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Supreme Court May Decide Another Gay Wedding Cake Case

Posted on: October 26th, 2018 by Art Leonard No Comments

Melissa and Aaron Klein, proprietors of the now-defunct “Sweetcakes by Melissa” custom-cake business in Gresham, Oregon, filed a petition for certiorari on October 19, asking the U.S. Supreme Court to strike down the $135,000 penalty imposed by Oregon authorities for their refusal to make a wedding cake for Rachel Cryer and Laurel Bowman in January 2013. Klein v. Oregon Bureau of Labor and Industries, No. ____ , seeking review of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051, 289 Or. App. 507 (2017), rev. denied by Oregon Supreme Court, June 21, 2018.  The Kleins claim in their Petition that the Oregon ruling violates their constitutional rights of free exercise of religion and freedom of speech.

The Kleins also claim that they did not discriminate against the lesbian couple because of their sexual orientation, contrary to the finding of the Commission that was affirmed by the state appeals court. And, perhaps most consequentially, they asked the Supreme Court to consider whether to overrule Employment Division v. Smith, 494 U.S. 872, which holds that the Free Exercise Clause does not exempt people with religious objections from complying with state laws of general application that do not specifically target religious practices.

The Kleins ask the Court to revisit a controversy it confronted last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  Both Oregon and Colorado forbid businesses in the state from discriminating against customers because of their sexual orientation.  In Masterpiece, baker Jack Phillips refused, initially on religious grounds, to make a wedding cake for a gay male couple, and Colorado officials found that he had violated the law, rejecting his First Amendment defense.  In his appeal of the Colorado Court of Appeals’ ruling affirming the Commission, Phillips asserted protection under both the Free Exercise and Free Speech Clauses of the First Amendment, claiming that the government may not compel a “cake artist” to express a message contrary to his religious beliefs, both as a matter of freedom not to speak and protection for religious freedom.

The Court did not rule directly on these questions in disposing of Phillips’ appeal, instead deciding that comments by some of the Colorado Civil Rights Commissioners, and the Commission’s rejection of some other discrimination claims filed by a provocateur who charged bakers with discriminating against him by refusing to make explicitly anti-gay cakes, showed that the state had not afforded an appropriately “neutral forum” to Phillips for consideration of his defense. On that basis, the Court reversed the state court and commission rulings and dismissed the case against Phillips.  However, in his opinion for the Court, Justice Anthony Kennedy reaffirmed that people and businesses do not enjoy a general free exercise right to refuse to comply with state laws of general application that do not specifically target religion.  Kennedy’s opinion avoided dealing with Phillips’ argument that as a “cake artist” he also had a valid free speech claim.  Two justices dissented, while others concurred in the result.

Justice Kennedy cited Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), to support the Free Exercise point.  In that case, a restaurant owner cited his religious beliefs to refuse to comply with Title II of the Civil Rights Act of 1964, which forbids businesses affecting commerce from refusing to serve customers because of their race.  The Supreme Court affirmed the 4th Circuit, which had reversed the district court’s refusal to enjoin the restaurant’s discriminatory policy.  Kennedy could have just as well cited Employment Division v. Smith, which the Colorado Commission’s Administrative Law Judge had cited in his Masterpiece ruling, but Piggie Park may have seemed more apposite, as it involved enforcement of a general anti-discrimination law over religious objections. Smith, by contrast, involved a Native American man who had consumed peyote in a religious ritual and subsequently flunked his employer’s drug test, suffering discharge and denial of unemployment benefits.  The Supreme Court rejected Smith’s religious freedom challenge to his disqualification for benefits, finding that the incidental burden this posed on his free exercise of religion did not excuse him from complying with his employer’s lawful policy against employee drug use or require that an exception be made to the state’s unemployment insurance law, which denies benefits to employees discharged “for cause.” In a concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch (joined by Justice Clarence Thomas) described the Smith ruling as “controversial,” implying that it deserved reconsideration.

The Kleins have followed up on Gorsuch’s signal by asking the Court to reconsider Smith or, alternatively, to “reaffirm” some comments Justice Antonin Scalia made in his opinion for the 5-4 Court majority in Smith, suggesting that when somebody raises a free exercise of religion claim in a case that also implicates “other fundamental rights,” such as freedom of speech, the Court should apply “strict scrutiny” to the challenged state action in order to vindicate the other fundamental right.  The Klein’s Petition points out that lower federal courts are divided about whether to follow Scalia’s suggestion for handling so-called “hybrid rights” cases – a suggestion the Oregon Court of Appeals expressly rejected in the Kleins’ case — and urges the Court to resolve a split of lower court authority by taking this case.

The Klein’s Petition also argues that they did not discriminate against Cryer and Bowman because of their sexual orientation; they would refuse to make a cake for a same-sex wedding regardless of the sexual orientation of the customer who sought this service. They related that just a few years earlier, they had produced a wedding cake ordered by this very lesbian couple, to celebrate the marriage of Rachel’s mother to a man, and that it was because Rachel and Laurel “liked the Kleins’ work so much that they wanted to commission a custom cake from Sweetcakes for their own wedding.”  The Petition also notes that the women quickly found another baker to make their wedding cake, and that a celebrity chef even gave them a second custom-designed cake for free.

On the other hand, it was reported that when the Kleins posted about the discrimination claim on their Facebook.com page, showing the image of the actual discrimination charge with contact information for the lesbian couple, the women received nasty messages, including death threats, which contributed to the Oregon Bureau’s decision to assess substantial damages for emotional distress.

The Kleins devote a large part of their Petition to arguing that they are “cake artists” whose creations are expressive works, entitling them to the same vigorous constitutional free speech protection normally provided to artists in less digestible media. As such, they claim the Oregon court erred in failing to apply strict scrutiny to the Bureau’s decision against them, as the Supreme Court has repeatedly held that the First Amendment protects an individual’s refusal to speak a message with which they disagree, the prime example being the Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which, overruling a 4-3 decision by the Massachusetts Supreme Judicial Court, the Court held that parade organizers had a right to exclude a group whose message they did not desire to include in their parade, which the Court deemed to be a “quintessential expressive association.”  Whether the Court is willing to deem baking a wedding cake the free speech equivalent of staging a parade with thousands of people on a state holiday is an interesting question.

If the Court grants the Petition, the most consequential issue could be the Kleins’ challenge to Employment Division v. Smith, in which the Court cast aside decades of First Amendment precedent to hold that general laws that place a heavy burden on somebody’s free exercise of religion must generally be obeyed nonetheless.  Under prior rulings, the government had the heavy burden of meeting the “compelling government interest” test in order to justify applying a general law that incidentally but substantially burdened somebody’s free exercise of religion.

Justice Gorsuch was correct in calling Smith a “controversial” decision. Congress was so incensed by Justice Scalia’s opinion (which drew dissents from liberal members of the Court) that a bipartisan coalition soon passed the first version of the Religious Freedom Restoration Act (RFRA), introduced by Chuck Schumer (House) and Ted Kennedy (Senate) and eagerly signed into law by Bill Clinton in 1993.  RFRA provided that any law imposing a substantial burden on somebody’s free exercise of religion could be challenged using the strict scrutiny standard.  The Supreme Court subsequently ruled that Congress did not have authority to overrule the Court’s constitutional ruling, but the Court later upheld a revised version of RFRA that applied only to federal laws that burden religious free exercise, holding that Congress could create a legislative exception to federal laws when they incidentally impose a substantial burden on religious exercise.  Federal RFRA provided the example for more than twenty states to pass their own versions, similarly restricting the application of their state and local laws.  State court decisions in several other states have interpreted their state constitutional religious freedom provisions to the same effect, rejecting the Supreme Court’s narrower interpretation of Free Exercise in Smith.

If the Supreme Court were to overrule Smith and restore the previous precedents, RFRA and its state counterparts would be rendered superfluous, as the First Amendment would once more restrict states from enforcing general laws that substantially burden a person or business’s free exercise of religion in the absence of a compelling state interest.  The impact on LGBT rights could be enormous, prompting new claims that application of anti-discrimination laws to people and businesses with religious objections to LGBT people violates the businesses’ constitutional rights – one of the claims the Kleins are pursuing in this case.

Oregon state officials have thirty days to file a response to the Petition, and Petitioners can file a Reply to the Response, which means that the Supreme Court’s file in the case will not be completed for consideration by the Court until at least early December and maybe longer if the Oregon Attorney General’s Office requests an extension of time to respond. But if the petition is granted in December, that would leave plenty of time for the Court to hear arguments and render a decision during its current term, which runs through the end of June.

Iowa Appeals Court Affirms Ruling Against Lesbian’s Brother Attempting to Invalidate Bequest to Her Surviving Partner

Posted on: February 26th, 2018 by Art Leonard No Comments

 

David Lance Wilson struck out in his attempt to get the Iowa courts to hold that a provision in his late sister’s will leaving her entire estate to her long-time partner, Susan Woodall Fisher, was automatically revoked when the women allegedly split up nine years before the sister’s death. Affirming a summary judgment ruling by Crawford County District Judge Patrick H. Tott, the Iowa Court of Appeals ruled on February 7 in Estate of Wilson; Wilson v. Fisher, 2018 WL 739248, 2018 Iowa App. LEXIS 155, that Iowa’s Probate Code, Sec. 633.271(1), would only revoke such a bequest if a marriage was dissolved in a court action, but there is no court record of any such proceeding.

 

Although the court’s ruling was an unexceptionable interpretation of the statute on its face, the factual setting of the case is a bit odd, to say the least. In order to attempt to invoke the revocation statute, David Wilson had to allege in his petition for declaratory judgment that the women had been legally married, a contention that is demonstrably untrue, but which was accepted as an “undisputed fact” for purposes of this case in the responsive pleading filed by the co-executors of the estate, Fisher and John C. Werden, and thus by the court as well, in its opinion by Judge Christopher L. McDonald.

 

According to Judge McDonald’s summary of the factual allegations, Leslie Wilson and Susan Fisher, same-sex partners, were married in Colorado “sometime before November 6, 1991,” on which date Leslie “executed her last will and testament. Under the will, Susan was to receive Leslie’s entire estate.  Leslie’s brother, David, was listed as the successor beneficiary.”  After Leslie passed away in March 2014, Susan filed an application in the Crawford County District Court for probate of a “foreign probated will.”  District Judge Tott admitted the will into probate, and appointed Fisher and John C. Werden as “personal representatives” of the Iowa estate.  “Susan subsequently filed an election to take under the will as Leslie’s surviving spouse.  In June 2015, the personal representatives executed and recorded a court officer deed conveying an undivided one-half interest in real property owned by Leslie at the time of her death to Susan.”

 

David showed up six months later, filing his petition in the District Court alleging that Susan and Leslie had “dissolved” their marriage and that they “never cohabitated again and never remarried.” According to David, this dissolution, which involved terminating their relationship and dividing their assets, occurred in 2005.  He was relying on Code Section 633.271(1), titled “Effect of divorce or dissolution,” which states, “If after making a will the testator is divorced or the testator’s marriage is dissolved, all provisions in the will in favor of the testator’s spouse … are revoked by the divorce or dissolution of marriage, unless the will provides otherwise.”  Of course, this provision only applies if there was a marriage to begin with.

 

In a footnote, the court acknowledged that “same-sex marriages were not recognized in Colorado until October 2014. However, the parties stipulated in their pleadings that ‘Susan … and Leslie … were married in the state of Colorado’ prior to that time.  We need not address the issue of whether the parties were legally married in Colorado because it is immaterial to our resolution of the case.  If they were not legally married under Colorado law, then Iowa Code section 633.271(1)(2016) does not apply, and we would affirm.  Under the analysis used in this opinion, which assumes without deciding they were legally married, we also affirm.”

 

David sought to persuade the court that because the provision in question states “divorce or dissolution of marriage,” the words “divorce” and “dissolution” must refer to two different things. A “divorce” is obviously a legal proceeding terminating a marriage.  David argued that “dissolution” must, therefore, refer to an informal voluntary termination of a marriage by the parties without involving the courts.  But the court of appeals panel unanimously rejected this argument.

 

Judge McDonald referred to Chapter 598 of the Iowa code which “expressly defines a ‘dissolution of marriage’ as ‘a termination of the marriage relationship,’” and more specifically to Section 598.1(2), in which, he asserted, “The legislature has expressly directed that the term ‘dissolution of a marriage’ ‘shall be synonymous with the term ‘divorce.’” Thus, the court concluded, “the terms ‘divorced’ and ‘dissolved’ as used in Section 633.271(1) carry the same meaning – the statute uses the terms in the context of marital relations, and the legislature has expressly defined those terms in the context of marital relations to be synonymous.  In Iowa, a divorce or dissolution of a marriage may only be decreed by a court upon evidence ‘that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonably likelihood that the marriage can be preserved.’”

 

As to the contention that parties can voluntarily “dissolve” a marriage without involving the courts, McDonald quoted a 1966 Iowa Supreme Court ruling, stating “We know of no such thing as a common law divorce.” McDonald found similar authority under Colorado law.

 

“It is undisputed that no decree has ever been entered dissolving Susan and Leslie’s marriage. The facts which David argues are in dispute are legally immaterial to the issue of whether Susan and Leslie’s marriage was dissolved.”  Thus, the court affirmed Judge Tott’s ruling granting summary judgment in favor of the Estate and co-executors, denying David’s request for a declaratory judgment that the bequest to Susan was automatically revoked.

 

The court also denied David’s request to delay ruling on the co-executors’ motion for summary judgment until he could obtain discovery. Such discovery would be irrelevant to disposition of this motion, because David’s attempt to use the statute to get the bequest to Susan “revoked” must be rejected regardless of which version of the “facts” one accepts, so long as there is no record of any court decree “dissolving” the Fisher-Wilson “marriage.”  And, of course, even if David is correct in asserting that the women split up and divided their assets in 2005, Leslie’s failure to revoke her will would leave the bequest in place in the absence of a valid marriage and a legal divorce.

 

Aaron W. Ahrendsen of Eich, Werden & Steger, P.C., Carroll, Iowa, represents the co-executors. Bradley J. Nelson of Norelius Nelson Law Firm, Denison, Iowa, represents David.

U.S. Supreme Court Denies Petition to Review Texas Supreme Court Ruling in Houston Benefits Case

Posted on: December 5th, 2017 by Art Leonard No Comments

On December 4 the U.S. Supreme Court rejected without explanation a petition from the City of Houston seeking review of the Texas Supreme Court’s June 30 ruling in Pidgeon v. Turner, which had cast doubt on whether the City was obligated under Obergefell v. Hodges, the 2015 marriage equality ruling, to provide same-sex spouses of Houston employees the same employee benefits offered to different-sex spouses.

A decision by the Supreme Court to deny review of a case is not a ruling on the merits of the case. In this case, it most likely means that there were not at least four members of the Court, the number required under the Court’s rules to grant a petition for review, who thought the Court should intervene in a lawsuit that is ongoing in the state trial court.  The Court’s action should not be construed as a decision approving the Texas Supreme Court’s ruling.  It is consistent with the Court’s tight control of its docket, under which sharply limits the number and type of cases that it takes up for review and rarely inserts itself into a case that has not received a final disposition in the lower courts.

Retired Texas Supreme Court Justice Wallace B. Jefferson and his law firm, Alexander Dubose Jefferson & Townsend LLP, filed the petition on behalf of Mayor Sylvester Turner and the City of Houston on September 15, several weeks after Lambda Legal had filed a new federal district court lawsuit on behalf of some Houston employees whose same-sex spouses are receiving benefits and who fear losing them in the state court litigation. Lambda’s suit was quickly dismissed by the federal trial judge as not “ripe” for review because the plaintiffs are receiving their benefits and it was likely, in the judge’s view, that the state trial court would rule that the benefits were legal in light of the current state of the law.

The Texas Supreme Court’s June 30 decision, which reversed a ruling by the Texas Court of Appeals, was not a final disposition of that case, instead sending it back to the trial court in Harris County for a hearing on the original claim by plaintiffs Jack Pidgeon and Larry Hicks, Republican anti-gay activists, that the City had unlawfully extended employee benefits eligibility to same-sex spouses of City employees in 2013.

Pidgeon and Hick first started litigating against the City when then-Mayor Annise Parker extended benefits eligibility by executive action after receiving an opinion from the city attorney about the impact of the U.S. Supreme Court’s June 26, 2013, ruling, U.S. v. Windsor, which struck down part of the federal Defense of Marriage Act. Pidgeon and Hicks argued that under Texas statutory and constitutional law at the time, it was illegal for the City to extend the benefits, as the U.S. Supreme Court’s Windsor decision did not address the constitutionality of state laws banning same-sex marriage.

Pidgeon and Hicks had a plausible argument in 2013, enough to persuade the trial judge to issue a preliminary injunction against the City, which promptly appealed. The Court of Appeals sat on the appeal for a few years, waiting for the storm of marriage equality litigation in Texas and throughout the country to play out.  Less than a year after the Windsor decision, a federal trial judge in San Antonio ruled that the state’s ban on same-sex marriage was unconstitutional, but the state’s appeal languished in the 5th Circuit Court of Appeals until after the U.S. Supreme Court decided the Obergefell case on June 26, 2015.  A few days later the 5th Circuit affirmed the trial court’s ruling invalidating the Texas laws banning same-sex marriages.  Then the Texas Court of Appeals reversed the preliminary injunction, instructing the trial court to decide the case in accord with the 5th Circuit’s ruling.  The City then resumed providing the benefits, which it has continued to do.

Undaunted, Pidgeon and Hicks asked the Texas Supreme Court to review the Court of Appeals decision, arguing that the Court of Appeals erred by instructing the trial court to follow the 5th Circuit’s ruling because, as a technical matter, state courts are not bound by federal court of appeals rulings.  They argued, in effect, that the City was still bound to abide by the Texas state law banning recognition of same-sex marriages for purposes of public employee benefits, which had never been invalidated in the state courts and, they argued, was technically not declared unconstitutional by the U.S. Supreme Court, whose opinion in Obergefell only directly struck down state marriage bans in the states of the 6th Circuit, Ohio, Michigan, Kentucky, and Tennessee.

After lengthy deliberation, the Texas Supreme Court announced in September 2016 that it would not consider Pidgeon and Hicks’ appeal. This prompted a fervent campaign by Governor Greg Abbott and other elected officials to persuade the court to change its mind, stimulating thousands of Texans to flood the court with demands that it reverse the Court of Appeals decision.  The court ultimately bowed to this pressure, granted review, and issued its June 30 decision.

The Texas Supreme Court agreed that the Texas Court of Appeals should not have treated the 5th Circuit’s decision as binding on the trial court, and opined further that the Obergefell decision was just about whether same-sex couples could marry as a question of federal constitutional law, not what benefits they were entitled to if they married.  This was palpably wrong, as shown by another Supreme Court ruling, just days prior, in Pavan v. Smith, a case from Arkansas involving parental names on birth certificates, in which the Court made clear that married same-sex couples are entitled to the “full constellation of rights” that go with marriage under the Obergefell decision.

At present Pidgeon and Hicks’ lawsuit is still pending in the state trial court and the same-sex spouses of Houston employees are receiving their equal benefits, so it is likely that the Supreme Court justices saw no pressing reason to add this case to their docket. Perhaps they agree with the opinion by U.S. District Judge Vanessa D. Gilmore, who, in dismissing Lambda’s lawsuit, in predicted that the state trial court, being bound to follow U.S. Supreme Court precedent in Obergefell and Pavan, will ultimately reject the challenge to the benefits.

N.Y. Appellate Division Upholds Vacating Adoption by Father’s New Boyfriend on Petition by Father’s Husband

Posted on: October 3rd, 2017 by Art Leonard No Comments

On September 28, 2017, a unanimous five-judge panel of the N.Y. Appellate Division, First Department, held that New York County Family Court Judge Stewart H. Weinstein had properly granted a motion by Han Ming T., the husband of Marco D., to vacate a May 2016 order that had granted an adoption petition by Carlos A., Marco’s boyfriend, to adopt a child conceived through gestational surrogacy using Marco’s sperm at a time when Marco and Han Ming were subsequently deemed to be married.  Ming, who had initiated a divorce proceeding in Florida in which he sought joint custody of the child, then unaware that the adoption petition had been filed in New York, showed that he was entitled to notice of the adoption petition and respect for his parental rights.  Carlos and Marco had failed to inform the Family Court that the status of the child in question was implicated in an ongoing divorce proceeding, so that court had originally granted the adoption unaware that there was a legal impediment as the consent of Ming was lacking. In re Maria-Irene D., 2017 N.Y. App. Div. LEXIS 6713, 2017 WL 4287334, 2017 N.Y. Slip Op 06716.

Marco and Ming, who are both British citizens, entered a formal civil partnership in the U.K. in 2008, which they converted into a legal marriage in 2015. Under British law, their marriage was treated as retroactive to the date of their civil partnership.  Between those two dates they had relocated to the U.S., living in Florida.  In 2013 they undertook to have a child through gestational surrogacy, a process by which an egg is extracted from a donor, fertilized in a petri dish, and then implanted in a surrogate.  Both men contributed sperm for several in vitro fertilization attempts; the one that “took,” using Marco’s sperm, was implanted in the surrogate.  This process was carried out in Missouri, where the child, who was named after the mothers of both men, was born in September 2014.  A Missouri court then terminated any parental rights of the egg donor and the surrogate and designated Marco, the genetic father, as having “sole and exclusive custody” of the child.  “Marco, Ming, and the child returned to Florida, where they lived as a family until October 2015, when Ming returned to the UK to seek employment,” wrote the court.

But evidently the relationship of the men was complicated during that time, because, the court reports, “At some point in or after 2013, Marco entered a relationship with petitioner Carlos A., and they moved to New York with the child after Ming went to the U.K.” Carlos petitioned the New York County Family Court to adopt the child in January 2016.  The adoption papers “disclosed that Marco and Ming were married in 2008, but alleged that they had not lived together continuously since 2012 and that Carlos and Marco have been caring for the child since her birth.  A home study report stated that Marco and Ming legally separated in 2014 and had no children together.”  That Ming had participated in the surrogacy process and that Marco, Ming and the child lived together as a family thereafter were not disclosed to the Family Court in the adoption proceeding.   Neither did Carlos and Marco disclose to that court prior to the adoption order being granted that Ming had filed a divorce action in Florida in March 2016, seeking joint custody of the child.

The Family Court granted the adoption in May 2016. When Ming learned of this, he filed a motion in the Family Court to vacate the adoption “on the ground that relevant facts had not been disclosed to the court and that he was entitled to notice of the adoption and an opportunity to be heard since he had parental rights.”  Judge Weinstein granted Ming’s motion and vacated the adoption, finding that Carlos and Marco made “material misrepresentations” to the court and that Ming was entitled to notice of the proceeding.  Weinstein did leave open the possibility that depending how the divorce proceedings were resolved in Florida, Carlos might later renew his petition to adopt the child.  Carlos moved for re-argument, but the motion was denied, and Carlos and Marco appealed.

The Appellate Division found that the Family Court “providently exercised its discretion in vacating the adoption.” Since the Marco-Ming marriage was retroactive to 2008 under U.K. law, it would be recognized as such under New York law as a matter of comity.  Which meant that the child, born in 2014, was a child of the marriage, “giving rise to the presumption that the child is the legitimate child of both Marco and Ming.”  The court noted Ming’s allegation that they lived together as a family in Florida, and that “the couple took affirmative steps in the U.K. to establish Ming’s parental rights in accordance with U.K. law.”  The court doesn’t explain this further.  Perhaps it refers to their subsequent 2015 marriage, which had retroactive effect under U.K. law to 2008, thus establishing Ming’s parental status, regardless of the Missouri judgement awarding Marco sole and exclusive custody.  (One has to factor into the mix that in 2014 same-sex couples could not marry in Missouri and their U.K. legal status as civil partners when the child was born would have no recognition under Missouri law, so naturally a Missouri court at that time would not recognize Ming as having any legal relationship to the child.)

“The prevailing law at the time the adoption petition was granted does not compel a different result,” said the court. As far as this court was concerned, as a matter of New York law according comity to the retroactive effect of their U.K. marriage, “Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together.  Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding.  Under the Court of Appeals’ most recent decision concerning parental standing (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 [2016]), Ming’s claim to have standing as a parent is even stronger.”

The court also found the failure by Carlos and Marco to disclose the Florida divorce proceeding to the Family Court to be “another ground to vacate the adoption,” since an adoption petition requires the petitioner to disclose to the court whether the child is the subject of any other legal proceeding affecting his or her custody or status, and Ming had petitioned for joint custody of the child in the Florida proceeding. Carlos and Marco learned of that proceeding a few months after Carlos’s adoption petition was filed, while that petition was still pending before the Family Court, so they had a duty to bring it to the attention of that court.  Instead, they filed a supplemental affidavit claimed that there had been no change in the child’s circumstances “whatsoever” since the filing of the adoption petition.

Ming is represented by Nina E. Rumbold of Rumbold & Seidelman, LLP (Bronxville). Carlos and Marco are represented by Frederick J. Magovern of Magovern & Sclafani, Mineola.  There is no attorney appointed to represent the child’s interest, a point that Carlos and Marco raised in their appeal but as to which the Appellate Division declined to rule.  The court’s opinion does not report on the current status of Ming’s Florida divorce proceeding.  It is possible that Ming and Marco are still legally married, which perhaps explains why Carlos and Marco are not?

 

Former Texas Supreme Court Chief Justice Seeks Reversal of His Old Court’s Opinion

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

On June 30, the Texas Supreme Court issued a ruling claiming that the U.S. Supreme Court’s Obergefell marriage equality decision from June 2015 did not necessarily require state and local governments to treat same-sex and different-sex marriages the same for government employee benefits purposes. On September 15, asserting that his old court’s decision was clearly wrong, retired Texas Supreme Court Justice Wallace B. Jefferson and lawyers from his Austin firm, Alexander Dubose Jefferson & Townsend LLP, asked the U.S. Supreme Court to reverse the ruling.

Jefferson, an African-American Republican, was appointed to the court in 2001 by Governor Rick Perry, who then elevated him in 2004 to the Chief Justice position, where he served until retirement in October 2013. Justice Jefferson was the first African-American to serve on Texas’s highest court.  His law firm was retained by Houston Mayor Sylvester Turner to represent the City in petitioning the Supreme Court for review.

The case arose in 2013 when then-Mayor Annise Parker, an out lesbian and longtime LGBT rights activist, reacted to the Supreme Court’s decision to strike down the federal Defense of Marriage Act by asking her City Attorney whether the reasoning of that case would require the City of Houston to recognize same-sex marriages of City employees. Although Texas did not allow same-sex marriages then, some City employees had gone out of state to marry and were seeking health care benefits for their spouses under the City’s employee benefits plan.  Parker got the answer she was seeking and ordered an extension of benefits to City employees’ same-sex spouses.

Two local Republican activists, Jack Pidgeon and Larry Hicks, sued the City and Mayor Parker, seeking an injunction against extension of the benefits. They persuaded a state trial judge to issue a preliminary injunction, barring the benefits from going into effect pending the outcome of the litigation.  The court relied on the Texas constitutional and statutory bans on same-sex marriage, which had not yet been challenged in court as of that time.  The City appealed the preliminary injunction.

While the appeal was pending before the Texas Court of Appeals, the U.S. Supreme Court decided the Obergefell case, and the U.S. Court of Appeals for the 5th Circuit, which is based in Houston, promptly affirmed a 2014 marriage equality ruling by the federal district court in San Antonio, DeLeon v. Abbott, declaring unconstitutional the Texas same-sex marriage bans that had been the basis for the trial court’s injunction. Then the Texas Court of Appeals issued a ruling reversing the trial court’s preliminary injunction and instructing that court to decide the case consistent with the DeLeon decision.  Pidgeon and Hicks appealed that ruling to the Texas Supreme Court.

 

After extensively considering the matter, the Texas Supreme Court announced that it would deny review of the Court of Appeals ruling. This outraged Texas Republican leaders, including Governor Abbott, and the state Republican Party went to work encouraging people to bombard the court with communications urging it to reconsider and grant review, and then to reverse the court of appeals.  Perhaps it is not surprising, considering the very political nature of that court, made up entirely of Republican justices (since Texas has not had a Democratic governor since George W. Bush defeated Ann Richards in 1994), that the court succumbed to these demands, reconsidered, and granted review.

On June 26, 2017, the U.S. Supreme Court issued its decision in Pavan v. Smith, a challenge to the refusal by Arkansas officials to list both members of married lesbian couples on birth certificates when one of them gave birth to a child through donor insemination. In that ruling, the Supreme Court made abundantly clear that the Obergefell decision had effectively decided the Pavan case by holding that same-sex couples had the same constitutional rights regarding marriage as different sex couples, extending to the entire “constellation of rights” that went with marriage.  The Supreme Court did not even bother to hold oral argument in the Pavan case, simultaneously granting the petition to review an adverse decision by the Arkansas Supreme Court and issuing a brief memorandum opinion, from which three members of the Court dissented in an argumentative and disingenuous memorandum attributed to recently-appointed Justice Neil Gorsuch and signed by Clarence Thomas and Samuel Alito.  The Pavan opinion left no doubt that same-sex and different-sex married couples must be treated the same by government entities under the 14th Amendment.

But it was evidently not clear to a majority of the Texas Supreme Court, which just days later issued its ruling, reversing the court of appeals and sending the case back to the trial court in Houston, with instructions to give Pidgeon and Hicks an opportunity to try to convince the court that the City of Houston was still required to refuse recognition to the marriages of same-sex couples under its benefits plan, relying on the Texas constitutional and statutory ban that was declared unconstitutional by the 5th Circuit. A majority of the Texas Supreme Court clings to the idea that constitutional rulings by the lower federal courts are not binding on the Texas state courts.    The Texas court suggested that the U.S. Supreme Court’s opinion in Obergefell could be interpreted narrowly to address solely the question whether states must allow same-sex couples to marry and must recognize same-sex marriages contracted from out of state, but that the Obergefell opinion said nothing directly about what rights must be accorded to same-sex married couples.  This is, as Justice Jefferson’s Petition to the Supreme Court makes clear, blatantly untrue.  It treats the Pavan ruling as if Justice Gorsuch’s dissent was speaking for the Court.

Justice Jefferson’s Petition on behalf of Mayor Turner and the City of Houston makes mincemeat out of the work product of his former colleagues, quoting clear language from Obergefell which, among other things, specifically mentioned health insurance as an example of how the denial of marriage to same-sex couples violated their fundamental right to marry and to be treated equally with different-sex couples.

This case is just as clear as Pavan was, and is likely to receive the same treatment from the U.S. Supreme Court, unless that Court finds some procedural or jurisdictional reason to dismiss the Petition without deciding the question presented by the petitioners: “Did the Supreme Court of Texas correctly decide that Obergefell v. Hodges and Pavan v. Smith ‘did not hold that states must provide the same publicly funded benefits to all married persons,’ regardless of whether their marriages are same-sex or opposite-sex?” Some have suggested that because the Texas Supreme Court was ruling only on the validity of a preliminary injunction, the matter is not procedurally ripe for U.S. Supreme Court review, but any attempt to reinstate the preliminary injunction would directly violate the constitutional rights of Houston City employees in clear violation of the Obergefell ruling.

On a parallel track, Lambda Legal filed a federal district court lawsuit in Houston over the summer on behalf of some married LGBT City employees, seeking a declaratory judgment that they are entitled to the same benefits for their spouses that their straight colleagues get. If the Supreme Court does not grant Justice Jefferson’s Petition, it is likely that the matter can be resolved relatively quickly through Lambda’s case, since the City would eagerly comply with an order by the U.S. District Court to provide equal benefits.  This is, at heart, a dispute between the pro-LGBT Houston Democratic city government and the anti-LGBT Republican state government.

 

 

Texas Supreme Court Refuses to Dismiss Challenge to Spousal Benefits for Houston City Employees

Posted on: June 30th, 2017 by Art Leonard No Comments

In a clear misreading of the U.S. Supreme Court’s marriage equality ruling from 2015, Obergefell v. Hodges, especially as elucidated just days ago by that Court in Pavan v. Smith, the Texas Supreme Court unanimously refused on June 30 to dismiss a lawsuit by two disgruntled Houston taxpayers who argue that the city of Houston may not provide employee benefits for the same-sex spouses of its employees. The case is Pidgeon v. Turner, 2017 Tex. LEXIS 654.

Instead, while affirming a ruling by the Texas Court of Appeals that had reversed the preliminary injunction that a Texas trial court issued in 2014 against payment of the benefits, the Texas Supreme Court sent the case back to the trial court for it to decide whether the Obergefell decision obligates Houston to provide equal benefits to same-sex spouses of its employees, and also to consider the taxpayers’ argument that the city should be required to “claw back” the value of benefits that were paid prior to the Obergefell decision, on the theory that Texas’s refusal to recognize same-sex marriages contracted out-of-state was valid until the U.S. Supreme Court ruling was announced.

In Pavan v. Smith, the Arkansas Supreme Court had ruled that the Obergefell decision did not require the state to treat same-sex spouses the same as different-sex spouses for listing as a parent on the birth certificate of a child born to their spouse. Reversing that ruling, the U.S. Supreme Court said: “As we explained [in Obergefell], a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Indeed, in listing those terms and conditions — the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access — we expressly identified ‘birth and death certificates.’ That was no accident…”

Thus, the Supreme Court made clear in Pavan, contrary to the Arkansas Supreme Court’s unduly narrow reading of Obergefell, that same-sex couples are entitled to the same rights and benefits of marriage as different-sex couples. In listing some of the rights and benefits of marriage that same-sex couples had wrongly been denied, the Obergefell court specifically mentioned health insurance, an employee benefit that is at issue in the Texas case.  Thus, to claim that the Obergefell opinion fails to deal with this issue explicitly is totally disingenuous.

And yet, Justice Jeffrey S. Boyd wrote for the Texas Supreme Court in Pidgeon v. Turner, “The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and – unlike the Fifth Circuit in DeLeon – it did not hold that the Texas DOMAs are unconstitutional.” “DeLeon” refers to the Texas marriage equality decision that was issued by the U.S. Court of Appeals for the 5th Circuit a few days after the Obergefell decision, holding that the Texas ban on same-sex marriage was unconstitutional in light of Obergefell.

Instead of cutting through procedural complications and saving everybody involved lots of wasted time and money through prolonged litigation, the Texas court has now repeated the error of the Arkansas Supreme Court by insisting that the Obergefell ruling does not clearly require “the same” rights, benefits and responsibilities, and, incredibly, cited in support of this point the Supreme Court’s decision on June 26 to grant review of a Colorado Court of Appeals ruling, Masterpiece Cakeshop v. Colorado Human Rights Commission, which concerns a totally different question: whether a baker has a 1st Amendment right to discriminate against a same-sex couple by refusing an order for a wedding cake in violation of a state anti-discrimination law.  The Supreme Court did not address in Obergefell the question of reconciling a potential clash between anti-discrimination laws and the rights of free exercise of religion and freedom of speech enjoyed by non-governmental entities and individuals.  But the Court most emphatically did address the issue that governmental actors, bound by the 14th Amendment, must accord the same rights to all married couples, whether same-sex or different-sex, and it reiterated that point in Pavan.

The Texas case dates back to 2013, when Houston’s Mayor Annise Parker, an out lesbian, reacted to the Supreme Court’s Windsor decision by extending benefits to the same-sex spouses of Houston city employees who had gone out of state to get married. At the time, Texas had both a state Defense of Marriage Act and a similar constitutional amendment, and Houston had a charter provision limiting municipal employee benefits to legal spouses and children of employees.  Relying on an advisory opinion from the city attorney, Parker concluded that after Windsor it was unconstitutional to refuse to recognize those out-of-state marriages.

Jack Pidgeon and Larry Hicks, Houston taxpayers who identified themselves as devout Christians who did not want their tax money going to subsidize same-sex marriages, filed a lawsuit challenging the benefits extension in December 2013, and refiled in October 2014 after the first case was dismissed for “want of prosecution” while the parties were wrangling about the city’s attempt to remove the case to federal court. Pidgeon and Hicks claimed, based on state and city law, that the benefits extension was “expending significant public funds on an illegal activity.”  They persuaded a local trial judge to issue a preliminary injunction against continued payment of the benefits while the case was pending, and the city appealed.

The Texas Court of Appeals sat on the appeal while marriage equality litigation proceeded both in the federal courts in Texas – the DeLeon v. Perry case – and nationally. Shortly after the Supreme Court ruled in Obergefell on June 26, 2015, the 5th Circuit, affirming a federal district court ruling, held in DeLeon that the Texas laws banning same-sex marriage were unconstitutional.

Then the Texas Court of Appeals reversed the trial court’s preliminary injunction in the Pidgeon case and sent the case back to the trial court with instructions to decide the case “consistent with DeLeon.” Pidgeon and Hicks sought to appeal this ruling to the Texas Supreme Court, but were initially turned down by that court.  Then the top Republican elected officials in the state – the governor, lieutenant governor, and attorney general – and a bunch of other non-parties filed papers with the Supreme Court urging it to change its mind and allow the appeal, which the court eventually agreed to do.

In its June 30 ruling, the court buried itself in procedural complications. Based on its incorrect conclusion that the Obergefell decision, as amplified by the Pavan ruling, does not decide the merits of this case, and further giving credence to the plaintiffs’ argument that Obergefell cannot be construed to have any retroactive effect because “the Supreme Court acknowledged that it was attributing a new meaning to the Fourteenth Amendment based on ‘new insights and societal understandings,”  the court opined that Pidgeon and Hicks should have an opportunity to “develop” their argument before the trial court.  This contention on retroactivity is not the view that has been taken by other courts, including some that have retroactively applied Obergefell to find that cohabiting same-sex couples in states that still have a common law marriage doctrine can be held to have been legally married prior to that ruling.  Indeed, the federal government even gave Windsor retroactive application, allowing same-sex couples to file for tax refunds for earlier years on the basis that the Internal Revenue Service’s refusal to recognize their state-law marriages under DOMA had been unconstitutional.

The Texas Supreme Court agreed with Pidgeon that the Texas Court of Appeals should not have directed the trial court to rule “consistent with DeLeon” because, technically, the state trial courts are not bound by constitutional rulings of the federal courts of appeals, only by U.S. Supreme Court rulings on questions of federal law. DeLeon could be a “persuasive” precedent, but not a “binding” precedent.  This merits a big “so what?”  After all, the real question in this case is whether Obergefell requires that married same-sex couples are entitled to the “same benefits” as different-sex couples from their municipal employer, and the answer to that could not be more clear, especially after Pavan v. Smith.  (Indeed, Justice Gorsuch’s dissenting opinion in Pavan repeats the same mistaken assertion — that Obergefell does not clearly require the “same” rights and benefits which the Court responds to by quoting from Obergefell to the opposite effect – and is just as disingenuous as Justice Boyd’s decision for the Texas court.)

Now the case goes back to the trial court in Houston, where the outcome should be dictated by Pavan v. Smith and Obergefell and the court should dismiss this case. But, since this is taking place in Texas, where contempt for federal law is openly expressed by public officials, who knows how it will turn out?

Same-Sex Marriage Looms for Taiwan after Constitutional Court Ruling

Posted on: May 24th, 2017 by Art Leonard No Comments

The Constitutional Court of the Republic of China (Taiwan) voted overwhelmingly that same-sex couples are entitled to marry, and that anti-gay discrimination violates the Republic’s Constitution. The May 24 ruling was greeted with relative equanimity by legislative leaders, who were ordered by the court to approve legislation to implement this decision by May 24, 2019.  Otherwise, the court said, the decision would go into effect automatically, and same-sex couples would be entitled to marry.  Only two justices dissented, and one abstained.  Press reports we saw differed as to whether the court has 14 or 15 members.  Either way, the majority was overwhelming.

This was the first ruling by an Asian high court to accept marriage equality as a constitutional right, although there might be political and ideological arguments about its significance in relation to the rest of Asia due to the unusual status of Taiwan, which the Peoples’ Republic of China (Mainland China) considers to be part of its country that is just temporarily self-governing and most countries do not recognize it as an independent nation. However, there is no disputing that when this ruling goes into effect, Taiwan will be the first place where same-sex marriages can be performed in Asia with the imprimatur of legally-recognized status.

The opinion, formally called Interpretation No. 748, was released only in Chinese, but the court simultaneously issued an English-language press release summarizing the ruling in detail.

The court was responding to petitions from LGBT rights activist Chia-Wei Chi and the Taipei City Government, seeking a definitive ruling on whether the freedom to marry, protected by Article 22 of the Constitution, was limited by the provisions of Chapter 2 on Marriage of Part IV on Family of the Civil Code, which defines marriage as exclusively a different-sex institution. The court also had to confront the question whether excluding same-sex couples from marriage violated the “people’s right to equality” guaranteed in Article 7 of the constitution.

The court found that both constitutional guarantees – the right to marry and the right to equality – were violated by the ban on same-sex marriage.

The court observed that the petitioner, Chia-Wei Chi, has been waging a campaign for same-sex marriage for more than thirty years. Although some progress had been made in getting the legislature to consider the issue, after more than ten years of bills being introduced and debated, nothing has been brought to a vote.  The court expressed concern about the frustration induced by this protracted legislative process.  “The representative body is to enact or revise the relevant laws in due time,” said the court.  “Nevertheless, the timetable for such legislative solution is hardly predictable now and yet these petitions involve the protection of people’s fundamental rights.  It is the constitutional duty of this Court to render a binding judicial decision, in time, on issues concerning the safeguarding of constitutional basic values such as the protection of peoples’ constitutional rights and the free democratic constitutional order.”

The court said that the freedom to marry extends both to deciding whether to marry and whom to marry. “Such decisional autonomy is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right.”  The court insisted that allowing same-sex couples to marry “will not affect the application of the Marriage Chapter to the union of two persons of the opposite sex” and that it would not “alter the social order established upon the existing opposite-sex marriage.”  The court said that the failure of current law to allow same-sex couples to marry “is obviously a gross legislative flaw” and that the current provisions “are incompatible with the spirit and meaning of the freedom of marriage as protected by Article 22 of the Constitution.”

Moving to the equality issue, the court addressed the problem that Article 7, unlike the United States’ equal protection clause, explicitly requires equality “irrespective of sex, religion, class, or party affiliation,” but the court did not see this list as a barrier to protecting equality for gay people (or, it added, people with disabilities). They said that the classifications listed in Article 7 “are only exemplified, neither enumerated nor exhausted.”  In other words, this is a list of “including but not limited to” classifications, and the court saw sexual orientation as a classification governed by the same equality principle.

“Sexual orientation is an immutable characteristic that is resistant to change,” wrote the court. “The contributing factors to sexual orientation may include physical and psychological elements, living experience, and the social environment.  Major medical associations have stated that homosexuality is not a disease.  In our country, homosexuals were once denied by social tradition and custom in the past.  As a result, they have long been locked in the closet and suffered various forms of de facto or de jure exclusion or discrimination.  Besides, homosexuals, because of the demographic structure, have been a discrete and insular minority in the society.  Impacted by stereotypes, they have been among those lacking political power for a long time, unable to overturn their legally disadvantaged status through ordinary democratic process.  Accordingly, in determining the constitutionality of different treatment based on sexual orientation, a heightened standard shall be applied.”  This appears to be the equivalent of the U.S. legal concept of a “suspect classification,” one deemed illegitimate in the absence of good justification.

The court rejected any idea that reproductive capacity has anything to do with the freedom to marry, pointing out that different-sex couples may marry even if they are incapable of procreation or unwilling to engage in procreative activities. “Disallowing two persons of the same sex to marry, for the sake of their inability to reproduce, is a different treatment having no apparent rational basis,” wrote the court.  It also rejected the kind of moralistic arguments that are raised by marriage equality opponents, concluding, “Disallowing two persons of the same sex to marry, for the sake of safeguarding basic ethical orders, is a different treatment, also obviously having no rational basis.  Such different treatment is incompatible with the spirit and meaning of the right to equality as protected by Article 7 of the Constitution.”

While the court gave the government two years to make the necessary legislative adjustments to carry out this ruling, it warned that failure to do so would not prevent the decision from going into effect. Upon the two-year anniversary, if not sooner, same-sex couples will be entitled to apply for marriage registration to the usual authorities and to “be accorded the status of a legally recognized couple, and then enjoy the rights and bear the obligations arising on couples.”

Without being able to read and understand the original Chinese text, it is hard to assess whether the ruling leaves much leeway to the legislature to consider alternatives to true marriage equality. In Europe, for example, the Court of Human Rights has been willing to allow countries to adopt registered partnerships or civil unions rather than extending explicit marriage rights to same-sex couples, although that is likely to change as the number of countries having voluntarily legislated for marriage equality has grown to encompass several of the largest countries who are parties to the European Convention on Human Rights.  However, the clear import of the English summary is that same-sex marriages would have to include all the usual legal rights accompanying opposite-sex marriages to meet the equality test the court embraced, in a more explicit way than the U.S. Supreme Court did in Obergefell v. Hodges in 2015.

The local English-language press in Taiwan reported that none of the major parties responded with opposition to the ruling, which was quickly embraced by Premier Lin Chuan, who “ordered Chen Mei-ling, secretary-general of the Executive Yuan, to coordinate the Ministry of Justice, Ministry of Interior and other branches to draft the revision proposal,” according to Cabinet spokesman Hsu Kuo-yung. The cabinet will approve a proposal to submit to the legislature. The two options that seem available are a bill amending existing laws to accommodate same-sex marriages, or a separate same-sex marriage bill.  In terms of timing, it seems possible that marriage equality will go into effect sooner than two years.  Although the current legislative session ends by May 31, the legislature will reconvene for some special sessions during July and August and will resume its regular session thereafter.

No, Donald Trump Can’t Repeal Marriage Equality

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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.

 

 

Federal Court Blocks Implementation Mississippi HB 1523

Posted on: July 1st, 2016 by Art Leonard No Comments

 Just minutes before Mississippi’s anti-LGBT H.B. 1523 was scheduled to go into effect on July 1, U.S. District Judge Carlton W. Reeves filed a 60-page opinion explaining why he was granting a preliminary injunction to the plaintiffs in two cases challenging the measure, which he consolidated for this purpose under the name of Barber v. Bryant.

 

                According to Judge Reeves, H.B. 1523 violates both the 1st Amendment’s Establishment of Religion Clause and the 14th Amendment’s Equal Protection Clause.  His lengthy, scholarly opinion expands upon some of the points he made just days earlier when he granted a preliminary injunction in a separate lawsuit, blocking implementation of one provision of H.B. 1523 that allowed local officials responsible for issuing marriage licenses to “recuse” themselves from issuing licenses to same-sex couples based on their “sincere” religious beliefs.

 

                Unlike the earlier ruling, the June 30 opinion treats H.B. 1523 as broadly unconstitutional on its face.  Although Mississippi Governor Phil Bryant, the lead defendant in all three lawsuits, announced that the state would immediately appeal to the U.S. Court of Appeals for the 5th Circuit, Reeves’ scholarly opinion seemed likely to withstand judicial review.  Attorney General Jim Hood, Mississippi’s only Democratic statewide elected official and also a named defendant, suggested that he might not be joining in such an appeal, voicing agreement with Reeves’ decision and suggesting that the legislature had “duped” the public by passing an unnecessary bill.  He pointed out that the 1st Amendment already protected clergy from any adverse consequences of refusing to perform same-sex marriages, and that the state’s previously-enacted Religious Freedom Restoration Act already provides substantial protection for the free exercise rights of Mississippians.

 

                At the heart of H.B. 1523 is its Section 2, which spells out three “sincerely held religious beliefs or moral convictions” that are entitled, as found by Judge Reeves, to “special legal protection.”  These are “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at birth.”  According to the statute, any person or entity that holds one or more of these beliefs is entitled to be free from any sanction by the government for acting upon them by, for example, denying restroom access to a transgender person or refusing to provide goods or services to a same-sex couple for their wedding.

 

                Of course, the state may not override federal rights and protections, and the plaintiffs argue in these cases that by privileging people whose religious beliefs contradict the federal constitutional and statutory rights of LGBT people, the state of Mississippi has violated its obligation under the 1st Amendment to preserve strict neutrality concerning religion and its obligation under the 14th amendment to afford “equal protection of the law” to LGBT people.

 

                Reeves, who ruled in 2014 that Mississippi’s ban on same-sex marriage was unconstitutional, agreed with the plaintiffs as to all of their arguments.   For purposes of granting a preliminary injunction, he did not have to reach an ultimate decision on the merits of the plaintiffs’ claims.  It would suffice to show that they are “likely” to prevail on the merits.  But anybody reading Reeves’ strongly-worded opinion would have little doubt about his view of the merits.

 

                In an introductory portion of the opinion, he spells out his conclusions succinctly: “The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others.  Showing such favor tells ‘nonadherents that they are outsiders, not full members of the political community, and adherents that they are insiders, favored members of the political community,’” quoting from a Supreme Court decision from 2000, Santa Fe Independent School District v. Doe, 530 U.S. 290.  “And the Equal Protection Clause is violated by H.B. 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

 

                Much of the opinion was devoted to rejecting the state’s arguments that the plaintiffs did not have standing to bring the lawsuits, that the defendants were not liable to suit on these claims, and that injunctive relief was unnecessary because nobody had been injured by the law.  Reeves cut through these arguments with ease.  A major Supreme Court precedent backing up his decision on these points is Romer v. Evans, the 1996 case in which LGBT rights groups won a preliminary injunction against Colorado government officials to prevent Amendment 2 from going into effect.  Amendment 2 was a ballot initiative passed by Colorado voters in 1992 that prevented the state from providing any protection against discrimination for gay people.  The state courts found that the LGBT rights groups could challenge its constitutionality, and it never did go into effect, because the Supreme Court ultimately found that it violated the Equal Protection Clause.

 

                Judge Reeves ended his introductory section with a quote from the Romer v. Evans opinion:  “It is not within our constitutional tradition to enact laws of this sort.”

 

                In his earlier opinion, dealing with the clerk “recusal” provision, Reeves had alluded to Mississippi’s resistance to the Supreme Court’s racial integration rulings from the 1950s and 1960s, and he did so at greater length in this opinion, focusing on how H.B. 1523 was specifically intended by the legislature as a response to the Supreme Court’s ruling last year in Obergefell v. Hodges, holding that same-sex couples have a constitutional right to marry.  Mississippi legislators made clear during the consideration of this bill that its intention was to allow government officials and private businesses to discriminate against LGBT people without suffering any adverse consequences, just as the state had earlier sought to empower white citizens of Mississippi to preserve their segregated way of life despite the Supreme Court’s rejection of race discrimination under the 14th Amendment.

 

                Reeves quoted comments by Governor Bryant criticizing Obergefell as having “usurped” the state’s “right to self-governance” and mandating the state to comply with “federal marriage standards – standards that are out of step with the wishes of many in the United States and that are certainly out of step with the majority of Mississippians.”  In a footnote, Reeves observed, “The Governor’s remarks sounded familiar.  In the mid-1950s, Governor J.P. Coleman said that Brown v. Board of Education ‘represents an unwarranted invasion of the rights and powers of the states.’”  Furthermore, “In 1962, before a joint session of the Mississippi Legislature – and to a ‘hero’s reception’ – Governor Ross Barnett was lauded for invoking states’ rights during the battle to integrate the University of Mississippi.”  Reeves also noted how the racial segregationists in the earlier period had invoked religious beliefs as a basis for failing to comply with the Supreme Court’s decisions.

 

                Turning to the merits of the case, Reeves addressed the state’s argument that the purpose of the statute was to “address the denigration and disfavor religious persons felt in the wake of Obergefell,” and the legislative sponsors presented it as such, as reflected in the bill’s title: “Protecting Freedom of Conscience from Government Discrimination Act.”  Reeves pointed out what was really going on.  “The title, text, and history of H.B. 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell,” he wrote.  “The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions.  LGBT Mississippians, in turn, were ‘put in a solitary class with respect to transactions and relations in both the private and governmental spheres’ to symbolize their second-class status.” (The quotation is from Romer v. Evans.)  “As in Romer, Windsor, and Obergefell,” Reeves continued, “this ‘status-based enactment’ deprived LGBT citizens of equal treatment and equal dignity under the law.”

 

                Because state law in Mississippi does not expressly forbid discrimination because of sexual orientation or gender identity, the state tried to claim that in fact the bill did not have the effect of imposing any new harm.  However, recently the city of Jackson passed an ordinance forbidding such discrimination, and the University of Southern Mississippi also has a non-discrimination policy in place.  “H.B. 1523 would have a chilling effect on Jacksonians and members  of the USM community who seek the protection of their anti-discrimination policies,” wrote Reeves.  “If H.B. 1523 goes into effect, neither the City of Jackson nor USM could discipline or take adverse action against anyone who violated their policies on the basis of a ‘Section 2’ belief.”

 

                The court held that because of the Establishment Clause part of the case, H.B. 1523 was subject to strict scrutiny judicial review, and also pointed out that under Romer v. Evans, anti-LGBT discrimination by the state is unconstitutional unless there is some rational  justification for it.  He rejected the state’s argument that it had a compelling interest to confer special rights upon religious objectors.  “Under the guise of providing additional protection for religious exercise,” he wrote, H.B. 1523 “creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity.  It is not rationally related to a legitimate end.”  Indeed, he asserted, “The deprivation of equal protection of the laws is H.B. 1523’s very essence.”

 

                Reeves easily found that the standard for ordering preliminary relief had been met.  Not only was it likely that H.B. 1523 would be found unconstitutional in an ultimate ruling in the case, but it was clear that it imposed irreparable harm on LGBT citizens, that a balancing of harms favored the plaintiffs over the defendants, and that the public interest would be served by enjoining operation of H.B. 1523 while the lawsuits continue.  “The State argues that the public interest is served by enforcing its democratically adopted laws,” he wrote.  “The government certainly has a powerful interest in enforcing its laws.  That interest, though, yields when a particular law violates the Constitution.  In such situations the public interest is not disserved by an injunction preventing its implementation.”

 

                Reeves concluded, “Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together.  But H.B. 1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.  It must be enjoined.”