Archive | Same-Sex Marriage

Gay Marriage in New Jersey (Pretty Much)

As Dale and I have blogged about (see here, here, here, and here), the New Jersey courts are hearing a claim that the state’s civil union regime is no longer constitutionally adequate and that the state and federal constitutions now require same-sex marriage. That litigation was recently fast-tracked to the New Jersey Supreme Court. Today the New Jersey Supreme Court denied a stay, meaning that marriages can begin Monday.

Normally, the decision on a stay is not a decision on the merits. But this denial of the stay was not normal. After discussing factors like irreparable injury, the Supreme Court spent several pages discussing the state’s substantive arguments, concluding that:

– “The State’s thoughtful position about what federal law should provide cannot substitute for federal action.”

– “Because State law offers same-sex couples civil unions but not the option of marriage, same-sex couples in New Jersey are now being deprived of the full rights and benefits the State Constitution guarantees.”

– “The State has not shown a reasonable probability or likelihood of success on the merits.”

While the court concluded that “Additional arguments on the merits will be considered in January 2014,” today’s decision (which was unanimous) makes it pretty clear that there’s no point. The New Jersey Supreme Court recognized a right to same-sex marriage today, and it’s hard to imagine that it would change its mind. [...]

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Two New Essays on Post-Windsor Choice-of-Law Questions

The Northwestern Law Review Colloquy is running an interesting-so-far series on United States v. Windsor. The first two parts of the series are up, and both discuss post-DOMA choice of law issues.

First is DOMA’s Ghost, an essay by Brad Greenberg on copyright reversionary interests. The Copyright Act is one of the few federal statutes that contains an explicit marital choice-of-law rule — one that looks to the author’s domicile at the time of his/her death.

Greenberg notes that this rule is inconsistent with the Obama Administration’s general approach to the post-DOMA choice-of-law problem, which is to use the state of celebration wherever possible. He also argues that it would be better to have a rule whose scope would be known at the time of authorship (like the place-of-celebration rule). He suggests statutory reform. While we’re at it, I’d suggest statutory reform of the social-security choice of law rule. Even better would be if Congress would just propose a uniform marital choice-of-law standard for federal law generally . . .

Second is The Moonscape of Tax Equality, by Anthony Infanti, a paper on post-DOMA tax issues. Tax marital law is complicated, and attentive readers will recall that I posted some (partly skeptical) thoughts about the IRS’s marital choice of law guidance, which says that marriages will be recognized “as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex,” regardless of where they move later. Infanti also has some criticisms, that overlap partly (but not entirely) with mine.

– For one thing, Infanti worries that the IRS guidance is vague about so-called “evasive” marriages — marriages where the couple lives in an anti-same-sex marriage state but travels to a permissive state to get married. He says “The [...]

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Gay Marriage in Oregon (Sort of)

The state’s Department of Justice has concluded that the state’s administrative agencies can (and probably must) recognize same-sex marriages validly performed in other states, even for purposes of providing state-law benefits.  The opinion, dated October 16, was revealed in a memo from the head of the state’s agencies directing those agencies to treat same-sex couples married out-of-state as legally married in Oregon.  The state DOJ has not yet taken the position that Oregon must allow same-sex couples to marry in the state, but its logic certainly leads there.  For now (and I mean, for today), same-sex couples will have to get married elsewhere, like California or Washington, and return to Oregon to claim benefits.  (You can read the administrative memo and the Oregon DOJ opinion in the body of the link.)

The rationale for the state DOJ opinion is this: Like other states, Oregon recognizes marriages from out of state even if those marriages could not have been entered in Oregon.  Yet, in 2004, the state’s voters amended the state constitution to provide that only opposite-sex marriages could be “valid” or “legally recognized” — language that bans both in-state and out-of-state gay marriages.  But this provision, argues the state DOJ, likely violates the federal Constitution because it denies equal protection.  “We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state, marriages that would be unquestionably accorded recognition if the spouses were of opposite sexes,” argues the Oregon DOJ.  There’s “no benefit” to Oregon in that limitation, it asserts, and “no injury would result from recognizing the marriages.”  The opinion goes on to speculate that a court would apply heightened scrutiny to a prohibition on out-of-state same-sex marriages, either because marriage is a fundamental right or because gay [...]

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New Jersey Supreme Court Agrees to Expedited Consideration of SSM Case

The New Jersey Supreme Court has agreed to hear Garden State Equality v. Dow, a challenge to the state’s limitation of marriage to opposite-sex couples.  The trial court recently held the law unconstitutional on the grounds that after United States v. Windsor federal benefits remain unavailable to same-sex couples in civil unions, denying them full equality.  All briefing will be completed by December 3 and the oral argument will be heard in early January.  The court has not yet decided whether to grant a stay of the trial judge’s decision allowing same-sex marriages to begin on October 21.

In any event, my expectation is that gay marriage will be legal in New Jersey within six months.  The only question is whether that will occur by judicial decision or because supporters manage to get enough votes in the state legislature to override Governor Christie’s veto of a gay marriage bill.  The court’s speedy consideration of the issue is probably a good sign for Garden State Equality’s litigation, but may somewhat reduce the likelihood of legislative action. [...]

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Two Upcoming Speaking Engagements

Over the next two weeks, I will be doing two out-of-town speaking engagements that may be of interest to some of our readers.

On Thursday, October, 3, 12:00-1:15 PM, I will be doing a talk on my new book Democracy and Political Ignorance: Why Smaller Government is Smarter, at Columbia Law School in Jerome Greene Hall, Room 105. Columbia law professor Philip Hamburger will comment.

On Thursday, October, 10, 3:30-5 PM, I will be participating in a panel on the Supreme Court’s recent same-sex marriage decisions at Chicago-Kent Law School, along with Chicago-Kent professors Carolyn Shapiro and Kathy Baker. My presentation will expand on my answer to a question that Justice Scalia famously posed in oral argument in the Proposition 8 case: When did laws banning same-sex marriage become unconstitutional? [...]

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State Denies In-State Tuition to Same-Sex Spouse of a Servicemember

The effects of federal recognition of same-sex marriages across the full spectrum of federal benefits, including for those domiciled in states that ban the recognition of their marriages for state purposes, are bubbling up on an almost daily basis.  According to the Dallas Voice, the University of Texas-San Antonio (UTSA) has denied an in-state tuition rate to the same-sex spouse of an active duty servicemember who is stationed in Texas, which bans same-sex marriages in its state constitution.  The military recognizes the marriages of servicemembers to same-sex spouses for all purposes and wherever the servicemember is stationed.  Texas doesn’t have to recognize same-sex marriages for state purposes, so ordinarily its public universities would not have to provide any benefits based on such marriages.  But in this case, federal law provides that federal aid is available to schools only if they grant spouses of military members the favorable rates.  The Higher Education Opportunity Act, 20 U.S.C. 1015d, provides:

In the case of a member of the armed forces who is on active duty for a period of more than 30 days and whose domicile or permanent duty station is in a State that receives assistance under this chapter, such State shall not charge such member (or the spouse or dependent child of such member) tuition for attendance at a public institution of higher education in the State at a rate that is greater than the rate charged for residents of the State.

The president of the American Military Partners Association says that UTSA better get with the program or risk losing federal funds.  “Federal law specifically requires that universities grant in-state tuition rates to the spouses of active duty service members,” he told the Voice. “We urge the federal government to immediately withhold any federal funds that UTSA is receiving through the [...]

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DOMA and Dignity

Why is the Defense of Marriage Act unconstitutional?  Here are two propositions that United States v. Windsor might be thought to stand for:

(1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or

(2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional infringement on a substantive right, e.g., the right to marry (a liberty claim).

These are among the many plausible interpretations of Windsor, but some explanations are more plausible than others.  After consuming several pages discussing the interests of the states in controlling family law, Justice Kennedy expressly states that the Court is not relying strictly on federalism.  Surely a statement in a decision suggesting what it means should have some bearing on what it means.  The Chief Justice, in dissent, thinks federalism is nevertheless critical to the result and would help to distinguish the case from one that involved a claimed constitutional right to state recognition of same-sex marriages.  He might be right about that.  But the Chief Justice’s explanation may also be more a hope about the limited consequences of an alternative Windsor than a reading of the actual Windsor (see Justice Scalia’s dissent).

As for the second proposition, the Court certainly mentions liberty several times.  And the context is one in which the plaintiffs claim that “liberty” protects a right to have their marriages fully recognized by government.  The Court sets for itself the task of deciding “whether the resulting injury and indignity is a deprivation of the liberty protected by the Fifth Amendment.”  Slip op. at 19.  It concludes that Congress “cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.”  Op. at 25.  But my sense is that reliance on the word “liberty” here is more a doctrinal necessity — this is a decision rooted in [...]

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Neomi Rao, Guest-Blogging about Windsor, Dignity, Recognition, and Individual Rights

Prof. Neomi Rao (George Mason) has a very interesting essay on Windsor — one of the same-sex marriage cases — called The Trouble with Dignity and Rights of Recognition [UPDATE: link fixed], and I’m delighted to say that she’ll be guest-blogging about it for the next few days. Here’s a summary of the paper:

In United States v. Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act violated the Fifth Amendment. This Essay examines the unusual right to recognition that forms the basis of the Court’s decision and explains how such dignity rights have a problematic relationship to individual rights and to the structural protections of federalism. A right to recognition, standing alone, has never been part of our constitutional jurisprudence. To the extent that dignitary themes arose in previous cases, they were incidental to the finding of individual rights. I argue that there is good reason why recognition has not been afforded constitutional protection. Claims for recognition are only derivative of individual rights and cannot apply universally. Moreover, the dignity of recognition, because not an individual right, creates an unresolved tension with existing state laws that prohibit same-sex marriage — a tension between the dignity of recognition and the dignity of state sovereignty.

People interested in the subject may also want to read a response to Neomi’s paper, United States v. Windsor and the Role of State Law in Defining Rights Claims, by Prof. Ernie Young (Duke). [...]

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Murder Prosecution Raises Multiple Same-Sex Marriage Recognition Questions

A current murder prosecution in Kentucky happens to simultaneously raise two different same-sex-marriage recognition problems that I’ve previously blogged about. In Kentucky, as in many states, spouses don’t have to testify against one another about things they said while married. Ms. Bobby Jo Clary is on trial for murder, and the state wants her partner, Geneva Case, to testify about some things Clary apparently told her. Case doesn’t want to testify.

So far, however, the trial judge has ruled that Case has to testify for what seems to be a combination of two reasons — Kentucky doesn’t recognize same-sex marriages, and anyway Clary and Case aren’t married; they got a civil union in Vermont in 2004. (I’m going just by the description in the news reports here — I haven’t looked to see if there’s a written ruling from the court.) As readers might realize, this triggers two different questions I’ve been blogging about recently, and to win Case and Clary will have to prevail on both.

First, is there an obligation to recognition to recognize out-of-state same-sex marriages? The Kentucky Constitution says that same-sex marriage (and legal statuses “substantially similar to that of marriage”) shall not be “valid or recognized” in Kentucky. This triggers the question that I wrote about the for the NYU Journal of Law & Liberty. (My answer, recall, is that the logic of Windsor might reasonably be extended to require their marriage to be recognized if they were residents of Vermont at the time.)

Second, even if there is an obligation to recognize out-of-state same-sex marriages, does it apply to couples who have what is technically a civil union rather than a marriage? Vermont now has same-sex marriages, but Case and Clary got married when it was only a civil-union state. And when [...]

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Bill Introduced by House Republicans Offers Broad Exemptions to Opponents of Same-Sex Marriage (and Non-Marital Sex)

Sixty members of the U.S. House of Representatives (58 Republicans and 2 Democrats) have introduced legislation, the “Marriage and Religious Freedom Act” (MARFA), that would prohibit any “adverse action” by the federal government against any “person” who acts on the basis of a religious belief opposing same-sex marriage or opposing sexual relations outside of opposite-sex marriages.  “Adverse actions” include action by the IRS to strip a group of favorable tax treatment, like tax-exempt status.  But it also includes actions related to employment, accreditation, grants, contracts, or benefits otherwise available under federal law.  And it broadly prohibits “discrimination” against those who oppose same-sex marriage and non-marital sex. “Person” includes  nonprofit and for-profit corporations, companies, associations, firms, partnerships, societies, and joint stock companies.

MARFA raises very interesting questions of statutory construction, public policy, antidiscrimination law, and potential applications and burdens for married same-sex couples.  It also raises potential Establishment Clause issues in its partiality toward certain religious doctrines (i.e., applying only to those who oppose, rather than favor, same-sex marriage for religious reasons).  After United States v. Windsor, there are also potential Equal Protection problems in MARFA’s targeted protection of acts motivated by opposition to same-sex marriage.  I haven’t looked at the proposal in detail, but my preliminary reaction is that parts of MARFA (especially those constraining the IRS) will be politically popular, and that other parts may be seen as overreaching.  Whether there is an actual need for any of it, politically popular or not, is an additional question, and whether its protections justify the burdens it may place on married couples is yet another.  When I’ve had a chance to look at it more closely, I may offer more detailed thoughts.

I have a copy of the legislation and will post a link as an update when available.

UPDATE:  The text of the bill is available here. [...]

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Labor Department Extends ERISA Protections to Same-Sex Spouses

The effect of United States v. Windsor continues to ripple through federal law, expanding by leaps and bounds the rights and protections afforded to same-sex spouses.  The effect has been magnified by a friendly federal bureaucracy under the Obama administration, which is widely adopting a place-of-celebration rule for recognizing same-sex marriages under federal laws using words like “spouse” and “marriage,”  thus extending federal recognition to same-sex spouses even if they live in states that don’t themselves recognize their marriages. 

The latest installment in this story is the announcement today by the Labor Department that henceforth it will interpret the Employee Retirment and Income Security Act of 1974 (ERISA), which governs most private pension and health plans, to include same-sex as well as opposite-sex spouses.

[T]he term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.

The Department defended its decision to adopt a place-of-celebration rule rather than a place-of-domicile rule based on its reading of Windsor and policy considerations, like a need for uniformity and certainty in coverage of employees who move from one state to another.

This is the most natural reading of those terms; it is consistent with Windsor, in which the plaintiff was seeking tax benefits under a statute that used the term “spouse”; and a narrower interpretation would not further the purposes of the relevant statutes and regulations. . . .  

A rule that recognizes marriages that are valid in the state in

[...]

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New Labor Guidance on Same-Sex Marriage and ERISA

Thanks to the indispensable Chris Geidner, I see that the Department of Labor has issued “guidance” about how to deal with same-sex marriages under ERISA. Like just about every federal agency other than the Social Security Administration, the labor department takes the view that a marriage is valid for federal purposes if it was valid in the state where it was celebrated, regardless of whether the couple lives in an anti-recognition state.

A few thoughts:

– The guidance provides good policy reasons not to look at the law of the domicile. It does not, however, provide any arguments against (or even acknowledgment of) the solution that I’ve advocated, which would be to follow the choice of law provisions set out in the ERISA plan itself. (Most ERISA plans that I’ve read contain a choice of law provision designating a state whose law governs the interpretation of the plan.)

– The guidance argues that a domicile-based definition would “grow increasingly complex” because administrators “would need to continually track the state of domicile of all same-sex married employees and former employees and their spouses.” That’s true. But that problem wouldn’t occur under a plan-based approach.

– That said, the guidance deserves credit for explicitly flagging and talking about the choice of law problem in relatively coherent terms, and laying out some of the major arguments in favor of the policy it adopted.

– Unlike a lot of the other agency policies I’ve blogged about so far, it’s relatively easy to imagine a scenario where somebody could have standing to challenge this — fights over assets under ERISA are usually zero sum. That means we might actually see litigation over this policy. [...]

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Does Windsor Require States to Recognize Out-of-State Same-Sex Marriages?

I’ve blogged before about Obergefell v. Kasich, the first post-Windsor decision to raise the very interesting question of whether states are required to recognize out-of-state same-sex marriages.

I’ve now written a short essay on that question, which is forthcoming in the NYU Journal of Law and Liberty’s inaugural Supreme Court Review-Preview. Here is the introduction:

Last June, the headlines said that the Supreme Court’s decision in United States v. Windsor struck down the Defense of Marriage Act. But that is only half true. The Defense of Marriage Act had two important provisions. Section Three defined “marriage” for purposes of federal law as being limited to the union of one man and one woman. It was invalidated in Windsor. But the Act’s other section, Section Two, says that states are not required to recognize one another’s same-sex marriages. Section Two was not invalidated. But it may be soon.

Indeed, the validity of Section Two is a natural question after Windsor. Putting it more generally, the question is whether states are constitutionally required to recognize same-sex marriages that were celebrated elsewhere.

One federal court has already answered “yes,” relying on Windsor to hold that interstate recognition is constitutionally required: In Obergefell v. Kasich, a federal district judge granted a temporary restraining order requiring the state of Ohio to recognize a marriage between two Ohio men who had briefly traveled to Maryland to marry. (The recognition was for the sad occasion of issuing a death certificate.) And there is more to come. It seems likely that the court will issue a final decision soon enough, and another plaintiff has already been added to the Obergefell suit. Many other courts will soon confront the same question.

Windsor does not address this question directly. But the decision contains two different

[...]

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IRS Will Recongize Same-Sex Marriages Regardless of Where Couples Reside

Today the Treasury department announced that it will recognize all same-sex marriages valid in the “place of celebration” regardless of where the couple now lives. This is particularly noteworthy because it seems like a policy change. It had generally been thought that the IRS deals with other questions of marital validity by looking to residence. That’s what the Tax Court thought in Von Tersch v. Comm’r (1967) (“For the purpose of establishing eligibility to file a joint Federal income tax return, the marital status of the two individuals is to be determined under the laws of the State of their residence.”); that’s what Patricia Cain thought in DOMA and the Internal Revenue Code (2009) (pp. 513-514) (“Although the rule is not clearly and completely stated in the Internal Revenue Code, or in the regulations, it is generally assumed that for tax purposes, a couple will be considered as married if they are legally married in the state of domicile.”); and it’s what I assumed too.

The new Revenue Ruling argues, however, that the new rule is consistent with its past practice:

For over half a century, for Federal income tax purposes, the Service has recognized marriages based on the laws of the state in which they were entered into, without regard to subsequent changes in domicile, to achieve uniformity, stability, and efficiency in the application and administration of the Code.

I don’t know who is right here, although I assume that Treasury knows what it is talking about. (If there were an unacknowledged change, the ruling would be vulnerable.)

A few thoughts:

1. At this point, it seems pretty clear that the administration is trying to implement a place-of-celebration rule as broadly as it lawfully can, and that the Social Security decision a few weeks ago is likely to [...]

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