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.

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.

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.

Lawsuit Filed Challenging CO’s Same-Sex Marriage Ban

coloradoStateSeal-300x300A couple in Adams County recently filed a lawsuit in Adams County District Court challenging Colorado’s Amendment 43 of Colorado’s state constitution, which defines marriage as only between a man and a woman and effectively bans same-sex marriage.  In their lawsuit, they contend that Amendment 43 violates the equal protection and due process rights of same-sex residents of Colorado.

Amendment 43 was passed by a vote of the people in November 2006. As a result, there are essentially two avenues to remove the state law ban against same-sex marriage: litigation or the ballot box. Challenging the ban is crucial for Colorado’s same-sex couples; however, many members of the LGBT community and their allies were hoping to challenge the ban through the ballot box rather than litigation for a number of reasons. In all likelihood, this lawsuit will be removed to federal district court (the federal court enjoys jurisdiction should the State of Colorado choose to remove the case to that venue because the challenge to Amendment 43 is partially brought under and based upon federal law). Should this occur, then even if the couple is successful in federal district court, any appeal will be heard by the Tenth Circuit Court of Appeals. The states that make up the Tenth Circuit are not only Colorado but also Oklahoma, New Mexico, Kansas, Utah and Wyoming. Presently, the Tenth Circuit is considered an extremely conservative bench, a view supported by the rulings that Circuit has issued in recent years.  Many believe that a loss at the Circuit court level would be not only devastating to the LGBT community and its allies in their attempt to repeal Amendment 43, it also would not be a beneficial posture in which to appeal the decision to the U.S. Supreme Court.  Litigation of this type can take many years, as we witnessed with the Proposition 8 case out of California. As such, we anticipate the fight for marriage equality in Colorado will continue on both fronts – litigation and the ballot box.

Since early September, One Colorado has been hosting a Pathway to Marriage Tour throughout the State of Colorado.  In doing so, they are engaging community members in discussions regarding their thoughts and ideas on the best way to approach Amendment 43 and winning marriage equality for our state.  The following dates are remaining on their tour – November 6th: Colorado Springs, November 7th: Denver, November 13th: Lakewood, November 14th: Longmont, November 20th: Highlands Ranch, November 21st: Boulder.  To learn more about the Tour and/or to sign up for a meeting in your community, go here.

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.