Archives – July, 2013
By Jacob Combs
Last Friday, two gay men in Kentucky who wed in Canada in 2004 filed a lawsuit against state officials in federal court, arguing that Kentucky’s marriage laws violate the due process and equal protection provisions of the U.S. Constitution. Gregory Bourke and Michael Deleon, two residents of Louisville who met as students at the University of Kentucky and have been together for 31 years, married in Ontario, Canada in 2004 but are considered legal strangers in Kentucky, which bans recognition of same-sex marriages.
In the couple’s complaint, filed in conjunction with their two teen-aged children, Bourke and Deleon frequently cite the recent Supreme Court decision in United States v. Windsor invalidating the Defense of Marriage Act, writing that Kentucky’s marriage equality ban “undermines the Plaintiff couples’ ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them ‘a dignity and status of immense import.'”
Bourke and Deleon directly compare the arguments made in support of Kentucky’s constitutional amendment during its legislative passage to the arguments in support of the Defense of Marriage Act made by Congress in 1996, describing similar rationales of “maintaining the status quo,” preserving limited public resources and protecting children by encouraging childrearing by opposite-sex couples. Pushing back against these claims, the complaint argues that “[t]he justifications given at the time were similar to those in support of the Defense of Marriage Act and none of these justifications, or any other justification that might now be offered, passes Constitutional muster.”
In addition to citing the Windsor decision, Bourke and Deleon call on the Supreme Court’s landmark 1967 ruling in Loving v. Virginia, which struck down bans against interracial marriage across the United States, drawing upon its legal reasoning to argue that American jurisprudence and society has evolved over the years to rethink laws pertaining to mariage in favor of greater equality:
History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution. Ending the exclusion of lesbian and gay couples from marriage is not different.
In 2004, Kentucky voters approved the addition of marriage equality ban to the state constitution by a 74-26 percent margin. The 2004 ban not only prohibited same-sex couples from wedding in Kentucky itself, but also banned any recognition of out-of-state marriages, such as the one obtained by Bourke and Deleon in Ontario.
This marriage scheme, the couple write in their complaint, harms same-sex couples financially and emotionally, restricting them from eligibility for certain federal benefits and denying them state legal protections. Bourke and Deleon argue that Kentucky’s marriage laws violate same-sex couples’ fundamental right to marriage under the due process clause and discriminates against them on the basis of both sex and sexual orientation. In making their sexual orientation claim, the couple call for the more searching form of constitutional review known as heightened scrutiny, but argue that Kentucky’s laws are unconstitutional under any form of scrutiny.
Intriguingly, Bourke and Deleon are joined in their challenge as plaintiffs by their two adoptive children (who are unnamed in the complaint). As the couple notes in their complaint, only one of them is allowed by Kentucky law to be listed as the children’s adoptive parent, while the other parent was forced to obtain legal guardian status through the courts.
The case’s official name is Bourke v. Breshear. According to USA Today, the couple’s lawyers decided to challenge Kentucky’s ban after the Supreme Court’s ruling on DOMA:
Shannon Fauver and Dawn Elliott, law partners in Louisville, said the Supreme Court ruling also was encouraging and decided that someone should challenge Kentucky’s constitutional ban on same-sex marriage. So, the partners began looking for a couple to work with on a lawsuit and found De Leon and Bourke.
“We thought somebody should do it,” Fauver said. “It’s our duty as lawyers to try to right wrongs when we see them.”
Below, via Scribd, is the initial complaint. (H/t to Kathleen for this filing.)
[scribd id=156241384 key=key-1cc9lcl52u3rxcu10m65 mode=scroll]
July 29, 2013
By Scottie Thomaston
The U.S. Supreme Court struck down Section 3 of DOMA last month.
Bishop v. United States (formerly Bishop v. Oklahoma): This case challenges Sections 2 and 3 of the federal Defense of Marriage Act (DOMA) as well as Oklahoma’s ban on marriage equality. The plaintiffs had previously filed a supplemental brief arguing that United States v. Windsor‘s outcome and reasoning means this case should be decided in their favor. Now they have formally asked the court to rule in their favor on their claims challenging the constitutionality of Section 3 of DOMA. Simply put, the statute is invalid on its face after the Supreme Court’s ruling, so the plaintiffs here are asking for final judgment on those claims the Supreme Court decided in Edith Windsor’s challenge. The Justice Department did not oppose the filing, but they did ask fir the chance to respond within 30 days.
Cooper-Harris v. USA: This is a military-related challenge to Section 3 of DOMA and other military benefits statutes. The Bipartisan Legal Advisory Group (BLAG), who had stepped in to defend these statutes on behalf of House Republicans after the Justice Department stopped its defense, had asked to withdraw from this and almost all other DOMA cases. Their request was granted by the court, and their previous motions were also withdrawn.
Blesch v. Holder: This is Immigration Equality’s challenge to Section 3 of DOMA. BLAG requested withdrawal from the case, and the judge granted the request:
“Minute Entry: Premotion conference held by telephone before Chief Judge Amon on 7/26/13. … Intervenor-Defendant’s [BLAG] motion to withdraw as party defendant is GRANTED. Remaining parties to file a letter with the Court by August 21, 2013 apprising Court of status of the case.”
Thanks to Kathleen Perrin for these filings
July 29, 2013
By Scottie Thomaston
Capitol Hill
Now that the Supreme Court has issued its decision in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act, some members of Congress are seeking to make changes to the US Code that would bring it in line with the Court’s decision, and federal agencies are developing rules to make changes required by the invalidation of Section 3. At the Federal Election Commission, the agency had previously held against same-sex married couples who sought to combine their donations under federal laws for spouses who donate to campaigns. The FEC had held that they couldn’t recognize the couple as spouses under Section 3 of DOMA.
This week, the FEC posted two draft advisory opinions on the subject, that would require recognition of same-sex marriages:
n two draft advisory opinions posted on the FEC’s website on the agenda for Thursday’s meeting, the agency tasked with regulating the financing of federal elections states that following the decision in the Windsor case, “the term ‘spouse’ includes same-sex couples married under state law.”
The two opinions come in response to separate requests by the Democratic Senatorial Campaign Committee as well as a same-sex Massachusetts couple who are members of Log Cabin Republicans and wanted to donate to the special election campaign for pro-gay Republican Senate candidate Dan Winslow. The conclusions of the two opinions are identical in language.
“The term ‘spouse’ is not defined in FECA or the Commission’s regulations. The Commission has previously relied on state law to supply the meaning of terms not explicitly defined in the Act or Commission regulations,” the opinions state. “In light of the foregoing, the Commission concludes same-sex couples married under state law are ‘spouses’ for the purpose of Commission regulations.”
On Thursday, the opinions were unanimously approved. This was set to happen post-DOMA, and even the earlier decision rejecting the same-sex couple’s claims had announced that newer guidance would need to be issued were Section 3 of DOMA invalidated.
In other post-DOMA advancements, the U.S. Citizenship and Immigration Services has now posted a FAQ on its site for questions related to same-sex couples and immigration now that Section 3 of DOMA is no longer law. The FAQ says petitions can now be filed to sponsor a same-sex spouse, and also notes that the USCIS uses the “place of celebration” method to determine whether a marriage is legal: as long as it was legal in the state where the marriage was performed, it’s generally legal for immigration purposes, subject to some limitations.
In a new development related to LGBT legal equality, the Senate Appropriations Committee approved a bill that would ban discrimination in jury selection on the basis of sexual orientation or gender identity. Bills have been proposed to fix this problem for years, and this one was attached to a larger appropriations bill. There are currently only two cosponsors. Senator Shaheen spoke about the bill’s importance to the LGBT community:
Sen. Jeanne Shaheen (D-N.H.), who introduced the LGBT bill in January, said in a statement the move would ensure that LGBT people don’t face discrimination as part of the juror selection process.
“Discrimination based on sexual orientation or gender identity simply has no place in the United States,” Shaheen said. “The judicial process should represent our nation’s principles of inclusion and acceptance, and eliminating the discriminatory exclusion of LGBT jurors is a necessary step to meeting that goal.”
Currently, discrimination on the basis of race, color, religion, sex, national origin and economic status is prohibited under U.S. code in the jury selection process for federal courts. However, there are no such protections for LGBT people. The Jury Access for Capable Citizens & Equality in Service Selection Act would amend this section of U.S. code to include sexual orientation and gender identity.
Importantly, non-discrimination in jury selection is geared toward helping the accused person rather than individual LGBT jurors. Accused people are entitled to an impartial jury, and when a minority defendant is accused and minority jurors are excluded, it creates a problem in our legal system. The Supreme Court and Congress have worked to remedy this in other areas like race and gender. The entire appropriations bill will eventually go to the full Senate.
July 26, 2013
By Jacob Combs
This week, Michigan Gov. Rick Snyder and Attorney General Bill Schuette, both Republicans, filed their answering brief in the marriage equality case known as DeBoer v. Snyder, a challenge to the state’s equal marriage ban by a lesbian couple who originally sued to obtain joint adoption of their three children but were later encouraged by the judge hearing their case to expand that case to include a marriage challenge.
In their amended complaint, the couple wrote that the Michigan Marriage Amendment–which limits marriage to opposite-sex couples–violates the due process and equal protection provisions of the U.S. Constitution. The couple urged the judge to consider the amendment under the “‘important and substantial relationship’ test,” but also argued that “because the Michigan Marriage Amendment serves no legitimate government interest, it fails the rational basis test, and cannot survive any form of scrutiny.”
Unsurprisingly, Snyder and Schuette disagreed, and used their reply brief to refute the plaintiffs’ arguments. Although both plaintiffs, April DeBoer and Jayne Rowse, presented themselves as parents of their three children in their complaint, the state officials deny that both women are the parents of their children, instead falling back on the technical legal argument that “Plaintiff DeBoer is the legal parent of R and Plaintiff Rowse is the legal parent of J and N.”
Throughout their brief filing, Snyder and Schuette repeatedly utilize phrases such as “State Defendants deny that Plaintiffs have been subjected to adverse treatment” or “State Defendants deny any disparate treatment or equal-protection violation.” The state officials reject the suggestion to use the important and substantial relationship test, arguing instead in favor of a rational basis test, which they allege the Michigan Marriage Amendment clears:
The Michigan Marriage Amendment fosters the State’s legitimate interest in promoting responsible natural procreation, which, in turn, promotes raising children in a home environment with both a mother and a father, giving the children the benefit of having a role model of both sexes.
…
The Michigan Marriage Amendment does not violate the Due Process Clause of the U.S. Constitution. There is no fundamental right to same-sex marriage under the due process provisions of the U.S. Constitution. Further, the State’s marriage laws satisfy the rational basis test under the Equal Protection Clause of the U.S. Constitution.
In conclusion, Snyder and Schuette write that “Plaintiffs lack standing to assert some or all of their claims,” “Plaintiffs have not stated a claim for which relief can be granted” and urge the could to “exercise its discretion to abstain from adjudicating these claims.”
Oral arguments in DeBoer v. Snyder are planned for October 1.
After the jump, you can read the full filing, via Scribd. (H/t to Kathleen, as usual.)
(more…)
July 26, 2013
By Scottie Thomaston 
– The Ninth Circuit Court of Appeals has dismissed the appeal in Golinski v. Office of Personnel Management, challenging Section 3 of DOMA. Since the Supreme Court struck down the statute in United States v. Windsor, the case is now over.
– In the federal challenge to Michigan’s ban on marriage equality, state officials and a county clerk have filed answers to the complaint, asserting that the ban doesn’t restrict the rights of gays and lesbians. Think Progress has more.
– Missouri’s state supreme court is hearing a challenge to a law denying survivor benefits to same-sex partners, and after the Supreme Court decided Windsor, striking down Section 3 of DOMA, the state court is asking for more briefing on that decision’s impact on the case.
– A newly-formed coalition is pushing for marriage equality in New Jersey.
– After Windsor, New York’s Governor Cuomo is ordering the state to refund estate taxes for surviving spouses in legal same-sex marriages going back to 2008.
– Chris Johnson at the Washington Blade reports on LGBT progress post-Windsor.
Thanks to Kathleen Perrin for the filings in this post.
July 25, 2013
By Jacob Combs
In a piece published this week, Las Vegas Review-Journal columnist Steve Sibelius reminds readers that a lawsuit out of Nevada may be the next marriage equality case to make it all the way to the Supreme Court:
Instead of California, Nevada may be the state that brings the case that finally decides the gay marriage issue, once and for all.
Much like California, Nevada also has a ban on gay marriage in its constitution, placed there by voters in 2000 and 2002. And that ban has now come under legal attack by a group of gay and lesbian couples, seeking either to marry here in Nevada or have marriages that were performed elsewhere recognized here.
Unlike California, however, Nevada has an official in the person of Gov. Brian Sandoval who is willing to fight for the ban on gay marriage. (In California, pro-equality officials including Gov. Jerry Brown declined to fight a lawsuit seeking to invalidate the gay marriage ban. That’s why the proponents of the initiative took up the fight, which led to the high court’s ruling on legal standing. But there’s no question that Sandoval has legal standing to fight for Nevada’s constitutional ban.)
The Nevada case, known as Sevcik v. Sandoval, was filed by Lambda Legal on behalf of eight same-sex couples in Nevada and argues that the states’ marriage laws, which offer domestic partnerships to same-sex couples but not equal marriage rights, violates the equal protection provisions of the U.S. Constitution.
Last November, district court Judge Robert C. Jones ruled against the couples, writing that the Supreme Court’s summary dismissal of the 1972 marriage equality challenge in Baker v. Nelson prohibited him from considering the merits of the issue. In his opinion, Jones ruled that Nevada had a rational intent to protect ‘traditional marriage’ by withholding marriage licenses from gays and lesbians, writing, “[t]he conceivable benefits to society from maintaining a distinction between traditional marriage and same-sex domestic partnerships provide a rational basis for the State of Nevada to maintain the distinction, even if one result of the distinction is the stigmatization of same-sex relationships or if bias was one motivating factor.”
The Sevcik plaintiffs appealed Jones’s decision to the Ninth Circuit, which put the case on a parallel schedule to another unsuccessful marriage equality challenge out of Hawaii (Jackson v. Abercrombie) and placed the proceedings on hold in light of the Supreme Court’s consideration of the Prop 8 and DOMA cases. In addition, the Coalition for the Protection of Marriage, the group behind Nevada’s marriage equality ban, asked the Supreme Court to consider the case, a request which was denied after the decision in the Prop 8 case.
As we reported previously, the Ninth Circuit’s stay on the Sevcik and Jackson cases expired automatically on July 18 and the proceedings are now in the briefing stage. Originally, opening briefs were due August 19 and the defendants’ and intervenors’ briefs were due September 18, with reply briefs due October 2. However, in Jackson v. Abercrombie the Hawaii plaintiffs and the governor asked for an extension of time to file opening briefs, proposing a due date of September 18. The court granted the request. The September 18 date was then requested and approved in the Sevcik case as well. After opening briefs are due on September 18, answering briefs will be due October 18 and replies will be due early November.
Sibelius is right that the Sevcik case (as well as the Jackson challenge) could very well end up being the next big marriage equality case at the Supreme Court. Crucially, neither case presents the jurisdictional or procedural problems that the Prop 8 case did, since both states’ laws are being defended by state officials. We’ve been covering both challenges from the beginning here at EqualityOnTrial, and we’ll be following them as they progress at the Ninth Circuit.
July 25, 2013
Next page
Previous page
