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Posts Tagged ‘same-sex marriages’

Federal Court Ruling on “Religious Exemptions” from Anti-Discrimination Laws on Same-Sex Weddings May Preview Supreme Court Decision

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

 

Chief Judge John R. Tunheim of the U.S. District Court in Minnesota ruled in Telescope Media Group v. Lindsey, 2017 WL 4179899, 2017 U.S. Dist. LEXIS 153014 (D. Minn., Sept. 20, 2017), that for-profit businesses do not enjoy a constitutional right to refuse to provide their services for same-sex weddings on the same basis that they provide services for different-sex weddings.  Turning back a case brought by the anti-gay religious litigation organization, Alliance Defending Freedom (ADF), Judge Tunheim issued a comprehensive ruling that may provide a preview of what the U.S. Supreme Court will say in the Masterpiece Cakeshop case from Colorado during its forthcoming term, at least regarding the 1st Amendment issues common to both of the cases.

ADF immediately announced that it will appeal the court’s ruling to the U.S. Court of Appeals for the 8th Circuit, based in St. Louis, Missouri.

Judge Tunheim’s ruling is particularly significant because it is the first by a federal court to address this issue. Since 2013, several state appellate courts have ruling against such exemptions from compliance with state anti-discrimination laws, rejecting appeals by defendants who sought to overturn rulings against them by state human rights agencies in cases involving wedding photographers, florists, bakers, and wedding venues.  In this case, however, a videography business that claimed to be planning to expand into the wedding video business sought an advance declaration from the federal court that they would be constitutionally protected if they were threatened with prosecution under Minnesota’s ban on public accommodations discrimination because of sexual orientation.

This issue has previously avoided litigation in the federal courts because there is no federal law prohibiting discrimination because of sex or sexual orientation by businesses providing goods or services to the public. When “sex” was added as a prohibited ground of discrimination through a floor amendment to the pending Civil Rights Act in Congress in 1964, the amendment was directed solely to the employment discrimination section of the bill.  The public accommodations section was not amended to include “sex”.  The Equality Act bill first introduced in Congress two years ago would add both “sex” and “sexual orientation” to that part of the Civil Rights Act.

The state rulings all came in cases where businesses were being prosecuted under a state law. Because these are local businesses operating in the same jurisdiction where the plaintiffs live, there was no basis for the defendants to remove them to federal court, since the federal constitutional arguments were raised as defenses, and federal “removal” jurisdiction is based either on diversity of citizenship of the parties or a federal question being raised by the plaintiff in the complaint.

This case was brought by ADF on behalf of Carl and Angel Larsen and their company, Telescope Media Group, which specializes in producing videos for a fee. They are interested in expanding their business to include wedding videos.  They strongly oppose same-sex marriage, and one of their goals in expanding their business is to propagate their view that only a marriage between a man and a woman is appropriate by including in every contract they make a provision by which the couple purchasing the video gives Telescope Media the right to provide public access to the video through their website and postings on social media.  Thus, their mission in expanding into the wedding video business is not just to make money but also to promote different-sex marriage, which they consider to be an institution that is endangered by social changes such as the marriage equality movement.  They also want to be able to include a notice on their website that they do not provide video services for same-sex marriages.

The Minnesota public accommodations law was amended in 1993 to add “sexual orientation” to the prohibited grounds of discrimination. After Minnesota’s legislature enacted a marriage equality law in 2013, the Minnesota Department of Human Rights (MDHR) published an “interpretive guidance” for businesses covered by the law, stating clearly that the state law “does not exempt individuals, businesses, nonprofits, or the secular business activities of religious entities from non-discrimination laws based on religious beliefs regarding same-sex marriage.”  The guidance makes clear that people denied services by such businesses could file discrimination charges with the agency, which could result in penalties for violation of the law.

ADF alleged in its complaint that Telescope Media has already been contacted by at least one same-sex couple seeking video services for their wedding, but they were told that Telescope Media does not do wedding videos. This is legal, since they are not discriminating between same-sex and different-sex couples.  They claim they want to get into this potentially lucrative business, but are concerned about exposing themselves to legal liability, and seek the shelter of a declaratory judgment that they are privileged to turn down same-sex wedding business.

ADF came up with seven legal theories in support of their claim to constitutional protection, based on the 1st and 14th Amendments. They claimed that any legal requirement that they must provide services to same-sex couples would violate their rights to freedom of speech, expressive association, free exercise of religion, equal protection of the laws, and both procedural and substantive due process.  Their freedom of speech argument subdivides into the freedom to advertise their wedding video business as available only to different-sex couples, and their freedom not to be compelled to produce wedding videos that celebrate same-sex marriages and thus communicate a message of approval that contradicts their religious-inspired views.  The court rejected their argument that under the Minnesota law they could be compelled to display publicly any same-sex marriage videos that they might produce.

Judge Tunheim carefully and systematically rejected all of their arguments, citing extensively to U.S. Supreme Court decisions dealing with comparable situations. Before tackling the substantive issues, he had to deal with whether this lawsuit was an attempt to get an advisory opinion, which is beyond the jurisdiction of federal courts.  In this case, the fact that the MDHR has announced in advance its view that declining same-sex marriage business would violate the Human Rights Act helped to convince the court that prosecution of Telescope Media if it implemented its business plan was not merely theoretical.  If they have a constitutional right, the existence of the law and the agency’s intention to enforce it back their claim that they are being deterred from potentially exercising a constitutional right by expanding their business.  Thus, Tunheim rejected the argument by the state’s attorneys that the court had no jurisdiction over the case, since there is a real “case or controversy,” not a purely hypothetical case.

Turning to the merits, however, Judge Tunheim agreed with the growing body of state court appellate decisions that have rejected these constitutional arguments, for all the reasons that have been cited in those cases.

The court found that the MDHR is not a content-based regulation of speech, does not target religion, is subject only to intermediate scrutiny under 1st and 14th Amendment principles, and is sustained by the state’s important interest in preventing discrimination by businesses providing goods and services to the public.

Judge Tunheim rejected ADF’s argument that requiring a business to make wedding videos for same-sex couples if they make them for different-sex couples would violate the prohibition against government-compelled speech.   “Where a business provides a ‘conduit’ that allows others to pay for speech,” as in the case where the business makes an expressive product like a video for monetary compensation, “strict scrutiny is usually unnecessary because there is ‘little risk’ of compelled speech or that the public will attribute the message to that of the speaker,” he wrote.  “Further, courts generally do not find compelled speech where the speaker may easily disclaim the message of its customers.”

“The law does not compel the Larsens to speak a specific government message,” he continued, “unlike the message on the license plate in Wooley or the words of the pledge of allegiance in Barnette,” referring to cases where the Supreme Court held that a state cannot compel a person to display a political message on his license plate or to speak the flag salute against his will.  “The law does not dictate how the Larsens carry out any of their creative decisions regarding filming and editing.  While the law does incidentally require wedding videographers to make videos they might not want to make, the concerns undergirding the application of the compelled speech doctrine to instances of hosting another’s message are immaterial.”

At the heart of his analysis was the simple proposition that “speech-for-hire is commonly understood to reflect the views of the customer. Weddings are expressive events showcasing the messages and preference of the people getting married and attendees, who do things like speak, dress, and decorate in certain ways.  A video of a wedding depicts this expressive event, and while videographers may exercise creative license to fashion such a video, the videographer is a ‘conduit’ for communication of the speech and expression taking place at the wedding.”

Further, he pointed out, the Larsens can always post an announcement on their website stating that they are complying with the law by making videos of same-sex weddings, but that they are opposed to same-sex marriage. This sets their case apart from Hurley, the Supreme Court case holding that Massachusetts could not compel parade organizers to include a gay group if the organizers did not want to send a gay rights message through their parade.  Finally, he pointed out, making wedding videos for same-sex couples would not impede the Larsens’ ability to propagate their own message.  They would not be required to exhibit these videos on their website or place them on social media, as the court found that the MDHR would not be interpreted to impose such a requirement.

The court held that the ability of the MDHR to decide whom to prosecute under the statute did not destroy its content-neutral character, and that requiring Telescope Media to afford equal access to its services for same-sex weddings did not violate its right of expressive association. Indeed, ADF’s argument on this issue would undermine all anti-discrimination laws, were a court to accept the argument that every interaction with a potential customer could be avoided on grounds of “forced association.”  Historically-mind people may recall that then-Professor Robert Bork opposed the public accommodations provisions of the proposed Civil Rights Act in 1964 by describing the proposition that forcing businesses to provide services to people of color as one of “surpassing ugliness” because it would force people into unwanted personal associations.  These sorts of views led to the defeat of Bork’s nomination by President Reagan to the Supreme Court in 1987.

Because the judge found the Minnesota Human Rights Act to be content-neutral as far as religion goes, it easily rejected the idea that evenhanded application of the law would constitute a violation of free exercise, and it similarly rejected the argument that the law imposed an “unconstitutional condition” on the Larsen’s ability to conduct business in Minnesota. Because the law applied to all videography businesses, there was no viable Equal Protection claim.  Similarly, there was no viable procedural due process claim since the law’s prohibition was not unduly vague, and its use of the phrase “legitimate business purposes” to describe circumstances under which a business could refuse to provide a service to a consumer had a well-established legal meaning that would not leave reasonable people guessing as to the scope of their legal obligations.

Finally, having found that the law did not unconstitutionally abridge any of the Larsen’s substantive constitutional rights, the court easily concluded that it did not violate the 14th Amendment’s substantive due process protection for individual liberty. The court found that there is no recognized “fundamental right to work or operate a business free from regulations that one dislikes.  Absent some authority to the contrary, the Court declines to expand the reach of substantive due process to these facts, as the doctrine is ‘reserved for truly egregious and extraordinary cases,’” citing several U.S. Supreme Court decisions limiting the scope of substantive due process doctrine.

Judge Tunheim found that the state’s attorneys had “met their burden to demonstrate that Counts I-VII in the Amended Complaint all fail as a matter of law,” so there is nothing left to litigate and the court granted the state’s motion to dismiss the complaint.

ADF’s appeal to the 8th Circuit is unlikely to result in a quick decision, because the Supreme Court will soon schedule oral arguments in the Masterpiece Cakeshop case, which presents many of the same issues.  This is an appeal of a ruling by the Colorado Court of Appeals that the Cakeshop and its proprietor, Jack Philips, violated the state’s human rights law by refusing to make a wedding cake for a same-sex couple because of his religious objections to same-sex marriages.  The hearing will probably take place later this year, with a decision expected in the spring of 2018.

The 8th Circuit may decide to follow the same procedure it followed in 2014 and 2015 when it received state appeals from district court marriage equality rulings while a similar case from the 6th Circuit was pending in the Supreme Court. The 8th Circuit put the appeals “on hold” to see what the Supreme Court would do, and then after the Obergefell ruling it simply followed the Supreme Court’s lead, as it would be required to do by precedent.

However, because ADF has alleged various legal theories that were not advanced in the Masterpiece Cakeshop case, a Supreme Court ruling in that case may not definitively answer all the questions raised in Telescope Media, so it is possible that the 8th Circuit will find this case different enough to justify going forward without waiting for the Supreme Court’s ruling.

 

N.Y. Appellate Division Finds Wedding Venue Unlawfully Excluded Same-Sex Couple

Posted on: January 15th, 2016 by Art Leonard No Comments

A unanimous five-judge bench of the New York Appellate Division, 3rd Department, an intermediate appellate court that hears appeals from state agency rulings in Albany, upheld a decision by the State Division of Human Rights (SDHR) that Liberty Ridge Farm LLC, an upstate business corporation that rents facilities for wedding ceremonies and other life-cycle events, violated the state’s Human Rights Law (HLR) in 2012 when the business turned away a lesbian couple looking for a place to hold their wedding ceremony and reception.  The court’s January 14 opinion was written by Justice Karen K. Peters.  Gifford v. McCarthy, 2016 N.Y. App. Div. LEXIS 238, 2016 WL 155543.

In June 2011 New York enacted its Marriage Equality Law, which went into effect the next month, providing that same-sex couples could marry and that their marriages would be treated the same under all provisions of New York law as different-sex marriages.  In October of 2011, Melisa McCarthy and Jennifer McCarthy became engaged, intending to marry during 2012.  In the fall of 2012, Melisa phoned Cynthia Gifford, co-owner of Liberty Ridge Farm, to ask about holding the wedding there.

Ms. Gifford and her husband Robert co-own the farm in Rensselaer County.  It is a working farm, but parts of the premises are regularly rented to the public for use as a wedding venue.  According to Justice Peters’ opinion, “When providing a venue site, Liberty Ridge offers several wedding-related services, including transportation of guests within the premises, a light beverage station, decoration and set-up services, flower arrangements and event coordination,” and Ms. Gifford serves as the “event coordinator.”  Liberty Ridge also contracts with a caterer to provide food and beverages for wedding receptions and “employs catering, kitchen and wait staff for that purpose.”

When Gifford figured out from Melisa’s use of a female pronoun to refer to her fiancé that she was engaged to a woman, she immediately said that there was a “problem” because the farm did “not hold same-sex marriages.”  When Melisa asked why not, Gifford responded that “it’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.”  The McCarthys followed up by filing a discrimination complaint with the State Division of Human Rights against the Giffords and their corporation, and found a different venue for their wedding.

The HRL provides that places of public accommodation may not discriminate in their provision of services because of the sexual orientation of those seeking the services.   The Giffords responded to the charge of sexual orientation discrimination that they did not believe their operation was a “public accommodation” subject to the law and that they were not discriminating based on sexual orientation, but rather exercising their 1st Amendment rights of freedom of speech, association and religious exercise. They did not inquire into the sexual orientation of potential customers, they insisted.

A public hearing before an Administrative Law Judge (ALJ) led to a decision that Liberty Ridge Farm LLC was a place of public accommodation and that the denial of the facility to a same-sex couple for use as a wedding venue violated the statute.  Constitutional questions were necessarily reserved to the subsequent court proceeding.  The ALJ recommended that each of the McCarthys receive $1,500 to compensate for the emotional distress they suffered as a result of being discriminated against, and that the Giffords have to pay a fine to the agency of $10,000.  The ALJ also recommended that the petitioners be directed to “cease and desist” from violating the statute, and establish anti-discrimination training and procedures at their business. The Commissioner of Human Rights accepted the ALJ’s findings and recommendations with minor changes, and the Giffords filed their appeal to the Appellate Division, raising both statutory and constitutional challenges to the decision.

This case presented questions of first impression for New York, but the issues are not new for anyone who has been paying attention to similar cases that have arisen in other states.  To date, appellate rulings in New Mexico, Oregon, Colorado and Washington state have all rejected the idea that businesses can deny their services or goods to same-sex couples in connection with commitment or wedding ceremonies when state or local laws forbid sexual orientation discrimination by businesses.  Justice Peters cited those cases – most prominently the Elane Photography case from New Mexico, which was denied review by the U.S. Supreme Court on the constitutional questions – in reaching a ruling consistent with the decisions from other states.

Turning first to the statutory claims, the court easily dispensed with the Giffords’ argument that their farm is not a “public accommodation” under the statute.  They are incorporated as a for-profit business and they advertise the availability of their facilities to members of the public, so their argument that they are just a privately-owned farm that rents out its barn occasionally for a wedding ceremony was not going to cut it under the broad interpretation of the statute that the state courts have followed.  “The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law,” wrote Justice Peters; “the critical factor is that the facilities are made available to the public at large.”

As to the argument that they were not discriminating based on sexual orientation, the court was equally dismissive.  “As the record clearly reflects,” wrote Justice Peters, “Cynthia Gifford displayed no unwillingness to allow the McCarthys to marry at the farm until Melisa McCarthy referred to her fiancé as a ‘she.’  Despite Cynthia Gifford’s clear rejection of the McCarthys as customers, petitioners nonetheless argue that, in advising Melisa McCarthy that ‘we do not hold same-sex marriages here at the farm,’ they did not deny services to the McCarthys ‘because of’ their sexual orientation.  Instead, petitioners claim that the decision to do so was based solely upon the Giffords’ religious beliefs regarding same-sex marriage.  Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected.”  Justice Peters cited the U.S. Supreme Court’s decision involving the refusal of University of California Hastings Law School to recognize a chapter of the Christian Legal Society, which excluded gay students from membership, in which Justice Ruth Bader Ginsburg expressly rejected this kind of status/conduct distinction, as well as the famous Bob Jones University case, which upheld a denial of tax exempt status to the school because of its policy forbidding interracial dating by students.

The court found that the “act of entering into a same-sex marriage is ‘conduct that is inextricably tied to sexual orientation,’” so there was no basis to distinguish this from on outright denial of services because of a potential customer’s sexual orientation.  The Giffords had tried to bolster this defense by claiming that they would have been happy to host a wedding reception for the McCarthys, so long as the actual wedding ceremony was not held on their premises, but the court rejected this defense, pointing out that the statute “does not permit businesses to offer a ‘limited menu’ of goods or services to customers on the basis of a status that fits within one of the protected categories.”

The court then turned to the Giffords’ constitutional claims, and here rested its analysis on the proposition that neither the federal First Amendment nor the analogous provision in New York State’s constitution allow people to violate general anti-discrimination laws based on their religious beliefs.  “While we recognize that the burden placed on the Giffords’ right to freely exercise their religion is not inconsequential,” wrote Peters, “it cannot be overlooked that SDHR’s determination does not require them to participate in the marriage of a same-sex couple.  Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so.  To be weighed against the Giffords’ interests in adhering to the tenets of their faith is New York’s long-recognized, substantial interest in eradicating discrimination.   Balancing these competing interests, we conclude that petitioners failed to show that SDHR’s determination constituted an unreasonable interference with the Giffords’ religious freedom.”

The court similarly rejected the Giffords’ other First Amendment claims.  “Here,” wrote Peters, “SDHR’s determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all.  The Giffords remain free to express whatever views they may have on the issue of same-sex marriage.  The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples.”  The court rejected the Giffords’ assertion that holding same-sex marriages in their barn would broadcast to passersby their “support for same-sex marriage.”  The court doubted that anyone would think that a business providing a service in compliance with a law that requires them not to discriminate was making any kind of statement of the owners’ personal beliefs by providing the service.

The court also rejected the “expressive association” claim, finding that “there is nothing in this record to indicate that petitioners’ wedding business was ‘organized for specific expressive purposes’ rather than for the purpose of making a profit through service contracts with customers.”

The court also concluded that the remedy imposed by SDHR was “reasonably related to the wrongdoing, supported by evidence and comparable to the relief awarded in similar cases,” so there was no reason to change it.  The standard for judicial review of the agency’s remedy is “abuse of discretion,” and the court found that SDHR did not abuse its discretion by imposing the $3,000 damage award and the $10,000 fine.

The Giffords and their business are represented by Alliance Defending Freedom, an anti-gay religiously oriented litigation group that actively seeks to vindicate the proposition that free exercise of religion, at least by Christians, should always trump other legal duties.  They will undoubtedly try to get the state’s highest court, the Court of Appeals, to review this ruling, but that court does not have to take the case and is not likely to do so, given the unanimity of the five-member Appellate Division bench and the consistency with appellate rulings from other states involving wedding photographers, florists and bakeries.  Review by the U.S. Supreme Court is also unlikely, since it turned down the wedding photographer case from New Mexico and there is no division among the lower courts that have been ruling on these types of cases.

The McCarthys are represented by Mariko Hirose of the NY Civil Liberties Union and Rose A. Saxe of the ACLU.  SDHR’s appellate attorney Michael Swirsky argued on behalf of the agency in defense of its ruling, and a variety of civil rights and gay rights organizations weighed in as friends of the court, including the NAACP Legal Defense Fund, Lambda Legal and the National Center for Lesbian Rights, as well as New York Attorney General Eric Schneiderman.

Immigration Review Panel Announces Same-Sex Marriage Recognition Rule

Posted on: July 19th, 2013 by Art Leonard 3 Comments

Shortly after the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional on June 26 in U.S. v. Windsor, Department of Homeland Security Secretary Janet Napolitano announced that the immigration service under her department would recognize same-sex marriages that were valid where they were performed, using the “place of celebration rule.”  But her announcement, which varied from standard practice of considering whether a marriage was recognized where the couple was residing, the “place of domicile rule,” was not binding outside her department.  On July 17, the administrative body whose opinion on this would be crucial also opted for the “place of celebration rule,” as the Board of Immigration Appeals (BIA), a body within the Justice Department’s Executive Office for Immigration Review, ruled on a pending petition by a U.S. citizen seeking lawful resident status for his same-sex spouse.

The case is Matter of Oleg B. Zeleniak, 26 I & N Dec. 158, Interim Decision 3787, 2013 WL 3777692 (BIA July 17, 2013).

Serge Polajenko, a U.S. citizen, filed a Petition for Alien Relative, called an I-130, on March 10, 2010, on behalf of his husband, Oleg Zeleniak, after the men were married in Vermont.  The petition was denied on July 27, 2010, on the ground that DOMA, Section 3, barred immigration authorities from recognizing same-sex marriages.  Polajenko appealed to the BIA, which issued a decision on April 18, 2012, sending the case back to the National Benefits Center Director to address two issues: first, whether the Polajenko-Zeleniak marriage was valid under state law, and second, whether the marriage qualifies as bona fide as required by the Immigration and Nationality Act.  At that time, of course, the Justice Department was on record as finding that DOMA Section 3 was unconstitutional, and it had stopped defending the statute in litigation, but was committed to continuing to enforce it pending a final decision from the Supreme Court.  Remanding the case for these further determinations was, in effect, a holding action.

 The questions posed by BIA are two distinctly separate issues, arising under two different bodies of law.  The second concerns the requirement that a marriage be “bona fide,” not a marriage of convenience entered for the purpose of getting a “green card” (authorization to live and work in the United States), but rather a “real marriage” of parties intending to live as spouses.  In response to the BIA, the Director issued a new decision on June 19, 2012, finding that the couple was validly married under Vermont law, but refusing to consider whether the marriage was bona fide for immigration purposes and again denying a visa for Zeleniak.  Again Polajenko appealed.  This time, as litigation involving DOMA was coming to a climax in several federal courts and clearly headed to the Supreme Court, the BIA sat on the appeal, as it has on many pending cases, waiting for the Supreme Court to rule.

 The BIA’s new decision on Polajenko’s petition holds that the Windsor decision “removed Section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated.  This ruling is applicable to various provisions of the Act, including but not limited to” fiancée and fiancée visas, immigrant visa petitions, refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waivers of removability, cancellation of removal, and adjustment of status. 

 Thus, the BIA sustained Polajenko’s appeal, finding that the Director had already determined that the marriage is valid under Vermont law, “where the marriage was celebrated.  Thus, the sole remaining inquiry is whether the petitioner has established that his marriage to the beneficiary is bona fide.  We will remand the record to allow the Director to make that determination.” 

 The BIA’s ruling now becomes the precedent, and presumably a stream of rulings on backed-up appeals will follow. Although the BIA did not address the issue directly, presumably the place of celebration rule also extends to marriages between U.S. citizens and foreign nationals that take place outside the U.S., in one of the dozen or so other countries that allow same-sex marriages.  While Homeland Security has been issuing green cards over the past few weeks in response to I-130 petitions in accord with Napolitano’s direction, the BIA ruling lines up the Justice Department with Homeland Security on the important issue of “place of celebration,” which means that married same-sex couples will be recognized for immigration purposes, regardless of where they are living, so long as their marriages are found to be bona fide.

 

Implementing the Windsor Decision

Posted on: July 12th, 2013 by Art Leonard No Comments

Under U.S. v. Windsor, Section 3 of the Defense of Marriage Act is unconstitutional and we are left with no broadly applicable federal statutory definition of marriage.  What we have are 13 states and the District of Columbia, which now grant marriage licenses to same-sex couples, and several other countries (including neighboring Canada) in which such licenses are also available.  At this point, there are thousands of same-sex couples living in the United States who are married, although some portion of them are living in states that do not recognize their marriage.  The question now is how these same-sex couples are to be treated by the federal government.

The quick response of the Obama Administration has been to say that for certain purposes, it is clear that the federal government will treat them as married regardless where they are living.  For example, the Office of Personnel Management has moved quickly to made spousal benefits available to same-sex spouses of federal employees in the executive branch, the personnel offices of both houses of Congress have done the same, presumably judicial branch employees, whose benefit plans are also administered through OPM, will also fall into line.  The Defense Department has indicated that military personnel with same-sex spouses will also be treated the same as married personnel with different-sex spouses.  More complicated questions arise about various federal program that have, either by virtue of statutes, regulations, or customary practices, determined the marital status of people based on where they are domiciled, and federal programs governed by statutes or regulations that either expressly or by implication extend only to different-sex married couples.

My response to this situation is to argue, first, that any existing statute, regulation or policy that might be construed to treat same-sex married couples differently should be considered presumptively unconstitutional under Windsor unless there is an independent policy justification for such treatment.  And I would argue that in spite of Justice Kennedy’s failure in his opinion for the Court to specify the level of judicial review he was applying to determine whether Section 3 was unconstitutional, it was clearly something other than minimalistic rational basis review.  As in Romer and Lawrence, it is hard to make sense of Windsor as a matter of legal reasoning without characterizing the judicial review in these cases as not being so deferential as the courts normally are when it comes to reviewing economic regulations, for example.  This would mean that some burden would be placedon the government to justify differential treatment by reference to non-discriminatory policy concerns.

I would make a further argument, going to the issue of whether married same-sex couples living in states that don’t recognize their marriage are entitled to federal recognition.  We are one country.  True, we are a democratic republic under which many powers and prereogatives are preserved for the states, and this federalism concept actually played a role in the Windsor decision.  Justice Kennedy emphasized the traditional role of states in deciding who could marry as being improperly invaded by Congress when it decreed a second-tier status  for same-sex marriages authorized by the state, by denying them all federal benefits.  On the other hand, one may argue, if a marriage was lawful where it was contracted, then the federal government should recognize it wherever that married couple ends up living or working or traveling, otherwise there is a significant undermining of the effectiveness of federal law.

Here I may seem to be borrowing a leaf from the book of DOMA’s defenders,who argued that DOMA was justified as establishing uniformity nationwide for federal benefits eligility by adopting one nationwide federal marriage definition.  If so, then so be it.  Why should a same-sex couple who marry in New York and eventually retire to Florida be denied the full benefits of the Social Security system because Florida refuses to recognize their marriage? 

The Respect for Marriage Act, now pending in both houses of Congress, would quickly resolve this problem by establishing the “place of celebration” rule as a uniform federal  rule for determining whether a marriage is valid for purposes of federal law. But I would argue that anything other than a “place of celebration” rule would raise serious equal protection concerns under the 5th Amendment, and that to avoid litigation, the Obama Administration should adopt it as the universal rule for determining eligiblity for federal benefits and any obligations imposed on married couples under federal law.  Why should a high federal official who lives in Virginia but married a same-sex partner in Maryland or D.C. have any less of an ethical obligation regarding conflicts of interest and disclosure of financial resources than such an official who lives with her spouse in Maryland or D.C.?  Why should a same-sex couple married in California but living in Arizona be deprived of whatever benefit they might derive from filing federal income taxes as a married couple (and, conversely, why should the federal government have to forego whatever financial benefit it would derive by application of the federal “marriage penalty” to those same-sex married couples living in Arizona whose combined income is high enough to generate the extra taxes due)?

I think we should be giving Windsor a broad reading to make presumptively unconstitutional any unequal treatment of same-sex married couple for any purpose of federal law.  And I wonder whether anybody would have Article III standing to challenge a decision by the Obama Administration to do that?  I recognize that legal challenges would probably be a secondary concern for the administration, which might be more worried that an adverse reaction to such a stance by Congressional Republicans would make it even that much harder than it is now to achieve any substantive legislation?   Would Republicans hold the next federal budget hostage to a provision barring the government from spending any money for benefits to same-sex married couples residing in states that don’t recognize their marriages?  I wouldn’t put it past them, even though such legislation would face the same constitutional infirmities as DOMA, and would certainly be open to attack in federal court by same-sex couples who would be deprived of benefits as a result.