Welcome to Marriage Equality in the Courts
MEUSA Legal Director John Lewis jlewis@marriageequality.org
MEUSA Media Director Stuart Gaffney media@marriageequality.org
FEDERAL COURT CASES
Perry v. Brown – Lawsuit Challenging Proposition 8 in California
In May 2009, two loving, committed same-sex couples (Kristin Perry & Sandra Stier and Paul Katami & Jeffrey Zarrillo) who wished to marry brought suit in federal court, asserting that Proposition 8’s taking away their freedom to marry violated the fundamental fairness guarantees of the United States Constitution.
On February 7, 2012, the Ninth Circuit Federal Court of Appeals, following United States Supreme Court precedent closely, issued a powerful decision striking down Proposition 8, the initiative that took away the freedom to marry from loving, committed same-sex couples in California in 2008. The court wrote:
“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The [United States] Constitution simply does not allow for ‘laws of this sort.’”
Although profound, the Ninth Circuit decision is a relatively narrow one, focusing on the particular circumstances of Proposition 8 in California. The Ninth Circuit’s decision affirms the trial court’s 136 page decision, issued in 2010, also finding Prop. 8’s marriage ban to be unconstitutional.
The Ninth Circuit also rejected the Prop. 8 proponents’ attempt to vacate the trial court’s decision on the grounds that Judge Vaughn Walker, the now-retired trial judge, is gay and in a long-term relationship.
For a detailed analysis of the Ninth Circuit’s opinion, please click here.
On February 21, 2012, Prop.8’s proponents petitioned the Ninth Circuit to hear the case en banc. If the court decides to rehear the case en banc, the Chief Judge and ten other Ninth Circuit judges, randomly selected from the 25 currently active Ninth Circuit judges, would ordinarily rehear the case. The decision whether or not to rehear the case en banc is discretionary. If the Ninth Circuit declines to rehear the case en banc, the Prop. 8 proponents may try to appeal the case to the United States Supreme Court. No time lines dictate how long the Ninth Circuit can take to decide whether to rehear the case en banc.
Federal Lawsuits Challenging Section 3 of the so-called “Defense of Marriage Act”
The so-called “Defense of Marriage Act” (DOMA) has 2 substantive sections:
Section 2 declares that no state must recognize another state’s marriages of lesbian and gay couples
Section 3 bars the federal government from recognizing legal marriages of lesbian and gay couples.
Several lawsuits challenge Section 3 of DOMA, which denies legally married same-sex couples access to the 1,138 federal rights and responsibilities that come with marriage:
1. Gill v. Office of Personnel Management (No. 09-10309 (D. Mass.), on appeal, Nos. 10-2207 & 10-2214 (1st Cir.), consolidated with Massachusetts v. United States Department of Health and Human Services (No. 09-11156 (D. Mass), on appeal, No. 10-2204).
Plaintiffs in Gill are legally married couples in Massachusetts, who have been denied federal benefits to which they would be entitled if they were not gay. The State of Massachusetts also brought a companion case to Gill.
On July 8, 2011, the Federal District Court in Massachusetts ruled Section 3 of DOMA unconstitutional in a summary judgment opinion. (699 F.Supp.2d 374 (D.Mass., 2010)).
The federal government appealed the decision and the case is now before the First Circuit Federal Court of Appeals.
Gay & Lesbian Advocates & Defenders (GLAD) represents plaintiffs in Gill. For more information on these cases, go to http://www.glad.org/doma
2. Pedersen v. Office of Personnel Management (No. 10-CV-1750 (D. Conn.))
Plaintiffs are legally married couples in Connecticut, Vermont, and New Hampshire, who challenged DOMA because they are being denied federal benefits to which they would be entitled if they were not gay. The case was filed in November 2010.
Gay & Lesbian Advocates & Defenders (GLAD) represents plaintiffs in Pedersen. For more information on this case, go to http://www.glad.org/doma
3. Windsor v. United States (No. 10-CV-8435 (S.D.N.Y.))
Plaintiff is a New York citizen, who legally married her same-sex spouse in Canada. When plaintiff’s wife died, her estate was forced to pay estate taxes that would not be assessed if she were not gay. The case was filed in November 2010.
The American Civil Liberties Union (ACLU) represents plaintiff in Windsor. For more information on this case, go to http://www.aclu.org/lgbt-rights/windsor-v-united-states-thea-edie-doma
4. Golinski v. Office of Personnel Management (No. 10-00257 (N.D. Cal.))
Plaintiff Karen Golinski is a federal employee who seeks to enroll her legally married California same-sex spouse in the federal health insurance plan available to spouses of federal employees. The federal government refused to enroll Golinski’s wife in the plan, based on Section 3 of DOMA. Golinski would have been able to enroll her spouse for health insurance if she were not gay.
On February 22, 2012, the District Court held that DOMA is unconstitutional and that Golinski’s wife should receive health insurance through the federal government plan just like any other spouse. The court held that the DOMA should be held to “heightened scrutiny” under the Constitution, but that the law did not even have a “rational” basis for its adoption. It was based on indefensible disapproval of lesbian and gay people (whom the bill’s author termed “homosexual extremists,”) and unfounded assumptions about marriage and the ability of lesbian and gay people to be parents. In many ways, the court’s reasoning mirrored that of the Ninth Circuit in Perry v. Brown – that subjective moral disapproval of a minority group is not a valid basis for a law under our Constitution.
The case will likely be appealed to the Ninth Circuit.
Lambda Legal Defense and Education Fund represents the plaintiff. For more information on the case, go to http://www.lambdalegal.org/in-court/cases/golinski-v-us-office-personnel-management.html
5. Dragovich, et al. v. Department of the Treasury, et al., No. 10-1564 (N.D. Cal.)
Plaintiffs are California same-sex couples who seek equal access to California’s long-term care insurance program for public employees and their families. Section 3 of DOMA currently precludes such access.
The Legal Aid Society – Employment Law Center represents plaintiffs. For more information on the case, go to http://www.las-elc.org/news-calpers.html
6. Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.)
Plaintiff Dean Hara is the widower of former United States Congressman Gerry Studds, who was his legally married spouse in Massachusetts. Hara’s claim was originally part of the Gill lawsuit discussed above, but is now the subject of separate litigation, pending before the Federal Circuit. Resolution of the Hara case will likely depend on how the Gill case is resolved on appeal.
7. McLaughlin v. Panetta, No. 1:11-cv-11905-RGS (District Court Massachusetts)
Plaintiffs are legally married current and former service members seeking equal recognition, benefits and family support for equal sacrifice and service in the U.S. Armed Forces. They want the armed services to recognize their families and seek the same family support and benefits for their same-sex spouses that the services and Department of Veterans Affairs provide to different-sex spouses.
The lawsuit challenges the constitutionality of DOMA, as well as provisions in Title 10, Title 32, and Title 38 of U.S. Code, which preclude the military from providing same-sex married couples with the same benefits and family support as their straight, married peers.
While gay military couples are now eligible for "member-designated" benefits such as group life insurance, missing member notification and hospital visitation rights, DOMA keeps health care coverage and housing allowances off limits. Base housing or housing allowances and health insurance can account for as much as 40 percent of a service member's compensation.
The case was filed in federal district court in Massachusetts, the same district in which the Gill case was filed.
For more information go to http://www.sldn.org/
8. Cooper-Harris v. Department of Veterans Affairs (District Court, Central District of California)
Plaintiff Tracey Cooper-Harris is a decorated military veteran with multiple schlerosis, who married her wife Maggie Cooper-Harris in California in 2008.
The Department of Veterans Affairs denied Cooper-Harris approximately $125 per month in disability payments she should be entitled to as a legally married person because the Department refused to recognize her marriage. If the Department recognized the Cooper-Harris’ marriage, Maggie would be also eligible for approximately $1,200 a month in benefits as a surviving spouse if Tracey were to die before Maggie and the couple would be eligible to be buried together in a veterans' cemetery.
The lawsuit challenges DOMA and particular laws that governs the Department of Veterans Affairs policy.
The Southern Poverty Law Center represents Cooper-Harris. For more information, go to:
http://www.splcenter.org/get-informed/news/challenging-federal-policy-that-denies-equal-benefits-to-veterans-in-same-sex-marr
9. Cardona v. Department of Veterans Affairs (Court of Appeals for Veterans Claims)
Plaintiff Cardona is a disabled Navy veteran, who recently got legally married to her same-sex spouse in Connecticut. When Cardona applied for an increase in her monthly disability compensation because she was newly married, the Department of Veterans Affairs denied it because she and her spouse were a same-sex couple. Cardona appealed to the Court of Appeals for Veterans Claims, a special federal court in Washington that handles disputes over veterans benefits. That court’s decision could then be appealed to the Federal Circuit Court. The case challenges both specific provisions relating to veterans’ benefits and DOMA. The Veterans Legal Services Clinic at Yale Law School represents Cardona.
10. Other Federal Lawsuits Relating to DOMA:
In Re Gene Douglas Bolas and Carlos A. Morales (United States Bankruptcy Court, Central District of California (Case No. 2:11-bk-17831 TD, Chapter 13).
On June 13, 2011, the United States Bankruptcy Court in Los Angeles held that section 3 of DOMA was unconstitutional in a bankruptcy case brought by a legally married California same-sex couple, Gene Douglas Bolas and Carlos A. Morales.
Bishop v. United States, No. 04-848 (N.D. Okla.)
Lui v. Holder, No. 09-72068 (9th Cir.)
Torres-Barragan v. Holder, No. 10-55768 (9th Cir.), consolidated with Nos. 08-73745 & 09-71226 for purposes of calendaring
Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir.), consolidated with No. 10-55768 for purposes of calendaring
Cozen O'Connor v. Tobits (Eastern District of Pennsylvania)
Jennifer Tobits and Sarah Ellyn Farley lived in Chicago and were married in Canada in 2006. Sarah Farley died in 2010. Farley’s parents petitioned the Illinois probate court to take over the administration of Ellyn’s estate, claiming that Tobits and Farley were not married and claiming that they, instead of Tobits as surviving spouse, were heirs to the estate.
Farley’s parents also informed her employer, the Pennsylvania based law firm Cozen O’Connor, that because of DOMA they, and not Tobits, were entitled to Farley’s death benefits under the firm’s profit-sharing plan. Cozen O’Connor filed an action in the federal district court for the Eastern District of Pennsylvania to determine who should receive the benefits. Tobits argues that terms of the firm’s benefit plan make clear that she is entitled to benefits and that DOMA does not apply.
Although the district court has not decided whether or not DOMA may even apply, it has asked the parties to brief the constitutionality of DOMA.
The National Center for Lesbian Rights represents Tobits. For more information, go to http://www.nclrights.org.
United States Justice Department’s Decision Not to Defend DOMA
As of February 23, 2011, the United States Department of Justice will no longer defend DOMA in court. This Justice Department has applied this decision to all cases relating to DOMA, including those brought by members of the military and veterans.
The Gill, Pedersen, and Windsor cases all allege that section 3 of DOMA violates the US Constitution’s Equal Protection clause because it treats legally married gay and lesbian couples differently from heterosexual couples.
A key issue in deciding these cases is the standard of review the courts should apply to determine whether DOMA violates the Constitution. The courts could apply the very lenient “rational basis” test (which is much easier for a law to pass) or a higher level of scrutiny (which is much more difficult to pass).
The First Circuit, where the Gill case is pending, has previously decided that laws regarding sexual orientation need only satisfy the “rational basis” test, and the federal government in Gill had argued that DOMA satisfies this test.
However, the Second Circuit, where the Pedersen and Windsor cases are pending, has not yet decided the proper standard of review to apply in cases in that circuit. Accordingly, the Department of Justice in filing its response to these lawsuits considered itself forced to take a position on the proper standard of review for laws that discriminate against lesbian and gay people.
The Obama Justice Department concluded that laws that discriminate against lesbian and gay people should be subject to “heightened scrutiny,” and that Section 3 of DOMA could not satisfy this test.
Therefore, they announced that they would not defend Section 3 of DOMA in the Pedersen and Windsor cases, and consequently, they would no longer defend section 3 in any of the other federal cases, including Gill.
In making this decision, the Justice Department recognized four basic facts (summarized in our words here) that are critical to the standard of review analysis:
1. There is a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, half the states demeaned the very existence of gays and lesbians by making their private sexual conduct a crime. The Supreme Court ruled those laws unconstitutional in July 2003 – less than 8 years ago.
2. The passage of numerous statewide initiatives hurting the rights of lesbian and gay people, the passage of harmful federal laws such as Don’t Ask, Don’t Tell and the so-called Defense of Marriage Act, and the lack of federal legislation to protect against employment discrimination show that lesbian and gay folks do not have the political power to protect themselves in the legislative arena without protection of the courts.
3. Scientific consensus accepts that sexual orientation is a characteristic that is immutable and it is unfair to ask people to hide their sexual orientation in order to be free from discrimination.
4. Being lesbian or gay bears no relationship to a person’s ability to perform in society – be it as a doctor, nurse, lawyer, construction worker, or a member of the armed forces. President Obama has stated: "It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed."
Under the “heightened scrutiny” test, the government must establish that the classification is “substantially related to an important government objective.” The objective must be the government’s “actual” purpose in enacting the law -- not a post hoc or hypothetical justification, conceived during the litigation (which sometimes may suffice under less rigorous judicial scrutiny).
The Justice Department concluded that under this “heightened scrutiny,” DOMA was plainly unconstitutional.
In light of the Justice Department’s decision, a committee of the United States House of Representatives, the so-called Bipartisan Legal Advisory Committee (BLAG), has intervened to defend DOMA in federal litigation. Although the group is called “bipartisan,” it has explained in legal filings that only the Republican members of the group favored defending DOMA.
STATE SUPREME COURT CASES, ESTABLISHING MARRIAGE EQUALITY ON A STATEWIDE BASIS
Four state Supreme Court cases have held that excluding loving, committed same-sex couples from marriage violates their state constitutions. These cases have enabled thousands of LGBTI couples to marry in those states and have provided critical legal building blocks in the movement for marriage equality nationwide. These cases are:
Massachusetts: Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)
California: In Re Marriage Cases (2008) 43 Cal.4th 757
Connecticut: Kerrigan v. Commissioner of Public Health (2008) 289 Conn. 135
Iowa: Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
