New York Law School

Art Leonard Observations

Posts Tagged ‘gay marriage’

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.”

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Colorado Appeals Court Rules against Wedding Cake Baker in Discrimination Case

Posted on: August 14th, 2015 by Art Leonard No Comments

Continuing an unbroken string of judicial rejections of free exercise of religion defense to discrimination claims against small businesses that decline goods or services to same-sex couples for their commitment ceremonies or weddings, a unanimous three-judge panel of the Colorado Court of Appeals has affirmed a ruling against Masterpiece Cakeshop, Inc., and its proprietor, Jack C. Phillips, by the Colorado Civil Rights Commission.  Judge Daniel M. Taubman wrote the opinion for the court, released on August 13.

 

Charlie Craig and David Mullins planned in 2012 to get married in Massachusetts and then to hold a wedding celebration for family friends in Colorado, where they lived.  At the time, the state of Colorado did not recognize same-sex marriages performed in other jurisdictions.  They visited Masterpiece Cakeshop and asked the proprietor, Jack Phillips, to design and create a cake for their celebration.  Phillips declined, stating to them that he does not create wedding cakes for same-sex weddings because of his religious beliefs.  He told them he would be happy to make and sell them other baked goods, but not a wedding cake.  The two men left the store and made arrangements with another bakery.  Craig’s mother called Phillips to follow up, but he reiterated his position that he would not make wedding cakes for same-sex weddings due to his religious belief, and also because such weddings were not legally recognized in Colorado.

 

Craig and Mullins filed a complaint with the Colorado Civil Rights Division, invoking the Colorado Anti-Discrimination Act (CADA), which bans discrimination because of sexual orientation by public accommodations.  After investigation, the Division noted probable cause and filed a formal complaint, that was tried before an Administrative Law Judge, who ruled in favor of Craig and Mullins, rejecting Phillips’ claimed religious exemption defense.  The Civil Rights Commission affirmed the ALJ decision, issuing a “cease and desist order” against Masterpiece, that required the company to (1) take remedial measures, including comprehensive staff training and alteration to the company’s policies to comply with the CADA, and (2) file quarterly compliance reports for two years with the Division describing the company’s remedial measures and documenting all patrons who had been denied service and the reasons for the denial.  The court’s opinion does not mention any fine or damages award.  Of course, since Craig and Mullins had long since married and held their celebration, there was no need to order Masterpiece to sell them a wedding cake. 

 

Phillips appealed to the courts, claiming, as he had maintained all along, that his refusal to make a wedding cake for the gay couple did not violate the statute, and that he had a right under the 1st Amendment to refuse to create a wedding cake when this act would conflict with his sincerely-held religious beliefs.  Phillips claimed that he did not discriminate because of the sexual orientation of Craig and Mullins, but rather because he disapproved of same-sex marriages on religious grounds.  He pointed out that he did not refuse to do business with them because they were gay, as he offered to sell them any other baked goods, and sought to draw a distinction between their status and their conduct in having a same-sex marriage.  He pointed out, for example, that he would equally refuse to design a cake for two heterosexual men who wanted to celebrate their wedding, to advance his argument that he was not discriminating based on status.

 

The court rejected this rationalization, observing that “the United States Supreme Court has recognized that such distinctions are generally inappropriate.” Judge Taubman quoted from Christian Legal Soc’y Chapter of University of California, Hastings College of Law v. Martinez, 561 U.S. 661 (2010), in which petitioner contended that it did not exclude individuals from membership because of their sexual orientation, but rather “on the basis of a conjunction of conduct and belief that the conduct is not wrong,” to which the Court replied, “Our decisions have declined to distinguish between status and conduct in this context.” 

 

Taubman also cited the majority and concurring decisions in Lawrence v. Texas, 539 U.S. 558 (2003), in which Justice Anthony Kennedy’s opinion said that a law criminalizing homosexual conduct is “in and of itself an invitation to subject homosexual persons to discrimination” and Justice Sandra Day O’Connor’s concurring opinion said, “While it is true that the [challenged sodomy law] applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual.  Under such circumstances, [the] law is directed toward gay persons as a class.”  These comments were directed against the state of Texas’s argument that its “Homosexual Conduct Law” was not specifically anti-gay because it outlawed oral or anal sex between two persons of the same sex regardless of their sexual orientation, an argument analogous to Phillips’ denial that his rejection of Craig and Mullins’ order was antigay. 

 

Taubman invoked as well the highest-level judicial precedent to deal directly with the issue in this case, Elane Photography v. Willock, 309 P.3d 53 (2013), in which the New Mexico Supreme Court upheld a discrimination ruling against a wedding photography who refused to do business with a lesbian couple for their commitment ceremony.  Wrote Taubman, “Masterpiece admits that it refused to serve Craig and Mullins ‘because of’ its opposition to persons entering into same-sex marriages, conduct which we conclude is closely correlated with sexual orientation.  Therefore, even if we assume that CADA requires plaintiffs to establish an intent to discriminate. . . the ALJ reasonably could have inferred from Masterpiece’s conduct an intent to discriminate against Craig and Mullins ‘because of’ their sexual orientation.”

 

Before addressing Phillips’ religious exemption argument, the court dealt with his argument that creating a wedding cake is an artistic expression, and that the First Amendment’s protection for freedom of expression should shield him from being compelled by state law to create a wedding cake. “Masterpiece contends that wedding cakes inherently communicate a celebratory message about marriage and that, by forcing it to make cakes for same-sex weddings, the Commission’s cease and desist order unconstitutionally compels it to express a celebratory message that it does not support.”  The ALJ had rejected this argument, and so did the court. 

 

“We conclude that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it,” wrote Taubman.  “We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”  After all, Masterpiece would be creating the cake because of its legal duty not to discriminate, not because it wishes to convey its own message of approval of same-sex marriages.  The court drew an analogy to the Supreme Court’s rejection of law schools’ argument that requiring them to allow military recruiters on campus during the era of “don’t ask, don’t tell” was compelling them to express approval of that policy.  “The Supreme Court rejected this argument,” wrote Taubman, “observing that students ‘can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so.’”

 

The court found this case distinctly different from the Supreme Court’s ruling that a parade sponsor’s 1st Amendment expression rights allowed the sponsor to exclude a gay group from openly participating in the parade.  The Court saw that as a compelled speech case, holding that a parade is an intrinsically expressive activity whose sponsor has a right to control the views that are expressed, despite a state public accommodations law banning sexual orientation discrimination.  “In contrast,” wrote Taubman, “it is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage.”  He noted that the law would not prohibit Masterpiece and Phillips from articulating their objections to same-sex marriage.  Furthermore, he noted, “Phillips denied Craig’s and Mullin’s request without any discussion regarding the wedding cake’s design or any possible written inscriptions,” so it is unclear exactly what speech he would be “compelled” to engage in when decorating the cake.

 

Finally, turning to the religious free exercise argument, the court noted that under established Supreme Court precedent, an individual is not excused by his or her religious beliefs from complying with neutral laws of general application.  Under that standard, because the CADA is such a law, no business or individual can claim a religious exemption from complying with it.  The only exemption generally recognized under the law is for religious organizations that claim an exemption from anti-discrimination laws, for example, in their selections of employees or contractors to perform religious functions.  The court rejected Masterpiece’s argument that CADA was not a neutral law of general application.  The law “does not compel Masterpiece to support or endorse any particular religious views,” Taubman pointed out.  “The law merely prohibits Masterpiece from discriminating against potential customers on account of their sexual orientation,” he continued.  Thus, “we conclude that CADA was not designed to impede religious conduct and does not impose burdens on religious conduct not imposed on secular conduct.”

 

Having found the law to be neutral as to religion and generally applicable, the court concluded that its application to Masterpiece and Phillips turned on whether the state had a rational basis, the lowest level of constitutional review.  “We easily conclude that it is rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation,” Taubman wrote.  “The Supreme Court has consistently recognized that states have a compelling interest in eliminating such discrimination and that statutes like CADA further that interest.  Without CADA, businesses could discriminate against potential patrons based on their sexual orientation.  Such discrimination in places of public accommodation has measurable adverse economic effects.  CADA creates a hospitable environment for all consumers by preventing discrimination on the basis of certain characteristics, including sexual orientation.  In doing so, it prevents the economic and social balkanization prevalent when businesses decide to serve only their own ‘kind,’ and ensures that the goods and services provided by public accommodations are available to all of the state’s citizens.”

 

Finally, the court rejected Phillips’ argument that the Commission exceeded its authority by imposing a remedy that went beyond the specific complaint of Craig and Mullins, requiring it to change policies and create wedding cakes for hypothetical future customers.  The court found that “individual remedies are merely secondary and incidental to CADA’s primary purpose of eradicating discriminatory practices.”  Masterpiece had conceded that its rejection of this request to create the wedding cake was pursuant to a company policy, and there was actually evidence in the hearing record that they had also rejected doing business with other same-sex couples, so the Commission’s order “was aimed at the specific discriminatory or unfair practice involved in Craig’s and Mullins’ complaint.”

 

Shortly after the opinion was released, Phillips’s attorney announced that an appeal to the Colorado Supreme Court would be attempted.  That court has control over its docket and is not required to grant review to this unanimous court of appeals ruling, but given the wide public interest in the case, it would seem likely that review would be granted.  Numerous amicus briefs were filed with the court from such groups as the National Center for Lesbian Rights, Americans United for Separation of Church and State, groups representing small business associations, religious organizations, the NAACP Legal Defense Fund, and Lambda Legal Defense Fund. 

 

Phillips is being represented by Arizona attorney Jeremy D. Tedesco from Alliance Defending Freedom, a so-called “Christian” legal defense group, so he does not bear the expense of continuing litigation on his own.

 

Craig and Mullins are represented by Paula Greisen of King & Greisen, a Denver firm, with Mark Silverstein and Sara Neel, Denver attorneys, and Ria Tabacco Mar, a New York attorney.  The Commission is represented by the Colorado Attorney General’s office. 

 

Justice Stevens on the Obergefell Decision

Posted on: August 5th, 2015 by Art Leonard No Comments

In a speech delivered at an American Bar Association function in Chicago on July 31, 2015, retired U.S. Supreme Court Justice John Paul Stevens had this to say about the Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (from the Justice’s prepared text):

“Probably the most significant opinion announced during the Term was Justice Kennedy’s explanation for holding that the Constitution protects an individual’s right to marry a person of the same sex.  I was surprised by his decision to rely primarily on a substantive due process rationale rather than the Equal Protection Clause but, after reflection, I am persuaded that he was wise to do so.  The difference between categories of couples capable of producing children and those completely unable to do so surely provides a rational basis for treating the two categories differently, but the substantive due process doctrine is more appropriate for an all-or-nothing analysis.  The right to marry — like the right to decide whether to have an abortion, or the right to control the education of your children – fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment.  Just as Potter Stewart’s reliance on substantive due process in Roe v. Wade, 410 U.S. 113 (1973), and Justice Harlan’s and Justice White’s reliance on the substantive content of the work ‘liberty’ in Griswold v. Connecticut, 381 U.S. 479 (1965), were far better explanations for those two correct decisions than the concept of ‘privacy’ developed by the majority opinions, I am persuaded that a fair reading of the word ‘liberty’ best explains the real basis for the Court’s holding in the marriage case.

“The point is strongly reinforced by the dissenting opinions which rely heavily on earlier decisions rejecting the substantive due process analysis in Lochner v. New York, 198 U.S. 45 (1905).  But those dissents incorrectly assume that our cases overruling Lochner rejected the entire doctrine of substantive due process, whereas in fact they merely rejected its application to economic regulation.  Indeed, it is ironic that all of today’s dissenters (except Justice Thomas) who accuse the majority of improperly resurrecting Lochner, came much closer to committing that sin themselves when they decided to rely on substantive due process as the basis for their conclusion that the Second Amendment applies to the States.  It borders on the absurd to assume that the word liberty does not include one’s right to choose a spouse, but does include a right to possess a firearm in one’s home.  Because today’s dissents may one day persuade their authors to reconsider their own earlier reliance on substantive due process, I think those dissents may have the unintended consequence of lending support for the position advocated in the final chapter of my book.

“I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that that Clause also protects an individual’s right to use a gun.  The dissenters have things backward when they argue that it protects the latter but not the former.”

I am rather surprised to read Justice Stevens’ view that the equal protection issue in the marriage equality case was between categories defined by “couples capable of producing children” and “those completely unable to do so.”  After all, many different-sex couples are either incapable of producing children or uninterested in doing so, yet they are allowed to marry, while many same-sex couples are capable of producing children (with the assistance of a sperm donor or a surrogate).  Both kinds of couples are known to acquire children through adoption as well.  To me, the fact that many, but not all, different-sex couples can have children without the assistance of a third party, makes little difference, if one’s concern is about the raising of children, since different-sex and same-sex couples raising children are similarly situated with respect to one of the main reasons why the state fosters the institution of marriage with its reciprocal obligations.  And it seems clear that the willingness of the state to allow different-sex couples to marry without proof of fertility or intention to have children means that the ability to procreate is not a sine qua non of the right to marry.  Be that as it may, however, the Court’s decision to use substantive due process as its principal doctrinal tool in Obergefell meant that it could decide that case without having to commit itself on the question whether sexual orientation is a classification requiring heightened scrutiny of challenged government policies in discrimination cases.  If avoiding that issue made it possible to have a solid five-member majority supporting one opinion — as Justice Ruth Bader Ginsburg’s recent comments suggest – then it was probably worth while.  But what it means is that Obergefell, as a practical matter, is not relevant as an equal protection precedent for any issue other than the right to marry and to have marriages recognized and accorded full rights by the states, since it was decided under the fundamental rights branch of equal protection doctrine rather than the suspect classification branch.  This is well illustrated by the 6th Circuit’s opinion in Ondo v. City of Cleveland, 2015 Westlaw 4604860 (Aug. 3, 2015), about which I will be writing shortly.

Federal Court Rules on Veterans Cemetery Burial Dispute for Married Same-Sex Couple

Posted on: July 13th, 2015 by Art Leonard No Comments

In light of Obergefell v. Hodges, the decision in Taylor v. Brasuell, 2015 WL 4139470 (D. Idaho, July 9, 2015), seems obvious.  Taylor is a 74-year-old veteran of the U.S. Navy.  She married Jean Mixner in a religious ceremony in 1995, and then the women married again in a legal civil ceremony in California in 2008.  Mixner passed away in 2012 and was cremated.  Taylor kept the ashes, intending that when the time came she would be cremated as well and they would be buried together in a military cemetery.

In December 2013, Taylor went to the Idaho State Veterans Cemetery in Boise to make the arrangements and filed an application. On June 4, 2014, she received a letter from the Director of the cemetery informing her that she could be buried there, but not together with her spouse, because the marriage was not recognized under Idaho law.  Taylor filed suit on July 7, 2014, requesting an injunction to compel the cemetery to honor her request.

A few months later, the 9th Circuit ruled in Latta v. Otter that Idaho’s recognition ban was unconstitutional, on October 10, 2014, the Supreme Court denied a motion for stay pending appeal by Idaho, and on October 28, 2014, the cemetery allowed interment of Ms. Mixner’s ashes, having concluded that Idaho’s recognition ban was ended.  The defendant in this case, David Brasuell, administrator of the cemetery, filed a motion to dismiss, claiming that the case was moot since Mixner’s ashes had been interred and the Idaho Division of Veterans Services had granted Taylor’s request.  Taylor responded with a motion for summary judgment, asking the court to issue the requested injunction, just to be sure that her request to be buried with her spouse would be honored.

Idaho subsequently filed a cert petition in Latta v. Otter, which the Supreme Court held without decision while the appeal in Obergefell v. Hodges was pending.  That petition was denied on June 30, 2015, after the Supreme Court had issued its ruling on the merits in Obergefell.  Meanwhile, the cross-motions in this case had been pending before U.S. Magistrate Judge Ronald E. Bush, who evidently held up on ruling until a decision was rendered in Obergefell.  The defendants pressed their mootness argument in support of dismissal, but Judge Bush came down in favor of Taylor, issuing the requested injunction.

“There is no question but that those on both sides of the argument raised in the Latta and Obergefell cases have firm and deeply-felt convictions about the ‘rightness’ of their particular position,” he wrote.  “Further, the landscape left by Latta and Obergefell is still very warm to the touch.  However, the remaining issues in this case must be decided against the judicial finish line of those cases, not against the arguments raised along the way.  In that space, this Court is not persuaded that Veterans Services, via Mr. Brasuell, has borne its ‘formidable’ burden of establishing that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ Concentrated Phosphate, 393 U.S. at 203.  Perhaps, even without an enforceable order ensuring that Ms. Tayler and Ms. Mixner will be permanently interred together at the Idaho Veterans Cemetery, they would nonetheless be so laid in perpetuity.  But notwithstanding the rulings in Latta and Obergefell, a future director at Veterans Services or the Idaho State Veterans Cemetery (or some other applicable state actor) may come to view his or her role as being responsible for deciding what is/is not constitutional under the law on matters that may impact Ms. Taylor’s claimed right to be interred there with her same-sex spouse.  It is not unusual for legal precedent – even Supreme Court decisions – to be tested in such ways over time to ‘settle the pond’ on novel and evolving issues.  Dismissal on the grounds of mootness would be justified only if this possibility was categorically foreclosed or, said another way, if it was absolutely clear that Ms. Taylor no longer had any need of the judicial protection that she seeks.  The record now before the Court does not support such a conclusion.  For this separate reason, Mr. Brasuell’s Motion to Dismiss is denied.”

The court then concluded that, in light of Latta and Obergefell, it was clear that Taylor was entitled to summary judgment and the issuance of the injunction she was seeking.

In a footnote, the judge explained the particular predicament that might arise if the case were dismissed as moot and then after Taylor’s death the cemetery’s administration might change their mind and deny burial.  At that point, it would be questionable whether her executor or administer would have standing to bring an action under Section 1983 (the federal civil rights enforcement statute), since only living persons have legal rights to assert.  The judge concluded that Taylor was entitled to the peace of mind of obtaining injunctive relief now.

Supreme Court Issues Historic Marriage Equality Ruling

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

The Supreme Court ruled today that “same-sex couples may exercise the right to marry” and that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”  Writing for the Court, Justice Anthony M. Kennedy, Jr., grounded these marital rights in the 14th Amendment’s guarantee that no State may deprive any person of “liberty” without due process of law or deny to any person the “equal protection of the laws.”  He saw the claimed rights in this case as logical extensions of the rights recognized by the Court through his opinions in United States v. Windsor (2013) and Lawrence v. Texas (2003).   Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, 2015 U.S. LEXIS 4250 (June 26, 2015).  By fitting coincidence, the opinion was issued on the second anniversary of Windsor and the twelfth anniversary of Lawrence.

Kennedy was appointed to the Court by President Ronald Reagan in 1987.  Kennedy’s opinion was joined by the four justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (appointed by Bill Clinton) and Sonia Sotomayor and Elena Kagan (appointed by Barack Obama).  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito all wrote dissenting opinions for themselves, and each of them also signed one or more of the other dissenting opinions.

The Court had granted petitions filed by the plaintiffs in cases emanating from the states of Ohio, Tennessee, Michigan and Kentucky.  In each of those states, federal district courts had ruled during 2014 either that state laws refusing to recognize same-sex marriages contracted in other states violated equal protection rights or that the refusals of the states to allow same-sex couples to marry violated due process and/or equal protection rights.  Those rulings were consolidated for appeal before the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which reversed the trial courts in an opinion by Circuit Judge Jeffrey Sutton.  Sutton held that the U.S. Supreme Court’s ruling in 1972 that a challenge to the Minnesota ban on same-sex marriage did not present a “substantial federal question” remained binding as precedent on lower federal courts, but went on to reject the plaintiffs’ constitutional arguments, opining that the question whether same-sex couples could marry or have their marriages recognized was one to be resolved through the democratic process, not through litigation.  In granting the plaintiffs’ petition to review that ruling, the Court ordered argument on two questions:  whether same-sex couples have a right to marry, and whether states are obligated to recognize same-sex marriages.  A majority of the Court has now answered both of those questions in the affirmative.

This outcome was widely predicted because of the Court’s behavior since October 2014, when it declined to review pro-marriage equality decisions by the 4th, 7th and 10th Circuits, thus lifting stays and allowing marriage equality rulings to go into effect in Virginia, Indiana, Wisconsin, Oklahoma and Utah, and eventually in all the other states in those circuits.  When the 9th Circuit ruled for marriage equality, the Supreme Court rebuffed every request by state officials to delay marriage equality rulings going into effect in that circuit, and subsequently refused to stay marriage equality rulings from Florida and Alabama, even though the 11th Circuit had not yet ruled on the states’ appeals.  The denial of the Alabama stay, weeks after the Court had granted review of the 6th  Circuit’s decision, decisively confirmed that there was a majority for marriage equality on the Supreme Court, to the consternation of Justice Thomas expressed in his dissent from the denial of Alabama’s staff petition.

The outcome being highly predictable, the main questions arousing speculation were which constitutional theories the Court would use to strike down the bans, and whether an additional member of the Court — most likely Chief Justice Roberts — would join the majority.  Roberts stayed put with his fellow conservative brethren.  Kennedy’s opinion took a route that could have been predicted based on his opinions in Windsor and Lawrence.  Kennedy’s preferred approach in gay rights cases (leaving aside his first such opinion, in Romer v. Evans, which is really sui generis) is to rely heavily on his broad conception of liberty protected by the Due Process Clause.

Kennedy began with a quick review of the situations of some of the plaintiffs, showing the deprivations they faced by not being allowed to marry or have their marriages recognized, and then presented a historical overview of the changing nature of marriage.  He wrote that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.  This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians.”  After reviewing the growing recognition of gay rights by the courts, and referring to an amicus brief filed by the American Psychological Association, he wrote, “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”  This could be a key statement for a holding that sexual orientation is a “suspect classification” for equal protection purposes, but Kennedy never followed up along that line.

Instead, he turned to a due process analysis, and premised his conclusion on “four principles and traditions” which he said “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”  The first “is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”  The second is “that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”  The third is “that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”  Finally, he wrote, “This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

As to each of these four principles, Kennedy penned eloquent explanations that play into the themes he previously developed in his opinions in Windsor and Lawrence.  For example, he wrote, “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.  This is true for all persons, whatever their sexual orientation.”  Speaking about marriage’s “support” for the “two-person union,” he wrote, “Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”  After observing that “hundreds of thousands of children are presently being raised” by same-sex couples, he wrote: “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

In explaining why the right to marriage is a fundamental right, Kennedy observed that “States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.  There is no difference between same- and opposite-sex couples with respect to this principle.”  As he had observed in 2003 when he wrote for the Court striking down the Texas sodomy law, he reiterated in this case.  “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.  With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”   Several times in the course of this part of his opinion, Kennedy referred to the “dignity” of same-sex couples being denied or disparaged by denying them the right to marry.

Turning to the Equal Protection Clause as an alternative source of the marriage right, Kennedy avoided any explicit pronouncement about whether sexual orientation discrimination claims should be subject to heightened scrutiny.  Actually, there are two different strands of equal protection theory: the classification strand and the rights strand.  Under the former, the Court asks whether the challenged law creates a classification that is “suspect” and thus subject to heightened or strict scrutiny.  Under the latter, the Court asks whether the challenged law discriminates concerning a fundamental right, and thus will be struck down unless the government proves a compelling justification.  Kennedy focused on the second strand.

Referring back to the Court’s earlier marriage cases, he wrote, “The equal protection analysis depended in central part on the Court’s holding that the law burdened a right of ‘fundamental importance.’ It was the essential nature of the marriage right, discussed at length in Zablocki v. Redhail, that made apparent the law’s incompatibility with requirements of equality.”  He emphasized the interconnectedness of the liberty/due process and equal protection theories, referring to his 2003 opinion in the Texas sodomy case, Lawrence v. Texas.  “Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State ‘cannot demean their existence or control their destiny by making their private sexual conduct a crime.’  This dynamic also applies to same-sex marriage.  It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.  Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

Thus, in the ongoing dispute over whether the plaintiffs were claiming a new constitutional right of “same-sex marriage” or access to an existing fundamental right to marry, the Court in this case adopts the broader view.

Kennedy rejected the states’ argument that this decision was being made without sufficient “democratic discourse,” pointing out that same-sex marriage has been a topic of debate for decades, and asserting that “there has been far more deliberation than this argument acknowledges,” referencing referenda, legislative debates, “countless studies, papers, books, and popular and scholarly writings.”  Indeed, he pointed out, “more than 100 amici” had filed briefs with the Court presenting a wide range of perspectives on all sides of the issues.  And, he pointed out, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”  Having found that the marriage bans abridge fundamental rights, he found that judicial action was justified.  “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Kennedy also rejected the argument that the Court should refrain from this ruling because of possible adverse impact on traditional marriages, finding that the argument “rests on a counterintuitive view of opposite-sex couples’ decisionmaking processes regarding marriage and parenthood.  Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

The Court devoted just one paragraph to the potential clash over religious liberty, asserting that the 1st Amendment “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  However, Kennedy shied away from opining about how the balance of rights might be struck in particular cases of the type that have arisen in recent years involving recalcitrant wedding photographers, florists, bakers and the like.

Kennedy briefly addressed the second question certified by the Court for argument, pointing out that all parties had acknowledged that if the Court found a right for same-sex couples to marry, the right to have those marriages recognized by the states would follow as of course.  “It follows that the Court also must hold — and it now does hold — that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

Kennedy concluded with a paragraph integrating the main points of his analysis in eloquent fashion:  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”    Thus, at the end, Kennedy recurred to the same principle he had invoked two years ago in striking down Section 3 of the Defense of Marriage Act: equal dignity.

Chief Justice Roberts penned a “who decides” dissent, along the lines previously articulated by Judge Sutton in the 6th Circuit opinion.  “The fundamental right to marry does not include a right to make a State change its definition of marriage,” he wrote, insisting that defining marriage was the state’s prerogative as matter of democratic process.”  He found “the majority’s approach” to be “deeply disheartening.”  His dissent ended up being slightly longer than Kennedy’s opinion for the Court, embracing simplistic notions of the history of marriage that were directly contradicted by the detailed amicus briefs submitted on behalf of the plaintiffs.  For example, he referred to a “universal definition” of marriage as the “union of a man and a woman,” thus ignoring the numerous cultures in which plural marriage has long been accepted.  Rejecting Kennedy’s very empathetic view of the plaintiffs’ claims, Roberts asserted, “There is, after all, no ‘Companionship and Understanding’ or “Nobility and Dignity” Clause in the Constitution.”  He raised the question whether the Court’s opinion would reopen the question of plural marriage, which is being litigated by fundamentalist Mormons, and insisted that Kennedy’s argument sounded more in moral philosophy than in law.

In conclusion, he wrote: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”  Justices Scalia and Thomas joined his dissent.

Scalia, the self-proclaimed originalist, was in fine fulminating form, although perhaps less colorfully than in his dissent a day earlier in the case upholding federal tax credits under the Affordable Care Act.  He was quick to observe that the generation that wrote and adopted the 14th Amendment would not have seen it as creating a right for same-sex couples to marry, and under his jurisprudence that should end the matter.  But, as he had done in the Windsor and Lawrence cases, he sharply criticized the Court for short-circuiting political debate.  Noting the “unrepresentative” nature of the Court, he questioned the legitimacy of it making such a policy decision.  “This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” he exclaimed.  “They have discovered in the Fourteenth Amendment a ‘fundamental rights’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”   He also criticized the opinion as being “couched in a style that is as pretentious as its content is egotistic.”  As he has frequently done in past dissents, he decried Justice Kennedy’s conception of liberty, concluding, “The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”  Actually, many past decisions of the Court emanating from its conservative voices have already done that many times over.  One need only cite Bush v. Gore and Citizen’s United. . .   Thomas joined Scalia’s dissent.

Justice Thomas has long contested the Court’s entire history of substantive due process doctrine, so this case was just one more example for him of illegitimate decision-making.  He argued that refusing to let same-sex couples marry does not deprive them of any liberty, insisting that the reference to “liberty” in the due process clause should be restricted to its “original” meaning of restrictions on mobility.   Thus, the state restricts your liberty when it locks you up, but not when it refuses to let you marry.  He located the origins of this concept in Magna Carta, the 800-year old English document signed by King John in 1215 to settle disputes with the English nobility about royal prerogative, and then traced the concept through American law up to the time of adoption of the 14th Amendment.  “When read in light of the history of that formulation,” he wrote, “it is hard to see how the ‘liberty’ protected by the Clause could be interpreted to include anything other than freedom from physical restraint.”  Even accepting a broader meaning, he held that it should be restricted to “individual freedom from governmental action, not as a right to a particular governmental entitlement.”  He insisted that “receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.”  Scalia joined Thomas’s dissent.

Finally, Justice Alito’s dissent rechanneled his dissent from two years ago in U.S. v. Windsor, quoting from it extensively, arguing that there were various different views of marriage and that it was up to the people, through the democratic process, to decide which ones to embrace through law.  “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage,” he insisted.  He particularly bemoaned the likelihood that this ruling would lead to the oppression of people who oppose same-sex marriage, predicting future disputes.  “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play,” he wrote.  “But if that sentiment prevails, the National will experience bitter and lasting wounds.”  Both Scalia and Thomas signed his opinion.

All the dissents sounded like rearguard actions seeking to provoke public discontent with the Court’s opinion.  But in that sense they are well within the tradition — at least the recent tradition — of Supreme Court dissenting opinions from the very polarized Court.  A 5-4 ruling may be bitterly argued, but it is no less a precedential holding of the Court than a unanimous  ruling.  Although there had been rumblings in the weeks leading up to this day that some state officials might try to avoid complying with a pro-marriage equality decisions, the immediate response of governors in the four states involved with this case seemed to be prompt, if reluctant, compliance with the Court’s decision.

A long list of attorneys participated in representing the various plaintiffs in this case, culminating in the presentations by three oral advocates at the Supreme Court — two representing the plaintiffs and one representing the Solicitor General as amicus curiae.  In the end, all of the nation’s LGBT litigation groups played a part, as did numerous groups who submitted amicus briefs to the Court, many of which were cited in the opinions.   One group among all others will be particularly affected by this ruling.  Evan Wolfson announced months ago that upon the achievement of marriage equality nationwide, his organization — Freedom to Marry — will wind up its affairs and cease to exist.

 

 

Divided Texas Supreme Court Evades Deciding Gay Divorce Issue

Posted on: June 23rd, 2015 by Art Leonard No Comments

With a ruling on same-sex marriage from the United States Supreme Court just days away, the Texas Supreme Court finally acted on June 19, 2015, on a pair of appeals argued nineteen months ago in November 2013, holding in State v. Naylor, 2015 Tex. LEXIS 581, that the state’s attorney general did not have standing to appeal an Austin trial judge’s order granting a judgment “intended to be a substitute for a valid and subsisting divorce” to a lesbian couple who had married in Massachusetts, and granting a motion to dismiss an appeal in In re Marriage of J.B. and H.B., in which the Texas Court of Appeals in Dallas had ruled in 2010 that Texas courts lack jurisdiction to rule on divorce petitions from same-sex couples married elsewhere.  The court’s opinion in the Naylor case by Justice Jeffrey V. Brown was joined by four other members of the court, one of whom also penned a concurring opinion.  One member filed a dissenting opinion for himself and three others, arguing against the ruling on standing.  One of the dissenters filed an additional dissenting opinion, arguing at length that the Texas ban on performing or recognizing same-sex marriages does not violate the 14th Amendment.  One member did not participate in the case.

The motion to dismiss the J.B. and H.B. appeal was actually filed by James Scheske, who represented the party seeking an uncontested divorce.  The two men married in Massachusetts in 2006 and moved to Texas in 2008.  Shortly after moving to Texas they ceased to live together, and J.B. filed a petition in Dallas County seeking a property division and that his last name be changed back to his original name as part of a divorce decree.  The state intervened and argued that the court had no jurisdiction to decide the case, but the trial judge, Tena Callahan, issued a ruling on October 1, 2009, holding that the Texas ban on same-sex marriage was unconstitutional and that she could decide the case.  The state appealed that ruling, and the Texas Court of Appeals in Dallas ruled on August 31, 2010, that Judge Callahan was wrong.  An appeal to the Texas Supreme Court followed, and the case was argued, after much delay, in November 2013.  But H.B. subsequently died, and Scheske filed an uncontested motion to dismiss the case, since his client’s marriage had been terminated by death so a divorce decree was no longer needed.  The court granted that motion on June 19 without explanation, but one of the judges noted in his concurring opinion in the Naylor case that the J.B. appeal was “moot” as a result of the death of one of the parties.

Angelique Naylor and Sabina Daly, Texas residents, went to Massachusetts to marry in 2004. Naylor filed a divorce petition in Travis County a few years later.  The women had a child and were operating a business together, so, as Justice Brown explained, “Naylor hoped to obtain a judgment addressing their respective rights, some of which they had already settled in a suit affecting the parent-child relationship.”  Although lawyers from the attorney general’s office were aware of the case and were actively monitoring its progress, they didn’t formally try to intervene until after the trial judge issued his bench ruling incorporating the parties’ settlement agreement into a judgment, which the judge explained “is intended to dispose of all economic issues and liabilities as between the parties whether they are divorced or not.”  The following day, the state petitioned to intervene “to oppose the Original Petition for Divorce and to defend the constitutionality of Texas and federal laws that limit divorce actions to persons of the opposite sex who are married to one another.”  The trial judge rejected this petition as too late, and the Court of Appeals in Austin agreed in 2011.  An appeal to the Texas Supreme Court followed, and it was consolidated with the J.B. appeal and argued on the same day in November 2013.

There was widespread speculation that the Texas Supreme Court, observing all the marriage equality litigation going on in Texas and elsewhere in the wake of the U.S. Supreme Court’s U.S. v. Windsor ruling, had decided not to rule on these appeals until the U.S. Supreme Court settled the constitutional questions around same-sex marriage one way or the other, so the Texas court’s June 19 actions caught many by surprise.  Writing for the majority of the court, Justice Brown agreed with the Court of Appeals that the state lacked standing to appeal the trial court’s judgment.  “Texas courts allow post-judgment intervention only upon careful consideration of any prejudice the prospective intervenor might suffer if intervention is denied, any prejudice the existing parties will suffer as a consequence of untimely intervention, and any other circumstances that may militate either for or against the determination,” he wrote.  In this case, by implication, those considerations weighed against ordering intervention.  Although Justice Brown left it unsaid, it seemed clear that the majority of the court saw little reason to litigate the underlying issue in this case when the U.S. Supreme Court was on the verge of ruling.  He devoted most of his opinion to a close analysis of Texas laws governing post-judgment intervention, and almost none to the underlying question whether same-sex couples can get divorces in Texas, merely stating general agreement with Judge Devine’s analysis described below.

In a concurring opinion, Justice Jeffrey S. Boyd explained further the underlying rationale for dismissing the appeal.  “I write separately to emphasize a point on which everyone agrees: the State of Texas is not bound by the divorce decree at issue in this case.”  He continued, “The State lacks standing to appeal because it was not a party, it shared no privity or interest with any party, and the trial court’s judgment is not binding on it. . .  As a non-party who is not bound by the judgment, the State has no obligation to give any effect to the trial court’s divorce decree.  In fact, it may be, as the State contends, that our laws prohibit the State and all of its agencies and political subdivisions from giving any effect to the decree.”  Since the state did not recognize the marriage in the first place, and had been taking the position all along in both cases that such out of state same-sex marriages are considered “void” in Texas, the decree was of no consequence to the state.  Judge Boyd’s opinion overlooks the plain fact that the trial judge had not even necessarily considered this to be a divorce decree, but rather a “judgment” incorporating a settlement agreement reached by the parties.   Judge Boyd did comment that the dismissal of the J.B. appeal as moot “leaves the Dallas court’s opinion as the only currently existing Texas law” on the issue whether same-sex couples married elsewhere can get a divorce in Texas, and that ruling, of course, was negative.

Justice Don R. Willett’s dissent argued strongly that the court should have allowed the State to intervene because of the importance of the question.  Justice John P. Devine’s dissent, quite lengthy, plunged into the constitutional merits and argued that the Texas ban on recognizing same-sex marriages from other jurisdictions did not violate the 14th Amendment.  In addition to relying on Section 2 of the Defense of Marriage Act, the provision that was left untouched by the U.S. Supreme Court in U.S. v. Windsor, which provides that states are not constitutionally required to recognize same-sex marriages from other states, he argued that Texas had good policy justifications for refusing to allow same-sex couples to marry and treating out-of-state same-sex marriages as void in Texas.

Ignorant comments by the governor and attorney general in response to the Naylor ruling led to misleading media reports suggesting that the Texas Supreme Court had “upheld” a same-sex divorce sought by Naylor, but clearly the court had done no such thing, merely holding that it was itself without jurisdiction to rule on the state’s argument that the trial court lacked jurisdiction.

Ultimately, these actions by the Texas Supreme Court will be of only passing interest after the U.S. Supreme Court’s ruling in Obergefell v. Hodges.