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NY Family Court Judge Takes Co-Parent Rights a Step Further in Filiation Case

Posted on: June 16th, 2017 by Art Leonard No Comments

Rockland County Family Court Judge Rachel E. Tanguay, ruling on a question of first impression under New York Law, decided that when a lesbian couple had children together and raised them together as a family for several years before splitting up, the co-parent was entitled to an Order of Filiation recognizing her parental status for all purposes. Judge Tanguay’s ruling in A.F. v. K.H., 2017 N.Y. Slip Op. 27196, 2017 WL 2541877 (Fam. Ct., Rockland Co., May 25, 2017), takes New York law one step further than the Court of Appeals’ landmark 2016 decision in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, which had overruled a 25-year-old precedent to hold that a co-parent can seek custody and visitation in such a situation.

A.F. and K.H. became registered domestic partners on August 25, 2005, according to the findings of a Family Court Attorney Referee at an earlier stage of this case, and they decided to have children, with K.H. becoming pregnant through donor insemination with sperm from an anonymous donor. The women had two children whom they raised together until separating in July 2011, ironically right around the time that the New York Marriage Equality Law went into effect.  There was no dispute that they considered each other to be “parents” of both children.  In fact, when the children were born they were given A.F.’s surname. But after the break-up, K.H. resisted A.F.’s assertion of parental rights and even took the step of getting the court to change the children’s surname to hers.  A.F. sued to preserve her contact with the children.

At that time, the binding precedent in New York courts was Alison D. v. Virginia M., 77 N.Y.2d 651, a Court of Appeals ruling from 1991, which had been recently reaffirmed by the court in 2010, under which a person in the position of A.F. was deemed to be a “legal stranger” to the children who did not have standing under the Domestic Relations Law to seek custody or visitation. As a result, A.F.’s lawsuit was unsuccessful, with the Appellate Division affirming the trial court’s dismissal of her case in 2014.  From that point forward, A.F. had no contact with the children until her new lawsuit got underway.

After the Court of Appeals decided Brooke S.B., overruling Alison D. and providing that under certain circumstances a lesbian co-parent would have standing to seek custody and/or visitation with children she had been raising with her former partner, A.F. decided to try again. In her new custody case, she also sought a formal Order of Filiation from the court that would confer on her full parental rights for all legal purposes, not just custody and visitation.  This ultimately was the sticking point in the case, because after it was clear that the Family Court was going to apply Brooke S.B. to allow A.F. to revive her custody and visitation claims, K.H. agreed to a negotiated settlement about custody and visitation.

That left the Order of Filiation as the only issue for Judge Tanguay to decide. K.H., and the attorney appointed by the court to represent the children’s interest, continued to strongly oppose such an order.  Under an Order of Filiation, A.F. would have equal rights to participate in all significant parenting decisions, extending to such matters as education, medical care, inheritance and other circumstances where parental status may be significant, and she could also object to any adoption of the children by a new partner or spouse of K.H.

In Brooke S.B., the court carefully acknowledged “limited circumstances in which such a person has standing as a ‘parent’ under Section 70” of the Domestic Relations Law. “Specifically,” wrote Tanguay, “the Court rejected ‘a test that will apply in determining standing as a parent for all non-biological, non-adoptive, non-marital ‘parents’ who are raising children.”  Instead, in a cautious way, the court narrowed its decision to the precise facts of the case before it, and wrote, “We stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation.”  Seizing upon this language, K.H. argued that the Court of Appeals had not ruled that a person in A.F.’s position was entitled to be recognized as a parent for all purposes.

“At first blush,” wrote Tanguay, “it would appear that the Court of Appeals in Brooke was attempting to limit its holding to conferring standing to a party only.” But, she pointed out, the court reached this point by “broadening the definition of ‘parent’ to include a non-biological, non-legal ‘parent’ under certain circumstances.”  And the court got there by tracing the evolution of case law and statutes, including, of course the 2011 Marriage Equality Act.  Indeed, the Brooke S.B. decision came more than a year after the U.S. Supreme Court ruled that same-sex couples have a constitutional right to marry, in an opinion that stressed the importance to children being raised by same-sex couples of having two legally recognized parents.

In Brooke, itself, Judge Eugene Pigott, concurring with the court, wrote, “Today, a child born to a married person by means of artificial insemination with the consent of the other spouse is deemed to be the child of both spouses, regardless of the couple’s sexual orientation.” So the issue in this case was whether to bring that one step further to cover same-sex couples who had their children and split up before marriage equality was available in New York.  Although A.F. and K.H. were registered domestic partners, that status under local law did not import any legal parental rights, which are a matter of state law.  Ultimately, Judge Tanguay concluded, the lack of a modern statutory scheme that would explicitly handle this situation is “manifestly unfair not only to the non-biological parent, but to the children who deserve to have a two-parent family when same was intended at their conception.”  The best interests of the children should be the overriding factor.

“The majority in Brooke concluded its opinion by stating, ‘We will no longer engage in the deft legal maneuvering necessary to read fairness into an overly-restrictive definition of parent that sets too high a bar for reaching a child’s best interest and does not take into account equitable principles,’” wrote Tanguay, who continued: “This court will not allow legal maneuvering that permits A.F. to be a ‘parent’ for purposes of custody, visitation and child support, but without more.  It is simply inequitable, and not consistent with prevailing common law as set for herein.”

She granted A.F.’s petition and decreed that the court “issue an Order of Filiation for each child listing A.F. as their legal parent forthwith.”

A.F. is represented by Sherri Donovan of New York City. K.H. is represented by Adrienne J. Orbach of White Plains.  Shiza Khan of New City, N.Y., served as appointed Attorney for the Children.  K.H. was given 30 days to take an appeal from this decision, which was issued on May 25.  An appeal would not delay A.F.’s contact with the children, since the parties had stipulated an agreed-upon arrangement, so the only issue on appeal would be whether A.F. will be accorded all parental rights through the Orders of Filiation.

After Half a Century, Surviving Same-Sex Partner Tries to Inherit His Partner’s Estate

Posted on: October 25th, 2016 by Art Leonard No Comments

It seems that anything that could go wrong did go wrong – legally speaking, that is – when William Cornwell died on June 19, 2014, believing he had made a will leaving his entire estate to Thomas Doyle, the man with whom he had shared his life for more than half a century. Cornwell had not involved a lawyer in preparing and signing the will, apparently, because no lawyer would have made the simple mistake he made: getting only one person to witness the will.  After Cornwell died, Doyle turned to Sheila McNichols, Cornwell’s niece and a longtime friend to the two men, “for comfort, support and advice,” said Doyle in a sworn petition filed this month in the New York County Surrogate’s Court.  He showed her the will, and she suggested taking it to her lawyer, Peter Gray, to handle probate.

 

Gray immediately saw the problem. The New York courts will not accept a will unless there are at least two sworn witnesses to the signing.  Indeed, the will form that Cornwell used had spaces indicated for two witness signatures, but one was blank.  The instruction sheet that came with the will form did not specifically say that two witnesses were required, although the instructions referred to witnesses in the plural several times.  Gray advised Doyle that the will could not be accepted for probate, and because the men had never married, Doyle had no rights as a surviving unmarried partner.  The estate would go to Cornwell’s intestate heirs, two nephews and two nieces, all living in California, three of whom had virtually no relationship with Cornwell or Doyle.

 

This was a big blow to Doyle, now 85, because his living arrangements depended crucially on the rental income from the other apartments in the West Village brownstone on Horatio Street where he and Cornwell had lived together since 1961, and his ability to continue occupying the ground floor apartment without paying rent. Although they had moved in as tenants after living together elsewhere beginning in 1958, in 1979 the owner decided to sell the building and Cornwell, who had greater resources to finance the purchase, bought it, setting up a corporate entity to own and operate it, and putting Doyle on the board. That building and the rental income it generates is the estate’s main asset.  Cornwell and Doyle had lived on their social security checks and the rental income.  Now Doyle was reduced to his individual monthly social security check (smaller than Cornwell’s, because Cornwell had the good paying job while Doyle was a freelancer with sporadic income), having no pension or other resources.

 

Although the men lived together and considered themselves spouses, they had never taken any step to formalize their relationship. In the time they lived together, New York City had passed a domestic partnership ordinance in the 1990s, then in this century surrounding states and finally New York State in 2011 had changed their laws to allow same-sex couples to marry, but these men never registered their partnership or formally married.  Doyle says they were planning to marry, and had even purchased rings in anticipation of a ceremony, but in the end it seemed too much of an effort, as Cornwell was in poor health for some time prior to his death. The only legal documents of their relationship are health care proxy forms the men had made in 2002 (properly witnessed by two people, by the way), and joint bank account statements.

 

According to Doyle, McNichols told him that she felt this situation wasn’t right, Doyle should not be shut out after more than 50 years. She retained Gray to draft an agreement by which the heirs would renounce their interest in the estate in favor of Doyle, and provide that the ownership of the building would go to Doyle as well.  At the same time, Doyle would execute a will leaving everything to McNichols.  This plan seems to have proceeded at first, since Doyle’s attorney attached to the petition a copy of McNichols’ signed agreement to renounce her inheritance, as well as an affidavit she signed for filing in the probate court. Doyle swears that he trusted and relied on McNichols to help him with decisions, named her as his power of attorney and made her joint owner of his bank account.  He depended on her to convince the other relatives to fall in with this plan.

 

But the other heirs were not willing to go along with it. Doyle claims that the two nephews had never even met Cornwell, and the other niece only met him fleetingly as a child, and none of them knew Doyle. Evidently the allure of a monetary windfall from a “rich uncle” was too powerful. Suddenly, Doyle was confronted with the contention that the papers McNichols signed were not valid, merely “samples,” that McNichols and one of the nephews had been appointed by the Surrogate to administer the estate, to sell the brownstone, and to split up the proceeds among the heirs.  Indeed, according to a New York Times article published on October 23, the building is now in contract for about $7 million.  The Times also reports (although Doyle does not mention it in his petition), that the nieces and nephews offered to let Doyle continue living in the building by including a clause in the sales contract under which he can stay for up to five years at a nominal rent of $10 a month, and that he would receive $250,000 from the proceeds of the sale, but Doyle, stiffened by the heirs’ resistance, decided to sue for the full inheritance he claims Cornwell intended to leave him.

 

Although he didn’t have a retainer agreement with Gray, Doyle says he regarded Gray as his attorney and trusted him to advise on how to protected his legal rights, but Gray never suggested any legal strategy to advance Doyle’s claim. Doyle says that some friends suggested he get another legal opinion, so he spoke with Polly Eustis, who confirmed Gray’s opinion that Doyle had no standing to inherit Cornwell’s estate.  Eventually, however, he found Arthur Schwartz and Jamie Wolf, his current attorneys, who have devised a new strategy on his behalf.

 

It seems that Doyle and Cornwell had gone to Pennsylvania in 1991 to purchase a show dog together, and Doyle has the American Kennel Club registration certificate with the date of the sale, listing the two men as the owners. He also claims that they had a good friend in New Hope whom they visited several times on vacations.  The significance of this is that under Pennsylvania law until January 2005, cohabiting individuals who spent time together in that state could be considered to have a common law marriage, and New York courts have recognized Pennsylvania common law marriages in determining whether an individual who was not formally married to a partner is to be considered a surviving spouse.  Doyle’s lawyers have constructed an intricate argument based on New York and Pennsylvania cases seeking to persuade the Surrogate’s Court that Doyle should be recognized as Cornwell’s sole heir, the surviving spouse of a man who had no children, and thus should inherit the entire estate.  Their argument crucially depends on a court retroactively applying last year’s Supreme Court Obergefell marriage decision more than a decade into the past in order to find that two men spending time living together in Pennsylvania prior to 2005 had a common law marriage that New York will recognize.  The will that Cornwell signed may not be admissible for probate, but it would be admissible as evidence to support Doyle’s claim that the two men considered themselves to be married and that Cornwell planned to leave everything to Doyle.

 

This is a difficult argument to make in retrospect, so Schwartz and Wolf face an uphill battle in the Surrogate’s Court. Doyle’s petition is vague on some of the kinds of facts that would be helpful to his case, such as exactly when and for how long he and Cornwell stayed in New Hope on their vacation trips.  All the affidavits submitted with the Petition to bolster his case come from Doyle’s relatives and neighbors in New York.  There are no affidavits from anybody in Pennsylvania to corroborate Doyle’s recollections about those trips.  The affidavit by Sheila McNichols, signed two years ago, refers to the men as lifetime partners and domestic partners, but not as spouses.    This isn’t surprising, since it was prepared under Gray’s supervision, before Doyle met his current lawyers, who first suggested the common law marriage theory after interviewing Doyle about the details of his relationship with Cornwell and their lives together.  New York court decisions have accepted common law marriage arguments based solely on the testimony of the alleged surviving spouse, but the cases have usually mentioned more details that a court would likely rely upon to support marital intent, such as the couple having had a religious ceremony or exchanged rings before a gathering of friends.

 

Doyle’s lawyers will also have to convince the court to waive various deadlines that were missed while Doyle was letting McNichols and Gray take the lead in handling the estate affairs. Doyle’s claim should have been filed shortly after Cornwell’s death, not more than two years later, but he argues in his petition that he only recently learned from his current attorney about his legal right as a common law surviving spouse.  In a written argument accompanying the petition, Schwartz and Wolf contend that Doyle had reasonably relied on Gray and McNichols’ assurances that he would be taken care of, and he “did not think that he needed to pursue any sort of litigation to inherit from this estate.”

 

There are plenty of cautionary tales here for couples in similar situations. If significant property is involved in a relationship, getting a competent lawyer to prepare and supervise the execution of legal documents (including wills) is essential.  Whether to marry is a decision that couples need to weigh carefully, but the benefits in terms of inheritance rights are substantial, especially taking into account the spousal deduction if an inheritance will be large enough to generate federal or state tax liability.  Even at the mundane level, surviving spouses may get a death benefit from social security or from the decedent’s employer’s benefits plan, and monthly social security payments at the higher rate enjoyed by their deceased spouse.  These men first got together when these things weren’t spoken about, and the idea of same-sex marriage seemed a pipe dream in 1958!  Unfortunately for Doyle, they failed to keep up with the times.

 

The case is pending before New York County Surrogate Nora Anderson, who signed the document appointing the co-administrators and authorized the sale of the building.

 

Mass. SJC Rules Affirmatively on Same-Sex Partner Parentage Claim in Partanen v. Gallagher

Posted on: October 5th, 2016 by Art Leonard No Comments

The Massachusetts Supreme Judicial Court (SJC) ruled on October 4 that the former same-sex partner of a woman who gave birth to two children through donor insemination during the women’s relationship can seek to establish full legal parentage of the children under the state’s statute concerning parentage of children born out of wedlock. Partanen v. Gallagher, SJC-12018, 2016 Mass. LEXIS 759, 2016 WL 5721061.

Although the state’s courts have in the past recognized various rights for co-parents in similar cases using a “de facto parent” concept, this unanimous ruling is the SJC’s first to take advantage of a law providing that “words of one gender may be construed to include the other gender and the neuter” to adapt a statute that was originally intended to allow unmarried men to establish their paternity of children born “out of wedlock” to their women companions, and to repurpose the statute as a vehicle to establish parental rights for unmarried same-sex partners.

Justice Barbara Lenk wrote for the unanimous seven-member court.

Karen Partanen and Julie Gallagher began their “committed relationship” as a couple in Massachusetts in 2001. The next year they moved to Florida, where they bought a house together in 2003.  In 2005 they decided to use donor insemination to have children.  The plan was for each of the women in turn to be inseminated.  Partanen’s attempt in 2005 was unsuccessful, but Gallagher’s subsequent attempt was successful and she gave birth to their daughter in 2007.  Gallagher was inseminated again in 2011, giving birth to a son.

These procedures were performed with the full cooperation and involvement of Partanen, who was present at the birth of the children. Partanen did not adopt the children, although in 2010 a Florida appeals court struck down the state’s statutory ban on gay people adopting children, but, according to her complaint in this lawsuit, she was fully involved as a parent, including personal contact, financial support, and decision-making.

After their son was born, the family moved back to Massachusetts. Although by then same-sex marriage was legal in Massachusetts, they did not marry. Shortly after the move, they ended their relationship and Partanen moved out.  She filed an action to establish “de facto” parentage in February 2014, requesting visitation and shared custody.  In September 2015, a Family Court judge ruled that she was a “de facto” parent, ordered visitation, and required her to pay child support to Gallagher.  An appeal of that ruling is pending.  Meanwhile, however, in October 2014 Partanen filed a separate action “to establish [full legal] parentage,” which Gallagher moved to dismiss, arguing that “full parentage” could only be achieved under the paternity statute by a biological parent.  Probate and Family Court Judge Jeffrey A. Abber granted Gallagher’s motion to dismiss the parentage case.

If one reads the relevant statute without taking into account the state’s general statutory directive on gender neutrality in interpretation, one could easily see the basis for Judge Abber’s ruling. The provision falls within the chapter of the state’s laws titled “Children Born Out of Wedlock,” Chapter 209C.  The statute extends to “children who are born to parents who are not married to each other.”  The various sections refer to “paternity” and authorize the courts to determine whether somebody is a child’s legal father. The statute recognizes a “presumption of paternity” in various situations.  The one most relevant here is that “a man is presumed to be the father of a child” that is born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

Gallagher argued, and the trial judge agreed, that this statutory scheme was not intended to provide a vehicle for somebody to establish legal parental rights over a child to whom the party was not biologically related. The SJC disagreed, pointing out that the statute does not state anywhere that the person seeking to establish parental rights has to be biologically related to the child.  “While the provisions at issue speak in gendered terms,” wrote Justice Lenk, “they may be read in a gender-neutral manner, to apply where a child is ‘born to [two people],’” not just a man and a woman, and the child “is received into their joint home, and is held out by both as their own child.”  Consequently, she wrote, “The plain language of the provision, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”

Furthermore, such an interpretation was in accord with the overall purpose of the statute, which, as “laid out in its first sentence, is to provide all ‘children born to parents who are not married to each other’ . . . the same rights and protection of the law as all other children.”

The court strengthened its interpretation with a telling analogy to the use of reproductive technology by different-sex couples. Clearly, a cohabiting but unmarried man and woman who resort to donor insemination to conceive a child because the man is infertile could make use of this statute to establish the man’s paternity without any express requirement in the statute that he prove a biological relationship to the child.  That is, in fact, one of the normal uses of the statute.  If the legislature intended to make sure that all children born to unmarried parents have the same rights, shouldn’t children born to unmarried same-sex couples have the same rights as well?

“Here, had [the children] been born to a married couple using artificial reproductive technology, they would have had two parents to provide them with financial and emotional support,” wrote Justice Lenk. “We decline to read into the statute a provision that leaves children born to unmarried couples, using the same technology, with only one parent.”

Furthermore, she pointed out that the court had in the past recognized an interpretation of another provision that also would “recognize parentage in the absence of a biological relationship,” a provision under which parentage may be established through a “written voluntary acknowledgment of parentage executed jointly by the putative father and the mother of the child.” The court held years ago that such an acknowledgment does not require that the putative father have any genetic relationship to the child.  Under this ruling, same-sex couples can avail themselves of the same provision.  This only works, of course, if both parents are willing to sign such a document.

Gallagher argued that because Partanen lacks a biological connection to the children, they were not “born to” her, and thus do not fall within the scope of the statute. She bolstered this argument by referring to a provision authorizing the family court to order genetic testing of the putative father on a “proper showing” by the moving party.  That provision was clearly intended to allow single mothers seeking child support from the biological fathers of their children to prove genetic paternity in order to subject the men to their parental support duty.  “Where, as here, the parentage claim is not based on a genetic relationship,” wrote Justice Lentz, “Gallagher, as a moving party, cannot show such testing would be relevant to the claim at issue, and therefore, no ‘proper showing’ is possible.”

Ultimately, the court concluded that the facts alleged by Partanen in her complaint should have been sufficient to withstand Gallagher’s motion to dismiss the claim, and if upon remand the trial court finds the factual allegations to be true, Partanen will enjoy the presumption of parentage authorized by the statute and can seek visitation and custody on the same basis as any other person who is presumed to be a parent. If the Family Court judge finds it to be in the best interest of the children, Partanen would be awarded the same custody and visitation rights that any legal parent could seek after parents have ended their relationship with each other.

Although Massachusetts courts had previously recognized the ability of same-sex partners to seek “de facto” parental status, which accorded some rights, the court emphasized that full legal parentage involves the same rights that a biological or legal adoptive parent would enjoy.

The court did not rule on alternative constitutional claims raised by Partanen, resting its decision entirely on construction of the Massachusetts statutes. The court’s opinion does not mention any attempt by Gallagher to argue that treating Partanen as a presumptive parent would violate Gallagher’s constitutional due process rights as a “natural parent,” so it is unlikely that she would be able to seek U.S. Supreme Court review of this decision.

Mary Bonauto, the Civil Rights Project Director at GLAD: Legal Advocates & Defenders, the Boston-based New England GLBT rights public interest law firm, represents Partanen with co-counsel Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier and Joyce Kauffman. Bonauto gave the oral argument in the U.S. Supreme Court in 2015 that led to nationwide marriage equality in Obergefell v. Hodges, and she also argued to the Massachusetts SJC in 2003, resulting in the nation’s first affirmative marriage equality ruling by a state’s highest court.

Jennifer M. Lamanna represents Gallagher. The SJC received amicus briefs, all in support of Partanen’s appeal, from: C. Thomas Brown for Greater Boston Legal Services; Emily R. Shulman, Brook Hopkins, and Adam M. Cambier for the American Academy of Assisted Reproductive Technology Attorneys; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer for the Massachusetts Attorney General’s Office; and Shannon Minter, Marco J. Quina, and Emma S. Winer for a group of law professors specializing in family law issues.  The case seems to have flown below the radar of groups that usually file opposition amicus briefs in such cases.

New York Court of Appeals Overrules Alison D., Sets New Test for Co-Parent Standing

Posted on: August 30th, 2016 by Art Leonard No Comments

The New York Court of Appeals has overruled a quarter-century-old precedent, establishing a new rule for determining when somebody who is neither a biological nor an adoptive parent can seeking custody of a child. The opinion for the court by Judge Sheila Abdus-Salaam in Brooke S.B. v. Elizabeth A. C.C., 2016 N.Y. LEXIS 2668, 2016 Westlaw 4507780 (August 30, 2016), provides that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law Section 70.”

The court was ruling on two cases which originated with similar facts but then developed in different directions. According to the plaintiff’s petition in Brooke V. v. Elizabeth C.C., the women began their relationship in 2006, announced their “engagement” the following year, and then decided to have and raise a child together.  Elizabeth became pregnant through donor insemination and bore a son in June 2009.  Brooke and Elizabeth lived together with the child, sharing parental duties, until their relationship ended in 2010.  Elizabeth permitted Brooke to continue visiting with their son until the relationship between the women deteriorated, and Elizabeth terminated Brooke’s contact in 2013.  Brooke sued for joint custody and visitation rights, but the trial court and the Appellate Division agreed with Elizabeth’s argument that by virtue of the old Court of Appeals ruling, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), Brooke could not bring the lawsuit because she was neither the biological nor the adoptive parent of the child.  Brooke appealed to the Court of Appeals, asking it to overrule Alison D.

Although the term “parent” is not defined in the Domestic Relations Law provision that authorizes lawsuits for custody and visitation, it was defined by the Court of Appeals in Alison D. to be limited to biological or adoptive parents.  At that time, New York did not allow same-sex marriages or second-parent adoptions, so the ruling effectively precluded a same-sex co-parent from seeking joint custody or visitation after a break-up with the biological parent, in the absence of “extraordinary circumstances” recognized in some other cases decided by the Court of Appeals.  The court specifically ruled that the facts of Alison D. (similar to the Brooke B. case) did not constitute such “extraordinary circumstances.”

In the other case, Estrellita A. v. Jennifer D., the women began their relationship in 2003, registered as domestic partners in 2007, and then agreed to have a child together, with Jennifer becoming pregnant through donor insemination.  They agreed that they would obtain sperm from a Latino donor, matching Estrellita’s ethnicity.  Their daughter was born in November 2008. They lived together as a family for the next three years until the women’s relationship ended and Estrellita moved out in September 2012.  Estrellita continued to have contact with the child with Jennifer’s permission.  In October 2012, Jennifer started a proceeding in Family Court seeking child support payments from Estrellita.  Estrellita responded by petitioning for legal visitation rights.  The Family Court granted Jennifer’s petition for support, finding that “the uncontroverted facts established” that Estrellita was “a parent” of the child, and so could be held liable to pay child support.  However, responding to Estrellita’s petition for visitation, Jennifer argued that the Alison D. precedent should apply to block her claim.  The Family Court disagreed with Jennifer, finding that having alleged that Estrellita was a parent in order to win child support, she could not then turn around and deny that Estrellita was a parent in the visitation case.  The Family Court applied the doctrine of “judicial estoppel” to preclude Jennifer from making this inconsistent argument, and concluded after a hearing that ordering visitation was in the child’s best interest.  The Appellate Division affirmed this ruling, and Jennifer appealed.

Judge Abdus-Salaam’s decision refers repeatedly to the dissenting opinion written by the late Chief Judge Judith Kaye in the Alison D. case.  Judge Kaye emphasized that the court’s narrow conception of parental standing would adversely affect children being raised by unmarried couples, thus defeating the main policy goal of the Domestic Relations Law, which was to make decisions in the best interest of the child.  By adopting this narrow decision, the court cut short legal proceedings before the child’s best interest could even be considered.  Unfortunately, Judge Kaye passed away before learning that her dissent would be vindicated in this new ruling.  However, her dissent from the Court of Appeals’ refusal in Hernandez v. Robles to rule for same-sex marriage rights was vindicated in 2011 when the legislature passed the Marriage Equality Act, and she also lived to see her legal reasoning vindicated by the U.S. Supreme Court in Obergefell v. Hodges, which referred to her Hernandez dissent.

Judge Abdus-Salaam pointed out that Judge Kaye’s arguments in 1991 were even stronger today, with the growth of diverse families and the large numbers of children living in households headed by unmarried adults. She referred to a concurring opinion in a case decided by the court five years ago, in which then Chief Judge Jonathan Lippman and Associate Judge Carmen Ciparick (both since retired from the court) had argued that the Alison D. ruling “had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent,” and asserting that Alison D. was inconsistent with some subsequent rulings.  That concurring opinion called for a “flexible, multi-factored” approach to decide whether there was a parental relationship between a child and an adult outside the narrow definition of Alison D.  In that same case, Judge Robert Smith (also now retired) argued that an appropriate test for parental status would focus on whether “the child is conceived” through donor insemination “by one member of a same-sex couple living together, with the knowledge and consent of the other.”

Acknowledging a body of court precedent recognizing the strong constitutional rights of biological parents, the Court of Appeals decided in its August 30 decision to take a cautious approach. Although some of the parties to the case urged the court to adopt an expansive, one-size-fits-all test for determining the standing of persons who are not biological or adoptive parents, the court decided to focus on the facts of these two cases, in both of which the plaintiffs had alleged that they had an agreement with their same-sex partner about conceiving the child through donor insemination and then jointly raising the child as co-parents.  The court left to another day resolving how to deal with cases where a biological parent later acquires a partner who assumes a parental role towards a child, or where a child is conceived without such an advance agreement.

Another sign of the court’s caution was its decision that the plaintiff would have to show by “clear and convincing evidence” that such an agreement existed. The normal standard of proof in civil litigation is “preponderance of the evidence,” which means the plaintiff would have to show that it was “more likely than not” that such an agreement existed.  Demanding “clear and convincing evidence” was an acknowledgment of the strong constitutional rights that courts have accorded to biological parents in controlling the upbringing of their children, including determining who would have visitation rights.  The U.S. Supreme Court emphasized this several years ago, when it struck down a Washington State statute that allowed anybody, regardless of legal or biological relationships, to petition for visitation upon a showing that it was in the best interest of the child.  Judge Abdus-Salaam emphasized the necessity of showing an agreement, that the biological parent had consented in advance to having a child and raising the child jointly with her partner.

The court decided this case without the participation of Judge Eugene Fahey. Four other members of the court signed Judge Abdus-Salaam’s opinion.  All of these judges were appointed by Governor Andrew Cuomo, a Democrat.  The other member of the court, Judge Eugene Pigott, who was appointed by Governor George Pataki, a Republican, and whose term expires this year, wrote a separate opinion, concurring in the result but disagreeing with the majority about overruling Alison D. v. Virginia M.

Judge Pigott pointed out that the Alison D. decision had been reaffirmed several times by the court, most recently just five years ago in a ruling that praised Alison D. as creating a “bright line test” that avoided unnecessary litigation and uncertainty about parental standing.  In that case, Debra H., the court decided on alternative grounds that a co-parent could seek visitation because the women had entered into a Vermont civil union before the child was born, thus giving equal parental rights under Vermont law to which New York could extend comity.

Judge Pigott argued that since we now have marriage equality and co-parent adoption in New York, and the Marriage Equality Law requires that same-sex marriages get equal legal treatment with different-sex marriages (including application of the presumption that a child born to a married woman is the legal child of her spouse), same-sex couples stand on equal footing with different sex couples and have no need for any modification of the definition of “parent” established by Alison D.   Nonetheless, he joined the court’s disposition of these two cases.  In %Estrellita v. Jennifer%, he agreed that it was appropriate to apply judicial estoppel and hold that Estrellita’s status as a parent had been established in the support proceeding and could not be denied by Jennifer in the visitation proceeding.  In the case of Brooke v. Elizabeth, he would apply the doctrine of “extraordinary circumstances” under which the trial court can exercise equitable powers to allow a non-parent who has an established relationship with a child to seek custody.  The “extraordinary circumstance” here would be one of timing and the changing legal landscape between 2006 and 2013, making it appropriate to allow Brooke to seek joint custody and visitation if she can prove her factual allegations about the women’s relationship.  Judge Pigott apparently sees this case as presenting a transitional problem that is resolved by changes in the law after these women had their children.

In the Brooke case, Susan Sommer of Lambda Legal represents Brooke with co-counsel from Blank Rome LLP and the LGBT Bar Association of Greater New York, Sherry Bjork represents Elizabeth, and Eric Wrubel serves as court-appointed counsel for the child.  In the Estrellita case, Andrew Estes represents Estrellita, Christopher J. Chimeri represents Jennifer, and John Belmonte is appointed counsel for the child.  The court received amicus briefs on behalf of the National Association of Social Workers, the National Center for Lesbian Rights, the New York City and State Bar Associations, the American Academy of Adoption Attorneys, Sanctuary for Families, and Lawyers for Children.   By interesting coincidence, Lambda Legal had represented the plaintiff in Alison D. v. Virginia M. twenty-five years ago, with its then Legal Director, the late Paula Ettelbrick, arguing the case before the Court of Appeals.

N.Y. Surrogate Denies Second-Parent Adoption for Married Lesbian Mom

Posted on: January 28th, 2014 by Art Leonard No Comments

Claiming that a married lesbian had no need to adopt the child born to her same-sex spouse, Kings County (Brooklyn) Surrogate Court Judge Margarita Lopez Torres refused to entertain her adoption petition in Matter of Seb C-M, NYLJ 1202640083455 (Jan. 6, 2014).

Torres reasoned that under New York’s Marriage Equality Law, same-sex marriages enjoy the same presumptions of parental status that are accorded to different-sex marriages. Thus, a child born to a married woman is presumed to be the legal child of that woman’s spouse, and the names of both spouses are placed on the birth certificate as a matter of course. That being the law in New York, Judge Torres said that an adoption decree to document the petitioner’s parental status was “neither necessary nor available.”

Judge Torres’s decision flies in the face of advice that LGBT lawyers routinely give to women in this situation. Although the couple here, A.C. and M.M., were married in Connecticut in 2011, and their marriage has been legally recognized in New York even before the passage of the Marriage Equality Law under court decisions dating back to 2008, and the birth certificate of their son records both their names as parents, they are living in a country with a patchwork of marriage recognition, in which more than thirty states ban recognition of same-sex marriages, whether by constitutional amendment, statute or both. Several lawsuits are now on file challenging refusals to recognize same-sex marriages, but a definitive ruling on the issue may be years away. In the meantime, it is well established in the law that a judicial adoption decree will be given full faith and credit by the courts of other states, even if those states would not themselves allow same-sex second-parent adoptions, so an uncontested adoption proceeding is generally advised for such couples who want to minimize the risk of complications when traveling or relocating across state lines. If their parental status is challenged, they can produce a court order establishing and recognizing that status, which is likely to be respected.

Judge Torres identified the purpose of an adoption proceeding being “to create a new legal relationship where one did not previously exist,” quoting from a prior decision by New York County Surrogate Kristin Booth Glen in which, ironically, she granted a second-parent adoption petition in 2009. In that case, Surrogate Glen wrote, “Adoption is not utilized for, nor is it available to reaffirm, an already existing parent/child relationship.” But, as Surrogate Torres pointed out in a footnote, Surrogate Glen was dealing with a different case, in which the petitioning second-parent had no pre-existing legal parental relationship with the child that would be recognized under New York law, so adoption was an appropriate remedy in that case to solidify the legal status of the family headed by a same-sex couple who had married in the Netherlands.

Judge Torres said that prior to the New York precedents recognizing out-of-state same-sex marriages and the passage of the Marriage Equality Law, she would have “without any hesitation whatsoever” approved this adoption petition. But, she said, “today no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship between the petitioner and her son. Indeed,” she continued, “were this court to entertain the instant petition, such action would imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained, and that, although legally recognized in this state, a same-sex marriage remains somehow insufficient to establish a parent-child relationship between one particular parent and any child born within that marriage, thereby raising equal protection concerns.”

This is fine as far as it goes. Surrogate Torres is according the marriage of A.C. and C.M. true equality, as it is entitled to receive under New York law. But as a practical matter, such true equality exists, as it were, in a bubble consisting of the states in which same-sex marriages are recognized, and we live in a mobile society in which movement in and out of that bubble is predictable. Judge Torres notes a recent Ohio federal court decision (now under appeal to the 6th Circuit Court of Appeals) ordering Ohio to recognize an out-of-state same-sex marriage on equal protection grounds, as exemplary of the “tectonic shifts occurring in the geography of our culture’s definition of ‘family,’ particularly with respect to the increasing recognition of the right to marriage equality and adoption by same-sex families, as well as the ethical complexities arising from assisted reproductive technology.”

Perhaps Judge Torres is operating under a misapprehension about how other states are likely to react to a same-sex couple traveling through their borders with a child. While stating that she is “wholly sympathetic to the concerns of families of same-sex couples who may wish or need to relocate” to non-recognition jurisdictions, she predicts that a state that would not recognize their marriage would be “equally likely to deny full faith and credit to decrees of adoption issued to same-sex couples by a New York Surrogate’s Court.” Actually, that does not seem to be the case, as courts in non-marriage recognition states have thus far recognized their constitutional obligations to honor adoption decrees, which is precisely why LGBT lawyers recommend this second-parent adoption route to their married clients.

While Judge Torres’s ruling may be seen as further confirmation of the equal marriage rights hard-won by New Yorkers, it unnecessarily cuts off a procedure that may prove vitally important to LGBT families as they travel about the country — at least until the final triumph of marriage equality ultimately negates the non-recognition problem.

New York Appeals Court Allows Breach of Contract Claim on Alleged Joint/Venture Partnership Agreement of Lesbian Couple

Posted on: November 14th, 2013 by Art Leonard No Comments

A panel of the New York Appellate Division, 2nd Department, in Brooklyn, ruled on November 13 that a lesbian can sue her former same-sex partner for breach of an alleged contract that they would share assets equally, including retirement contributions and earnings, after their relationship ended.   While agreeing with the trial judge, Kings County Supreme Court Justice Yvonne Lewis, that plaintiff Laura Dee could not pursue an equitable claim on theories of constructive trust, unjust enrichment or action for an accounting, Justice Leonard B. Austin wrote for the court that Dee’s allegations provided a sufficient basis for a breach of contract claim.  One member of the four-judge panel, Presiding Justice Mark C. Dillon, wrote a dissenting opinion asserting that Dee had failed to allege that the parties had any agreement about what would happen if their relationship ended.

Laura Dee and Dena Rakower “lived together in a committed, same-sex relationship for nearly 18 years,” according to Justice Austin’s opinion.  They raised two children together.  Each of them was the biological mother of one of the children and the adopted mother of the other.  In 1996 they purchased a house as “joint tenants with rights of survivorship.”  After their first child was born, Dee alleges that they decided, in light of the cost of child care, that she would give up her full-time job and work part-time so that she could “be home with the child (later, children) and perform other non-financial services for the benefit of the family and for the parties’ partnership and/or joint venture.”  Rakower would continue working full-time.

Dee claimed that there was a mutual unwritten agreement about shared assets.  That is, they recognized that Dee would be making a non-economic contribution to the relationship by staying home to care for their children, and that Rakower “would be earning more income for, and [Dee] would be contributing more non-financial services to, the parties’ partnership/joint venture.”  Consequently, Dee claims, the women “specifically agreed to share equally in all financial contributions made by each of them and that such contributions were for their mutual benefit.”  As Justice Austin describes Dee’s allegations, “the parties allegedly specifically discussed that [Rakower] would continue to accrue retirement savings while [Dee] would no longer be able to, and agreed that [Dee] would be entitled to one half of [Rakower’s] retirement contributions and earnings for the period that [Dee] did not work at a job that provided her with a retirement plan.”  The parties split up before New York enacted marriage equality, so they were never married and could not use the state’s Equitable Distribution Law as a basis to divided up assets upon termination of their relationship.

Dee filed suit after the split-up, claiming, among other things, that she was entitled to have an accounting of the amount of money to which she was entitled under this agreement, and to have Rakower pay it over to her, either on a theory that Rakower had a contractual duty to do so, or alternatively that Dee had an equitable claim to the money.  Dee’s equitable claim pursued alternative theories: either that Rakower be treated as holding Dee’s share of the assets as a constructive trustee for Dee, or that Dee was entitled to the money on the theory that allowing Rakower to retain it under the circumstances would be unjust enrichment of Rakower.

Justice Lewis of Supreme Court in Brooklyn granted Rakower’s motion to dismiss these claims entirely, concluding that Dee’s factual allegations did not support any of these legal theories.

Reversing Justice Lewis on the contract claim, Justice Austin wrote, “These factual allegations adequately set forth the existence of a contract pursuant to which the plaintiff would quit working full-time, thereby ceasing to earn money toward her own retirement plan, and pursue part-time work enabling her to stay home to care for the parties’ children, in exchange for a one-half share in the defendant’s retirement accounts accrued during those years that the plaintiff refrained from working at a job which provided retirement benefits.”   These allegations, if proven at trial, would sufficiently show that each party assumed an obligation to the other for their mutual benefit, the essence of a contractual agreement.  Since Dee also alleged that Rakower breached their agreement by refusing her request for the money, the basic elements of a breach of contract claim were met.  Rakower, of course, is denying these allegations, but that is not relevant when the issue is whether the court should dismiss the case before trial for failure by the plaintiff to allege the necessary facts to state a legal claim.

“The fact that the alleged agreement was made by an unmarried couple living together does not render it unenforceable,” Austin wrote, pointing to an important 1980 decision by the New York Court of Appeals, Morone v. Morone, which established that such agreements between cohabiting unmarrid couples could be enforceable as contracts, “provided only that illicit sexual relations were not part of the consideration of the contract.”  Justice Austin found this case sufficiently similar to Morone to come within the scope of that precedent.

In his dissent, Justice Dillon argued that even if there was some oral agreement, it was not clear from Dee’s allegations that the parties had specifically agreed about what would happen if their relationship ended.  Giving a close reading to Dee’s allegations, he saw only an agreement that within their relationship there would be a sharing of assets, with each party’s contributions, whether economic or non-economic, being for the joint benefit of both of them.  Dillon argued that the court could not make a contract for the parties, only enforce whatever contract they actually made, and he did not think that Dee had alleged any specific agreement about what would happen if their relationship ended.

Austin’s responded that Dee’s allegations were sufficient, writing, “The plaintiff’s failure to specifically allege that there was a ‘meeting of the minds’ as to how the assets would be distributed upon the termination of the parties’ relationship does not compel the conclusion that the complaint fails to state a cause of action to recover damages for breach of contract.  There is no requirement that a breach of contract cause of action include such an allegation in order to survive a motion to dismiss . . .  where the complaint sets forth all of the elements necessary to plead a breach of contract cause of action.”  Austin found that Dee’s allegations included “sufficient definiteness to the material terms of the alleged agreement between the parties to establish an enforceable contract.”  That is, if a court ultimately found at trial that a contract was made, Dee’s allegations, together with evidence offered at trial, could provide the basis for a court to decide what to award as damages.

As to the constructive trust theory, Austin found that Rakower had correctly responded in this appeal that under the Employee Retirement Income Security Act, the money in her retirement account could not be subjected to a constructive trust.  Even though she hadn’t made that argument to Justice Lewis, “it is a legal argument that appears on the face of the record and could not have been avoided had it been brought to the attention” of the trial judge.  Austin also found that Dee had failed to allege that Rakower had been enriched at Dee’s expense, a necessary allegation for an unjust enrichment case.  He also found that Dee’s allegations fell short of those necessary for an equitable action for an accounting.

Thus the equitable claims are out of the case, but the breach of contract claim is revived for trial.  Dee also asserted other claims against Rakower, not specified in the appellate court’s opinion, so the case now resumes in Supreme Court in Brooklyn, including the contracts claim.

Michele Kahn represents Dee and David P. Rubinstein represents Rakower in this litigation.

Court Awards Survivor’s Benefits to Same-Sex Spouse

Posted on: July 30th, 2013 by Art Leonard No Comments

U.S. District Judge C. Darnell Jones, II (E.D.Pa.), ruled July 29 that the federal Employee Retirement Income Security Act (ERISA) should be construed, now that DOMA Section 3 has been declared unconstitutional, to recognize a same-sex marriage for purposes of an employee benefit plan when the married couple resided in a state that recognized the validity of the marriage.  The ruling means that Jennifer J. Tobits will be entitled to a survivor’s benefit under the Profit Sharing Plan maintained by a Philadelphia-based law firm, Cozen O’Connor PC, which had employed her late wife, Sarah Ellyn Farley, in its Chicago office.  Tobits and Farley married in Canada in 2006, and lived together in Illinois.  Cozen O’Connor v. Tobits, 2013 U.S. Dist. LEXIS 105507.

Farley was diagnosed with cancer shortly after the women were wed, and she passed away on September 13, 2010.  Shortly after her death, Farley’s parents, who had not approved of her relationship with Tobits, presented Cozen O’Connor with a form dated September 12, 2010, which they represented to be a designation by their daughter of them as her beneficiaries entitled to the survivor’s benefit, which the court says amounts to about $49,000.  Tobits also submitted a claim for the benefits, based on her status as surviving spouse of Farley.

The Cozen O’Connor Profit Sharing Plan provides for retirement annuities for participants.  If a participant dies prior to retirement, the annuity payment they earned goes to their surviving spouse, unless the spouse has approved the participant’s determination to designate somebody else as the beneficiary.  Tobits never approved any designation of Farley’s parents as beneficiaries, and she disputed the validity of the designation form they presented, purportedly executed the day prior to Farley’s death.

Cozen O’Connor, caught in the middle of clashing claims, and confronting the definition of “spouse” under federal law as set forth in Section 3 of the Defense of Marriage Act, filed a suit in the U.S. District Court in Philadelphia, seeking a judicial determination of who is entitled to the benefit.  This kind of lawsuit is called an “interpleader action,” in which a party who has a financial obligation to two or more others can file an action in which the potential creditors are drawn in as defendants and will be bound by the determination of the court.

The Farleys, relying on Section 3 of DOMA as providing the definition of “spouse” for purposes of a federally-regulated employee benefit plan, argued that their daughter had died without leaving a legally recognized spouse.  Thus, under the terms of the Plan, her surviving parents would be entitled to the benefit.  Futher, they argued that the designation form was valid.  Tobits, represented by the National Center for Lesbian Rights, argued that she was the surviving legally-recognized spouse, and that she had never consented to waive her rights in favor of her wife’s parents in any case, so the designation form was invalid.

Judge Jones heard the arguments on pre-trial motions last year, then put the case on his “suspense calendar” to sit until the U.S. Supreme Court ruled on the constitutionality of Section 3 of DOMA.  Once that ruling came down on June 26, wrote Judge Jones, the case had to be decided in Tobits’ favor. 

“The Windsor Court held that because the state of New York recognized same-sex marriages as valid — and, to wit, the Canadian marriage of Edith Windsor and Thea Spyer — DOMA unlawfully deprived those couples of the equal liberty of persons that is protected by the Fifth Amendment,” wrote Jones.  “As it stood, DOMA ‘wrote inequality into the entire United States Code.’ That ‘written inequality’ in DOMA Section 3 extended to the ERISA definition of ‘Spouse.’ Prior to the Court’s decision in Windsor, under the plain language of ERISA, the [Internal Revenue] Code, and the Plan at issue in this case, qualified retirement plans were under no obligation to provide benefits to same-sex  Spouses.  Following the Court’s ruling, the term ‘Spouse’ is no longer unconstitutionally restricted to members of the opposite sex, but now rightfully includes those same-sex spouses in ‘otherwise valid marriages.'”

The problem for this case was to determine whether the Farley-Tobits marriage is an “otherwise valid marriage” for purposes of the Cozen O’Connor Plan.  The Plan itself provided that it terms would be defined according to their meaning under ERISA, and with the Supreme Court’s ruling striking down Section 3 of DOMA, there is no longer a federal statutory definition of “marriage” or “spouse” to be used in ERISA cases.  Thus, the court must fall back on the normal practice of asking whether the parties are in a marriage recognized by the state where they live.  Judge Jones rejected the idea that this should be based on Pennsylvania law just because the Cozen O’Connor firm is headquartered there and the plan documents refer to Pennsylvania law, since ERISA preempts state law and Tobits was never employed in Cozen O’Connor’s office in Pennsylvnia.  He warned that defining marriage according to the law of the state where a plan is written could lead employers to “forum shop” for a state that does not recognize same-sex marriages if they want to deny such benefits.

Thus, the question fell to Illinois law because Farley was employed in Illinois and that’s where the couple resided.  Illinois has a Civil Union Act but does not have same-sex marriage.  Thus, the Farley-Tobits marriage is treated as a civil union for purposes of Illinois law.  However, the issue in this case is not the meaning of “marriage” but rather the meaning of “spouse,” since that is the term used in the Plan to described the principal beneficiary, “surviving spouse.”  Wrote Jones, “By virtue of its civil union statute, Illinois can recognize same-sex marriages solemnized in other jurisdictions, such as Canada.”  He pointed out, in a footnote, that in the Illinois Civil Union Act, the statute provides “persons entering into a civil union with the obligations, responsibiltiies, protections and benefits afforded or recognzied by the law of Illinois to spouses.” 

This proved sufficient for Judge Jones.  “There can be no doubt that Ms. Tobits is Ms. Farley’s ‘surviving Spouse’ under the Plan in light of the Supreme Court’s decision in Windsor,” he wrote.  “Post-Windsor, where a state recognizes a party as a ‘Surviving Spouse,’ the federal government must do the same with respect to ERISA benefits — at least pursuant to the express language of the ERISA-qualified Plan at issue here.  There can be no doubt that Illinois, the couple’s place of domicile, would consider Ms. Tobits Ms. Farley’s ‘Surviving Spouse’ — indeed, it already has made that specific finding under state law,” he wrote, noting further that Tobits had secured from the Cook County Circuit Court an Order designating her as Ms. Farley’s sole heir at law as her surviving civil union partner. 

“Indeed, because the Illinois probate court recognized Ms. Tobits as the sole heir to a civil union, it accepted as valid the marriage between Ms. Tobits and Ms. Farley that took place in Canada in 2006.  As this Canadian marriage was deemed valid, albeit under the nominal title of ‘civil union’ in Illinois, there can be no dispute that Ms. Tobits is a ‘surviving Spouse’ pursuant to the Plan.”

Thus, it was fortuitous that Farley and Tobits lived in a state that provides legal recognition as spouses to same-sex couple residents who marry elsewhere.  This decision doesn’t answer — because it needn’t answer — the looming question of whether the result would have been the same had Farley worked in Cozen O’Connor’s Philadelphia office, inasmuch as Pennsylvania has a state DOMA amendment and does not afford any recognition to the status of same-sex couples married elsewhere but resident in Pennsylvania.  Although ERISA broadly preempts state laws relating to employee benefits plans, it still looks to state law to identify the marital status of employees covered by those plans.  As such, this decision’s persuasive precedential value seems limited, at least for now, to states that afford spousal recognition to same-sex marriages.

First Fruits of the DOMA/Prop 8 Decisions – Quick Response from the Obama Administration, Resumption of Marriages in California, and a Decision Striking a Michigan Law Against Partner Benefits

Posted on: June 30th, 2013 by Art Leonard No Comments

Response by the “defendants” in the DOMA and Prop 8 cases to the Supreme Court’s June 26 rulings was swift.

Within hours after the Court announced that Section 3 of DOMA was unconstitutional, the President had announced his “applause” for the decision and instruction to the Attorney General to coordinate with executive branch department heads to seek “smooth” implementation for federal recognition of lawfully-contracted same-sex marriages.  Some of the quickest responses came rolling in right away: Defense Secretary Hagel said steps would immediately be taken to extend spousal benefits to for same-sex spouses of military personnel, and Homeland Security Secretary Napolitano said that Customs & Immigration would immediately accord equal recognition to same-sex marriages.  The first green card was issued for a same-sex spouse just two days later, on Friday, for a Florida couple that included a Bulgarian citizen, and even more quickly, an immigration judge in New York halted a deportation hearing on Wednesday morning after being handed a copy of the DOMA decision fresh off the presses.  President Obama called Edie Windsor to congratulate her on the victory, but he did not, as far as we know, say “The check is in the mail,” which would have been a nice touch.  The IRS bureaucracy does not grind that quickly.  Indeed, the IRS may end up being one of the main sticking points for implementation, having emitted a non-committal statement that it would be providing guidance for taxpayers, employers and corporations, but not indicating when that would be forthcoming.  Office of Personnel Management sent out a notice to executive branch heads that same-sex spouses should immediately be recognized, and that an open enrollment period would commence for federal employees to enroll their same-sex spouses in benefits programs.   Nobody in the executive branch seemed inclined to wait until the Court issues its official mandate later in July before taking action, but that’s not surprising, given the government’s posture on the merits of the case!

Also within hours of the Prop 8 decision being announced, Governor Jerry Brown of California issued a statement attaching an opinion letter he had solicited weeks ago from Attorney General Kamala Harris about the scope of Judge Vaughn Walker’s Order.  Harris advised that when the stay was lifted by the 9th Circuit, same-sex marriage should be immediately available in every county.  In other words, she was rejecting the contention by the initiative proponents that the Order was limited to the plaintiff couples or the two counties where clerks were named defendants in the case. Brown followed her advice and had the Department of Public Health send a notice to all County Clerks and Recorders that upon lifting of the stay, same-sex couples should be treated the same as different-sex couples.  Harris contacted the 9th Circuit and urged that the stay be lifted right away.  The 9th Circuit panel that had issued the now-vacated decision expeditously responded on Friday, June 28, lifting the stay, opening the way for the plaintiff couples to get married that afternoon.   The San Francisco County Clerk’s office decided to stay open over the weekend to accommodate the demand for marriage licenses and ceremonies during Gay Pride Week, which was expected to draw 1.5 million to San Francisco for the annual festivities.

The Proponents tried to throw a wrench into the works, filing an “emergency motion” with the Supreme Court to halt the marriages, contending that the 9th Circuit could not lift the stay until the Supreme Court’s formal mandate arrived later in July.  Justice Kennedy, to whom the motion was referred, quickly denied it without comment.  Proponents are still expected to try other legal strategems in the days ahead.

Meanwhile, the first court to cite and rely on the Windsor case issued its ruling on Friday, June 28.  District Judge David M. Lawson, relying in part on the reasoning of Windsor as well as the Arizona domestic partnership benefits case, ruling in Bassett v. Snyder, 2013 WL 3285111 (E.D.Mich.), that plaintiffs were entitled to a preliminary injunction against the operation of a Michigan law that had been adopted to block public employers from providing domestic partnership benefits to their employees.  Under Public Law 297, employee benefits may be extended only to legal spouses, legal dependents, or legal heirs (those who could inherit from an employee under the intestacy laws) who are living with the employee.  The legislative history shows that this was passed specifically to override local governments that had extended benefits to non-marital partners.  Michigan’s Supreme Court had construed the state’s marriage amendment to forbid extending benefits to same-sex domestic partners as such, but many localities and government institutions had contrived a work-around to extend benefits to cohabitants who met certain minimal requirements, regardless of sex, and the law was intended to end this loophole as a means of enforcing the the marriage amendment.  The court found this to be a transparently discriminatory measure aimed mainly at same-sex couples — agreeing with the Arizona district court and the 9th Circuit (but failing to note the new development that the Supreme Court denied Arizona Gov. Jan Brewer’s cert petition on June 27) — and finding, in light of the reasoning of Windsor, that this would be an equal protection violation. 

Things are happening so fast, it’s difficult to keep up.  Lambda Legal announced it was filing a summary judgment motion in its pending N.J. Superior Court lawsuit seeking a ruling that the civil union act fails to provide equal rights for civil union partners, and the DOMA decision gives added weight to that contention.  A state legislator who represents the plaintiffs in a New Mexico marriage equality lawsuit announced he would petition the state supreme court to take up the case directly, in light of Windor, and of course the 9th Circuit will soon hear arguments in the Hawaii and Nevada cases.  (The Supreme Court denied a petition by the defenders of the Nevada marriage amendment, who were trying to leapfrog the 9th Circuit, also on June 27.)  Racing to keep up….