Another New York appeals court recognizes a same-sex Canadian marriage...and a reminder about what the DOJ announcement is NOT about

The New York Supreme Court Appellate Division, First Department, ruled today that the marriage between a decedent and his surviving partner in Canada is entitled to be recognized in New York. (To read the opinion, In re Estate of Ranftle, you need to click here and scroll down to page 8). The couple, J. Craig Leiby and H. Kenneth Ranftle, married in Canada in June 2008, and in August 2008, Ranftle wrote a will. After Ranftle died, Leiby sought to probate the will as his surviving spouse and was opposed by the decedent's brother. The trial court found the marriage subject to recognition in New York, and in this opinion the appeals court affirms.

This opinion is a timely reminder of what yeseterday's Obama administration announcement does not mean. DOJ will no longer defend the constitutionality of DOMA Section 3, the section that denies federal recognition to validly married same-sex couples. Section 2 of DOMA says that states are not required to recognize same-sex marriages from elsewhere. The DOJ announcement is silent on Section 2, because it is not an issue in the pending cases that prompted the DOJ announcement.

Any family law scholar will tell you that DOMA Section 2 was unnecessary, because the rule of law even without it is that a marriage valid where performed will be recognized in a state unless it violates the strong public policy of the state.

In the Rantfle case, the opinion simply recites that rule, notes that New York does not have a specific statute (as the vast majority of states do) refusing to recognizing same-sex marriages from elsewhere, and then concludes that it is not against "natural law" to recognize such marriages. Short and sweet.

In states with statutes refusing recognition to same-sex marriages from elsewhere (here is a chart), a court would not treat Leiby as Ranftle's surviving spouse. Nothing in yesterday's DOJ announcement changes that. At some point there will be a constitutional challenge to such non-recognition. One way the United States could be a party is that a couple could marry, go home to a state that does not recognize them, and then try to get some federal benefit. The federal government goes by state law to determine if you are married, and the couple could claim that by not treating them as married the state they live in is violating the constitution. The administration would have to take some stand on the matter.

But it's more likely that the couple will seek some recognition in their state, in which case the United States won't be a party at all, and we would expect most state courts to uphold the state DOMA. All this will be interesting litigation to come. Meanwhile, New Yorker get one more piece of support for the validity of the marriages they enter outside New York.

Obama administration will no longer defend section 3 of DOMA...what now?

The Justice Department has just announced that it will no longer defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). That's the section that defines a married couple for federal law purposes as a man and a woman. The announcement comes in the context of cases pending in the Second US Circuit Court of Appeals brought by GLAD and the ACLU.

Nothing will change right away. The administration will continue to enforce DOMA as written. And it will do everything possible to facilitate the ability of Members of Congress to enter the litigation for the purpose of defending the statute. I am certain they will do so. The administration will wait until a final judicial ruling in the cases (or repeal by Congress) to change its approach to married same-sex couples.

The reasoning behind the decision is as important as the decision itself. DOJ and the President have concluded that sexual orientation should be considered a "suspect classification" under the Equal Protection Clause of the Constitution. That means that all distinctions between gay and straight people would have to be justified as "necessary" to achieve a "compelling state interest." (That's hard to do.) But the US Supreme Court has the final word on Equal Protection analysis, and NYU law prof Kenji Yoshino has a recent article in the Harvard Law Review explaining why the Court is unlikely to expand at all the list of groups entitled to suspect class status.

DOJ released its statement as I was putting the final touches on a short commentary I've written as part of a colloquium of the Harvard Civil Rights-Civil Liberties Law Review centered around a piece by Northeastern law prof Libby Adler critiquing the "equal rights" framework for its limitations in meeting the needs of LGBT people. My commentary focuses specifically on the DOMA litigation that is the subject of this DOJ opinion. (How timely of me!)

Basically, I explain that treating married same-sex couples as married under federal law will help some couples but it will hurt others. That's because not all marriages are equal under federal law. Marriages that are based on the single breadwinner, stay-at-home mom model make out like bandits. They pay less in federal income tax and they get much more in social security benefits than marriages in which the two spouses are closer-to-equal earners. In fact, with respect to social security, all of us, including equal earning spouses, heavily subsidize the white family form of 1939 that lawmakers had in mind when they created social security spousal benefits. Eliminate DOMA and all of us, including same-sex married couples with two close-to-equal earning spouses, will continue to subsidize that 1939 model; but now the model will encompass same-sex couples with one high income earner. The close-to-equal earners will also get socked with the marriage penalty when they pay their income taxes; the traditionally gendered model will get a huge marriage bonus.

I understand that this is the consequence of an equal rights framework. Same-sex married couples get what different-sex married couples have. That doesn't make it just. Imagine a world in which our tax and benefit structure did not privilege single high wage earner married couples. Apparently that is harder to achieve than federal recognition of same-sex marriages. But if we care about real world impact on the lives of lesbians and gay men, we should be looking for justice, since most of us are not married couples with a single high wage earner.

There will be much rejoicing today. From a gay civil rights perspective there's much to be happy about. But economic justice and fair family policies are another matter, and I won't throw a victory party til we have those.

Why can't Obama be more like Charlie Crist?

So a year ago I never would have asked such a question! But this week brings us diametrically opposing decisions from these two executives. Both executives had to decide whether to appeal court rulings striking down a statute as unconstitutional. Florida Governor Charlie Crist decided not to appeal the Florida Court of Appeals ruling that the state's ban on lesbian and gay adoptions is unconstitutional. Obama, on the other hand, has appealed two lower court rulings striking down the portion of the Defense of Marriage Act that requires the federal government to treat gay couples as unmarried even when they actually are married in the state where they live. Writing about Obama's decision, National Center for Lesbian Rights legal director Shannon Minter states that

there is no honor in defending a blatantly unconstitutional law. There is no shame in letting a decision striking down such a law stand. There is no duty to defend a morally and legally bankrupt law. President Obama’s belief that he must defend DOMA is no doubt sincere, but it is mistaken.

I would not necessarily attribute Obama's decision to his sincere belief that he must defend DOMA. More likely his decision is political, as was the decision of Bill Clinton to sign DOMA in the first place. Congress sent DOMA to Clinton (along with "welfare reform") within three months of his bid for reelection in 2006. While I assume he had a sincere belief that "welfare reform" was appropriate (and that is a true shame on his presidency), I doubt he wanted to sign DOMA. He was a sincere gay rights ally, but it would have been political disaster to veto this bill handed him by a Republican Congress. Although it's not Obama who's on the ballot next month, it's unlikely he would want to give Republicans one more basis for attacking him and by extension any Democrat running for office.

On the other hand, Crist is on the Florida ballot (running for Senate as an Independent), which makes it extra-interesting that he sees no down-side to his decision to eliminate the adoption ban without a final ruling from the state's highest court. It's especially interesting because the Florida attorney general may still appeal on his own, a decision he has until next week to make.

What married same-sex couples owe to hippie communes

I'm guessing most married same-sex couples think they have little in common with the hippie communes of the 1960's and 70's. Free-loving hippies challenged the fabric of American society, including the nuclear family, while most married same-sex couples, or at least the organizations that speak for them, are busy presenting gay marriage as anything but a threat to heterosexual family life.

Well, think again. Last week's ruling in Gill v. OPM demonstrates just how much debt all gay rights advocacy owes those hippies.

After rejecting every asserted justification for excluding Massachusetts married couples from the legal consequences of being married under federal law, US District Court Judge Joseph Tauro said this:

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."

The citation for the last sentence in that paragraph is a case called USDA v. Moreno, decided in 1973. It's the case that formed the primary precedent for the Court's landmark gay rights ruling in 1996, Romer v. Evans.

Moreno was a challenge to an amendment to the statute governing the federal food stamp program. When enacted in 1964, eligibility for food stamps was determined on the basis of household size and income. A "household" included any group of related or unrelated individuals who basically shopped for food and cooked in common. In 1971, Congress amended the law to exclude households whose members were not all related.

Several households challenged the constitutionality of the statute, including two mothers on public assistance living together for economic reasons; a family that took in an unrelated young woman with emotional problems; and named plaintiff Jacinta Moreno, who lived with a mother of three, paying rent and receiving care in return. All were eligible for food stamps but for the fact that none of the households consisted entirely of related individuals.

The Court found that Congress created the food stamp program to alleviate hunger and malnutrition and that distinguishing between related and unrelated persons was irrelevant to that purpose. The Court further rejected the government's assertion that limiting aid to related individuals would reduce the likelihood of fraudulent use of food stamps. The Court did examined the legislative history of the 1971 amendment, and it found this: The amendment was enacted to prevent hippies and hippie communes from receiving food stamps.

And to this the Court said:

The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.

It's that language that Justice Kennedy resurrected in Romer v. Evans and that Judge Tauro cites in Gill.

Moreno had a dissent by Justice Rehnquist who thought that Congress was perfectly within its rights to limit food stamps to "some variation on the family as we know it - a household consisting of related individuals." Rehnquist was not yet Chief Justice. As everyone knows, the Court became considerably more conservative in later years, with Rehnquist at its helm and as Republican presidents selected more Justices. It is very likely that the Rehnquist Court would have upheld the food stamp restriction.

But in 1971 hippies were not the only challenge to the traditional family. Feminism and the gay liberation movement were right in there. As I write about in my book, it was a time when defying both conventional sexual morality and the nuclear family norm were part of the vision for creating a better society. And that view was accepted enough that the Supreme Court of the United States thought that Congress could not punish people proclaiming -- and living -- that vision.

Today LGBT people are the beneficiaries of Moreno. It's the only case that Justice Kennedy could cite to strike down Colorado's Amendment 2 in Romer. Romer read gay people into the Equal Protection Clause of the Constitution. Without it there would be no Gill. Whenever you see Moreno cited, thank the hippies, and the legal services lawyers who stood up for them before the Supreme Court.

And if you are not married, don't aspire to marry, and indeed have a more fluid idea of what family ought to count under our laws, Moreno is the case that someday, with some change in the Court's personnel, might mean your liberation as well.

Law professors' conference addresses needs of same-sex partners in a "defense of marriage" state

Next week, the Association of American Law Schools will hold its annual meeting in New Orleans. This is the annual meeting of law professors from across the country. In acknowledgement of the needs of same-sex and unmarried partners in a state with a "defense of marriage" act, the AALS's executive director, Susan Westerberg Prager, today sent out the following message to all attendees. I am reprinting it in full here because I hope other associations with plans to hold meetings in states that refuse to recognize the needs of same-sex and unmarried different-sex partners will follow this fine example provided by the AALS.

December 28, 2009
Message to Annual Meeting Attendees:

Because Louisiana has placed in its constitution what is commonly referred to as a "Defense of Marriage" law, we have put in place some precautionary assistance for Annual Meeting registrants and their guests. This message is intended for those of you who are either unmarried but have a partner, married but in a marriage that would not be recognized by Louisiana Law, or who have a family member in one of these categories who will travel with you to New Orleans. Even in states that do not have such a law, there have been reports of hospital personnel who will not allow same sex partners visitation accorded family members, or who may even attempt to make the exercise of a health care power of attorney difficult. (For convenience of communication, I use the term "partner" in this message to refer to married and unmarried partners.)

AALS Managing Director Jane La Barbera has explored the practices in New Orleans, and has vigorously emphasized to the New Orleans Convention Bureau our concerns. We have received strong assurances that health care Powers of Attorney will be recognized by hospitals in the region, regardless of the relationship of the patient and the person holding the power. We have had that verified by the leadership of the Tulane Medical Center.

However, we do want to be of assistance to you in New Orleans if any of the following difficulties occur during the AALS Annual Meeting. Should any attendee or guest of an attendee experience a hospital refusing access (to the patient) to the patient's partner, or refusing the partner access to the patient's hospital doctors, or if hospital personnel are reluctant to recognize a power of attorney, we are providing the following list of individuals who are available to assist you. (The first is a local lawyer provided to AALS by the New Orleans Convention and Visitors Bureau without fee to AALS or our registrants. The second and third are AALS volunteers: Taylor is a Professor colleague who is incoming chair of the AALS Section on Sexual Orientation and Gender Identity Issues, and Jim is the lawyer spouse of the longtime Professor and Dean who is writing this message.) (I am omitting the phone numbers provided for the lawyers --np)

1. Robert M. Walmsley, Jr., Fishman, Haygood, Phelps, Walmsley, Willis & Swanson L.L.P
2. Professor Taylor Flynn
3. Jim Prager

All of these individuals stand ready to assist you with the hospital staff, and you should not hesitate to call upon them. They will assist in communicating with the hospital staff, working their way through the hospital's chain of authority if necessary. We recommend that you try to reach Mr. Walmsley first unless the hour of your call would make it unlikely that he would be at his firm.

Should you have difficulty reaching a member of this group, contact the AALS Office at the Hilton New Orleans Riverside by calling the hotel at (304) 561-0500 and asking for the AALS Office in the Marlborough Room. If the office is closed, make sure you have left messages for both Taylor and Jim, and try each of them again. I do recommend that you and your partner each carry with you a health care power of attorney. Even in extreme circumstances where the power contemplates are not present, it is a useful statement of your point of view about the person(s) closest to you, and that can help get the designated individual access to you and to your hospital doctor if you are hospitalized.

We, of course, hope that no attendee or family member is faced with the need to navigate such a problem, but we do want you to call upon us should you find yourself in circumstances where we can be of help. We very much look forward to welcoming all attendees and their guests to the 2010 AALS Annual Meeting.

Obama administration again validates gay and lesbian parents

The US Justice Department filed a memorandum in support of a motion to dismiss today in Commonwealth of Massachusetts v. United States, the lawsuit brought by Massachusetts arguing that the Defense of Marriage Act is unconstitutional. This lawsuit complements the one brought by GLAD on behalf of several named plaintiffs.

The Justice Department memorandum reiterates that the administration supports repeal of DOMA but must nonetheless defend its constitutionality. It makes no explicit argument that sexual orientation is not a suspect classification entitled to heightened Equal Protection scrutiny; rather it says that the court is bound by a First Circuit US Court of Appeals ruling to that effect. I confess that my aggravation with the memorandum was tempered, as I read it, with the knowledge that any such document filed by a Republican administration would say vile and offensive things about us. By that measure, this is surely an improvement.

And the administration once again took the opportunity to distant itself from assertions that we are bad parents. Here's the footnote in full (check out how the government says the Scalia dissent in Lawrence, meant to scare everyone into thinking that decriminalizing sodomy would lead to same-sex marriage, is essentially correct!):

In this case, the government does not rely on certain purported interests set forth in the legislative history of DOMA, including the purported interests in “responsible procreation and child-rearing” -- that is, the assertions that (1) the government’s interest in “responsible procreation” justifies limiting marriage to a union between one man and one woman, and (2) that the government has an interest in promoting the raising of children by both of their biological parents. See H.R. Rep. No. 104-664, at 12-13, reprinted in 1996 U.S.C.C.A.N. at 2916-17. Since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting upon concluding, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. See American Academy of Pediatrics, http://aappolicy.aappublications.org/cgi/content/full/pediatrics;109/2/339 (February 2002 policy statement); American Psychological Association, http://www.apa.org/pi/lgbc/policy/parents.html (July 2004 policy statement); American Academy of Child and Adolescent Psychiatry, http://www.aacap.org/cs/root/policystatements/gaylesbiantransgenderandbisexualparentspolicystatement (June 1999 policy statement); American Medical Association, http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation.shtml (AMA Policy Regarding Sexual Orientation); Child Welfare League of America, http://www.cwla.org/programs/culture/glbtqposition.htm (Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults).
Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion -- which, of course, is the prevailing law -- because “the sterile and the elderly are allowed to marry.” Thus, the government does not believe that DOMA can be justified by interests in “responsible procreation” or “child-rearing.”

A nod from the President...I'll take it!

While I was in synagogue yesterday for Yom Kippur, the President proclaimed the day "Family Day 2009." Amid the platitudes on the importance of strong families in keeping adolescents from substance abuse and electronic device overdose came a nod to us...same-sex couples raising children. Here's the quote:

American families from every walk of life have taught us time and again that children raised in loving, caring homes have the ability to reject negative behaviors and reach their highest potential. Whether children are raised by two parents, a single parent, grandparents, a same-sex couple, or a guardian, families encourage us to do our best and enable us to accomplish great things.

We've heard Presidential rhetoric before. When Bill Clinton accepted the Democratic nomination for president in 1992, it was the middle of a family values war. Clinton's contribution in his acceptance speech was the following:

I want an America where "family values" live in our actions, not just in our speeches. An America that includes every family. Every traditional family and every extended family. Every two-parent family, every single-parent family, and every foster family. Every family.

At the time I was thrilled. He didn't mention us by name, but he didn't exclude us either. He said every family. I believed him. That was before the Newt Gingrich Congress of 1994 and a Congress that handed him the Defense of Marriage Act just before the 2006 election.

Obama is three years from reelection. It looks unlikely that he will get DOMA repealed before then. But he's willing to include us in the list of families. And when his administration defends the constitutionality of DOMA, it now makes clear that we make good parents.

It's not enough, but it's progress.

The Obama administration thinks we make good parents!

The Obama administration is defending DOMA in the litigation challenging it filed in California. No surprise there.

Today they filed a brief in the case, and there is some good news in it. I'm going to let it speak for itself.

"The government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman. Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because "the sterile and the elderly are allowed to marry."

For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality."

The bases that the Justice Department repudiates here are the ones state courts have relied on to rule against plaintiffs seeking the right to marry under state constitutional law.