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Supreme Court Rules that Same-Sex Spouses are Entitled to Be Listed on Birth Certificates

Posted on: June 26th, 2017 by Art Leonard No Comments

When a child is born to a woman married to another woman, both women should be listed as parents on the child’s birth certificate. So ruled the Supreme Court, voting 6-3 and reversing a decision by the Arkansas Supreme Court on the last day of its October 2016 Term, which was coincidentally the second anniversary of the Court’s historic marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which provides the basis for this new ruling in Pavan v. Smith, No. 16-992 (June 26, 2017), reversing 505 S.W.3d 169 (2016).

The petitioners in this case were two married same-sex couples, Leigh and Jana Jacobs and Terrah and Marisa Pavan. Both couples resided in Arkansas when their children were born in 2015, having previously married out of state.  Both couples filed paperwork with the state seeking birth certificates listing both mothers as parents.  The state turned them down, issuing birth certificates listing just the birth mothers and leaving the space for fathers blank.

The state’s Health Department argued that this was compelled by a state statute that provides that when a married woman gives birth, her husband will be listed on the birth certificate. (This is frequently referred to as the parental presumption.) This is so even if the woman conceives through donor insemination and her husband is not the biological father of the child, or even if some other man got the wife pregnant.  Incredibly, the Health Department sought to justify its refusal to name both parents on birth certificates by saying that the purpose of the birth certificate is to record biological lineage, which is pretty strange if husbands get listed regardless of their biological relation to the child.  Furthermore, Arkansas, like other states, issues amended birth certificates if children are adopted, listing their new legal parents, again regardless of the fact that one or both of the adoptive parents are not biologically related to the child.

The women sued the Commissioner of the health department and the trial court agreed with them that this result was unconstitutional under Obergefell, because the statute “categorically prohibits every same-sex married couple from enjoying the same spousal benefits which are available to every opposite-sex married couple.” In Obergefell, the Supreme Court ruled that same-sex couples have the same right to marry as opposite-sex couples, which means they are entitled to be treated the same by the state for all reasons of law.

The Arkansas Supreme Court was divided in this case. A majority sided with the Health Department, buying the incredible argument that birth certificates are supposed to be a record of biological lineage.  Wrote the Arkansas court, “The statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife,” and so it was consistent with Obergefell.  Not so, argued the dissenters, writing that under Obergefell “a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple.”

The majority U.S. Supreme Court agreed with the dissenters, finding this case so clear that it simultaneously granted the petition for review and issued a decision, without waiting for briefing on the merits or oral argument. The decision was issued “Per Curiam” (Latin for “by the Court”) without identifying an individual justice as its author.

The Court concluded that the Arkansas Supreme Court’s decision “denied married same-sex couples access to the ‘constellation of benefits that the State has linked to marriage,’” in violation of the Obergefell ruling. Under Arkansas’s statute, “same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school.  Obergefell proscribes such disparate treatment.”

The Court pointed out that in the Obergefell decision it had included “birth and death certificates” in its list of “rights, benefits, and responsibilities” of marriage to which same-sex couples are entitled on the same basis as different-sex couples.   “That was no accident,” said the Court, as “several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates.  In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples.”  The Court said this applied with “equal force” to the Arkansas statute.

Rejecting Arkansas’s argument that birth certificates were all about biological relationships, the Court insisted, to the contrary, that “Arkansas law makes birth certificates about more than just genetics,” citing as a prime example the provision involving donor insemination. “Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents.  Having made that choice,” the Court continued, “Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”  The case was sent back to the Arkansas courts for “further proceedings not inconsistent with this opinion.”

The Per Curiam Court included all of the justices who had voted in the majority in Obergefell plus Chief Justice John Roberts, who was the principal dissenter in the marriage case. Roberts’ vote in this case is notable, given the vehemence of his dissent in Obergefell, but apparently, accepting that Obergefell is now a precedent and that there are not five votes on the Court to overturn it, Roberts was willing to agree that the Arkansas Supreme Court’s ruling was inconsistent with it.

Not so the three dissenters, Justices Samuel Alito, Clarence Thomas, and the recently installed Neil Gorsuch, who wrote a dissent on their behalf. When Gorsuch was nominated, it was predicted that he would be as bad for LGBT rights as his predecessor, Justice Antonin Scalia, if not worse. His dissent here vindicated that view.

First, he scolded the Court for deciding the case summarily, arguing that the law in question is not “settled and stable.” He did not deem it clear that Obergefell would invalidate state laws restricting who could be listed on a birth certificate, when justified by a policy of recording biological ties.

He took a narrow view of Obergefell, as some lower courts have done in birth certificate litigation around the country, arguing that “nothing in Obergefell spoke (let alone clearly) to the question whether [the Arkansas statute], or a state supreme court decision upholding it, must go. The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.”  This is, of course, incorrect, as the Per Curiam opinion demonstrated.  The state’s rules, requiring that the husband of a woman who conceives through donor insemination be listed as the child’s father, clearly do not “ensure” that the biological parents of a child are listed on the certificate.  Indeed, as the Court noted in passing in its Per Curiam opinion, the “rules” in Arkansas even provide that if the birth mother, her husband, and the actual biological father of the child all agree in sworn statements, the actual father can be listed instead of the husband, but otherwise the husband would be listed.  Clearly, listing people on birth certificates in Arkansas under current statutes is not all about biological relationships.

Gorsuch also noted that since this litigation has been under way Arkansas officials have come around to agree that the birth mother’s spouse should be listed on the birth certificate. Since the state has now agreed (without amending its statute) that it should list same-sex spouses on birth certificates, Gorsuch professes to see no reason for this ruling.  “Indeed,” he wrote, “it is not even clear what the Court expects to happen on remand that hasn’t happened already.  The Court does not offer any remedial suggestion, and none leaps to mind.  Perhaps the state supreme court could memorialize the state’s concession.”  Indeed, exactly so, the proper action on remand is a judicial declaration that same-sex spouses are entitled to be listed on birth certificates, and a permanent injunction requiring that result. This is not superfluous, since the state legislature has not amended the statute.

The Court’s decision will affect pending litigation elsewhere. In Arizona, the state’s intermediate court of appeals ruled on June 22 in Turner v. Steiner, 2017 WL 2687680, that a lesbian co-parent was not entitled to be listed on a birth certificate, conflicting with a ruling by another panel of the court of appeals, McLaughlin v. Jones, 382 P.3d 118 (2016), which was recently granted review by the Arizona Supreme Court.  The Turner decision cited the Arkansas Supreme Court’s ruling in this case, as well as a Wisconsin Supreme Court ruling from 2015, In re P.L.L.-R., 876 N.W.2d 147.   Plaintiffs in the Wisconsin case should be able to file a new suit based on Pavan, if necessary, but perhaps Pavan v. Smith will encourage state officials to drop their obstructions and accord equal treatment to same-sex married couples.

The plaintiffs in this case were represented by the National Center for Lesbian Rights, with local counsel Cheryl Maples of Heber Springs, Arkansas. Attorneys from the Washington and Boston offices of Ropes & Gray, LLP, worked on the case in collaboration with NCLR, and R&G’s Douglas Hallward-Driemeier, who shared the oral argument in the marriage equality cases two years ago, was Counsel of Record who might have argued the case had the Court scheduled a hearing.

NCLR Seeks Supreme Court Review of Arkansas Birth Certificate Decision

Posted on: February 15th, 2017 by Art Leonard No Comments

The National Center for Lesbian Rights (NCLR) filed a petition for certiorari with the U.S. Supreme Court on February 13, seeking review of the Arkansas Supreme Court’s decision that the state was not required under Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to extend the presumption of parentage to the same-sex spouse of a birth mother for purposes of recording parentage on a birth certificate. Smith v. Pavan, 2016 WL 7156529 (Ark. December 8, 2016), petition for certiorari filed sub nom. Pavan v. Smith, No. 16-992.

The Arkansas Supreme Court’s decision, by a sharply divided court with three strong dissenting opinions, was the first ruling on this question to depart from a post-Obergefell consensus of courts in other jurisdictions that equal marriage rights for same-sex couples necessarily include the equal right to have a spouse recorded as a parent on a birth certificate, despite the lack of a “biological” tie to the child, especially in light of the common practice of automatically recognizing a birth mother’s husband for that purpose, regardless whether he is “biologically related” to the child.

The due process and equal protection issues raised by the Arkansas court’s decision are stark, raising the possibility that the Supreme Court might consider this an appropriate case for a summary reversal, similar to its decision last term to summarily reverse the Alabama Supreme Court’s refusal to accord full faith and credit to a same-sex second parent adoption approved by a Georgia family court in V.L. v. E.L., 136 S. Ct. 1017 (March 7, 2016).  In V.L. the Court moved quickly to reverse the state supreme court ruling based on the certiorari filings, seeing no need for full briefing and hearing on the merits.  That ruling was announced several weeks after the death of Justice Scalia by the eight-member Court, and brought no dissent from any justices, three of whom had dissented in Obergefell.  They implicitly agreed that with Obergefell as a precedent, there was no justification for recognizing any exception to the general rule that adoption decrees are to be recognized when the court granting the adoption clearly had jurisdiction over the parties and the subject matter of the adoption petition.  They rejected the Alabama Supreme Court’s reliance on its own interpretation of the Georgia adoption statute as withholding “jurisdiction” from the family court to grant such an adoption.

NCLR petitioned on behalf of two married same-sex couples – Marisa and Terrah Pavan and Leigh and Jana Jacobs. Each couple had married out of state and then, living in Arkansas, had a child conceived through donor insemination.  In both cases, the mothers completed the necessary paper work to get a birth certificate when their children were born.  In both cases, the state health department issued a certificate naming only the birth mother and leaving the space for “father” blank on the birth certificate rather than naming the other mother.  The state insisted that under its statute the automatic listing was limited to a husband of the birth mother.

The women filed suit against the director of the state health department, Dr. Nathaniel Smith, seeking to compel issuance of appropriate birth certificates, together with another couple who were not married when they had their child but who subsequently married after the Obergefell decision and sought an amended birth certificate.  That other couple is no longer in the case, having gone through an adoption proceeding and obtained a new birth certificate naming both mothers.  The Arkansas state trial court construed Obergefell and its own marriage equality decision, Wright v. Smith, to require according equal recognition to same-sex marriages for this purpose, and ordered the state to issue amended birth certificates accordingly.  The trial court refused to stay its decision pending appeal, so the certificates were issued.

The Arkansas Supreme Court reversed, even though the state conceded at oral argument that in light of its statute requiring that a husband be listed on a birth certificate regardless whether he was biologically related to the child the state’s position was inconsistent with its own practice. Indeed, the state conceded at oral argument that it had no rational basis for treating same-sex and different-sex spouses differently for this purpose.  However, the state insisted that it was refusing to list same-sex spouses consistent with its gender-specific statute because the birth certificate was necessary to establish the identity of biological parents for public health reasons.  This was a patently absurd argument in light of the various circumstances under Arkansas law where non-biological fathers are listed on birth certificates.

The dissenting judges pointed in various ways to the Obergefell decision, which actually listed birth certificates as one of the issues related to marital rights that helped explain why the right to marry was a fundamental right.  Furthermore, as the certiorari petition points out in detail, the very question raised by this case was specifically part of the Obergefell case, as the underlying state cases that were consolidated into the appeal argued at the 6th Circuit and the Supreme Court included plaintiffs who were married lesbian couples seeking to have appropriate birth certificates for their children.  In those cases, the certificates had been denied by states that refused to recognize the validity of the mothers’ out-of-state marriages.  Thus, the Supreme Court’s reference to birth certificates was part of the issue before the Court, not merely illustrative of the reasons why the Court deemed the right to marry fundamental, and in holding that states were required to recognize same-sex marriages validly performed in other states, the Court was incidentally addressing the refusal of states in the cases before the Court to recognize petitioners’ marriages for purposes of recording the names of parents on birth certificates!

Thus, the Arkansas Supreme Court majority was clearly wrong in asserting that the Obergefell decision did not address this issue and pertained only to the question whether same-sex couples had a right to marry.  Given biological facts, lesbian couples having children through donor insemination are exactly similarly situated with different-sex couples having children through donor insemination, as in both cases the spouse of the birth mother is not the biological parent of the child.  By the logic of Obergefell, denial of such recognition and marital rights offends both due process and equal protection guarantees of the 14th Amendment.  And, as the Petition points out, such denial relegates same-sex marriages to a “second tier” treatment, which was condemned by the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), when it ruled that the federal government was required to extend equal recognition to same-sex marriages validly contracted under state laws.  In both cases, the Supreme Court rejected the argument that the inability of same-sex lesbian couples to conceive children without a sperm donor provided a rational basis to deny recognition to their marriages or treat them differently from the marriages of heterosexual couples.

NCLR attorneys on the Petition including Legal Director Shannon Minter and staff attorneys Christopher Stoll and Amy Whelan. Arkansas attorney Cheryl Maples is listed as local counsel.  Cooperating Attorneys from Ropes & Gray LLP (Washington and Boston offices) on the Petition include Molly Gachignard, Christopher Thomas Brown, Justin Florence, Joshua Goldstein and Daniel Swartz, with prominent R&G partner Douglas Hallward-Driemeier as Counsel of Record for the case.  Hallward-Driemeier successfully argued the marriage recognition issue before the U.S. Supreme Court in Obergefell v. Hodges.  GLAD attorney Mary Bonauto from Boston argued the right to marry issue in Obergefell.

Arizona Appeals Court Adopts Gender-Neutral Construction of Paternity Statute in Same-Sex Couple Dispute

Posted on: October 14th, 2016 by Art Leonard No Comments

The Court of Appeals of Arizona ruled on October 11 that as a result of the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that same-sex couples have a constitutional right to marry and that their marriages must receive equal treatment under the law to those of different-sex couples, the Arizona courts must construe the state’s paternity statute in a gender neutral way so that the same-sex spouse of a woman who gives birth enjoys the presumption of parental status. McLaughlin v. Jones, 2016 Ariz. App. LEXIS 256, 2016 WL 5929205 (Oct. 11, 2016).  Judge Philip Espinosa wrote for the unanimous three-judge panel.

Kimberly and Suzan were legally married in California in October 2008, shortly before voters approved Proposition 8, which enshrined a different-sex only marriage definition in the state constitution. Shortly thereafter, however, the California Supreme Court ruled that same-sex marriages contracted before the passage of Prop 8 remained valid under California law.  “The couple agreed to have a child through artificial insemination,” wrote Judge Espinosa, “using an anonymous sperm donor selected from a sperm bank.”  Suzan’s efforts to conceive this way were unsuccessful, but Kimberly became pregnant in 2010. Before their child was born, the women moved to Arizona, a state that did not then recognize their marriage or allow second-parent adoptions.

The women made a joint parenting agreement and executed mirror-image wills, declaring “they were to be equal parents of the child Kimberly was carrying,” wrote the court. After their son was born in June 2011, Suzan was the stay-at-home mom while Kimberly resumed her work as a physician.  The women’s relationship deteriorated, however, and when their son was almost two years old, Kimberly moved out of their home, taking the child with her and cutting off his contact with Suzan.

In April 2013, Suzan filed a petition for dissolution of the marriage and a petition for a court order recognizing her parental status in various ways, most significantly decision-making and parenting time. The matter came before Superior Court Judge Lori Jones in Pima County, who decided to stay the proceedings while marriage equality litigation was pending.  In January 2016, six months after the Supreme Court decided Obergefell, Kimberly moved to set the case for trial and Judge Jones ordered briefing concerning “the issue whether the case was a dissolution proceeding with or without children in view of the presumption of paternity under an Arizona statute, Section 25-814(A).  In an April 7, 2016, ruling, Judge Jones found that it would violate Suzan’s 14th Amendment rights not to afford her the same presumption of parenthood that a husband would enjoy.  Thus, she ordered, the case should proceed as a “dissolution action with children.”

Kimberly then moved for a declaratory judgment about whether she would be permitted to introduce evidence to rebut the presumption. On May 2, Judge Jones ruled that Kimberly would not be permitted to attempt to rebut the presumption that Suzan was a parent of their son.  Jones found that there was nothing for Kimberly to rebut, adding that a “family presumption applies to same sex and opposite sex non-biological spouses married to a spouse who conceived a child during the marriage via artificial insemination.”  She relied on Section 25-501, a support statute which is applicable when a child is born as a result of donor insemination, finding that this “necessarily gives rise to parental rights in the non-biological spouse.”  Kimberly appealed this ruling.

On appeal, Kimberly argued that as the child’s biological mother, “she is, by definition, the only parent and therefore the only person who has parental rights, which are fundamental rights,” wrote Judge Espinosa, summarizing Kimberly’s argument. She contended that Judge Jones erroneously construed the paternity statute to encompass same-sex lesbian couples.  Suzan, in response, argued that because of Obergefell, parentage statutes “must be applied and interpreted in a gender-neutral manner so that same-sex couples’ fundamental marital rights are not restricted and they are afforded the same benefits of marriage as heterosexual couples and on the same terms,” wrote Espinosa.

The Arizona statute defining “legal parents” includes “biological” or “adoptive” parents, and “does not include a person whose paternity has not been established pursuant to Section 25-812 [acknowledgment of paternity] or Section 25-814 [presumptions of paternity].” The court found that Section 25-814(A)(1) applies to the McLaughlin case, assuming one applies a gender-neutral interpretation of the statutory language.  This provides that “a man is presumed to be the father of the child if 1. He and the mother of the child were married at any time in the ten months immediately preceding the birth.”

Judge Espinosa wrote, “Enacted well before the Supreme Court decided Obergefell, this statute was written with gender-specific language at a time when the marriage referred to in subsection (A)(1) could only be between a man and a woman.” While accepting Kimberly’s argument that Judge Jones should not have relied on the child support statute to determine Suzan’s status, the court rejected Kimberly’s argument that “it would be impossible and absurd to apply Section 25-841(A)(1) in a gender-neutral manner to give rise to presumption parenthood in Suzan.  Indeed, Obergefell mandates that we do so,” he continued, “and the plain language of the statute, as well as the purpose and policy behind it, are not in conflict with that application.”  Not to do that would deprive same-sex married couples of the same “terms and conditions of marriage” as are enjoyed by different-sex couples, which would be a clear violation of the Supreme Court’s mandate of equal treatment in Obergefell.

“The word ‘paternity’ therefore signifies more than biologically established paternity,” wrote Espinosa. “It encompasses the notion of parenthood, including parenthood voluntarily established without regard to biology.”  He pointed out that the long-established purpose of paternity statutes is “to provide financial support for the child of the natural parent.”  The marital presumption “is intended to assure that two parents will be required to provide support for a child born during the marriage” and serves the additional purpose “or preserving the family unit.”  For these propositions, the court relied on the Massachusetts Supreme Judicial Court’s ruling in Partanen v. Gallagher, decided just days earlier.  The court rejected Kimberly’s argument that there was any reason to treat men and women differently in this regard, after Obergefell.

As to Kimberly’s request to be able to rebut the presumption of parenthood, the court held that it “need not decide how the rebuttal provision in Section 25-814(C) applies in a same-sex marriage because we determine Kimberly is estopped from rebutting the presumption.  Equitable estoppel applies when a party engages in acts inconsistent with a position later adopted and the other party justifiably relies on those acts, resulting in an injury.”

In this case, it was uncontested that the women were lawfully married when Kimberly became pregnant as a result of a donor insemination process upon which both women agreed.  It is not disputed that their son was born during the marriage.  It is not disputed that Suzan was the stay-at-home mom and cared for their son until Kimberly “left the home with him.”  Furthermore, the women had made a written parenting agreement providing that they were to be equal parents of the child.  In that agreement, Kimberly agreed to “waive any constitutional, federal or state law that provide her with a greater right to custody and visitation than that enjoyed by Suzan.”  They even provided in the agreement that if their relationship broke down, Suzan would continue to enjoy parenting rights, and that if second-parent adoption became available in the jurisdiction where they lived, Suzan would adopt the child.  Since their partnership broke up before Obergefell was decided, however, Suzan never had an opportunity to adopt their son.

The court concluded that based on these uncontested facts, the doctrine of equitable estoppel applied, barring Kimberly from attempting to rebut the presumption that Suzan is a parent to their son.  “Suzan is the only parent other than Kimberly,” wrote Judge Espinosa, “and having two parents to love and support [their son] is in his best interest.  Under these circumstances, Kimberly is estopped from rebutting the presumption of parenthood pursuant to Section 25-814(C).”

Consequently, Kimberly’s appeal was denied, and the case will continue before Judge Jones as a dissolution with a child.  It will be up to Judge Jones in the first instance to determine whether it is in the best interest of the child to order Kimberly to allow Suzan to have a continuing relationship, including parenting time and decision-making authority.

Kimberly is represented by Keith Berkshire and Megan Lankford, Phoenix.  Suzan is represented by Campbell Law Group, Phoenix, and attorneys from the National Center for Lesbian Rights, San Francisco.  Appointed counsel for the child included law students and supervising faculty from various clinical programs, including the Family and Juvenile Law Certificate Program in Tucson, and Child and Family Law Clinic in Tucson, the Community Law Group, Tucson, and the Child and Family Law Clinic at the University of Arizona Rogers College of Law.

 

 

9th Circuit Rejects Religious Freedom Challenge to California Law Banning Conversion Therapy for Minors

Posted on: August 24th, 2016 by Art Leonard No Comments

California’s S.B. 1172, which prohibits state-licensed mental health providers from engaging in “sexual orientation change efforts” (commonly known as “conversion therapy”) with minors, withstood another 1st Amendment challenge in a new decision by the San Francisco-based U.S. Court of Appeals for the 9th Circuit in the case of Welch v. Brown, 2016 U.S. App. LEXIS 15444, 2016 WL 4437617, announced on August 23.

A unanimous three-judge panel of the court of appeals affirmed a ruling by U.S. District Judge William B. Shubb that the law does not violate the religious freedom rights of mental health providers who wish to provide such “therapy” to minors or of their potential patients.

In a previous ruling, the court had rejected the plaintiffs’ claim that the law violated their free speech rights. They had argued that such therapy mainly involves talking, making the law an impermissible abridgement of freedom of speech. The court had countered that this was a regulation of health care practice, which is within the traditional powers of the state.  As such, the court found that the state had a rational basis for imposing this regulation, in light of evidence in the legislative record of the harms that such therapy could do to minors.

In this case, the plaintiffs were arguing that their 1st Amendment religious freedom claim required the court to apply strict scrutiny to the law, putting the burden on the state to show that the law was narrowly-tailored to achieve a compelling state interest.  They contended that the law “excessively entangles the State with religion,” but the court, in an opinion by Circuit Judge Susan P. Graber, said that this argument “rests on a misconception of the scope of SB 1172,” rejecting the plaintiffs’ claims that the law would prohibit “certain prayers during religious services.”  Graber pointed out that the law “regulates conduct only within the confines of the counselor-client relationship” and doesn’t apply to clergy (even if they also happen to hold a state mental health practitioner license) when they are carrying out clerical functions.

“SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship,” she wrote, a conclusion that “flows primarily from the text of the law.” Under a well-established doctrine called “constitutional avoidance,” the court was required not to interpret the statute in the manner suggested by the plaintiffs.  This conclusion was bolstered by legislative history, ironically submitted by the plaintiffs, which showed the narrow application intended by the legislature.  Thus, “Plaintiffs are in no practical danger of enforcement outside the confines of the counselor-client relationship.”

Plaintiffs also advanced an Establishment Clause argument, contending that the measure has a principal or primary purpose of “inhibiting religion.” Graber countered with the legislature’s stated purpose to “protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and to protect its minors against exposure to serious harm cause by” this “therapy.”  The court found that the “operative provisions” of the statute are “fully consistent with that secular purpose.”  A law that has a secular purpose with a possible incidental effect on religious practice is not subject to strict scrutiny under Supreme Court precedents.  Again, the court pointed out, religious leaders acting in their capacity as clergy are not affected by this law.

The court also rejected the contention that a minor’s religiously-motivated intent in seeking such therapy would be thwarted by the law, thus impeding their free exercise of religion. The court pointed out that “minors who seek to change their sexual orientation – for religious or secular reasons – are free to do so on their own and with the help of friends, family, and religious leaders.  If they prefer to obtain such assistance from a state-licensed mental health provider acting within the confines of a counselor-client relationship, they can do so when they turn 18.”

The court acknowledged that a law “aimed only at persons with religious motivations” could raise constitutional concerns, but that was not this law. The court said that the evidence of legislative history “falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion,” since the legislative hearing record was replete with evidence from professional associations about the harmful effects of SOCE therapy, regardless of the motivation of minors in seeking it out.  Referring in particularly to an American Psychiatric Association Task Force Report, Judge Graber wrote, “Although the report concluded that those who seek SOCE ‘tend’ to have strong religious views, the report is replete with references to non-religious motivations, such as social stigma and the desire to live in accordance with ‘personal’ values.”  Thus, wrote the court, “an informed and reasonable observer would conclude that the ‘primary effect’ of SB 1172 is not the inhibition (or endorsement) of religion.”

The court also rejected the argument that the law failed the requirement that government be “neutral” concerning religion and religious controversies. It also rejected the argument that prohibiting this treatment violates the privacy or liberty interests of the practitioners or their potential patients, quoting from a prior 9th Circuit ruling: “We have held that ‘substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.’”

Attorneys from the Pacific Justice Institute, a conservative legal organization, represent the plaintiffs. The statute was defended by the office of California Attorney General Kamala D. Harris.  Attorneys from the National Center for Lesbian Rights, with pro bono assistance from attorneys at Munger, Tolles & Olson LLP, filed an amicus brief defending the statute on behalf of Equality California, a state-wide LGBT rights political organization.

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.

Lesbian Co-Parent Seeks Expedited Supreme Court Review of Alabama Refusal to Recognize Adoption

Posted on: November 22nd, 2015 by Art Leonard No Comments

Attorneys for V.L., the adoptive mother of children born to her former same-sex partner, have asked the U.S. Supreme Court (SCOTUS) to review an erroneous decision by the Alabama Supreme Court to refuse to recognize the adoption that was approved by the Georgia Superior Court, and have also asked SCOTUS to restore her visitation rights while the appeal is pending by suspending the Alabama Supreme Court’s order in the case.  The petitions were filed on November 16.

V.L., who is represented by the National Center for Lesbian Rights and cooperating attorneys from Jenner & Block LLP (Washington, D.C.), with local counsel Traci Owen Vella and Heather Fann in Birmingham, Alabama, lived with E.L. in a seventeen-year relationship.  In May 2000 V.L. changed her last name to E.L.’s last name, and the women decided to have and raise children together.  E.L. subsequently gave birth to one child in 2002 and twins in 2004 through donor insemination.  The women played equal parental roles in raising the kids.  In order to provide more security to their legal relationship, they rented a residence in Atlanta and obtained a legal adoption from the Georgia (Fulton County) Superior Court so that V.L. would be the legal parent of the children.  The Georgia judge construed that state’s adoption law to allow second-parent adoptions without terminating the birth mother’s parental rights, as several other Georgia trial courts have also done.  So far, there is no Georgia appellate ruling against such adoptions, and the Georgia Supreme Court has not addressed the issue directly.

After the adoption, the women returned to Alabama and resumed living there are a family until the women separated and E.L. eventually cut off V.L.’s contact with the children.  V.L. registered the adoption with an Alabama court and filed an action seeking custody or visitation.  The Alabama trial and appellate courts concluded that V.L. must be recognized as an adoptive parent entitled to seek a determination of custody or visitation, with E.L. appealing every step of the way, until she won a reversal from the Alabama Supreme Court on September 18.

The lower Alabama courts correctly applied the Full Faith and Credit Clause (FFCC) of the U.S. Constitution, which requires that the courts of one state accord “full faith and credit” to the judgments issued by courts in other states.  More than a century of well-established court precedents provide that courts may not refuse to accord full faith and credit to a sister state court’s ruling because of a disagreement over the merits of that ruling.  The limited exception to full faith and credit would be cases where the court that issued the judgment did not have jurisdiction to do so, either because the court was not authorized to decide such cases or because the parties were not properly within the jurisdiction of the court.  In this case, the Georgia Superior Court had specifically concluded that it had jurisdiction over the parties and the subject matter of the case.  Indeed, Georgia statutes provide that the Superior Court has jurisdiction over all adoption proceedings.

A majority of the Alabama Supreme Court, however, departing from established constitutional precedents, decided based on its own reading of Georgia’s adoption statute that the Georgia law could not properly be construed to allow second-parent adoptions.  Even though the Georgia appellate courts have never specifically disapproved such adoptions, and courts of several other states have approved them in the context of similarly-worded adoption statutes, the Alabama court decided that the Georgia Superior Court’s departure from the Alabama Supreme Court’s interpretation of the Georgia adoption statute is a “jurisdictional” fault that justifies refusing to recognize the adoption.

This startling result drew a sharp dissent from a member of the court, who wrote that it “creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court’s decision in an adoption would now arguably create a defect in that court’s subject matter jurisdiction.”

Petitioning SCOTUS, V.L. argued that the Alabama Supreme Court’s departure from established constitutional precedent, in general contradiction with more than a century of precedent and in direct contradiction of the Denver-based U.S. 10th Circuit Court of Appeals’ 2007 ruling, Finstuen v. Crutcher, 496 F.3d 1139, requires a resolution of whether state courts are permitted to inquire into the merits of rulings by sister state courts in deciding whether to accord full faith and credit to those judgments, particularly in adoption cases where the result would be to interfere with family relationships that had been established and then legally ratified in completed adoption proceedings.   In the Finstuen case, the 10th Circuit invalidated an Oklahoma statute that barred recognition of same-sex couple adoptions, holding that the statute violated the obligation of Oklahoma courts under the full faith and credit clause to recognize such adoption judgments.

Under the rulings of the Alabama trial and intermediate appellate courts V.L. had been enjoying visitation rights with the children on a temporary basis while E.L. pursued her appeal.  Shortly after its ruling, the Alabama Supreme Court suspended that visitation.  In addition to her petition for review, V.L. filed a petition with SCOTUS requesting a stay of the Alabama Supreme Court order and restoring her visitation rights while this appeal is pending.  This is in accord with her argument that she is the legal adoptive parent of those children and thus is entitled to continued contact of some sort unless E.L. can show that she is unfit or poses a danger to the children.  Because of the appeals of the recognition rulings in this case, there has not yet been a determination by the Alabama trial court whether it is in the best interest of these children for their adoptive mother to have custody or visitation.  By its erroneous decision that V.L. is not a parent with standing to contest these issues, the Alabama Supreme Court has decreed that there be no inquiry into the best interest of the children — an inquiry that should be at the heart of custody and visitation decisions when parents split up.

Rogue Alabama Supreme Court Refuses to Recognize Georgia Co-Parent Adoption

Posted on: September 21st, 2015 by Art Leonard No Comments

Under the United States Constitution’s Full Faith and Credit Clause, a state court is supposed to recognize the judgments of courts from other states unless those courts did not have jurisdiction over the parties or the subject matter of the case.  Asked to rule on whether an Alabama court must recognize a Georgia adoption decree involving a same-sex couple, however, the Alabama Supreme Court manufactured a jurisdictional issue in order to reverse a ruling by Alabama’s Court of Civil Appeals and deny recognition to the Georgia adoption.  As a result, the child’s adoptive mother, identified in court papers as V.L., will be denied visitation with the children she had been raising with her former partner.

The court issued its September 18 decision in E.L. v. V.L. “per curiam,” which means that none of the justices is credited with writing the opinion.  Justice Greg Shaw was the sole dissenter, arguing that there was no jurisdictional issue in the case and that the court was required to recognize the adoption.  Justice Tom Parker wrote a brief separate opinion that seemed largely beside the point.

The women were involved in a relationship for six years during which they resided in Alabama.  They decided to have children through donor insemination.  E.L. gave birth to one child in 2002 and twins in 2004.  Following their birth, V.L. acted as a parent to the children along with E.L.  The women decided jointly to have V.L. adopt the children as a co-parent, but that was impossible in Alabama at that time.  They learned through friends in Georgia that the Fulton County Superior Court had granted second-parent adoption petitions, and the only thing that stood in their way was a six month residency requirement.  They rented a place in Georgia to establish residency, proceeded through the formal adoption procedures, and obtained an adoption decree on May 30, 2007, after which they resumed full-time residency in Alabama.  Subsequently they obtained new birth certificates for the children listing V.L. as a parent, presumably by showing the adoption decree to the appropriate Alabama clerk to obtain the new birth certificates.

The women ended their relationship in November 2011.  V.L. moved out of the home they had shared.  E.L.  eventually denied V.L. further access to the children.  V.L. brought the Georgia adoption decree to the Jefferson (Alabama) Circuit Court, asking to have it registered and to get a declaration of her legal parental rights, including “some measure of custody of or visitation with the children.”  Her case was transferred to the Jefferson Family Court.  E.L. moved to dismiss the case, but the family court denied her motion without a hearing, awarding V.L. visitation rights.  E.L. filed various motions seeking to upset this ruling, which were all denied by the family court.

E.L. then appealed to the Alabama Court of Civil Appeals, which rejected most of her arguments but agreed that the family court should have given E.L. a hearing on the “best interest of the children” before denying her motion to dismiss the case.  E.L., observing that the Court of Civil Appeals’ ruling had implicitly rejected her argument that the Georgia adoption was invalid, sought to appeal that part of the ruling.  The Alabama Supreme Court agreed to review it.  In its September 18 ruling, the Supreme Court reversed the lower appeals court, concluding that Alabama was not required to give full faith and credit to the Georgia adoption decree.

In order to refuse to recognize the Georgia adoption, the Alabama court had to find either that the Fulton Family Court lacked jurisdiction over this family or over the subject matter of the adoption proceeding.  E.L. contended that the women had not really established residence in Georgia.  Although they rented a place, she contended, they had not actually moved there, as they had jobs in Alabama and had retained their residence there, just spending a few days in the Georgia house in order to create the appearance of residency and to be there when child welfare officials came to interview the family as part of the adoption proceeding.  She also argued that despite Jefferson Superior Court’s ruling, Georgia’s adoption statute did not allow for second-parent adoptions, so the court did not have the power to approve such an adoption.

The Alabama Supreme Court embraced the objection to subject matter jurisdiction.

E.L. argued that the Georgia adoption statute did not apply to this adoption proceeding because the statute conditions the court’s authority to grant an adoption by a “third party” on a finding that “each living parent or guardian of the child has surrendered or had terminated all his rights to the child in the manner provided by law prior to the filing of the petition for adoption.”  The Georgia Supreme Court has never addressed this issue, but the Alabama Supreme Court premised its ruling on a dissenting opinion by one justice of the Georgia Supreme Court from that court’s decision to deny review in a case involving a second-parent adoption.  The Alabama court insisted that the dissenting Georgia justice’s opinion provided “the proper analysis” of the Georgia adoption statute, and insisted that “a Georgia court would make the same conclusion and, by extension, would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply” with the adoption statute.

The argument in the Alabama Supreme Court boiled down to the question whether E.L. was challenging the “merits” of the Georgia adoption decision or the “jurisdiction” of the Georgia family court to grant the adoption.   Under the Full Faith and Credit Clause, the Alabama court may not inquire into the “merits” of the adoption decision, but may refuse to recognize it if the Georgia court did not have “jurisdiction” to issue the adoption decree.

Wrote the Alabama justices, “E.L. argues that the Georgia court could properly exercise subject-matter jurisdiction only when the requirements of the Georgia adoption statutes were met, and, in this case, they were not, she argues, because those statutes made no provision for a non-spouse to adopt a child without first terminating the parental rights of the current parents.  E.L.’s argument regarding the Georgia adoption statutes appears to be correct,” the court said, citing the dissenting opinion by the sole Georgia justice who had voted to review a case that his colleagues decided not to review.  Thus, the Alabama court concluded, the court “erred by entering the Georgia judgment by which V.L. became an adoptive parent of the children.”  The court went on to find that this error was jurisdictional, not just a misinterpretation of the statute by the Georgia Superior Court.  Since E.L. had not agreed to terminate her parental rights, wrote the court, “the Georgia court was not empowered to enter the Georgia judgment” and thus “lacked subject-matter jurisdiction” to enter that judgment.  “The Georgia judgment is accordingly void,” wrote the court, “and the full faith and credit clause does not require the courts of Alabama to recognize that judgment.”

Justice Parker’s “special concurrence” stressed that under Alabama law there is no “right to adopt” but rather a “privilege” to do so on terms set by the state.  He invoked a 2004 decision by the U.S. Court of Appeals for the 11th Circuit upholding Florida’s ban on gay adults adopting children (a ban that has since been struck down by the Florida state courts) to support his argument that Alabama has a legitimate interest “in encouraging a stable and nurturing environment for an adopted child by encouraging that the child be raised in the optimal family structure with both a father and a mother.”  What this has to do with the matter before the Alabama Supreme Court in this case is unfathomable, since it is about recognizing a second-parent adoption that took place several years ago.  Refusing to recognize it will not result in these children being raised in a different-sex household.

Justice Shaw’s dissent is clear and to the point.  “The main opinion reviews the merits of the adoption in this case,” he wrote; “our case law, interpreting the United States Constitution, does not permit this Court to do so.”  The provision in the Georgia adoption statute that the Alabama Supreme Court invoked “speaks to the merits of whether the adoption should be granted — not to whether the trial court obtains subject-matter jurisdiction.”  Georgia statutes give the Georgia Superior Court jurisdiction “in all matters of adoption.”  “This would include adoption matters where the petitioners fail to ‘satisfy’ the court that the requisites for an adoption were met,” he wrote, quoting a Georgia Supreme Court ruling on “subject-matter jurisdiction” as meaning authority to decide “the class of cases to which that particular case belongs.”

“The adoption petition in the instant case,” he wrote, “whether meritorious or not, was part of the class of cases within the Georgia court’s jurisdiction to decide.  The fact that the adoption should not have been granted does not remove the case from the class of cases within that court’s power.”  While Shaw would “tend to agree” that on the merits the Georgia Superior Court erred by construing Georgia’s adoption statute to allow this adoption, that was irrelevant to a full faith and credit analysis.  “Our case law prohibits an inquiry into the merits of a foreign judgment,” he insisted.  “Further, I fear that this case creates a dangerous precedent that calls into question the finality of adoptions in Alabama:  Any irregularity in a probate court’s decision in an adoption would not arguably create a defect in that court’s subject-matter jurisdiction.”

Ironically, it appeared that E.L.’s stronger argument, if it could be proved in a trial, would be that the women had never met the residency requirement because they had failed to actually live in the rented premises for six months before filing the adoption petition.  But had the Alabama Supreme Court taken that route, the case would have to be sent back to the Jefferson Family Court to litigate the residency question, and if V.L. made the strong argument, the adoption would be recognized.  By taking the more convoluted jurisdictional route, the Alabama Supreme Court arguably precluded the recognition of any Georgia second-parent adoptions, and also provided a theoretical basis for challenging the validity of adoptions from other states whose statutes did not clearly authorize them.

The National Center for Lesbian Rights represents V.L. together with Alabama lawyers Heather Fann and Traci Vella.  Although they criticized the Alabama Supreme Court’s ruling, it was unclear whether V.L.’s lawyers would try to get the U.S. Supreme Court to review it.  That court has turned down prior requests to review lower court rulings on gay adoption issues, most prominently in a 5th Circuit case where the court of appeals refused to order Louisiana to recognize the New York adoption of a Louisiana-born child by a New York couple for purposes of getting a proper birth certificate for the adopted child.  In that case, the 5th Circuit held that federal district courts do not have authority to order state government officials to recognize out-of-state adoptions, opining that such “recognition” cases had to be brought in the state courts.  V.L. followed the state court route, at first with success, but ultimately encountered the outspokenly anti-gay Alabama Supreme Court, which is also now considering a motion by a county probate judge for a ruling that the state does not have to comply with the U.S. Supreme Court’s marriage equality ruling, Obergefell v. Hodges.

 

 

LGBT Legal Organizations Call for Decriminalization of Sex Work as Federal Government Initiates Prosecution of Rentboy.com’s Owner and Employees

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

On August 20, leading LGBT rights legal organizations in the United States issued a joint statement supporting Amnesty International’s August 11 Resolution that advocates for the human rights of sex workers, including repeal of laws against prostitution. Just days later, on August 25, the U.S. Department of Homeland Security (DHS) raided the New York City offices of Rentboy.com, the world’s largest on-line escorting website, carted away boxes of business records and computers, and arrested the company’s chief executive officer, Jeffrey Hurant, and six employees.

Amnesty International (AI), a non-governmental organization concerned with human rights issues worldwide, called on governments to repeal laws criminalizing sex work, while asking them to move to prevent and combat sex trafficking, to ensure that sex workers are protected from exploitation, and to enforce laws against the sexual exploitation of children. In short, AI suggests that adults should be able to freely consent to engage in sexual activity for compensation without criminal penalty, and that continued maintenance of criminalization exposes all sex workers, whether children or adults, to exploitation, violence, and severe health risks.

Sex work for pay is presently legal in some countries (e.g., Canada, United Kingdom), but outlawed in most. Even those countries that don’t criminalize prostitution as such generally maintain laws against promotion and public solicitation of prostitution. In the United States, every jurisdiction except some counties in Nevada treats all sexual activity for monetary compensation as unlawful, although they differ as to the classification of the offense and potential penalties. The Model Penal Code as adopted in the states decriminalized private consensual sexual activity between adults, but not when such activity involves a commercial transaction, and courts have been unanimous in holding that the Supreme Court’s 2003 decision striking down sodomy laws, Lawrence v. Texas, does not create a protected liberty interest extending to commercial sex or sex between adults and minors.

The LGBT organizations that joined in the statement endorsing AI’s resolution are Transgender Law Center, Gay & Lesbian Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights, and National Center for Transgender Equality.

The Joint Statement explains, “For many LGBT people, participation in street economies is often critical to survival, particularly for LGBT youth and transgender women of color who face all-too-common family rejection and vastly disproportionate rates of violence, homelessness, and discrimination in employment, housing, and education.”

The Joint Statement goes on to describe the various hazards faced by sex workers that are amplified by the criminalization of their activities, with a particular emphasis on the difficulties experienced by transgender sex workers. “Laws criminalizing sexual exchange – whether by the seller or the buyer – impede sex workers’ ability to negotiate condom use and other boundaries, and force many to work in hidden or remote places where they are move vulnerable to violence. Research and experience have shown that these laws serve only to drive the industry further underground, make workers less able to negotiate with customers on their own terms, and put those who engage in criminalized sex work at higher risk for abduction and sex trafficking,” says the Joint Statement. “And as UNAIDS and the World Health Organization have recognized, criminalization also seriously hampers efforts to prevent and treat HIV/AIDS – efforts in which people involved in the sex trades are crucial partners.”

Just days before the Joint Statement was issued, the U.S. Department of Homeland Security (DHS) submitted a Complaint and Affidavit in Support of Arrest Warrants to the U.S. District Court for the Eastern District of New York (Brooklyn) on August 18, seeking to arrest the owner and employees of Rentboy.com, described in the complaint as “a commercial male escort advertising site that promotes prostitution.” The complaint quotes Rentboy.com advertising itself as the “original and largest male escort service online.” The Complaint was submitted under oath by DHS Special Agent Susan Ruiz, who led the investigation leading to the prosecution. The Complaint requested that its supporting affidavit and warrants be kept under seal until they were executed to prevent the defendants from fleeing the jurisdiction.

On August 25, Homeland Security agents accompanied by NYC Police Department officers appeared at Rentboy.com’s offices on West 14th Street in Manhattan to conduct their raid.  They also arrested the employees there and arrested others at their homes, effectively shutting down operation of the website. The defendants were listed in the complaint as Jeffrey Hurant (the owner) and employees Michael Sean Belman, Clint Calero, Edward Lorenz Estanol, Shane Lukas, Diana Milagros Mattos, and Marco Soto Decker. The title of the case on the Complaint is United States of America v. Hurant.

The complaint sets out a detailed description of the Rentboy.com website, defining terms, providing graphic descriptions of the activities advertised, and asserting repeatedly that the disclaimers on the site were meaningless and that the entire operation was set up to connect customers with prostitutes.

Anyone seeking a detailed description of the on-line male escort business will find it in this complaint, which became public upon serving of the arrest warrants and was posted later on August 25th on various news websites. The complaint describes each of the defendants (including aliases used by many of them) and their role in the Rentboy.com business, including past or present escorting activity by some of them.

The complaint asserts that the term “escort” is a euphemism for a prostitute. The complaint describes and quotes from various escort listings on Rentboy.com, including the quotation of rates for services and the listing of specific sexual activity that an escort is willing to engage in. The complaint also notes cross-references in some of the advertisements to another website, daddysreviews.com, at which can be found detailed accounts by customers of their experiences with the escorts in the form of reviews, including reports on the amount of money charged by the escort.

It is unclear whether this action taken against Rentboy.com was a precursor to actions against similar websites operated from the United States as part of a more general crackdown on the use of the Internet for commercial sexual assignations, whether Homeland Security is also targeting heterosexual escort sites, or whether Rentboy.com was singled out for prosecution because of the brazenness of its owner, who is quoted in the complaint as having made clear in published interviews that the purpose of the website was to assist escorts in marketing their sexual services.

According to the complaint, Hurant uses as an email address cyberpimp@rentboy.com, which is hardly subtle. The complaint quotes Hurant telling one interviewer, “There is no place in this website where somebody says I’ll have sex for money because that is against the law. We can talk about what you look like, what you are, what you like to do, what people say about you in bed. . . People say I’m a great top, people say I fuck like nobody’s business, but you can’t say I’ll fuck you for two hundred bucks.” The website includes a disclaimer that rates quoted by the escorts on the site are only for their time, and that any sexual activity that takes place is a private matter between consenting adults.

In justifying the arrest of the employees as well as the owner, the complaint states, “There is probable cause to believe that anyone employed by the organization was aware that its aim was the promotion of prostitution, based on its publicly-disseminated advertising and promotional material and the content of the site itself.” Illustrating the openness with which Rentboy.com went about its business, the complaint describes how the company applied to the Department of Homeland Security for an occupational visa for one of its employees. It also describes an annual public event held by Rentboy.com, the “Hookies,” at which awards were bestowed on escorts listed on the site as the “best” in particular categories of sexual performance, and at which Hurant gave his business card to an undercover agent.

The prosecution is premised on 18 U.S.C. Section 1952, a federal statute that provides, in relevant part: “(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to. . . (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform – (A) an act described in paragraph . . . (3) shall be fined under this title, imprisoned not more than 5 years, or both. . . (b) As used in this section (i) “unlawful activity” means (1) any business enterprise involving . . . prostitution offenses in violation of the laws of the State in which they are committed or of the United States.”

The complaint cites provisions of New York law criminalizing “promoting prostitution” and engaging in prostitution activity, thus satisfying the federal statutory requirement that the proposed defendants are using a “facility in interstate or foreign commerce” with the intent to “promote” an “unlawful activity.” News reports indicated that the prosecution may also involve charges of “money-laundering,” but that is not specified in the complaint submitted to the federal court to get the arrest warrants.  Of course, the complaint submitted to get the warrant does not limit the scope of the ultimate prosecution. In a footnote, it states that because the complaint was submitted “for the limited purpose of establishing probable cause,” Agent Ruiz did not “set forth each and every fact learned during the course of this investigation.” One might expect that the investigation would include rigorous tax auditing of Rentboy.com and its parent corporation, as well as the seven individuals arrested, and that the U.S. Attorney, acting as a prosecutor on behalf of DHS, is likely to assert as broad a range of charges as the results of the DHS investigation may support.

Appellate Court of Illinois Recognizes Unjust Enrichment Cause of Action on Behalf Same-Sex Former Domestic Partner

Posted on: December 31st, 2014 by Art Leonard No Comments

The Appellate Court of Illinois ruled in Blumenthal v. Brewer, 2014 Il App (1st) 132250, 2014 Ill. App. LEXIS 904 (Dec. 19, 2014), that a state court judge who is the former same-sex partner of a physician can maintain a legal claim on the theory of unjust enrichment to seek compensation for her financial contributions towards the home they shared and the physician’s professional practice.  The court found that legislative and common law developments since 1979 had rendered the Illinois Supreme Court’s leading decision against lawsuits between former unmarried partners, Hewitt v. Hewitt, 394 N.E.2d 1204, obsolete.

Jane Blumenthal and Eileen Brewer met and became domestic partners in 1981 or 1982 when they were both graduate students at the University of Chicago.  Their partnership ended in 2008, after they had raised three children together.  By then, Blumenthal was a doctor in a lucrative partnership practice, and Brewer was an elected Illinois Superior Court judge. They had merged their finances during their partnership, and had registered as domestic partners when that option became available in Cook County in 2003.  They had cross-adopted each other’s children. They had purchased real estate together, and Blumenthal had used joint funds to buy into the medical partnership.  After Blumenthal moved out, Brewer assumed the continuing financial responsibilities of the house. The children are now all grown up and emancipated adults.  Blumenthal filed a partition action in 2010, seeking to divide the value of the house the women had purchased together to reclaim her share.  Brewer counterclaimed, seeking sole title to the property to “equalize” the parties’ assets, as she had been a stay-at-home mom for their kids until they were old enough for her to resume her legal career, Blumenthal’s medical partnership had been purchased with joint funds, and Brewer had carried the financial burden of the house since Blumenthal had moved out.  Blumenthal argued that under Hewitt v. Hewitt Brewer could not maintain such a counterclaim, and Cook County Circuit Judge LeRoy K. Martin agreed, dismissing her claim.  Brewer, represented by the National Center for Lesbian Rights (NCLR) and Chicago Attorney Angelika Kuehn, appealed with amicus support from the ACLU of Illinois and Lambda Legal.

When the Illinois Supreme Court decided Hewitt, there were strong legislative policies in effect supporting that court’s view that such a lawsuit could not be brought by an unmarried cohabitant, including a statute criminalizing unmarried cohabitation, the state’s statute abolishing the doctrine of common law marriage in Illinois, and court decisions disfavoring child custody for parents who were cohabiting outside of marriage.  Brewer argued successfully to the appellate court that the legislative and judicial landscape in Illinois had changed so drastically since 1979 that Hewitt no longer represented an accurate view of how Illinois law should treat such a claim today, and the court agreed in an opinion by Justice Margaret Stanton McBride.  The judge prefaced a detailed discussion of the historical evidence by stating: “We find that the public policy to treat unmarried partnerships as illicit no longer exists, that Brewer’s suit is not an attempt to retroactively create a marriage, and that allowing her to proceed with her claims against her former domestic partner does not conflict with this jurisdiction’s abolishment of common law marriage.”

In addition to agreeing that changes in the law had rendered Hewitt obsolete, the court pointed out that the decision “may have had unintended consequences.  The court acknowledged its intention to enforce legislative policies that intentionally penalized unmarried couples and their children as a means of discouraging cohabitation and encouraging marriage,” wrote McBride.  “The ruling, however, may have the contrary effect – refusing to hear claims between unmarried cohabitants creates an incentive for some to not marry.  A cohabitant who by happenstance or design takes possession or title to jointly-acquired assets is able to retain them without consequence when their ‘financially vulnerable’ counterpart is turned away by the courts.”  She found support for this argument in a law review article by Candace Saari Kovacic-Fleischer, “Cohabitation and the Restatement (Third) of Restitution and Unjust Enrichment,” 68 Wash. & Lee L. Rev. 1407, 1424 (2011), from which she quoted at length.

“After having reviewed the legislation that was enacted during the years that Brewer and Blumenthal were together, buying a house, having children, dividing up their domestic responsibilities and pursuing their legal and medical careers, we conclude that although Brewer and Blumenthal were not legally entitled to marry in this jurisdiction, the legislature no longer disfavors their 26-year cohabitation or Brewer’s claims against Blumenthal,” wrote Justice McBride. “Furthermore, Brewer does not allege an agreement with Blumenthal based on illicit consideration of sex, which was the primary historical rationale for rejecting cohabitation agreements.  Instead, Brewer, who never had the option of marrying Blumenthal in Illinois, alleged that the couple intentionally comingled and shared their assets based on a mutual commitment and expectation of a lifelong relationship, that they divided their domestic and work responsibilities to best provide for the three children they had together, and that neither partner intended for their decisions and family roles to leave Brewer at a financial disadvantage later in life.”  The court also noted, of course, that after the couple split up, Illinois passed first a civil union law and then a marriage equality law, further confirming the view that Illinois does not consider same-sex relationships to be “illicit” in the sense that term was used by the Illinois Supreme Court in Hewitt.

The court also noted that its decision was in line with developments in other states, including the leading California case of Marvin v. Marvin, the nation’s most celebrated “palimony” case, the revision of the common law summary in the Restatement (Third) of Restitution and Unjust Enrichment, and the changed view embraced in Corbin’s Contracts treatise, which identified the Marvin decision as having decisively influenced courts in other states to become receptive to palimony claims.  The Illinois Supreme Court had relied on previous editions of these two published sources in Hewitt.

McBride concluded that in light of the court’s determination that Hewitt no longer controlled the outcome, it was unnecessary for it to address Brewer’s argument that a contrary decision would violate the Illinois and federal constitutional guarantees of due process and equal protection of the laws.  The court vacated the circuit court’s dismissal order and remanded the case “with directions to consider the parties’ remaining arguments,” as to which the court expressed no opinion.  As part of her opposition to Brewer’s counterclaim, Blumenthal had contested some of Brewer’s factual assertions, but the trial court had not resolved that dispute when it determined that the counterclaim had to be dismissed as a matter of law.