constitutional amendment, which Democrats can easily block in Congress, or overruling by the Supreme Court, which requires that a new case come up to the Court at a time when a majority of the Court is receptive to the overruling argument, which seems to be at least two years off from now.  But these statements, including those by this writer, conceded that in the long run it was possible that Trump’s Supreme Court appointments and new appeals headed to the Supreme Court might come together to endanger marriage equality.  This new development in the Houston benefits case shows one way that could happen.

No, Donald Trump Can’t Repeal Marriage Equality

Posted on: November 11th, 2016 by Art Leonard No Comments

Some panicky LGBT people have been calling the LGBT legal and political organizations to ask whether they should accelerate their wedding plans to marry before Donald Trump takes office, and many are expressing concern that the marriage equality victory, won in the Supreme Court on June 26, 2015, after so much hard work and heartache, is now in danger of being reversed, and that their own same-sex marriages might become invalid.

 

Although nobody can predict the future with absolute certainty, it is highly unlikely that the marriage equality decision will be reversed, and it is an absolute certainty that Trump as president will not have the authority to reverse it on his own or even with the connivance of Congress.  Furthermore, there is good legal authority to conclude that a valid marriage, once contracted, can only be ended by a divorce or by the death of one of the spouses, not by executive fiat or legislative action.

 

The Supreme Court ruled in Obergefell v. Hodges, voting 5-4, that same-sex couples have a right to marry as part of the liberty guaranteed under the 14th Amendment of the Constitution, bolstered by the constitutional guarantee of equal protection of the laws.  A ruling on a constitutional right by the U.S. Supreme Court can only be changed in one of two ways: a constitutional amendment, or an overruling by the Supreme Court in a later case.  Once a case is decided and the Court sends its mandate out to the lower court from which the case was appealed, the losing party can file a petition seeking a rehearing, but such a petition has to be filed quickly and the Court almost always denies them.  We are now 18 months out from the Obergefell ruling.  It is final, done, no longer open to reconsideration by the Court.  And the President has no power to “repeal” or “overrule” it by himself.  Neither does Congress.

 

During the campaign, Donald Trump did not threaten to try to repeal or reverse the ruling on his own. He said he thought the question of marriage should have been left to the states, so he disagreed with the Court’s decision, and he said he would consider appointing new justices to the Supreme Court who would vote to overrule it.

 

Trump can’t appoint a new justice to the Court until there is a vacancy.  There is one now, due to the death of Justice Antonin Scalia last winter and the refusal by the Senate to consider President Obama’s nomination of Judge Merrick Garland of the D.C. Circuit Court of Appeals to replace him.  But Justice Scalia dissented in the Obergefell case, so replacing him with a conservative judge would not change the outcome.  The five-member majority in Obergefell – Justices Anthony Kennedy (who wrote the Court’s opinion), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – are all still there.  And there is no case now pending before the Court that would provide a vehicle for overruling Obergefell v. Hodges.  And any marriage equality opponent thinking strategically would be waiting until one of those majority justices leaves before attempting to launch a legal challenge.

 

What about the constitutional amendment route?  That is not going to happen.  Trump’s election doesn’t affect that at all, since the President plays no role in amending the Constitution.  Article V makes it so difficult to pass an amendment that our 240-year-old Constitution has picked up only 27 amendments, ten of them being the Bill of Rights adopted in 1791, and the most recent one, adopted in 1992, a quarter century ago, requiring that any pay raise that Congress votes for itself cannot go into effect until after the next House of Representatives election.  In order to propose a new amendment, at least 2/3 of each house of Congress has to approve it, and then it has to be ratified by at least ¾ of the states.  Alternatively, 2/3 of the states can apply to Congress to call a Constitutional Convention for the purpose of proposing amendments, but any amendments proposed would still require ratification by ¾ of the states.

 

By the time the Supreme Court decided Obergefell in 2015, popular opinion polls showed that a clear majority of the public supported marriage equality, and that margin of support only increases over time, as polling in the early marriage equality states such as Massachusetts has shown.  Amendments to the Constitution can only pass with overwhelming public support.  There is no overwhelming public support to abolish same-sex marriage.  That effort is now the province mainly of far-right-wing cranks and religious fanatics.  And as long as the Democrats hold more than 1/3 of the seats in the Senate, it is highly unlikely that a Marriage Amendment would get the necessary 2/3 vote in that chamber.  Indeed, the Democrats hold enough seats in that House, in combination with some more moderate Republicans, to block it in that chamber as well.  So, marriage equality opponents, forget about passing a Marriage Amendment.

 

The alternative, of course, is for opponents to set up a lawsuit raising the question and to get it to the Supreme Court after Trump (or a successor) has had an opportunity to appoint somebody to replace a member of the Obergefell majority.   That majority includes the three oldest members of the Court, Ginsburg, Kennedy and Breyer, so it is possible Trump will have that opportunity before the end of a four-year term.   Even then, however, an overruling is highly unlikely.

 

First, a case presenting the question has to come to the Court, and the issue of marriage equality has to be central to that case.  The Court may be presented over the next few years with cases that involving marriage equality in some way.  They already have a petition to review the Colorado marriage cake case, presenting the claim that a baker’s 1st Amendment rights are violated by fining him under a state anti-discrimination law for refusing to make a wedding cake for a gay couple, but I’m not sure such a case, even if the Supreme Court decided to hear it, would provide a vehicle for overruling Obergefell.  More likely, a challenge would come from some state deciding to provoke a lawsuit by denying equal treatment for some benefit to a married same-sex couples. But it’s not enough just to petition the Court, because the Court has complete discretion about whether to accept a case for review, and it takes four Justices to grant such a petition.  By the time they get such a petition AFTER a change of membership has reduced the Obergefell majority, perhaps several years from now, same-sex marriage will be such a settled issue, with so many tens of thousands of same-sex couples married throughout the country, that it seems highly unlikely that even four members of the Court would be motivated to reopen the issue.

 

Furthermore, the Court normally embraces a concept called “stare decisis,” a Latin term meaning standing by what has been decided.  They are very reluctant to overrule themselves, especially when a decision has been embraced by society and incorporated into the everyday lives of many people.  When they do overrule a prior decision, it is usually in the direction of realizing that the old decision wrongly denied a constitutional claim or adopted an incorrect and harmful interpretation of a statute.   The Court resists attempts to get it to cut back rights that it previously recognized.

 

In the course of litigating about LGBT rights, the Court has twice overruled past decisions.  In 2003, the Court overruled Bowers v. Hardwick (1986) when it decided that the constitution protected people engaged in consensual gay sex from criminal prosecution, in Lawrence v. Texas (2003).  Indeed, the Court said that Bowers was wrong when it was decided.  The second time, it overruled Baker v. Nelson (1972) when it held that same-sex couples have a right to marry.  Baker, however, was a one-sentence decision stating that the issue of same-sex marriage did not present a “substantial federal question.”  In both cases, overruling involved a determination that the prior case had wrongly failed to recognize a constitutional right, so the new decision marked an expansion of liberty and equality. The Court is unlikely to overrule a case in order to contract liberty or deny equality.

 

As to the validity of existing same-sex marriages, when Californians passed Proposition 8 in 2008 after several thousand same-sex couples had married in that state, the California Supreme Court ruled that although Prop 8 was validly enacted, it could not retroactively “un-marry” all those couples.  Their marriages would continue to be valid and recognized by the state.  It is unlikely that the U.S. Supreme Court would take a different position regarding existing same-sex marriages if it were to overrule Obergefell.  That would raise daunting due process and equal protection questions.

 

Trump’s taking office does not present a direct and present threat to marriage equality.  It does present many other threats, including the loss of pro-LGBT executive orders and the likely abandonment by federal agencies of the position that sex discrimination laws protect LGBT people from discrimination because of their sexual orientation or gender identity.  But those are other issues….

A Flood of New Litigation on LGBT Rights

Posted on: May 10th, 2016 by Art Leonard No Comments

May has brought a flood of litigation over LGBT rights in the federal courts. During the first few days of the month, half a dozen federal lawsuits were filed addressing either the transgender bathroom issue or continuing state-level resistance to marriage equality.

First out of the box was a lawsuit filed in federal court in Chicago on May 4 by two right-wing litigation groups – The Thomas More Society and the Alliance Defending Freedom – challenging the U.S. Department of Education’s agreement with Township School District 211 that settled a lawsuit about transgender restroom access.   Under the settlement agreement the school district will allow transgender students to use restrooms and other facilities consistent with their gender identity.  The case stirred considerable local controversy, and the litigation groups were able to recruit five students and their parents, banding together as “Students and Parents for Privacy,” to challenge the settlement.  They argue that the students have a fundamental constitutional right of “bodily privacy” that is violated when transgender students show up in the restroom, that the settlement violates the parents’ fundamental right to direct the education and upbringing of their children by exposing the children to such shocking things, and, perhaps most importantly, that the Education Department’s position that gender identity discrimination violates Title IX of the Education Amendments Act, a federal law that bans sex discrimination in schools that receive federal money, is a misinterpretation of that statute and was not validly adopted.

This last argument rests on a plausible reading of the Administrative Procedure Act, a federal statute that specifies procedures that federal agencies must follow when they adopt new regulations. While the Education Department has not adopted a regulation on the subject, the plaintiffs make a strong argument that its enforcement of its interpretation is tantamount to a regulation.  The plaintiffs argue that the Department is not free to take such a position without going through the formalities of the Administrative Procedure Act, because the Department is enforcing its view as if it was a regulation and because the position it is taking was consistently rejected for the first several decades of Title IX’s existence.  (The statute dates from the early 1970s.)  If the courts agree, the Department would have to go through a time-consuming process that could stretch out over many months in order to adopt a valid regulation, and then the regulation would be subject to challenge in the federal appeals courts, which could tie it up in litigation for years.

On the other hand, many of the plaintiffs’ arguments have already been rejected by the Richmond-based U.S. Court of Appeals for the 4th Circuit, when it ruled on April 19 that a federal court in Virginia should have deferred to the Education Department’s interpretation of Title IX in a case brought by a transgender boy seeking appropriate restroom access in his Virginia high school.  That ruling turned on the court’s agreement with the Education Department that existing statutory provisions and regulations (which allow schools to maintain separate restrooms for males and females) were ambiguous as to how to treat transgender people, justifying the Department in adopting a position consistent with its view of the purpose of the law to provide equal educational opportunity.  The 4th Circuit held that the district court should defer to the Department’s judgment, since it was not a clearly erroneous interpretation of the statute and the existing regulations.  In the Chicago lawsuit, the plaintiffs argue that the statute and regulations are not ambiguous, but this rests on their assertion that the Congress that passed Title IX so long ago could not have intended any meaning for the term “sex” other than “biological sex” as determined at birth.  The 4th Circuit, by contrast, found that the term “sex” without any explanatory statutory definition could have a variety of meanings depend upon the context in which it was used, and is thus inherently ambiguous.

Chicago is in the 7th Circuit, so the 4th Circuit’s ruling is not binding on the lawsuit filed there.  More than thirty years ago, the 7th Circuit ruled in a case under Title VII of the Civil Rights Act that discrimination because of gender identity did not violate the sex discrimination provision and the federal court in Chicago may find itself constrained, if not directly bound, by that precedent under a different but parallel statute, although thirty years of developments in the courts have arguably rendered it obsolete.  Federal courts have generally held that the term “sex” in Title VII and Title IX should be given the same meaning, and that cases construing one of those statutes can be consulted when construing the other.

Just five days later, on May 9, there was a flurry of new litigation in the U.S. District Courts of North Carolina, focused on the bathroom provisions of H.B. 2. H.B. 2 was introduced in the state legislature, approved by both houses and signed by Governor Pat McCrory in one day, March 23.  It wiped out local government bans on sexual orientation and gender identity discrimination, quashed the right of North Carolinians to sue for any kind of discrimination in state courts, and prohibited localities from adopting their own rules on government contracting and minimum wages.  Most controversially, however, it provided that in all public facilities with restrooms, changing rooms, locker rooms and the like, multi-occupancy facilities must be segregated by biological sex, defined as the sex recorded on a person’s birth certificate.  The state’s attorney general, Roy Cooper, denounced the measure as discriminatory and said his office would not defend it.

Lambda Legal and the ACLU filed a federal lawsuit in the Middle District of North Carolina on March 28, challenging portions of H.B. 2 under the 14th Amendment and Title IX, and subsequently one of the transgender plaintiffs in the case also filed charges of discrimination under Title VII with the Equal Employment Opportunity Commission (which had ruled last year that Title VII requires employers to allow transgender employees to use restrooms consistent with their gender identity).  Within a few weeks, the 4th Circuit’s April 19 ruling in the Virginia Title IX case placed the legality of the bathroom provisions in doubt.  The controversy surrounding H.B. 2, especially the bathroom provision and the preemption of local anti-discrimination ordinances, caused adverse reactions that echoed throughout the country as governors and mayors prohibited official travel to North Carolina, some major employers announced reconsideration of plans to locate facilities there, and conventions and major musical performers cancelled activities in the state.  But Governor McCrory and the Republican state legislative leaders rejected calls to rescind the statute.

The Justice Department weighed in early in May, when the Civil Rights Division sent a letter to Governor McCrory, who had been vigorously defending the law in national media, informing him that the Justice Department considered the bathroom provision to violate federal sex discrimination laws and demanding a response by May 9. Governor McCrory’s response was to file a lawsuit on May 9, seeking a declaration from the federal district court in the Eastern District of North Carolina that the bathroom provisions did not violate federal civil rights laws.  U.S. Attorney General Loretta Lynch then held a press conference at which she unveiled a new lawsuit by the federal government against North Carolina, filed in the Middle District of North Carolina, seeking a declaration that the bathroom provision violates federal law.  Lynch’s statement, which quickly went viral on the internet, promised transgender people that the federal government recognized them and was standing behind them, thus putting the full weight of the Justice Department on the line backing the Education Department and the EEOC in their interpretations of “sex discrimination” under their respective statutes.

Since North Carolina Attorney General Cooper was refusing to defend H.B. 2, Governor McCrory retained a private lawyer, Karl S. Bowers, Jr., of Columbia, South Carolina, who filed the complaint co-signed by the governor’s General Counsel, Robert C. Stephens, and local North Carolina attorneys from the Raleigh firm of Millberg Gordon Stewart PLLC.  Presumably they will also be conducting the defense in the Justice Department’s case.  Their argument, consistent with McCrory’s public statements, was that the state was not discriminating against transgender people, merely requiring them to use alternative facilities in order to protect the privacy rights of others.  The complaint echoed the governor’s “common sense privacy policy” argument, and insisted that federal courts have “consistently” found that Title VII “does not protect transgender or transsexuality per se.”  While the complaint lists half a dozen federal court rulings supporting that position, it conveniently fails to note numerous court decisions holding to the contrary, including decisions by the 6th Circuit Court of Appeals, based in Cincinnati, and district courts in many different states.

The Justice Department will probably move to transfer McCrory’s case to the Middle District of North Carolina, where it can be consolidated with the Justice Department’s lawsuit and perhaps the pending Lambda/ACLU lawsuit. There was another lawsuit defending H.B. 2 filed on May 9 in the Eastern District court by North Carolina Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland), but it is hard to conceive how they could have standing to bring a federal lawsuit on their own, so it is likely to be dismissed if the government makes a motion to that effect.

Meanwhile, there were also new litigation developments in Mississippi, challenging House Bill 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act.” HB 1523 was passed in response to the Supreme Court’s Obergefell marriage equality decision of last June 26.  Subsequent to Obergefell, the New Orleans-based 5th Circuit Court of Appeals upheld a federal district court injunction against the state of Mississippi’s enforcement of its anti-gay marriage ban, and marriage equality came to the state.  State legislators quickly went to work undermining this by devising H.B. 1523, which essentially gives government officials, businesses, and religious believers permission to discriminate against same-sex couples, provided that the discriminators have a sincere religious belief that marriage should only involve one man and one woman.  The measure is scheduled to go into effect on July 1.

The ACLU lawsuit filed on May 9 in the federal court in Jackson, Mississippi, charges that H.B. 1523 violates the 14th Amendment “by subjecting the lawful marriages of same-sex couples to different terms and conditions than those accorded to different-sex couples.”  In effect, Mississippi has set up a “separate but equal” framework, which “imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples in Mississippi.”  The lawsuit names as defendant the Mississippi State Registrar of Vital Records, Judy Moulder.

Among its many discriminatory provisions, H.B. 1523 provides that government employees “who wish to recuse themselves from issuing marriage licenses to same-sex couples” will be required to Moulder, and she will be required to maintain a list of officials who have recused themselves from providing same-sex couples with the services that are routinely provided to different-sex couples, and they will be excused from providing these services to same-sex couples. These recusant officials are also charged by the statute with a requirement to make arrangements to insure that same-sex couples do receive the services to which they are entitled, but the statute does not establish any mechanism to ensure compliance with this provision.

The ACLU lawsuit seeks a declaration from the court that H.B. 1523 is unconstitutional “on its face” and an injunction against it going into effect.   It was immediately followed by more court action, as New York attorney Roberta Kaplan, who represents the plaintiffs in the Mississippi marriage equality case, filed a motion in federal district court on May 10, asking Judge Carlton Reeves to reopen the case so they can name Judy Moulder as an additional defendant and modify his injunction to require the state to come up with the necessary procedures to ensure that same-sex couples who seek to marry will not encounter any delays due to recusals on religious grounds by state officials.  Indeed, she argues, anyone recusing themselves from serving same-sex couples should be disqualified from serving different-sex couples as well, as failure to do so would violate the obligations of all state officials to provide non-discriminatory service. The motion also asks that the list of recusant officials be posted on the website of the Registrar of Vital Records so that couples won’t have to subject themselves to the indignity of being turned away when they seek marriage licenses.

 

Mississippi Defies the 1st Amendment with “Freedom of Conscience” Law

Posted on: April 8th, 2016 by Art Leonard No Comments

On April 5 Mississippi Governor Phil Bryant signed into law H.B. 1523, a measure that received overwhelming approval in both houses of the state legislature.  Titled the “Protecting Freedom of Conscience From Government Discrimination Act,” the law was clearly intended to encourage businesses and individuals in the state to discriminate against same-sex couples, LGBT people, and even sexually-active unmarried heterosexuals.

Despite the broad wording of its title, the measure does not on its face protect freedom of conscience in general.  Instead, in Section 2, the legislature stated that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  The first of these, of course, defies the Supreme Court’s 2015 ruling, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.  The second defies the 2003 ruling, Lawrence v. Texas, which held that the state may not penalize sexual relations between consenting adults in private, regardless of their sex.  And the third defies the general medical consensus that gender identity is a human characteristic that exists apart from biological sex in terms of anatomy and genetics.

The law does not specify how it will be determined that somebody sincerely holds these beliefs or is merely asserting them opportunistically to avoid liability for mistreating somebody.

In effect, Mississippi has moved to protect from any adverse consequences at the hands of the state anybody who sincerely believes that a person born with a penis can only be considered a man for the rest of their life, and similarly a person born with a vagina can only be considered a woman.  This takes things one step further than North Carolina, which provided in its notorious H.B. 2, enacted in March, that “biological sex” means the sex indicated on a person’s birth certificate.  Since North Carolina will allow people to obtain new birth certificates consistent with their gender identity upon medical certification of surgical transition, that state evidently does not officially believe that sex is quite so “immutable.”

The new law goes on to protect people who act on these beliefs in various ways.  For example, religious organizations and clergy can refuse to have anything to do with same-sex marriages, including refusing to provide facilities or services in connection with same-sex marriage or to married same-sex couples.  Businesses can refuse to provide their goods or services or accommodations to same-sex couples, and can exclude transgender people from the use of single-sex-designated facilities consistent with their gender identity.  Nobody can be subjected to loss of their tax-exempt status or denial of government contracts or benefits because they have these “protected” beliefs.  People who spout anti-LGBT rhetoric will be protected from adverse consequences as well.  They can’t be fired from government jobs for articulating such beliefs, for example.

Government employees whose jobs involve authorizing or licensing marriages can seek “recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction” as defined in the statute, provided they send a written notice of such recusal to the State Registrar of Vital Records. They may not suffer any adverse consequences for recusing themselves, but “the person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.”  Apparently, then, the person recusing themselves is responsible for being sure that somebody else who is willing to perform their duty is available to do so when the service is needed.  This provision is undoubtedly intended to shield the state from liability for refusing to provide a service that same-sex couples have a constitutional right to receive.

The law also relieves people who officiate at weddings from any obligation to perform ceremonies in violation of their sincerely held religious or moral beliefs about the invalidity of same-sex marriages. This presumably would include refusing to officiate if one of the prospective spouses is transgender and that raises religious or moral objections for the officiant because of their lack of belief in the reality of the individual’s gender identity.  OF course, such protection is completely superfluous, since nobody would seriously contend that the government can compel clergy to perform services.

The “discriminatory action” that the government is not allowed to take against people holding and acting on these beliefs goes far beyond taxes to encompass any state benefit, license, certification, accreditation, custody award or agreement, and on and on and on. The list seems to anticipate the variety of cases that have arisen around the country over the past few years in which people have suffered adverse consequences because of their religious objections to homosexuality or same-sex marriage.  For example, some people have been expelled from graduate counseling programs for refusing to provide non-judgmental counseling to gay clients, and such expulsions would clearly be prohibited by this law.  The law would also forbid denying government employment to anybody because of these sincerely held religious beliefs by the prospective employee.

The practical effect is to say that married same-sex couples can be denied a host of benefits and entitlements under a variety of programs, in blatant violation of the Supreme Court’s decision in Obergefell. Ironically, this law was enacted just days after a federal district judge in Mississippi ruled that the state’s ban on adoption of children by same-sex married couples violates the 14th Amendment in light of Obergefell.   And the law erects a structure somewhat akin to apartheid around same-sex marriages.

The measure seems clearly unconstitutional under the Establishment Clause of the 1st Amendment, since it exalts and privileges particular religious beliefs and those who hold them for “special rights.”  On the other hand, some of the law is “merely” symbolic for several reasons.  First, since neither Mississippi nor any of its political subdivisions expressly outlaws discrimination in employment, housing or public accommodations because of sexual orientation or gender identity, people or businesses acting to deny goods, services or accommodations to LGBT people and same-sex couples could do so freely without any consequence under state law before this measure was enacted.  Second, due to the Supremacy Clause of the federal constitution, federal constitutional and statutory rights take priority over state law.

Thus, for example, under Title IX of the U.S. Education Amendments Act as interpreted by the U.S. Department of Education, educational institutions in Mississippi that receive federal money (which would be just about all of them) may not discriminate against transgender individuals because of their gender identity, and under Title VII of the Civil Rights Act of 1964 as interpreted by the Equal Employment Opportunity Commission and the U.S. Department of Justice, employers in Mississippi may not discrimination because of sexual orientation or gender identity.

And, of course, as a federal court ruled days earlier, state policies denying equal rights and benefits to married same-sex couples can be challenged under the 14th Amendment’s Equal Protection Clause.

The main question now is who will file for the first lawsuit to challenge this travesty. Robbie Kaplan, the fearless slayer of DOMA, victorious advocate in the Mississippi marriage equality lawsuit, and representative of the plaintiffs in the same-sex parents adoption case, would be our candidate.

Federal Court Applies U.S. v. Windsor Retroactively to Allow Lesbian Widow to Seek Pension Benefit

Posted on: January 11th, 2016 by Art Leonard No Comments

U.S. District Judge Phyllis J. Hamilton ruled on January 4 in Schuett v. FedEx Corporation, 2015 U.S. Dist. LEXIS 244, 2015 WL 39890 (N.D. Cal.), that the Supreme Court’s 2013 decision in U.S. v. Windsor, striking down Section 3, a key provision of the Defense of Marriage Act (DOMA), could be applied retroactively to allow Stacey Schuett, a lesbian widow, to sue her late spouse’s employer for a survivor annuity.  Although the judge rejected a claim that the lawsuit could be brought directly under the company’s pension plan or as a breach of fiduciary duty action against the plan’s administrators, she accepted the argument that the plan could be sued for violating the Employee Retirement Income Security Act (ERISA) by failing to authorize the annuity for the plaintiff.

The story is complicated.  This account is based on what Stacey Schuett alleged in her complaint, as summarized by Judge Hamilton.

Schuett lived together in a committed relationship for 27 years with Lesly Taboada-Hall, who passed away from cancer on June 20, 2013, just a week before the Supreme Court’s momentous June 26 decisions rejecting an appeal of the federal court ruling that struck down California Proposition 8 and striking down Section 3 of DOMA.  For almost the entire length of their relationship, Taboada-Hall had been employed by Federal Express (FedEx), and she was a fully-vested participant in the FedEx Pension Plan.

As required by ERISA, the plan states that if an employee with a vested pension dies before retiring, their surviving spouse is eligible to receive a “qualified joint and survivor annuity” for the rest of their life.  The written pension plan uses the federal definition of spouse, directly referring to Section 3 of DOMA, which defined a spouse as “a person of the opposite sex who is a husband or wife.”  This is the definition that the Supreme Court declared unconstitutional on June 26, 2013.

Ms. Taboada-Hall was diagnosed with cancer in February, 2010, and as her condition worsened she took a medical leave of absence from FedEx in November 2012.  In February 2013, facing the fact that she would not be able to resume working, she contacted a FedEx human resources representative about her pension and other employee benefits, since she was eligible for early retirement under the terms of the pension plan.  The representative advised her not to retire, since she could continue on medical leave and have her medical expenses covered under the FedEx employee benefits plan.  She was asked about her other benefits, and was advised to name Schuett as her sole beneficiary on the other plans.  She also asked whether Schuett would get the “defined pension benefit” to which Taboada-Hall would be entitled, if Taboada-Hall died before retiring.  The representative said he did not know the answer to that and said “ask someone else.”

On June 3, 2013, the doctor advised that Taboada-Hall was terminal and did not have long to live.  Schuett and Taboada-Hall looked again through the benefits package, and noticed that the plan defined “spouse” with reference to DOMA.  Between June 3 and June 13, they had several conversations with FedEx human resources personnel trying to find out what would happen to Taboada-Hall’s benefits, and on June 13 they received the answer: Schuett would not receive a surviving spouse benefit because only opposite-sex partners could be recognized under the plan.

They quickly arranged with a Sonoma County Supervisor to come to their home and perform a civil marriage ceremony, even though they could not get a marriage license because Proposition 8 was still in effect.  The ceremony was witnessed by friends and family members on June 19. The next day Taboada-Hall died, and six days later Prop 8 and DOMA were declared unconstitutional.

What to do next?  Two days after the Prop 8 decision, the 9th Circuit Court of Appeals lifted its stay and Judge Vaughan Walker’s 2010 ruling holding Prop 8 unconstitutional went into effect.  Of course, the logical implication of the Supreme Court’s decision that the proponents of Prop 8 did not have standing to appeal Judge Walker’s decision was that Walker’s ruling should have been in effect from the summer of 2010 when it was issued, so by rights Taboada-Hall and Schuett should have been able to get a marriage license at any time since then.  Furthermore, the logical implication of the DOMA decision was that the federal definition of marriage was unconstitutional from the date it was enacted in 1996.

Schuett went into Sonoma County Superior Court on August 6, 2013, filing a Petition to Establish the Fact, Date, and Place of Marriage, contending that the June 19 marriage should be retroactively validated.  That court agreed, ruling on September 18, 2013, that the marriage was valid as of June 19, 2013, issuing a delayed certificate of marriage carrying that date.  This means that Schuett was a surviving widow when Taboada-Hall died on June 20, and thus she should be entitled to be treated as a surviving spouse by FedEx.

But not so fast!  FedEx turned her down for the benefit, arguing that eligibility depended on the terms of the written plan, which was limited to surviving different-sex spouses.  In Schuett’s federal lawsuit against FedEx for the benefit, Judge Hamilton agreed with FedEx that Schuett could not sue for the benefit directly, since only beneficiaries under a plan can sue for benefits and under the terms of the written plan she was not a beneficiary.  Furthermore, Judge Hamilton agreed with FedEx that the administrators of the plan had not violated their fiduciary duty, which required them to follow a reasonable interpretation of the written plan’s terms.  The judge granted FedEx’s motion to dismiss Schuett’s claims under these two legal theories.

However, plan administrators are required to administer plans “in accordance with applicable law,” wrote Judge Hamilton.  ERISA provides that a plan must provide an annuity benefit to the spouse of an employee who has a fully vested pension benefit but dies before they have retired and begun to receive retirement benefits.  Schuett argued that since California recognized her as being married on June 19, 2013, the day before Taboada-Hall died, she should be considered a surviving spouse for purposes of this ERISA provision.  She pointed out that in the Windsor case, the Supreme Court not only declared DOMA unconstitutional but also ordered that the federal government refund with interest the money Edie Windsor had paid to cover estate taxes of her wife, Thea Speyer, which would not have been due if the federal government recognized their Canadian marriage.  Thus, the ruling in Windsor was itself retroactive.

Judge Hamilton accepted Schuett’s argument, finding that “ERISA requires a fiduciary to follow plan documents insofar as such documents are consistent with Title I of ERISA.  ERISA requires defined benefit plans such as the Plan at issue to provide a qualified preretirement survivor annuity to all married participants who are vested and die before the annuity starting date, unless the participant has waived the benefit and the spouse consented to the waiver.”  Furthermore, the Department of Labor had issued a “guidance” document making clear that “ERISA’s mandatory benefits provisions apply to all spouses, including same-sex spouses.”

Among the cases Judge Hamilton relied upon were Cozen O’Connor P.C. v. Tobits, 2013 U.S. Dist. LEXIS 105507, 2013 WL 3878688 (E.D. Pa. 2013), specifically on an ERISA survivor benefits claim involving a same-sex couple, and Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993), on retroactivity when the Supreme Court announces a new rule of federal law and applies it retroactively to the parties in the case.

Hamilton found that the Windsor decision “appears to invalidate Section 3 of DOMA retroactive to 1996, the date of enactment.  Notably, the decision in Windsor applied retroactively.”

“In the present case,” she wrote, “although California denied recognition of the term ‘spouse’ to same-sex couples at the time of Ms. Taboada-Hall’s death on June 20, 2013, the Sonoma County Superior Court determined that plaintiff and Ms. Taboada-Hall were married on June 19, 2013, and issued a delayed marriage certificate. . .  [T]his court defers to the California court’s certification of the marriage. . .  The court finds that plaintiff has adequately alleged that FedEx has violated Title I of ERISA by acting contrary to applicable federal law and failing to provide plaintiff with a benefit mandated by ERISA, and that she is entitled to pursue equitable relief to remedy that violation.”  She concluded on this point that she was not persuaded “under the facts alleged in the complaint that there is any basis for denying retroactive application of Windsor.” Thus, Judge Hamilton denied FedEx’s motion to dismiss Schuett’s claim under the ERISA violation theory.

Stacey Schuett is represented by Nina Rachel Wasow, an attorney with Feinberg, Jackson, Worthman & Wasow (Oakland); Amy Whelan, Christopher Francis Stoll, and Shannon Minter of the National Center for Lesbian Rights (San Francisco); Julie Wilensky of Civil Rights Education & Enforcement Center (Berkeley); and Tate A. Birnie (Sebastopol).  FedEx used in-house counsel to litigate its motion to dismiss, but would probably retain outside counsel if it seeks to appeal this ruling to the 9th Circuit.  Since the FedEx plan administrators are under a fiduciary duty not to pay out any benefits that are not required by the plan or the law, they might conclude that they have to appeal this ruling, although the pragmatic approach could be to avoid the costs of litigation and grant Schuett’s claim for the annuity.  Of course, it is also open to Schuett to appeal the court’s order dismissing her claim on the other legal theories.

Judith Kaye, a champion of lesbian & gay rights, dies at 77

Posted on: January 11th, 2016 by Art Leonard No Comments

Retired Chief Judge Judith Kaye of the New York Court of Appeals died on January 7, 2016, at age 77.  Most accounts of her passing mentioned her dissenting opinion in the case of Hernandez v. Robles, 7 N.Y.3d 338 (2006), the case in which the state’s highest court voted against the claim that same-sex couples have a constitutional right to marry, as one of her most notable opinions, but this was merely the capstone of a long career on the court during which Judge Kaye spoke out eloquently many times in cases important for the rights of gay people and people affected by the AIDS epidemic.

Governor Mario Cuomo appointed Kaye to the court early in his first term in 1983, and then elevated her to the position of Chief Judge in 1993.  She retired due to a state constitutional age limit at the end of 2008.  As of her retirement, she was the longest-serving judge in the Court of Appeals’ history, as well as the longest serving Chief Judge and the first woman to sit on the court and to sit as its chief.  Her appointment was a bit controversial, since she had no prior judicial experience when she was appointed, having worked as a corporate and litigation lawyer in private practice for most of her career, but she quickly assumed a leading role on the court, especially as a defender of civil rights and minority rights.

She joined the majority of the court in 1989 in a historic ruling, Braschi v. Stahl Associates Company, 74 N.Y.2d 201, which for the first time in American law recognized cohabiting same-sex couples as members of each other’s family for purposes of the state’s Rent Control Law, thus protecting the right of a surviving same-sex partner to take over the lease although the apartment had been rented in the name of the deceased partner.  Following up on this important ruling, Judge Kaye wrote the opinion for the court in 1993, Rent Stabilization Association of New York v. Higgins, 83 N.Y.2d 156, which upheld the New York Division of Housing and Community Renewal’s regulations that extended the Braschi ruling to the far larger rent stabilization system.  DHCR had specifically noted the impact of the AIDS epidemic on the housing security of gay men as a justification for the regulation. Judge Kaye rejected the plaintiff’s argument that extending protection to non-traditional families through an administrative regulation was an impermissible legislative act by the agency, and she also rejected the argument that extending this protection had unconstitutionally deprived the owners of property rights.

In 1991, Judge Kaye penned an important dissenting opinion in the case of Alison D. v. Virginia M., 77 N.Y.2d 651, when the court ruled that a lesbian co-parent of a child was a “legal stranger” who could not seek court-ordered visitation rights after separating from the child’s birth mother.  The court rested its ruling on the formal language of New York’s antiquated Domestic Relations Law, which even today adheres to a vision of families that fails to reflect reality.  Kaye criticized the court for exalting legal formality above a central purpose of family law: protecting the best interests of children.  “The majority’s retreat from the courts’ proper role — its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children’s interests into account — compels this dissent,” she wrote.  The judge argued that a provision of the law requiring the court to take the best interest of children into account should take priority, and that the formal legal definition of a parent should not stand in the way in situations where a person had been an actual parent to a child in a relationship that had been fostered and encouraged by the child’s legal parent.

On the same date as the Alison D. ruling, Judge Kaye joined the majority in an important ruling upholding a determination by the state’s Public Health Council not to list HIV infection as a condition requiring mandatory testing and contact tracing.  The Council was concerned that such a listing would prevent infected persons from cooperating with public health officials and impose a barrier to addressing the HIV epidemic.  The New York State Society of Surgeons had challenged this decision, but the court held that the Council’s ruling had a rational basis and would not be second-guessed by the court.  N.Y. State Society of Surgeons v. Axelrod, 77 N.Y.2d 677 (1991).

Judge Kaye wrote for the court in 1995 in a sharply-divided 4-3 ruling, Matter of Jacob, 86 N.Y.2d 651, creatively interpreting the state’s antiquated adoption statute so as to allow for second-parent adoptions.  This was a crucially important follow-up to the Alison D. ruling.  Since the Court of Appeals considered same-sex coparents to be “legal strangers,” the only way they could protect the relationship with their children would be if they could adopt them, with the permission of their partner.  Literally interpreted, the adoption statute would require that the child’s birth parent relinquish her parental rights upon adoption by a person to whom she was not married.  But Judge Kaye found that this would violate the statute’s overall purpose: the child’s best interest.  “This policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents,” she wrote.

After listing all the practical reasons why allowing a second-parent adoption would make sense, Judge Kaye cut to the heart of the matter.  “Even more important,” she wrote, “is the emotional security of knowing that in the event of the biological parent’s death or disability, the other parent will have presumptive custody, and the children’s relationship with their parents, siblings and other relatives will continue should the coparents separate.  Indeed, viewed from the children’s perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures and voids the sort of disruptive visitation battle we faced in Matter of Alison D. v. Virginia M.”

A year later, Judge Kaye provided the crucial vote in a 4-3 decision holding that a dentist’s office is a place of public accommodation, so a dentist would be in violation of the Human Rights Law for refusing treatment in his office to patients the dentist knew or suspected to have HIV infection.  Cahill v. Rosa, 89 N.Y.2d 14 (1996).

In 2001, Judge Kaye joined with the majority in Levin v. Yeshiva University, 96 N.Y.2d 484, ruling that the trial court had wrongly dismissed a sexual orientation discrimination complaint under the New York City Human Rights Law brought against Yeshiva’s Albert Einstein College of Medicine for refusing to allow two lesbian medical students to live with their same-sex partners in housing provided near the campus for married students.  The case arose before the state legislature had added sexual orientation to the state’s Human Rights Law, and a majority of the court rejected the plaintiffs’ argument that the College had violated the state law’s ban on marital status discrimination, but the court accepted the argument that because the state did not let same-sex couples marry, it was discriminatory on grounds of sexual orientation covered by the city law to refuse an important benefit to same-sex couples.  Judge Kaye would have gone farther than the court, however.  In a partial dissent, she argued that the marital status complaint should not be dismissed either, finding that the court’s earlier recognition in Braschi that same-sex partners could constitute a family should be taken into account.  “At the very least,” she wrote, “it is a question of fact whether plaintiffs’ life partners qualify as members of their ‘immediate families.’  If they do, the State and City Human Rights Laws prohibit [the medical school] from denying them partner housing merely because they are unmarried.  Since discovery and fact finding on this issue are necessary, the lower courts improvidently granted [the school’s] motion to dismiss.”  She pointed out that prior cases interpreted the “marital status” provision in the state law to ban discrimination against somebody because they are “single, married, divorced, separated or the like.”  In this case, she said, the plaintiffs were alleging that they suffered discrimination because they were not married, an obvious violation of the ban on marital status discrimination.

Finally, of course, there is Judge Kaye’s dissent in Hernandez, in which she argued on behalf of herself and Judge Carmen Ciparick that same-sex couples did have a right to marry.  “This State has a proud tradition of affording equal rights to all New Yorkers,” she wrote.  “Sadly, the Court today retreats from that proud tradition.”  After noting the long list of federal and state cases holding that “marriage is a fundamental constitutional right,” she wrote that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.  Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.”  She pointed to the U.S. Supreme Court’s then-recent decision in Lawrence v. Texas, striking down a state sodomy law and overruling Bowers v. Hardwick, the 1986 decision upholding Georgia’s sodomy law.  In Lawrence, the Court criticized the Bowers decision as failing to apprehend the nature of the liberty interest at stake.  “The same failure is evident here,” wrote Judge Kaye. “An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.”

“Simply put,” she asserted, “fundamental rights are fundamental rights.  They are not defined in terms of who is entitled to exercise them.”  Continuing, she wrote, “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.”

Judge Kaye contended that “homosexuals meet the constitutional definition of a suspect class” for purposes of equal protection rights, which would mean that “any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest.”  She also pointed out that the same-sex marriage ban discriminated on the basis of sex, which would require the court to apply “heightened scrutiny,” under which the policy would be struck down unless it was “substantially related to the achievement of important governmental objectives.”  She concluded that the ban could not survive either test, much less the “rational basis test” that would otherwise apply. She rejected the court’s conclusion that the issue should be left up to the legislature, stating that “this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic.”  She concluded, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Judge Kaye’s confidence was vindicated over the past several years as scores of courts, many of them citing her dissenting opinion, declared state bans on same-sex marriage unconstitutional, culminating in the Supreme Court’s Obergefell ruling on June 26, 2015.  After New York’s legislature enacted marriage equality in 2011, Judge Kaye happily performed same-sex marriage ceremonies.  Perhaps not so coincidentally, the lead attorney in U.S. v. Windsor, the case that struck down the federal ban on recognizing same-sex marriages in 2013, was Roberta Kaplan, a former law clerk for Judge Kaye whose book about the case describes the important role Judge Kaye played for her as a mentor.  The judge reportedly had several openly-gay clerks, some of whom have themselves become judges.

Catholic Girls School May Not Discriminate Against Gay Married Employee

Posted on: December 17th, 2015 by Art Leonard No Comments

A recurring question since marriage equality became legal has been whether religious institutions can freely discriminate in their employment practices against married gay couples, relying on statutory religious exemptions from anti-discrimination laws or constitutional claims.  In a case involving a food service worker who lost a job with a Catholic girls school, a Massachusetts trial judge ruled on December 16 that the answer is “no,” at least in a case involving a job that plays no educational role at the school.

Massachusetts Superior Court Justice Douglas H. Wilkins had to confront serious interpretive problems under the state anti-discrimination law before even getting to the constitutional issues in the case of Matthew Barrett v. Fontbonne Academy, NOCV2014-751.

Barrett, who has over twenty years of experience in the food services industry, applied in June 2013 to be the Food Services Director at Fontbonne, an independently-incorporated Catholic college-preparatory school for girls.  According to Judge Wilkins’ opinion, Fontbonne is “a sponsored ministry of the Congregation of the Sisters of Saint Joseph of Boston.”  During the hiring process, the Head of School, Mary Ellen Barnes, told Barrett that every employee is regarded as a “minister of the mission” and asked him whether he could “buy into” the expectation that he would “model Catholic teaching and values.”  He responded affirmatively and was offered the job, which he accepted.  Then he filled out a new employee hire form, listing his “emergency contact” as “Ed Suplee,” who he indicated was his husband.  Two days later, he received an email informing him there was a problem and asking him to return to the school.  At a meeting with school officials the next day, Barnes told him that he would not be hired because “he was a spouse in a same-sex marriage, which was inconsistent with the teachings of the Catholic Church.”

Justice Wilkins easily rejected Fontbonne’s argument that it was not engaging in sex or sexual orientation discrimination, but rather just refusing to compromise its religious principles about same-sex marriage.  As have other courts confronted with similar arguments, Wilkins rejected any status/conduct distinction, finding that the school’s withdrawal of the job offer involved both sexual orientation discrimination and sex discrimination.  (Sex discrimination because if Barrett was female and married a man, Fontbonne would have no objection to the marriage.)

Justice Wilkins then confronted a more serious interpretive problem due to facially conflicting religious exemption provisions in the statute.  A broader exemption provision excuses a religious organization from complying with the employment discrimination ban where its actions “are calculated by such organization to promote the religious principles for which it is established or maintained.” This provision was adopted at the time the law was amended to add “sexual orientation” in 1989.  However, this exemption exists against the background of an older religious exemption provision, which accords the exemption only to an organization “which limits membership, enrollment, admission, or participation to members of that religion.”  The record before Wilkins shows that Fontbonne does not so limit its employment policies, with narrow exceptions that do not apply to its food services operation.  Indeed, Fontbonne has a formal non-discrimination policy that explicitly includes “sexual orientation,” and thus their argument in this case, which Wilkins rejected, that refusing to employ a person married to someone of the same sex is not “sexual orientation discrimination.”

Wilkins found that “the best way to harmonize and preserve, as much as possible, the literal meanings” of both exemption provisions “is to read an implicit limitation into the latter provision, such that the phrase ‘any organization’ refers, at least in the employment context, to organizations that meet the limited membership clause.”  Although the Massachusetts courts have not previously addressed this tension directly at the appellate level — surprisingly, since the broader exemption has been on the books for a quarter century — Wilkins found some support from statements in prior cases and various principles of statutory construction, not least the tendency to construed anti-discrimination laws broadly in support of the important public policy against discrimination.  “No rule of construction provides certainty here,” he acknowledged.  “They do, however, nearly all point in favor of the plaintiff’s approach.”

Having resolved that Fontbonne did not enjoy a statutory exemption, Wilkins turned to the school’s constitutional arguments.

The first, based heavily on the U.S. Supreme Court’s 2000 ruling, Boy Scouts of America v. Dale, upholding the Boy Scouts’ anti-gay employment policies, arises under the 1st Amendment right of expressive association.  The Court held that the Boy Scouts were not obliged under New Jersey’s Law Against Discrimination to retain James Dale as an assistant scoutmaster after it came to their attention that he was co-president of the gay students organization at Rutgers University.  In a narrow 5-4 ruling, the Court, painting Dale as a “gay rights activist,” said that requiring the Scouts to associate with him as a volunteer leader would be forcing them to broadcast a gay rights message that they deemed inconsistent with their expressive function.  Wilkins easily distinguished the situation of Barrett, who is not an activist and merely listed his husband as an “emergency contact” on a personnel form. “He was not denied employment for any advocacy of same-sex marriage or gay rights,” wrote Wilkins.  “Nothing on that form suggested that Barrett claimed his marriage to have sacramental or other religious significance or that it was anything but a civil marriage relationship.  Fontbonne presents no evidence of advocacy by Barrett.”  By contrast, Dale’s gay rights advocacy came to light when a newspaper reported on a public appearance he made in his Rutgers student organization role, advocating for gay rights.

Furthermore, pointed out Wilkins, Dale’s “role as a Boy Scout leader included instilling values in the scouts themselves.  Barrett’s role would have been as Director of Food Services.  That job does not include instruction, let alone any leadership role or responsibility for presenting the gospel values and teaching of the Catholic Church at Fontbonne.”  Wilkins rejected the school’s argument that was entitled to require all employees, whatever their job duties, to “model Catholic values.”  Wilkins asserted that to hold otherwise would permit “an employer to grant itself constitutional protection from anti-discrimination laws simply by saying the right words.”

He found little risk that employment of Barrett would mislead students and the public into thinking that Fontbonne, as a Catholic institution, somehow approved of or endorsed same-sex marriage, in light of “widespread public awareness of the civil laws allowing same-sex marriage and prohibiting employment discrimination, coupled with Fontbonne’s ability to explain its position without interference in the form of advocacy from Barrett.”  He found that the state’s compelling interest in combatting employment discrimination against “historically disadvantaged groups” weighed heavily against Fontbonne’s position.

Wilkins responded similarly to Fontbonne’s attempt to invoke the 1st Amendment Free Exercise Clause through the “ministerial exception” that the Supreme Court has ruled must be incorporated in all anti-discrimination laws.  The Court’s 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, recognizing this exemption involved a school employee who was formally titled as a minister by the Church and whose job duties involved “important religious functions.”  The Supreme Court said, “The fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position.”  The ministerial exception, thus, is intended to protect “the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

“Indisputably,” wrote Wilkins, “none of these considerations apply to Barrett’s position as Director of Food Services.  He has no duties as an administrator or teacher of religious matters.”  The school’s attempt to base this exemption on its statement that “each of its employees is a ‘minister of the mission'” goes beyond what the Supreme Court authorized in 2012.  “Indeed,” wrote Justice Wilkins, “to apply the ‘ministerial’ exception here would allow all religious schools to exempt all of their employees from employment discrimination laws simply by calling their employees ministers.  If that were the rule,” he continued, much of the discussion in the Hosanna-Tabor ruling “would have been unnecessary.”

After granting Barrett’s motion for summary judgment and denying Fontbonne’s motion, Wilkins directed the parties to “address whether this case needs to be scheduled for a trial on damages,” which was an open invitation for them to negotiate a settlement on that issue.

Wilkins ruled on questions of first impression on a hotly contested issue, so it seems likely that Fontbonne will seek to appeal, which would likely put off any settlement or trial on damages until the appellate process runs its course.  Given the nature of the case, an appeal would probably bypass the intermediate appeals court and go directly to the state’s Supreme Judicial Court.  Fontbonne would find no lack of free assistance from litigation groups that are dedicated to combating gay rights laws and expanding religious freedom, such as Liberty Counsel or Alliance Defending Freedom, which have appeared as pro bono counsel in numerous cases around the country.

Barrett’s ability to defend his victory also relies on free counsel from Gay and Lesbian Advocates and Defenders (GLAD), which is representing him.  Attorneys working on the case include Bennett Klein, Gary Buseck (former Executive Director) and John Ward (the founder of the organization decades ago who continues to provide volunteer assistance on cases).  GLAD’s track record in the courts has been stellar, including winning marriage equality in Massachusetts in 2003 and successfully challenging the Defense of Marriage Act in the federal district court and the 1st Circuit Courts of Appeals.

New York Court Rules for Former Domestic Partner in Tenant Succession Case; Implies Retroactive Application of Obergefell v. Hodges

Posted on: September 26th, 2015 by Art Leonard No Comments

 

Justice Maria Milin of New York County Supreme Court ruled against a landlord who was seeking to evict the former domestic partner of a tenant from a rent stabilized apartment in Manhattan . The ruling, 360-363 Associates v. Hyers, NYLJ 1202737856287 (September 14, 2015), was published by the New York Law Journal on September 23. The decision may be among the earliest retroactive applications of the U.S. Supreme Court’s recent marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Kemper Hyers took possession of the apartment on East 51st Street in June 1983. He met Michael Pederson in 1988 and about a year later Pederson moved in with him. They had a lengthy loving relationship, living together as partners in the apartment for about twenty years. They tried to get married in 1993, but the clerk refused to give them a license due to New York’s ban on same-sex marriages. When the opportunity arose, they registered as domestic partners. During 2000, Pederson approached the landlord about adding him to the lease based on their domestic partnership but was rebuffed. In August 2009, their relationship came to an end under “challenging circumstances.” Hyers fell in love with somebody else and moved out, leaving Pederson in sole possession of the apartment. The court’s decision does not indicate whether the landlord was aware of this change in circumstances at that time. It seems that Hyers’ new boyfriend had kids and the 51st Street apartment would not be sufficient for this expanded family. However, there was a period of uncertainty about housing, as a result of which Hyers moved back into the apartment in December 2009, not leaving until December 2011. When he returned Pederson moved out to avoid “discord.” During this new period of residence, Hyers executed a renewal lease. When Hyers moved out again, Pederson moved back in. Then the landlord sought to evict Pederson, claiming he was not the named tenant and was not entitled to remain in possession as a successor.

Under the rent stabilization regulations, when a named tenant dies or permanently vacates an apartment, members of the tenant’s family who have been co-occupying the apartment for the two-year period immediately preceding that event may succeed to the rent-stabilized tenancy. The landlord argued that Hyers permanently vacated the apartment in December 2011, at which time Pederson had not been in residence for the previous two years, since he moved out in December 2009 when Hyers had “temporarily” moved back in.

“This contention is without merit,” wrote Justice Milin. “First, Mr. Hyers did not vacate the Apartment permanently in December 2011. He vacated permanently in August 2009 after his domestic partnership with Mr. Pederson broke up, he became romantically involved with someone else and he left to pursue a committed relationship with that person. As a result of the separation Mr. Hyers moved out of the Apartment with the goal of finding a new, permanent living situation appropriate to accommodate his new partner who has children.” The judge rejected the contention that Hyers’ signature on the renewal lease compelled a finding that he was in possession of the apartment when he signed it. Hyers had testified that at the time he signed the lease, “his intentions regarding the Apartment were uncertain, but, utilizing the Apartment as a permanent home was never a realistic option” because of the size of his new family. According to Justice Milin, “Hyers’s return to the apartment in December 2009 was only a temporary accommodation, for a limited duration.” That means, she concluded, that Pederson’s “succession rights vested after the definitive departure of Mr. Hyers in August 2009,” after the men had been in continuous co-occupancy for twenty years.

Furthermore, she wrote, the New York Legislature didn’t authorize same-sex marriages in the state until 2011 and “then in June 2015, the Supreme Court of the United States held that it was a violation of the Due Process and the Equal Protection Clauses of the 14th Amendment to deny same sex couples the right to marry. Mr. Hyers and Mr. Pederson were unconstitutionally denied their right to marry which would have entitled Mr. Pederson to be added to the lease and relieve him of any obligation to prove succession rights.” As she had determined that Pederson was entitled to succeed to the tenancy based on her factual finding that Hyers permanently vacated the apartment in August 2009, it was not strictly necessary for Justice Milin to invoke the Obergefell decision, but perhaps she was seeking to bolster her ruling in case the landlord were to appeal and convince the Appellate Division that her factual conclusion about the date of Hyers’s permanent vacating of the apartment was not supported by the record.

The court denied the landlord’s motion for summary judgment, granted Pederson’s motion for summary judgment, and awarded legal fees to Pederson as the prevailing party in the lawsuit. Justice Milin scheduled a further hearing for November 5 to determine the reasonable amount of the fees to be awarded. The New York Law Journal’s report of the opinion did not list counsel for the parties.