Following last week’s news that a Senate committee has advanced a bill to ban the practice of discrimination against jurors based on sexual orientation and gender identity, Adam Liptak has a story in the New York Times about a federal legal challenge to a decision by a lawyer to peremptorily strike a juror on the basis of his sexual orientation. Federal District Court Judge Claudia Wilken, who last year issued a decision striking down Section 3 of the federal Defense of Marriage Act, heard the challenge, which was brought in the midst of an antitrust case. Now, the Ninth Circuit Court of Appeals will take up the appeal.
At the trial, the lawyer attempted to strike the juror after he implied that he’s gay, and an objection was raised:
[The issue] arose at the 2011 trial of an antitrust fight between two giant drug companies. After a potential juror appeared to reveal that he was gay, a lawyer for Abbott Laboratories used a peremptory strike — one that does not require a reason — to eliminate him from the jury pool.
An opposing lawyer objected, saying the juror “is or appears to be, could be, homosexual.”
That mattered, the lawyer said, because “the litigation involves AIDS medications” and “the incidence of AIDS in the homosexual community is well known, particularly gay men.”
Lawyers are not allowed to strike jurors based on race or gender alone, without any other grounds. The Supreme Court held in a case called Batson v. Kentucky that racial discrimination in jury selection is unconstitutional, and this case raises a “Batson challenge” – that is, lawyers are asking the judge to consider whether the rule applies to sexual orientation. The lawyer told Judge Wilken that he doesn’t know if the man is gay.
The Supreme Court’s past opinions on the issue suggest that exclusion from juries on the basis of race or gender can violate equal protection principles. Under our system, there is a right to an impartial jury, and traditionally juries reflect a cross-section of society. If an accused person is black and all black potential jurors are disallowed on the basis of their race alone, it creates a fundamental unfairness in our legal system. That extends to gender, and will likely include sexual orientation and gender identity in the future, whether through court decisions or through new statutes banning discrimination.
Liptak notes that California’s state laws ban lawyers from challenging potential jurors on the basis of sexual orientation, and he opines that the system works there. The case has been argued at the Ninth Circuit and is awaiting a decision.
As expected–but perhaps later than expected–Pennsylvania officials have asked a state court to order D. Bruce Hanes, the Montgomery County register of wills, to cease issuing marriage licenses to same-sex couples, which he began to do last week. The AP reports:
The petition filed by the Health Department in Commonwealth Court alleges that D. Bruce Hanes, the register of wills in Montgomery County, “repeatedly and continuously” flouted the law. As of Tuesday afternoon, the county had granted 34 licenses and registered six same-sex marriages.
“There is no limit to the administrative and legal chaos that is likely to flow from the clerk’s unlawful practice of issuing marriage licenses to those who are not permitted under Pennsylvania law to marry,” the lawsuit said.
Hanes declined the AP’s request for comment. Legal action against the clerk was almost inevitable, given the fact that Hanes’s move contradicts state law and could lead to same-sex couples seeking marital benefits in the future. It remains to be seen whether the licenses provided by Montgomery County will be allowed to stand or whether they will be invalidated.
In related news, Pennsylvania Gov. Tom Corbett, a Republican, announced yesterday that he would defend the state’s marriage laws from a federal court challenge initiated by the ACLU seeking equal marriage rights for same-sex couples. The day after the suit was filed, the state’s attorney general, Democrat Kathleen Kane, told reporters she would not defend the marriage equality ban in court.
In a letter to Kane’s office yesterday, Corbett’s lawyer wrote that the attorney general’s refusal to defend the ban “establishes a very troubling precedent” and would “create chaos and uncertainty–not unlike what we are seeing in the unlawful actions.” Corbett’s response to the legal complaint is due September 16.
A quick piece of exciting news that we can finally share here on EqualityOnTrial–this Thursday, yours truly will be sitting down for an interview with the newly married plaintiffs in the Prop 8 case to talk to them about their win at the Supreme Court, what it feels like to finally be married in the eyes of the law, and what they see as the next steps for the movement.
Obviously, I have tons of questions I want to ask them, but we want to hear from you about what questions you have for the plaintiffs! In the comments below, let me know what you’d be interested in asking, and I’ll do my best to include as many of them as possible in my interview.
District Court for the Eastern District of Pennsylvania
Yesterday, a federal district court issued its final decision in Cozen O’Connor v. Tobits, a long-awaited decision in a challenge to Section 3 of the federal Defense of Marriage Act (DOMA). The judge ruled that after United States v. Windsor, the plaintiffs challenging the law should win. The case involved a married same-sex couple who sought retirement benefits from one spouse’s private employer – Cozen O’Connor, a law firm. The Employee Retirement Income Security Act (ERISA) is a federal law that provides a base line for implementing these plans, and it had always used the opposite-sex only meaning of “surviving spouse” provided by Section 3 of DOMA’s restriction of “spouse” to opposite-sex couples. Since Windsor held Section 3’s definition unconstitutional, the judge wrote, ERISA plans can’t block same-sex couples from receiving benefits any longer.
The decision marks a further-reaching outcome than most other challenges to Section 3 of DOMA so far, as attorneys from the National Center for Lesbian Rights told Buzzfeed:
Shannon Minter, the National Center for Lesbian Rights attorney representing Tobits, said the ruling was as broad as Jones had begun describing in his decision—that it applied to all legally married same-sex couples.
“Today’s decision is not only a victory for Jennifer and Ellyn, it is a victory for every married same-sex couple in the country. No longer can employers hide behind DOMA to deny equal benefits to some employees solely because their spouse is a person of the same sex,” Minter said in a statement.
[…]
Chris Stoll, another NCLR attorney on the case, compared the decision to the government’s implementation of immigration law and federal employee health insurance benefits, saying, “We see this decision as showing that ERISA is going to be in that category of benefits that are included as long as the marriage was valid in the place of celebration, regardless of where the couple is.”
The case, the judge wrote, comes down to the question of who is a spouse for purposes of the law firm’s ERISA-qualified plan. Since the plan is modeled on ERISA’s baseline, and since there is no definition of “spouse” embedded within the plan’s terms, “[b]ased on the language of the Plan — which Cozen drafted pursuant to ERISA’s mandates — the Court must look to ERISA and then the Code for those definitions.” And DOMA Section 3’s federal definition meant that ERISA considered someone a spouse if they were in an opposite-sex marriage. Windsor‘s decision invalidating that definition means that “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.””
What’s less clear is how the court decided the couple in this case is married for purposes of ERISA. There are different ways in which someone is considered to be a “spouse”, depending on which federal law is at issue. Sometimes the “place of celebration” is used, meaning that if a marriage was considered legal in the place where it was performed, it’s a legal marriage for purposes of some federal laws. Other times, the “place of domicile” is the key factor: if the marriage is considered legal where the couple lives. The opinion itself uses seemingly different language, writing that “[t]here 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,” but also that “where a state recognizes” the marriage, it is legal.
But the opinion also says that Illinois recognized the couple’s Canadian marriage as a civil union because of a state law laying out how same-sex unions are recognized, though, apparently, under another provision, a spouse is equal to someone in a civil union under Illinois law. And it’s not clear, based on the opinion at least, whether ERISA uses the place of celebration or place of domicile method for determining recognition of a marriage for purposes of issuing retirement benefits.
The bottom line, though, is that the judge held that a same-sex spouse is a spouse for purposes of federal law after the demise of Section 3 of DOMA in Windsor, and ERISA plans have to comply with that constitutional definition.
In the wake of the last week’s decision by D. Bruce Hanes, the Montgomery County, Pennsylvania Register of Wills, to begin issuing marriage licenses to same-sex couples despite a state ban on marriage equality, conservatives in the state have been up in arms about the county official’s move.
As Think Progress reports, a group of around 20 members of the Pro-Life Coalition of PA has taken to protesting outside the Montgomery County Courthouse against Hanes’s decision. Main Line Media News has more:
“It’s not about love. It’s about children,” said Michael McMonagle, president of the Pro-Life Coalition. “There’s a thing called just discrimination. For example, should blind people be allowed to vote? Of course they should, because not being able to see has nothing to do with having the right to vote. Should blind people get a driver’s license? Of course not, because being able to see is essential to being able to drive.
“Heterosexuality is essential to the meaning of marriage. Civil government has an interest in producing future children. It’s utter arrogance to think that we can redefine the institution that has been the bedrock of all society throughout history.”
In addition to stopping Hanes, McMonagle said the coalition came out to push two other main points — to urge District Attorney Risa Vetri Ferman to press charges against Hanes for breaking the law and for Gov. Tom Corbett to “zealously defend Pennsylvania’s marriage law.”
Marriages between same-sex couples, McMonagle said, are “inherently unequal because [they] cannot produce children.”
As of the end of last week, 26 couples had obtained licenses from Hanes’s office. Raymond McGarry, the Montgomery County solicitor, told Main Line Media News that he is unaware of any legal actions to stop Hanes from issuing such licenses. The Register of Wills says he has no plans of reversing his decision.
Earlier this month, the ACLU announced a federal court challenge to bring marriage equality to the Keystone State. The next day, Pennsylvania Attorney General Kathleen Kane, a Democrat, told reporters that she would not defend the ban in court.
It’s been a busy week, with marriages suddenly recognized in some unexpected states. But it’s unclear how long those victories will last. Meanwhile, state officials in other states are refusing to defend marriage bans. And as always, we have more favorable polling numbers.
Let’s start with Ohio this week, where a federal judge has ordered the state to recognize the marriage of a gay couple who flew to Maryland to get married. Specifically, the state must record the men as spouses when issuing a death certificate. They have been together for twenty years, but one is expected to pass away very soon.
Judge Timothy Black wrote that Ohio’s law exists to make gay couples unequal, which he called an “improper purpose.” It’s important to note that for now this only applies to out-of-state licenses. It doesn’t lift Ohio’s ban on issuing licenses to LGBT couples. But the ruling could bolster a future challenge to the law.
Despite initial reports to the contrary, State Attorney General Mike DeWine has said that he does not plan to appeal the ruling, which expires on August Fifth but could be extended before then.
And there’s plenty of legal turmoil next door in Pennsylvania, where a county Register of Wills announced that his office would issue marriage licenses. At least five couples took him up on the offer, but because Pennsylvania has a ban on marriage equality, it’s unclear whether the state will actually recognize them. The move echoes the licenses issued in 2004 by San Francisco Mayor Gavin Newsom. Those licenses were eventually invalidated, but led to a court challenge that overturned California’s marriage ban in 2008.
State officials in New Mexico are debating the next move in a challenge to that state’s marriage ban. Two men in Santa Fe sued the state, and now Attorney General Gary King has announced that he won’t defend the ban. But there’s lots of procedural uncertainty surrounding the challenge, which may need to move to a lower court.
New York will begin issuing refunds to LGBT survivors who were improperly taxed on a deceased partner’s estate. A new marriage equality campaign in New Jersey is targeting Republican lawmakers in an attempt to override the governor’s marriage equality veto. And in Iowa, 55 percent of voters oppose an attempt to overturn marriage equality, with just 36 in favor of imposing a ban.
Equality on Trial's Case Timeline is the go-to place to find thorough, up-to-date information on the myriad of marriage equality lawsuits taking place across the US.
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