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


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.





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.

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.

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.