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Posts Tagged ‘same-sex spouses’

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

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

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

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

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

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

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

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

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

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

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

First Fruits of the DOMA/Prop 8 Decisions – Quick Response from the Obama Administration, Resumption of Marriages in California, and a Decision Striking a Michigan Law Against Partner Benefits

Posted on: June 30th, 2013 by Art Leonard No Comments

Response by the “defendants” in the DOMA and Prop 8 cases to the Supreme Court’s June 26 rulings was swift.

Within hours after the Court announced that Section 3 of DOMA was unconstitutional, the President had announced his “applause” for the decision and instruction to the Attorney General to coordinate with executive branch department heads to seek “smooth” implementation for federal recognition of lawfully-contracted same-sex marriages.  Some of the quickest responses came rolling in right away: Defense Secretary Hagel said steps would immediately be taken to extend spousal benefits to for same-sex spouses of military personnel, and Homeland Security Secretary Napolitano said that Customs & Immigration would immediately accord equal recognition to same-sex marriages.  The first green card was issued for a same-sex spouse just two days later, on Friday, for a Florida couple that included a Bulgarian citizen, and even more quickly, an immigration judge in New York halted a deportation hearing on Wednesday morning after being handed a copy of the DOMA decision fresh off the presses.  President Obama called Edie Windsor to congratulate her on the victory, but he did not, as far as we know, say “The check is in the mail,” which would have been a nice touch.  The IRS bureaucracy does not grind that quickly.  Indeed, the IRS may end up being one of the main sticking points for implementation, having emitted a non-committal statement that it would be providing guidance for taxpayers, employers and corporations, but not indicating when that would be forthcoming.  Office of Personnel Management sent out a notice to executive branch heads that same-sex spouses should immediately be recognized, and that an open enrollment period would commence for federal employees to enroll their same-sex spouses in benefits programs.   Nobody in the executive branch seemed inclined to wait until the Court issues its official mandate later in July before taking action, but that’s not surprising, given the government’s posture on the merits of the case!

Also within hours of the Prop 8 decision being announced, Governor Jerry Brown of California issued a statement attaching an opinion letter he had solicited weeks ago from Attorney General Kamala Harris about the scope of Judge Vaughn Walker’s Order.  Harris advised that when the stay was lifted by the 9th Circuit, same-sex marriage should be immediately available in every county.  In other words, she was rejecting the contention by the initiative proponents that the Order was limited to the plaintiff couples or the two counties where clerks were named defendants in the case. Brown followed her advice and had the Department of Public Health send a notice to all County Clerks and Recorders that upon lifting of the stay, same-sex couples should be treated the same as different-sex couples.  Harris contacted the 9th Circuit and urged that the stay be lifted right away.  The 9th Circuit panel that had issued the now-vacated decision expeditously responded on Friday, June 28, lifting the stay, opening the way for the plaintiff couples to get married that afternoon.   The San Francisco County Clerk’s office decided to stay open over the weekend to accommodate the demand for marriage licenses and ceremonies during Gay Pride Week, which was expected to draw 1.5 million to San Francisco for the annual festivities.

The Proponents tried to throw a wrench into the works, filing an “emergency motion” with the Supreme Court to halt the marriages, contending that the 9th Circuit could not lift the stay until the Supreme Court’s formal mandate arrived later in July.  Justice Kennedy, to whom the motion was referred, quickly denied it without comment.  Proponents are still expected to try other legal strategems in the days ahead.

Meanwhile, the first court to cite and rely on the Windsor case issued its ruling on Friday, June 28.  District Judge David M. Lawson, relying in part on the reasoning of Windsor as well as the Arizona domestic partnership benefits case, ruling in Bassett v. Snyder, 2013 WL 3285111 (E.D.Mich.), that plaintiffs were entitled to a preliminary injunction against the operation of a Michigan law that had been adopted to block public employers from providing domestic partnership benefits to their employees.  Under Public Law 297, employee benefits may be extended only to legal spouses, legal dependents, or legal heirs (those who could inherit from an employee under the intestacy laws) who are living with the employee.  The legislative history shows that this was passed specifically to override local governments that had extended benefits to non-marital partners.  Michigan’s Supreme Court had construed the state’s marriage amendment to forbid extending benefits to same-sex domestic partners as such, but many localities and government institutions had contrived a work-around to extend benefits to cohabitants who met certain minimal requirements, regardless of sex, and the law was intended to end this loophole as a means of enforcing the the marriage amendment.  The court found this to be a transparently discriminatory measure aimed mainly at same-sex couples — agreeing with the Arizona district court and the 9th Circuit (but failing to note the new development that the Supreme Court denied Arizona Gov. Jan Brewer’s cert petition on June 27) — and finding, in light of the reasoning of Windsor, that this would be an equal protection violation. 

Things are happening so fast, it’s difficult to keep up.  Lambda Legal announced it was filing a summary judgment motion in its pending N.J. Superior Court lawsuit seeking a ruling that the civil union act fails to provide equal rights for civil union partners, and the DOMA decision gives added weight to that contention.  A state legislator who represents the plaintiffs in a New Mexico marriage equality lawsuit announced he would petition the state supreme court to take up the case directly, in light of Windor, and of course the 9th Circuit will soon hear arguments in the Hawaii and Nevada cases.  (The Supreme Court denied a petition by the defenders of the Nevada marriage amendment, who were trying to leapfrog the 9th Circuit, also on June 27.)  Racing to keep up….