SameSex Marriage Litigation Wilson Huhn September 17 2012

Same-Sex Marriage Litigation Wilson Huhn September 17, 2012

Recognition of Same-Sex Marriage in the States Seven American jurisdictions currently recognize the right of gay and lesbian couples to marry: By statute: New York, New Hampshire, Vermont, and Washington D. C. By court decision: Massachusetts, Iowa, and Connecticut Several other states may join soon this list: Enacted Statutes Facing Referenda: Maryland, Washington Referendum pending: Maine Court decision pending: California (Prop 8 struck down) These states comprise about 30% of U. S. population. Other possible states: Oregon, New Jersey, Rhode Island, Delaware

Three Possible Cases That Could Come to the Supreme Court 1. The decision of the Ninth Circuit striking down California Proposition 8 2. The decision of the First Circuit and several district courts striking down Section 3 of DOMA 3. A case that would challenge the constitutionality of a state law prohibiting same-sex marriage. These cases are at the trial stage in Nevada and Illinois.

Three Kinds of Gay Rights Cases, cont. The “Prop 8” case turns upon a semantic issue – is there a right to have the relationship called “marriage”? The DOMA cases turn upon a question of federalism – does the federal government have the power to refuse to recognize marriages that are valid under state law? Cases challenging the right of a state to deny same-sex couples the right to marry would have to reach the fundamental questions of liberty and equality under the Due Process and Equal Protection Clauses of the 14 th Amendment.

Which Case Would Gay Rights Advocates Choose to Be Heard? The Prop 8 case would resolve a narrow issue only – a semantic issue The DOMA cases could be decided on federalism grounds – which might appeal to conservative justices There are no decided cases involving the constitutionality of laws like Ohio Issue 1 – until now, gay rights advocates have been careful to avoid setting adverse precedent on this ultimate question See Jacob Combs, Supreme timing, part 1: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial, at http: //www. prop 8 trialtracker. com/2012/06/11/supreme-timing-part 1 -why-its-better-for-doma-to-be-heard-at-the-supreme-court-beforethe-prop-8 -trial/

The Prop 8 Trial In determining the constitutionality of Proposition 8, Federal District Judge Vaughn Walker admitted thousands of exhibits and permitted lay and expert witnesses to testify on direct and cross examination, creating a trial record thousands of pages long. Judge Vaughn Walker 6

Plaintiffs’ Expert Witnesses Dr. Nancy Cott, professor of American history at Harvard University and director of the Schlesinger Library on the History of Women in America; Dr. George Chauncey, a professor of history and American studies at Yale University; Dr. Lee Badgett, professor of economics at UMass Amherst and the director of the Williams Institute at UCLA School of Law; Dr. Edmund A. Egan, chief economist in the San Francisco Controller’s Office; Dr. Letitia Anne Peplau, professor of psychology and vice chair of graduate studies in psychology at UCLA; Dr. Ilan Meyer, associate professor of sociomedical sciences at Columbia University’s Mailman School of Public Health; Dr. Gregory Herek, professor of psychology at UC Davis; Dr. Michael Lamb, professor and head of the Department of Social and Developmental Psychology at the University of Cambridge in England; Dr. Gregory Segura, professor of political science at Stanford University. 7

Defendants’ “Expert” Witnesses David Blankenhorn, MA in comparative social history, University of Warwick, England. He conducted no peerreviewed research. Instead, he developed his expertise by “reading articles and having conversations with people, and trying to be an informed person about it” Dr. Kenneth P. Miller, professor of government at Clarement Mc. Kenna College. He was qualified as an expert in political science generally but not on the political power of gays and lesbians specifically. The remainder of the defendants’ witnesses refused to testify. Also, the principal witness has now recanted. David Blankenhorn, How My View on Gay Marriage Changed (June 22, 2012) 8

The Decision in the Prop 8 Case On August 4, 2010, Judge Walker rendered his decision. His opinion contains dozens of detailed “findings of fact” each supported by multiple exhibits and references to the trial record. His decision may be found at http: //legaldocs. dreamwidth. org/1525. html? thr ead=1269 9

Finding 48 in Prop 8 Trial “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex. ” 10

Finding 50 “Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive. ” 11

Finding 55 “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages. ” 12

Finding 56 “The children of same-sex couples benefit when their parents can marry. ” 13

Finding No. 70 “The gender of a child's parent is not a factor in a child's adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. ” 14

The Decision of the Ninth Circuit On February 7, 2012, a panel of the Ninth Circuit affirmed Judge Walker’s decision on narrower grounds. The Court held that Proposition 8 was adopted solely for the purpose of treating same-sex couples differently and for no other reason, and that it was therefore unconstitutional. The decision may be found at http: //www. scribd. com/doc/80680002/10 -16696398 -Decision 15

Half-Hearted Dissent of Judge Smith in Ninth Circuit “Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting. ‘The assumptions underlying these rationales may be erroneous, but the very fact they are 'arguable' is sufficient, on rational basis review …. ’” 16

Subsequent Research 1. Michael J. Rosenfeld (Stanford University), Nontraditional Families and Childhood Progress Through School, Demography, Volume 47 (3): 755 -775 (2010), at http: //www. stanford. edu/dept/soc/people/mrosenfeld/documents/R osenfeld_Nontraditional_Families_Children. pdf 2. M. V. Lee Badgett, Jody L. Herman, The Williams Institute (U. C. L. A. ), Patterns of Relationship Recognition by Same-Sex Couples in the United States, at http: //williamsinstitute. law. ucla. edu/wpcontent/uploads/Marriage-Dissolution-FINAL. pdf (November, 2011) 3. Joint Brief of AMA, APA, NASW, AAP, at http: //www. apa. org/about/offices/ogc/amicus/gill. pdf (citing 86 scientific studies, filed with First Circuit November 3, 2011 in Massachusetts v. DHHS) 17

1. Rosenfeld Study (2010) In this examination of 45 studies, Rosenfeld found no significant difference between the children of same-sex couples and opposite-sex couples in their school progress. 18

2. Williams Institute Study (2011) Findings on marriage and divorce rates of same-sex couples. 19

More Than One-Fifth of U. S. Same-Sex Couples Have Entered Civil Union or Marriage “Over 140, 000 same-sex couples, or 22% of all same-sex couples in the United States, have formalized their relationship under state law within the United States. ” 20

Women Are More Likely to Enter Same -Sex Marriage “Women are more likely to marry or formalize their relationships by entering an alternative legal status than are men. In eight states that provided us data by gender, 62% of same-sex couples who sought legal recognition were female couples. ” 21

Same-Sex Couples Are Less Likely to Divorce “In the states with available data, dissolution rates for same-sex couples are slightly lower on average than divorce rates of different-sex couples. The percentage of those same sex couples who end their legal relationship ranges from 0% to 1. 8% annually, or 1. 1% on average, whereas 2% of married different-sex couples divorce annually. ” 22

Marriage Rates of Same-Sex Couples Will Be the Same “If current trends hold, the marriage rate of same-sex couples in Massachusetts eventually will reach parity with the marriage rate of different-sex couples in Massachusetts by 2013. ” 23

3. Brief of American Professional Associations AMERICAN PSYCHOLOGICAL ASSOCIATION AMERICAN PSYCHIATRIC ASSOCIATION NATIONAL ASSOCIATION OF SOCIAL WORKERS AMERICAN MEDICAL ASSOCIATION AMERICAN ACADEMY OF PEDIATRICS 24

Brief, continued “Homosexuality is a normal expression of human sexuality, is generally not chosen, and is highly resistant to change. ” 25

Brief, continued “There is no scientific basis for concluding that gay and lesbian parents are any less fit or capable than heterosexual parents, or that their children are any less psychologically healthy and well adjusted. ” 26

Frequency of Divorce Is Lowest in States that Recognize Same-Sex Marriage CDC Divorce Rates by State, 1999 -2010: http: //www. cdc. gov/nchs/data/nvss/divorce_rates_90_95_99 -10. pdf Paris Aichen, The Columbian, Gays’ divorce rate may hew close to heterosexuals’ (January 23, 2012), at http: //www. columbian. com/news/2012/jan/23/gays-divorcerates-may-hew-close-to-heterosexuals/ Donesha Adridge, Medill Reports, Divorce rates lower in states that allow same-sex marriage (March 1, 2012)at http: //news. medill. northwestern. edu/chicago/news. aspx? id= 27 201803

The Federal Defense of Marriage Act In 1996 Congress enacted the Defense of Marriage Act (DOMA), which contains two principal provisions: one provision defining marriage as a union between a man and a woman for purposes of federal law, and another provision permitting the states not to recognize same-sex unions performed in other states.

Section 2 of DOMA Powers reserved to the states: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. (codified at 28 U. S. C. 1738 C)

Section 3 of DOMA Definition of marriage: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife. (Codified at 1 U. S. C. 7)

DOMA Litigation Involves Section 3 All of the federal cases involve challenges to Section 3 of DOMA under the Equal Protection Clause. The issue is whether the federal government has the power to refuse to recognize same-sex marriages that are valid under state law.

Only One Court of Appeals Decision on DOMA The First Circuit is the only federal appeals court to have ruled on the constitutionality of DOMA. It is the consolidated case of Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services.

The Department of Justice No Longer Defends DOMA in Court On February 23, 2011, Attorney General Eric Holder wrote this letter to John Boehner, Speaker of the House of Representatives, informing him that the President had determined that his administration could no longer in good conscience defend the constitutionality of the Defense of Marriage Act, and inviting the House of Representatives to take over responsibility for defending the law in court. On July 2, 2011, the Department of Justice filed this brief in support of Ms. Golinski in federal district court, contending that DOMA is unconstitutional. The attorneys for the House of Representatives, known as BLAG, now appear in court on behalf of DOMA.

The Decision of the First Circuit Court of Appeals in Gill/Massachusetts Gill v. Office of Personnel Management, 699 F. Supp. 2 d 374 (D. Mass. 2010) (striking down Section 3 of DOMA). Affirmed on May 31, 2012, Massachusetts v. United States Department of Health and Human Services, 682 F. 3 d 1 (1 st Cir. 2012). Cert. filed, Docket No. 1297 http: //www. supremecourt. gov/Search. aspx? File Name=/docketfiles/12 -97. htm

The Facts in Gill The individual plaintiffs sought equal access to health care benefits, social security benefits, and income tax benefits from the federal government.

Health Care Benefits “Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self and family enrollment in the Federal Employees Health Benefits Program, to add Ms. Letourneau to Federal Employees Dental and Vision Insurance Program, and to use her flexible spending account for Ms. Letourneau’s medical expenses. ”

Social Security Benefits “A number of the plaintiffs in this action seek certain Social Security Benefits under the Act, based on marriage to a same-sex spouse. Specifically, Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. Three of the Plaintiffs, Dean Hara, Randell Lewis-Kendell, and Herbert Burtis, seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. And Plaintiff Herbert Burtis seeks Widower’s Insurance Benefits. ”

Income Tax Benefits “Lastly, a number of Plaintiffs in this case seek the ability to file federal income taxes jointly with their spouses. The amount of income tax imposed on an individual under the Internal Revenue Code depends in part on the taxpayer’s “filing status. ” In accordance with the income tax scheme utilized by the federal government, a “married individual. . . who makes a single [tax]return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household. ””

Claim of the State Plaintiffs The State of Massachusetts claimed that DOMA effectively prohibited the state from treating same-sex couples as “married” for purposes of Medicaid and veterans’ cemeteries.

(from Court of Appeals decision) “By combining the income of individuals in samesex marriages, Massachusetts' Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal "veterans' cemetery" status and gives the Department of Veterans' Affairs discretion to recapture all federal funding for the cemetery. ”

State Claim, continued “By combining the income of individuals in samesex marriages, Massachusetts' Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal "veterans' cemetery" status and gives the Department of Veterans' Affairs discretion to recapture all federal funding for the cemetery. ”

The Issue in Massachusetts v. DHHS (First Circuit) “Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom. ”

The First Circuit Strikes Down DOMA For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern. To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

Windsor v. United States Edith Schlain Windsor met Thea Spyer 1965 and they began living together in 1967. They married in Toronto in 2007. The State of New York recognized their marriage. But when Thea died in 2009 and left her estate to Edith, the federal government imposed a tax of $363, 000. If DOMA did not apply and the federal government recognized their marriage, no estate tax would be due.

District Court Decision in Windsor v. U. S. , 833 F. Supp. 2 d 394 (S. D. N. Y. , June 6, 2012) (striking down Section 3 of DOMA)

Rational Basis “Plus” (from District Court opinion) “The Supreme Court's equal protection decisions have increasingly distinguished between “[l]aws such as economic or tax legislation that are scrutinized under rational basis review[, which] normally pass constitutional muster, ” and “law[s that] exhibit[ ]. . . a desire to harm a politically unpopular group, ” which receive “a more searching form of rational basis review. . . under the Equal Protection Clause. . ” Lawrence v. Texas, 539 U. S. 558, 579– 80, 123 S. Ct. 2472, 156 L. Ed. 2 d 508 (2003) (O'Connor, J. , concurring); see Romer, 517 U. S. 620, 116 S. Ct. 1620; City of Cleburne, 473 U. S. 432, 105 S. Ct. 3249; U. S. Dep't of Agric. v. Moreno, 413 U. S. 528, 93 S. Ct. 2821, 37 L. Ed. 2 d 782 (1973). It is difficult to ignore this pattern, which suggests that the rational basis analysis can vary by context. ”

Rational Basis “Plus, ” cont. “At least one Court of Appeals has considered this pattern as well. As the First Circuit explains, “Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. ” See Massachusetts v. HHS, Nos. 10– 2207 & 10– 2214, 682 F. 3 d at 10. And, “in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity. ” Id. ”

Government Interests in Windsor 1. Caution and the Traditional Institution of Marriage 2. Childrearing and Procreation 3. Consistency and Uniformity of Federal Benefits 4. Conserving the Public Fisc 5. Promoting Heterosexuality

1. Caution and The Traditional Institution of Marriage Precisely because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, “preserve” the institution of marriage as one between a man and a woman. Cf. De Sylva v. Ballentine, 351 U. S. 570, 580, 76 S. Ct. 974, 100 L. Ed. 1415 (1956) (noting that “… there is no federal law of domestic relations”). To the extent Congress had any other independent interest in approaching same-sex marriage with caution, for much the same reason, DOMA does not further it. A number of states now permit same-sex marriages. DOMA did not compel those states to “wait[ ] for evidence spanning a longer term before engaging in. . . a major redefinition of a foundational social institution. ” (BLAG Mot. to Dismiss at 29. ) Thus, whatever the “social consequences” of this legal development ultimately may be, DOMA has not, and cannot, forestall them.

2. Childrearing and Procreation Promoting the ideal family structure for raising children is another reason Congress might have enacted DOMA. Again, the Court does not disagree that promoting family values and responsible parenting are legitimate governmental goals. The Court cannot, however, discern a logical relationship between DOMA and those goals. *** Conceivably, Congress could have been interested more generally in maintaining the societal perception that a primary purpose of marriage is procreation. However, even formulated as such, the Court cannot see a link between DOMA and childrearing. DOMA does not determine who may adopt and raise children. Nor could it, as these matters of family structure and relations “belong[ ] to the laws of the States and not to the laws of the United States. ” Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 124 S. Ct. 2301, 159 L. Ed. 2 d 98 (2004). At most, then, DOMA has an indirect effect on popular perceptions of what a family “is” and should be, and no effect at all on the types of family structures in which children in this country are raised.

3. Consistency and Uniformity of Federal Benefits BLAG argued that the federal government has an interest in ensuring that federal benefits are uniform across the United States – that marital benefits are distributed uniformly. The District Court ruled: “Here, the Court does discern a link between the means and the end. It is problematic, though, that the means used in this instance intrude upon the states' business of regulating domestic relations. That incursion skirts important principles of federalism and therefore cannot be legitimate, in this Court's view. ”

4. Conserving the Public Fisc Lastly, Congress also justified DOMA as a means of conserving government resources. (BLAG Mot. to Dismiss at 32. ) An interest in conserving the public fisc alone, however, “can hardly justify the classification used in allocating those resources. ” Plyler, 457 U. S. at 227, 102 S. Ct. 2382. After all, excluding any “arbitrarily chosen group of individuals from a government program” conserves government resources. Dragovich v. U. S. Dep't of the Treasury, 764 F. Supp. 2 d 1178, 1190 (N. D. Cal. 2011). With no other rational basis to support it, Congress's interest in economy does not suffice. Accord, e. g. , Dragovich v. U. S. Dep't of the Treasury, No. C 10– 01564, slip op. at 26, 2012 WL 1909603 (N. D. Cal. May 24, 2012); Golinski, 824 F. Supp. 2 d at 994– 95.

5. Promoting Heterosexuality Congress also expressed “a corresponding interest in promoting heterosexuality” as “closely related to the interest in protecting traditional marriage. ” H. R. Rep. No. 104– 664, at 15 n. 53, 1996 U. S. C. C. A. N. 2905, 2919. BLAG does not contend that this is a rational basis for DOMA's classification; nonetheless, the Court briefly considers it, as a “conceivable” basis that “might” support it. Heller, 509 U. S. at 320, 113 S. Ct. 2637. A permissible classification must at least “find some footing in the realities of the subject addressed by the legislation. ” Id. at 321, 113 S. Ct. 2637. Here, such footing is lacking. DOMA affects only those individuals who are already married. The Court finds it implausible that section 3 does anything to persuade those married persons (who are homosexuals) to abandon their current marriages in favor of heterosexual relationships.

States Join Windsor in Second Circuit The states of New York, Connecticut, and Vermont have joined the Windsor case and filed briefs asking the Court of Appeals to declare DOMA unconstitutional.

Windsor Seeks to Files Motion for Certiorari Windsor, who is 83 years old, has filed a petition for a writ of certiorari in this case. That request is pending, Docket No. 12 -63.

Other Federal Benefits Cases Golinski v. Office of Personnel Management (N. D. Cal. Feb. 22, 2012) (striking down Section 3 of DOMA) (on appeal to Ninth Circuit, briefs available here) Pederson v. Office of Personnel Management (D. Conn. July 31, 2012) (striking down Section 3 of DOMA) Mc. Laughlin v. Panetta. See Max J. Rosenthal, Gays in the Military Bring Lawsuit to Overturn DOMA, Huffington Post (October 27, 2011)

Mc. Laughlin v. Panetta In this case filed in October, 2011, members of the military service seek to overturn DOMA and other federal laws relating to the marriages of military members seeking certain benefits. This case has been stayed pending the outcome of Massachusetts v. DHHS. See Max J. Rosenthal, Gays in the Military Bring Lawsuit to Overturn DOMA, Huffington Post (October 27, 2011); SLDN Files Landmark Litigation on Behalf of Married Gay and Lesbian Service Members, Veterans

Statement from Servicemembers Legal Defense Network “Currently, federal law requires the military to ignore these marriages and, therefore, prevents it from providing vitally needed benefits to these legally married spouses, including housing; health care; surviving spouse benefits; the issuance of military identification cards; and morale, welfare, and recreational programs. These inequities were recently spotlighted when Chief Warrant Officer 2 Charlie Morgan of the New Hampshire National Guard … was forced to seek intervention from elected officials and the Pentagon in order for her spouse, a parttime special education teacher, to be permitted to attend a yellow-ribbon reintegration ceremony following CW 2 Morgan’s return from a deployment to Kuwait. ”

Is the Drive for Same-Sex Marriage Part of the Civil Rights Movement?

Bayard Rustin Personal assistant to Martin Luther King, Jr. Organized the March on Washington, 1963 Father of the Gay Rights Movement “Today, blacks are no longer the litmus paper or the barometer of social change. … The question of social change should be framed with the most vulnerable group in mind: gay people. ” (1986)

Justice Thurgood Marshall “The right to marry is of fundamental importance for all individuals. ” Zablocki v. Redhail Justice Marshall dissented in Rowland v. Mad River School District involving the dismissal of a public school teacher for disclosing her homosexuality to other teachers. He also joined both Justice Blackmun’s and Justice Stevens’ dissenting opinions in Bowers v. Hardwick.

John Lewis “I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I've heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred and intolerance I have known in racism and in bigotry. ”

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