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Welcome to our Blog, we are glad you are here.  At Martin Law Office LLC, we pride ourselves on working hard for our clients while also working hard to strengthen and improve our community.  This blog is intended to be one of the tools we use to further those efforts.  If there is one thing you can ALWAYS say about the law, it is that the law is ever changing.  Some changes are good, and of course, some are also bad.  As attorneys, we strive to keep up with the changes that impact our clients and our community, especially the LGBTQ community.  Laws and their impact on the LGBTQ community are currently in a constant state of change.  As the LGBTQ community continues to struggle for equal rights, responsibilities and protections under the law, we are dedicated to staying informed about the changes.  We hope to utilize this blog as a tool for keeping you informed on some of the significant changes.  It will not be possible to update this blog with every change in the law, but we hope to do our best to keep you up to speed on the current trends in the law, significant legislative news, significant cases that relate to the LGBTQ community and its allies, as well as general news you can use.  So, please come back often to check out the latest information, or subscribe so you don’t miss a post.

Again, thank you for visiting our blog.

LGBTQ Legal Concerns Following the 2016 Election

images-1We have been receiving a lot of questions from our clients and community members wondering what the recent election of Trump means to their legal rights.  The answers are complex and not entirely known at this point.  However, here is some of the information we can give you at this point:

Marriage

Trump has said that he would “strongly consider” appointing justices to overrule the decision on same-sex marriage.  Following that statement, Trump named Indiana Governor Mike Pence as his running mate.  Pence has a long history of taking anti-LGBT positions.  Both Trump and Pence have also repeatedly stated that they believe the right to marry should be a state’s rights issue, which is contrary to the Supreme Court’s ruling in Obergefell.  But it is important to understand that it would take a complex concurrence of events to challenge the Obergefell decision.

The President does not have the authority to overturn a Supreme Court decision, but he does have the ability to appoint Supreme Court Justices that would have that power.  Right now there is one opening on the Supreme Court, it was vacated by Justice Scalia.  The Obergefell decision was a 5 to 4 decision, with Justice Scalia being one of the 4 dissenting Justices.  This means that if Trump appoints a Justice to fill Scalia’s seat that is opposed to marriage equality, the make-up of the Court would be the same as it was when Obergefell was decided.  As such, there would not be sufficient votes to overrule the decision.

The difference comes if one of the other Justices were to retire or pass away.  The eldest Justices are Ruth Bader Ginsburg (age 83), Anthony Kennedy (age 80) and Stephen Breyer (age 78), and all three were part of the majority ruling in favor of marriage equality.  As such, if one of them leaves the bench, then Trump will nominate their replacement.  If he does nominate a Justice that is opposed to marriage equality and/or other LGBTQ issues, then the makeup of the Court will change and the majority would be opposed to marriage equality and other LGBTQ rights issues. (We are not going to get into the Supreme Court nominating process in this post, but we want to acknowledge that the nominee must go through an appointment process and the make-up of the Senate and the House at the time could be important to the outcome).

Even if Trump were to fill two seats on the Court, and both replacements were anti-LGBTQ rights, that does not mean that marriage equality will be overturned.  It is rare that the Court overturns a major decision, especially this soon after the ruling, as legal doctrine provides that the Court should respect and follow their own prior rulings.  That, however, does not mean that groups won’t try. Those groups would need a conflict on the issue of same-sex marriage sufficient to compel the Court to revisit the issue.  An example would be a state passing a law that inhibited or barred same-sex marriage in that state, something similar to what Tennessee attempted, to no avail, earlier this year.

What if the Obergefell decision was overruled? Well there is ample legal authority for the fact that a marriage that was valid when entered cannot be invalidated by a subsequent change in the law.  So people that are already married should not be concerned that their marriages will be invalidated.  For individuals that are not already married, but may want to do so in the future, if Obergefell was overruled then the right to marry would likely become a state’s rights issue, meaning it would depend on the state where you lived.  In Colorado we would likely lose the right to marry, in light of our Constitution, and would fall back to civil unions. Keep in mind, this is really an unlikely outcome and definitely not one that will happen in the immediate future.

The wrinkle that is FADA (the First Amendment Defense Act).  FADA was a federal bill introduced in 2015.  FADA is relevant to this discussion because in September of 2016 Trump vowed to sign FADA if passed by Congress (it has not passed Congress up to this point).  FADA essentially aims to prevent the federal government from enforcing marriage equality by preventing the federal government from taking punitive action against individuals, corporations, or organizations that discriminate against same-sex married couples.  FADA would effectively legalize discrimination against same-sex married couples. We are not going to get into all of the details of FADA here, but you can read more about it here.  For this discussion, understand it would not prevent or eliminate the right to marry, but it would give people and businesses the right to discriminate against same-sex married couples.

Children

Adoption laws, and other laws related to families, are state laws and not federal laws.  In the State of Colorado there are various ways to establish parental rights to children, to include adoption by both parties, second-parent adoption, step-parent adoption, and obtaining an Order under the Colorado Uniform Parentage Act.  If you have obtained parental rights over your child(ren) using any of these methods, neither the President or the Federal government can take your rights away.  Each of the above methods results in a Court decree or order, which is intended to be permanent and pursuant to Supreme Court case law must be recognized by Courts in all 50 states.

In the State of Colorado, our law also provides that if a child is born during a marriage (or conceived during a civil union) the child is presumed to be the child of both parties to that marriage/civil union.  As this is a state law, federal law cannot change it.  However, this law only creates a presumption.  So, if you are the non-birth or non-donor parent, and you are relying on this law for your parental rights, you should understand that not all states may recognize your parental rights.  So, if something were to happen while you are visiting another state, or if you should move to another state and then divorce or experience the death of the other parent, that presumption may not be recognized.  To eliminate this risk, it is important to consider obtaining a court order.  In this instance, we use Colorado’s Uniform Parentage Act to help our clients obtain an Order determining the parent-child relationship, which is a relatively simple process, but results in an Order that ensures your rights to your child.

Bottom line, if you have a Court order/decree there is no risk to your parental rights.  If you do not, then you should consider options for obtaining an order/decree.

Discrimination Laws

We can anticipate seeing more states and local communities considering bills to allow individuals, business, and organizations, to discriminate against people based upon “sincerely held religious beliefs and moral convictions,” as well as bills to impact bathroom use by transgender individuals.  These laws have yet to go before the Supreme Court, so the make-up of the Court will be critical to the outcome.  If upheld these laws would allow hotels, bakers, photographers, etc. to discriminate against same-sex couples seeking to get married or just use their services, and/or would require people to use the bathroom that corresponds with their biological sex.  These laws will need to be closely watched, as they were hot button issues last year for the anti-LGBTQ groups and will likely be even bigger issues this year in light of the new administration.

Right now, the law in Colorado is that people and businesses cannot discriminate against you based upon your sexual orientation or gender identity.  As such, businesses are not allowed to refuse to provide services to a same-sex couple seeking to get married, or refuse to serve anyone that is LGBTQ.  The law in Colorado also provides that individuals can use the bathroom which is consistent with their gender identity.  As such, any changes to these laws would have to come through the Colorado legislature or by way of a Court ruling that the laws are unconstitutional or violate constitutional rights of certain people.  An example of how a Court ruling could arise would be the Colorado case related to the baker that refused to bake a cake for a same-sex couple’s wedding.  That case is currently pending and the baker is asking the Supreme Court to review it to determine if the law infringes on the baker’s rights, as he does not want to bake cakes for same-sex marriages and claims forcing him to do so violates his religious freedoms.

Executive Orders and Policies at Risk

Trump has stated that he intends to void President Obama’s Executive Orders shortly after being sworn into office.  Whether this will occur, to what extent, and when, is still to be seen, but it is a risk worth understanding.  The executive actions at risk include rules that protect LGBTQ people from discrimination by federal contractors, discrimination in healthcare and insurance, discrimination in HUD-funded programs and housing, bathroom usage in public schools under Title IX, as well as prison rape elimination regulations, and guidance on immigration visa petitions.

Additionally, transgender individuals are currently able to change their gender markers on their passport and social security cards without being required to document sex reassignment surgery.  This was the result of policies from the State Department and the Social Security Administration.  These policies may also be at risk under a new administration.  I would note that if Trump were to void all of President Obama’s Executive Orders that would not eliminate these policies, instead what would have to occur are policy changes within both agencies.  That said, if you are considering changing your gender markers, you might want to get that taken care of sooner rather than later, or at least keep an eye on Trump’s appointments to these agencies. The name change process is a different matter, as that process is a matter of state law.  As such, the President and/or the Federal government cannot change this process.  Furthermore, the process results in a Decree of Name Change, which must be recognized and honored by all Federal agencies.

EEOC Rules Title VII Prohibits Sexual Orientation Discrimination

sexual-orientation-discrimination-illegalOn July 15, 2015, the Equal Employment Opportunity Commissioner (EEOC) issued a decision, in a 3-2 vote, that Title VII of the 1964 Civil Rights Act forbids sexual orientation discrimination in employment as a form of gender discrimination.  This decision comes three years after a similar EEOC decision in which the Commission ruled discrimination based on gender identity is also gender discrimination. The ruling on transgender employment rights has been broadly accepted by the federal courts.

In years past, courts have consistently ruled that Title VII does not prohibit employment discrimination based on sexual orientation.  Thus, the LGBT community had to rely on states to pass employment protections. Currently, only 21 states and D.C. have passed such laws regarding sexual orientation, and only 18 states and D.C. also prohibit discrimination based on gender identity.

Breaking down the EEOC’s decision, it began with noting that Title VII’s provision prohibiting sex discrimination has been interpreted to mean that employers may not rely upon “sex-based considerations” or take gender into account when making employment decisions.  The Commission concluded that sexual orientation is inherently a “sex based consideration.”

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action. …. The same result holds true if the person discriminated against is straight.

The Commission noted that such discrimination was also “sex discrimination because it is associational discrimination on the basis of sex.”  In other words, an employee alleging discrimination on the basis of sexual orientation is alleging their employer took their sex into account by treating them differently for associating with a person of the same sex.  The theory of associational discrimination is not new and has been consistently applied for decades in the context of race discrimination claims under Title VII.  “In applying Title VII’s prohibition of race discrimination, courts and the Commission have consistently concluded that the statute prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship.”

The Commission also found that sexual orientation is sex discrimination because it is inherently based upon gender stereotypes, which has been ruled to be prohibited by Title VII.  “Sexual orientation discrimination and harassment “[are] often, if not always, motivated by a desire to enforce heterosexually defined gender norms.'”

It is important to note that the EEOC’s decision and underlying interpretation of Title VII is not binding on federal courts.  Additionally, the next president could appoint Commission members who would rule differently and they could reverse this divided opinion. Until the Supreme Court weighs in, lower courts may choose to accept or reject the EEOC’s reading of Title VII. However, relevant agency interpretations, such as the EEOC in employment discrimination matters, are generally given great deference by the courts.

We have a long way to go and there is no way to predict how long it will take before a case is presented to the U.S. Supreme Court regarding whether Title VII prohibits sexual orientation/transgender employment discrimination.  But there is currently little hope of Congress even voting upon much less passing the Employment Non-Discrimination Act, which would explicitly prohibit employment discrimination nationwide based upon sexual orientation or gender identity.  Thus, this is very promising news for those LGBT individuals who live in states that do not provide any employment protection.

To read the EEOC opinion in its entirety, go here.

Updated: SCOTUS Rules in Favor of Marriage Equality

US-JUSTICE-GAY-MARRIAGE

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered. …. Obergefell v. Hodges, 576 U.S. ____ (2015).

In a 5-4 opinion penned by Justice Anthony Kennedy, the Supreme Court of the United States ruled today that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, thereby making marriage equality the law of the land.

There are lovely passages in the opinion and in this initial analysis, we will try to cover the legal bases of the ruling, as well as the memorable prose. We’ll also point out the areas that might prove legally significant in future cases involving LGBT rights.

Justice Kennedy wrote that same-sex couples are entitled to the right to marry under both the Due Process and Equal Protection Clause. He spends a lot of time discussing the history of marriage, illustrating that it has never been a stagnant institution but has instead changed as the law has recognized rights of people it had not previously recognized. He notes that marriage began as an agreement between the couple’s parents; then became a voluntary agreement between a man and a woman but, under laws of coverture, was still viewed legally as a single, male-dominated legal entity. As Justice Ginsburg noted during oral argument in this case, the opinion notes that coverture laws were abandoned as society and then courts began to see that women have their own equal dignity in the law. Justice Kennedy notes that these transformations were not superficial, but affected aspects of marriage long viewed as essential, and that these transformations strengthened, rather than weakened, marriage.

The majority opinion then goes through a similar analysis regarding the history of gay rights in this country. Justice Kennedy notes that in many western nations, homosexuality was considered criminal and therefore, “A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.” He also notes that for much of the 20th century, it was treated as an illness. “Only in recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”

Beginning with due process, the majority states, “The nature of injustice is that we may not always see it in our own times …. When new insight reveals discord between the constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” The Court notes four principles of due process that mandate a ruling in favor of marriage equality.

First, the right to personal choice regarding marriage is inherent in the concept of individual autonomy. “Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make” and “choices about marriage shape an individual’s destiny.” Citing Loving v. Virginia, the Court states, “There is dignity in the bond between two men and two women who seek to marry and in their autonomy to make such profound choices.”

Second, the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The Court quotes its previous decision in Griswold v. Connecticut, “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Notably, the Court also notes that it protected the autonomy of same-sex couples in Lawrence, “But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”

Third, marriage equality safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education. The Court notes that most states allow same-sex couples to adopt, providing “powerful confirmation from the law itself that gays and lesbians can create loving, supportive families. …. Without the recognition, stability and predictability marriage offers, their children … suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

Fourth, marriage is a keystone of our social order. “The states have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from this institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. …. Same-sex couples are consigned to an instability many opposite sex couples would deem intolerable in their own lives.”

In addressing the dissenters’ argument that petitioners do not seek to exercise the right to marry but instead want a nonexistent right to “same-sex marriage,” the majority references previous cases involving the right to marriage, noting that Loving did not ask about ‘interracial marriage’, Turner did not ask about ‘right of inmates to marry,’ and Zablocki did not ask about a ‘right of fathers with unpaid child support to marry.’ Each of those cases inquired about “the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding” the relevant class at issue, just as same-sex couples ask now.

The Court makes a point of saying that the First Amendment prohibits a state from forcing a church to perform same-sex marriages. However, also notes that the Constitution prohibits personal opposition from becoming the law and policy of the State.

The Court also finds that marriage equality is guaranteed by the Equal Protection Clause and that this is inextricably intertwined with principles of Due Process, just as Loving struck down bans against interracial marriage on both due process and equal protection grounds.

This brings us to a more indirectly significant portion of the opinion.

Generally speaking, when addressing equal protection, courts apply a particular standard, oftentimes referred to as a “level of scrutiny,” to decide whether a law denies equal protection to a particular class of people. Ideally, today’s decision would have explicitly stated it was applying some form of “heightened scrutiny,” a legal declaration that all laws that discriminate on the basis of sexual orientation must be treated with skepticism by the courts. It did not do that but it did include some extremely important language in this regard, language we have not seen before in any Supreme Court opinions dealing with gay rights.

Two different times in Justice Kennedy’s opinion, he uses the term “immutable” to reference sexual orientation, including that “psychiatrists and others [have] recognized that sexual orientation is both a normal expression of human sexuality and immutable.” Aside from being an inherent rejection of the idea that sexual orientation is a choice, the term “immutable” is particularly significant in the context of challenging discriminatory laws or practices because historically, courts have referred to being discriminated against based upon “immutable characteristics” as triggering heightened scrutiny. This means that if a law or state action discriminates against someone based on an immutable characteristic, such as race or gender, then the courts look at that law or state action with skepticism and applies a heightened scrutiny. The acting governmental entity has a higher burden, in that situation, to justify the law or state action to the court. It’s difficult to imagine that Justice Kennedy and the majority used this word lightly and certainly could present a basis for challenging anti-gay discrimination by governmental entities in the future.

Additionally, another basis for using heightened scrutiny to analyze alleged discriminatory laws or government action is if the group at issue has faced discrimination historically. Justice Kennedy’s discussion throughout the opinion of discrimination historically faced by the LGBT community leaves little doubt that this applies. In one particularly poignant passage, he specifically cites to Bowers, in which the Supreme Court upheld laws criminalizing same-sex intimacy, and notes that although the Court overruled the Bowers decision in Lawrence, “men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.”

We know there is more work to be done in the fight for equality for the LGBT community. Among other things, in many states couples can still get lawfully married on Friday and be lawfully fired on Monday, and the immutable characteristics language will not affect the discriminating actions of private employers.  For now, this opinion does nothing more and nothing less than make marriage equality the law of the land in the United States. However, it might do more. We shall see.

 

 

 

 

Supreme Court Possibilities

On January 16, 2015, the Supreme Court announced that it would hear the appeal of four cases regarding marriage equality from the Sixth Circuit. In November, the Sixth Circuit became the first appellate court to uphold same-sex marriage bans, thereby creating a split within the appellate courts and making it more likely for the court to ultimately agree to hear an appeal on the issue of marriage equality.

The questions presented to the high court by the Sixth Circuit cases are as follows: (1) “Does the Fourteenth Amendment require a state to license a marriage between two people of the same-sex?” and 2) “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same-sex when their marriage was lawfully licensed and performed out-of-state?” Thus, essentially the court will answer the questions of whether same-sex marriage bans are unconstitutional and separately, whether a state that bans same-sex marriages can lawfully refuse to recognize such a marriage from another state.

The court will hold oral arguments on these cases in late April. Oral arguments will last 90 minutes for the first question noted above and 60 minutes for the second. The court is expected to issue a decision in late June.

We have received many questions from people inquiring about the consequences of the Supreme Court’s possible rulings.  There is no way to predict how the Court will rule but I have set forth the consequences of some potential rulings below.

1. The Supreme Court rules the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

If the Court issues this ruling, then we will essentially have marriage equality.  Undoubtedly, there will still be some states that resist but it will likely be a futile effort on their part. Additionally, it will be yet another layer of case law ruling that denying rights to LGBT citizens is unconstitutional. Such a ruling may not have a direct impact on discrimination faced in other areas of law and life.  However, depending on how the Court tailors its ruling, it is certainly helpful authority moving forward as we battle discrimination in employment and public accommodations.

2. The Supreme Court rules that the Fourteenth Amendment does not require states to issue marriage licenses to same-sex couples, i.e., same-sex marriage bans are constitutional.

The consequences to this ruling are a little more complex.  In those states where marriage equality came through a vote of the people or a court ruling based on a state’s constitution, i.e. New Jersey and New Mexico, the Court’s ruling in this regard would have no impact and marriage equality would remain.

With regard to those states where marriage equality came through a federal or state court ruling based on the federal constitution (via the Windsor decision), those states would continue to have marriage equality until someone with standing moves to re-open the previous lawsuit and asks the court for a ruling based on the Supreme Court’s decision. It is possible that no-one in some of those states will take such action and therefore, marriage equality will remain. As many recall, in California, following the Supreme Court’s decision that the parties appealing the lower court ruling striking down Proposition 8 did not have standing, no-one with standing, such as a state official, chose to continue the appeals and marriage equality continues in California.

In Colorado, the most obvious person with standing to reopen the previous litigation is the state Attorney General. In November 2014, Colorado elected Republican Cynthia Coffman. Previously, Ms. Coffman’s public statements indicated that as Attorney General, she is required to enforce the law of Colorado and therefore, would enforce the marriage ban. Whether that will remain her stance should these circumstances come to pass remains to be seen.  If this occurs, the earliest the question of marriage equality can be on the state ballot is November 2016.

Marriages that occurred in the affected states in between the lower federal court rulings and any action to reopen and reverse the previous decisions would in all likelihood remain valid.

3.  The Supreme Court rules that the Fourteenth Amendment does not require states to issue marriage licenses to same-sex couples but also rules that states are required to recognize same-sex marriages lawfully entered into in other states.

If the Supreme Court issues this ‘split’ decision, then everything set forth in section two above will apply. Additionally, however, each state will be required to recognize same-sex marriages performed in other states where same-sex marriages are permitted.  Further, the non-permitting states will have to recognize said unions as actual marriages and not some other legal relationship, such as a civil union.  Thus, Colorado same-sex couples could travel to New Mexico, Idaho, New York, etc. and get married and upon their return, this state would have to recognize their union as a marriage.

Updated: Marriage Equality Arrives in Colorado

coloradoStateSeal-300x300The Supreme Court of the United States denied certiorari on marriage equality appeals from several federal appellate courts, including the Tenth Circuit. Those cases involved decisions from Oklahoma, Utah, Virginia, Indiana and Wisconsin.  Thus, in those states, the previous rulings striking down their marriage bans as unconstitutional are now considered final. Conceivably, this also means that each state under the purview of those federal appellate courts will have marriage equality soon.

So, what does this mean for Colorado, one of the states within the jurisdiction of the Tenth Circuit?  There was a lot of speculation this morning on how Colorado’s Attorney General, John Suthers, who relentlessly fought to preserve Colorado’s same-sex marriage ban, would react.  However, with the following statement, his office has announced it would not fight this further:

We have consistently maintained that we will abide by the Supreme Court’s determinationon the constitutionality of marriage laws. By choosing not to take up the matter, the courthas left the 10th Circuit ruling in place. We expect the 10th Circuit will issue a final ordergoverning Colorado very shortly. Once the formalities are resolved, clerks across the statemust begin issuing marriage licenses to all same-sex couples.We will file motions to expedite the lifting of the stays in the federal and state courts andwill advise the clerks when to issue licenses.  The parties will be filing the appropriate documents with the courts and Colorado will have marriage equality.

Colorado will have marriage equality very soon.

There is currently ongoing litigation in other federal appellate courts on this matter. The Sixth and Ninth Circuits have already heard oral arguments regarding challenges to same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee (Sixth Circuit) and Idaho and Nevada (Ninth Circuit).  The Ninth Circuit is expected to rule that such bans are unconstitutional.  However, many expect that the Sixth Circuit may be the first circuit court to uphold same-sex marriage bans. If that occurs, it would create a split between the circuit courts and increase the likelihood that the Supreme Court may grant certiorari on an appeal from that decision.  Additionally, there is also an appeal regarding same-sex marriage bans in the Fifth Circuit. However, oral arguments will not be heard in that appeal until later this year.

Pres. Obama Signs Executive Order Prohibiting LGBT Federal Employment Discrimination

images-1President Obama signed an Executive Order today that amended two previous Executive Orders signed by Presidents Johnson and Nixon, respectively. Today’s Executive Order will prohibit LGBT federal employment discrimination.

First, today’s Order amended Executive Order Number 11478, signed by President Nixon in 1969 to prohibit employment discrimination based on race, color, religion, sex, national origin, handicap or age.  Today’s Order added gender identity to the list of protected characteristics for which a federal employee cannot be discriminated against.  (Sexual orientation was added in 1998 by President Bill Clinton).  This portion of today’s Order takes effect immediately.

Second, today’s Order also amended Executive Order 11246, signed by President Johnson in 1965 prohibiting federal contractors from discriminating on the basis of race, color, religion, sex or national origin.  Through today’s action, President Obama has now added sexual orientation and gender identity to that list.  This portion of today’s Order takes effect early next year.

President Obama did not include a religious exemption to either portion of today’s Executive Order.  The addition of such an exemption had been an increasing concern to the LGBT community and its allies following last month’s Hobby Lobby decision.  Notably though, President George W. Bush had previously amended Executive Order No. 11246 in 2002 to allow religiously affiliated federal contractors to prioritize hiring employees of their particular religion, and President Obama left that language intact.

It remains lawful in 32 states to suffer adverse employment consequences, up to and including termination and harassment, for being gay, lesbian, bisexual or transgender. The Employment Non-Discrimination Act, which passed the federal Senate during the previous legislative session, would have made such discrimination unlawful.  However, Speaker John Boehner refused to bring the bill up for a vote in the House of Representatives.  Following the Hobby Lobby decision, most national and local LGBT organizations, the ACLU and other civil rights organizations withdrew their support for the bill due to the fact that the previously agreed to religious exemptions could now be extended to for-profit businesses.

Tenth Circuit Rules in Favor of Same-Sex Marriage

gaymarriage5Today, the Tenth Circuit issued its ruling on Utah’s same-sex marriage ban, finding that the right to marry the person one chooses, regardless of the gender of that person, is a fundamental right guaranteed under the Fourteenth Amendment to the United States Constitution.

Below are some key excerpts from today’s opinion:

The drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” … A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the district court eloquently explained, “it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.” … Consistent with our constitutional tradition of recognizing the liberty of those previously excluded, we conclude that plaintiffs possess a fundamental right to marry and to have their marriages recognized.”

[T]he judiciary is not empowered to pick and choose the timing of its decisions. “It is a judge’s duty to decide all cases within his jurisdiction that are brought before him,
including controversial cases that arouse the most intense feelings in the litigants.” … Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box. “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

In summary, we hold that under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah’s ban on same-sex marriage] and similar statutory enactments do not withstand constitutional scrutiny.

Though there have been at least twenty rulings from various lower courts since the Supreme Court issued its decision in Windsor last year, this is the first time since that ruling that an appellate court has addressed the constitutionality of a state’s ban against same-sex marriage.  The Fourth Circuit is also expected to rule soon.

To read the Tenth Circuit’s opinion in its entirety, go here.

The Social Security and Marriage Equality Act (SAME)

Senators Udall (D-Colo) and Murray (D-Wash) have proposed the Social Security and Marriage Equality Act (SAME), which would essentially allow for the processing of Social Security spousal retirement, spousal survivorship and death benefits for same-sex spouses who are legally married but do not live in a state that recognizes their marriage.  Since the fall of DOMA’s Section III, many federal benefits have been extended to same-sex married couples, regardless of whether the state in which the couple actually resides recognizes their marriage. Thus, a couple married in New York, where same-sex marriage is available, but living in Colorado would still be eligible for all federal benefits, protections and responsiblity.

An exception to this has been certain Social Security benefits, including spousal retirement, survivorship and death benefits.  As of now, these Social Security claims are available and being processed for same-sex married couples who also reside in states that recognize their marriage.  However, for those couples who were married in one state but live in a state that does not have marriage equality, like Colorado, those claims have been placed on hold.  The holdup is purportedly based upon a regulation pertaining to Social Security claims that provides 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.”

Senators Udall and Murray’s proposed legislation would amend the federal law so as to ensure recognition for purposes of Social Security benefits of all lawfully married same-sex couples, even if they live in one of the 33 states that do not recognize same-sex marriage. As Senator Murray explained, “Your zip code should not determine whether or not your family will have the means to survive after the death of a spouse.”

There are a limited number of days left in the current federal legislative session. Thus, it is highly unlikely that this bill will be brought up for vote in one or both houses of Congress this year.

To read SAME in its entirety, go here.

Social Security Changes Affecting the LGBT Community

o-SOCIAL-SECURITY-TAXES-facebookThe Social Security Administration (SSA) has made two announcements this year that affect the LGBT community.

First, the SSA announced it was changing its policy with regard to the ability of transgender individuals to receive benefits through their spouses.  Prior to yesterday’s announcement, any marriage-based claims filed by or involving a transgender individual was referred to the Regional Chief Counsel for a legal opinion, and were often denied.  Under the new policy, most claims will be processed in a straightforward manner, without the need for a legal opinion.  Presumably, this means most claims of this nature will not be summarily denied.

Lambda Legal, who had been advocating for this change on behalf of a 92-year-old transgender individual (and veteran) after the SSA denied her survivor benefits claim following the death of her husband, hailed the policy change, explaining, “This is a critical development for all married transgender people, but is especially important for transgender older adults, who rely on the safety net of Social Security benefits.”  To read more about the case that helped prompt this change, go here.

Second, the SSA announced in January that it would begin considering same-sex marriages when processing Social Security Supplemental Income claims.  SSI is a program based on financial need, and the SSA will now consider the income and resources of the recipient and his or her same-sex spouse when determining eligibility and monthly payment.  To read more about this policy change, go here.

Updated: Income Tax Filing Status for Same-Sex Married Couples

140107072906_taxesFor Colorado same-sex couples who have been lawfully married in a state recognizing same-sex marriages, a bit of confusion initially existed this year when it came to filing income taxes, at least with regard to their state taxes. However, that confusion has now subsided.

At the federal level, so long as a couple has obtained a valid marriage license, then regardless of whether the state in which they reside recognizes their marriage, for federal tax purposes the couple is married and must file their taxes, accordingly.  At the state level, however, there was some confusion but the Department of Revenue and the Colorado legislature have cleared up the matter.

Under current state regulations, every Colorado taxpayer must file their state income taxes using the same status they use in their federal income tax return.  Thus, Colorado’s amendment banning same-sex marriage created quite a conundrum when it comes to same-sex married couples.  On November 29, 2013, the Colorado Department of Revenue announced via its website that it has promulgated an emergency regulation that will allow same-sex married couples to file their state income tax returns using the same status that is used on their federal returns. The relevant emergency regulation is published here on the Department’s website. It specifically provides, in relevant part, “Any couple that files a joint federal income tax return must also file a joint state income tax return. State income tax provisions that depend upon federal income tax filing status will be administered in accordance with federal income tax filing status.”

Additionally, the state legislature passed and Governor Hickenlooper signed into law SB 14-19 sponsored by Senator Pat Steadman, amending the state’s civil union laws to remove the prohibition against civil union partners filing joint returns.  It also amends the state income tax law in order to make it gender neutral.  It does not permit the State of Colorado to recognize same-sex marriages but instead, allows the state to recognize your federal income tax filing status.