Lesbian Gay Bisexual and Transgender Rights Section Newsletter

Vol. 8, No. 1 — October 2015

Chair’s Corner by C.J. Griffin

hen I became chair in May at the Annual Meeting, I acknowledged that I had big shoes to fill. Our immediate past chair, Robyn Gigl, did a tremendous job W leading the section. I wondered how I could ever lead as well as she did. What I realized was that no one ever can be Robyn—but no one can ever be CJ, either. As I reflect on prior years, I can say with certainty that each and every year since I have been involved, the chair has brought something unique and special to the section. We have already had two general membership meetings this year, so I hope that what I intend to bring to the section has become self-evident, but: • I seek to more actively engage new members by leading through small committees, such as our CLE Committee, Community Outreach Committee, Legislative Commit- tee, Networking/Social Committee, Diversity Working Group, and Strategic Planning Committee. I hope new faces will become more involved and grow into leadership positions within the section. • I aim to make our general membership meetings more personal, where we discuss important topics in small groups so we can get to know each other and everyone feels comfortable sharing their ideas and experiences with the common goal of making the section even better. • I want to lead us toward strategic thinking. What is our core mission? What is our short-term plan and what is our long-term plan? Where have we been and where are we going? How do we get there? • I strive to tackle diversity issues that exist within our section and within the NJSBA at large: exploring how we can be more diverse in terms of race, age, experience, and legal practice areas; engaging in internal cultural competency around issues such as gender, polyamory, and other topics that are unfamiliar to some of us; and making all members feel welcome and embraced.

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 1 Index • I hope we continue to educate other attorneys. Let’s face it, we host amazing continuing legal education (CLE) programs. I want us to continue to have a strong presence at the Annual Meeting, where we have the opportunity to reach a large audience and educate the legal community about LGBT issues. Our CLE panels give us the opportunity to partner with other sections, which is something I hope to increase. • I want to have fun! I strongly believe that the better we know each other, the more likely we are to feel motivated to take leadership roles, serve on committees, and do the important work of the section. We will aim for frequent informal social and networking events throughout the year, in various locations across the state. I have already seen so many new faces at meetings this year, and I am honored that so many of you have emailed me privately, volunteering to staff events, serve on commit- tees, or otherwise be involved. I am also thankful for our previous chairs and trustees, who always step up to the plate to lead committees, offer advice, speak on panels, and mentor new members. My goal is to find ways to bring together the wisdom, experience, and devo- tion of our long-term members with the energy and fresh perspective of our new members, so we can build on what has been a long, successful history of the LGBT Rights Section. I am honored to work alongside all of you.

Editorial Board Inside this issue Editor-in-Chief: Nancy Del Pizzo Chair’s Corner 1 Special Editors: by CJ Griffin Matthew Coleman Aimee Creed 3 Londa Recognized for Lifetime Achievement Executive Officers Chair: The New Jersey Judiciary Commemorates C.J. Griffin LGBT Pride Month 2015 5 Chair-Elect: by Lisa R. Burke John M. Keating Vice Chair: The Attempt to Transform Religious Freedom into the Jodi A. Argentino Right to Discriminate: Hobby Lobby and Beyond 6 Secretary: Celeste Fiore by Robyn B. Gigl Advising Clients Considering a Co-maternity 10 by Bill Singer

Commentary Marriage Equality 12 by Walter M. Stringer

The statements of the various authors contained within this issue are their individual opinions and should not be viewed as those of the Lesbian Gay Bisexual and Transgender Rights Section, the New Jersey State Bar Association or any other agency or organization.

New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 2 Index Londa Recognized for Lifetime Achievement

(Editor’s Note: On April 28, 2015, Felice T. Londa received the Lifetime Service Achievement Award from the LGBT Rights Law Section during the organization’s annual dinner. The award recognized her contributions in advancing LGBT rights in New Jersey. Following is her speech.)

Let’s hear it for my fabulous Rap Committee Lifetime Achievement and rap band—please stand—Amy Gorin and, Award Rap of course, my wife Stacy Brodsky, and on the When I started fighting for LGBT rights, noisemakers my sister, Leslie Westreich. And for I never dreamed that we would hit such heights. the wonderful annual dinner committee—Jodi I thought I’d have to be well guarded Argentino and Becca Levine. But it was soon apparent That I was too transparent Getting more serious, I first want to say Couldn’t get the pronouns “straight” thank you to all of you who have come this ‘Cause I had found Stacy, my soul mate. evening. Senator Loretta Weinberg, my heart is The LGBT Rights Section full that you have come, Supreme Court Justice was a fabulous connection. Jaynee LaVacchia, Senator Barbara Buono, Patri- Domestic partnership drafts were written cia Bell, Stacy, Ray, Pete and Claire, friends and the LGBT Rights Section by Tom Prol and Deb Guston. While LGBT fans for their rights were a-lustin’, members, who in many ways have become family to me. McGreevy’s team forced too much adjustin’ As to the Lifetime Achievement Award, I have to say that I was lucky So that finally, well, it was disgustin! enough to be in the right place, at the right time, with the right skills, the So I drew inspiration right wife to support and encourage me, the right people in our section, and From Tom and Deb’s perspiration the strength to fight for equal rights for our LGBT community. Our section Got workin’ for our collection, has enabled me to make a difference, something I know we all want, and Named co-chair at our next election. many of us have accomplished through this massive cultural upheaval. The bar association gave us this direction: When we think back to the start of gay pride—Stonewall, when a bunch Stay away from the creation of women in Birkenstocks and men in heels took the fight into the streets on of an equality solicitation. But we couldn’t be dissuaded June 28, 1969—I doubt that anyone would have believed that in 45 years Or else we’d be degraded. our country and much of the world would be turned on their heels to recog- nize LGBT civil rights as human rights. Tom and I went to the General Council convention I stand here like those before me who have been given this LGBT Life- And, despite some really hot dissention time Achievement Award—Bill Singer, Deb Guston, and Danny Weiss—and They let us make our plea. I glory in what we and our section have accomplished. I look out at the new How Tom did that, he never really mentioned. And the vote said the people do AGREE. leaders of our section and know that we are in excellent hands, and the We almost won. It was oh so close fight against bullying in our schools, and for transgender equality, homeless It raised an important question. youth, senior housing and so many other issues will still go on. What was the bar’s objection? Why not an intervention? This section has accomplished so much, and there is yet so much to At least for equal rights, though continue to do. We are the beacon of vigilance, and our section has taken ‘marriage’ was dissed and not mentioned. the lead since its inception, and must continue to do so. Danny jumped into the fray We are not just about social networking—we have fought and won on Kept those naysayers at bay, so many levels, but there are still so many more fights—our section as the An amicus brief was approved leader in LGBT rights can never become complacent. By the NJSBA I hope you are all enjoying this Hawaiian luau, but there is a double When Lewis v. Harris meaning in the choice of a luau for the awards dinner. Hawaii was the first First came to the Court

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 3 Index place where freedom to marry won in the courts, and achieved full marriage Equal rights was the only thing the bar association would support. equality in 1996. But that ruling was stayed pending appeal. Hawaii then Civil union or marriage position, passed a constitutional amendment in 1998 to deny marriage to same-sex Either met the state bar’s mission. couples. It was not until 2013 that the Hawaiian Legislature passed the As lead counsel on the brief, I was held to the bar’s belief. Marriage Equality Act, legalizing marriage between same-sex couples. Then the court took our rationale, In the Supreme Court today, the future of state DOMA constitu- And civil unions ended up tional amendments hangs in the balance. But even if we win, the right- coming down the birth canal! wing conservatives will not rest. We are seeing the fallout of the Religious It took time to win the hearts in power Freedom Act, and can expect plenty of coattail riding after the Hobby Lobby But soon the bar saw why CUs made us glower. decision. If you attended the 2015 LGBT Update on March 14, we learned We persuaded the bar’s ivory tower, The next time around, they didn’t cower. that this ruling may possibly become a major opening for major setbacks, not only for LBGT rights but for women’s rights. As we sit, states are creating We wanted flowers and the white carriage statutes extending the right to refuse service to the LGBT community based That civil unions only disparaged For full equality on a for-profit company’s decision that our lives are immoral. In what paral- It simply has to be! lel universe would this be allowed against any other minority? There is no other term but marriage! In New Jersey, the LGBT Rights Section changed the face and culture of Then Garden State Equality took the case our state bar association when we were told not to even bother. We were told I was a GSE board member, and all about that bass. this was a ‘social issue,’ not a ‘civil rights issue.’ But we won, and with the Plaintiff Danny and John’s story won the day bar’s support we have won full equality in our state. But, if we let down our And in NJ, marriage equality is here to stay. guard and get complacent, we can lose what we have gained. On bullying the section next set sights Our section, and particularly Tom Prol, Luanne Peterpaul, John Keat- Upholding the endangered Anti-Bullying Bill of ing and I, used the power of our section and the bar association to defeat a Rights. Luanne, Tom, John and I took up that fight major challenge to the Anti-Bullying Bill of Rights as an unfunded mandate. So that school bullying wouldn’t be a blight. Thank heavens for Shari Weiner’s lobbying efforts and her efforts on the But our brief, the commission didn’t excite. Local Council on Mandates Commission to stop these challenges. But the Then Shari Weiner, lobbyist Wouldn’t let the win go to the crappiest challenges will continue to come. We are on the cusp of so many issues for And forced the funds needed most-ist transgender rights and other battles. And our section will be in the forefront, So our students became the happiest. as it must be. Then, Stacy and I met Edie Windsor The LGBT Rights Section gave me a platform for my voice to be heard, Such a marvelously, delightful winner. and I am forever grateful to all of you—my friends, my colleagues, my LGBT We gave her a well-deserved handshake, soul mates, and our wonderful straight allies without whom we would never ‘cause she changed the LGBT landscape By challenging the feds in her 80s have come so far. Rather than just merely planting daisies. In 11 days, I will celebrate a major milestone birthday, and I am getting She wielded power as no other lady, ready to retire from the practice of law. (Thank you, Pat Bell!) But, our LGBT She sent all of our enemies to Hades. We hope she gave them rabies work goes on, and I am very proud to be a part of it and a part of each of When she proved that their claims were crazy. you. In a sense, it is getting time for the old guard to pass the torch to our She showed that the arguments of our foes younger, dynamic members. We will rely on you to protect our interests. Amounted to nothing but absolute zeros. I am really thrilled to be the recipient of the 2015 LGBT Lifetime It’s no secret that I’m having fun Service Achievement Award. Working for the civil rights and the legal and Being a sultry lesbian. cultural advancements in our state has been the most fascinating part of my Automatically doubling the size of my wardrobe legal career and my personal goals. Without the LGBT Rights Section and Is a bonus I never would have thought of. the NJSBA, I doubt we would have achieved any of the successes we have I hope you enjoyed our section’s success reached. And want to thank you all for the honor you’ve expressed. Thank you for this wonderful award. I am delighted to have walked with I need to say some things of note the many section leaders and the bar association on this path to full equality while everyone is mostly sober, in New Jersey, and am profoundly grateful to be honored in this manner. It So at this point that’s all I wrote, is the crowning achievement of my career, and I will be forever grateful. And now this rap is done and over.

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 4 Index The New Jersey Judiciary Commemorates LGBT Pride Month 2015 by Lisa R. Burke

he New Jersey Judiciary, as a diverse and As with each cultural heritage month, LGBT-themed inclusive employer and public-serving programming was also included in a number of continu- T organization, celebrates its diversity and the ing legal education (CLE) programs offered through the people it serves through a variety of cultural heritage Judiciary Institute for Staff Attorneys (JISA). Coordi- month observances such as Black History Month, nated by the Office of the Administrative Director of the Women’s History Month, Asian Pacific Islander Heritage Courts, JISA programs allow staff attorneys to acquire Month and Hispanic Heritage Month. CLE credits and non-attorneys to avail themselves of For its 2015 cultural heritage month observances, professional development courses throughout the year. the Judiciary instituted a short YouTube series titled This year’s LGBT Pride Month-related educational Insights. Each installment memorializes, through inter- programs included a course on gender identity present- views, achievements by individuals in the Judiciary or ed by David Beverly, equal employment opportunity/ those who have played a role in the courts. affirmative action (EEO/AA) officer in Union Vicinage; This year, LGBT Pride Month provided an oppor- an actor’s studio style presentation by Judges Accurso tunity to recognize the contributions of lesbian, gay, and DeAlmeida and Gigl designed to continue the bisexual, and transgender people to the justice system conversation presented in the Insights video; and a joint and the practice of law. The inaugural LGBT Pride presentation by attorney Debra Guston on the impact of Month installment of Insights, which can be viewed at the Obergefell decision and attorney John Keating on the youtube.com/watch?v=sPTF7ys6N60, featured Appellate marriage equality referendum in Ireland. All three JISA Division Judge Allison Accurso, Tax Court Presiding programs, which Judiciary staff attended in person and Judge Patrick DeAlmeida, and attorney Robyn Gigl, via videoconference, were well received. immediate past chair of the NJSBA LGBT Rights Section, LGBT people make valuable contributions to the in a conversation centered on the evolution of legal mission of the New Jersey Judiciary as judges, managers, rights in New Jersey. administrative staff, advisory committee members and The 10-minute video, which as of this writing court volunteers. The New Jersey Judiciary is proud of has received the most views of the three videos in the its legacy of diversity and inclusion. Commemorating Insights series, covered key legal developments achieved LGBT Pride Month is one of the many ways in which through case law and legislation, along with the contri- the New Jersey Judiciary honors its ongoing commit- butions LGBT people make within the Judiciary as ment to diversity and inclusion, reflecting the rich judges, managers, staff, and court volunteers. tapestry of difference and diversity that characterizes A LGBT Pride Month e-banner featured a range of the organization. historic notes chronicling the ways in which New Jersey has been a leader in advancing LGBT equality through Lisa R. Burke is the minority concerns program coordinator case law and legislation, including protections against with the Administrative Office of the Courts. discrimination, second-parent adoptions, relationship recognition, freedom from bullying, and prohibitions against conversion therapy for minors, was displayed on a monitor in the first floor of the Richard J. Hughes Justice Complex in Trenton.

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 5 Index The Attempt to Transform Religious Freedom into the Right to Discriminate: Hobby Lobby and Beyond by Robyn B. Gigl

“Your right to swing your arms ends just where the other man’s nose begins.”1

t is more than ironic that the Religious Freedom a situation where a photographer refused to provide Restoration Act2 (RFRA), a law originally proposed services for a same-sex wedding.12 Although Justice I by then Congressman Chuck Schumer and Senator Alito responded that the Court’s decision could not be Ted Kennedy, which passed the House unanimously the basis for discriminating in hiring as Justice Ginsburg and the Senate with only three nay votes,3 and was suggested, the language Justice Alito used in offering his inspired in part by a Supreme Court case involving the assurances left many in the lesbian, gay, bisexual and use of peyote by Native Americans,4 could spawn a state transgender (LGBT) community, and other minority law intended to allow businesses to discriminate based communities, less than reassured. on the religious beliefs of the owners of the business.5 Justice Alito stated: Yet, as this article will explore, in the lead up to, and following the Supreme Court’s decision in Burwell v. The principal dissent raises the possibility Hobby Lobby Stores, Inc., and Conestoga Wood Specialties that discrimination in hiring, for example on Corp. et al. v. Burwell6 (Hobby Lobby) a number of states the basis of race, might be cloaked as religious have attempted to pass or amend existing RFRA laws practice to escape legal sanction. See post, at to allow a business owner’s religious beliefs to act as 32–33. Our decision today provides no such a potential defense in a claim by a plaintiff alleging shield. The Government has a compelling inter- discrimination.7 est in providing an equal opportunity to partici- In Hobby Lobby, the Supreme Court held that pate in the work-force without regard to race, closely held, for-profit businesses such as Hobby Lobby and prohibitions on racial discrimination are were persons under RFRA, and that the contraception precisely tailored to achieve that critical goal.13 mandate of the Affordable Care Act8 (ACA) presented a substantial burden on the company’s religious beliefs.9 For advocates in the LGBT community, Justice Finding that the government had alternatives to Alito’s response to Justice Ginsburg seemed purposely providing coverage for the contraception that were less vague. Why was it that Justice Alito referenced only restrictive on Hobby Lobby’s religious liberty, the Court racial discrimination when Justice Ginsburg referenced a exempted Hobby Lobby from the contraceptive mandate number of forms of discrimination? Does his interpreta- of the ACA.10 While Justice Samuel Alito, writing for the tion leave open the possibility of allowing discrimina- majority, asserted that the scope of the Court’s decision tion on the basis of gender, sexual orientation or gender was narrow,11 the subsequent use of Hobby Lobby, and identity? the actions of various states based on the Court’s deci- As troubling as Justice Alito’s limited response to sion, would suggest that the fears expressed by Justice Justice Ginsburg’s concerns was, more troubling to Ruth Bader Ginsburg in her dissenting opinion were LGBT advocates have been the efforts in a number of prescient. states, most recently in Indiana, to enact or amend state In her dissent, Justice Ginsburg suggested that the RFRA statutes to build off of Hobby Lobby and expand Court’s decision could become the basis for discrimi- their laws to include all business entities, including nating against various groups, specifically referencing public for-profit companies, and to allow religious beliefs

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 6 Index to be used as a defense in a civil proceeding even if the In 2014, Arizona was the first state to pass a bill government is not a party.14 amending its existing RFRA to include all for-profit Since 1993, 21 states have enacted a version of corporations within the definition of “person,” and, most RFRA.15 Many of these laws followed the Supreme importantly, expanding the scope of the law to allow a Court’s 1997 decision in City of Boerne v. Flores,16 which “person” to use RFRA as a defense, whether or not the held the federal RFRA was unconstitutional as it applied government was a party to the proceeding.26 Although to the states. Nonetheless, until recently most state Arizona provided no discrimination protections based RFRA statutes were substantially identical to the federal on sexual orientation, gender identity or gender expres- RFRA, and have sat on the books, rarely being used.17 sion, proponents of the bill felt it was necessary to avoid However, in 2013 two cases seemed to have resulted in a situation similar to what took place in New Mexico.27 a renewed interest in these statutes, and in the effort to However, following public denunciation of the bill use them as a means of limiting LGBT rights. across party lines, and threats of a business backlash, on The first case wasElane Photography, Llc v Willock,18 Feb. 26, 2014, Governor Jan Brewer vetoed the bill.28 in which the New Mexico Supreme Court upheld the Fast forward to March 2015, when Indiana adopted, ruling of the New Mexico Human Rights Commission, and Governor Michael Pence signed into law, the same finding that a commercial photography service that changes as proposed in Arizona to Indiana’s RFRA law. offered it services to the public was subject to the anti- Again a firestorm of criticism against the law erupted, discrimination provisions of the state’s Human Rights forcing the Indiana Legislature and Governor Pence to Act and had violated the provisions of the act when amend the bill to clarify that it could not be used as a the owner refused to contract with a lesbian couple to defense in a claim for discrimination based on sexual photograph their commitment ceremony.19 In defend- orientation or gender identity.29 ing against the claim, the studio claimed, among other Thus far, opponents of bills that would provide a defenses, that it was protected under New Mexico’s defense against discrimination based on religious beliefs RFRA because the head photographer was opposed have been successful in preventing these measures from to same-sex unions on religious grounds.20 The Court taking effect. However, other states continue to consider rejected this defense, holding that, by its terms, the these and other measures, generally aimed at the LGBT state’s RFRA applied only to government action, and community and/or at same-sex marriage. In Louisiana, since this was a discrimination claim by a private citi- for example, it was reported that a bill would be intro- zen, RFRA was not applicable.21 duced to protect business owners who do not believe The second case was Hobby Lobby itself. The case, in same-sex marriage from having to provide services original filed in the United States District Court for the in connection with the wedding of a same-sex couple.30 Western District of Oklahoma, sought an injunction Bills in four other states have been introduced to protect against the contraception mandate of the ACA based on government workers who object on religious grounds RFRA and the free exercise clause of the Constitution.22 to same-sex marriage, and who refuse to perform their The district court denied the request for a preliminary official job duties if it involves a same-sex couple.31 injunction, as did a two-judge panel of the 10th Circuit Finally, three other states are considering amendments Court of Appeals.23 However, in March 2013, the 10th to existing RFRAs that are similar to the original Indi- Circuit granted an en banc hearing, and in June 2013, ana amendments.32 ruled that a for-profit, closely held corporation was a Although it is not fair to suggest that the struggle for “person” under RFRA.24 The 10th Circuit’s decision took racial equality and LGBT equality are the same, if race many by surprise, and it opened the possibility to some were substituted for sexual orientation, or interracial state legislators of counteracting the decision in Willock marriage for same-sex marriage, would anyone find by expanding the scope of state RFRA’s to provide a these laws palatable? Yet, many still seem to struggle defense to a for-profit corporation in a civil or adminis- with the concept that sexual orientation and gender trative discrimination complaint, based on the corporate identity are as immutable as race. Perhaps we need to defendant’s religious opposition to same-sex marriage consider the words of Julian Bond, chairman emeritus of and/or other LGBT rights.25 the NAACP, who, on the 50th anniversary of the March

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 7 Index on Washington, said about LGBT equality: As important as it is that the religious freedoms of all citizens be protected, when those freedoms are used … LGBT rights are civil rights. to deprive others of their civil rights, then, as Justice No parallel between movements is exact. Ginsburg quoted, “[y]our right to swing your arms ends just But like race, our sexuality and gender iden- where the other man’s nose begins.”34 At that point, we, as a tity aren’t preferences. They are immutable, society, must be prepared to stand united to prevent our unchangeable – and the constitution protects brothers, our sisters, our friends and our families from us all against discrimination based on immu- being hit in the nose. table differences. Today, we are fighting for jobs, for econom- Robyn B. Gigl is the immediate past chair of the New Jersey ic opportunity, for a level playing field free of State Bar Association’s LGBT Rights Section and a member of inequality and of discrimination. It’s the same the association’s Diversity Standing Committee. She is a part- fight our LGBT brothers and sisters are waging ner at Gluck Walrath, LLP in Trenton and Red Bank, where – and together we have formed a national she practices primarily employment law and business and constituency for civil rights.33 commercial litigation. This article was originally published in the New Jersey State Bar Association’s Diversity Committee Newsletter, and is reprinted here with permission.

Endnotes 1. Burwell v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corp. et al. v. Burwell, 573 U.S. __ , __ (2014); 2014 U.S. LEXIS 450582 (No. 13-354, June 30, 2014) (Ginsburg dissenting, quoting, Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919)). 2. 42 U.S.C. 2000bb et seq. RFRA provides is pertinent part:

(a) In general Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that applica- tion of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

3. See, http://www.justice.gov/jmd/religious-freedom-restoration-act-1993-pl-103-141 (last viewed April 18, 2015). 4. Employment Division v. Smith, 494 U.S. 872 (1990). 5. See, https://iga.in.gov/legislative/2015/bills/senate/101 (last viewed April 18, 2015). 6. 573 U.S. _ (2014); 2014 U.S. LEXIS 450582 (No. 13-354, June 30, 2014). 7. See, https://iga.in.gov/legislative/2015/bills/senate/101 (last viewed April 18, 2015). Arizona SB 1062, passed by the Arizona legislature in 2014 contained similar language to the Indiana Statute, but was vetoed by Governor Jan Brewer. Santos, Fernanda (Feb. 26, 2014). “Governor of Arizona Vetoes Bill on Denying Service to Gays,” NYTimes (last viewed April 18, 2015). 8. Patient Protection and Affordable Care Act, P.L. 111-148, § 1001(5), 111th Cong., 2nd Sess. (2010). 9. 573 U.S. at __ (2014); 2014 U.S. LEXIS 450582 (No. 13-354, June 30, 2014). 10. Id. 11. Id. at __.

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 8 Index 12. See, slip opinion at 91-92 (Ginsgurg dissenting). Justice Ginsburg cited to Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). 13. 573 U.S. at __ (2014); 2014 U.S. LEXIS 450582 (No. 13-354, June 30, 2014). 14. See, https://iga.in.gov/legislative/2015/bills/senate/101 (last viewed April 18, 2015). The statute provided in pertinent part: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (Emphasis added). 15. See, http://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx (last viewed April 18, 2015). 16. 521 U.S. 507 (1997). 17. Christopher Lund, Religious Liberty after Gonzales [O Centro]: A Look at State RFRA’s, 55 South Dakota L. Rev. 466 (2010). 18. 309 P.3d 53 (2013), cert denied, 572 U.S. _ (2014). 19. Id. at 59. 20. Id. at 59-60. 21. Id. at 76-77. 22. 870 F. Supp. 2d 1278 (W.D. Okla. 2012). 23. 2012 WL 6930302. 24. 723 F.3d 1114, 1129 (10th Cir. 2013). 25. https://verdict.justia.com/2014/02/25/arizona-states-consider-expanding-religious-freedom-discriminate (last viewed April 19, 2015). 26. Id. 27. http://concurringopinions.com/archives/2014/02/license-to-discriminate-religious-freedom-discrimination- (last viewed April 19, 2015). 28. Governor of Arizona Vetoes Bill on Denying Service to Gays” NY Times (last viewed April 18, 2015). 29. http://www.usatoday.com/story/news/nation/2015/04/02/indiana-religious-freedom-law-deal-gay- discrimination/70819106/. 30. http://www.nola.com/politics/index.ssf/2015/03/louisiana_legislature_religiou.html (last viewed April 19, 2015). 31. http://rfraperils.com/states/ (last viewed April 19, 2015). 32. Id. 33. http://www.hrc.org/blog/entry/on-the-50th-anniversary-of-the-march-on-washington-julian-bond-says-lgbt-ri (last viewed April 19, 2015). 34. See, endnote 1, supra.

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 9 Index Advising Clients Considering a Co-maternity by Bill Singer

hanks to advances in reproductive medicine, ments until they properly reflect the intentions of the some female same-sex couples who are creating parties. As a best practice, have the clinic documents T a family choose to undertake what is known as reviewed by an experienced assisted-reproductive tech- a co-maternity, or ovum sharing. Co-maternity enables nology attorney. both women in the relationship to participate in the Disposition of unused genetic material and creation and gestation of their child. embryos. After completion of the co-maternity process, Under this procedure, a reproductive medical doctor the mothers may have leftover and unused genetic mate- harvests viable eggs from mother #1. Then, using sperm rial, such as sperm from a donor, or unused embryos. from a known or unknown donor, a reproductive medi- What happens to this genetic material? Use it, donate it cal physician creates pre-embryos. One or more of these or destroy it are the three options. They are considered pre-embryos is implanted in the uterus of mother #2, property, and subject to property division in case of who carries the child full term and gives birth. divorce or dissolution of a civil union. If your clients are considering undertaking a It is crucial the mothers discuss these issues and co-maternity, here are some issues they should consider: sign a written agreement between themselves regarding Clinic documents. Normally, reproductive medi- ownership and disposition of this material. They need cal clinics deal with women who are donating their to resolve who will have ownership if the relationship of ova. Donors want to surrender all of their rights to any the mothers ends, or if one or both of the mothers dies. children born from the donated eggs. As a result, clinics Most states do not have laws covering the disposi- produce documents written to meet the needs of these tion of these genetic assets. Thus, if there is a disagree- donors. ment, the parties may have to resort to asking a judge to Unlike most egg donors, in a co-maternity the make a determination. To avoid the expense and stress intended mother from whom the eggs are harvested of litigation, it is best for the parties to determine these does not want to surrender her parental rights. Unfor- issues before a crisis develops. tunately, clinics and patients do not carefully review the Issues resolving legal parentage. Despite the documents. Often unwittingly, intended mothers sign marriage equality decision in Obergefell v. Hodges,2 it is legal paperwork that contradicts their intent. still advised that the non-biological parent of a child in Later, if a controversy arises between the two a same-sex couple obtain a court order confirming the mothers, problems can ensue. In a Florida case, the non-biological parent’s legal status. Marriage equality gestational mother asserted the genetic mother had no does not equal parentage equality. rights, using the executed clinic documents surrender- In New Jersey, there is a rebuttable presumption that ing the mother’s rights as evidence that the genetic the spouse of a married woman who gives birth is the mother never intended to be a parent. After years of second parent of that child. Using that presumption, court battles, the Florida Supreme Court found that the non-gestational mother’s name is put on the birth despite the clinic documents, the genetic mother was a certificate. But, that presumption can be rebutted if it legal parent.1 can be proved that the spouse is not genetically related To prevent a fight over parental rights in the future, to that child.3 if clients are considering a co-maternity, make sure they In the scenario of a co-maternity where the non- carefully read the clinic documents. Make sure that gestational parent is biologically related to the child, anything they are asked to sign accurately reflects their one could argue that no court order is necessary, as intentions. They should refuse to sign any clinic docu- the presumption cannot be overcome. That being true,

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 10 Index it may still be advisable for the non-gestational mother to obtain a confirmatory adoption or parentage order. A birth certificate is only a record of what was told to the registrar of births. Facts on a birth certificate, unlike a court order, can be examined and discounted. In a hostile state or a foreign country where same-sex parents are uncommon or refused recognition, families with two parents of the same sex can be questioned on the legal parentage of the woman who did not give birth. Having a court order to demonstrate the parentage of both parents should quell any inquiry. When confronted with an adoption petition where one parent is the genetic parent and the other the gestational parent, judges have asked who should be the adopting parent. After all, the woman whose egg was used is a biological parent to the child. However, in New Jersey a woman who gives birth is considered the mother. State regulations governing the creation of birth records require that the woman who gives birth must be recorded as a parent on the birth certificate.4 Thus, the gestational mother is on the birth certificate by virtue of that regulation. In these cases, the biological mother would be the adopting parent or the parent proving parentage. As a best practice, the order, whether an adoption order or parentage order, should list both women’s names as the legal parents, making it clear they are equal parents.

Bill Singer, a partner in Singer & Fedun, LLC, in Belle Mead, concentrates his practice on the creation and protection of families of all configurations and as counselor to nonprofit organizations.

Endnotes 1. D.M.T. v. T.M.H., 129 So. 3d 320 (Fl. 2013). 2. 576 U.S., 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). 3. See N.J.S.A. 9:17-43. 4. N.J.A.C. 8:2-1.4(a).

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 11 Index Commentary Marriage Equality by Walter M. Stringer

lthough many in the LGBT community long Marriage is a keystone of society, of which there is thought they would never see marriage equality no equivalent that safeguards both the child and family. A in their lifetime, the last decade has been a The rights of procreation, contraception, and child rear- whirlwind of progress toward equality for LGBT persons ing, along with marriage, are deeply rooted in and are and legal recognition of same-sex unions. a central part of the liberties protected by the Constitu- In June 2003, the Court decided Lawrence v. Texas,1 tion; therefore, they must apply with equal force to which struck down Texas’s anti-sodomy law criminal- same-sex marriages, Justice Kennedy noted.7 izing homosexual activity. Though the sodomy law may Although the ultimate judgement reached by the have seemed like an anachronism, the Lawrence case Court is justified under the Constitution, the minority was a pivotal moment in the gay rights legal movement. attempts to obfuscate the decision by suggesting that Later, in June 2013, the Court struck down Section 3 of it is one of “pop philosophy” undermining the Court’s the Defense of Marriage Act (DOMA), thereby requiring reputation for a “clear and sober analysis,”8 which robs federal recognition of same-sex marriages recognized in the American people of the legislative process. Justice one’s state.2 Most recently, the Supreme Court’s ruling Kennedy’s failure to use a tiered scrutiny approach some- on LGBT issues culminated with the Obergefell decision, how makes the decision “pretentious.”9 In addition, the giving the LGBT community “equal dignity in the eyes minority argues that the petitioners are attempting to of the law”3 when it comes to marriage. More precisely, carve out new rights, the determination of which should the Court held that every state is required to license a have been left for the legislative process. marriage between two people of the same sex, and must The minority fails to take into account that the recognize same-sex marriages that have been validly Constitution is a living, breathing document. History performed out of state.4 has shown that marriage is an institution of both “conti- Writing for the majority, Justice Anthony Kennedy nuity and change,” not an isolated construct. When laws expounds upon the well-established idea that marriage fail to keep pace with the changing social understand- is a fundamental right. He describes the “four prin- ing of marriage, fundamental rights may be trampled. ciples and traditions”5 to solidify the reasons why these The equal protection clause has long been used when principles are grounded in both the due process and the legislative process fails to correct inequalities, as in equal protection clauses of the 14th Amendment. Justice Loving v. Virginia, which rendered anti-miscegenation Kennedy prefaces his decision by exploring how the laws unconstitutional, and Zablocki v. Redhail, holding a concept of marriage has evolved throughout history, Wisconsin statutory classification invalid.10 while its essence remains an integral part of our identity What is now clear to the LGBT community is that as a society. Justice Kennedy codifies the principles as a an injured party need not wait with mere hope that the matter of personal choice between marriage and liberty. legislative process will run its course before seeking Moreover, he articulates how some choices are of such redress. The petitioners in Obergefell were not seeking a an intimate and personal nature that they are central to new right, as the minority has stated; rather, they simply an individual’s autonomy.6 wanted to enforce rights already inherit in the idea of marriage to their own union.

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 12 Index This decision represents a monumental turning point for the LGBT community, but we must remain ever vigilant. Remaining vocal and forthright in the fight for equality is necessary as we continue to strive for equality on all fronts for the LGBT community in the future.

Walter Stringer runs his own practice in the Hackettstown area and is a graduate of Seton Hall Univer- sity School of Law.

Endnotes 1. 539 U.S. 558 (2003). 2. United States v. Windsor, 570 U.S. ___ (2013). 3. 576 U.S. __(2015) Justice Kennedy Majority decision page 28. 4. See generally Obergefell v. Hodges 576 U.S. __(2015). 5. 576 U.S. __(2015) Majority page 12. 6. 576 U.S. __(2015) Majority page 17. 7. 576 U.S. __(2015) Majority 16-17. 8. 576 U.S.__(2015) Justice Scalia dissenting opinion page 9. 9. 576 U.S.__(2015) Justice Scalia dissenting opinion page 7. 10. See generally Zablocki v. Redhail, 434 U.S. 374 (1978), and Loving v. Virginia, 388 U.S. 1.

Go to New Jersey State Bar Association Lesbian Gay Bisexual and Transgender Rights Section 13 Index