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Federal Magistrate Rejects Retroactive Marital Privilege Claim for Connecticut Couple in Antitrust Case

Posted on: June 6th, 2018 by Art Leonard No Comments

In Antech Diagnostics, Inc. v. Veterinary Oncology and Hematology Center, LLC, 2018 U.S. Dist. LEXIS 82947, 2018 WL 2254543 (D. Conn., May 17, 2018), U.S. Magistrate Judge Sarah A. L. Merriam had to deal with a claim by defendants that certain correspondence between two men (one of them a named defendant) that was sought in discovery by the plaintiffs was protected by marital privilege.  Judge Merriam’s opinion does not set out the underlying facts of the lawsuit, focusing solely on two contested discovery issues, one of which is the marital privilege issue.  However, from references in the opinion discussing the question of applicable law, it appears that this case is in federal court under federal question jurisdiction invoking the Sherman Anti-Trust Act, with a host of supplementary state law claims that also might qualify for diversity jurisdiction.  As a preliminary matter, Judge Merriam determined that the source of law governing the privilege question would be Connecticut common law.

The plaintiffs sought to compel production of 26 communications between Dr. Gerald Post, a defendant, and David Duchemin. Dr. Post and Mr. Duchemin were legally married in Connecticut on December 20, 2013, five years after the Connecticut Supreme Court issued its marriage equality ruling in Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008), and about six months after the U.S. Supreme Court struck down the federal Defense of Marriage Act, under which, inter alia, same-sex marriages performed in Connecticut could not be recognized by the federal government.  However, Post and Duchemin’s relationship dated back to 1995, and they claimed that they considered themselves effectively to have been married back to then.  The communications in question, for which they sought to invoke marital privilege, dated from 2009-2013. They argued to the court that it should consider the men to have been married, for purposes of this privilege claim, retroactively to 1995, asking the court to “extend the privilege on public policy grounds to communications made prior to the issuance of a valid marriage license.”

First, Judge Merriam rejected their claim that their relationship could be deemed a common law marriage, inasmuch as the Connecticut Supreme Court stated in McAnerney v. McAnerney, 334 A.2d 437 (1973), “Although other jurisdictions may recognize common-law marriage or accord legal consequences to informal marriage relationships, Connecticut definitely does not.”  Furthermore, the judge noted that plaintiffs had introduced evidence to contradict the claim that the men had considered themselves to be married prior to their legal marriage in 2013, including deposition testimony in which Dr. Post testified, in response to the question of what year he and Duchemin had married, “2013,” identifying their anniversary date as December 20.  “There was no confusion, and no attempt to explain, the anniversary date in light of Dr. Post’s purported consideration that he and Mr. Duchemin had been married since 1995.”  The judge also referred to an email offered in evidence, dated January 2014, in which Duchemin responded to a friend’s congratulations on the wedding by stating, “It’s so weird calling another man my husband but it is nice.”  If they had considered themselves to be spouses since 1995, perhaps this would presumably not have felt “weird” in 2014, but we do not think that necessarily follows.  Two men might have considered themselves to be virtually married but have not adopted the convention of calling themselves husbands until they had legally tied the knot….

“Regardless,” wrote Merriam, “under Connecticut law, it is well-established that for a legally valid marriage to exist, there must be a marriage contract ‘with certain formalities.’ Accordingly, because the marital communications privilege attaches only to those communications made during a legally valid marriage, and leaving aside for the moment the date on which same-sex marriage became legal, the privilege here would only attach to those communications made after December 20, 2013.”

However, defendants argued that the court should, as some other courts have done in varied contexts, take account of the fact that in 1995 Connecticut was unconstitutionally denying these men the right to marry, that they swear that they would have married then had the option been available, and thus it was equitable to treat them as married for that period of time when same-sex marriage was denied to them. A decent argument, especially in light of Mueller v. Tepler, 95 A.3d 1011 (Conn. 2014).  “There,” wrote Merriam, “the Connecticut Supreme Court recognized a loss of consortium claim by unmarried partners in a same-sex relationship, where at the time the claim arose the partners would have been married, but for the existence of a state law barring same-sex marriage.”  The Connecticut court premised its ruling on public policy concerns, stating that “marriage cannot logically serve as a proxy for the existence of the commitment that gives rise to the existence of consortium in the first instance when marriage is not an option.”  Thus, there is Connecticut precedent for retroactive recognition of a marital relationship in certain circumstances.

But Judge Merriam found that the argument did not work in this case due to issues of timing. “Mueller is plainly distinguishable from the current facts,” she wrote.  “There, the individual in a same-sex relationship sought to assert a loss of consortium claim for a tort that occurred in 2001, some seven years before same-sex couples had a right to marry in the State of Connecticut.  At the time the claim arose in Mueller, legal marriage between a same-sex couple was not an option.  Here, by contrast, the [defendants] claim privilege for communications between Dr. Post and Mr. Duchemin from 2009 to 2013.  During that time period, Dr. Post and Dr. Duchemin were able to marry in the State of Connecticut.  There was no obstacle to legal marriage in this state at that time, as there was at the time the claim in Mueller arose.  Accordingly, the holding and rationale of Meuller are not persuasive, nor entirely applicable, to the facts presently before the Court.”

While disclaiming any ruling on whether the men could claim privilege in any communications between them before marriage equality was established in Connecticut in 2008 by the Kerrigan opinion, Merriam pointed out that “the only communications implicated in the current dispute date from 2009 to 2013.  Additionally, the Court is not adjudicating the general rights of same-sex couples.  Rather, it is constrained to consider the specific facts of the current dispute before it – which simply does not implicate the ‘bewildering and unjust anomaly’ suggested by the [defendants].”

Judge Merriam mentioned that Dr. Post claimed that he and Duchemin had not married as soon as it was possible in Connecticut “out of solidarity with those to whom this recognition was still denied.” While she said that this “is certainly a noble position,” it carried “real legal consequences.  Although the [defendants] present an emotionally compelling argument with respect to extending the marital communications privilege to a date before Dr. Post and Mr. Duchemin’s legal marriage, the Court must apply the law as it stands. . . .  Here, Dr. Post and Mr. Duchemin were not legally married until December 20, 2013.  They had the legal right, in Connecticut, to marry as early as 2008.  Therefore, communications between Dr. Post and Mr. Duchemin between 2009 and December 20, 2013, are not protected by the marital communications privilege.”  In a footnote, she added, “The Court notes the discrepancy between the statement that Dr. Post and Mr. Duchemin delayed obtaining a marriage license ‘out of solidarity with those to whom this recognition was still denied,’ and the date on which marriage became legal through the United States.  Dr. Post and Mr. Duchemin married on December 20, 2103. The Supreme Court ruled in Obergefell on June 26, 2015, about a year and a half after Dr. Post and Mr. Duchemin obtained a marriage license.”

Although not stated by Judge Merriam, it seems likely that the decisive timing factor for Post and Duchemin was probably the June 2013 U.S. v. Windsor decision, after which it became clear in the ensuing months that same-sex couples who had refrained from marrying under state law because they had diminished practical incentive to do so in light of lack of federal recognition, should now get married in order to obtain whatever advantages they might derive from federal recognition of their marriage.  By December 2013, the Obama Administration had issued enough guidelines, advisories, and other pronouncements in response to Windsor’s impact on federal rights that those holding back may have decided the time was right to proceed without awaiting the next step of a marriage equality ruling under the 14th Amendment binding on all the states.

Judge Merriam ordered the defendants to produce the challenged 26 communications, with a June 11 deadline to do so.

Dr. Post’s legal representative on this issue is Edward D. Altabet (lead attorney), Gerard Fox Law P.C., New York, with Richard J. Buturla and Ryan Driscoll (local counsel) from Berchem, Moses & Devlin P.C., Milford, CT.

Can Three Parents Make a Family in New York?

Posted on: April 17th, 2018 by Art Leonard No Comments

 

                In an opinion issued on April 10, New York Family Court Judge Carol Goldstein confronted the question whether there can be a third parent – an adult with legal rights to seek custody and visitation of a child who already has two legal, biological parents – in the context of a married gay male couple and the woman who agreed to have a child with them and share parenting.  She concluded that the “non-biological father” in this triad has “standing” under New York’s Domestic Relations Law to seek custody and visitation of the child, but not necessarily to be designated as a “legal parent.”  The case is Matter of David S. and Raymond T. v. Samantha G., 2018 N.Y. Misc. LEXIS 1249, 2018 N.Y. Slip Op 28110 (N.Y. County Family Court, April 10, 2018).

 

                As usual in contested child custody cases, the judge assigned pseudonyms to the parties and the child in order to protect their privacy, naming the men David S. and Raymond T., the woman Samantha G., and their child Matthew Z. S.-G..  Throughout the opinion, however, she refers to the adults as Mr. S., Mr. T., and Ms. G.

 

                The adults were all friends.  “Over brunch in May 2016, the three friends discussed how each wished to be a parent and devised a plan whereby a child would be conceived and raised by the three parties in a tri-parent arrangement,” wrote Judge Goldstein.  “While the parties agreed that the mother would continue to live in New York City and the men would continue to reside together in Jersey City, the parties agreed that they would considered themselves to be a ‘family.’”  They carried out this plan, but never reached agreement on a signed written document.

 

                Over a period of eight days, Mr. S. and Mr. T. “alternated the daily delivery of sperm to Ms. G for artificial insemination.  On or about Labor Day weekend, 2016, Ms. G. announced that she was pregnant.  The three parties publicized the impending birth on social media with a picture of all three parties dress in T-shirts.  Misters S. and T.’s shirt each said, ‘This guy is going to be a daddy’ and Ms. G’s shirt said, ‘This girl is going to be a mama.’”

 

                They all participated fully in preparing for the arrival of the child, attending a natural childbirth course, creating a joint savings account for the child (to which Mr. T. had, as of the time of the court’s hearing in this case, contributed 50% of the funds), agreeing on a pediatrician and making medical decisions jointly, and planned that the child would be delivered with the assistance of a midwife at the men’s New Jersey home.  This occurred on May 6, 2017. 

 

It was not until after the child was born that a “private genetic marker test” determined that Mr. S.’s sperm initiated the pregnancy.  He signed a New Jersey acknowledgment of paternity on May 11.  They named the child using names of significance from all three families.  After Matthew was born, the entire family spent a week at the men’s home, after which Ms. G returned with Matthew to her home in New York County (Manhattan).  Matthew, still an infant, lives mainly with his mother, although the men have had regular parenting time and last summer the parties vacationed together in the Catskills.

 

Because infant Matthew was nursing on demand, overnight visits with the men had not been scheduled, but were supposed to start during April.  “When speaking to Matthew,” wrote the judge, “all parties refer to Ms. G. as ‘Momma,’ Mr. S. as ‘Daddy’ and Mr. T. as ‘Papai,’ which is Portuguese for father.”  All three parents were present at the hospital when Matthew had hernia surgery at two months.

 

Mr. T. and Ms. G. have a contract with a literary agent to write a book about their joint parenting venture.  In recognition of Mr. T’s profession of meteorology, the provisional title is ‘Forecasting a Family.’”

 

However, wrote Judge Goldstein, “Issues arose between the two men and Ms. G with respect to the parenting of Matthew as well as to the extent of parental access by Misters S. and T.  The relationship among the parties became strained.”  Misters S. and T. filed a joint petition in the Family Court in New York County on November 12, seeking “legal custody and shared parenting time” with Matthew by court order.  On December 6, Ms. G filed a “cross-petition” seeking sole legal custody of Matthew, with the men being accorded “reasonable visitation.”  None of the parties was seeking an “order of paternity or parentage” in their initial filings with the court. 

 

The court asked the parties to submit memoranda of law about the parenting issues, and how the N.Y. Court of Appeals’ Brooke S.B. decision from 2016 might apply.  In Brooke S.B., the court overturned a 25-year precedent and ruled that a non-biological parent could have standing to seek custody and visitation under certain circumstances.  That case involved a custody and visitation dispute of a lesbian couple over a child born to one of them through donor insemination.

 

The main issue of dispute between these parties, which came out in their briefs, is about Mr. T.’s legal status toward the child.  Under New York law, the husband of a woman who gives birth is presumed to be the child’s father, but the legal status of a man who is married to another man whose sperm is used to conceive a child with a woman to whom he is not married presents new, unresolved legal issues.  Ms. G  agrees that Mr. T. should have standing to seek visitation, but she argued “strenuously” that “the right to seek custody and visitation as a ‘parent’ under the Domestic Relations Law does not automatically bestow parentage on the non-biological party” and asked that the court not declare Mr. T. to be a third legal parent.  On the other hand, the men argued that not only should Mr. T. have standing to seek custody and visitation as a ‘parent,’ but that the court should also declare him to be a third legal parent of Matthew.

 

Judge Goldstein found that under the circumstances of this case, with an emphasis on the understanding and agreement of the parties when they devised their plan to have and raise a child together, it was clear that Mr. T. has standing to seek custody and visitation in line with the Brooke S.B. decision.  “In making this decision,” she wrote, “this court is specifically taking into consideration that the relationship between Mr. T. and Matthew came into being with the consent and blessing of the two biological parents and that both biological parents agree that Mr. T. should have standing to seek custody and visitation.” 

 

She identified as the “fundamental principle” of the Court of Appeals precedent that the state’s domestic relations law “must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a non-traditional family structure.  The parent-child relationships fostered by children like Matthew, who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.” 

The judge noted the likelihood that this kind of situation will recur, pointing out the differences between the use of anonymous sperm donors where no parental role is contemplated for the sperm donor, and the situation where a known donor is involved “where the parties agree that the provider of the egg or sperm will be a parent.”

 

She also noted recent New York decisions that had denied standing or parental status to sperm donors, where all these circumstances were not present, particularly where lesbian couples obtained sperm from a known donor but there was no understanding or agreement that the donor would be considered a parent of the child.  These situations are less difficult to analyze from a legal perspective if the parties negotiate and sign carefully worded written agreements memorializing their understanding of their rights and responsibilities, although such documents are not binding on a court, whose main task under the domestic relations statutes is to make such decisions in the best interest of the child.

 

The court found that the usual “presumption of legitimacy” used to determine parental standing in donor insemination cases was not relevant in considering the status of Mr. T., even though Mister S. and Mr. T. are married to each other.  “This is because the presumption that Matthew is the legitimate child of the married couple, Misters S. and T., would indisputably be rebutted by evidence that all three parties agreed that Matthew would be raised in a tri-parent arrangement and that Ms. G., the biological mother, would be a parent to Matthew.”  In other words, this is not a gestational surrogacy case, where the woman’s only role was to produce the child and agree to forego parental rights.

 

However, noting that the men’s original filing with the court did not seek an order of “parentage” on behalf of Mr. T, the judge declined to issue such an order.  “Moreover,” she wrote, “there is no need for the issue of parentage to be addressed since pursuant to Brooke S.B., Mr. T. may seek custody and visitation as a ‘parent’ under DRL section 70(a) without a determination that he is a legal parent.  If, in the future, a proper application for a declaration of parentage is made and there is a need for a determination of parentage, for instance, to rule on a request for child support, the court may address this issue.  This court, however, notes that there is not currently any New York statute which grants legal parentage to three parties, nor is there any New York case law precedent for such a determination.”

 

So a child can have three parents, or at least three adults with standing to seek custody and visitation, while at the same time having only two “legal parents,” in New York.  Unfortunately, New York’s Domestic Relations Law has not been revised by the legislature to take account of the sorts of “non-traditional” family structures that have emerged over the past half century as assisted reproductive technology has become relatively easy for people to use without the assistance of medical specialists and a diversity of family structures have arisen through social evolution.

 

This case will now proceed to consideration by the judge about what kind of custody and visitation arrangement would be in Matthew’s best interest, to embody in a formal order that would protect Mr. T’s rights as a non-biological parent.  While having determined that Mr. T has standing to seek custody and visitation, the judge’s opinion expresses no view as to the viability of tri-partite custody, without actually ruling it out as a possibility. 

 

Misters S. and T. are represented by Patricia A. Fersch.  Ms. G is represented by Alyssa Eisner, or Sager Gellerman Eisner LLC.

 

Mississippi Supreme Court, Rejecting Parental Status for an Anonymous Sperm Donor, Says Birth Mother Can’t Challenge Same-Sex Partner’s Parentage

Posted on: April 12th, 2018 by Art Leonard No Comments

Ruling on a custody contest between a birth mother and her former same-sex spouse on April 5, the Mississippi Supreme Court avoided mentioning the parental presumption that most states automatically apply for the spouse of a woman who gives birth to a child, relying instead on a doctrine called “equitable estoppel” to prevent the birth mother from contesting her former spouse’s parental status.

Although none of the five written opinions signed by different combinations of judges on the nine member court represent the views of a majority, adding them up produces a holding that the existence of an anonymous sperm donor is irrelevant to the determination of parental rights for the birth mother’s same-sex spouse.  The court reversed a ruling by Judge John S. Grant, III, of the Rankin County Chancery Court, that the failure to obtain a waiver of parental rights from an anonymous sperm donor prevents identifying the birth mother’s spouse as a legal parent of the child.

The various complications in this case arose because the relevant facts played out before marriage equality came to Mississippi as a result of the June 2015 Obergefell decision by the U.S. Supreme Court, and because the retrograde Mississippi legislature has neglected to adopt any statutes concerning who would be considered a parent when a woman or a couple use sperm from an anonymous donor obtained through a sperm bank to conceive a child, leaving the courts to sort this out without any legislative guidance.

The story begins in 1999 when Christina Strickland and Kimberly Jayroe began their relationship.  After several years together, they decided to adopt a child.  The adoption of E.J. was finalized in 2007.  Because Mississippi did not allow joint adoptions by unmarried couples, only Kimberly was the legal adoptive parent of E.J..  In 2009, Christina and Kimberly went to Massachusetts to marry, and Kimberly took Christina’s last name.  The Stricklands then returned to their home in Mississippi, where their marriage was not legally recognized.

In 2010, the Stricklands decided to have a child using “assisted reproductive technology” – A.R.T.  They obtained anonymously donated sperm from a Maryland sperm bank.  Kimberly, whom they jointly decided would be the gestational mother, signed the sperm bank’s form providing that she would “never seek to identify the donor” and that the donor would not be advised of Kimberly’s identity.  In Maryland, Kimberly was then recognized as a married woman and Christina was identified as her spouse in the clinic paperwork.  Both women signed the form acknowledging that they were participating in this process as a married couple and would both be parents of the resulting child.

According to the plurality opinion by Justice David Ishee, “Christina testified that she was involved in and supportive through every step of the conception and pregnancy.”  She also testified that their plan was to go to Massachusetts for the delivery of the baby, so that their marriage would be recognized and both recorded as parents on the birth certificate.  But for medical reasons that did not occur.  Six week before her due date, Kimberly gave birth to the child, Z.S., in an emergency cesarean section surgical procedure in a Mississippi hospital.  Since Mississippi did not recognize the marriage, the birth certificate shows Kimberly as the only parent.

Over the next two years, the women functioned as a family unit, raising both E.J. and Z.S. as co-parents.  Christina stayed home for the first year of Z.S.’s life, while Kimberly worked full time.  Christina testified that both children call her “mom.”  The women separated in January 2013.  Christina continued to visit both children and paid child support, medical and daycare expenses for Z.S.

Now things took a strange twist: On August 13, 2015, while still married to Christina (and at a time, due to the Obergefell decision, when Mississippi would be legally obligated to recognize the marriage is the issue came up in any legal context), Kimberly married a second spouse, whose name and gender are not identified in any of the judge’s opinions, although from the caption of the case it sounds like her new spouse’s surname is Day, since Kimberly is identified in the title of the case as Kimberly Jayroe Strickland Day.

This prompted Christina to file a divorce petition in Harrison County Chancery Court on August 31. On November 16, Kimberly filed a motion for a declaratory judgment that her second marriage was valid and her first marriage “dissolved” in Rankin County Circuit Court.  Christina answered that motion and counterclaimed for divorce and legal and physical custody of both children, who were then living with Kimberly.  She also sought to be named as Z.S.’s legal parent.  The two cases were consolidated in the Rankin County court.  On May 17, 2016, Judge Grant issued an order declaring that Christina and Kimberly’s 2009 Massachusetts marriage was valid and recognized in Mississippi, and therefore that Kimberly’s second marriage was void.

This led the women to negotiate a “consent and stipulation,” in which they agreed that Z.S. was born during their marriage, that they would jointly pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J., the adoptive child.  They agreed to let the chancery court decide custody, visitation, and child support issues for Z.S., child support and visitation issues for E.J., and the issue of Christina’s parental status toward Z.S.

Judge Grant’s final judgment of divorce, entered on October 16, 2016, ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage.  But, he ruled, Z.S. was “a child born during the marriage, but not of the marriage,” so both parties were not considered to be Z.S.’s parents.  The court considered the anonymous sperm donor to be “an absent father” whose legal parentage “precluded a determination that Christina was Z.S.’s legal parent.”  However, Judge Grant held that she was entitled to visitation with Z.S. under a doctrine called “in loco parentis,” which recognizes that somebody who has acted as a parent and bonded with a child as such could be entitled to visitation even though she has no legal relation to the child.

Christina appealed three days later.  At the heart of her argument was that because Z.S. was born while Christina was married to Kimberly, Christina should be deemed the child’s legal parent, and that the anonymous sperm donor, who had no relationship to the child, could not possibly be considered its legal parent.

The Mississippi Supreme Court was in agreement with Christina’s argument that the sperm donor is really out of the picture and should not be considered a parent.  Justice Ishee’s opinion, for himself and Justices Kitchens, King and Beam, declared that Judge Grant’s finding that the sperm donor was the child’s “natural father” was erroneous as a matter of law.  “At the outset,” he wrote, “we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm.  As such, this is an issue of first impression.”

That is a startling statement for a state Supreme Court to make in 2018, when donor insemination has been around for half a century and most states have adopted legislation on the subject.  But, wrote Justice Ishee, there is only one provision of Mississippi law relating to donor insemination, a statute providing that a father cannot seek to disestablish paternity when a child was conceived by “artificial insemination” during the marriage to the child’s mother.  That’s it.  However, wrote Ishee, “Reading this provision, in light of the context before us, the logical conclusion – while not explicit – is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm – irrespective of the sex of the married couple that utilized his sperm to have that child.”

“How,” asked Ishee, “on the one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the non-biological father of a child conceived through AI from disestablishing paternity?  These two policies cannot co-exist.”

Ishee rejected Kimberly’s argument that “all of the non-biological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoptive process.”  Ishee’s plurality (4 justices) rejected this process as “intrusive, time-consuming, and expensive,” including a ridiculous waste of time for a judge to have to determine that an anonymous sperm donor, who never intended to be the parent of the child, had “abandoned” the child, thus making the child available for adoption by its mother’s spouse.

When a father is “absent” at the time a child is born, the usual process is to try to locate the missing father and inform him of his obligations, but in the case of an anonymous donor, neither the mother nor the court has the necessary information.  In a case like this one, publishing such a notice in a newspaper – the standard way for courts to give notice to missing parties – makes no sense.

On appeal, Christina raised alternative arguments in support of her claims to be Z.S.’s parent.  First, she asked the court to determine a question not addressed by Mississippi statutes: “Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents.”  Alternatively, she asked “Whether the Supreme Court’s decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender-neutral manner so as to apply equally to married same-sex couples.”  As another alternative, she asked whether the doctrine of “equitable estoppel” could be used to preclude a birth mother from trying to “disestablish her spouse’s parentage of the couple’s marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented.” Christina argued that Judge Grant’s order violated constitutionally protected liberty and equality interests by failing to recognize Christina’s parental relationship with Z.S.

Justice Ishee’s opinion ignored all of these arguments except “equitable estoppel,” a doctrine which he explained that Mississippi courts have defined “as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.”  Ishee concluded that the doctrine fits this case, and rejected Kimberly’s argument that the decision to have a child through donor insemination was solely hers and the fact that she was married to Christina at the time was irrelevant.  Ishee found that “the evidence in the record belies this assertion,” and cited chapter and verse, right down to the birth announcements the women sent out, which identified the women as “two chicks” who had “hatched” the child.

Since Kimberly represented to Christina all along that Christina would be a parent of Z.S., the doctrine of equitable estoppel blocks her from arguing to the contrary in the context of this divorce proceeding. Judge Grant’s award of “in loco parentis” status to Christina was insufficient, in Ishee’s view, to protect her legitimate interests.  For example, suppose Kimberly married somebody else and petitioned for her new spouse to adopt Z.S.  Christina’s “in loco parentis” status would not entitle her to prevent such an adoption. But if the court recognizes her as a parent, she could.

Thus, without ever mentioning the parental presumption, the plurality opinion, purporting to be speaking for the court as a whole because of the concurring opinions, reversed the chancery court’s ruling that Christina acted “in loco parentis” but “was not an equal parent with parental rights to Z.S.” They sent the case back to Rankin County Chancery Court to determine custody using the multifactorial test that is generally used in a custody contest between legal parents to determine what would be in the best interest of the child, with a “guardian ad litem” appointed to represent Z.S. in the proceedings.

Chief Justice William Waller, Jr., joined “in part” by Justices Randolph, Coleman, Maxwell and Chamberlin, “concurred in part and in the result.” “The narrow issue before the Court,” wrote Waller, “is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child.  I conclude that they are and that the decision of the chancellor should be reversed and remanded.”  After briefly referring to equitable estoppel, he wrote, “While this Court can use common-law principles to render a decision here, the Legislature should speak directly to the recognition of the legal status of children born during a marriage as a result of assisted reproductive technology.”

Justice Josiah Coleman, concurring in part and dissenting in part, pointed out that the doctrine of “equitable estoppel” had not been argued to Judge Grant, so it should not be a basis for the court’s decision. Thus, he was only joining Judge Waller’s opinion to the extent that Waller agreed that the chancellor erred by according any parental status to the sperm donor.  He would remand the case to the trial court, having reversed that part of the holding, “to allow the parties to present whatever evidence and arguments they wished that accord with the Court’s holding.”  His opinion was joined “in part” by Justices Randolph and Maxwell.

Justice James Maxwell, also concurring in part and dissenting in part, insisted that “what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court,” and since there was no statute on point, “we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed,” he argued, “it is dangerous for the plurality to weigh in so heavily with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.”  His opinion was joined “in part” by Justices Randolph and Coleman.

Finally, Justice Michael Randolph dissented, joined in part by Justices Coleman, Maxwell, and Chamberlin. Randolph said the court should never have addressed equitable estoppel, because that argument was presented for the first time on appeal.  Next, although he agreed that the chancellor erred in declaring an anonymous sperm donor to be the child’s “natural father,” he thought that the “plurality’s blanket assertion that in any case, no anonymous sperm donor will be accorded the burdens and benefits of natural fathers” went too far. He though there was a constitutional issue here, where no attempt had been made to identify and contact the sperm donor.  He also pointed out that the “disestablishment” statute cited by Justice Ishee and then used to support the plurality’s ruling “never was quoted or argued by either party at the trial level,” so also should not have been relied upon in any way by the Supreme Court.  He also found no basis in the record for setting aside the chancellor’s determination that it was “not in the best interest of either child for Christina to have custody.” He pointed out that the chancellor had neglected to address all of the factors specified by Mississippi courts on the record, so the correct approach would be to remand the case to the chancellor “to examine the record and the chancellor’s notes and issue a final decree consistent with this dissent.

This appears to be a victory for Christina, to the extent that enough members of the court agreed with the equitable estoppel approach to make that part of the holding of the court, tossing the case back to the trial court to decide anew whether it is in the best interest of Z.S. for Christina to have joint or primary custody of him as a parent. (Christina is not seeking custody of E.J., just visitation rights.)  But the fractured ruling falls short of the appropriate analysis that would be more beneficial for married LGBT couples in Mississippi: a straightforward acknowledgement that when a married lesbian couple has a child through donor insemination, both of the women will be presumed to be the legal parents of that child, without any need to make a factual showing required for the application of equitable estoppel should any dispute later arise about custody or visitation.  One wonders whether fear of political retribution may have motivate all nine justices to avoid mentioning the parental presumption or invoking Obergefell in support of its application in their various opinions.

Christina is represented by Mississippi attorney Dianne Herman Ellis and Lambda Legal staff attorney Elizabeth Lynn Littrell. Kimberly is represented by Prentiss M. Grant.

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Foreign and International Courts Issue a Burst of LGBT Rights Rulings

Posted on: January 11th, 2018 by Art Leonard No Comments

 

Over the course of just four days, January 8 through 11, 2018, major courts on three continents have issued rulings that will affect the rights of tens of millions of LGBT people. On January 8, the Supreme Court of India ordered reconsideration of the 2014 decision that had restored the country’s law against gay sex, in an Order that quoted extensively from prior rulings critical of the 2014 decision.  On January 9, the Inter-American Court of Human Rights advised Costa Rica – and thus also sixteen other countries in Central and South America that are bound by the American Convention of Human Rights and do not yet have marriage equality – that same-sex couples are entitled to marry and that transgender people are entitled to get legal name changes without having to undergo sex reassignment surgery.  And on January 11, one of the Advocates General of the European Court of Justice (ECJ), responding to a request for a preliminary ruling from the Constitutional Court of Romania, advised the ECJ that same-sex spouses of the citizens of member nations must be treated the same as different-sex spouses under the European Union Directive governing movement between states.

 

India has the second largest population of any country, over 1.3 billion people by the latest estimate. The European Union member countries have more than 500 million residents, and the combined countries within the Inter-American Union have close to a billion people, although some large countries, including Canada and the United States, are not subject to the Inter-American court’s ruling.  But, of course, both Canada and the United States have marriage equality and don’t criminalize consensual gay sex among adults.   This means that within the space of four days courts have potentially expanded LGBTQ rights to an extraordinary proportion of the world’s population, which is currently estimated at about 7.6 billion people, and marriage equality may soon become the norm throughout the Western Hemisphere, with only a few holdouts among states that do not recognize the jurisdiction of the Inter-American court.

 

The India ruling is yet another step in a complicated and long-running story. In 1860, under British Administration, the Indian Penal Code was adopted including what is now Section 377, providing, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”  This colonial enactment was carried over into national law when India became independent and self-governing after World War II.  It has been interpreted to outlaw all same-sex oral and anal intercourse. Although infrequently enforced, it has had the same stigmatizing effect as anti-sodomy laws in western societies before the slow process of decriminalization got under way during the second half of the 20th century.

 

Many LGBTQ people in India rejoiced and went heavily public in celebratory demonstrations in 2009 when the Delhi High Court, responding to a lawsuit filed by the NAZ Foundation, an HIV/AIDS advocacy non-governmental agency, ruled that Section 377 was unconstitutional as applied to private consensual adult same-sex intercourse. NAZ Foundation v. Government of NCT of Delhi, 111 DRJ 1 (2009). As the government did not initiate an appeal, many saw the lengthy, scholarly ruling as final and definitive.

 

However, Indian jurisprudence allows for anybody who is offended by a court ruling to ask the nation’s Supreme Court to review it, and a group of religious and social conservatives, led by Suresh Kumar Koushal, a Hindu astrologist, brought their case to the Supreme Court, where a two-judge bench reversed the High Court ruling in 2014, holding that the Constitution of India did not impede the government from maintaining the existing law, and rejecting the High Court’s citation of decisions from other countries (such as the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling) to support its decision. Koushal v. NAZ Foundation, 1 SCC 1 (2014).  The Supreme Court panel minimized the significance of the issue, claiming that because there were very few homosexuals as a proportion of the population, it was not a matter of great importance.  It also opined that the question of what sexual conduct to outlaw was for the legislature, not the courts, to decide.

 

Obtaining further review from a larger panel of the Court (which has 26 judges overall) is a time-consuming process, requiring filing “corrective petitions” and persuading a panel of the Court that the issue should be taken up anew. This process has been ongoing at the instance of NAZ Foundation and its supporters, but a new group of plaintiffs emerged in 2016 and initiated a petition directly with the Supreme Court, arguing that recent rulings in other cases by the Court, most notably a later 2014 ruling on the rights of transgender people, National Legal Service Authority v. Union of India 5 SCC 438 (2014), had cast significant doubt on the reasoning of the Koushal decision.  This argument was bolstered last year when a nine-member panel of the Court, ruling on a challenge to a new national genetic identification system, Puttaswamy v. Union of India, 10 SCC 1 (2017), specifically discussed and disparaged the Koushal decision’s treatment of constitutional privacy and the rights of LGBTQ people.

 

The Court’s January 8 Order in Johar v. Union of India Ministry of Law and Justice, Writ Petition No. 76/2016, by a three-judge panel including Chief Justice Dipak Misra, provided an extensive summary of the arguments against the constitutionality of Section 377, quoting extensively from the 2014 transgender and 2017 privacy rulings, particularly those passages critical of the Koushal decision, and granted the petitioners’ request that a larger panel of the Court be convened to reconsider that decision. Interestingly, only the Petitioners were present at the Court’s hearing on January 8, with the argument being presented by Senior Advocate Arvind Datar.  Nobody appeared from the government to oppose the request for reconsideration.  The Order emerged immediately after the hearing.

 

While the Order does not specifically state that all of the Petitioners’ arguments are correct, after concluding its summary of the arguments and what the Petitioners are seeking, the Court stated, “Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Koushal’s case requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

 

A different Bench of the Court is presently considering the curative petition that was filed by the NAZ Foundation, so there was some speculation in the Indian press that the two cases could be combined before that larger panel. “In the meantime,” wrote the Court, “a copy of the petition be served on the Central Agency so that the Union of India can be represented in the instant matter.  Let the matter be placed before Honorable the Chief Justice of India, on the administrative side, for consideration of the appropriate larger Bench.”

 

Indian jurisprudence is famous for its slow motion, but there was some optimistic speculation that an opinion from a larger Bench of the Court may emerge later this year. In light of the serious criticisms of the Koushal decision by other Benches of the Court, commentators were optimistic that the Delhi High Court’s original ruling striking down criminalization of consensual gay sex will ultimately prevail, and gay sex will become legal in the world’s second largest country.

 

The Inter-American Court’s ruling on January 9 came in response to a petition submitted two years ago by Luis Guillermo Solis, the President of Costa Rica, who had run for office on a pledge to expand LGBTQ rights in his Central American country. Opinion Consultiva, OC-24/17 (2017). In the face of legislative intransigence, Solis inquired whether Costa Rica was obligated under the American Convention on Human Rights to let same-sex couples marry.  He also inquired about transgender rights.  The Court, which actually sits in Costa Rica’s capital city, came back with a strong affirmation for LGBTQ rights.  The opinion is initially available only in Spanish. According to translations published in English-language media sources, the court said that governments subject to the Convention “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex,” and that establishing a separate institution for same-sex couples, such as civil unions, was not adequate from the point of view of legal equality.  The governments must “guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all rights of families formed by same-sex couples without discrimination.”

 

However, recognizing the kind of legislative intransigence encountered in Costa Rica and many other Central and South American countries, where the Roman Catholic Church has a heavy influence on social policy, the court recommended that government pass “temporary decrees” while new legislation is considered.

 

The Inter-American Court, in common with the European Court of Human Rights, is not empowered directly to order a government to do anything. Compliance requires acquiescence, and sometimes the court has resorted to demanding that governments explain why they have not complied with its rulings.  For example, it took Costa Rica several years to come into compliance with a ruling by the Inter-American Court against bans on the use of in vitro fertilization.

 

President Solis reacted to the decision by calling for full compliance by the countries of the Inter-American Union. The Tico Times reported on January 10 that he told reporters, “Costa Rica and the other countries that have accepted the jurisdiction of the Inter-American Court must fully comply with the court’s opinion, respecting each country’s processing time, jurisdictional and administrative spaces.  Solis pointed out that Costa Rica’s compliance would require a “gradual process,” requiring consultation between the various branches of government and the political parties.

 

The Court also addressed a question of transgender rights, recognizing as a human right that transgender people should be able to register themselves using the name and sex with which they identify, thus lining up with those countries that have in recent years moved towards recognizing self-declared gender identity without interposing a requirement that the individual document surgical gender confirmation procedures.

 

Commented Solis, “The court’s opinion ratifies our commitment to guaranteeing people access to the rights they acquire through their personal relations, without any sort of discrimination.” In a formal press release, the government stated: “Love is a human condition that should be respected, without discrimination of any kind.  The State confirms its commitment to comply.”

 

The countries that are legally bound by rulings of the court include Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam and Uruguay. Some of those countries still penalize gay sex, while others already have marriage equality: Colombia, Brazil, Uruguay and Argentina.  Litigation over marriage equality is pending in the Supreme Court of Panama.  In Mexico, same-sex couples can marry in several states and the capital district, and all of the states are required to recognize those marriages, while a Supreme Court ruling mandates that lower courts issue orders, called “amparos,” requiring local officials to allow particular same-sex couples (or groups of couples) who obtain the orders to marry.  The Inter-American Court’s ruling may hasten the spread of marriage equality to the remaining Mexican states.

 

Meanwhile, back in the European Union, Advocate General Melchior Wathelet’s preliminary ruling in the case of Relu Adrian Coman, a Romanian citizen who married Robert Clabourn Hamilton, an American citizen, in Brussels, Belgium, while Coman was living there and working for a European Union agency, may portend a significant advance for marriage equality in Europe. Coman v. Inspectorate General for Immigration, Case C-673/16 (January 11, 2018).  Coman sought to bring his spouse back home to Romania, but the Romanian government was unwilling to issue the kind of spousal visa that is routinely granted when Romanians contract different-sex marriages elsewhere in Europe.  Coman brought his case to the Constitutional Court of Romania, which referred the issue to the European Court of Justice for a determination of what obligation the country might have as a member of the Union.

 

Such matters are first presented to the office of the Advocate General (of which there are several), for an opinion advising the Court.  If the Court decides to follow the Advocate General’s recommendation, its ruling becomes law throughout the European Union.

 

In some respects, Wathelet’s opinion is narrow and technical, because it doesn’t address a broad question of rights, but rather the narrower question of interpreting the Directive that guarantees freedom of movement within the European Union, with an eye to breaking down nationality barriers that would inhibit the movement of labor across national lines.   Directive 2004/38 describes the “free movement of persons” as “one of the fundamental freedoms of the internal market.”  The Directive supports such freedom by requiring member states to grant freedom of movement to family members of their citizens, and of course a “spouse” is a family member, but the term “spouse” is not generally defined.  When the Directive was adopted in 2004, only two countries in Europe allowed same-sex marriage, but many others had registered partnerships for same-sex couples, so the Directive provides for free movement rights for such partners, but only “if the legislation of the host Member State treats registered partnerships as equivalent to marriage.”

 

In the case of Romania, not only is marriage defined as the union of a man and a woman, but the country’s marriage law specifies that same-sex couples may not marry, and the county provides no registered partnership status for same-sex couples. Thus, the question under EU law is whether the protection for family life and for spousal relationships would extend to same-sex spouses, overriding national law on the question of who is entitled to a residence visa (as opposed to the short-term entry visa of up to three months for tourists and business visitors).  The key to this, it proved, was the established practice both in this Court and the European Court of Human Rights to adjust the definitions of terms in reaction to social developments.

 

Wathelet quoted an earlier decision stating that “EU law must be interpreted ‘in the light of present day circumstances,’ that is to say, taking the ‘modern reality’ of the Union into account.” This is to avoid the law become static and placing a drag on economic and social development.  Wathelet noted that in a 2001 ruling, reflecting “present day circumstances” at that time, the Court had considered marriage to be “a union between persons of the opposite sex.”  But this does not reflect the “modern reality.”

 

“In fact,” he wrote, “while at the end of the year 2004 only two Member States allowed marriage between persons of the same sex, 11 more Member States have since amended their legislation to that effect and same-sex marriage will be possible in Austria, too, by 1 January 2019 at the latest. That legal recognition of same-sex marriage does no more than reflect a general development in society with regard to the question.  Statistical investigations confirm it; the authorization of marriage between persons of the same sex in a referendum in Ireland also serves as an illustration.  While different perspectives on the matter still remain, including within the Union, the development nonetheless forms part of a general movement.  In fact, this kind of marriage is now recognized in all continents.  It is not something associated with a specific culture or history; on the contrary, it corresponds to a universal recognition of the diversity of families.”

 

Wathelet also referred to decisions by the European Court of Human Rights, including those protecting the right of a national of a signatory state to the European Convention on Human Rights to bring a same-sex partner into the country. He also noted that European law now includes a ban on sexual orientation discrimination by Member States, and strong protection both under the European Union’s Charter and under the Human Rights Convention for “family life.”

 

He also contended that adopting a gender-neutral concept of spouse was consistent with the objective of the Directive, “to facilitate that primary and individual right to move and reside freely within the territory of the Member States which is directly conferred on citizens of the Union.” Freedom of movement would be impeded if lawfully married individuals could not bring the legal spouses with whom they have established a family relationship with them to return to live in their home country.

 

Thus, he recommended that the Court answer the questions posed by the Romanian Constitutional Court as follows: that “the term ‘spouse’ applies to a national of a third State of the same sex as the citizen of the European Union to whom he or she is married” for purposes of complying with Directive 2004/38 on freedom of movement.  As applied directly to Mr. Coman’s case, it means that his marriage to an American citizen while Coman was living in Belgium, a European Union country that allows same-sex marriages, gives his spouse a derivative right under the Directive to obtain, automatically, the same kind of spousal visa to enter and live in Romania that would be provided to a different-sex spouse.  Since Hamilton is not a citizen of any European Union Member State, his right is not direct and must be derived from the right of his husband to have Romania respect his marriage and family life, at least to the extent of allowing him to live together with his husband in his home country.

 

Reflecting the social divisions within the Union, several Eastern European nations – Latvia, Hungary, Poland and Romania – opposed this conclusion, while it was supported by submissions from the Netherlands and the European Commission.

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Same-Sex Marriage Looms for Taiwan after Constitutional Court Ruling

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

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

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

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

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

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

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

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

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

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

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

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

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

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