Military Veterans Benefits will be Extended to Same-Sex Married Spouses

images-1The Department of Defense announced today that spouses of gay military members will be eligible to receive veterans benefits.  This is the latest announcement regarding the effects of the Windsor decision in which Section III of DOMA, limiting the definition of marriage to be between one man and one woman for federal law purposes, was found unconstitutional.

The Department of Defense had previously announced that military benefits would be extended to same-sex spouses. However, a decision on veteran’s benefits had been delayed because those benefits were separately governed under Title 38 of the U.S. Code, which includes its own provision defining marriage between a man and a woman. The Justice Department recently advised the Obama Administration that it considered Title 38’s definition of marriage unconstitutional for the same reasons as set forth in the Windsor decision. Following that advisement, Attorney General Eric Holder announced today that President Obama has directed the Executive Branch to take steps allowing for same-sex spouses of military veterans to collect federal benefits. The announcement comes after the House Bipartisan Legal Advisory Group (BLAG) recently decided to stop defending the Title 38 provisions in pending cases. Additionally, last week, a federal district court in California held the Title 38 provisions unconstitutional on equal protection grounds.

This decision clears the way for the same-sex spouses of military veterans to receive all veteran’s benefits, which include health care, disability and survival benefits and burials in national cemeteries.  The letter from the Attorney General to Congress outlining the decision can be read here.

IRS: All Same-Sex Marriages Recognized for Federal Tax Purposes

imagesThe IRS has announced that it will recognize all legal same-sex marriages for federal tax purposes, regardless of where the couple resides. Thus, even if a same-sex couple lives in or moves to a non-recognition state, such as Colorado, if they have obtained a marriage in a recognition state, then they will be treated as married for purposes of federal tax law.

The primary highlights of today’s announcement are:

– Same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA, and claiming the earned income tax credit or child tax credit.

– Individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations.  Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011, and 2012.

– Employees who purchased same-sex spouse health insurance coverage from their employers on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income.

To read the announcement in its entirety, go here.

Social Security Administration announces regulations for same-sex marriage claims

ssa_fB_Logo-e1373909751753Since the Supreme Court issued the Windsor decision in late June declaring Section 3 of DOMA unconstitutional, we have been awaiting clarification on exactly how federal benefits will be applied nationwide to same-sex married couples. If a same-sex married couple lives in a state that recognizes their marriage, i.e., a “recognition state,” then it is fairly clear that most federal benefits and burdens will indeed apply to that couple. However, if a same-sex married couple lives in a state that does not recognize their marriage, i.e., a “non-recognition state,” then the availability of federal benefits and burdens is unclear, and many will not apply.  The latest clarification to be released pertains to Social Security claims for same-sex spouses, officially referred to as “Windsor same-sex marriage claims.”

As of now, Social Security claims will be based upon the law of the couple’s state of residence.  Thus, only married same-sex couples who live in a state that recognizes their marriages will be eligible to receive the Social Security spousal benefit.  The decision appears to be based upon a regulation pertaining to Social Security claims that states a marriage is valid for Social Security purposes “if the courts of the State in which such insured individual is domiciled … would find that such applicant and such insured individual were validly married.”  To read the official release from the Social Security Administration, go here.

Other federal benefits and burdens that have been addressed since June include federal employee benefits, military spousal benefits and immigration.  Each of those have been applied more generously, based upon the state of celebration rather than of residence. The Office of Personnel Management released a Memorandum explaining that for purposes of federal employee benefits, the government will look to the state of celebration rather than the state of residence to determine whether federal employees can cover their same-sex spouses.  In other words, if a federal employee is in a same-sex marriage obtained in a state , that employee can cover his spouse under his federal employee benefits, regardless of where that couple resides. Similarly, the Department of Defense announced that spousal military benefits will be extended to the same-sex spouse of a military member, regardless of whether that couple lives in a recognition or non-recognition state.  Finally, Immigration and Naturalization Services now looks only to the state of celebration to determine whether a same-sex couple is entitled to spousal protection for immigration purposes, regardless of where they reside.


The Supreme Court Dismisses California’s Prop. 8

images-1On June 26, 2013, the U.S. Supreme Court issued their much anticipated decisions regarding the constitutionality of DOMA and Prop. 8. The Windsor decision, regarding DOMA, is addressed in the previous blog post. The Hollingsworth decision, regarding Prop. 8, is addressed below.

Hollingsworth v. Perry, Prop. 8

After the two couples challenging the constitutionality of Prop. 8 won in District Court, the State of California declined to appeal the ruling.  The proponents of Prop. 8 responsible for getting it on the ballot through the initiative process stepped in to appeal. When the Supreme Court granted certiorari, it specifically asked the parties to address whether the proponents of Prop. 8 had standing to bring the appeal.  In general terms, standing requires the party to have a specific legal or tangible harm that the court can remedy.

In a 5-4 decision written by Chief Justice Roberts, the Supreme Court dismissed the case based on its finding that the proponents of Prop. 8 did not have proper legal standing to appeal the lower court ruling. Proponents had argued that their participation in California’s initiative process in getting Prop. 8 on the ballot gave them a unique interest.  However, the Court disagreed, explaining that once Prop. 8 was approved, those who were involved in getting it on the ballot did not have any specialized interest in the law that was distinguishable beyond that of any other California citizen. “No matter how deeply committed petitioners may be to upholding Proposition 8 or how zealous their advocacy, that is not a ‘particularized interest’ sufficient to create [a basis for legal standing] … We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to do so. We decline to do so for the first time here.”

Based on this ruling, the Ninth Circuit opinion is vacated and the district court ruling remains in place. The practical effect of this decision is that Prop. 8 is history, mostly.  The truth is that technically, a district court can only make rulings that apply to the parties before it, rather than statewide.  Thus, the district court ruling could only apply to the two couples who challenged Prop 8 in court.  However, following the Supreme Court’s ruling, California Governor Jerry Brown directed state officials to begin issuing same-sex marriage licenses as soon as the Ninth Circuit lifts the previous stay on those marriages. Though it’s impossible to say for sure how long it will take, same-sex marriages will likely begin again in California in approximately thirty days from the date of the Supreme Court’s ruling.

Read the opinion in its entirety here.

The Supreme Court Rules DOMA Unconstitutional

imagesOn June 26, 2013, the ten-year anniversary of the historic Lawrence v. Texas decision, the U.S. Supreme Court issued their much anticipated decisions regarding the constitutionality of DOMA and Prop 8. The Windsor decision, regarding DOMA, is addressed below. The Hollingsworth decision, regarding Prop 8, will be addressed in a separate post to follow.

U.S. v. Windsor, DOMA

In a 5-4 decision written by Justice Kennedy, the Supreme Court held that Section 3 of DOMA was unconstitutional as violating the equal protection and due process rights of same-sex married couples. The Court consistently referred to the States’ exclusive authority to define marriage. However, the Court did not limit its ruling to the federal government’s constitutional overreach in defining marriage on the federal level.  Instead, it went further, finding that by taking a state-conferred status away from same-sex married couples based solely on discriminatory animus, DOMA deprived them of the liberty and equal protection guaranteed to them under the Constitution.

Justice Kennedy wrote at length about the over 1000 federal rights, benefits and responsibilities impacted by DOMA, including Social Security, housing, taxes, veterans’ benefits and healthcare benefits, that are withheld from same-sex married couples.  However, there were two other themes that stood out within his opinion: dignity through equality and children.  He noted that New York had used its exclusive and inherent authority to define marital relations to include same-sex couples and in doing so, “conferred upon them a dignity and status of immense import” and yet, “DOMA seeks to injure the very class of people New York seeks to protect.”

Relying on DOMA’s own text and legislative history, he concluded, “[I]nterference with the equal dignity of same-sex marriages … was more than an incidental effect of [DOMA]. It was its essence. … When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective … and writes inequality into the entire United States Code.”

With regard to the children of same-sex families, Justice Kennedy stated, “[DOMA] humiliates tens of thousands of children now being raised by same-sex couples. [It] makes it even more difficult for the children to understand the integrity and closeness of their own family. … It imposes a disability on [these couples] by refusing to acknowledge a status the State finds to be dignified and proper.  DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.  [DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”  Based on these findings, the Court held that Section 3 of DOMA is unconstitutional as a deprivation of equal liberty protected by the Fifth Amendment.

The reference to children is noteworthy because opponents of marriage equality have so often relied on alleged harms to children raised in same-sex families. However, with the Windsor decision, the Supreme Court has somewhat turned that argument on its head.  That portion of the opinion is premised on a belief that children in same-sex families are not harmed by their family but by discriminatory laws aimed at their family.

The effect of the Windsor decision in advancing gay rights cannot be overstated.  However, it will likely only immediately affect those couples who live in states that have marriage equality.  It does not change the current status of same-sex couples joined in civil unions under Colorado law.  Colorado’s Amendment 43 currently limits marriage to one man and one woman and will have to be repealed by a vote of the people.  The earliest that question can be on the ballot is November 2014.

Whether the Court’s decision to decide the case based on principles of equal protection and due process provides a basis to argue against state-law same-sex marriage bans remains to be seen.  Certainly on its face, the Court tailored the ruling to the State’s authority to define marriage, but the opinion and the legal authority upon which the Court chose to rely does not necessarily close the door to the expansion of further rights.  It seems certain future courts will be given the opportunity to weigh in on those issues.

Read the opinion in its entirety here.


Note: The DOMA case also included a question of whether the United States had standing to bring the appeal since it actually agreed with the lower court ruling and did not defend the law on appeal.  Prior to ruling on the merits, the Court found that because the United States was under an Order from the lower court to refund Ms. Windsor the $350,000+ her late spouse’s estate had paid in taxes, then it had a real and immediate injury as required to establish standing.


Failing to Update Your Life Insurance Beneficiary May Mean Your Ex-Spouse/Partner Receives the Proceeds

S.Ct. BuildingRarely does the Supreme Court weigh in on issues related to estate planning but in this term, it did just that.  The Court’s decision In Hillman v. Maretta centered on what happens when a decedent’s life insurance beneficiary is his ex-spouse, i.e., the decedent did not change the beneficiary designation after their divorce. Many states have laws addressing this circumstance. For example, in Colorado, state law dictates that upon divorce, any life insurance beneficiary designation naming the person’s ex-spouse is automatically revoked.  Virginia law, the state out of which the Hillman decision arose, has a similar law.  The Virginia law is two-fold.  First, it provides any designation of a spouse is deemed revoked upon divorce and the proceeds will be distributed as if the designation had never been made.  Second, it provides if the first part of the law is held to be preempted, then whoever would be entitled to the life insurance proceeds under state law may sue the former spouse to recover any proceeds paid.

In Hillman, the decedent was a federal employee and the life insurance policy at issue fell under the Federal Employees’ Group Life Insurance Act (FEGLIA).  FEGLIA provides that the proceeds of federal life insurance policies shall be paid to designated beneficiaries before anyone else.  There was no disagreement among the parties that FEGLIA preempted the first part of the Virginia state law regarding automatic revocation of an ex-spouse beneficiary. However, the dispute centered on the second part and those defending the state law argued that in FEGLIA, Congress was merely striving for the administrative convenience of knowing where to pay the funds, a convenience not disturbed by a subsequent lawsuit between the parties to recover those funds.

The Court rejected that argument.  Relying on legislative text and history, the Court reasoned that Congress sought not only administrative convenience but also to honor the employee’s choice of beneficiary.  The Court held that FEGLIA preempted both sections of Virginia’s law as interfering with Congress’ legislative scheme, because Virginia law hinges on a finding that the proceeds actually ‘belong’ to someone other than the named beneficiary.  The Court acknowledged that “[o]ne can imagine plausible reasons to favor a different policy” as employees often forget to update beneficiaries following divorce.  However, the fact remains, FEGLIA does not provide an exception or divorce revocation and under the principles of preemption, it controls over Virginia’s state law in this area.

In Hillman, this meant that the insurance proceeds went to the decedent’s ex-wife, rather than to the woman that was his wife at the time of his death.

Though this decision is limited to life insurance policies tied to federal employment, it serves as a reminder to review and update your estate planning regularly, including your life insurance beneficiary designations.

To read the opinion in its entirety, go here.


Parental Rights for Same-Sex Couples

The Colorado Civil Union Act went into effect on May 1, 2013 (with the exception of certain provisions related to insurance).  Briefly addressed below are parental rights and options available to same-sex couples with relation to children, including children that have been in the family and children that are new to the family.


With the passage of the Civil Unions Act, same-sex couples can now jointly adopt children.  In order to do so, the couple must be parties to a civil union.  The process can be lengthy, and will include a home study and a parenting class.

Of note, one party to a Civil Union can not adopt a child on their own.  A party to a Civil Union is required to jointly adopt with the other party to the Civil Union, unless the parties are legally separated.


This is a tool that was available to same-sex couples prior to the Civil Union Act, and continues to be available to same-sex couples where appropriate.

Second-parent adoptions encompass a variety of family circumstances in addition to same-sex couples.  For a second-parent adoption the sole legal parent must consent in writing to the adoption and must confirm that the child only has one legal parent.

The second-parent adoption process requires a home study and will also include a background check through three separate agencies.  Additionally, the adopting parent is now being required to also attend a parenting class.


The step-parent adoption process has been available to opposite-sex couples for quite some time, but one requirement was that the parties be married.  The marriage requirement meant that this process was not available to same-sex couples.  However, with the passage of the Civil Union Act, this process became available to same-sex couples.  This process is generally less expensive and less invasive than the second-parent adoption process.

For a step-parent adoption, a legal parent (natural or adoptive) must be in a marriage or civil union with the potential adoptive parent, that same legal parent must consent to the adoption, and the child must be available for a step-parent adoption.

Available for adoption includes, but is not limited to:

  1. Other biological or adoptive parent is deceased;
  2. Other biological or adoptive parent’s parental rights have been relinquished or terminated;
  3. Other biological or adoptive parent consents to the termination of their rights and the adoption by the step-parent;
  4. Other biological or adoptive parent’s parental rights are being terminated as part of the adoption proceeding, but certain conditions must be met;
  5. The child was conceived and born out of wedlock (this includes when a child is conceived through assisted reproductive services).

Unlike the second-parent adoption process, a home study and parenting class are NOT generally required.  The process does require a background check through three agencies.


If the child was conceived prior to the parties entering into a civil union, you will need to use the step-parent or second parent adoption process in order for both parties to have parental rights.

If the child was conceived after the parties entered into a civil union, then that child will be presumed to be the child of both parties to the civil union.  As such, no adoption is legally required in the State of Colorado.

In both situations, the parties are advised to consider obtaining a special Medical Power of Attorney in an effort to ensure the protection of the child and the non-birth parent in case the birth parent is unable or unavailable for medical decisions related to the birth parent or the child.


You will be required to file a specific Petition and other attendant legal documents for each adoption.  The Court will then schedule a hearing.  In step-parent adoptions, the hearing will be scheduled as soon as possible.  In other types of adoptions, the hearing will be scheduled for a date after the child has been in the adoptive home for at least 182 days.

Additionally, if the adoptive child is 12 years of age or older, their consent to the adoption will be required.


Disclaimer:   This post only offers general information and is not intended to provide legal advice regarding any person’s specific situation and does not create an attorney-client relationship of any kind.  The area of law discussed in this post is new to Colorado and is an area of the law that is constantly evolving on a state and national level, as such there is bound to be uncertainty regarding this area.   If you have specific questions, encounter difficulties with your own relationship, or need other legal advice, you are encouraged to contact an attorney that practices in this area. 


Dissolution of Same-Sex Marriages and Civil Unions From Other States – Can I? Why Should I?

legal gavel on top of divorce papersColorado’s new Civil Union law goes into effect in less than forty-eight hours and there is an almost palpable air of excitement.  Colorado’s LGBT community will finally have at least some legal recognition as well as legal rights, responsibilities and protections that have been denied them in the past, including a method for dissolution.  It isn’t marriage equality, but it is a strong step in the right direction.

One noteworthy aspect of the new Civil Unions law is the dissolution procedures. The new Colorado law provides that the divorce/dissolution procedures that apply to marriages will now equally apply to civil unions.  This is exceedingly relevant to many same-sex couples residing in Colorado who have previously entered into a marriage, civil union or similar legal relationship in other states or countries, such as New York, Massachusetts or Canada.  Just as with heterosexual couples, some of those relationships have not worked out.  However, unlike heterosexual couples, many have been unable to obtain a formal divorce or dissolution because Colorado has not recognized their legal relationship.

In many states and countries that offer same-sex marriage or civil unions, meeting residency requirements in order to obtain a marriage or civil union is easy, often 24 to 48 hours.  By contrast, in order to obtain a divorce or dissolution, at least one of the parties has to meet the more strenuous dissolution residency requirements, often six months to one year. Traditionally, this prevented spouses from forum-shopping for favorable divorce laws but it has created chaos for same-sex couples.  For example, in New York, at least one of the parties to a marriage obtained in New York must be a resident of the state for one year prior to the filing of a divorce action.  See N.Y. Dom. Rel. Law §§ 230, 231.  If both parties already live in a different state, obviously the idea of picking up one’s life, job, possibly children and moving to New York for a year is simply not realistic.  However, if neither party is residing in a state that recognizes their legal relationship, such as Colorado pre-May 1, 2013, then that state also will not generally grant them a divorce or dissolution.  There is no legal process available to them to end their relationship, and no set procedure for dividing their property and/or their debt, nor for deciding issues related to any children they have, including visitation schedules and/or child support. These couples are literally left in perpetual limbo, oftentimes facing complications and obstacles when they subsequently try to purchase a new home or start a new business or maybe even enter into a new relationship because in certain states, they are considered married to someone else even though they cannot obtain a divorce.

Colorado’s Civil Union law provides some relief to Colorado residents who have found themselves in this limbo.  The new law provides that any out-of-state marriage, civil union or substantially similar legal relationship is “deemed” a Colorado civil union.  Thus, same-sex couples who have already obtained a marriage or civil union in other jurisdictions will have the same state rights and responsibilities that married couples enjoy.  This is welcome news for many couples who already obtained legal status elsewhere and will not have to go through another legal procedure in their home state in order to enjoy legal recognition. However, it is also welcome news for those couples who are no longer together but have been unable, for the reasons discussed above, to obtain a formal dissolution.  They can now use Colorado’s dissolution procedures to formally and legally terminate their relationship.

Of course, this new legal recognition of existing legal relationships from other jurisdictions is a double-edged sword. Some couples who were previously married or otherwise legally joined elsewhere have since informally ended their relationship and managed to resolve or work out any financial issues, decisions pertaining to children, etc.  Thus, the fact that their previous marriage or civil union will now be deemed a civil union under Colorado law is not altogether happy news.  However, dissolving that relationship through the dissolution procedures is generally being viewed as a necessary step so that all parties can move forward free of any future liabilities or legal entanglements, and be able to enter into a civil union someday with a new partner.

Additionally, the Colorado legislature was likely aware of the nationwide problems arising for other same-sex couples seeking a dissolution or divorce that do not reside in the state in which they were joined.  The Civil Unions Act specifically includes a provision that allows Colorado courts to retain jurisdiction of proceedings related to a civil union entered into here, even if one or both parties cease to reside in this State.  Under the law, if parties to a civil union entered into in Colorado move to or reside in a state that does not recognize their relationship and/or will not grant a dissolution, they can file for dissolution in Colorado even though neither party resides here.  In 2012, California enacted similar legislation providing that if a couple got married in California during the window in 2008 when same-sex marriage was recognized but lives in a state that will not grant them a divorce, the California court will have jurisdiction to grant them a dissolution.  The divorce case will be filed in the county where the couple got married and the dissolution is supposed to be adjudicated “in accordance with California law.”

As of May 1, 2013, Colorado same-sex couples, and former couples, will have a mechanism to dissolve their legal relationship even if it was formed in another state.  This is a tool that will definitely be beneficial to some Colorado residents.

For more information and to see a map of same-sex dissolution laws by state take a look at this article.

For an in depth look at the same-sex couple divorce dilemma check out this great article in the New York Magazine.

Supreme Court Prop 8 Oral Arguments – Extensive Analysis

The dust has settled on the Prop 8 oral arguments and many have written and rewritten their predictions.  Using oral arguments to predict a ruling from the United States Supreme Court is questionable, at best.  Among other things, Justices tend to play devil’s advocate during oral arguments and therefore, the questions they pose do not necessarily reflect their own conclusions.  However, it is a game everyone, in and out of the legal field, tends to play. The game is made even more difficult to navigate here where there are so many possible rulings.

I. Standing

The initial question in the Prop 8 case is standing.  Generally, in order to have ‘standing’ to bring an action, a party must have a specific legal injury.  Following the initial trial, where the District Court ruled that Prop. 8 was unconstitutional as a violation of the equal protection and due process rights of gay and lesbian Californians, the State of California declined to appeal the ruling.  Afterward, a portion of the individuals who were responsible for getting Prop 8 on the ballot through the initiative process stepped in to appeal. The Ninth Circuit certified a question to the Supreme Court of California asking if the parties had standing to do so and the California Supreme Court answered in the affirmative.  The Ninth Circuit then ruled that Prop 8 was unconstitutional as a violation of due process rights.

The proponents of Prop 8 maintain that because the State of California has standing to defend the law, it also has the authority to delegate defending it to a third-party.  They also argue, in accordance with the California Supreme Court ruling, that failing to recognize standing of the people who placed the initiative on the ballot would thwart the entire initiative process. Justice Alito seemed to go along with this argument, noting the whole point of an initiative process was to allow people to circumvent public officials of whom they were suspicious.  If the only people who could defend laws passed by initiative were public officials, then the whole purpose would be defeated.  Justice Sotomayor voiced a similar concern.

Justices Ginsburg and Kagan were skeptical of the proponents’ standing. Ginsburg noted she understood their roles in getting an issue on the ballot, but questioned whether once the law passed, they held any more interest than any other member of the citizenry.  Kagan asked whether the State of California could just delegate the authority to anyone to defend a law. When proponents’ counsel answered in the affirmative, Chief Justice Roberts interrupted, stating that such a scenario would make the standing requirement basically meaningless.

Justice Sotomayor noted the distinction between a State official, who inherently has a fiduciary duty to the State, defending a law and a general member of the citizenry who does not owe such a duty. Justice Scalia seemed to dismiss this concern, stating that the Attorney General does not have a ‘proprietary’ interest in a particular law but can generally defend it because the law provides him that authority. Presumably, Scalia was implying that proponents could do the same if the Court recognized California’s right to delegate such authority, but that implication is mere speculation and I would never deign to presume too much where Justice Scalia is concerned.

Chief Justice Roberts questioned the Court’s approach in assuming the State of California or the current Prop 8 proponents were the only two options for parties with standing. He specifically noted there may be people in California who are actually injured by the striking down of Prop 8 who could properly challenge it, perhaps people who perform marriages but who do not want to perform them for same-sex couples.

Justice Breyer’s inquiries were split.  He described a strong argument in the briefing that proponents did not have any special interest beyond the rest of the citizenry and that they’re really nothing more than a few citizens who feel ‘really strongly’ the law should be enforced. He also noted that allowing the proponents to defend the law would introduce a ‘public action’ into the federal system, and there is nothing in the federal law providing for that.  However, he questioned why, if the Court were inclined to find the State of California could delegate the authority to defend its laws, it couldn’t delegate said authority to the proponents.  Justice Kennedy indicated that going through the initiative process to get an issue on the ballot may be sufficient to set proponents apart from the general citizenry and allow them standing.  On a similar note, Scalia questioned the effectiveness of State officials, who did not want to defend a law, choosing those who would defend it.

II.  Merits

The proponents’ primary arguments in favor of Prop 8 are two-fold. First, marriage is a gendered institution and the primary purpose of marriage is procreation.  Second, same-sex marriage is too new to know the societal harms it may inflict. Their use of these two propositions is illustrated below.

Justice Kennedy asked proponents’ counsel whether the question could be treated as one of gender classification, indicating it was a question with which he had wrestled.  Justice Sotomayor asked proponents’ counsel whether the government was ever justified in denying gays and lesbians other benefits, such as employment, or imposing burdens on them. When proponents’ counsel basically answered no, she asked why then shouldn’t they be treated as a class so that government had to meet certain standards in order to discriminate against them, and what made marriage different.

Proponents’ counsel answered that gays and lesbians do not meet the traditional tests for being treated as a class.  He also argued that the question of whether the government can discriminate against them in other contexts, such as employment, is distinguishable from the Prop 8 case because in that situation, the government would be discriminating between similarly situated individuals as employees and probably based upon arbitrary and capricious reasons.  In the context of marriage, however, gay couples and heterosexual couples are not similarly situated because heterosexual couples can procreate, while gay couples cannot.  Proponents contend the State has an interest in regulating marriage and the purpose of marriage is procreation.

Justice Kagan then noted that might be a reason to not include them in marriage, but questioned a reason to exclude them.  She explained that perhaps same-sex couple’s do not serve the State’s interest in procreation but asked if they somehow harm a State’s interest?  This brought proponents’ counsel to his second primary argument, same-sex marriage is too new to know what societal effects may result and they propose that such effects could be adverse.  When he failed to come up with a specific harm, but refused to concede there wasn’t one, Justice Scalia offered him an allegedly concrete harm, stating that there was “considerable disagreement among sociologists about whether” it was harmful to raise children in same-sex households.  (Because this is so egregious, I will make an exception to my usual restraint from adding personal commentary to note, Justice Scalia’s statement is an absolute falsehood.  Every national, professional psychological and medical association has expressly found, including the American Academy of Pediatrics as early as 2002, that there is no link between parents’ sexual orientation and a child’s emotional well-being).

On this note, Justice Ginsburg stated that the idea of societal harm resulting from same-sex couples raising children was irrelevant to proponents’ argument because California allows adoption by same-sex couples.  Scalia countered that the opponents of Prop 8 were seeking a nation-wide ruling as well.

Justices Kagan and Breyer asked proponents’ counsel to explain why it did not violate the Constitution to prohibit gay people from getting married but it would be a violation to prevent infertile couples or people over the age of 55 from getting married.  On the latter, Proponents’ counsel stated that it was rare for a male to outlive his fertility and that the societal norm of marriage imposes fidelity and monogamy upon a couple and therefore, would prevent irresponsible procreation by the male party in that marriage.  As to the former, proponents’ counsel stated that allowing marriage to be a genderless institution shifts the focus away from procreation.

Chief Justice Roberts noted that through civil unions California gays and lesbians have every other state right heterosexual couples have so why should the State be required to change the definition as it’s just a label.  Counsel for the opponents of Prop 8 countered that certain labels matter, such as “citizen.” He also argued that in cases such as Lawrence and Skinner, among others, the Court had held that marriage was a fundamental right based on privacy, intimacy, status and recognition, not just procreation, and all those things apply to same-sex couples.

Justice Scalia made it abundantly clear that he would not rule in favor of recognizing a constitutional right to marriage for same-sex couples, not that this was a surprise.

Kennedy, who most see as the possible swing vote, stated that he thought the Ninth Circuit’s ruling was based on an odd rationale.  In all likelihood, opponents of Prop 8 found this statement more discouraging than any other because the 9th Circuit’s decision was based almost entirely on the rationale of Justice Kennedy’s opinion in Romer v. Evans, wherein the Court struck down a Constitutional amendment in Colorado that prohibited anti-discrimination protection of gay citizens in both the public and private sphere.  In the Prop 8 arguments, though, Kennedy stated that applying that rationale would mean penalizing a State that had been generous in the rights it granted to gay couples.

Sotomayor brought up the slippery slope argument, asking whether it would be permissible then for a State to prohibit polygamy or set a minimum age at which one could get married.  Prop 8 opponents responded that those regulations would pertain to conduct, while prohibiting same-sex marriage denies rights to people based on status, which is not constitutional.

Kennedy stated that he thought the opponents of Prop 8 were asking the court to enter into uncharted water with very little sociological evidence. Though he did not note that there was an immediate injury to the approximately 40,000 children in California who were being raised by same-sex couples and who wanted their parents to have full legal status.  But he returned again to the ‘newness’ of gay marriage and questioned whether they should have granted certiorari in the case, especially given the standing issue and also noting that interracial marriage had been present for 100 years in common law countries before they decided Loving v. Virginia.  Justice Alito stated that gay marriage was newer than cell phones and the internet.  Justice Sotomayor joined this thinking, asking if there was any reason they had to decide this issue now when they let segregation percolate for over 50 years before they decided Brown v. Board of Education.

The Solicitor General also argued on behalf of President Obama’s administration that Prop 8 was a violation of equal protection because California gave all of the rights of marriage to same-sex couples, but denied them actual marriage.  This would mean that the nine states that do not allow same-sex marriage but allow gay and lesbian couples all of the other benefits of marriage must open marriage to them as a matter of equality.  The Justices sharply criticized this argument.

III.  Possible Rulings

a.  Dismissing as Improvidently Granted.  There has been some discussion regarding whether the Court could dismiss the case as improvidently granted, saying, in effect that the Court should not have accepted the case.  In that situation, the case is simply treated as if the Court had never granted certiorari and the appellate court decision stands. While not common, the Court did issue such a ruling just last year in First American Financial Corp. v. Edwards, No. 10-708, a case based entirely on standing, wherein the Court heard oral arguments in November 2011 but did not dismiss it as improvidently granted until the last week of June 2012.

b.  No standing.  If a majority of Justices were to find that the proponents of Prop 8 did not have standing, then the ruling of the Ninth Circuit would be vacated and, in all likelihood, the district court ruling would be considered reinstated, meaning Prop 8 would be stricken as unconstitutional.  Though, a party with possible standing could challenge that ruling in the future.

c.  Standing, nation-wide ruling.  If the Court ruled Prop 8 proponents do have standing, the Court could issue a nation-wide ruling that same-sex marriage is a fundamental constitutional right and must be available to all United States citizens.  This ruling seems unlikely.

d.  Standing, CA only.  If the Court ruled Prop 8 proponents have standing, the Court could follow the Ninth Circuit’s ruling, which is limited to California, based on the Romer rationale discussed above.

e.  Standing, 9-State rule.  If the Court ruled Prop 8 proponents have standing, the Court could rule that once a state has provided by law that same-sex couples will have the same rights as heterosexual couples, as California did (as well as 8 other states), there is no legitimate justification for denying those couples the status of “marriage” itself.   Based on this reasoning, such a conferral of second-class status must be designed merely to stigmatize some couples on the basis of sexual orientation, something the Constitution forbids. This ruling also seems unlikely.

f.  Standing, Uphold Prop 8.  The Court could rule to reverse the 9th Circuit decision and uphold Prop 8 as a reasonable exercise of a State’s power to regulate marriage and protect it as a focus of procreation.  Such a ruling would not mean that same-sex marriage was prohibited anywhere else in the nation, but it would mean that bans on such marriages were constitutional.

g.  No majority ruling.  If the Court issues a ruling, but does not have a 5 vote majority on any one ruling, then the 9th Circuit’s California only decision would become final.  That court would remove the temporary order blocking marriages and same-sex couples could resume getting married in the state.

As a disclaimer, my own prediction may admittedly be swayed by my personal preference because these arguments did not fill me with confidence with regard to any ruling on the merits.  Without even addressing standing at this point, I feel confident this Court is not going to issue a ruling that proclaims the fundamental right of marriage extends to same-sex couples. I think certain conservative Justices want to rule on the merits of this case because they want to uphold Prop 8.  However, I don’t think either side is going to reach a majority without Justice Kennedy.  Justice Kennedy has always been a strident defender of the preservation of state’s rights.  It is upon this basis I believe he will rule in favor of striking down Section 3 of DOMA, but that creates an interesting conflict for this case.  Still, I find it difficult to conclude Justice Kennedy wants to uphold Prop 8 but he seemed relatively clear he would not strike it based upon the reasoning of the Ninth Circuit, and that leaves him with few options as he seemed even more unlikely to rule in favor of a nation-wide ruling (and there would not be a majority for that ruling, regardless).  I think the Court will either find that the proponents of Prop 8 do not have standing and therefore never reach the merits, or they will do exactly what they did last year in the First American case and dismiss as improvidently granted.  In either situation, Prop 8 would be considered unconstitutional for the time being.

– Jenny Evans

Supreme Court Oral Argument in DOMA case – full transcript and link to audio

This morning the Supreme Court heard oral arguments in United States v. Windsor, Case No. 12-307. In this case, Edie Windsor is challenging the constitutionality of the “Defense of Marriage Act” (DOMA), a federal statute that defines marriage for all federal purposes as a legal union between one man and one woman as husband and wife.  Mrs. Windsor shared her life with her late spouse, Thea Spyer, for 44 years.  They were married in Canada in 2007, and were considered married by their home state of New York. Spyer died in 2009. Because DOMA refuses to recognize otherwise valid marriages of same-sex couples, Spyer’s estate had to pay more than $350,000 in federal estate taxes.  A heterosexual couple in the exact same circumstance would not have had to pay any taxes, pursuant to the estate marital tax deduction.  Mrs. Windsor is seeking to have DOMA declared unconstitutional, an argument she won at the lower court level.

Read and/or download the transcript here.

Listen to the audio of the oral argument here.

As with the Prop 8 arguments that occurred yesterday, we will post our thoughts on the arguments in the next few days.