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Florida Courts Can Grant Divorces to Married Same-Sex Couples

Posted on: April 27th, 2015 by Art Leonard No Comments

The Florida 2nd District Court of Appeal ruled on April 24 in Brandon-Thomas v. Brandon-Thomas, 2015 Fla. App. LEXIS 6051, 2015 WL 1874457, that a same-sex couple that married in Massachusetts but resides in Florida could seek a divorce in a Florida court.  The unanimous three-judge panel found that the state had no rational basis for treating such a marriage differently from other out-of-state marriages.  The ruling reverses a 2013 decision by Lee County Circuit Judge John E. Duryea, Jr., who dismissed the divorce petition filed by Danielle Brandon Thomas.

Danielle and Krista Brandon Thomas married in Massachusetts in 2012 and subsequently relocated to Florida.  They have a child, for whom Krista is the birth mother.  According to the Per Curiam opinion issued by the Court of Appeal, “the marriage soured” after they relocated to Florida and Danielle filed a divorce petition in October 2013.  In her petition, Danielle asked the court to “determine parental responsibility and child support issues, as well as equitable distribution.”

Why would Krista oppose the divorce petition?  In her motion to dismiss the petition, she “alleged that she was both the birth mother and genetic mother of the child and that Danielle therefore had no standing to request shared parental responsibility or child support.”   It seems that Krista hoped by defeating the divorce petition to avoid a court ruling that Danielle was entitled to exercise parental rights to the child, or a court ruling requiring a division of assets.

The trial court based its dismissal on Florida’s Defense of Marriage Act and a state constitutional amendment that forbids recognition of same-sex marriages.  At the time the trial court ruled, those provisions had yet to be declared unconstitutional.  But after the U.S. Supreme Court’s June 2013 decision striking down part of the federal Defense of Marriage Act, several lawsuits were filed by same-sex couples in Florida seeking both the right to marry and the right to recognition of out-of-state marriages.  Florida Attorney General Pam Bondi has energetically opposed these lawsuits and appealed adverse rulings.  However, on December 19, 2014, the U.S. Supreme Court rejected her petition to stay a federal trial court ruling finding the Florida laws unconstitutional under the 14th Amendment, and same-sex couples began marrying in Florida early on January 6, 2015.

Surprisingly, the Per Curiam opinion by the court doesn’t mention any of this marriage litigation and doesn’t purport to base its ruling on the federal decisions, although they are mentioned in a concurring opinion by Judge Edward C. LaRose.  Instead of issuing a ruling that, of course, Florida courts can decide divorce cases for married same-sex couples because same-sex marriage is now legal in Florida, the court ruled as if the status of those Florida laws relied upon by Krista has not changed.

Instead, the court based its decision on the Full Faith and Credit Clause of the U.S. Constitution, which provides: “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial Proceedings of every other State.”   After noting that Florida courts have not treated “sexual orientation” as a “suspect classification,” the court said that “the right of a same-sex couple to seek a dissolution of marriage in Florida, when they were validly married in another state but now live in Florida, is not a fundamental right for federal constitutional purposes.  Thus, Florida bears the burden of presenting only a rational basis for its classification.”

The court found that neither Krista, in opposing the divorce petition, nor the state, which intervened to advance its view that Florida courts may not recognize out-of-state marriages, even for the purpose of dissolving them, had failed to present such a “rational basis” for the Florida laws forbidding recognition of same-sex marriages.

“Krista refers to ‘a societal inducement for opposite-sex couples to marry, thus decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship,’” commented the court.  “But this argument seems to ignore the biological fact that same-sex couples do not contribute to the problem of children ‘accidentally conceived’ outside of a stable, long-term relationship because, as a matter of pure biology, same-sex couples simply cannot ‘accidentally conceive’ children.”  This comment seems ironic, since prior to the recent surge of marriage equality decisions, several courts, including New York’s highest, had relied on the biological impossibility of same-sex couples accidentally conceiving children as a justification for the state providing marriage for different-sex couples but not same-sex couples.  Now the tables are turned!

Attorney General Bondi argued that “Florida’s refusal to recognize same-sex marriage furthers Florida’s long-standing history of defining marriage as being between a man and a woman.”  The court pointed out that refusing to give divorces to married same-sex couples living in Florida “seemingly contravenes Florida’s public policy.”

“If the policy is to prevent, eliminate, discourage, or otherwise preclude same-sex marriage in Florida, permitting the courts to dissolve same-sex marriages that have been previously entered into in other states would arguably further that policy by reducing the number of same-sex married couples in Florida,” the court wrote, stating that the Attorney General had failed to identify a “public purpose” that is served by denying divorces to such couples.

The court was disturbed by the practical impact of the trial court’s order dismissing the case, which is to deprive Danielle and the child of a judicial forum for determining what custody and visitation and child-support arrangements should be.  “The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child,” the court concluded.

In his concurring opinion, Judge Darryl C. Casanueva emphasized an alternative theory for finding jurisdiction: a right of access to the courts to determine the legal rights and responsibilities of parties upon the break-up of a marriage.  Same-sex couples married out-of-state are similarly situated with different-sex couples married out of state and equally in need of access to Florida courts to dissolve their marriages.  The judge pointed out that the U.S. Supreme Court had found a due process violation in the past when a state imposed significant fee barriers to couples seeking access to the courts for divorces, making them practically unavailable for poor people.  Thus, the right of access for a divorce is encompassed within the liberty protected by the Due Process Clause of the 14th Amendment.

Furthermore, he argued, this case wasn’t about same-sex marriage.  “A divorce proceeding does not involve recognition of a marriage as an ongoing relationship,” he wrote.  “Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce.  After the condition is met, the laws regarding divorce apply.  Laws regarding marriage play no role.”

Judge Edward C. LaRose also concurred, emphasizing that the state’s statutory marriage recognition ban would have “minimal application to a case involving a divorce of a same-sex couple validly married in another state.”  While mentioning the federal marriage equality developments in Florida, Judge LaRose did not rely on them to reach his conclusion.  But in noting the practical impact of the trial court’s order, he pointed out that 37 states and the District of Columbia now have same-sex marriage.  “Although divorce does not inevitably follow marriage,” he wrote, “we should anticipate that many married same-sex couples, unfortunately, will need to dissolve their unions.  It is hard to fathom that the legislators who passed [Florida’s recognition ban] envisioned a scenario where assets remain unmarketable for lack of an equitable distribution.  Nor could they have reasonably anticipated a system that disregards the best interests of a child raised and nurtured in a same-sex home.  There can be no question but that Florida has a compelling interest in protecting children subject to its jurisdiction.”

Surprisingly, the court never mentioned the federal Defense of Marriage Act (DOMA) in its opinion.  Although the Supreme Court declared part of DOMA unconstitutional in 2013, it left untouched Section 2, which provides that states are not required to give “full faith and credit” to same-sex marriages contracted in other states.  Thus, in DOMA Congress gave Florida permission to withhold recognition from same-sex marriages such as that of Danielle and Krista.  Although many commentators have suggested that Section 2 of DOMA is unconstitutional, most of the litigation about marriage recognition over the past two years has virtually ignored it, as did the Florida court in this case.

The second question certified for review by the Supreme Court when it decides the pending marriage equality cases, Obergefell v. Kashich, was whether states are constitutionally required to recognize same-sex marriages from other states.   In Thomas v. Thomas, the Florida 2nd District Court of Appeal has answered this question in the affirmative.

Attorneys Luis E. Insignares and Brian J. Kruger of Fort Myers represent Danielle and Michael E. Chionopoulos of Fort Myers represents Krista.  The case will be returned to the Lee County Circuit Court for a hearing on Danielle’s divorce petition.

The String is Broken – Tennessee Judge Rules Against Marriage Recognition

Posted on: August 12th, 2014 by Art Leonard No Comments

After a string of about three dozen affirmative marriage equality rulings by federal and state judges, including 2-1 rulings by two federal circuit courts of appeals, a Tennessee judge, Roane County Circuit Court Judge Russell E. Simmons, Jr., has departed from the growing consensus and ruled on August 5 that the court is bound to reject a federal constitutional claim for marriage recognition because of Baker v. Nelson and the public policy exception to the requirement of Full Faith and Credit.

The context for this ruling is a divorce petition filed by Frederick Michael Borman, who seeks to end his marriage to Larry Kevin Pyles-Borman.  The men were married in Iowa in 2010, but then and today have continuously resided in Roane County, Tennessee.   Iowa does not open its divorce courts to non-residents, so the only ways that Frederick Borman can get out of this marriage would be either to move to Iowa and live there long enough to qualify under the state’s divorce statute or to get a divorce in his home state of Tennessee, as most different-sex married couples would be able to do under Tennessee’s statute authorizing recognition of out-of-state marriages.

The problem for Borman is that Tennessee’s Marriage Amendment prohibits the recognition of same-sex marriages, as does the state’s marriage recognition statute.  Indeed, Tennessee’s marriage recognition statute, T.C.A. sec. 36-3-113(d), forbids recognition of any out-of-state marriage that could not be contracted in Tennessee, not just same-sex marriages.

Building on a steady stream of marriage recognition cases that began a year ago in Ohio and have continued unbroken over the ensuing year (including other litigation in Tennessee), Borman argued that refusal to recognize his marriage in this context violates his 14th Amendment rights, but Judge Simmons rejected the contention.

First, as to Baker v. Nelson, the Supreme Court’s 1972 dismissal of an appeal from a marriage equality lawsuit in Minnesota on the ground that it presented “no substantial federal question,” Judge Simmons observed, “Although the United States Supreme Court has had opportunities to overrule the Baker decision, it has refused to take that position even in the decision on which the Plaintiff relies, which is United States v. Windsor.  The Court therefore finds that Baker is still applicable.”

Simmons noted Borman’s argument that “doctrinal developments” since 1972 have rendered Baker inapplicable, but found it unconvincing.  “The Windsor case is concerned with the definition of marriage, only as it applies to federal laws,” he wrote, “and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another State.  The premise that ‘doctrinal developments indicate otherwise’ gives a Court discretion to formulate new law by predicting what future appellate decisions will say other than what they have already said.  The decision of this Trial Court will only be binding on this case and on this Court.  It would be more productive for an appellate court whose opinions would have more precedential authority to delve into this analysis.  For purposes of passing this issue to the appellate courts without discussion, this Court will find that the doctrinal development of the question whether Tennessee must accept another State’s same-sex marriage to be valid has not developed sufficiently to overrule precedent cases.”

As to Borman’s equal protection argument, Judge Simmons rejected the idea that Tennessee’s marriage recognition law discriminated because Borman is in a same-sex marriage.  “The Anti-Recognition clause clearly does not single out only same-sex marriages to be declared void and unenforceable,” he asserted, “but would also declare void and unenforceable marriages within a prohibited degree of relationship and multiple marriages.”  In other words, Tennessee’s ban extends to recognition of first-cousin and polygamous marriages as well, and therefore is not solely focused on same-sex marriages.   Therefore it cannot be the target of an equal protection claim, since such a claim would invoke a disparate impact theory, which is not available for such a claim.  Tennessee adopts the general policy of not recognizing marriages that could not be performed in Tennessee for any reason, which has the incidental effect of not recognizing same-sex marriages.

While Simmons conceded that the right to marry is a fundamental right, he observed that Tennessee has reserved that fundamental right to different-sex couples.  “The Court also find that this should be the prerogative of each State.  That neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility, which is to provide a framework of laws to govern the safety and wellbeing of its citizens.  One reason for this is that there is a divergence of opinion on this issue, and if Tennessee laws have a rational basis and a reasonable relationship to a legitimate state interest, then Tennessee’s laws should not be found invalid because another opinion is available.”

Simmons proceeded to adopt wholesale and lift from “the State’s brief on the issue of whether or not a law defining marriage as one (1) man and one (1) woman has a rational basis” a full page-and-a-half from that brief, whose source is not identified.  (Since the state is not a party to this case, which is a divorce action between two men, one wonders whether the state intervened or filed an amicus brief, or whether Simmons just lifted this from Tennessee’s brief to the 6th Circuit in the pending marriage recognition appeal in a different case?)  The excerpted argument, which has been justly ridiculed in the press, is Tennessee’s version of the procreation justification, which was forcefully advocated by its counsel before the 6th Circuit last week.

Simmons also rejected Borman’s attempt to invoke the Full Faith and Credit Clause of the Constitution.  He noted that both the Supreme Court and the Tennessee courts have said that this Clause “does not require a State to apply another State’s law in violation of its own legitimate public policy.”  “The laws of Iowa concerning same sex marriage is so diametrically opposed to Tennessee’s laws, and Tennessee’s own legitimate public policy concerning same-sex marriage, that Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa,” he wrote, ungrammatically but without any mistake of meaning.

Thus, Mr. Borman and Mr. Pyles-Borman are wedlocked in Tennessee.  Since last year’s Windsor decision, this has become an even more burdensome status than it was before.  These men now must continue to file joint federal tax returns and be treated to the responsibilities of marriage under federal law, even if they no longer live together or desire to remain married, and of course each of them is barred from forming a legal relationship with a new partner, since no marriage equality state allows somebody to marry a new partner unless any prior marriage, domestic partnership or civil union has been ended.  As a purely practical matter, the court’s refusal to recognize this marriage for the limited purpose of granting a divorce would seem to have virtually no legitimate policy justification.  It certainly has nothing to do with the state’s interest in channeling the procreative activity of heterosexuals into marriage for the benefit of the resulting children, which is Tennessee’s main policy argument for resisting marriage equality.  And if Tennessee is opposed to same-sex marriages, one wonders why it would object to a court terminating such a marriage!

This is a limited decision applicable only to these parties and having no precedential force in any other court.  On the other hand, Judge Simmons may be providing us with a preview of what to expect from the 6th Circuit, as some of his assertions sound strikingly like those implied in questions raised by Circuit Judge Jeffrey Sutton at the 6th Circuit oral argument.  It is worth noting, however, that this decision, dated August 5, was released to the parties the day before the 6th Circuit argument, and only surfaced today because a SCOTUSblog reader, hearing about the case, was able to get a copy of the opinion for reporter Lyle Denniston, who posted it on the blog.

Federal Judge Refuses to Stay Her Tennessee Marriage Recognition Order as New Marriage Equality Drama Plays Out in Oregon

Posted on: March 21st, 2014 by Art Leonard No Comments

In a gutsy move, U.S. District Judge Aleta A. Trauger has rejected a request by Tennessee Governor Bill Haslam to stay her order requiring the state to recognize the out-of-state same-sex marriages of three Tennessee couples while Haslam appeals to the U.S. Court of Appeals for the 6th Circuit. Trauger issued a short opinion explaining why on March 20.

Trauger had issued her order in Tanco v. Haslam on March 14, finding that the plaintiffs had shown that they were likely to succeed on the merits of their claim that the state’s refusal to recognize their marriages violates the 14th Amendment of the federal constitution. Without engaging in any extended constitutional analysis in this new opinion, Trauger pointed out that “(1) the post-Windsor courts have uniformly found that bans on the consummation and/or recognition of same-sex marriages are unconstitutional under rational basis review, (2) the court found the reasoning in those cases, particularly Bourke v. Beshear, to be persuasive, and (3) the court found no basis to conclude that Tennessee’s Anti-Recognition Laws would merit different treatment under the United States Constitution than the laws at issue in these other states.” Windsor is, of course, the U.S. Supreme Court’s ruling last June that Section 3 of the Defense of Marriage Act was unconstitutional, and Bourke v. Beshear is the recent ruling by U.S. District Judge John Heyburn holding that Kentucky could not refuse to recognize same-sex marriages contracted out of state. On the other hand, no circuit court of appeals has yet ruled on a marriage equality case since Windsor, although appeals are now pending in several circuits. However, she wrote, “given the unanimity of opinion as to this point in district courts across the country, the court finds no ‘serious question’ as to whether this court conducted an appropriate constitutional analysis in reaching essentially the same conclusion.”

More to the point, Trauger sharply disputed Haslam’s contention that staying the decision would not cause irreparable harm to the plaintiffs, and emphasized the narrow scope of her preliminary injunction, which orders the state to recognize only the same-sex marriages of the three plaintiff couples. Any harm to the state by complying with this order while the state’s appeal goes forward “would not be substantial,” she wrote, “and that harm is unlikely to occur in the first place, because the plaintiffs are likely to succeed.” She also wasn’t convinced by the argument that the “affront” to the “sovereignty” of Tennessee occasioned by compliance with her order would outweigh harm to the plaintiffs, especially the couple who are expecting a newborn child and the other couple who are raising two children together.

Judge Trauger took pains to distinguish this case from the other district court rulings, all of which are now being stayed pending appeal. All of those other cases, she observed, involved statewide relief. That is, if the marriage formation opinions went into effect, as happened briefly in Utah before the Supreme Court granted a stay, hundreds of couples might quickly flock to get married. By contrast, her preliminary injunction only affected three couples. Haslam has failed to show that anybody else would be injured by the enforcement of her Order, and she asserted that “preserving the status quo” pending appeal was not a good enough argument where constitutional rights of the plaintiffs were at stake.

Haslam had announced just a few days earlier that he was appealing the preliminary injunction to the 6th Circuit. That circuit court is already entertaining an appeal from Ohio in a marriage recognition case, and is about to receive an appeal in the Kentucky case, where Judge Heyburn bowed to the concerns of Governor Steve Beshear and stayed his marriage recognition ruling pending the appeal.

Meanwhile, a new same-sex marriage drama is playing out in Oregon, where Attorney General Ellen Rosenblum filed a brief on Tuesday (March 18) with U.S. District Judge Michael McShane, who is presiding over two consolidated same-sex marriage cases, Geiger v. Kitzhaber and Rummel v. Kitzhaber. Rosenblum’s brief for the state argues that the ban on same-sex marriage is unconstitutional, and asserts that the state is ready to start issuing marriage licenses if the court rules that way after hearing oral arguments on a motion for summary judgment by the plaintiffs on April 23. Neither Governor John Kitzhaber nor the other named defendants in that case have indicated any interest in appealing from such a ruling, and so far nobody has petitioned the court to intervene to defend the marriage ban since Rosenblum earlier announced that she would not defend it. The Oregonian, a local newspaper, reported on March 19 that some county clerks have discussed intervening as defendants, but so far nobody has taken that step. Intervention would require approval from Judge McShane, an openly gay man who was appointed to the court by President Barack Obama and confirmed by the Senate last May.

Judge McShane is faced with an interesting set of choices. He could rule promptly after the April 23 hearing, rendering a decision similar to the eight consecutive pro-same-sex marriage decisions issued by federal district courts in other states over the past few months, and make it effective immediately, which would make Oregon the nineteenth state with same-sex marriage if one can count Illinois as the eighteenth because Cook County Clerk David Orr has been issuing licenses under a federal court order and several other county clerks have followed suit. Or, he could rule on the merits for plaintiffs and issue an opinion, but stay his order pending the 9th Circuit’s ruling in the Nevada marriage equality case. This would allow him to make any adjustments necessary to reflect the 9th Circuit’s ruling to be in compliance with circuit precedent. If he wished to be even more cautious, he could hear arguments on April 23 and then wait until the 9th Circuit rules before finalizing his opinion and releasing it, so as to take account of whatever the 9th Circuit decides. The 9th Circuit had previously scheduled oral arguments in the Nevada case for April 9, but then cancelled the argument, reportedly based on a request by one of the assigned judges for more time to prepare. As the 9th Circuit has been deluged with amicus briefs on both sides of the question, such a request is understandable. The 9th Circuit has not as of now announced a rescheduled date, but one assumes it will be relatively soon, given the urgency of deciding this as more district court opinions pile up.

Schizophrenic Michigan Family Law – Out-of-State Adoption is Stronger than Out-of-State Same-Sex Marriage in Custody Disputes

Posted on: October 23rd, 2013 by Art Leonard No Comments

On October 17, two different panels of the Michigan Court of Appeals ruled in cases where lesbian co-parents were battling over child custody.  In one, a birth mother prevailed because the court refused to recognize the couple’s Canadian same-sex marriage.  In the other, however, the court found that the state’s full-faith-and-credit obligation required recognition of an out-of-state second-parent adoption that could not have been done in-state, and affirmed a sole custody award to the second parent adopter of some children from China who had originally been adopted by her former partner.

In the first case, Stankevich v. Milliron, 2013 WL 5663227, 2013 Mich. App. LEXIS 1684 (Oct. 17, 2013) (unpublished opinion), the court of appeals affirmed the Dickinson Circuit Court’s award of summary judgment to the birth mother of the child who was conceived through donor insemination, on the ground that her spouse is not legally related to the child.  The women married in Canada in 2007, at which time Milliron was pregnant.  She gave birth after the marriage.

The parents separated in 2009 and ultimately disagreed on a visitation schedule.  Stankevich then sought an order dissolving the marriage, affirming that she is a parent of the child, and making custody, parenting time and child support awards.  Milliron moved for summary judgment, arguing Stankevich had no standing to bring the action as a legal stranger to the child.

The court of appeals, in a per curiam opinion, found that under the state’s Child Custody Act a parent is either “a natural or adoptive parent” and that Stankevich was neither.  “Here, there is no dispute that  plaintiff is not related to the child by blood.  Thus plaintiff is not a parent as defined by MCL 722.22(h),” wrote the court.

The court refused Stankevich’s request to use the “equitable parent doctrine,” finding that under Michigan precedents it would not apply to a situation involving a child who was not conceived during a marriage recognized by the state, and Michigan does not, as of now, recognize same-sex marriages.

Citing U.S. Windsor, the court said that the definition of marriage is a matter of state law, and Michigan has decided by statute and constitutional amendment to eschew recognition of same-sex marriages.  “As we are bound by the Michigan Constitution and the plain statutory language, we agree with the trial court that plaintiff is not a parent as defined under the CCA or the equitable parent doctrine, and therefore lacks standing to bring this action,” said the court, which also held that it could not entertain Stankevich’s constitutional equal protection argument, because it was bound by a prior decision of the Michigan Supreme Court and thus did not have authority to declare that such a refusal to recognize the marriage violates the equal protection clause.

On the same day, the Court of Appeals rejected the attempt by a lesbian mother who had entered into joint adoptions of children with her former same-sex partner in an Illinois court to argue in a subsequent custody dispute between them that the adoptions were invalid.  Giancaspro v. Congleton, 2013 Mich. App. LEXIS 1701 (Oct. 17, 2013).

Diane Giancaspro and Lisa Congleton, Michigan residents, began living together in 1995.  Subsequently, Congleton adopted children in China.  After bringing the children back to the United States, Congleton and Giancaspro jointly adopted them through a second-parent adoption proceeding in Illinois.  They went to Illinois for the adoptions because second-parent adoptions are not available in Michigan.  (The pending marriage equality lawsuit in U.S. District Court in Michigan, Deboer v. Snyder, originally began as a 14th Amendment challenge to Michigan’s refusal to allow second-parent adoptions.)

The parties’ relationship subsequently broke down.  In the resulting custody dispute, the trial court at first granted summary judgment to Congleton on her argument that it would violate public policy for a Michigan court to recognize an out-of-state second parent adoption, but the Court of Appeals reversed in an unpublished decision in 2009, finding that full faith and credit required Michigan to recognize the Illinois second-parent adoption judgment.  The court of appeals then returned the case to the trial court for a ‘best interest of the children’ determination.

The Berrien Circuit Court then found that it would be in the children’s best interest for Giancaspro to be their sole legal parent, with visitation rights for Congleton.  The tense relationship between the former partners evidently precluded a joint custody award, and based on the factors considered by Michigan courts in deciding custody disputes between legal parents, Giancaspro won on points.  During this stage of the litigation, Congleton attempted to discredit the Illinois adoption by offering evidence that the women were actually residents of Michigan at the time the adoption was granted, but the trial judge refused to admit the evidence, and rejected Congleton’s motion to reopen the evidence or reconsider its decision after the court had announced its custody award.

On appeal, Congleton again attacked the validity of the Illinois adoptions, arguing that the women had defrauded the Illinois court by claiming to be Illinois residents when they were not, so the Illinois court did not actually have jurisdiction to grant the adoptions under Illinois law.  The Court of Appeals, in a new per curiam opinion, held that Congleton had waived any argument as to the underlying validity of the Illinois adoptions by failing to raise the jurisdictional issue as an affirmative defense during the initial phase of this proceeding.

In addition, the court noted that even were the issue not waived, judicial estoppel would preclude Congleton from repudiating the position she took under oath in the Illinois adoption proceeding.  “In this proceeding,” wrote the court, “defendant now claims that she lied to the Illinois courts and that she and plaintiff were not actually residents of Illinois during the time before the entry of the adoption orders.  This argument is disingenuous in that it allows defendant to enjoy the benefits of the adoption orders for as many years as she could while now attempting to nullify the effect of the adoptions because she deems it advantageous to her.  This appears to be the exact type of ‘fast and loose’ play with the legal system judicial estoppel is designed to prevent.”

The court observed that Congleton had voluntarily submitted to the jurisdiction of Illinois, had sworn that she was an Illinois resident in that proceeding, and had “requested from those very courts the adoptions which she and plaintiff were awarded.”  Taking together the findings of waiver and the application of judicial estoppel, the court of appeals held that Congleton “fails to show that the trial court made any error in refusing to allow defendant to advance the argument that the Illinois courts did not have jurisdiction over her at the time the adoptions were entered.  We therefore conclude that the trial court did not abuse its discretion in denying defendant’s motion to reopen proofs.  Nor did the trial court abuse its discretion in denying defendant’s motion for reconsideration.”  The court awarded Giancaspro her court costs.

The juxtaposition of the two cases shows the unusual situation that Michigan’s ban on same-sex marriage produces.  A woman who was legally married to the birth mother at the time the child was born is treated as a legal stranger to the child, barred from even seeking custody, while a woman who adopted the children of her unmarried same-sex partner in an out-of-state adoption proceeding is awarded custody “on points” due to the powerful full faith and credit obligation to recognize adoption judgments from sister states.  If, as anticipated, the federal court rules in Deboer that Michigan’s refusal to recognize out-of-state same-sex marriages violates the 14th Amendment, this anomaly of Michigan family law may be corrected, although the traditional family law slant in favor of biological parents may still affect the outcome in particular cases.

Implementing the Windsor Decision

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

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

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

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

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

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

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

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