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Posts Tagged ‘recognition of same-sex marriages’

Arizona Appeals Court Rejects Lesbian Co-Parent’s Bid to Be Recognized as Adoptive Parent Based on Her Spouse’s Adoption When They Were Married

Posted on: January 29th, 2017 by Art Leonard No Comments

The Court of Appeals of Arizona, Division 1, affirmed a ruling by Maricopa County Superior Court Judge Suzanne E. Cohen, holding that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not require Arizona to retroactively deem a woman to be a legal parent of children adopted by her same-sex spouse at a time when Arizona did not recognize their same-sex marriage or allow second-parent adoptions.  Judge Jon W. Thompson wrote the opinion for the unanimous panel in Doty-Perez v. Doty-Perez, 2016 WL 7477722 (Dec. 29, 2016).

Susan and Tonya began living together in October 2010. Tonya adopted a child, who is not the subject of this appeal, two months later.  Susan and Tonya were legally married in Iowa in July 2011, but at all relevant times for this case were residents of Arizona.  After their marriage, they agreed that Tonya would adopt four special needs children from foster care, intending to raise the children together as co-parents.  If Arizona had allowed for same-sex couples jointly to adopt children, they would have done so, but at the time of the adoptions, Arizona did not recognize their Iowa marriage and prohibited same-sex partner adoptions.

Their relationship later eroded. Susan alleges that on April 8, 2014, as their relationship was ending, she asked Tonya for consent to adopt the children through a second-parent or step-parent adoption, but Tonya refused.  Susan moved out of the marital residence on April 12, 2014, and did not file a petition to adopt the children, which would have been futile without Tonya’s consent.  On October 7, 2014, the 9th Circuit, which covers Arizona, struck down same-sex marriage bans in Latta v. Otter, 771 F.3d 456, and on October 17, 2014, in Majors v. Horne, 14 F. Supp.3d 1313 (D. Ariz.), the federal district court struck down Arizona’s ban and enjoined its enforcement.  The state decided not to appeal the district court’s order.  Susan subsequently filed a “Petition for Dissolution of Non-Covenant Marriage Without Minor Children” and requested in loco parentis visitation rights with the children, on April 14, 2015, subsequently amending her petition to “Marriage WITH Children” and requesting joint legal decision making and parenting time.

Just months later, the U.S. Supreme Court decided Obergefell, holding that same-sex couples had a fundamental due process and equal protection right to marry and to have out-of-state marriages recognized, and Susan followed up in July 2015 with a new “Motion to Find Petitioner a Parent of Minor Children and Memorandum in Support of Amended Petition for Dissolution With Children.”  Judge Cohen denied Susan’s petition to be declared a legal parent of the four children, finding that although she had proven by a preponderance of the evidence that the parties would have jointly adopted the children had Arizona allowed such adoptions, Susan had failed to file a second-parent adoption request after October 17, 2014, when Arizona came under an obligation to recognize the Iowa marriage and afford Susan the rights that a step-parent would have to seek to adopt her spouse’s children, and that Tonya, the legal parent, had refused to consent to a step-parent adoption by Susan, as she had the right to do.

The appellate panel agreed with Tonya’s argument that there was no support in Arizona case law for the concept of de facto parent, thus disposing of one of Susan’s arguments out of hand. (The Maine Supreme Judicial Court issued a contrary opinion on the de facto parent issue just weeks later in Thorndike v. Lisio, 2017 Me. LEXIS 10, 2017 ME 14, 2017 WL 218165 (Jan. 19, 2017).)

“We find the dispositive issue is whether, as a matter of law, if a married person adopts a child, that person’s spouse is also deemed or presumed to be a legal parent, with all the legal rights and obligations attached to that status, merely because the couple intended to adopt together,” wrote Judge Thompson. “We think not.”

In light of Obergefell, Susan could effectively argue that Arizona’s failure to recognize the women’s Iowa marriage or to allow legally-married same-sex couples to adopt at the time Tonya adopted the children was a violation of the 14th Amendment, and the court conceded that point.  “However,” wrote Thompson, “we do not read Obergefell to support Susan’s paramount contention that the right of same-sex couples to marry and have their marriages recognized under the Fourteenth Amendment of the U. S. Constitution requires that states retroactively modify adoptions by individuals in same-sex marriages who would have jointly adopted, if they had been allowed to do so.”

The court held that applying ordinary rules of statutory construction to the Arizona adoption law, Susan was “not entitled to parental status or full legal parental rights under any of the relevant statutory provisions,” because under Arizona’s statute there is no presumption “granting legal parental rights or obligations to a non-adoptive spouse merely because of her marriage to a person who has adopted a child.  To be vested with such rights and to be so beholden,” Thompson continued, “an individual, either separately, or, if married, jointly with another individual, must formally adopt the child.  To be sure, in light of Obergefell, [the statute’s] language that ‘a husband and wife may jointly adopt’ must be interpreted to also mean that ‘a wife and wife’ or ‘husband and husband’ may jointly adopt.  However, the adoption statute’s use of the permissive ‘may’ indicates there is no presumption of parentage for a non-adoptive spouse.  To apply such a presumption would be to ignore an adoptive parent’s spouse’s individual agency to decide whether to directly and deliberately assume the role of a legal parent by taking the steps necessary to establish a legal relationship with the adopted child.”

Thompson pointed out that the statute provides that upon adoption the adopting parent and the child have a legal parent-child relationship, but it does not state that upon adoption the child automatically has such a relationship with the adopting parent’s legal spouse, and that Susan’s attempt to get the court to adopt such a meaning would be contrary to the legislature’s intent in passing the statute. “Additionally,” wrote Thompson, “the clear interpretation of [the statute’s] definition of a legal parent is that, except in the case of biology, the only legal mechanism that may establish legal parenting status and attach the associated rights and obligations is an order of adoption.  Thus, we cannot order legal parent status for Susan, despite the fact that the parties intended to adopt the children together, but did not only because it was legally impermissible at the time, and Tonya later refused to consent to Susan petitioning for adoption of the four children, prior to their divorce and after same-sex adoptions were legal in Arizona.”

Thompson asserted that the court was “without authority to confer legal parent status on Susan when she never actually petitioned the court to acquire that status while she was still married to Tonya.” (Emphasis in original)  “While we empathize with Susan because our holding leaves her without parental rights and obligations for four children she loves, provided and cared for,” concluded Thompson, “the relevant statutes do not support a contrary conclusion.”

Susan is represented by Leslie A.W. Satterlee and Markus W. Risinger of Gregg R. Woodnick PLLC, Phoenix. Tonya is represented by Keith Berkshire and Megan Lankford of Berkshire Law Office PLLC, also in Phoenix.  Susan could seek review from the Arizona Supreme Court.

Arkansas Trial Court Orders State Recognition of “Window Period” Marriages

Posted on: June 10th, 2015 by Art Leonard No Comments

An Arkansas trial judge ordered the state on June 9 to recognize and extend all rights and privileges of marriage to more than 500 same-sex couples who married during May 2014 while the state sought a stay of a trial judge’s order striking down Arkansas’s same-sex marriage ban.

On May 9, 2014, Arkansas Circuit Judge Chris Piazza ruled in Wright v. State of Arkansas, 60CV-13-2662, that the state’s ban on same-sex marriage was unconstitutional, granting summary judgment to the plaintiffs, and specifically holding unconstitutional Amendment 83 (the Arkansas marriage amendment) and Act 144 of 1997 (the statute defining marriage in Arkansas as between a man and a woman).  While the state sought a stay from the Arkansas Supreme Court, same-sex couples began to obtain marriage licenses and get married pursuant to Judge Piazza’s decision.

Counsel for plaintiffs then brought to the judge’s attention that his order did not specifically mention all of the relevant statutes, and on May 15 he sent a letter to all counsel advising them that he was filing a new order clarifying the May 9 opinion and making clear that Act 146 of 1997, which specifically forbids issuing marriage licenses to or recognizing the marriages of same-sex couples, is also unconstitutional.  This new order was issued nunc pro tunc, meaning that it was intended to relate back to the May 9 decision, in order to protect the reliance interests of those who had married after the May 9 decision was announced.  On May 16, 2014, the Arkansas Supreme Court stayed Judge Piazza’s decision pending appeal.  The appeal was argued later in 2014, but changes in membership of the Arkansas Supreme Court  after the argument led to a period of delay and confusion in figuring out which judges should participate in deciding the appeal.  Ultimately this confusion – apparently to a large extent manufactured by some members of the court to avoid ruling on the merits – may delay things until after the U.S. Supreme Court issues its decision in Obergefell v. Hodges, obviating the need for the timorous Arkansas supreme court justices to have to rule in this case.  Also, during 2014 a federal district court in Arkansas issued a similar decision striking down the state’s marriage ban that was immediately stayed pending appeal, and the U.S. Court of Appeals for the 8th Circuit put the appeal “on hold” pending the Supreme Court’s ruling in Obergefell.

During the May 9-May 16 “window period” before Judge Piazza’s order was stayed, hundreds of same-sex couples married in Arkansas.  However, the state refused to recognize those marriages as valid.  This prompted a new lawsuit on behalf of two same-sex couples who married on May 12, but who were being denied the right to file joint tax returns and, in one case, to enroll a spouse in a state employee health insurance benefit program.  The state’s argument was that these marriages were invalid ab initio because Judge Piazza lacked the power to make his clarifying opinion retroactive.  According to the state, since Judge Piazza’s order was stayed, Act 146 remained in effect, precluding the state from recognizing these marriages.

On June 9, 2015, Circuit Judge Wendell Lee Griffen decisively rejected the state’s argument in Frazier-Henson v. Walther, No. CV-15-569 (Arkansas, Pulaski Co. Cir. Ct.).  Judge Griffen found that Rule 60 of the Arkansas Rules of Civil Procedure specifically authorizes judges to “correct errors or mistakes” or “to prevent the miscarriage of justice” by modifying judgments that they have issued, including “errors therein arising from oversight or omission.”  It was clear in this case that Judge Piazza’s omission of Act 146 from his original opinion was an oversight, as reflected in the overall opinion granting summary judgment to the plaintiffs and holding unconstitutional the state’s ban on same-sex marriage.  Further, Judge Griffen opined that it would constitute a miscarriage of justice not to accord recognition to the marriages contracted during the window period.

Judge Griffen used harsh language to characterize the position of defendant Larry Walther, Director of the Arkansas Department of Finance and Administration.  “With shameless disrespect for fundamental fairness and equality, Director Walther insists on treating the marriages of same-sex couples who received marriage licenses between May 9 and May 15 as ‘void from inception as a matter of law’.  Meanwhile, Director Walther asserts that ‘heterosexual marriages performed in the State of Arkansas between May 10, 2014 and May 16, 2014 are valid’.  This Court categorically rejects Director Walther’s manifestly inaccurate and tortured misinterpretation of Rule 60 of the Arkansas Rules of Civil Procedure.  If the position Director Walther asserts would not produce a ‘miscarriage of justice’ as that term is understood within the meaning of Rule 60(a), the words ‘miscarriage’ and ‘Justice’ have no meaning.”  The court ordered Walther to recognize all of the marriages contracted during the window period, to allow joint tax filings by those couples, and to allow same-sex spouses married during the window period to enroll in the state’s employee benefits program.

Associated Press reported that Arkansas Attorney General Leslie Rutledge did not immediately state whether she would seek a stay of Griffen’s ruling.   She asserted, “These marriages do not fall within the state’s definition of marriage as between one man and one woman.  I am evaluating the ruling and will determine the best path forward to protect the state’s interest.”

Judge Griffen was among the trial judges who officiated same-sex marriages during the window period, according to the AP report.

Arkansas attorney Cheryl K. Maples represents the plaintiffs.

Judicial Attention Shifts Back to Marriage Recognition as Federal Judge Nixes Kentucky Ban

Posted on: February 13th, 2014 by Art Leonard No Comments

One of the first federal court decisions to apply the Supreme Court’s June 26 DOMA ruling to the question of state marriage recognition came quickly last July, when U.S. District Judge Timothy S. Black in Ohio ordered the state to recognize a Maryland same-sex marriage for purposes of a death certificate. That court order was followed up by a detailed opinion in December in Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio, Dec. 23, 2013), finding that a refusal by a state whose laws ban same-sex marriage to recognize such marriages contracted in other states violates the 14th Amendment, which requires states to provide “equal protection of the laws” and protects the right of married couples to “stay married” when they cross state lines.

Now a second federal judge, John G. Heyburn II, of the Western District of Kentucky, has followed Judge Black’s lead in Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (February 12, 2014), ordering that Kentucky recognize same-sex marriages contracted in other states and Canada. And, on the same day Heyburn ruled, married same-sex couples living in Missouri and Louisiana filed their own lawsuits, seeking rulings that their state governments also must recognize their marriages. These cases all have in common that the plaintiffs are already married and are challenging only their states’ refusal to recognize their marriages. They are not seeking a ruling that unmarried same-sex couples in their states have a right to marry.

Despite the narrow focus of these cases, nobody should be fooled about their effect, because most of the same legal arguments would be relevant in a case seeking the right to marry. Judge Heyburn left little doubt how that would be resolved. “The Court was not presented with the particular question whether Kentucky’s ban on same-sex marriage is constitutional,” he observed. “However, there is no doubt that Windsor [the Supreme Court’s ruling last summer striking down Section 3 of the Defense of Marriage Act] and this Court’s analysis suggest a possible result to that question.” One of the attorneys involved in the case told a local newspaper that she already has a plaintiff couple who want to get married in Kentucky, and they plan to file their lawsuit on Valentine’s Day, February 14.

In the Kentucky case, four married same-sex couples, two of which are raising children together, challenged a 1998 Kentucky statute and a 2004 Kentucky constitutional amendment, both providing that same-sex marriages would not be recognized in Kentucky. The constitutional amendment, part of a nationwide strategy by the Bush re-election campaign to pull conservative voters to the polls, passed with about 74% of the vote, although Judge Heyburn noted that only 53.6% of Kentucky’s registered voters cast a vote on the amendment issue, so one could not argue that a majority of the state’s voters had affirmatively voted for it. Nonetheless, it seems fair to say that the marriage amendment was overwhelmingly popular in Kentucky when it was passed almost ten years ago. Louisville attorneys Dawn Elliott and Shannon Fauver represent the plaintiffs.

To Judge Heyburn, this popularity was irrelevant, because the constitutional issue was clear and easily resolved in light of the trend in federal and state court rulings on marriage equality, especially since last June. Heyburn pointed out that his decision, which might have been considered on the cutting edge of judicial activism just a few years ago, is now very mainstream. “Nine state and federal courts have reached conclusions similar to those of this Court,” he wrote. “After the Massachusetts Supreme Judicial Court led the way by allowing same-sex couples to marry, five years later the Connecticut Supreme Court reached a similar conclusion regarding its state constitution on equal protection grounds. Other courts soon began to follow. Over the last several months alone, three federal district courts have issued well-reasoned opinions supporting the rights of non-heterosexual persons to marriage equality in similar circumstances. Indeed, to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights. This Court joins in general agreement with their analyses.”

As to that analysis, Judge Heyburn took a conservative route to get to his conclusion. While conceding the possibility that this might be treated as a “heightened scrutiny” case, he was penned in by two facts: the 6th Circuit Court of Appeals, to which his decision would be appealed, has ruled as recently as 2012 that sexual orientation discrimination claims are not subject to heightened scrutiny, and the Supreme Court’s opinion in U.S. v. Windsor did not clearly say that the Court was using “heightened scrutiny” to strike down DOMA. Heyburn acknowledged that sexual orientation claims would probably qualify for heightened scrutiny if his decision started with a clean slate, but a trial court is bound by precedent from higher courts. In any event, he said, it really didn’t matter what level of scrutiny was used, because Kentucky’s refusal to recognize same-sex marriages was not supported by any constitutionally acceptable justification.

Heyburn found that in the Windsor case the Supreme Court made clear that although states have the primary authority to establish marriage laws, “those laws are subject to the guarantees of individual liberties contained within the United States Constitution.” In Windsor, the Supreme Court found “that by treating same-sex married couples differently than opposite-sex married couples, Section 3 of DOMA ‘violated basic due process and equal protection principles applicable to the federal government'” under the 5th Amendment. Since the same principles are applicable to state governments under the 14th Amendment, the Windsor court’s “reasoning establishes certain principles that strongly suggest the result” in the Kentucky case.

In Windsor, the Supreme Court emphasized that the purpose of DOMA was to discriminate against same-sex couples who were married under state law. A purpose to discriminate, as such, cannot be the basis of a state law, and it was clear that the purpose of Kentucky’s recognition ban was to discriminate. “Whether that purpose also demonstrates animus against same-sex couples may be debatable,” wrote Heyburn, “but those two motivations are often different sides of the same coin.” More significantly, the Supreme Court held that DOMA “demeans” same-sex couples by relegating their marriage to an inferior status. Heyburn found that the Supreme Court’s “analysis would seem to command that a law refusing to recognize valid out-of-state same-sex marriages has only one effect: to impose inequality.”

“From this analysis,” wrote Heyburn, “it is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them. Absent a clear showing of animus, however, the Court must still search for any rational relation to a legitimate government purpose.” Undertaking that “search,” Judge Heyburn turned up empty-handed.

The only justification presented by the state was “preserving the state’s institution of traditional marriage,” which Heyburn found totally insufficient in this context, pointing out that many traditional laws have been invalidated by the courts in the name of equal protection, citing as a prime example Loving v. Virginia, the 1967 Supreme Court ruling striking down laws against interracial marriage. “Over the past forty years,” he wrote, “the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties.” He cited Justice Scalia’s dissenting comment that bans on same-sex marriage were about “moral disapproval of homosexuality,” which is not a permissible ground for discriminatory state polices in light of the Supreme Court’s rulings in the cases of Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor.

Unusually for this kind of lawsuit, the state had not made any arguments about “responsible procreation” or “child-rearing,” but an amicus brief from the Family Trust Foundation of Kentucky, Inc., made the usual arguments along these lines, which Heyburn also rejected. “The State, not surprisingly, declined to offer these justifications, as each has failed rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor,” Heyburn observed. Indeed, in the Windsor opinion itself, Supreme Court Justice Anthony Kennedy evidently thought so little of those arguments that he didn’t even discuss them. “The Court fails to see how having a family could conceivably harm children,” Heyburn wrote, noting that in the Windsor case the Supreme Court said that children of same-sex couples are “humiliated” by the government’s denial of marriage rights to their parents. “As in other cases that have rejected the amicus’s argument,” Heyburn continued, “no one in this case has offered factual or rational reasons why Kentucky’s laws are rationally related to any of these purposes,” and he concluded, “the Court cannot conceive of any reasons for enacting the laws challenged here. Even if one were to conclude that Kentucky’s laws do not show animus, they cannot withstand traditional rational basis review.”

Heyburn concluded his opinion with what might be called “the civics lesson,” in which he tried to help Kentuckians understand the role of the court and why he was doing what he was doing. He pointed out the distinctly separate realms of personal religious belief and state policies. “Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons,” he wrote. “The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.” He also pointed out that nothing in his opinion would require churches or other religious institutions to marry any particular couple, because of the constitutional guarantee of freedom of religion, and that the court had received no evidence that extending recognition to same-sex marriages would “harm opposite-sex marriages, individually or collectively.”

He also responded to the frequent criticism that such momentous issues should not be decided by a single judge, pointing out that actually in the end the decision as not being made by a single judge. Rather, the judge was applying principles that had been developed over decades by numerous judges and courts at all levels, including the Supreme Court in Windsor. Furthermore, the state could appeal his decision to the 6th Circuit and, if it does not win a reversal there, could petition the Supreme Court for review. Heyburn’s decision mentioned nothing about a stay, but he scheduled a conference with the attorneys in the case to discuss the implementation of his opinion, at which time one suspects that a request by the state for a stay pending review might be forthcoming. The 6th Circuit is already considering Ohio’s appeal of the prior marriage-recognition ruling. In that case, in light of the nature of the relief being sought (correctly identifying couples as married for purposes of a death certificate), the state had not sought a stay of the original order from last July.

Meanwhile, the new cases in Missouri and Louisiana filed on February 12 will move forward. In Louisiana, a federal lawsuit filed last year seeking the right to marry was dismissed by the federal court because the plaintiffs named only the Attorney General as defendant, and the judge determined that the Attorney General was immune from suit on this issue because his office played no role in administering marriage laws. This time, the plaintiffs are suing two state officials, Secretary Tim Barfield of the state’s Department of Revenue, and Devin George, the Louisiana State Registrar. They are clearly appropriate defendants, since Barfield’s office rejected joint tax returns from some of the plaintiffs and George’s office refused to record both members of a married same-sex couple as parents on a birth certificate for a child born to them. In the Missouri case, which was filed in a state court in Kansas City, the defendants include Gail Vasterling, the Director of the Missouri Department of Health and Senior Services, which administers birth certificates and marriage licenses, as well as the state’s governor Jay Nixon (a marriage equality supporter), the attorney general, Chris Koster, and the municipality of Kansas City. The Missouri case, Barrier v. Vasterling, was filed by the state and national ACLU, while the Louisiana case, Forum for Equality Louisiana v. Barfield, was filed by a New Orleans law firm, Stone Pigman Walther Wittmann LLC.

Houston Mayor’s Order Sparks Court Battle on Partner Benefits

Posted on: December 18th, 2013 by Art Leonard No Comments

In November, recently re-elected openly lesbian Mayor Annise Parker of Houston, Texas, directed the city’s Human Resources department to recognize the out-of-state same-sex marriages of city employees for benefits
purposes, to be effective January 1, 2014.  Harris County Republican Chair Jared Woodfill found two taxpayers willing to be plaintiffs in an action challenging Parker’s directive, which was filed on December 17 in Harris County District Court.  District Judge Lisa Millard issued an order blocking Parker’s directive from going into effect, pending a hearing scheduled for January 6.

Mayor Parker premised her directive on the recent conclusion by a federal district judge in Ohio that a state’s refusal to recognize a same-sex marriage performed out-of-state would violate the equal protection rights of the couple in question, assuming that a different-sex marriage would have been recognized, and that the state’s own policy against recognizing same-sex marriages was overcome by federal equal protection requirements.  See Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio July 22, 2013).

In his lawsuit, Pidgeon v. Parker, No. 2013-75301/Court 310 (Harris Co. Dist. Ct.), Woodfill raises the state’s DOMA and anti-gay marriage constitutional amendment, as well as a Houston initiative charter amendment that provided that only legal spouses and dependent children of city employees could receive employee benefits.

The court confronts questions about the plaintiffs’ standing to sue, in addition to the question whether federal supremacy compels the city to recognize same-sex marriages contracted elsewhere.  Interestingly, the complaint never mentions Section 2 of DOMA, which purports to relieve states of any obligation to extend full-faith-and-credit to same-sex marriages contracted in other states.   Perhaps there is an emerging recognition that Section 2 of DOMA is not the ground on which the same-sex marriage recognition issue will be fought.

According to a local news report, Millard’s brief order found that plaintiffs had sufficiently alleged “irreparable injury” should Parker’s directive go into effect to qualify for immediate injunctive relief.  A spokesperson for Mayor Parker said that the city would immediately appeal Judge Millard’s order.  The spokesperson, Janice Evans-Davis, also stated that the charter amendment, by its wording, allows benefits for “legal spouses” of city employees, and that Parker’s directive merely requires that the city comply with federal equal protection requirements by treating same-sex couples who married in jurisdictions that allow such marriages as “legal spouses.”  Thus, the charter amendment would not be an impediment to the directive.  Since the federal constitution takes priority over state laws, the Texas Marriage Amendment and Defense of Marriage Act would be overridden in this case.

Of course, this ultimately turns on whether the courts in Texas agree with the reasoning of the Obergefell case.  An adverse determination by the Texas courts could be appealed to the U.S. Supreme Court, which would give that court another opportunity to take a bite out of the marriage equality issue without the need for a direct ruling on whether same-sex couples enjoy a federal constitutional right to marry.

Same-sex partners of municipal employees enjoyed benefits participation in Austin, Dallas, El Paso, Fort Worth and San Antonio, but had been blocked from benefits eligibility in Houston by the charter amendment.  City Attorney David Feldman advised Parker that the charter amendment could be construed to allow benefits for legal same-sex spouses.

Circuit Judge Dings DOMA and Oregon Marriage Amendment in Grievance Ruling on Benefits

Posted on: April 26th, 2013 by Art Leonard No Comments
Judge Harry Pregerson of the U.S. Court of Appeals for the 9th Circuit, sitting as Chair of the 9th Circuit’s Standing Committee on Federal Public Defenders, ruled that Alison Clark, an assistant federal public defender in the Office of the Federal Public Defender for the District of Oregon, is entitled to received coverage for her same-sex spouse under the Federal Employees Health Care Benefits Program.  In the Matter of Alison Clark, Case No. 13-80100 (9th Circuit, April 24, 2013) (unpublished).   In the course of reaching this decision, Judge Pregerson found that Oregon’s Measure 36, the 2004 ballot initiative that bans recognition of same-sex marriages in Oregon, violates the 14th Amendment, and he made a similar finding as to Section 3 of the federal Defense of Marriage Act.  Furthermore, he found that the federal government must recognize Clark’s same-sex marriage, contracted in Canada, even though she and her spouse live in a state where that marriage might not be recognized.

Clark married her same-sex partner, Anna Campbell, on June 23, 2012, in British Columbia, Canada.  A few weeks later, she applied for benefits under the Federal Employee Health Benefits Act, which applies to lawyers employed as federal public defenders.  The Act allows federal employees to elect family coverage, which can include their “spouse.”  The Administrative Office of the Federal Courts rejected the application, asserting that it was bound under Section 3 of DOMA to find that Campbell is not Clark’s spouse.  Furthermore, under Measure 36, Campbell and Clark are not recognized as spouses by their state of residence, either.  Clark filed a complaint under the Plan’s grievance system, arguing that the Benefit Plan’s own non-discrimination provision, which lists sexual orientation as a prohibited ground of discrimination, was violated, as well as the 5th Amendment equal protection and due process requirements.  Clark’s complaint ended up before the Committee, chaired by Judge Pregerson, and his opinion is consistent with rulings in two prior 9th Circuit cases presenting similar facts from federal court employees in California who had married in 2008 prior to the passage of Proposition 8, the main difference being that this marriage was contracted in Canada.

First Judge Pregerson found that this was an instance of sexual orientation discrimination, stating, “The only reason Clark was unable to make her spouse a beneficiary under the FEHB program was that, as a homosexual, she had a same-sex spouse.”  Thus, the Plan’s non-discrimination provision was violated.

Next, he addressed the issue of whether Oregon could refuse to recognize the marriage.  Before Measure 36 was passed, he observed, “Oregon law did not expressly limit marriage as between a man and a woman,” although the courts had construed the marriage law to be so limited.  Measure 36 amended the state constitution to provide: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”  Pregerson opined that heightened scrutiny was the appropriate standard to evaluate Clark’s claim, but that it was unnecessary to reach that issue because “Measure 26 fails under rational basis review.”  He pointed out that under the Supreme Court’s 1996 decision, Romer v. Evans, 517 U.S. 620 (1996), “a classification treating homosexual individuals differently from heterosexual individuals cannot rationally be justified by the government’s animus towards homosexuality. . .  Here, Oregon does not state any reason for preventing same-sex couples from marrying.” 

Based on the arguments that had been made by proponents of California’s similarly-worded Prop 8 in Perry v. Schwarzenegger, Pregerson found that none of the purported state interests were “rationally related to prohibiting same-sex marriages.”  He made short work of the “responsible procreation,” “stable and enduring families for raising children,” and “proceed with caution in changing a basic social institution” arguments.   “While other possible objectives for Measure 36 exist,” he wrote, “I can see no objective that is rationallyr elated to banning same-sex marriages, other than the objective of denigrating homosexual relationships,” and such an objective would be impermissible under Romer.  Although he didn’t then go on to expressly  connect the dots, the implication was that Clark and Campbell’s marriage would be entitled to recognition in their state of residence, Oregon, as a matter of equal protection.

Having thus concluded, Pregerson did not need to address the alternative due process argument, but did so anyway.  He found that strict scrutiny should apply, because Supreme Court precedents supported the conclusion that the right to marry is a fundamental right.  However, again, he found that it wasn’t necessary to go this far, since Measure 36 flunked rational basis review, and thus, that Measure 36 “violates the due process rights of same-sex couples.”  “I next consider whether, given Clark and Campbell’s valid marriage, it is constitutionally permissible for the federal government to deny Clark’s request for spousal FEHB benefits.  I hold that it is not.”

Here, the barrier is Section 3 of DOMA.  Judge Pregerson found that “three rationales” for Section 3 listed in the House of Representatives report on DOMA to be insufficient under rational basis review.  He noted the Congressional Budget Office report, cited by the 1st Circuit in Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012), to the effect that DOMA did not save the federal government money, because the net effect of repealing Section 3 would be to save money for the government, cost savings from recognizing same-sex families outweighing possible tax revenue losses.  Furthermore, he wrote, “there is no rational basis for distinguishing between same-sex couples and opposite-sex couples if the government’s objective is to cut costs.”  He concludes that Section 3 is unconstitutional under both the equal protection and due process requirements of the 5th Amendment.

The Obama Administration’s stance since February 2011 has been that Section 3 is unconstitutional but will be enforced until it is repealed or definitely invalidated by the courts.  The Supreme Court heard oral argument in March in United States v. Windsor, whose resolution may determine whether Section 3 is constitutional.  But Judge Pregerson is apparently not inclined to wait for that ruling.  Having held that denial of Clark’s application violates the Plan and the Constitution, provided a remedy.  “I therefore order the Director of the Administrative Office of the United States Court to submit Clark’s FEHB Health Benefit Election form, which she signed and submitted on July 12, 2012, to the appropriate health insurance carrier.”  He also affirmatively orders that the Office process future “beneficiary addition requests without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by a state.”   In case the federal Office of Personnel Management “blocks this relief,” he would alternatively order monetary relief, along the lines that the 9th Circuit has approved in the Levenson case from California, providing the funds necessary to compensate Clark for the cost of obtaining insurance coverage for her spouse.  This, of course, would cost the government more than including Clark’s spouse under the employee group insurance policy. 

Judge Pregerson’s ruling, which is non-precedential and only binds the parties, nonetheless takes on a question left hanging during the Windsor oral argument, of whether the constitution would require the federal government to recognize legally-contracted marriages, regardless where the married couple resides.  This is a significant question because state marriage laws generally do not have residency requirements, so many same-sex couples who live in states that do not authorize or recognize same-sex marriages have gone to other states (or countries, usually Canada) to get married, but are living in jurisdictions that don’t recognize their marriages.  When questioned about such situations during the Windsor argument, her counsel, Roberta Kaplan, stated that the plaintiff was only asking for federal recognition in states that recognized the marriages, but it is difficult to see how a federal constitutional right could be so cabined, and it would be unfortunate if the Supreme Court were to hold Section 3 invalid without addressing this question of broader application.