November 7, 2014 3:30 PM – 4:45 PM
404 LGBT Civil Rights and APA Communities
With marriage equality and the repeal of “Don’t Ask Don’t Tell,” there have been great strides across the country in recognizing the rights of lesbian, gay, bisexual and transgender (LGBT) people and people living with HIV. Yet, even with positive court decisions, LGBT people and people living with HIV continue to struggle for civil rights, justice and respect. During this panel, panelists will reflect on their civil rights work and will speak about legal issues that impact the diverse LGBT community, including the needs of its underrepresented members including low-income LGBT people, transgender people, and people of color. Speakers will highlight the experiences of APA LGBT people and strategies for eliminating homophobia and transphobia within the APA community. Speakers will discuss legal advocacy, grassroots organizing, and other strategies that they have used to advance and defend civil rights for LGBT people.
Program Chair & Speaker: Carmina Ocampo, Staff Attorney, Lambda Legal
Moderator: David Tsai, Attorney, Perkins Coie LLP
Speakers: Almas Haider, President, Satrang Kris Hayashi, Deputy Director, Transgender Law Center Eileen Ma, Attorney & Executive Director, API Equality-LA Case 1:14-cv-00355-RLY-TAB Document 30 Filed 03/31/14 Page 1 of 35 PageID #: 87
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
MARILYN RAE BASKIN and ESTHER ) FULLER; BONNIE EVERLY and LINDA ) JUDKINS; DAWN CARVER and PAMELA ) EANES; HENRY GREENE and GLENN ) FUNKHOUSER, individually and as parents ) and next friends of C.A.G.; NIKOLE ) QUASNEY and AMY SANDLER, ) individually and as parents and next friends of ) A.Q.-S. and M.Q.-S., ) ) Plaintiffs, ) ) v. ) ) Civil Action No.: PENNY BOGAN, in her official capacity as ) 1:14-cv-00355-RLY-TAB BOONE COUNTY CLERK; KAREN M. ) MARTIN, in her official capacity as ) PORTER COUNTY CLERK; MICHAEL ) A. BROWN, in his official capacity as LAKE ) COUNTY CLERK; PEGGY BEAVER, in her ) official capacity as HAMILTON COUNTY ) CLERK; WILLIAM C. VANNESS II, M.D., ) in his official capacity as the ) COMMISSIONER, INDIANA STATE ) DEPARTMENT OF HEALTH; and GREG ) ZOELLER, in his official capacity as ) INDIANA ATTORNEY GENERAL, ) ) Defendants. )
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs Marilyn Rae Baskin and Esther Fuller, Bonnie Everly and Linda Judkins, Dawn
Carver and Pamela Eanes, Henry Greene and Glenn Funkhouser, individually and as parents and
next friends of C.A.G., and Nikole Quasney and Amy Sandler, individually and as parents and
next friends of A.Q.-S. and M.Q.-S. (collectively “Plaintiffs”), by and through their attorneys,
file this First Amended Complaint against Defendants Boone County Clerk Penny Bogan, Porter
County Clerk Karen M. Martin, Lake County Clerk Michael A. Brown, Hamilton County Clerk
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Peggy Beaver, Indiana State Department of Health Commissioner VanNess, and Indiana
Attorney General Greg Zoeller (collectively “Defendants”), and allege as follows:
INTRODUCTION
1. Plaintiffs, all Indiana residents, comprise five loving, committed same-sex
couples (“adult Plaintiffs” or “Plaintiff couples”) and three minor children of two of the couples.
All Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 seeking declaratory and preliminary
and permanent injunctive relief for Defendants’ violation of Plaintiffs’ rights — the guarantees
of liberty and equal protection under the Fourteenth Amendment to the United States
Constitution — caused by the discriminatory exclusion of same-sex couples from the freedom to
marry and the discriminatory denial of recognition of marriages lawfully entered by same-sex
couples in other jurisdictions pursuant to the laws of the State of Indiana (“State”). See Indiana
Code § 31-11-1-1.
2. Marriage plays a unique role in society as the universally recognized and
celebrated hallmark of a couple’s commitment to build family life together. It confers upon
couples a dignity and status of immense import. The adult Plaintiffs have formed committed,
enduring bonds equally worthy of the respect afforded by the State to different-sex couples
through marriage. Yet, the State, without any adequate justification, has enacted, interpreted,
and enforced its laws in ways that single out lesbian and gay couples in Indiana by excluding
them from the freedom to marry and by refusing to recognize and respect lawful marriages from
other jurisdictions, based solely on their sexual orientation and their sex.
3. Through Defendants’ adherence to and enforcement of Indiana Code Section 31-
11-1-1 and their interpretation and enforcement of the State’s other laws to preclude same-sex
couples from marrying or having their marriages lawfully entered into other jurisdictions
recognized in Indiana, the State and Defendants send a message that lesbians, gay men, and their
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children are second-class citizens who are undeserving of the legal sanction, respect, protections,
and support that different-sex couples and their children receive automatically through marriage.
This discrimination (referred to herein as the State’s “marriage ban”) is established in the State’s
statutes, which prevent same sex couples from entering into a civil marriage in the State and
prohibits the State from honoring a civil marriage validly entered by a same-sex couple in
another jurisdiction.
4. The marriage ban inflicts serious and irreparable harm on same-sex couples and
their children. Plaintiffs Marilyn Rae (“Rae”) Baskin and Esther Fuller, Bonnie Everly and
Linda (“Lyn”) Judkins, Dawn Carver and Pamela (“Pam”) Eanes, and Henry Greene and Glenn
Funkhouser are not married. They seek the freedom to marry the one unique and irreplaceable
person each loves, and thereby to assume the responsibilities and obtain the myriad protections,
obligations, and benefits conferred upon married couples under state and federal law. Plaintiffs
Nikole Quasney and Amy Sandler married in another jurisdiction, but are treated as legal
strangers in the state they call home — a hurtful invalidation of their relationship, which deprives
them of the protections that a legally-recognized marriage most securely provides. Plaintiffs
C.A.G., A.Q.-S., and M.Q.-S. (“child Plaintiffs”) seek the protections, security, support, and
benefits conferred upon the children of married parents, and to end the stigma, shame, and
humiliation imposed upon children of lesbian and gay parents by the law’s refusal to permit them
to belong to families with married parents and designation of their families as inferior to others
and unworthy of marriage.
5. The right to marry the person of one’s choice and to direct the course of one’s life
in this intimate realm without undue government interference is one of the fundamental liberty
interests protected for all by the Due Process Clause of the Fourteenth Amendment to the United
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States Constitution. The State’s exclusion of the Plaintiff couples and other same-sex couples
from marriage violates their fundamental right to marry. The State also interferes with the
constitutionally protected liberty and privacy interest in familial association and integrity of the
child Plaintiffs and other children of same-sex couples without any compelling, important, or
even legitimate justification.
6. The State also has deprived Plaintiffs of their guarantee of equality under the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by
denying Plaintiff couples and other lesbian and gay Indiana residents the right to marry the
person of their choice based solely on their sexual orientation and sex. Likewise, the State
denies the child Plaintiffs and other children of same-sex couples equal access to dignity,
legitimacy, protections, benefits, support, and security conferred on children of married parents
under state and federal law. The marriage ban penalizes the Plaintiff couples’ self-determination
in the most intimate sphere of their lives. The United States Supreme Court has stated that
marriage is the most important relation in life, as well as an expression of emotional support and
public commitment, and a far-reaching legal acknowledgement of the intimate relationship
between two people. The marriage ban deprives Plaintiff couples and other same-sex couples of
dignity, and humiliates children of same-sex couples by branding their families as inferior and
unworthy of the legitimacy, recognition, and respect accorded to other families.
7. Because the freedom to marry is one of the vital personal rights essential to the
orderly pursuit of happiness by free men and women, adult Plaintiffs seek equal access to the
freedom to marry for same-sex couples and recognition of legal marriages performed in other
states as the only means to secure their rights to due process and equal protection of the law, and
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to eliminate the myriad serious harms inflicted on Plaintiffs by the marriage ban and Defendants’
enforcement of it.
JURISDICTION AND VENUE
8. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the
deprivation under color of state law of rights secured by the United States Constitution.
9. This Court has original jurisdiction over the subject matter of this action pursuant
to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution
and laws of the United States.
10. This Court has the authority to enter a declaratory judgment and to provide
preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of
Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
11. This Court has personal jurisdiction over Defendants because they are domiciled
in the State and/or have otherwise made and established contacts with the State sufficient to
permit the exercise of personal jurisdiction over them.
12. Venue is proper in this district under 28 U.S.C. § 1391(b) because all Defendants
reside within the State of Indiana, Defendant Boone County Clerk Penny Bogan, Defendant
Hamilton County Clerk Peggy Beaver, Defendant VanNess, and Defendant Greg Zoeller reside
and have offices within the district, and/or because a substantial part of the events that gave rise
to Plaintiffs Rae Baskin, Esther Fuller, Henry Greene, Glenn Funkhouser, and C.A.G.’s claims
occurred, and will occur, in this district.
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PARTIES
A. Plaintiffs
Rae Baskin and Esther Fuller
13. Plaintiffs RAE, 60, and ESTHER, 78, are a lesbian couple living in Whitestown,
Boone County, Indiana, within the Indianapolis Division of the Southern District of
Indiana. Rae and Esther have been in a loving and committed relationship for nearly twenty-four
years. Rae and Esther would marry in Indiana but for the marriage ban.
14. Esther was born in Indianapolis, Indiana and has lived in Indiana her whole life,
except for a year attending college in Missouri. Rae has been a resident of Indiana for twenty-
four years. Esther holds a degree from Purdue University Krannert School of Management,
worked as a pharmacist for many years, and is currently retired. Rae graduated from Syracuse
University in 1975, where she majored in Poverty & Urban Affairs, and New York Law School
in 1978. After graduating from law school, Rae owned her own company for twenty years.
15. The marriage ban frustrates Rae and Esther’s dream of being able to marry. Rae
wishes to marry Esther because absent marriage, their relationship is viewed as having less
dignity and legitimacy by the State and in the eyes of others. Esther wants to ensure that Rae is
protected and secure, even if Esther should pass away, and that Rae receives spousal protections
including Social Security benefits for surviving spouses. Esther had breast cancer in 2008 and
broke her hip in 2009. Regarding Esther, Rae said “She’s the world’s biggest mush, she loves
me unconditionally, and . . . I can’t imagine life without her.”
Bonnie Everly and Lyn Judkins
16. Plaintiffs BONNIE, 56, and LYN, 58, are a lesbian couple living in Chesterton,
Porter County, Indiana. Bonnie and Lyn have been in a loving and committed relationship for
more than thirteen years. Bonnie and Lyn would marry in Indiana but for the marriage ban.
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17. Bonnie was born in Gary, Indiana, and raised in Michigan City, Indiana. Bonnie
and Lyn are both divorced from prior marriages they entered into long ago before they were able
to acknowledge their sexual orientation to themselves or others. Bonnie and Lyn each have a
child, and they live with Bonnie’s son, David, age twenty-one. David is supportive of their
relationship. Bonnie was employed at a factory where she operated machines and later became
an independent driver for the news dispatch in Michigan City, Indiana. Lyn was a secretary and
a school bus driver. In 2002, Bonnie and Lyn were struck by a drunk driver and both suffer from
mobility-related disabilities.
18. The marriage ban frustrates Bonnie’s and Lyn’s dreams of being able to
marry. Unable to marry in Indiana, Bonnie and Lyn held a private religious ceremony on a
beach in Michigan City in April 2002. Lyn describes Bonnie as her “rock and
security.” “[Bonnie] keeps me laughing and she is the reason I get up in the morning. To be
able to be legally wed to her would be a dream come true. I would do anything for
Bonnie.” Bonnie describes Lyn as “a breath of fresh air.” “[Lyn] is what keeps me going. I
want to make her my wife because I’ve never had that feeling for anyone else. I want to make
my life complete by putting a ring on her finger knowing it will be there forever.”
Dawn Carver and Pam Eanes
19. Plaintiffs DAWN, 41, and PAM, 50, are a lesbian couple living in Munster, Lake
County, Indiana. They have been in a loving and committed relationship for seventeen years.
Dawn and Pam would marry in Indiana but for the marriage ban.
20. Dawn was born in Griffith, Indiana and has lived in Indiana most of her life.
Dawn is a patrol officer for the Oak Park Police Department and has worked there for ten years.
Pam is a Captain in the Calumet City Fire Department and has worked there for twenty-six
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years. Pam and Dawn are active in their local community. Pam has two children from prior
relationships, and both children view both Pam and Dawn as their mothers. The children are
supportive of their relationship.
21. The marriage ban frustrates Pam and Dawn’s dream of being able to marry. Pam
and Dawn have an Illinois Civil Union. But this civil union is not recognized in Indiana.
Because Indiana’s marriage ban has prevented them from marrying, they are not fully protected
in the event that either of them is seriously injured from the inherent dangers of their work.
22. Pam and Dawn want to express the love and commitment to each other that only
marriage can convey. They want to grow old with one another; they mean everything to each
other. Pam states, “Dawn is everything to me, she’s my world, she’s my best friend, she’s my
partner, she’s my confidante, she’s my everything. My life is so much better because I have
Dawn in it, I really look forward to going into old age together.”
Henry Greene and Glenn Funkhouser with minor son, C.A.G.
23. Plaintiffs HENRY, 48, and GLENN, 51, are a gay male couple living in Carmel,
Hamilton County, Indiana, within the Indianapolis Division of the Southern District of Indiana.
Henry and Glenn have been in a committed relationship for twenty-two years. Henry and Glenn
would marry in Indiana but for the marriage ban.
24. Glenn was born and raised in Indiana and moved back to his home state to be
closer to family in 2001. Henry and Glenn have lived together in Indiana for almost thirteen
years, and consider Indiana their home. Henry has four years of college training in computer
science and works as a project manager. Glenn holds a Bachelor’s Degree in Business
Management and Personnel Administration & Management Information Systems from Ball State
University. Glenn works as an account manager.
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25. Henry and Glenn have a twelve year old-son, Plaintiff C.A.G. Henry adopted
C.A.G. initially and Glenn later obtained a second parent adoption to establish a legal parent-
child relationship with their son. They are very involved in their son’s school and in their
church. Because of the marriage ban, Henry and Glenn fear that their son will internalize the
message he receives from his government that his family is not as worthy as others, and that he
will face discrimination because his family is deemed less legitimate, and less deserving of
respect by the State.
26. The marriage ban frustrates Henry and Glenn’s dream of being married. Henry
says that he “can’t imagine his life without Glenn.” Glenn says that he and Henry are “partners
in life,” and that “they knew they could give [their son] a better life, a second chance.” The
marriage ban interferes with their ability to protect their son and help him to grow up with
dignity and pride in his family, makes Henry and Glenn’s family status and financial security
uncertain, and causes them stress and anxiety.
Nikole (“Niki”) Quasney and Amy Sandler with minor daughters, A.Q.-S. and M.Q.-S.
27. Plaintiffs NIKI, 37, and AMY, 37, are a lesbian couple living in Munster, Lake
County, Indiana. They have been in a loving and committed relationship for over thirteen years.
Niki and Amy were married in the Commonwealth of Massachusetts on August 29, 2013.
28. Niki was born in East Chicago, Indiana, and raised in Munster, Indiana. Niki and
Amy own a home in Indiana, where they are raising their two minor daughters, Plaintiffs A.Q.-S.
(age 2) and M.Q.-S. (age 1), who were conceived through assisted reproductive technology and
an anonymous donor. After Amy gave birth to A.Q.-S., Niki and Amy were required to incur the
cost and expense of obtaining a second parent adoption to establish a legal parent-child
relationship between Niki and A.Q.-S. Amy and Niki secured an Illinois civil union on June 7,
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2011. When Amy gave birth to their second daughter, M.Q.-S., even though they then were
living in Indiana, Amy and Niki selected a hospital in Illinois so that they could give birth in a
state that would respect Niki’s parental relationship to M.Q.-S. from birth and accordingly issue
her a two-parent birth certificate in reliance on their Illinois civil union. Amy and Niki
performed a second parent adoption for M.Q.-S as well, to ensure that Niki’s parent-child
relationship would be secure in Indiana.
29. Niki holds a Bachelor of Science in Restaurant Hotel Institutional Tourism
Management from Purdue University, West Lafayette, and a Bachelor of Arts degree in
Education from the University of Missouri at St. Louis. Niki worked for several years as a
physical education teacher in Nevada. Amy holds a Bachelor of Arts degree in Journalism and
Master of Arts degree in Counseling and Personnel Services from the University of Maryland.
Amy also holds a Ph. D. in Educational Leadership from the University of Nevada, Las Vegas.
Amy has worked as an adjunct professor and is currently pursuing a Master of Arts degree in
Social Service Administration from the University of Chicago, to which she commutes for
classes from the family’s home in Indiana. After Amy obtains her degree, she would prefer to
seek licensure and employment in Indiana to be close to Niki. However, because school districts
in Indiana will not recognize Amy’s marriage to Niki for the purpose of providing Amy with
spousal health insurance, Amy must seek a job in Illinois.
30. Niki’s family history put her at high risk for breast and ovarian cancer. In 2007,
Niki made the difficult decision to proceed with a prophylactic double mastectomy after two
siblings developed breast cancer. Despite her best effort to manage her cancer risk, Niki was
diagnosed with Stage IV ovarian cancer in June 2009, which required surgery days later to
remove more than 100 tumors in her abdominal cavity and on critical organs, such as her liver,
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kidneys, and bladder, and which required removal of her entire omentum. At the time of Niki’s
diagnosis almost five years ago, the physician who performed her surgery informed her that the
median survival rate for her cancer is five years.
31. Since her diagnosis in 2009, Niki has undergone three surgeries, countless
hospital visits and aggressive chemotherapy treatment, including her most recent six-cycle
course of chemotherapy (11 infusions) over the last few months. The State’s refusal to recognize
Niki’s marriage to Amy encourages and invites private bias and discrimination, including in
medical settings. Niki and Amy fear that their marriage will not be respected in Indiana, and that
medical personnel may treat them as legal strangers to each other. For example, when Niki and
Amy attempted to obtain a family membership with a fitness center operated by a local hospital,
the hospital denied them such a membership on the ground that the hospital’s “definition of
spouse matches the state of Indiana’s definition of marriage.” Even though this hospital is
approximately two miles from where Niki, Amy, and their daughters live, Niki chooses not to go
to this hospital for regular chemotherapy treatments or even certain emergency care because the
hospital may not respect her legal relationship to Amy. Instead, Niki travels to Chicago.
Recently, when Niki experienced chest pain, she traveled 40 minutes to the University of
Chicago Medical Center for treatment for what was later identified as a pulmonary embolism.
Thus, the State’s refusal to recognize her marriage impedes her ability to secure emergency care
or treatment from her local community hospital. Niki also fears that when she passes away, the
State’s refusal to recognize Amy as a spouse on her death certificate will adversely affect her
family’s ability to secure insurance, and access federal and state protections and safety nets, such
as Social Security benefits available to surviving spouses. Because Amy and Niki have two
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young children, and Niki continues to suffer from terminal ovarian cancer, their need to have
their marriage recognized by Indiana is urgent.
32. Niki describes Amy as her “rock” saying, “she is the most amazing person I have
ever met” and “an amazing role model for their two daughters.” Amy says Niki “is the most
kind and generous person” and that “she picks up where I leave off.” Amy loves Niki and “will
forever be grateful for every moment [their] kids have with her…and that I have with her.”
B. Defendants
33. DEFENDANT PENNY BOGAN is sued in her official capacity as the Boone
County Clerk. Bogan’s duties include accepting marriage applications, issuing marriage
licenses, and maintaining records relating to marriage licenses. Bogan must ensure compliance
through all of these functions with relevant Indiana laws, including those that exclude same-sex
couples from marriage, and forbid the filing of records relating to marriages of same-sex couples
that take place in other states. Bogan is a person within the meaning of 42 U.S.C. § 1983 and
was acting under color of state law at all times relevant to this complaint.
34. DEFENDANT KAREN M. MARTIN is sued in her official capacity as the Porter
County Clerk. Martin’s duties include accepting marriage applications, issuing marriage
licenses, and maintaining records relating to marriage licenses. Martin must ensure compliance
through all of these functions with relevant Indiana laws, including those that exclude same-sex
couples from marriage, and forbid the filing of records relating to marriages of same-sex couples
that take place in other states. Martin is a person within the meaning of 42 U.S.C. § 1983 and
was acting under color of state law at all times relevant to this complaint.
35. DEFENDANT MICHAEL A. BROWN is sued in his official capacity as the Lake
County Clerk. Brown’s duties include accepting marriage applications, issuing marriage
licenses, and maintaining records relating to marriage licenses. Brown must ensure compliance
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through all of these functions with relevant Indiana laws, including those that exclude same-sex
couples from marriage, and forbid the filing of records relating to marriages of same-sex couples
that take place in other states. Brown is a person within the meaning of 42 U.S.C. § 1983 and
was acting under color of state law at all times relevant to this complaint.
36. DEFENDANT PEGGY BEAVER is sued in her official capacity as the Hamilton
County Clerk. Beaver’s duties include accepting marriage applications, issuing marriage
licenses, and maintaining records relating to marriage licenses. Beaver must ensure compliance
through all of these functions with relevant Indiana laws, including those that exclude same-sex
couples from marriage, and forbid the filing of records relating to marriages of same-sex couples
that take place in other states. Beaver is a person within the meaning of 42 U.S.C. § 1983 and
was acting under color of state law at all times relevant to this complaint. Collectively,
DEFENDANTS BOGAN, MARTIN, BROWN, and BEAVER are referred herein as the
DEFENDANT CLERKS.
37. DEFENDANT WILLIAM C. VANNESS II, M.D., is sued in his official capacity
as the COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH. VanNess is a
person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all
times relevant to this Complaint. The Indiana State Department of Health (“ISDH”) is required
to develop the form for applications for marriage licenses, including the requirement to list one
“Male Applicant” and one “Female Applicant.” The ISDH also prescribes the information to be
contained on state certificates, including death certificates.
38. DEFENDANT GREG ZOELLER is sued in his official capacity as the
ATTORNEY GENERAL OF INDIANA. Zoeller is a person within the meaning of 42 U.S.C.
§ 1983 and was acting under color of state law at all times relevant to this Complaint. In his
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capacity as Attorney General, Zoeller has the authority to enforce the statutes of the State of
Indiana, including its provisions related to the marriage ban, and has the duty to defend the
constitutionality of the enactments of the Indiana Legislature.
39. All of the above Defendants, and those subject to their supervision, direction, and
control, intentionally performed, participated in, aided and/or abetted in some manner the acts
alleged herein, proximately caused the harm alleged herein, and will continue to injure Plaintiffs
irreparably if not enjoined.
STATEMENT OF FACTS
40. Adult Plaintiffs are all residents of Indiana who experience the same joys and
shoulder the same challenges of family life as their heterosexual neighbors, co-workers, and
other community members who are free to marry. Adult Plaintiffs are contributing members of
society who support their committed partners and nurture their children, but must do so without
the same dignity and respect afforded by the State to other families through access to the
universally understood and celebrated status of marriage. The State’s exclusion of same-sex
couples from marriage, and from recognition of their lawful out-of-state marriages, subjects adult
Plaintiffs to legal vulnerability and related stress, while depriving them and their children of
equal dignity and security. Through its marriage ban, the State send a purposeful message that
the State views lesbian and gay men and their children as second-class members of society who
are undeserving of the legal sanction, respect, and support that different-sex spouses and their
families enjoy.
A. Adult Plaintiffs’ Attempts to Marry and Marriage in Other Jurisdictions.
41. But for the fact that they are of the same sex, each unmarried Plaintiff couple is
legally qualified to marry under the laws of Indiana and wishes to marry in the State. Each adult
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Plaintiff is over the age of eighteen, and no adult Plaintiff is precluded from marriage as a result
of having another spouse or being closely related to his or her life partner.
42. Because of Indiana’s statutory prohibition on marriage for same-sex couples, the
DEFENDANT CLERKS are required to refuse to issue a marriage licenses to same-sex couples.
See I.C. § 31-11-1-1(a) (“Only a female may marry a male. Only a male may marry a female.”),
§ 31-11-4-12 (“If it appears that two (2) individuals do not have a right to a marriage license, the
clerk of the circuit court shall refuse to issue the license.”). Each Plaintiff couple has applied for
a marriage license with the County Clerk of their respective counties. Each of their applications
was refused because Plaintiff couples are same-sex couples.
43. On March 10, 2014, Rae Baskin and Esther Fuller appeared in person at the
Boone County Clerk’s Office to seek a marriage license. When the couple requested a marriage
license, they were denied by three different employees of Defendant Bogan. At one point, the
employees referred the couple to another state to marry and suggested they might consider a civil
union from another state. Ultimately, Rae and Esther were told, “No, we really can’t do it.”
44. On March 10, 2014, Bonnie Everly and Lyn Judkins appeared in person at the
Porter County Clerk’s Office to seek a marriage license. When the couple requested a marriage
license, they were denied by a female employee of Defendant Martin who shared “I’ve been
reading a lot about this, but I don’t think it’s legal here in Indiana.” When they asked again, the
employee denied their request for a marriage license.
45. On March 12, 2014, Dawn Carver and Pam Eanes appeared in person at the Lake
County Clerk’s Office to seek a marriage license. When the couple requested a marriage license,
they were denied by a female employee of Defendant Brown. They were told “two women can’t
get married here.”
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46. On March 20, 2014, Henry Greene and Glenn Funkhouser appeared in person at
Hamilton County Clerk’s Office to seek a marriage license. When the couple requested a
marriage license, they were denied by Defendant Beaver herself. They were told “we are not
able to issue you a marriage license because you are of the same gender.”
47. Niki Quasney and Amy Sandler were validly married in Massachusetts and seek
through this suit to end the State’s current denial of recognition of their marriage on the ground
that it is a marriage entered by two individuals of the same sex.
B. Indiana’s Marriage Ban Singles Out Same-Sex Couples and Excludes Them from Marriage.
48. Indiana has enacted a statute that excludes same-sex couples from marriage.
See I.C. § 31-11-1-1. This statute cannot be explained by reference to legitimate public policies
that could justify the disadvantages the marriage bans impose on same-sex couples who wish to
marry. Rather, the history of its enactment and its own text demonstrates that interference with
the equal dignity of same-sex couples was more than a mere side effect of this enactment — it
was its essence.
C. Plaintiffs Are Injured by the Marriage Ban.
49. Barring same-sex couples from marriage and marriage recognition disqualifies
them from critically important rights and responsibilities under state law that different-sex
couples rely upon to secure their commitment to each other and to safeguard their families. By
way of example only, same-sex couples are denied:
a. The benefit of the presumption that both spouses are parents to a child born
during the marriage, and the ability of a couple to confer legitimacy on their
children by marrying;
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b. Family health insurance coverage, including spousal health benefits, retirement
benefits, and surviving spouse benefits for public employees;
c. Family leave for an employee to care for a spouse;
d. The ability to safeguard family resources under an array of laws that protect
spousal finances;
e. The ability to make caretaking decisions for one another in times of death and
serious illness, including the priority to make medical decisions for an
incapacitated spouse, the automatic right to make burial decisions, and other
decisions concerning disposition and handling of remains of deceased spouses.
f. The right to inheritance under the laws of intestacy and the right of a surviving
spouse to an elective share;
g. Benefits for spouses and dependent children of members of the military and
veterans;
h. In the event that a couple separates, access to an orderly dissolution process for
terminating the relationship, assuring an equitable division of the couple’s assets
and debts, and adjudication of issues relating to custody, visitation, and support
with respect to any children the couple may have.
50. The marriage ban not only denies Plaintiffs and other same-sex couples and their
children access to protections, benefits, rights, and responsibilities afforded to married persons
and their children under state law, it also denies them eligibility for a host of federal rights and
responsibilities that span the entire United States Code and federal regulations. Unmarried
couples are denied recognition for virtually all purposes throughout the more than 1,000 statutes
and numerous federal regulations relating to marriage — including laws that pertain to Social
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Security benefits, housing, taxes, criminal sanctions, copyrights, and veterans’ benefits. Couples
validly married in another jurisdiction and living in Indiana may qualify for some federal
benefits and protections, but the language of certain statutes and regulations, such as veterans’
spousal benefits and Social Security survivor benefits, references couples married under the law
of their state of residence or domicile. Many of these deprivations drain family economic
resources, causing financial harm not only to same-sex couples but to their children as well.
51. In addition to causing the tangible harms listed above, Plaintiffs are denied the
unique social recognition that marriage conveys. Without access to the familiar language and
legal label of marriage, Plaintiffs are unable instantly or adequately to communicate to others the
depth and permanence of their commitment or to obtain respect for that commitment as others do
simply by invoking their married status.
52. Although the Plaintiff couples are in committed relationships, they and other
same-sex couples are denied the stabilizing effects of marriage, which help keep couples together
during times of crisis or conflict.
53. The substantive and dignitary inequities imposed on committed same-sex couples
include particular harms for same-sex couples’ children, who are equally deserving of the
stability, permanence, and legitimacy that children of different-sex spouses enjoy. The marriage
ban denies children of same-sex couples the dignity, legitimacy, rights, benefits, support,
security, and obligations conferred on children whose parents are married. Children of same-sex
couples must combat the common assumption, reinforced by Indiana law, that as members of a
family headed by an unmarried couple, their bonds are impermanent, insubstantial, and unworthy
of equal dignity and legitimacy because the couple has not made a marital commitment and
taken on the obligations of marriage. Civil marriage affords official sanctuary to the family unit,
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offering parents and children a familiar and public means of demonstrating to third parties a legal
basis for the parent-child relationship. By denying same-sex couples access to marriage, the
State reinforces the view, held by some, that the family bonds that tie same-sex parents and their
children are less consequential, enduring, and meaningful than those of different-sex parents and
their children. Same-sex parents raising children in Indiana cannot invoke their status as married
in order to communicate to their own children and others the depth and permanence of their
commitment to each other in terms that society, and even young children, readily understand.
Consequently, the child Plaintiffs and other children of same-sex couples are left to grow up with
the message that their parents and families are inferior to others and that they and their parents
do not deserve the same societal recognition and respect.
54. Because same-sex parents and their children thus are deprived of the family
security that inheres in a ready and familiar method of communicating to others the significance
and permanence of their familial relationships, they must live with the vulnerability and stress
inflicted by the ever-present possibility that others may question their familial relationships — in
social, educational, and medical settings and in moments of crisis — in a way that spouses and
their children can avoid by simple reference to being married.
55. Children of same-sex couples are less legally secure and economically situated
than children whose parents are able to marry, including because of expenses incurred in
attempting to create legal protections that approximate some of those that are automatic through
marriage, protections that are far inferior to the legal protections afforded through marriage, and
because their families are denied the strengthening effect that marriage can provide to their
parents’ relationships.
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56. Children from a young age understand that marriage signifies an enduring family
unit and, likewise, understand when the State has deemed a class of families as less worthy than
other families, undeserving of marriage, and not entitled to the same societal recognition and
support as other families. The State has no adequate interest to justify marking the children of
same-sex couples with a badge of inferiority that invites disrespect in school, on the playground,
and in every other sphere of their lives.
57. The government is a powerful teacher of discrimination to others. By decreeing
that the relationships of same-sex couples must be ignored in Indiana and enforcing that policy,
the State and Defendants inform all persons with whom same-sex couples interact, including
those couples’ own children, that their relationships are less worthy than others. Bearing the
imprimatur of the government, the State’s marriage ban, which relegates same-sex couples and
their children to a lesser status, encourages others to follow the government’s example in
discriminating against them.
58. The State’s marriage ban, and Defendants’ enforcement of it, causes many private
entities such as banks, insurers, and even health clubs to define “family” for purposes of an array
of benefits and protections in ways that exclude same-sex couples and their children from
important safety nets, such as private employer-provided health insurance for family members.
The State also encourages disrespect of committed same-sex couples and their children,
including Plaintiffs, by others in workplaces, schools, businesses, and other major arenas of life
in ways that would be less likely to occur and more readily corrected if marriage were available
to same-sex couples.
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D. The Marriage Ban Is Not Even Rationally Related to a Legitimate Government Purpose, Let Alone Substantially Related to an Important Government Purpose or Narrowly Tailored to a Compelling Governmental Purpose.
59. No legitimate — let alone important or compelling — interest exists to exclude
same-sex couples from marriage. An individual’s capacity to establish a loving and enduring
relationship does not depend upon sexual orientation or his or her sex in relation to his or her
committed life partner, nor is there any legitimate interest in preventing same-sex couples and
their children from belonging to families headed by a married couple or in denying them the
spousal protections marriage provides.
60. Neither history nor tradition can justify the marriage ban. Marriage has remained
a vital and enduring institution despite undergoing significant changes over time to meet
changing social and ethical needs, including by the elimination of many former requirements of
marriage that we now recognize as discriminatory or otherwise impermissible — such as race-
based entry requirements and gendered restrictions that historically were considered integral
aspects of marriage. Indiana is not confined to historic notions of equality, and no excuse for the
State’s discriminatory restriction can be found in the pedigree of such discrimination.
61. The Supreme Court has made clear that the law cannot, directly or indirectly, give
effect to private biases, and expressly rejected moral disapproval of lesbian and gay relationships
as a legitimate justification for a law.
62. Excluding same-sex couples from marriage does nothing to protect or enhance the
rights of different-sex couples. Different-sex couples will continue to enjoy the same rights and
status conferred by marriage regardless of whether same-sex couples may marry.
63. Although the State has a valid interest in protecting the public fiscally, it may not
pursue that interest by making invidious distinctions between classes of its citizens without
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adequate justification. Moreover, the State has no fiscal justification here for denying same-sex
couples the freedom to marry because the State would generate additional revenues by allowing
same-sex couples to marry and to be recognized as married.
64. The State’s interest in child welfare is affirmatively harmed — not furthered —
by the marriage ban. The marriage ban injures same-sex couples’ children without offering any
benefit to other children.
65. Barring same-sex couples from marriage does not prevent same-sex couples from
raising children together. Same-sex couples in Indiana can and do bear children through use of
reproductive technology that is available to same-sex couples and different-sex couples alike,
and bring children into their families through foster care and adoption. Procreation is not a
requirement of marriage, and many married people choose not to have children while many
unmarried people procreate. Indiana has never restricted marriage to those capable of or
intending to procreate, nor would it be constitutionally permissible to do so.
66. There is no valid basis for the State to assert a preference for parenting by
different-sex couples over same-sex couples. Based on more than thirty years of research, the
scientific community has reached consensus that children raised by same-sex couples are just as
well-adjusted as children raised by different-sex couples. This consensus has been recognized by
every major professional organization dedicated to children’s health and welfare, including the
American Academy of Pediatrics, the American Psychological Association, the American
Medical Association, the National Association of Social Workers, and the Child Welfare League
of America.
67. There is not even a rational basis for favoring parenting by heterosexual couples
over gay and lesbian couples. See, e.g., De Boer v. Snyder, No. 12-CV-10285, slip op. at 24
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(E.D. Mich. Mar. 21, 2014) (finding “no logical connection between banning same-sex marriage
and providing children with an ‘optimal environment’ or achieving ‘optimal outcomes’” ); De
Leon v. Perry, —F. Supp. 2d—, 2014 WL 715741, at *14 (W.D. Tex. Feb. 26, 2014) (finding no
“evidentiary support for [defendants’] assertion that denying marriage to same-sex couples
positively affects childrearing,” and “agree[ing] with other district courts that have recently
reviewed this issue and conclud[ing] that there is no rational connection between Defendants’
assertion and the legitimate interest of successful childrearing”); see also id. (concluding that
Texas’s same-sex marriage ban “causes needless stigmatization and humiliation for children
being raised by the loving same-sex couples being targeted”); Perry v. Schwarzenegger, 704 F.
Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the research supporting the conclusion that
“[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual
parents to be healthy, successful and well-adjusted” is “accepted beyond serious debate in the
field of developmental psychology”), aff’d sub nom, Perry v. Brown, 671 F.3d 1052 (9th Cir.
2012), vacated for lack of standing sub nom, Hollingsworth v. Perry, No. 12-144, 2013 WL
3196927 (U.S. June 26, 2013); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct.
Nov. 25, 2008) (“[B]ased on the robust nature of the evidence available in the field, this Court is
satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the
best interests of children are not preserved by prohibiting homosexual adoption.”), aff’d sub nom,
Florida Dep’t of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. Dist. Ct. App.
2010); Howard v. Child Welfare Agency Review Bd., Nos. 1999-9881, 2004 WL 3154530, at *9
and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings
regarding the well-being of children of gay parents that “there was no rational relationship
between the [exclusion of gay people from becoming foster parents] and the health, safety, and
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welfare of the foster children”), aff’d sub nom, Dep’t of Human Servs. v. Howard, 238 S.W.3d 1
(Ark. 2006).
68. Excluding same-sex couples from marriage harms their children, including by
branding their families as inferior and less deserving of respect and by encouraging private bias
and discrimination. Denying same-sex couples the equal dignity and status of marriage
humiliates the children now being raised by same-sex couples, and makes it more difficult for the
children to understand the integrity and closeness of their own family and its concord with other
families in their community and in their daily lives.
69. Excluding same-sex couples from civil marriage will not make the children of
different-sex spouses more secure. Different-sex spouses’ children will continue to enjoy the
benefits that flow from their parents’ marriage, regardless of whether same-sex couples are
permitted to marry. The marriage ban has no effect on the choices different-sex couples make
about such profound issues as whether to marry, whether to have children, or whether to raise
their children within marriage.
70. The State’s interest in the welfare of children parented by same-sex couples is as
great as its interest in the welfare of any other children. The family security that comes from the
State’s official recognition and support is no less important for same-sex parents and their
children than it is for different-sex parents and their children.
71. Excluding same-sex couples from marriage does nothing to protect or enhance the
rights of different-sex spouses. Different-sex spouses will continue to enjoy the same rights and
status conferred by marriage, regardless of whether same-sex couples may marry, unimpaired by
the acknowledgment that this freedom belongs equally to lesbians and gay men.
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E. Niki Quasney and Amy Sandler’s Need for a Temporary Restraining Order and/or Preliminary Injunction.
72. Niki Quasney and Amy Sandler have been in a long-term committed relationship
for over thirteen years. They were married in the Commonwealth of Massachusetts on August
29, 2013.
73. Niki has Stage IV ovarian cancer that she has battled for over four years,
including suffering the pain and experience of three surgeries, countless hospital visits, and
aggressive chemotherapy treatment. Indeed, Niki most recently completed a six-cycle course of
chemotherapy (11 infusions) over the last few months. Unless this Court acts, Niki and Amy
will likely be permanently denied the benefits — both tangible and dignitary — of recognition of
their legal marriage. For example, unless their marriage is recognized, they may face
discrimination in hospital settings, denial of a death certificate listing Amy as Niki’s spouse,
challenges accessing safety nets for a surviving spouse, and other harms, including difficulty
establishing eligibility for Social Security benefits as a surviving spouse. In addition, Niki and
Amy have two young children. If this Court does not act, Niki and Amy’s family will never be
recognized where they live as formally united under State law, and the financial security of their
two children will remain uncertain.
74. The Indiana marriage ban is unconstitutional. Defendants should be immediately
enjoined from enforcing the ban as applied to Niki and Amy because they have an urgent need to
have their marriage recognized due to extraordinary circumstances: Niki’s life-threatening
illness.
75. Niki and Amy are suffering irreparable harm as a result of the State failing to
recognize their legal marriage, and there is thus no adequate remedy at law. There is no harm to
the State of Indiana from granting a temporary restraining order and/or a preliminary injunction
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prohibiting enforcement of the marriage ban as applied to Niki and Amy; conversely, as detailed
above, the harm to Niki and Amy is severe. Prompt action by this Court ordering Defendants
immediately to stop enforcing the Indiana marriage ban as applied to Niki and Amy will serve
the public interest.
CLAIMS FOR RELIEF
COUNT I: Deprivation of Due Process U.S. Const. Amend. XIV (42 U.S.C. § 1983)
76. Plaintiffs incorporate by reference all of the preceding paragraphs of this
Complaint as though fully set forth herein.
77. Plaintiffs state this cause of action against Defendants in their official capacities
for purposes of seeking declaratory and injunctive relief.
78. The Fourteenth Amendment to the United States Constitution, enforceable
pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1.
79. The right to marry the unique and irreplaceable person of one’s choice and to
direct the course of one’s life in this intimate realm without undue government restriction is one
of the fundamental liberty interests protected by the Due Process Clause of the Fourteenth
Amendment. Indeed, the essence of the fundamental right to marry is freedom of personal
choice in selecting one’s spouse.
80. Indiana Code Sections 31-11-1-1(a), 31-11-1-1-(b), and all other sources of
Indiana law that preclude marriage for same-sex couples or prevent recognition of their
marriages violate the due process guarantee of the Fourteenth Amendment, both facially and as
applied. Defendants’ actions to enforce the marriage ban directly and impermissibly infringe on
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adult Plaintiffs’ choice of whom to marry, interfering with a core, life-altering, and intimate
personal choice.
81. The Due Process Clause also protects choices central to personal dignity and
autonomy, including each individual’s rights to family integrity and association. Defendants’
actions to enforce the marriage ban directly and impermissibly infringe on adult Plaintiffs’
deeply intimate, personal, and private decisions regarding family life and preclude adult
Plaintiffs from obtaining full liberty, dignity, and security for themselves and their families.
82. The DEFENDANT CLERKS and DEFENDANT VANNESS’ duties and actions
to ensure compliance with Indiana’s discriminatory marriage ban by, for example, denying same-
sex couples marriage licenses, violate adult Plaintiffs’ fundamental right to marry and the rights
protected under the Fourteenth Amendment to the United States Constitution to liberty, dignity,
autonomy, family integrity, association, and due process. As the Indiana Attorney General,
DEFENDANT GREG ZOELLER is responsible for enforcing and/or defending Indiana’s laws,
including Indiana’s discriminatory marriage ban. Enforcement and/or defense of the marriage
ban violates adult Plaintiffs’ fundamental right to marry and the rights protected under the
Fourteenth Amendment to the United States Constitution to liberty, dignity, autonomy, family
integrity, association, and due process of Plaintiffs.
83. Defendants cannot satisfy the Due Process Clause’s decree that government’s
denial of a fundamental right or substantial infringement of a liberty interest may be sustained
only upon a showing that the burden is narrowly tailored to serve a compelling, or even
important governmental interest, as the marriage ban is not even tailored to further any legitimate
interest at all.
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84. Thus, Defendants, acting under color of state law, are depriving Plaintiffs of
rights secured by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Deprivation of Equal Protection U.S. Const. Amend. XIV (42 U.S.C. § 1983)
85. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of
this Complaint as though fully set forth herein.
86. Plaintiffs state this cause of action against Defendants in their official capacities
for purposes of seeking declaratory and injunctive relief.
87. The Fourteenth Amendment to the United States Constitution, enforceable
pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
88. Indiana Code Sections 31-11-1-1(a), 31-11-1-1(b), and all other sources of
Indiana law that preclude marriage for same-sex couples or prevent recognition of marriages
violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied
to Plaintiffs.
89. THE DEFENDANT CLERKS’ and DEFENDANT VANNESS’ duties and
actions to ensure compliance with Indiana’s discriminatory marriage ban by, for example,
denying same-sex couples marriage licenses, violates the right of Plaintiffs to equal protection by
discriminating impermissibly on the basis of adult Plaintiffs’ sexual orientation and sex, and on
the bases of the child Plaintiffs’ parents’ sex, sexual orientation, and marital status, denying such
children the dignity, legitimacy, security, support, and protections available to children whose
parents can marry. Indiana Attorney General DEFENDANT GREG ZOELLER’s duties and
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actions to enforce and defend Indiana’s discriminatory marriage ban violates the right of
Plaintiffs to equal protection by discriminating impermissibly on the basis of adult Plaintiffs’
sexual orientation and sex, and on the bases of the child Plaintiffs’ parents’ sex, sexual
orientation, and marital status.
90. Same-sex couples, such as the Plaintiff couples, are identical to different-sex
couples in all of the characteristics relevant to marriage.
91. Same-sex couples make the same commitment to one another as different-sex
couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan
their futures together, and hope to grow old together. Like different-sex couples, same-sex
couples support one another emotionally and financially and take care of one another physically
when faced with injury or illness. Plaintiff couples seek to marry for the same emotional,
romantic, and dignitary reasons and to provide the same legal shelter to their families as
different-sex spouses.
92. Discrimination Based on Sexual Orientation. The marriage ban targets lesbian
and gay Indiana residents as a class for exclusion from marriage and discriminates against each
adult Plaintiff based on his or her sexual orientation, both facially and as applied.
93. The exclusion of Plaintiffs from marriage based on adult Plaintiffs’ sexual
orientation subjects Defendants’ conduct to strict or at least heightened scrutiny, which
Defendants’ conduct cannot withstand because the exclusion does not even serve any legitimate
governmental interests, let alone any important or compelling interests, nor does it serve any
such interests in an adequately tailored manner.
94. Lesbians and gay men have suffered a long and painful history of discrimination
in Indiana and the United States.
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95. Sexual orientation bears no relation to an individual’s ability to contribute to
society.
96. Sexual orientation is a core, defining trait that is so fundamental to one’s identity
and conscience that a person may not legitimately be required to abandon it (even if that were
possible) as a condition of equal treatment.
97. Sexual orientation generally is fixed at an early age and highly resistant to change
through intervention. No credible evidence supports the notion that such interventions are either
effective or safe; indeed, they often are harmful and damaging. No mainstream mental health
professional organization approves interventions that attempt to change sexual orientation, and
virtually all of them have adopted policy statements cautioning professionals and the public
about these treatments.
98. Lesbians and gay men are a discrete and insular minority, and ongoing prejudice
against them continues seriously to curtail the operation of those political processes that might
ordinarily be relied upon to protect minorities.
99. Lesbians and gay men lack express statutory protection against discrimination in
employment, public accommodation, and housing at the federal level and in more than half the
states, including Indiana; are systematically underrepresented in federal, state, and local
democratic bodies; have been stripped of the right to marry through numerous state
constitutional amendments and are currently not permitted to marry in more than 30 states; and
have been targeted across the nation through the voter initiative process more than any other
group.
100. Discrimination Based on Sex. Indiana’s marriage ban discriminates against
adult Plaintiffs on the basis of their sex, both facially and as applied, barring Plaintiffs from
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marriage or from being recognized as validly married solely because each of the adult Plaintiffs
wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of
Indiana’s laws, which stipulate that “[o]nly a female may marry a male. Only a male may marry
a female,” I.C. § 31-11-1-1(a), and prohibit recognition of marriages in other states “between
persons of the same gender,” I.C. § 31-11-1-1(b).
101. Because of these sex-based classifications, Marilyn Rae Baskin, for example, is
precluded from marrying Esther Fuller because Rae is a woman and not a man; were Rae a man,
she could marry Esther.
102. Indiana’s marriage ban also impermissibly enforces conformity with sex
stereotypes by excluding adult Plaintiffs from marrying the one person each adult Plaintiff loves
because adult Plaintiffs have failed to conform to the sex-based stereotypes that men should
marry women and that women should marry men.
103. The exclusion of adult Plaintiffs from marriage based on their sex, and the
marriage ban’s requirement that adult Plaintiffs behave in conformity with sex-based stereotypes
as a condition of being able to marry, cannot survive the heightened scrutiny required for sex-
based classifications.
104. Discrimination Based on Parental Status. The marriage ban impermissibly
classifies children, including the child Plaintiffs, on the bases of their parents’ sex, sexual
orientation, and marital status, denying such children the dignity, legitimacy, security, support,
and protections available to children whose parents can marry. The State’s differential treatment
of children based upon their parents’ sex, sexual orientation, and marital status cannot survive
the heightened scrutiny required for classifications based on parental status.
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105. Discrimination With Respect to Fundamental Rights and Liberty Interests
Secured by the Due Process Clause. The marriage ban discriminates against adult Plaintiffs
based on sexual orientation and sex with respect to access to the fundamental right to marry and
against all Plaintiffs with respect to their liberty interests in dignity, autonomy, and family
integrity and association. Differential treatment with respect to exercise of fundamental rights
and liberty interests subjects Defendants’ conduct to strict or at least heightened scrutiny, which
Defendants’ conduct cannot withstand.
DECLARATORY AND INJUNCTIVE RELIEF
28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure 57 and 65
106. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of
this Complaint as though fully set forth herein.
107. This case presents an actual controversy because Defendants’ present and ongoing
denial of equal treatment and liberty to Plaintiffs subjects them to serious and immediate harms,
warranting the issuance of a declaratory judgment.
108. Plaintiffs seek preliminary and/or permanent injunctive relief to protect their
constitutional rights and avoid the injuries described above. In addition, Plaintiffs Niki Quasney
and Amy Sandler seek a temporary restraining order and/or a preliminary injunction against the
Defendants. A favorable decision enjoining Defendants would redress and prevent the
irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy
at law.
109. The State will incur little to no burden in allowing same-sex couples to marry and
recognizing out-of-state marriages, whereas the hardship for Plaintiffs of being denied equal
protection and liberty is severe, subjecting them to an irreparable denial of their constitutional
rights. The balance of hardships thus tips strongly in favor of Plaintiffs.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:
A. Declaring that the provisions and enforcement by Defendants of Indiana Code
Sections 31-11-1-1(a), 31-11-1-1(b), and any other sources of Indiana law that exclude same-sex
couples from marriage or from recognition of marriages entered into in another jurisdiction
violate Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution;
B. Preliminarily and permanently enjoining enforcement by Defendants of Indiana
Code Sections 31-11-1-1(a), 31-11-1-1(b), and any other sources of state law that exclude same-
sex couples from marriage or refuse recognition to the marriages of same-sex couples entered
into in another jurisdiction;
C. Requiring the DEFENDANT CLERKS in their official capacities to accept
applications and issue marriage licenses to same-sex couples on the same terms as different-sex
couples;
D. Requiring the DEFENDANT COMMISSIONER OF INDIANA STATE
DEPARTMENT OF HEALTH to change all appropriate forms, certificates, policies, and
instructions in order to recognize marriage applications and marriages of same-sex couples.
E. Issuing a temporary restraining order and/or preliminary injunction against
Defendants for the benefit of Plaintiffs Niki Quasney and Amy Sandler:
i. enjoining Defendants and all those acting in concert from enforcing Indiana’s
laws prohibiting recognition of Plaintiffs Niki Quasney and Amy Sandler’s legal
out-of-state marriage;
ii. should Plaintiff Niki Quasney pass away in Indiana, ordering DEFENDANT
COMMISSIONER OF INDIANA STATE DEPARTMENT OF HEALTH and all
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those acting in concert to issue to Plaintiff Amy Sandler a death certificate that
records her marital status as “married” or “widowed” and that lists her as the
“surviving spouse;” said order shall include a requirement that Defendant VanNess
issue directives to local health departments, funeral homes, physicians, coroners,
medical examiners, and others who assist with the completing of Indiana death
certificates explaining their duties under the order of this Court;
F. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant
to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and,
G. Granting such other and further relief as the Court deems just and proper.
H. The declaratory and injunctive relief requested in this action is sought against
each Defendant; each Defendant’s officers, employees, and agents; and against all persons acting
in cooperation with any Defendant or under a Defendant’s supervision, direction, or control.
DATED: March 31, 2014
Respectfully submitted,
/s/ Barbara J. Baird______Barbara J. Baird LAW OFFICE OF BARBARA J. BAIRD 445 North Pennsylvania Street, Suite 401 Indianapolis, Indiana 46204-0000 (317) 637-2345 [email protected]
Paul D. Castillo LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 3500 Oak Lawn Ave., Suite 500 Dallas, Texas 75219 (214) 219-8585 [email protected]
34
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Camilla B. Taylor LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, Illinois 60603 (312) 663-4413 [email protected]
Jordan M. Heinz Brent P. Ray Dmitriy G. Tishyevich Melanie MacKay Robyn R. English KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000 [email protected] [email protected] [email protected] [email protected] [email protected]
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION
JOANNE HARRIS and JESSICA DUFF, and No. ______CHRISTY BERGHOFF and VICTORIA KIDD, on behalf of themselves and all others similarly situated, COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, CLASS ACTION v.
ROBERT F. MCDONNELL, in his official capacity as Governor of Virginia; JANET M. RAINEY, in her official capacity as State Registrar of Vital Records; THOMAS E. ROBERTS, in his official capacity as Staunton Circuit Court Clerk,
Defendants.
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
I. INTRODUCTION
1. Named Plaintiffs Joanne Harris and Jessica Duff, and Christy Berghoff and
Victoria Kidd (collectively, “Named Plaintiffs”), and the members of the Plaintiff Class1
(collectively, with the Named Plaintiffs, “Plaintiffs”) are loving, committed same-sex couples.
The Named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 on behalf of themselves and
the Plaintiff Class, seeking declaratory and injunctive relief for the violation of Plaintiffs’ rights
under the Fourteenth Amendment to the United States Constitution caused by the exclusion of
same-sex couples from the freedom to marry and from recognition of the marriages some
1 The Plaintiff Class is defined in Section V of this Complaint, below. 1
Plaintiffs have entered into in other jurisdictions under the law of the Commonwealth of Virginia
(“Commonwealth” or “Virginia”).
2. Marriage plays a unique role in society as the universally recognized and
celebrated hallmark of a couple’s commitment to build family life together. It confers upon couples a dignity and status of immense import. Plaintiffs have formed committed, enduring bonds equally worthy of the respect afforded by the Commonwealth to different-sex couples through marriage. Yet, the Commonwealth, without any adequate justification, has enacted an unprecedented series of statutory and constitutional amendments to single out lesbian and gay
Virginians by excluding them from the freedom to marry, or by refusing to recognize their existing marriages from other jurisdictions, based solely on their sexual orientation and their sex.
3. Through the Commonwealth’s constitutional and statutory marriage bans and through Defendants’ enforcement of them, the Commonwealth and Defendants send a purposeful message that they view lesbians, gay men, and their children as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage. This discrimination (referred to herein as the
Commonwealth’s “marriage ban”) is enshrined both in the Commonwealth’s statutes and in article 1, section 15-A of the Commonwealth’s Constitution, which limits marriage to couples composed of “one man and one woman.”
4. The marriage ban inflicts serious and irreparable harms upon same-sex couples and their children. Joanne Harris and Jessica Duff are unmarried, and wish to marry for the same reasons as different-sex couples – to publicly declare their love and commitment before their family, friends, and community, and to give one another and their son J. H.-D. the security and protections that only marriage provides. Christy Berghoff and Victoria Kidd have married in
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another jurisdiction, but are treated as legal strangers in the state they call home – a painful invalidation of their relationship that also deprives them and their daughter L. B.-K. of the protections that a legally recognized marriage most securely provides.
5. Our courts and our society have discarded, one by one, marriage laws that
violated the Constitution’s mandate of equality, such as anti-miscegenation laws and laws that denied married women legal independence and the right to make decisions for themselves.
History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution. Ending the exclusion of lesbian and gay couples from marriage is no different. Indeed, in 13 states and the District of Columbia, same-sex couples are marrying and the institution of marriage continues to thrive.
6. Plaintiffs seek equal access to marriage as the only means to secure their rights to due process and equal protection of the law, and to eliminate the myriad serious harms inflicted on them by the marriage ban and Defendants’ enforcement of it. Accordingly, Named Plaintiffs bring this suit on behalf of themselves and all others similarly situated pursuant to 42 U.S.C.
§ 1983 seeking declaratory and injunctive relief on the grounds that the Commonwealth’s exclusion of same-sex couples from marriage and refusal to recognize their valid marriages from other jurisdictions and Defendants’ enforcement of the marriage ban violate the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution.
II. PARTIES
A. The Named Plaintiffs
7. Joanne Harris (“Joanne”), and Jessica Duff (“Jessi”), are a lesbian couple residing in Staunton, Virginia, within the Harrisonburg Division of the Western District of Virginia.
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Joanne, age 37, is the Director of Diversity and Advocacy at Mary Baldwin College in Staunton,
Virginia. Jessi, age 33, previously worked for many years at an agency serving people with developmental disabilities, and now works for child protective services, conducting child abuse investigations with Shenandoah Valley Social Services. The couple has been in a committed, loving relationship for 11 years, and are the devoted parents of a four-year-old son, J. H.-D.
8. Jessi fell in love at first sight with Joanne when they met in 2002 through mutual friends. Joanne realized that she wanted to spend the rest of her life with Jessi when Jessi’s grandmother wrapped her in a big hug and welcomed her into the family. The couple shares many values, including a commitment to their Christian faith. In 2006, they were baptized together in the backyard river of a fellow church member.
9. Both Joanne and Jessi also grew up in Virginia farmland. Joanne’s dad is a pig farmer, and she lived on the family farm until she left for college. Jessi’s grandfather owned a cow farm, which remains in the family, and Jessi remembers baling hay and feeding and watering the cows as a child.
10. Joanne and Jessi have commingled their finances and pledged to support each other financially. They maintain joint checking and savings accounts, and have designated each other as beneficiaries on their retirement accounts. Both contribute to a 529 Plan (college savings account) for J. H.-D.
11. Joanne and Jessi’s lives revolve around J. H.-D. Joanne is J. H.-D.’s biological mother, and he calls her “Mommy,” and calls Jessi “Momma DeeDee,” or “DeeDee” (his chosen name for Jessi). They all are members of their local YMCA, where J. H.-D. plays soccer and basketball, and takes swimming lessons. Joanne and Jessi also take J. H.-D. to play Kiwanis tee-
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ball through the Staunton Parks and Recreation Department. They look forward all week to
Friday, which is “Family Movie Night.”
12. Religion is important to the couple, and when they decided to have a commitment ceremony in 2006, they saw their pastor for marriage counseling, as other heterosexual members of their church do. In their words, they “wanted to feel what normal couples feel, and to get what heterosexual couples get, which is marriage counseling,” as well as to deepen their bond through the process. Their attempts to recreate the experiences that different-sex fiancés and spouses may take for granted, however, are severely limited by the Commonwealth’s marriage ban and Defendants’ enforcement of it.
13. While Joanne and Jessi’s commitment ceremony was one of the happiest days of their lives, they remember how completely different it was when Jessi’s brother, Matt, got married. The moment Matt was married he could cover his wife through his health insurance at work, and feel secure that no one would question his right to make medical decisions if she were incapacitated. Matt also instantly gained the ability to take parenting leave to care for any children he might have with his wife. As Matt expressed to the couple, he was very conscious of the fact that he could take those rights for granted, knowing that they were unavailable to Joanne and Jessi.
14. Joanne and Jessi worry about the hurtful messages of stigma that their inability to marry sends to J. H.-D. He is proud of their family, but even at the age of four is very aware that his parents cannot marry. A picture from their commitment ceremony hangs in their home, and
J. H.-D. points to it and says to others, “Mommy and Momma DeeDee got married, and they need to really get married.” Joanne and Jessi believe that a state-approved ceremony would carry great significance for him because he has expressed that he wants to be a part of their
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wedding. J. H.-D. proudly told Joanne and Jessi that he went to school one day and told his
friends, “Barack Obama [who supports marriage equality] is president, and hopefully he will
help my mommies get married.”
15. The inability to marry leaves Joanne and Jessi vulnerable in a range of contexts.
Jessi has no legal relationship to J. H.-D., as she would have if Joanne and Jessi had been
married at the time of his birth. Because they cannot marry in Virginia, Jessi also is unable to
adopt J. H.-D. as a co-parent in Virginia. The couple is terrified about what might happen if, for
example, Joanne and J. H.-D. were both in an accident and J. H.-D. needed emergency medical
care. Jessi lacks clear legal authority to authorize such care, and they fear what would happen if
Joanne were injured and unable to consent. This fear is exacerbated by the fact that Joanne’s
relationship with her parents is tenuous, and both Joanne and Jessi worry that Joanne’s family
might seek to override or deny Jessi’s role as J. H.-D.’s mother in such circumstances. Although
some other same-sex couples raising children in Virginia have been able to obtain court orders
granting some forms of decision-making authority to both parents, at a substantial cost, Joanne
and Jessi know there is no guarantee that such papers would be respected in an emergency
situation. Moreover, under current Virginia law there is no way for Jessi to secure an order
recognizing what she is to J. H.-D.: a co-equal parent.
16. Especially because Joanne has epilepsy, the couple worries that their relationship
may be disrespected during a health crisis. They also are concerned because Joanne’s mother
disagrees with Joanne’s clear wishes for end-of-life decision-making. Jessi fully respects and is prepared to carry out Joanne’s wishes not to receive life-prolonging measures, but Joanne’s
mother has expressed that she would vigorously fight that decision. Joanne also worries that her
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family might contest her will, which would inflict significant uncertainty and anxiety during the
very moment that Jessi would also be grieving.
17. Joanne and Jessi have struggled to identify their family on forms that require them
to indicate their marital status. They also are frustrated that Jessi cannot sign forms or make
school-related decisions that require a legal parent. They are unable to have a family membership at the YMCA where J. H.-D. takes classes. On a daily basis, in ways both profound and mundane, they are reminded that the Commonwealth views them as strangers – to each
other, and Jessi to her son. Joanne and Jessi long for the day that their family and commitment
to each other can be recognized for what it is: equally loving and devoted, and worthy of the
same vital protections that other families formed by couples who may marry receive.
18. Christy Berghoff (“Christy”) and Victoria Kidd (“Victoria”) of Winchester have
lived together in a committed relationship for more than nine years. Together, they are the
parents of a daughter, L. B.-K., who is eight months old.
19. Victoria, 34, is a small business owner as well as a stay-at-home mother to L. B.-
K. Victoria works part-time from home as a freelance writer and owner of a small consulting
business that provides writing, editing, and resume development services. She is a Certified
Professional Resume Writer and a Certified Professional Career Coach, and holds a master’s
degree in business administration.
20. Christy, also 34, works as an information technology program manager for the
U.S. Department of Justice in Washington, D.C. Christy is also currently working toward a
master’s degree in management information systems.
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21. In addition, Christy is a veteran of the United States Air Force. She served in an
intelligence unit from 1999 to 2003, when she was honorably discharged with the rank of Senior
Airman.
22. Victoria and Christy met online in the summer of 2004, when they were both
living in Ohio, and had their first date over coffee shortly thereafter. They quickly realized that
they shared important goals and values; in particular, Victoria was impressed with Christy’s
maturity as a 25-year-old Air Force veteran. They also came from similar backgrounds.
Victoria grew up in the small community of Roanoke Rapids, North Carolina, while Christy
grew up in the small community of Greenville, Ohio. Both Victoria and Christy were raised in
the Jehovah’s Witness faith.
23. Within less than a year after meeting, Victoria and Christy decided that they not
only loved one another, but wanted to permanently commit their lives to one another. In 2004,
Christy proposed to Victoria. Victoria accepted, and began wearing a diamond engagement ring
that Christy gave her. Less than a year later, Victoria also gave Christy a ring that Christy began
wearing as a symbol of their commitment.
24. In 2005, Victoria and Christy moved to Northern Virginia, in order to be near the
many job opportunities the area offers. In 2007, they purchased and moved into their home in
Winchester, Virginia, within the Harrisonburg Division of the Western District of Virginia.
Since then, they have established firm roots in Frederick County, Virginia. In addition to running her business and serving as primary caretaker to L. B.-K., Victoria is an active member of a local civic club and has also done volunteer work with many other groups including the
Taproot Foundation, the United Way, the United Service Organizations, and AIDS Response
Effort, a Winchester charity that serves people living with HIV and AIDS. Christy’s work and
8 commute take up most of her time on weekdays, but she often helps out with Victoria’s service projects on the weekends.
25. Victoria and Christy are legally married under the laws of the District of
Columbia. Getting legally married was important to Victoria and Christy because of the legitimacy it afforded to their relationship, and because a government-sanctioned marriage ceremony provided a way for them to officially pledge their lives to one another. Victoria and
Christy put off getting married for years because they wanted to do so in their home town rather than travel to a faraway place. But after the District of Columbia granted same-sex couples the freedom to marry in 2010, Victoria and Christy decided to take advantage of that freedom.
26. Victoria and Christy’s wedding took place on August 20, 2011, at a church in
Washington, D.C., with about 20 friends and family members in attendance. After the ceremony, they hosted a reception for the wedding guests in their backyard in Winchester.
27. Although their relationship was already committed and strong before they got married, Victoria and Christy both feel that legally marrying has caused a positive change in their relationship. Victoria in particular believes that calling Christy her “wife” rather than her
“partner” has helped other people understand the depth of their relationship.
28. But the Commonwealth’s disrespect of their marriage invites others to see them as
“less than.” Victoria and Christy started a family together when Christy gave birth to their daughter, L. B.-K. in November 2012, at Winchester Medical Center. One nurse was overtly hostile to both Victoria and Christy, delaying service and responding with unkind words so often that the couple felt like they were “on their own” – even when Victoria called for help because
Christy needed medical attention the night after L. B.-K. was born. Victoria and Christy believe
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this kind of experience would be far less common for same-sex couples if the Commonwealth recognized the equal dignity of their relationships.
29. Because the Commonwealth does not recognize Victoria as married to Christy,
Victoria initially had no legal relationship to L. B.-K. After their baby was born, Victoria and
Christy retained an attorney whom they paid hundreds of dollars to secure co-custodianship for
Victoria that gives her the legal right to make medical and other decisions for L. B.-K. when
Christy is not present. However, Victoria and Christy worry about whether the co-custodianship papers they carry with them would be enough to make sure Victoria’s relationship with L. B.-K. is respected in a time of crisis. Additionally, the papers do not confer full parental status on
Victoria.
30. Victoria and Christy are considering seeking additional legal assistance with preparation of wills, living wills, powers of attorney, and other legal documents to help protect one another given that, due to the marriage ban and Defendants’ enforcement of it, their marriage is not legally respected in the Commonwealth. However, this process would require a large investment of time and money, and Victoria and Christy are aware that, even with every possible private legal agreement in place, they would not have access to many of the rights and responsibilities that come with marriage in Virginia.
31. When Victoria and Christy purchased their home in Winchester in 2007, they wanted to get a home loan guaranteed by the federal Veteran’s Administration (the “V.A.”).
The V.A. guarantees certain types of home loans issued to veterans and their spouses, and those loan products typically feature better interest rates and other financial advantages over other loan products because of the V.A. guarantee. However, Christy and Victoria were not able to get a
V.A. loan, because Victoria was not Christy’s legal spouse and lenders were unwilling to issue
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loans with a V.A. guarantee covering only half of the total amount. Since then, Victoria and
Christy have married in the District of Columbia and the Supreme Court has struck down as
unconstitutional the section of the federal Defense of Marriage Act that previously forbade any
federal agency from recognizing the marriages of same-sex couples. However, if they were to
buy a new house in Virginia or seek to refinance their current mortgage, Victoria and Christy
today would still not be eligible for the full V.A. loan guarantee that other veterans’ families
receive, because the V.A. currently looks to the law of joint applicants’ state of residence to determine whether they are legally married, and Virginia refuses to recognize Victoria and
Christy as married.
32. Christy commutes more than 75 miles each way from the couple’s home in
Winchester to her office in the District of Columbia. The chance that one of them could suffer a
medical emergency during a weekday when the other is not immediately available makes
Victoria and Christy particularly concerned about needing to make sure they are respected as
spouses by first responders, hospital staff, and anyone else who might question their legal
relationship during an emergency situation. These concerns were further heightened when
Victoria suffered a minor stroke last year and required emergency medical treatment, and again
when Victoria and Christy had the painful experience of having a nurse disrespect them in the
hospital the night after L. B.-K.’s birth.
33. Victoria and Christy feel strongly that Virginia is their home and is where they
want their child to grow up, but they feel disrespected under current Virginia law. The couple
hopes their marriage is recognized in the Commonwealth before L. B.-K. is old enough to
understand that Virginia does not give her parents and family the same rights and respect it gives
other parents and families.
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B. The Defendants
34. Defendant Robert F. McDonnell is sued in his official capacity as Governor of the
Commonwealth of Virginia. As decreed by article 5, sections 1 and 7 of the Virginia
Constitution, Governor McDonnell is vested with the chief executive power of the
Commonwealth and has the duty to see that the Commonwealth’s laws, including the marriage ban, are faithfully executed. Pursuant to Va. Code Ann. § 2.2-103, Governor McDonnell also bears the authority and responsibility for the formulation and administration of the policies of the executive branch, including administrative agency policies relating to health insurance coverage, vital records, tax obligations, state employee benefits programs (including in Governor
McDonnell’s role as Chief Personnel Officer of the Commonwealth), motor vehicles (including, for example, changing one’s last name on a driver’s license), and regulation of health professions
(including, for example, implementation of laws governing medical decision-making by family members and requests for autopsies) – all of which involve recognizing marital status. Governor
McDonnell appoints the heads of various agencies with responsibility for recognizing the marriages of same-sex couples, and may remove those appointees for various reasons, including for how they administer laws relating to the ability of same-sex couples to marry, or to have their valid marriages from other jurisdictions recognized. Governor McDonnell also has authority to remove from office members of boards, commissions, councils and collegial bodies for misconduct, including a failure to comply with the obligations of the federal Constitution.
Governor McDonnell may also enforce such obligations through his ability to initiate suit to protect the interests of the Commonwealth’s citizens. Governor McDonnell is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.
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35. Defendant Janet M. Rainey is sued in her official capacity as the State Registrar of Vital Records (“State Registrar”). Ms. Rainey’s duties include directing and supervising the system of vital records and serving as the custodian of its records; directing, supervising, and controlling the activities of all persons pertaining to the operation of the system of vital records; as part of these vital records-related duties, furnishing forms for the marriage license, marriage certificate, and application for marriage license used in the Commonwealth; maintaining a
publicly available online vital records index of marriages; and compiling, publishing, and
making available to the public aggregate data on the number of marriages occurring in the
Commonwealth, including the age and race of the spouses, and the number of minor children
involved. Ms. Rainey must ensure compliance through all of these functions with relevant
Commonwealth laws, including those that currently exclude same-sex couples from marriage.
Upon information and belief, this includes furnishing forms that prohibit same-sex couples from
marrying by requiring a “Bride” and a “Groom.” Ms. Rainey also enforces Virginia law with
respect to birth certificates, which disrespects same-sex couples’ valid marriages from other jurisdictions by requiring that, for children resulting from assisted conception, the birth certificate contain the name of the mother and her “husband.” Ms. Rainey is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.
36. Defendant Thomas E. Roberts is sued in his official capacity as Staunton Circuit
Court Clerk, an office authorized by Article VII, Section 4 of the Commonwealth’s Constitution.
Mr. Roberts’ duties include issuing marriage licenses, which couples may seek from him regardless of where they reside in Virginia; requiring the parties contemplating marriage to state under oath the information required for the marriage record, and delivering certificates of that
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information to the parties along with the marriage license; levying and collecting a tax on each marriage license; authorizing qualified ministers to perform marriage rites; filing and preserving the originals and indexing the names of both spouses, upon return of the marriage license and certificate from the officiant; forwarding a record of each marriage to the State Registrar; providing an attorney for the Commonwealth a list of all marriage licenses issued during the preceding calendar year that have not been returned by the person celebrating the marriage; and correcting marriage records as needed. Mr. Roberts must ensure compliance through all of these functions with relevant Commonwealth laws, including those that exclude same-sex couples from marriage. Mr. Roberts is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint.
37. Defendants, through their respective duties and obligations, are responsible for enforcing the Commonwealth’s marriage ban. Each Defendant, and those subject to their direction, supervision, and control, intentionally performed, participated in, aided and/or abetted in some manner the acts alleged here, proximately caused the harm alleged herein, and will continue to injure Plaintiffs irreparably if not enjoined. Accordingly, the relief requested herein is sought against each Defendant, as well as all persons under their supervision, direction, or control, including but not limited to their officers, employees, and agents.
III. JURISDICTION AND VENUE
38. Named Plaintiffs bring this action under 42 U.S.C. § 1983 on behalf of themselves and the Plaintiff Class to redress the deprivation under color of state law of rights secured by the United States Constitution.
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39. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States.
40. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2) because
Defendant Roberts resides within the District and the Harrisonburg Division of it and all
Defendants reside within the Commonwealth of Virginia; and because a substantial part of the events that gave rise to the Named Plaintiffs’ claims took place within the District and the
Harrisonburg Division of it.
41. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of
Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.
42. This Court has personal jurisdiction over Defendants because they are domiciled in the Commonwealth.
IV. STATEMENT OF FACTS
43. Plaintiffs are residents of the Commonwealth who experience the same joys and challenges of family life as their heterosexual neighbors, co-workers, and other community members who freely may marry. Plaintiffs are productive, contributing citizens who support their families and nurture their children, but must do so without the same legal shelter, dignity, and respect afforded by the Commonwealth to other families through access to the universally celebrated status of marriage. The Commonwealth’s exclusion of Plaintiffs from marriage, and
Defendants’ enforcement of that exclusion, subjects Plaintiffs to an inferior “second class” status relative to the rest of the political community and deprives them and their children of equal dignity, security, and legal protections afforded to other Virginia families.
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Named Plaintiffs’ Respective Attempt To Marry And Marriage In Another Jurisdiction
44. But for the fact that they are of the same sex, Joanne Harris and Jessica Duff are legally qualified to marry under the laws of the Commonwealth and wish to marry in Virginia.
Each is over the age of 18 and fully competent, and neither is precluded from marriage as a result of having another spouse or being closely related to the other. They are willing to provide the requisite information to receive a marriage license and to pay the required fee. Joanne Harris and Jessica Duff are able and eager to assume the responsibilities of marriage.
45. On July 29, 2013, Joanne Harris and Jessica Duff appeared in person at the
Staunton Circuit Court to apply for a marriage license. Defendant Roberts refused their marriage license application because they are a same-sex couple.
46. Christy Berghoff and Victoria Kidd were validly married in Washington, D.C. on
August 20, 2011, and would be recognized as such by the Commonwealth but for the fact that they are a same-sex couple.
The Plaintiff Class
47. The Class the Named Plaintiffs represent reflects the rich diversity of the
Commonwealth. Class members come from all walks of life, and include, by way of example, people who put their lives on the line daily to serve the Commonwealth as police officers and fire fighters; people who are doing or have done the same for their country as members of the armed forces; doctors, nurses, social workers, attorneys, government officials and employees, scientists, artists, engineers, sales people, office workers, small business owners, professors, students, stay-at-home parents, and retirees; and members of diverse faith communities, as well as some of their pastors and rabbis. Many are raising children together, and some have grandchildren.
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48. Each member of the Plaintiff Class either has been unable to marry his or her
same-sex partner in Virginia because of the marriage ban or validly married a partner of the same
sex in another jurisdiction but is treated as a legal stranger to his or her spouse under Virginia
law.
The Commonwealth’s Statutory and Constitutional Amendments Single Out Same-Sex Couples and Exclude Them From Marriage
49. Beginning in 1975, the Commonwealth has enacted a series of statutory and constitutional bans designed to exclude same-sex couples from marriage. These marriage bans
cannot be explained by reference to legitimate public policies that could justify the disadvantages
the marriage bans impose on certain same-sex couples. Rather, the history of these enactments and their own text demonstrate that interference with the equal dignity of same-sex couples was more than a mere side effect of the various enactments – it was their essence.
50. In 1975, shortly after same-sex couples in other jurisdictions filed the first lawsuits seeking the freedom to marry, the Commonwealth for the first time enacted a statutory provision specifically to exclude same-sex couples from marriage. The new statute, Virginia
Code § 20-45.2, provided that, “A marriage between persons of the same sex is prohibited.”
51. In 1997, in response to court decisions in Hawaii that indicated Hawaii might soon allow same-sex couples to marry, the Commonwealth reenacted Section 20-45.2 and added sweeping language that not only voided “any marriage entered into by persons of the same sex in another state or jurisdiction,” but also voided “any contractual rights created by such marriage,” rendering them “unenforceable.”
52. In 2004, the Commonwealth went even further to ensure that same-sex couples could not obtain any state-recognized status – even one significantly inferior to marriage – by enacting Virginia Code Annotated § 20-45.3, which prohibits same-sex couples from obtaining a
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“civil union, partnership contract or other arrangement . . . purporting to bestow the privileges or
obligations of marriage.” One of the most extreme laws restricting the rights of same-sex couples in the country, the statute also barred any and all recognition of a “civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction,” providing that any such status “shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.” The Virginia legislature rejected an amendment offered by the then-Governor Mark Warner that would have mitigated the adverse effects of the law on contractual rights.
53. In 2005 the Virginia legislature took the first step required to refer a constitutional amendment to the voters for approval, for the purpose of enshrining the marriage ban into the
Commonwealth’s Constitution. The legislature approved a proposed amendment providing:
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
54. As required for a proposed constitutional amendment, the legislature approved the measure again in early 2006, and the voters ratified Virginia Constitution article 1, § 15-A in
November 2006 by a 57% to 43% vote.
55. Pursuant to these laws, same-sex couples are prohibited from all access to marriage; they can neither marry in the Commonwealth nor have a valid marriage from another jurisdiction recognized.
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The Commonwealth’s Exclusion of Same-Sex Couples from Marriage Inflicts Profound Harms on Plaintiffs
56. Barring same-sex couples from marriage disqualifies them from critically important rights and responsibilities that different-sex couples rely upon to secure their commitment to each other, and to safeguard their families. By way of example only, same-sex couples are denied:
a. The ability to solemnize their relationships through state-sanctioned
ceremonies. Va. Code Ann. § 20-13. The denial of state sanction or
recognition deprives same-sex couples of important legal protections that
automatically come with state-sanctioned marriage.
b. The ability to celebrate their marriage in their chosen faith tradition or in a
civil ceremony because ministers, rabbis, priests, other faith leaders, and
authorized marriage celebrants are specifically prohibited even from using the
word “marriage” in a religious ceremony (even if permitted or encouraged by
their faith tradition) or other ceremony celebrating their committed union and
could face criminal prosecution if they did. Va. Code Ann. § 20-28. The
important right to celebrate a “marriage” through religious ceremony or other
ceremony – which symbolizes the binding together of two lives and two
families, and creates memories that couples and families cherish for a lifetime
– is denied to same-sex couples in the Commonwealth.
c. The ability to safeguard family resources under an array of laws that protect
spousal finances, including for example, the exemption from taxable income
of the value of health insurance coverage that one partner receives through the
other’s employment; the exemption or deferral of taxes on the property of
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certain elderly or disabled residents, Va. Code Ann. § 58.1-3210; and property
tax exemptions for the surviving spouse of an eligible veteran, Va. Code Ann.
§ 58.1-3219.5. d. The ability to make caretaking decisions in times of death and disaster,
including priority to make medical decisions for an incapacitated spouse, Va.
Code Ann. § 54.1-2986; the ability to petition a circuit court for an autopsy,
Va. Code Ann. § 32.1-285; the automatic right to authorize interment, Va.
Code Ann. § 57-27.3; and the automatic right and priority to make anatomical
gifts of a decedent’s body, Va. Code Ann. § 32.1-291.9. e. The ability to support each other in end-of-life circumstances, such as being
assured privacy for visits with a spouse if an individual is in a nursing home,
and the right to share a room with a spouse if both reside in the same nursing
home. Va. Code Ann. § 32.1-138(A)(15). f. The right to inheritance under the laws of intestacy, Va. Code Ann. § 64.2-
200; to claim an elective share in a deceased spouse’s estate, Va. Code Ann.
§ 64.2-302; rights in the family residence pending final determination of the
estate, Va. Code Ann. § 64.2-307; a homestead allowance, Va. Code Ann.
§ 64.2-311; and various kinds of survivor benefits, including for example,
survivor benefits for a spouse and children of an individual killed while
performing firefighting duties, Va. Code Ann. § 27-39. g. Benefits for families who have made some of the greatest sacrifices for our
country, including educational benefits, home loan guarantees, and a real
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estate tax exemption for surviving spouses of military service members killed
in action, see, e.g., Va. Code Ann. § 2.2-2001.
h. The ability to secure legal recognition for parent-child bonds through the
mechanisms afforded to spouses, including joint adoption, Va. Code Ann.
§ 63.2-1201; adoption of a spouse’s child, Va. Code Ann. § 63.2-1241; the
ability of a couple to legitimate their child by marrying, Va. Code Ann. § 20-
31.1; and the presumption of parentage for children born into a marriage, Va.
Code Ann. § 63.2-1202(D).
i. In the event that a couple separates, access to an orderly dissolution process
for terminating the relationship and assuring an equitable division of the
couple’s assets and debts. Va. Code Ann. §§ 20-96, 20-107.3.
j. A range of important responsibilities that, like rights, enhance the dignity and
integrity of the person. As one example, same-sex couples are denied the
ability to be made formally accountable to each other through, obligations of
spousal support and child support. Va. Code Ann. §§ 20-107.1, 20-107.2. k. A host of federal rights and responsibilities that span the entire United States
Code and the whole realm of federal regulations. Unmarried couples are
denied recognition for virtually all purposes throughout the more than 1,000
statutes and numerous federal regulations relating to marriage, including laws
pertaining to Social Security, housing, taxes, criminal sanctions, copyright,
and veterans’ benefits. Couples validly married in another jurisdiction and
living in the Commonwealth may qualify for some federal benefits and
protections, but will likely be denied others such as veteran’s spousal benefits
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and Social Security survivor benefits. Many of these deprivations drain
family economic resources, causing financial harm not only to same-sex
couples but to their children as well.
57. In addition to the tangible harms listed above, Plaintiffs are denied the unique social recognition that marriage conveys. Without access to the familiar language and legal label of marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and permanence of their commitment, or to obtain respect for that commitment as others do simply by invoking their married status.
58. The substantive and dignitary inequities imposed on committed same-sex couples include particular harms to same-sex couples’ children, who are equally deserving of the stability, permanence, and legitimacy that are enjoyed by children of different-sex couples who marry. Civil marriage affords official sanctuary to the family unit, offering parents and children critical means to secure legal parent-child bonds, and a familiar, public way of demonstrating those bonds to third parties. By denying same-sex couples marriage, the Commonwealth reinforces the view held by some that the family bonds that tie same-sex parents and their children are less consequential, enduring, and meaningful than those of different-sex parents and their children. Same-sex couples and their children accordingly must live with the vulnerability and stress inflicted by a lack of access to the same mechanisms for securing their legal relationships, and the ever-present possibility that others may question their familial relationship
– in social, legal, educational, and medical settings and in moments of crisis – in a way that spouses can avoid by simple reference to being married.
59. Children from a young age understand that marriage signifies an enduring family unit, and likewise understand when the Commonwealth has deemed a class of families as less
22
worthy than other families, undeserving of marriage, and not entitled to the same societal
recognition and support as other families. The Commonwealth has no adequate interest to justify
marking the children of same-sex couples, including the children of Named Plaintiffs, with a
badge of inferiority that will invite disrespect in school, on the playground, and in every other
sphere of their lives.
60. The government is a powerful teacher of discrimination to others. By decreeing
that the relationships of same-sex couples should be ignored in the Commonwealth and
enforcing that policy, the Commonwealth and Defendants instruct all persons with whom same-
sex couples interact, including those couples’ own children, that their relationships are less
worthy than others. Bearing the imprimatur of the government, the Commonwealth’s statutory
and constitutional marriage ban, and Defendants’ enforcement of it, communicates a view that
same-sex couples are unfit for the dignity, respect, and stature afforded to different-sex couples,
and this encourages others to follow the government’s example in discriminating against them.
61. Many private entities defer to the Commonwealth’s and Defendants’ conferral of marital status in defining “family” for purposes of an array of important benefits, often resulting in the exclusion of same-sex couples and their children from important safety nets such as private employer-provided health insurance for family members. The Commonwealth and
Defendants also encourage disrespect of committed same-sex couples and their children by others in workplaces, schools, businesses, and other major arenas of life, in ways that would be less likely to occur and more readily corrected if marriage were available to same-sex couples.
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The Commonwealth’s Exclusion Of Same-Sex Couples from Marriage Is Not Even Rationally Related To A Legitimate Governmental Purpose, Let Alone Substantially Related To An Important Government Purpose Or Narrowly Tailored To A Compelling Governmental Purpose
62. No legitimate, let alone important or compelling, interest exists to exclude same- sex couples from the historic and highly venerated institution of marriage. An individual’s capacity to establish a loving and enduring relationship does not depend upon that individual’s sexual orientation or sex in relation to his or her committed life partner, nor is there even a legitimate interest in justifying same-sex couples’ exclusion from marriage and the spousal
protections it provides on such bases.
63. Neither history nor tradition can justify the Commonwealth’s discriminatory exclusion of same-sex couples from marriage. Marriage has remained vital and enduring because of, not despite, its resiliency in response to a dynamic society, as society and the courts have cast off prior restrictions on interracial marriage and coverture. The Constitution is not confined to historic notions of equality, and no excuse for the Commonwealth’s discriminatory
restriction can be found in the pedigree of such discrimination.
64. As the Supreme Court has made clear, the law cannot, directly or indirectly, give
effect to private biases. Liberty and equality, not moral disapproval, must be the guiding
framework for a state’s treatment of its citizens.
65. Excluding same-sex couples from marriage does nothing to protect or enhance the
rights of different-sex couples. Different-sex spouses will continue to enjoy the same rights and
status conferred by marriage regardless of whether same-sex couples may marry, unimpaired by
the acknowledgment that this freedom belongs equally to lesbians and gay men.
66. Although the Commonwealth has a valid interest in protecting the public fisc, it
may not pursue that interest by making invidious distinctions between classes of its citizens
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without adequate justification. Moreover, the Commonwealth not only lacks any such fiscal
justification but rather would generate additional revenues by allowing same-sex couples to
marry and to be recognized as married.
67. The Commonwealth’s interest in child welfare is affirmatively harmed rather than
furthered by the exclusion of same-sex couples from marriage. That exclusion injures same-sex
couples’ children without offering any conceivable benefit to other children.
68. Barring same-sex couples from marriage does not affect which couples raise
children together. Same-sex couples in Virginia can and do bear children through use of reproductive technology that is available to both same-sex and different-sex couples, and bring children into their families through foster care and adoption. Marriage has never been the sole province of couples who are parents. Neither Virginia nor any other state in this country has ever restricted marriage to those capable of or intending to procreate.
69. There is no valid basis for the Commonwealth to assert a preference for parenting by different-sex couples over same-sex couples. Based on more than 30 years of research, the scientific community has reached a consensus that children raised by same-sex couples are just as well-adjusted as children raised by different-sex couples. This consensus has been recognized by every major professional organization dedicated to children’s health and welfare including the
American Academy of Pediatrics, the American Psychological Association, the American
Medical Association, the National Association of Social Workers, and the Child Welfare League of America.
70. Other courts have found, after trials involving expert testimony, that there is no rational basis for favoring parenting by heterosexual couples over gay and lesbian couples. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the
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research supporting the conclusion that “[c]hildren raised by gay or lesbian parents are as likely
as children raised by heterosexual parents to be healthy, successful and well-adjusted” is
“accepted beyond serious debate in the field of developmental psychology”), aff’d sub nom.
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom.
Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013); In re Adoption of
Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) (“[B]ased on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.”), aff’d sub nom. Florida Dep’t of Children & Families v.
Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency
Review Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir.
Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay parents that “there was no rational relationship between the [exclusion of gay people from becoming foster parents] and the health, safety, and welfare of the foster children.”), aff’d sub nom. Dep’t of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006).
71. Excluding same-sex couples from marriage harms their children, including by branding their families as inferior and less deserving of respect, and by encouraging private bias and discrimination. Denying same-sex couples the equal dignity and status of marriage humiliates the children now being raised by same-sex couples, and makes it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
72. Excluding same-sex couples from civil marriage will not make the children of different-sex spouses more secure. Different-sex spouses’ children will continue to enjoy the
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benefits that flow from their parents’ marriage regardless of whether same-sex couples are
permitted to marry. The marriage ban has no conceivable effect on the choices different-sex
couples make about such profound issues as whether to marry, whether to have children, and
whether to raise their children in wedlock.
73. The Commonwealth’s interest in the welfare of children parented by same-sex
couples is as great as its interest in the welfare of any other children. The family security that
comes from the Commonwealth’s official recognition and support is no less important for same-
sex parents and their children than it is for different-sex parents and their children.
V. CLASS ACTION ALLEGATIONS
74. Named Plaintiffs bring this action for themselves and, pursuant to Rules 23(a),
23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all same-sex couples who are injured by the Commonwealth’s marriage ban (the “Plaintiff Class”). The class, as proposed by Named Plaintiffs, consists of:
a. all persons residing in Virginia who are unmarried, and either
1. wish to marry a person of the same sex, have applied for a
marriage license in the Commonwealth with a person of the same sex,
and have been denied the license; or
2. wish to marry a person of the same sex in the Commonwealth, but
have not attempted to apply for a marriage license because the
marriage ban would render such an attempt futile; as well as
b. all persons residing in Virginia who are validly married to a person of the
same sex in another jurisdiction, and wish to have their marriage recognized
by the Commonwealth.
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75. The class is so numerous that joinder of all members is impracticable. Fed. R.
Civ. P. 23(a)(1). Upon information and belief, there are thousands of same-sex couples in
Virginia who are married or would marry if Virginia law permitted them to do so. The
Commonwealth’s marriage ban, and Defendants’ enforcement of it, prevents all of those couples from either marrying or having their valid marriage from another jurisdiction recognized by the
Commonwealth.
76. There are questions of law and fact common to the members of the class. Fed. R.
Civ. P. 23(a)(2). Such questions include, but are not limited to:
a. whether the Commonwealth’s marriage ban violates federal substantive due
process guarantees, including the fundamental right to marry, and liberty
interests in autonomy, and family integrity and association;
b. whether the Commonwealth’s marriage ban violates guarantees of equal
protection regardless of an individual’s sexual orientation, and sex in relation
to the sex of his or her life partner; and
c. the level of constitutional scrutiny applicable to governmental discrimination
based on sexual orientation.
Defendants are expected to raise common defenses to those claims.
77. The claims of Named Plaintiffs are typical of those of the Plaintiff Class, as their claims all arise from the Commonwealth’s marriage ban and are based on the same theories of
law.
78. Named Plaintiffs are capable of fairly and adequately protecting the interests of
the Plaintiff Class because they do not have any interests antagonistic to the class. Named
Plaintiffs as well as the Plaintiff Class all seek to enjoin the Commonwealth’s marriage ban.
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Moreover, Named Plaintiffs are represented by counsel experienced in civil rights litigation and complex class action litigation.
79. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1) because prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, resulting in some Virginia same-sex couples having access to marriage, or recognition for their valid marriage, and others not. In addition, prosecution of separate actions by individual members could result in adjudications with respect to individual members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
80. This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2) because Defendants’ enforcement of the marriage ban applies generally to the class, by precluding all class members from marrying or having a valid marriage from another jurisdiction recognized. The injunctive and declaratory relief sought is appropriate respecting the class as a whole.
VI. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF Deprivation of Due Process U.S. Const. Amend. XIV
81. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this complaint as though fully set forth herein.
82. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
83. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
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84. Virginia Constitution article 1, § 15-A, Virginia Code Annotated § 20-45.2, and all other sources of state law that preclude marriage for same-sex couples or prevent recognition of their marriages violate the due process guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.
85. The right to marry the unique person of one’s choice and to direct the course of one’s life in this intimate realm without undue government restriction is one of the fundamental liberty interests protected by the Due Process Clause of the Fourteenth Amendment.
Defendants’ actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs’ choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.
86. The Due Process Clause also protects choices central to personal dignity and autonomy, including each individual’s rights to family integrity and association. Defendants’ actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs’ deeply intimate, personal, and private decisions regarding family life, and preclude them from obtaining full liberty, dignity, and security for themselves, their family, and their parent-child bonds.
87. As the Commonwealth’s chief executive officer, Defendant McDonnell’s duties and actions to enforce the Commonwealth’s marriage ban, including those taken pursuant to his responsibility for the policies of the executive branch relating to, for example, health insurance coverage, vital records, tax obligations, state employee benefits programs, and regulation of motor vehicles and health professions, violate Plaintiffs’ fundamental right to marry and constitutional rights to liberty, dignity, autonomy, family integrity, association, and due process under the Fourteenth Amendment to the United States Constitution.
88. As the State Registrar, Defendant Rainey’s duties and actions to ensure compliance with the Commonwealth’s discriminatory marriage ban by, for example, furnishing
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forms for marriage licenses that prohibit same-sex couples from marrying by requiring a “Bride”
and a “Groom,” and by requiring that birth certificates contain the name of a mother and her
“husband” for children resulting from assisted conception, violate the Plaintiffs’ fundamental
right to marry and constitutional rights to liberty, dignity, autonomy, family integrity,
association, and due process under the Fourteenth Amendment to the United States Constitution.
89. As Staunton Circuit Court Clerk, Defendant Roberts’ duties and actions to ensure
compliance with the Commonwealth’s discriminatory marriage ban by, for example, denying
same-sex couples marriage licenses, violate the fundamental right to marry and the rights,
protected under the Fourteenth Amendment to the United States Constitution, to liberty, dignity,
autonomy, family integrity, association, and due process of Joanne Harris and Jessica Duff, and
the unmarried members of the Plaintiff Class.
90. Defendants’ actions thus deny and abridge Plaintiffs’ fundamental right to marry,
and liberty and due process interests in autonomy, and family integrity and association, by penalizing Plaintiffs’ self-determination in the most intimate sphere of their lives.
91. Defendants cannot satisfy the Due Process Clause’s decree that governmental interference with a fundamental right or liberty interest may be sustained only upon a showing that the burden is narrowly tailored to serve a compelling or even important governmental interest, as the marriage ban is not even tailored to any legitimate interest at all.
SECOND CLAIM FOR RELIEF Deprivation of Equal Protection U.S. Const. Amend. XIV
92. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this complaint as though fully set forth herein.
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93. Plaintiffs state this cause of action against Defendants in their official capacities
for purposes of seeking declaratory and injunctive relief.
94. The Fourteenth Amendment to the United States Constitution, enforceable
pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
95. Virginia Constitution article 1, § 15-A, Virginia Code Annotated § 20-45.2, and all other sources of state law that preclude marriage for same-sex couples or prevent recognition of their marriages violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs. Moreover, by enshrining discrimination in the form of a constitutional amendment, Virginia Constitution article 1, § 15-A, deprives lesbian and gay
Virginians of equal protection of the laws by locking them out of the political process and making it uniquely more difficult to secure legislation on their behalf. The conduct of
Defendants in enforcing these laws violates the right of Plaintiffs to equal protection by discriminating impermissibly on the basis of sexual orientation and sex.
96. As the Commonwealth’s chief executive officer, Defendant McDonnell’s duties and actions to enforce the Commonwealth’s discriminatory marriage ban, including those taken pursuant to his responsibility for the policies of the executive branch relating to, for example, health insurance coverage, vital records, tax obligations, state employee benefits programs, and regulation of motor vehicles and health professions, violate Plaintiffs’ constitutional rights to equal treatment, without regard to sexual orientation or sex, under the Fourteenth Amendment to the United States Constitution.
97. As the State Registrar, Defendant Rainey’s duties and actions to ensure compliance with the Commonwealth’s discriminatory marriage ban by, for example, furnishing
32 forms for marriage licenses that prohibit same-sex couples from marrying by requiring a “Bride” and a “Groom,” and by requiring that birth certificates contain the name of a mother and her
“husband” for children resulting from assisted conception, violate the constitutional rights of
Plaintiffs to equal treatment.
98. As Staunton Circuit Court Clerk, Defendant Roberts’ duties and actions to ensure compliance with the Commonwealth’s discriminatory marriage ban by, for example, denying same-sex couples marriage licenses, violate the constitutional rights to equal treatment of Joanne
Harris and Jessica Duff, and the unmarried members of the Plaintiff Class.
99. The Commonwealth’s marriage ban, and Defendants’ actions to enforce it, denies same-sex couples equal dignity and respect, and deprives their families of a critical safety net of rights and responsibilities. The Commonwealth’s marriage ban brands lesbians and gay men and their children as second-class citizens through a message of government-imposed stigma and fosters private bias and discrimination, by instructing all persons with whom same-sex couples interact, including their own children, that their relationship is less worthy than others. The
Commonwealth’s marriage ban and Defendants’ actions reflect moral disapproval and antipathy toward lesbians and gay men.
100. Same-sex couples such as the plaintiff couples are identical to different-sex couples in all of the characteristics relevant to marriage.
101. Same-sex couples make the same commitment to one another as different-sex couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan their futures together, and hope to grow old together. Like different-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically
33
when faced with injury or illness, as for example Plaintiff Christy Berghoff did for her wife
Victoria Kidd when Victoria suffered a stroke last year.
102. Plaintiffs seek to marry for the same emotional, romantic, and dignitary reasons,
and to provide the same legal shelter to their families, as different-sex spouses.
103. Like some different-sex couples, some same-sex couples are parents raising
children together. All of the Named Plaintiffs are raising children jointly with their same-sex
partners.
104. Plaintiffs and their children are equally worthy of the tangible rights and
responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on
different-sex couples and their children. For the many children being raised by same-sex
couples, the tangible resources and societal esteem that access to marriage confers is no less
precious than for children of different-sex couples.
105. Discrimination Based on Sexual Orientation. The Commonwealth’s marriage ban targets lesbian and gay Virginians as a class for exclusion from marriage and discriminates against each Plaintiff based on his or her sexual orientation both facially and as applied.
106. The exclusion of Plaintiffs from marriage based on their sexual orientation subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot withstand because the exclusion does not even serve any legitimate governmental interests, let alone any important or compelling interests, nor does it serve any such interests in an adequately tailored manner.
107. Lesbians and gay men have suffered a long and painful history of discrimination in the Commonwealth and across the United States.
34
108. Sexual orientation bears no relation to an individual’s ability to perform in or
contribute to society.
109. Sexual orientation is a core, defining trait that is so fundamental to one’s identity
and conscience that a person may not legitimately be required to abandon it (even if that were
possible) as a condition of equal treatment.
110. Sexual orientation generally is fixed at an early age and highly resistant to change
through intervention. No credible evidence supports the notion that such interventions are either
effective or safe; indeed, they often are harmful and damaging. No mainstream mental health
professional organization approves interventions that attempt to change sexual orientation, and
virtually all of them have adopted policy statements cautioning professionals and the public
about these treatments.
111. Lesbians and gay men are a discrete and insular minority, and ongoing prejudice
against them continues seriously to curtail the operation of those political processes that might
ordinarily be relied upon to protect minorities. Gay people have fewer civil rights protections at
the state and federal level than racial minorities and women had when race- and sex-based classifications were declared to be suspect and quasi-suspect, respectively.
112. Lesbians and gay men lack express statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half the states, including the Commonwealth; are systematically underrepresented in federal, state, and local democratic bodies; have been stripped of the right to marry through 30 state constitutional amendments and are currently not permitted to marry in a total of 37 states; and have been targeted across the nation through the voter initiative process more than any other group.
35
113. Discrimination Based on Sex. The Commonwealth’s marriage ban discriminates
against Plaintiffs on the basis of sex, both facially and as applied, barring Plaintiffs from
marriage or from being recognized as validly married, solely because each of the Plaintiffs
wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of
the Commonwealth’s laws, which restrict marriage to “one man and one woman,” Va. Const. art.
1, § 15-A, and prohibit marriage or recognition of a marriage from another jurisdiction between
“persons of the same sex,” Va. Code Ann. § 20-45.2.
114. Because of these sex-based classifications, Joanne Harris is precluded from
marrying her devoted life partner because she is a woman and not a man; were Joanne a man, she
could marry Jessica Duff. Similarly, Christy Berghoff is precluded from having her marriage to
Victoria Kidd recognized as valid because she is a woman and not a man; were Christy a man, her validly-entered marriage to Victoria would be recognized as such under Virginia law.
115. The Commonwealth’s marriage ban also serves the impermissible purpose of
enforcing and perpetuating sex stereotypes by excluding Plaintiffs from marriage, or from being
recognized as validly married, because Plaintiffs have failed to conform to sex-based stereotypes that men should marry women, and women should marry men.
116. Given that there are no longer legal distinctions between the duties of husbands and wives, there is no basis for the sex-based eligibility requirements for marriage.
117. The exclusion of Plaintiffs from marriage based on their sex and the enforcement of gender-based stereotypes cannot survive the heightened scrutiny required for sex-based discrimination.
118. Discrimination With Respect to Fundamental Rights and Liberty Interests
Secured by the Due Process Clause. The marriage ban discriminates against Plaintiffs based on
36
sexual orientation and sex with respect to the exercise of the fundamental right to marry, and
their liberty interests in dignity, autonomy, and family integrity and association. Differential
treatment with respect to Plaintiffs’ exercise of fundamental rights and liberty interests, based on their sexual orientation and sex, subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct cannot withstand.
DECLARATORY AND INJUNCTIVE RELIEF
28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65
119. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of this complaint as though fully set forth herein.
120. This case presents an actual controversy because Defendants’ present and ongoing denial of equal treatment to Plaintiffs subjects them to serious and immediate harms, warranting the issuance of a declaratory judgment.
121. Named Plaintiffs seek injunctive relief on behalf of themselves and the Plaintiff
Class to protect their constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs
identified herein, for which Plaintiffs have no adequate remedy at law or in equity.
122. The Commonwealth will incur little to no burden in allowing same-sex couples to marry and in recognizing the valid marriages of same-sex couples from other jurisdictions on the same terms as different-sex couples, whereas the hardship for Plaintiffs of being denied equal
treatment is severe, subjecting them to an irreparable denial of their constitutional rights. The
balance of hardships thus tips strongly in favor of Plaintiffs.
VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:
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A. Declaring that the suit is maintainable as a class action pursuant to Federal Rules
of Civil Procedure 23(a) and 23(b)(1) and (2);
B. Declaring that the provisions of and enforcement by Defendants of article 1,
section 15-A of the Commonwealth’s Constitution, Virginia Code Annotated § 20-45.2, and any
other sources of state law that (1) exclude same-sex couples from marrying, or (2) refuse
recognition to the marriages of the Named Plaintiffs and members of the Plaintiff Class who
validly married a same-sex spouse in another jurisdiction, violate Plaintiffs’ rights under the Due
Process and Equal Protection Clauses of the Fourteenth Amendment to the United States
Constitution;
C. Permanently enjoining enforcement by Defendants of article 1, section 15-A of the Commonwealth’s Constitution, Virginia Code Annotated § 20-45.2, and any other sources of state law to exclude same-sex couples from marriage or to refuse recognition to the marriages of same-sex couples validly married in another jurisdiction;
D. Requiring Defendants in their official capacities to permit issuance of marriage licenses to same-sex couples to marry, pursuant to the same restrictions and limitations applicable to different-sex couples’ freedom to marry, and to recognize marriages validly entered into by Plaintiffs;
E. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
F. Granting such other and further relief as the Court deems just and proper.
G. The declaratory and injunctive relief requested in this action is sought against each Defendant; against each Defendant’s officers, employees, and agents; and against all
38
persons acting in active concert or participation with any Defendant, or under any Defendant’s
supervision, direction, or control.
DATED: August 1, 2013
Respectfully submitted,
AMERICAN CIVIL LIBERTIES UNION AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. FOUNDATION
/s/ . James D. Esseks* Rebecca K. Glenberg (VSB No. 44099) Amanda C. Goad* 701 E. Franklin Street, Suite 1412 Joshua A. Block* Richmond, Virginia 23219 125 Broad Street, 18th Floor Phone: (804) 644-8080 New York, New York 10004 Fax: (804) 649-2733 Phone: (212) 549-2500 [email protected] Fax: (212) 549-2650 [email protected] [email protected] [email protected]
LAMBDA LEGAL DEFENSE AND EDUCATION JENNER & BLOCK LLP FUND, INC. Paul M. Smith* Gregory R. Nevins* Luke C. Platzer* 730 Peachtree Street, NE, Suite 1070 Mark P. Gaber* Atlanta, Georgia 30308 1099 New York Avenue, NW Suite 900 Phone: (404) 897-1880 Washington, D.C. 20001-4412 Fax: (404) 897-1884 Phone: (202) 639-6000 [email protected] Fax: (202) 639-6066 [email protected] Tara L. Borelli* [email protected] 3325 Wilshire Boulevard, Suite 1300 [email protected] Los Angeles, California 90010 Phone: (213) 382-7600 Fax: (213) 351-6050 [email protected]
* Pro hac vice applications pending
Counsel for Plaintiffs
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The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
THE SUPREME COURT RULING ON Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal THE DEFENSE OF MARRIAGE ACT: government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights. WHAT IT MEANS • Federal agencies—large bureaucracies—may need and take some The Supreme Court’s historic ruling striking down Section 3 of the discriminatory time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal- Defense of Marriage Act (DOMA) is an enormous victory for loving, married couples and based system. their families, and affirms that they deserve equal treatment under the law. This victory • Until same-sex couples can marry in every state in the nation, there demonstrates the importance of access to marriage, and gives married same-sex couples will be uncertainty about the extent to which same-sex spouses will access to the tangible benefits of the federal safety net, allowing them to better protect one receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that another and their children. does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving Edie Windsor demonstrated tremendous courage in standing up and speaking out for her spouses in accessing federal protections and responsibilities. 44-year relationship and marriage when she was treated unjustly, and her actions have • Securing fair access to federal protections that come with marriage directly improved the lives of all same-sex couples. for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal Ending DOMA lifts up all LGBT people, even if it does not end our work. DOMA was an rule-making by agencies. official federal policy disapproving of gay people and same-sex relationships, often imitated • Before making a decision, it is essential that you consult an attorney by states and private actors, and imposed a second-class status on our lawful marriages by for individualized legal advice. This is particularly important for negating them for all federal purposes. The Court has now affirmed that equal protection people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure guarantees apply to the relationships of LGBT people and has replaced federal disrespect of protections other married couples enjoy. In addition, couples with federal respect for our lawful marriages. This victory will energize our work moving who travel to another place to marry and then return to live in a forward so that we can achieve a reality in which every single same-sex couple enjoys full state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and and equal protections under the law, regardless of where they live. financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice. For legally married couples living outside of a marriage state or the District of Columbia, • We are committed to winning universal access to federal marital there are still many questions about when they will be equally able to share in federal protections for married same-sex couples through ongoing public protections, responsibilities, and programs. This is because the federal government policy advocacy, and, where necessary, strategic litigation. Contact typically defers to the states in determining whether a couple’s marriage is valid. There is our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who no one rule across all federal agencies. Some agencies look to the law of the state where a are LGBT. couple married regardless of the law of the state where the couple now lives, while others look This Guidance is intended to provide general information regarding to the law of the state where the couple is living now. major areas of federal marriage-based rights and protections based on how the various federal agencies have administered federal benefits. It We think the federal government can and should take action, where necessary, to ensure should not be construed as legal advice or a legal opinion on any that married couples in all states have access to the largest number of federal programs. specific facts or circumstances, and does not create an attorney-client relationship. Past practice is no guarantee of future developments. The federal government is already looking at how federal agencies can ensure fair and equal While laws and legal procedure are subject to frequent change and treatment of all married couples where possible. However, at this time, there are a number differing interpretations in the ordinary course, this is even more true of important federal benefits that depend on whether your marriage is recognized where now as the federal government dismantles DOMA and extends federal protections to same-sex couples. None of the organizations publishing you live, so couples who live in states with bans on marriage by same-sex couples should this information can ensure the information is current or be responsible proceed with caution before making the decision to marry. for any use to which it is put. CAUTION: If you live in a state that discriminates against married same-sex couples, you No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal should be aware that the Supreme Court decision striking down part of the federal so-called Revenue Code. Defense of Marriage Act does NOT mean that your state must respect your marriage or that Contact a qualified attorney in your state for legal advice about your you will be eligible for all marriage-based federal benefits. Further work is still required particular situation. to end marriage discrimination nationwide and to secure both state and federal equal treatment for all marriages.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU THE SUPREME COURT RULING ON THE DEFENSE OF MARRIAGE ACT: WHAT IT MEANS 2
Depending on your individual circumstances, the current patchwork of process of proposing new rules and soliciting public comments, or laws. discriminatory laws may be financially detrimental to you or your partner Because the Supreme Court’s decision does not require states to recognize and may create financial and legal complications for you and your family. the marriage of same-sex couples and does not guarantee that married Before making a decision, it is essential that you consult an attorney for couples who live in states with marriage bans will receive all of the federal individualized legal advice. This is particularly important for people benefits based on marriage, couples who live in these states should proceed who have or are applying for government benefits. Getting married may with caution before deciding to marry. Depending on your individual jeopardize your eligibility for certain public benefits without providing you circumstances, getting married may be financially or legally detrimental, the full measure of protections other married couples enjoy. In addition, if especially if you are receiving certain government benefits. Couples should you travel to another place to marry and then return to live in a state that seek out individualized legal advice from a knowledgeable attorney before does not respect your marriage, you may be unfairly unable to obtain a traveling to another place to marry. divorce, which can lead to serious negative legal and financial consequences. Same-sex couples will continue to endure a mix of respect, discrimination, and uncertainty until we have secured the freedom to marry and full respect Will legally married same-sex couples receive retroactive nationwide. People must make careful decisions when and where to marry, access to benefits they were previously denied? even as we work together to end this injustice. It depends on a number of circumstances. As a general matter, if a person The following questions lay out what we know so far. is not prohibited by a deadline in the law from seeking benefits, he or she may file an application and seek certain back benefits. However, many benefits start to accrue only with an application, so the date of application What does this mean for legally married same-sex couples will be the starting point. For claims reaching into the past, as with claims living in a state that respects their marriage? for overpaid taxes, there are specific time limits on when refund claims may Same-sex couples who are legally married and live in a state that respects their be brought forward. The “After DOMA: What it Means For You” LGBT marriage should be eligible virtually right away for the same protections, Organization Fact Sheet Series addresses many of these questions. responsibilities, and access to federal programs afforded to all other married There are many financial benefits that married same-sex couples have missed couples. The federal government may take some additional time to change out on because the federal government did not respect their marriage. But forms, train staff, and otherwise prepare for this change. We expect further it is likely that the federal government will, in most instances, adopt a guidance from the federal government and will update this Q&A and the forward-looking approach, ensuring that married same-sex couples are “After DOMA: What it Means For You” LGBT Organization Fact Sheet respected as married from the day the Court’s ruling takes effect. Series accordingly. There are more than 1,100 places in federal law where a protection or Is all of DOMA now completely repealed? responsibility is based on marital status. A few key examples include access to Social Security survivors’ benefits; the option to use family medical leave No. TheWindsor case challenged the constitutionality of Section 3 to care for a spouse; the opportunity to sponsor a foreign-born spouse for of DOMA, the part that discriminatorily excluded married same-sex citizenship; and access to veterans’ spousal benefits. couples from federal protections, responsibilities, and programs. Section 2 of DOMA, which says that states may discriminate against gay couples legally married in other states, still stands. Legislative action will be What about legally married same-sex couples living in a state needed to remove it, although getting rid of Section 2 will not eliminate that does not respect their marriages? discriminatory state marriage laws. Legally married same-sex couples living in a state that does not respect their The Respect for Marriage Act, a bill pending in Congress that enjoys marriages may right away have access to some federal rights and benefits, bipartisan support and the backing of President Obama, would fully repeal but not to many others, at least not immediately. Federal agencies have all of DOMA. It would also ensure that all married couples — including different approaches regarding which state’s laws they look to in order to same-sex couples — enjoy equal rights under federal law. It would not tell determine if a marriage is valid for federal purposes. Some, including the states what to do, but would ensure that the federal government treats all IRS and Social Security, have looked to the laws of the state where a couple marriages with respect. lives (place of domicile/residence). Others, including immigration agencies, look to where a couple got married (place of celebration). Other federal agencies and programs look to the state “with the most significant interest” What are the movement’s next steps on DOMA? in the marriage, and many have no explicit rule at all. The undersigned LGBT organizations are working with others in the Some federal programs, including immigration, already use a “place of Respect for Marriage Coalition to ensure that the greatest number of celebration” standard. This standard best provides certainty, clarity, and federal protections, responsibilities, and programs are available to married stability for couples, their loved ones, employers, government agencies, and couples as soon as possible. In some cases, this may require policy and others, especially in a society where people regularly move for jobs, family, regulatory changes within the agencies, some of which could take time. and many other purposes. Such a standard would simply acknowledge that Further legislative action may also be needed, particularly to get rid of the a couple is married for federal purposes regardless of where the couple lives; rest of DOMA. To that end, we will continue to advocate for the Respect it wouldn’t tell a state how it must treat married same-sex couples. for Marriage Act in Congress. For many programs, the administration can take steps to adopt the standard We are committed to working until every single legally married same-sex fairest to all married couples: the “place of celebration” standard. Some couple receives the same protections, responsibilities, and programs as all agencies can use this time-honored legal standard just by changing their other married couples – regardless of where they live – and to securing the practices. Others may have to change regulations, requiring a more lengthy freedom to marry nationwide.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU THE SUPREME COURT RULING ON THE DEFENSE OF MARRIAGE ACT: WHAT IT MEANS 3
Implementation of federal rights, benefits, and protections will vary from state to state and on an individual basis. We encourage you to consult a legal or tax professional to determine the best next steps you can take. This document is intended to provide an educational overview, not to serve as legal advice or a guide for making personal financial decisions
FOR MORE INFORMATION, CONTACT AMERICAN CIVIL LIBERTIES UNION aclu.org/lgbt
CENTER FOR AMERICAN PROGRESS americanprogress.org
FAMILY EQUALITY COUNCIL familyequality.org
FREEDOM TO MARRY freedomtomarry.org
GAY & LESBIAN ADVOCATES & DEFENDERS glad.org
HUMAN RIGHTS CAMPAIGN hrc.org
IMMIGRATION EQUALITY immigrationequality.org
LAMBDA LEGAL lambdalegal.org
NATIONAL CENTER FOR LESBIAN RIGHTS nclrights.org
NATIONAL GAY AND LESBIAN TASKFORCE thetaskforce.org
OUTSERVE-SLDN outserve-sldn.org
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
PRIVATE EMPLOYMENT ISSUES Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal AND BENEFITS government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights. Although discrimination against married same-sex couples under the Defense of Marriage Act (DOMA) did not bar private employers from offering most spousal employment • Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, benefits to employees’ same-sex spouses, it subjected same-sex couples to discriminatory tax and efficiently incorporate same-sex couples into the spousal- treatment and other forms of unequal treatment. For example, married same-sex couples based system. had to pay additional income taxes on the value of employer-sponsored health insurance • Until same-sex couples can marry in every state in the nation, there that married different-sex couples did not need to pay, and married same-sex couples who will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal divorced were barred by federal law from obtaining a court order sharing pension benefits programs that assess marital status based on the law of a state that as part of a divorce agreement. does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving Now that DOMA has been struck down, we urge married same-sex couples with employer- spouses in accessing federal protections and responsibilities. sponsored retirement benefits to immediately review your beneficiary designations and • Securing fair access to federal protections that come with marriage form of benefit elections to ensure that your designations and elections are accurate and for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal complete, and that they reflect your wishes. Your rights may have changed, and waiting rule-making by agencies. may hurt you and your family. • Before making a decision, it is essential that you consult an attorney This Guidance addresses some of the marriage-related issues regarding employer-sponsored for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may retirement plans and health insurance benefits that are regulated by federal law. jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples For more information about federal regulation of employee benefits, see: who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable www.dol.gov/ebsa/faqs/faq_compliance_pension.html to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when www.aging.senate.gov/crs/pension7.pdf and where to marry, even as we work together to end this injustice. • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public What rights does federal law provide to married employees with respect policy advocacy, and, where necessary, strategic litigation. Contact to employer-sponsored health insurance benefits? our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who If your spouse is covered under your employer’s health plan and you are considered validly- are LGBT. married by the federal government, you and your spouse should be eligible for the following This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on additional federal protections: how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any • The value of your spouse’s health insurance will not be treated as taxable income to you specific facts or circumstances, and does not create an attorney-client (the employee) or to your spouse. relationship. Past practice is no guarantee of future developments. While laws and legal procedure are subject to frequent change and • Your spouse and children have the right to remain in your health plan if you lose your differing interpretations in the ordinary course, this is even more true job or your hours are reduced, or if you divorce or separate. This is known as “COBRA now as the federal government dismantles DOMA and extends federal protections to same-sex couples. None of the organizations publishing coverage” or “COBRA continuation coverage.” While your employer has to allow you this information can ensure the information is current or be responsible and your children and spouse to remain insured, you can be required to pay the full cost for any use to which it is put. of those benefits. (Nothing prevents a plan from providing continuation coverage to No tax advice is intended, and nothing therein should be used, and domestic partners, but such coverage is not required by federal law.) cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. • While most health plans only let you enroll at specific times, marriage or divorce are Contact a qualified attorney in your state for legal advice about your “qualifying events” that will let you enroll or un-enroll outside those specific time periods. particular situation. In addition to these protections, you and your spouse may have other rights under state law.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU PRIVATE EMPLOYMENT ISSUES AND BENEFITS 2
What rights does federal law provide to married employees federal, state, or local government employers, or to churches or religious with respect to private retirement benefits? associations or conventions of churches (although some religious employers choose to be governed by these federal laws). Health plans maintained If you are considered validly married by the federal government and eligible by private-sector employers with 20 or more employees, employee for a pension or other employer-sponsored retirement plan, federal law has organizations, or state or local governments are covered by COBRA. specific requirements that your plan must follow in order to maintain tax- qualified status: • The default form of benefit for a defined benefit pension plan (i.e., Does my employer have to change its pension plan before a traditional pension that guarantees a specific monthly payment my spouse will be entitled to these protections, or will my at retirement) must be a joint and survivor spousal annuity (QJSA). spouse automatically be eligible? This means that a portion of your pension will continue to be paid to It depends on what your plan documents say, and may depend on which your spouse if you die before your spouse does, although you and your kind of benefit is at issue. If your plan, like most, simply refers to “spouses,” spouse together can decide to waive this right and name someone else your employer doesn’t necessarily need to change anything in order to as the beneficiary. include spouses of the same sex. If your plan states that “spouse” means • If you die before reaching retirement age, your spouse is entitled to a pre- only different-sex couples, or is determined by reference to the law of a retirement survivor annuity (QPSA) from a defined benefit pension plan. state that does not respect your marriage, your plan documents likely need • Your spouse has to give written consent if you want to name anyone else to be revised to comply with federal law. But, you and your spouse should as your beneficiary for your retirement plan. be entitled to protections in the meantime even if your plan doesn’t change its language. Talk with someone in your human resources department. If • Being married entitles your spouse to more options in taking you still have questions, contact one of the organizations listed below, or a distributions (regarding the timing of payments, and the amount you lawyer who specializes in employee benefits. can receive) from your retirement plan, and to preferential tax treatment of those distributions. • Your plan may also allow you to take money out of a retirement account What should I do if I am told that my plan won’t cover without tax penalty to pay expenses like medical costs, tuition, or my spouse? funeral expenses for your spouse. If your employer or your retirement or health plan tells you that your spouse • Finally, if you get divorced, the courts can ensure that your ex-spouse will not be treated as different-sex spouses are, it may be important to act receives a portion of your retirement plan assets as part of the divorce quickly to preserve your rights. Sometimes the issue can be cleared up agreement. This is called a Qualified Domestic Relations Order, or QDRO. with a conversation, but you must follow the specific time limits to appeal determinations made by your plan. Contact one of the organizations listed below, or a lawyer who specializes in employee benefits. Which marriages will be considered valid by the federal government for benefits purposes? If my employer decides to start allowing spouses of the same • If you live in a state that respects your marriage: The federal sex to enroll in the health plan, when can I enroll my spouse? government will consider your marriage valid, and you have a right Will I need to wait until open enrollment? to all the protections that are required to be offered to spouses under federal law. It depends. Generally, “marriage” is a qualifying event for adding a spouse to the health plan. Even if you may have already been married for several • If you live in a state that doesn’t respect your marriage: Because some years before DOMA was struck down, you should ask your employer if this of these programs are regulated by the Internal Revenue Service and the change in federal law is a qualifying event. It’s also possible that some plans Department of Labor, it may take some time to obtain guidance from will wait until the next open enrollment season in advance of a new plan the relevant agencies as to which marriages will be treated as valid by year to allow employees to make changes to their benefits to add spouses the federal government. There may be some initial uncertainty for a who had been unable to obtain coverage previously. period of time because the IRS ordinarily follows the law of the state of domicile (primary residence) in determining whether to recognize a marriage. However, there is no statute or regulation compelling this What if I got divorced while DOMA was still in effect, and approach, and the IRS has recognized “common law” marriages for tax I was unable to get an order sharing my retirement savings purposes as long as they were valid in the state where they were entered with my ex-spouse as part of my divorce? into. In our mobile society, it would make more sense for the federal government to recognize all marriages that were valid where entered. Federal law has strong protections for your retirement savings, and If you encounter problems or have questions, contact one of the legal generally prevents your plan from paying benefits to anyone but you or organizations listed below. your beneficiary. One exception allows you to share those savings with your ex-spouse as part of a divorce agreement. This is called a Qualified Domestic Relations Order, or QDRO. If you were unable to obtain a Which employers are subject to the federal laws that regulate QDRO when you divorced and now want to seek one, consult a qualified pensions and other employment benefits? attorney about whether it is possible to re-open the divorce proceeding. These federal laws generally apply to employers that offer retirement and health benefits, sometimes referred to as “ERISA plans.” Some of these requirements, particularly the retirement plan obligations, do not apply to
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU PRIVATE EMPLOYMENT ISSUES AND BENEFITS 3
What if my spouse retired or died while DOMA was in effect, and I was told I was not entitled to a spousal survivor annuity? It’s possible, though not certain, that you still might be able to receive a survivor annuity (QJSA or QPSA). If you did, you would continue to receive payments, but you also might have to pay back some of the money your spouse has already received from the plan, since taking a QJSA ordinarily means that the employee receives a lower payment at retirement, so that his or her spouse can continue to receive some of the benefit if the employee dies before the spouse. We recommend that you talk with an employee benefits lawyer to find out whether it would make sense to apply for a spousal annuity in your individual circumstances.
FOR MORE INFORMATION, CONTACT AMERICAN CIVIL LIBERTIES UNION aclu.org/lgbt
NATIONAL CENTER FOR LESBIAN RIGHTS nclrights.org
GAY & LESBIAN ADVOCATES & DEFENDERS glad.org
LAMBDA LEGAL lambdalegal.org
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
BENEFITS AND PROTECTIONS FOR Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal CIVILIAN FEDERAL EMPLOYEES government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights. AND THEIR SPOUSES • Federal agencies—large bureaucracies—may need and take some (UPDATED JULY 2, 2013) time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal- based system. • Until same-sex couples can marry in every state in the nation, there Current and former civilian employees of the federal government may be eligible for an array will be uncertainty about the extent to which same-sex spouses will of protections and benefits for their spouses. The following offers general information about receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that major categories of such protections and benefits. Current and former federal employees does not respect marriages of same-sex couples, those state laws and their spouses and surviving spouses should obtain more specific information about their will likely pose obstacles for legally married couples and surviving particular circumstances and rights. The federal Office of Personnel Management (“OPM”) spouses in accessing federal protections and responsibilities. administers benefit programs for current and former federal civilian employees. OPM’s • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. website provides extensive information on these programs and contact information for In some situations, it may require Congressional action or formal making further inquiries. See www.opm.gov. rule-making by agencies. In addition, on June 28, 2013, following the Supreme Court’s June 26, 2013 ruling in • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for United States v. Windsor, OPM issued a Memorandum for Heads of Executive Departments people who are on certain public benefits, as getting married may and Agencies, titled “Guidance on the Extension of Benefits to Married Gay and Lesbian jeopardize your eligibility without providing you the full measure Federal Employees, Annuitants, and Their Families.” This Memorandum, available at of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=5700, contains state that does not respect their marriage may be unfairly unable initial information about OPM’s extension of benefits to federal employees and annuitants to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when who have legally married a spouse of the same sex. It includes important information and where to marry, even as we work together to end this injustice. about timing to apply for certain benefits. Consult the June 28, 2013 Memorandum for • We are committed to winning universal access to federal marital additional information, and continue to check OPM’s website for updates. protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact There may be initial uncertainty about how OPM will process some types of applications for our organizations if you have questions, for updates and to learn benefits and protections for employees’ spouses. There may also be uncertainty about how the more about what you can do to achieve full equality for those who are LGBT. federal government will treat marriages for particular purposes if the state where the employee works and/or lives does not respect the employee’s marriage. Federal employees and their This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on spouses with questions about these issues may contact OPM and their agency’s Chief Human how the various federal agencies have administered federal benefits. It Capital Officer. Our organizations will endeavor to provide any updates as we acquire more should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client information. Please contact the legal organizations listed below if you encounter problems relationship. Past practice is no guarantee of future developments. or have additional questions. While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal protections to same-sex couples. None of the organizations publishing HEALTH BENEFITS FOR SPOUSES UNDER THE FEDERAL EMPLOYEE this information can ensure the information is current or be responsible HEALTH BENEFITS PROGRAM (FEHB) for any use to which it is put. Spouses of federal employees may be eligible for employer-provided health insurance No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal coverage. The types of health plans, premium levels, and application requirements may Revenue Code. vary depending on the federal agency and the state where the employee works or lives. See Contact a qualified attorney in your state for legal advice about your www.opm.gov/healthcare-insurance/healthcare/plan-information/. Employees should check particular situation. with OPM and/or their agency human resources staff for more information.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU BENEFITS AND PROTECTIONS FOR CIVILIAN FEDERAL EMPLOYEES AND THEIR SPOUSES 2
Q. If a federal employee gets married, can the employee add Q. If a federal employee divorces, can the employee’s spouse the new spouse to the employee’s health insurance plan? remain on the employee’s FEHB plan? A. Generally, a federal employee’s marriage is considered a “qualifying life A. Divorce, annulment or legal separation are QLEs, when an employee event” (QLE), when an employee may change his or her insurance coverage by can make changes to the employee’s plan outside of the Open Season. See adding the new spouse to the employee’s policy. The employee must submit www.opm.gov/healthcare-insurance/healthcare/plan-information/changes- the enrollment change between 31 days before to 60 days after the QLE, i.e., you-can-make-outside-of-open-season/. the marriage. For more information on adding a spouse as a QLE, go to: www. A federal employee’s spouse loses eligibility for coverage under the opm.gov/healthcare-insurance/life-events/. employee’s Self and Family Plan when a divorce decree ending the marriage becomes final. However, the spouse may be entitled either to temporary Q. Can a federal employee who is already married add his or continuation of coverage or to convert to an individual policy with the her spouse to the employee’s health insurance plan now that employee’s insurance carrier. After divorce, a former spouse of an employee DOMA has been struck down?? may under certain circumstances be eligible for coverage under “spouse equity” provisions A. OPM’s June 28, 2013 Memorandum, excerpted here, provides answers to this question: See www.opm.gov/healthcare-insurance/healthcare/reference-materials/ reference/former-spouses/. Employees and annuitants will have 60 days from June 26, 2013 [the date of the Supreme Court’s Windsor opinion] until August 26, 2013, to make immediate changes to their FEHB enrollment. Enrollees will Q. If the employee lives in a state that does not recognize the continue to be eligible to make changes to their coverage options during marriages of same-sex couples, is the employee still entitled Open Season later this year. For those employees and annuitants who to FEHB coverage for a same-sex spouse? already have a Self and Family insurance plan, coverage for their same- A. We believe that the federal employee should be entitled to have his sex spouse will begin immediately upon their notifying their FEHB or her validly-entered marriage respected by the federal government for carrier that there is a newly eligible family member. For those employees purposes of FEHB spousal coverage, even if the employee lives in a state and annuitants electing Self and Family for the first time, benefits will that does not respect the employee’s marriage. There is no statute or be effective on the first day of the first pay period after the enrollment regulation prohibiting FEHB coverage for such spouses. However, there request is received. While online enrollment systems are updated, if may may be some initial uncertainty about how the federal government will be necessary for employees and annuitants to update their elections using process applications for spousal coverage from employees living in states the paper (rather than electronic) version of the SF2809 form. [SF2809 that do not respect the employees’ marriages. If an employee or spouse form is available at: www.chcoc.gov/transmittals/TransmittalDetails. encounters problems or questions, they should contact a legal organization aspx?TransmittalID=5700.] listed below. The federal government also has a regular annual FEHB “Open Season” period when an employee may make changes to the employee’s enrollment status, including the addition of a spouse to the employee’s coverage. In 2012, the BENEFITS FOR SPOUSES UNDER THE FEDERAL EMPLOYEE FEHB Open Season ran from November 12 – December 10, 2012, during DENTAL AND VISION INSURANCE PROGRAM (FEDVIP) which period changes could be made for the 2013 plan year. OPM generally Dental and vision benefits are available to eligible federal employees and posts information about an upcoming Open Season in October. See www.opm. their eligible family members, including spouses, on an enrollee-pay-all gov/healthcare-insurance/healthcare/plan-information/enroll/#Employees. basis. For general information, see www.opm.gov/healthcare-insurance/ In addition, under certain circumstances, loss of pre-existing health insurance dental-vision/. coverage by an employee’s spouse is a QLE, allowing the employee to add the spouse to the employee’s FEHB plan outside of Open Season. See www. Q. Can a federal employee obtain FEDVIP dental and vision opm.gov/healthcare-insurance/healthcare/plan-information/changes-you-can- insurance for the employee’s spouse? make-outside-of-open-season/. A. Yes. A marriage is a qualifying life event (QLE), allowing a federal employee to add the spouse to dental and vision coverage by submitting the Q. Can the spouse of a federal employee who retires continue enrollment change between 31 days before and 60 days after the marriage. health insurance coverage on the employee’s FEHB plan? See www.benefeds.com/BenefedHelp/FEDVIP/qualifying_life_events. A. A spouse of an employee is eligible to continue health benefits coverage htm. A federal employee can also add the spouse to FEDVIP during the upon the federal employee’s retirement if: annual Federal Benefits Open Season. • the employee is entitled to retire on an immediate annuity under a According to OPM’s June 28, 2013 Memorandum, OPM is also allowing retirement system for civilian employees, and current FEDVIP enrollees to make enrollment changes during a 60-day • the non-employee spouse has been covered as a family member in any period from June 26, 2013 until August 26, 2013. Current FEDVIP FEHB plan for the 5 years of the federal employee’s service immediately enrollees can call BENEFEDS (877-888-FEDS (3337)) directly to before the date the annuity starts, or for the full period of service since the make the necessary enrollment changes. Current enrollees will also spouse’s first opportunity to enroll (if less than 5 years). be able to make changes to their coverage options during Open Season later in the year, and individuals wishing to enroll in FEDVIP for the See www.opm.gov/healthcare-insurance/healthcare/reference-materials/ first time may also do so at that point as well. reference/annuitants-and-compensationers/.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU BENEFITS AND PROTECTIONS FOR CIVILIAN FEDERAL EMPLOYEES AND THEIR SPOUSES 3
Q. If a federal employee divorces, can the former spouse retain FEDERAL EMPLOYEES’ GROUP LIFE INSURANCE FEDVIP dental and vision coverage? PROGRAM (FEGLI) A. No. Unlike for FEHB health insurance coverage, former spouses of The FEGLI program offers some group life insurance protections for the federal employees are ineligible for continued FEDVIP coverage. See www. spouse of a federal employee. opm.gov/healthcare-insurance/dental-vision/eligibility/. Q. How does a spouse of a federal employee become a beneficiary of the employee’s FEGLI policy? Q. Can the spouse of a federal employee who retires continue dental and vision insurance coverage on the employee’s A. Eligible federal employees are automatically enrolled in “Basic” FEDVIP plan? insurance, providing an insurance benefit to a beneficiary upon the death of the employee. Federal employees may also opt to purchase additional A. Yes. insurance to benefit a beneficiary upon the employee’s death. A federal employee may designate a person of the employee’s choice to be the beneficiary of these FEGLI policies. This person could be the employee’s Q. If the employee lives in a state that does not recognize the spouse or unmarried domestic partner. If the federal employee has marriages of same-sex couples, is the employee still entitled to not designated anyone as beneficiary, the employee’s surviving spouse FEDVIP coverage for a same-sex spouse? automatically takes priority as beneficiary. An employee can update and A. We believe that the federal employee should be entitled to have his or her change a beneficiary designation. See www.opm.gov/healthcare-insurance/ . validly-entered marriage respected by the federal government for purposes of life-insurance/reference-materials/handbook.pdf#page=39 FEDVIP spousal coverage, even if the employee lives in a state that does not respect the employee’s marriage. There is no statute or regulation prohibiting Q. Can a federal employee purchase FEGLI group life FEDVIP coverage for such spouses. However, there may be some initial insurance to insure the employee’s spouse? uncertainty about how the federal government will process applications for spousal coverage from employees living in states that do not respect the A. Eligible federal employees can purchase an “Option C” FEGLI policy employees’ marriages. If an employee encounters problems or questions, to insure the life of the employee’s spouse. Upon the death of the spouse, they should contact a legal organization listed below. insurance proceeds will be paid to the employee. An employee may elect Option C coverage on a spouse by submitting an election for the coverage within 60 days of the marriage, which is considered a qualifying life event, FEDERAL LONG TERM CARE INSURANCE PROGRAM (FLTCIP) or during an Open Season. www.opm.gov/healthcare-insurance/life- insurance/reference-materials/handbook.pdf#page=39. The Federal Long Term Care Insurance Program (FLTCIP) provides long term care insurance to help pay for costs of care when enrollees need help According to OPM’s June 28, 2013 Memorandum, employees will have with activities they perform every day, or if they have a severe cognitive 60 days from June 26, 2013, until August 26, 2013, to make changes impairment, such as Alzheimer’s disease. Federal employees and annuitants to their FEGLI enrollment to add newly eligible same-sex spouses and and their qualified relatives are eligible to apply for insurance coverage children under Option C. under the FLTCIP. Spouses, as well as domestic partners, are qualified It is important to note that FEGLI Open Seasons do not occur on an relatives who can apply for the long term insurance coverage. See www. annual basis and are held only when specifically scheduled by OPM, so opm.gov/healthcare-insurance/long-term-care/. employees may not have another opportunity in the near future to make these changes. Q. Now that DOMA has been struck down, when can my spouse apply for long-term care insurance under FLTCIP? Q. If the employee lives in a state that does not recognize A. According to OPM’s June 28, 2013 Memorandum, same-sex spouses of the marriages of same-sex couples, can a federal employee’s federal employees have 60 days from June 26, 2013, to apply for FLTCIP same-sex spouse qualify as a spouse for FEGLI purposes? coverage, with abbreviated underwriting. A. We believe that the spouse would be eligible to apply for the coverage if the spouse lives in a state that does not respect the couple’s marriage. There Q. If the employee lives in a state that does not recognize is no statute or regulation dictating a different approach. However, there the marriages of same-sex couples, can a federal employee’s may be some initial uncertainty about whether the federal government will same-sex spouse apply for long term insurance coverage? recognize for FEGLI purposes the marriages of employees living in states that do not respect the employees’ marriages. A. We believe that the federal employee should be entitled to have his or her For extra protection, federal employees who want their same-sex spouses to validly-entered marriage respected by the federal government for purposes be the beneficiaries of the employees’ FEGLI policies can formally designate of FLTCIP spousal coverage, even if the employee lives in a state that does their spouses as their beneficiaries and not rely only on the default rule not respect the employee’s marriage. There is no statute or regulation making a surviving spouse the beneficiary when no express designation has prohibiting FLTCIP coverage for such spouses. In addition, already the been made. That way, it should not matter whether there could have been domestic partner of an employee may apply for FLTCIP coverage. If an any question whether OPM would recognize the marriage depending on employee or spouse encounters problems or questions, they should contact the law of the particular state where the couple has lived. The spouse will a legal organization listed below.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU BENEFITS AND PROTECTIONS FOR CIVILIAN FEDERAL EMPLOYEES AND THEIR SPOUSES 4 have been expressly designated as the beneficiary of the employee’s FEGLI member’s funeral. “Family member” includes a spouse, and, under a 2010 policies and protected as a beneficiary. federal regulation, an unmarried domestic partner as well. The sick leave If an employee or spouse encounters problems or questions, they should may be used to: contact a legal organization listed below. • provide care for a family member, including a spouse or domestic partner, who is incapacitated as a result of physical or mental illness, injury, pregnancy, or childbirth; FEDERAL FAMILY AND MEDICAL LEAVE ACT (FMLA) BENEFITS AND OTHER FAMILY-RELATED LEAVE • attend to a family member receiving medical, dental, or optical examination or treatment; Federal employees are entitled to take leave under certain circumstances to care for a spouse or to arrange and attend a spouse’s funeral. • provide care under certain circumstances for a family member who has been exposed to a communicable disease; or Q. Can a federal employee take FMLA leave to care for a spouse? • make arrangements necessitated by the family member’s death or attend the family member’s funeral. A. Yes. Under the Family and Medical Leave Act of 1993 (FMLA), federal employees are entitled to a total of up to 12 work weeks of unpaid leave See www.opm.gov/policy-data-oversight/pay-leave/leave-administration/ during any 12-month period for: fact-sheets/sick-leave-for-family-care-or-bereavement-purposes/. • the care of a spouse who has a serious health condition, or Q. If the employee lives in a state that does not recognize the • in the event of a qualifying exigency arising because a spouse is on marriages of same-sex couples, is the employee still entitled to covered active duty or has been notified of an impending call or order FMLA leave to care for a same-sex spouse? to covered active duty in the Armed Forces. A. Under certain conditions, an employee may use the 12 weeks of FMLA We believe that the federal employee should be entitled to have his leave intermittently. An employee under some circumstances may elect or her validly-entered marriage respected by the federal government for to substitute annual leave and/or a limited amount of sick leave for any federal FMLA, even if the employee lives in a state that does not respect the unpaid leave under the FMLA. FMLA leave is in addition to other paid employee’s marriage. There may be some initial uncertainty about how the time off available to an employee. federal government will process requests for federal FMLA leave to care for spouses from employees living in states that do not respect the employees’ Federal employees may also be entitled to a total of 26 weeks of leave marriages. If an employee encounters problems or questions, they should during any 12-month period to care for a spouse in the military who has contact a legal organization listed below. become injured or ill in the line of duty while on active duty.
FEDERAL FLEXIBLE SPENDING ACCOUNT (FSAFEDS) Q. What job benefits and protections does a federal employee receive under the FMLA? An FSAFEDS account is an account in which an eligible federal employee can contribute money from the employee’s salary BEFORE taxes are A. Upon return from FMLA leave, an employee must be returned to the withheld, and then receive reimbursement for family out-of-pocket health same position or to an equivalent position with equivalent benefits, pay, care—including a spouse’s health expenses—and dependent care expenses. status, and other terms and conditions of employment. An employee who Q. If a federal employee’s marital status changes, can the takes FMLA leave is also entitled to maintain health benefits coverage. employee change his or her flexible spending account (FSA) An employee on unpaid FMLA leave may pay the employee share of the election accordingly? premiums on a current basis or pay upon return to work. A. A federal employee may change the FSA election between 31 days before and 60 days after a Qualifying Life Event (QLE), including marriage, legal Q. Must an employee provide notice of intent to take family separation, divorce, or the death of a spouse. See www.fsafeds.com/forms/ and medical leave to care for a spouse? qscfact.pdf. Otherwise, the employee may make changes to his or FSA A. Yes, an employee must provide notice of his or her intent to take election during the annual Open Season. See www.opm.gov/healthcare- family and medical leave not less than 30 days before leave is to begin or, insurance/flexible-spending-accounts/. in emergencies, as soon as is practicable. An agency may request medical The OPM’s June 28, 2013 Memorandum advises that “[a]ll employees certification for FMLA leave taken to care for an employee’s spouse who has who are in legal same-sex marriages will now be able to submit claims a serious health condition. for medical expenses for their same-sex spouse and any newly qualifying For more information on FMLA leave to care for the spouse of a federal (step)children to their flexible spending program.” employee, see www.opm.gov/policy-data-oversight/pay-leave/leave- administration/fact-sheets/family-and-medical-leave/. Q. If a federal employee lives in a state that does not respect his or her marriage to a spouse of the same sex, will the Q. Does a federal employee have other protections if he or employee’s spouse be treated as a family member whose health she needs to take leave because something happens to the expenses may be reimbursed from the FSAFEDS account? employee’s spouse? A. Because the FSAFEDS benefit is a tax benefit regulated by the Internal A. A federal employee may use up to 13 days of annual sick leave under Revenue Service (IRS), the answer awaits guidance from OPM and/or the certain circumstances to care for a family member or attend the family IRS. The IRS ordinarily follows the law of the state of domicile (primary
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU BENEFITS AND PROTECTIONS FOR CIVILIAN FEDERAL EMPLOYEES AND THEIR SPOUSES 5 residence) in determining whether to recognize a marriage. However, the advance designation of beneficiary to receive such a lump payment. If the IRS has recognized “common law” marriages for tax purposes as long as they employee has not made an advance designation, the employee’s surviving were valid where celebrated, even if they are not recognized in the state of spouse has first priority to receive the lump sum payment. See www.opm. domicile. In our mobile society, it would make more sense for the IRS to gov/retirement-services/csrs-information/survivors/#url=No-Beneficiary. use a place of celebration rule, under which a marriage is recognized by the federal government so long as it was valid where entered, for all marriages and not just for “common law” marriages. Our organizations are encouraging Q. Now that DOMA has been struck down, when can retirees use of the place of celebration rule as broadly as possible. If an employee married to same-sex spouses make changes to their retirement or spouse encounters problems or questions, they should contact a legal benefits based on their marital status? organization listed below. This is not intended as tax advice; consult with your A. OPM’s June 28, 2013 Memorandum provides the following information: own tax advisor for information about your own situation. All retirees who are in legal same-sex marriages will have two years from the date of the Supreme Court’s decision (i.e., June 26, 2015) to inform OPM RETIREMENT AND SURVIVORS BENEFITS (CSRS, FERS) that they have a legal marriage that now qualifies for recognition and elect any changes to their retirement benefits based on their recognized marital Eligible federal employees are entitled to federal retirement benefits under status. In the coming days, OPM will be developing guidance to help either the Civil Service Retirement System (CSRS), or the Federal Employees retirees determine whether they wish to change their pension benefits in a Retirement System (FERS). Each of these plans includes certain benefits for way that will provide benefits for their surviving spouse. Retirees will need the employee’s spouse. to determine whether this option makes sense for them, as making this election will likely result in a deduction to the monthly annuity that the Q. What kinds of benefits are available to spouses of retired retiree currently receives. Going forward, the same-sex spouses of retiring employees through CSRS or FERS? employees will be eligible for survivor annuities. A. There are several types of benefits available to spouses of retired employees under FERS and CSRS. The two programs do not have entirely identical Q. Can a spouse receive a survivor annuity regardless of whether coverage; check www.opm.gov for more information on specific benefits the employee married before or after retiring? available under FERS or CSRS. The types of benefits generally available A. Widow(er)s who were married to the employee at the time of the include: employee’s retirement are entitled to an annuity, unless the spouse consents 1. Basic employee death benefit: The spouse of an employee or retiree not to receive the annuity. See www.opm.gov/retire/pubs/handbook/C052. with a CSRS or FERS plan may receive a basic employee death benefit in the pdf. If a federal employee marries after retirement and wants the spouse to form of a one-time lump sum payment. For more information, see www. be able to receive an annuity, generally the employee must file an election opm.gov/retirement-services/csrs-information/survivors/#url=Death- within two years of the date of the marriage. See www.opm.gov/retirement- Survivor-Benefits services/my-annuity-and-benefits/life-events/#url=MarriageDivorce. 2. Survivor annuity: The surviving spouse of a federal employee with a However, see the preceding Q&A for OPM’s June 28, 2013 guidance and FERS or CSRS account may receive a survivor annuity in the form of a timing information for retirees with same-sex spouses. monthly payment after that employee’s death. Federal employees have a portion of their paychecks withheld, which goes toward their retirement Q. If a federal employee lives in a state that does not respect his accounts. Upon retirement, an employee wishing to provide a survivor or her marriage to a spouse of the same sex, will the employee’s annuity to his or her spouse receives a reduced fixed sum out of this spouse qualify as a spouse for federal FERS or CSRS purposes? account each month until death (a monthly annuity). If the employee has a surviving spouse, that spouse may be eligible to receive a monthly A. There currently is uncertainty about this. Existing federal regulations survivor’s annuity after the employee dies, based on a percentage of the applying to FERS and CSRS define “marriage” as “a marriage recognized amount of the employee’s monthly annuity. in law or equity under the whole law of the jurisdiction with the most To qualify for the monthly benefit the surviving spouse must have significant interest in the marital status of the employee . . . or retiree.” See been married to the employee for at least nine months, or, if the death 5 C.F.R. § 843.102 (FERS); 5 C.F.R. § 831.603 (CSRS). Applying this occurred before nine months, a survivor annuity may still be payable if the definition to other types of marriages, courts and the OPM have generally employee’s death was accidental, or there was a child born of the marriage. considered the jurisdiction with the most significant interest to be the place where the couple predominately lived while the employee was working, after Monthly benefits may also be paid to the former spouse of a deceased retirement, and/or at the time of the employee’s death. This may mean that employee under a court order. A former spouse must also meet the nine a federal employee who has never lived or worked in a state that respects the month marriage requirement and the employee must have re-elected to employee’s marriage may be deemed not to qualify for protections for the provide a survivor annuity to his or her former spouse within two years of employee’s spouse under those regulations. However, the federal government the divorce being final or must have provided for the survivor annuity in may interpret the regulations and the circumstances of married same-sex the divorce decree. couples to permit recognition of such marriages. It may also amend the See www.opm.gov/retirement-services/fers-information/ regulations to clarify that same-sex couples who entered into marriages valid survivors/#url=Overview. where celebrated, regardless of where the couple happens to live, will be respected as married for FERS and CSRS purposes. That process would 3. Lump sum payment: A lump sum payment is made when an employee likely take months. Our organizations are encouraging adoption of such dies without anyone who qualifies to receive a survivor annuity and a a “place of celebration” rule to allow a same-sex couple’s marriage to be balance remains in the retirement account. The employee may make an recognized for such federal purposes wherever they live or relocate.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU BENEFITS AND PROTECTIONS FOR CIVILIAN FEDERAL EMPLOYEES AND THEIR SPOUSES 6
ETHICS AND CONFLICTS OF INTERESTS RULES GOVERNING FEDERAL EMPLOYEES AND THEIR SPOUSES Federal employees and their spouses should also be aware that ethics and conflicts of interest rules governing the conduct of federal employees and their spouses will now apply to same-sex married couples. Federal employees and same-sex spouses should be alert to such considerations and seek advice from their own counsel if they have questions. The United States Office of Government Ethics may offer additional information. Seewww.oge.gov .
FOR MORE INFORMATION, CONTACT LAMBDA LEGAL lambdalegal.org
GAY & LESBIAN ADVOCATES & DEFENDERS glad.org
AMERICAN CIVIL LIBERTIES UNION aclu.org/lgbt
NATIONAL CENTER FOR LESBIAN RIGHTS nclrights.org
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
FAMILY AND MEDICAL LEAVE ACT Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal FOR NON-FEDERAL EMPLOYEES government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights. The Family and Medical Leave Act (FMLA) provides important protections for eligible workers. It allows them to take up to 12 weeks of unpaid leave in a 12-month period • Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, to care for a spouse with a serious medical condition, or 26 weeks to care for an eligible and efficiently incorporate same-sex couples into the spousal- servicemember spouse with a serious injury or illness. It also allows an employee to take based system. job-protected leave for the birth or adoption of a child or to care for a child who has • Until same-sex couples can marry in every state in the nation, there a serious health condition, regardless of whether the child is biologically related to the will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal employee. At the end of the FMLA leave, workers are entitled to resume their same or an programs that assess marital status based on the law of a state that equivalent job. does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving This guidance addresses the rights that non-federal employees and their same-sex spouses spouses in accessing federal protections and responsibilities. should expect to receive under the FLMA now that the Defense of Marriage Act (DOMA) • Securing fair access to federal protections that come with marriage has been struck down. Rules for federal employees differ slightly. See the guidance section for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal on Federal Employees for information specific to employees of the federal government. rule-making by agencies. You may also have additional rights under state law. For more information, consult with a • Before making a decision, it is essential that you consult an attorney lawyer who specializes in employment law about rights you may have in your state. for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples Who qualifies for FMLA leave? who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable Any employee who has worked for a covered employer at least 1,250 hours during the to obtain a divorce, which can lead to serious negative legal and 12-month period before the start of the leave is eligible for FMLA leave, so long as the financial consequences. People must make careful decisions when employee has worked for a covered employer for at least a year. and where to marry, even as we work together to end this injustice. • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact Which employers are covered by the FMLA? our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who The FMLA covers: are LGBT. • Public employers, including state, local or federal government, or a public school. See This Guidance is intended to provide general information regarding the guidance for Federal Employees for more information specific to FMLA coverage major areas of federal marriage-based rights and protections based on how the various federal agencies have administered federal benefits. It for federal civilian employees. should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client • Private sector employers with 50 or more employees working for at least 20 workweeks relationship. Past practice is no guarantee of future developments. (within a 75-mile radius of ther worksite, if the employer has more than one worksite) While laws and legal procedure are subject to frequent change and in the current or preceding calendar year. differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal protections to same-sex couples. None of the organizations publishing this information can ensure the information is current or be responsible How does being married matter for FMLA leave? for any use to which it is put. No tax advice is intended, and nothing therein should be used, and The FMLA allows eligible employees of covered employers to take unpaid leave to care for cannot be used, for the purpose of avoiding penalties under the Internal a spouse who has a serious health condition. There are additional and sometimes expanded Revenue Code. leave rights for spouses of current and former servicemembers. Contact a qualified attorney in your state for legal advice about your particular situation.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU FAMILY AND MEDICAL LEAVE ACT FOR NON-FEDERAL EMPLOYEES 2
How do I apply for FMLA leave? If you want to use FMLA leave, you must give 30 days advance notice to your employer if possible. Where that’s not possible, you must let your employer know as soon as you can. If you need to miss work under FMLA FOR MORE INFORMATION, CONTACT leave without advance notice, you need to follow the usual notification procedures for absences from work. You also will need to give enough AMERICAN CIVIL LIBERTIES UNION information to your employer for your employer to decide whether the aclu.org/lgbt FMLA applies to your situation. If you encounter problems, you can contact the Wage and Hour Division at the Department of Labor, or an GAY & LESBIAN ADVOCATES & DEFENDERS attorney who specializes in employment law. glad.org To find the Wage and Hour Division office nearest you, go to: www.dol.gov/whd/america2.htm. LAMBDA LEGAL lambdalegal.org
Which non-federal employees will be recognized as married NATIONAL CENTER FOR LESBIAN RIGHTS for FMLA leave? nclrights.org • If you live in a state that respects your marriage: You will be considered married for FMLA purposes, and will be entitled to take FMLA leave to care for a sick spouse. • If you live in a state that does not respect your marriage: Existing regulation looks to the law of the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for FMLA purposes. This means that, until the regulation is changed, if you are a non-federal employee, you are unlikely to be considered a spouse for FMLA purposes, even if you used to live in a state that respected your marriage. However, the federal government may take steps to use a “place of celebration” rule so that a spousal status is assessed according to the law of the state where you married or secured a spousal status. This process may take some time. We are working to ensure that the federal government respects married couples wherever possible. If you encounter problems, contact one of the legal organizations listed below.
How can I find out more about FMLA rights of non-federal employees? See Department of Labor, Wage and Hour Division, Family and Medical Leave Act: www.dol.gov/whd/fmla/#.UJRK2Ib-ocs.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
FEDERAL TAXES Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding IMPORTANT TAX DISCLAIMERS same-sex couples from state-conferred marriage rights. • Federal agencies—large bureaucracies—may need and take some This guidance is intended for general information purposes. It should not be construed time to change forms, implement procedures, train personnel, as legal advice or a legal opinion on any specific facts or circumstances, and does not and efficiently incorporate same-sex couples into the spousal- create an attorney-client relationship. based system. • Until same-sex couples can marry in every state in the nation, there Because sound legal advice must necessarily take into account all relevant facts and will be uncertainty about the extent to which same-sex spouses will developments in the law, the information you will find in this guidance is not intended receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that to constitute legal advice or a legal opinion as to any particular matter. does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving Any tax information included in this document was not intended or written to be used, spouses in accessing federal protections and responsibilities. and it cannot be used, for the purpose of avoiding tax-related penalties under the Internal • Securing fair access to federal protections that come with marriage Revenue Code (Code). for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal rule-making by agencies. Marriage Matters For Federal Taxes • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for A 2004 government report identified 198 separate Code provisions tied to marital status, people who are on certain public benefits, as getting married may highlighting the dramatic impact of marriage on personal taxes. Rep. “GAO-04-353R jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples Defense of Marriage Act - Update to Prior Report” (Jan. 24, 2004), see www.gao.gov/ who travel to another place to marry and then return to live in a new.items/d04353r.pdf. state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and Summarized below are a few of the many tax issues potentially affecting married same-sex financial consequences. People must make careful decisions when couples now that DOMA has been invalidated. In all likelihood, there will be specific and where to marry, even as we work together to end this injustice. guidance forthcoming from the Internal Revenue Service (IRS) before the next income • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public tax filing deadline for tax year 2013. For personal advice on income tax, gift tax, or estate policy advocacy, and, where necessary, strategic litigation. Contact tax – federal or state - please consult a tax advisor. State income taxes are not addressed in our organizations if you have questions, for updates and to learn this guidance. This is not legal or tax advice. more about what you can do to achieve full equality for those who are LGBT. This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on “MARRIED” FILING STATUS FOR FEDERAL INCOME TAXES how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any “Filing status” refers to whether you identify yourself as “single,” “head of household,” specific facts or circumstances, and does not create an attorney-client “married filing jointly” or “married filing separately” on your federal income tax returns. relationship. Past practice is no guarantee of future developments. Only married couples can file as married, whether jointly or separately. The filing statuses While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true of “single” or “head of household” are generally reserved for unmarried persons. DOMA now as the federal government dismantles DOMA and extends federal barred married same-sex couples from filing as “married,” whether jointly or separately. protections to same-sex couples. None of the organizations publishing this information can ensure the information is current or be responsible In general, your filing status is determined on the last day of the year. If you are married for any use to which it is put. on the last day of the year, you will be considered married for the entire year. Alternatively, No tax advice is intended, and nothing therein should be used, and if you are single on the last day of the year (if you got divorced, for example) you will be cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. considered single for the entire year. There are some exceptions to these rules, so check with your tax advisor if you have a question about your filing status. Contact a qualified attorney in your state for legal advice about your particular situation.
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Now that DOMA has been ruled unconstitutional, we believe that the Q. I used to live in a state with marriage for same-sex couples IRS will instruct married same-sex couples to file their 2013 income taxes and married there, but have since moved to a state that does as “married”—whether jointly or separately—rather than as “individual” not recognize marriages of same-sex couples. Am I eligible to or “head of household,” provided that the IRS recognizes the marriage. See be treated as a spouse for tax purposes? below for important information about how the IRS assesses whether or A. As stated above, the IRS has a practice of using a place of domicile rule for not a person is “married” for tax purposes. assessing marital status, but not in the case of common law marriages. We For those marriages recognized by the IRS, tax preparation should be should await guidance from the IRS on this point. In our mobile society, we simpler and less expensive than it was with DOMA. The questions that believe it would make more sense for the IRS to use a place of celebration have faced married same-sex couples at tax time, like “who claims which rule for all marriages and not just for “common law” marriages, rather than child” and “how much of the mortgage deduction or charitable deduction to treat married people as unmarried for tax purposes when they cross state do we each take” are eliminated for married same-sex couples who may lines. If you encounter problems or questions, contact a tax advisor and a now take these deductions together in one joint return. legal organization listed below.
WHO DOES THE IRS COUNT AS MARRIED FOR FEDERAL Q. I live in a state that does not recognize marriages of same- TAX PURPOSES? sex couples, but I traveled elsewhere to marry. Am I eligible to be treated as a spouse for tax purposes? This is a critical question to answer before filing your 2013 income taxes, and we expect guidance from the IRS on this point. There may be a A. As stated above, the IRS has a practice of using a place of domicile rule period of uncertainty because under current IRS practice, a person can for assessing marital status, but not in the case of common law marriages. We file his or her income tax return as “married filing jointly” or “married should await guidance from the IRS on this point. filing separately” if the individual is considered married in his or her state of domicile (essentially, the permanent residence/primary home). That practice seems to suggest that only people in states that license or WILL I OWE MORE OR LESS FEDERAL INCOME TAX NOW recognize marriages of same-sex couples and in D.C. can expect to be THAT I CAN FILE A JOINT RETURN WITH MY SPOUSE? treated as married by the IRS. However, there is no statute or regulation Every couple’s situation is unique and may also change from year to year. requiring this approach. In addition, the IRS does not always follow For an individualized income tax analysis, consult a qualified tax advisor. this practice. For example, the IRS recognizes “common law” marriages Joint filing tends to favor married spouses with very different incomes (e.g. for federal tax purposes no matter where a couple lives as long as their where one spouse earns little or no income and the other earns income to marriage was valid where entered. This will likely be an evolving area support the family). Joint filers will generally oweless income tax than of law and you should consult with a qualified tax expert about your they would as single taxpayers. This is because the IRS effectively treats the circumstances. The legal organizations listed here also hope to provide combined income of married couples as if each spouse earned half, even if, more information as the situation develops. in reality, one earned nothing and the other earned, say, $80,000. With each spouse treated as having earned $40,000, the couple can take advantage of a lower tax bracket and rate than would a single person who earned $80,000. Q. I married in a state that recognizes marriages between spouses of the same sex, and I still live in such a state. Am I Note that for some taxpayers—specifically those in marriages in which eligible to be treated as a spouse for tax purposes? both spouses are high earners—married status filers generally will owe more income tax under the “married filing jointly” status than they would if they A. Yes. filed two separate returns under the “single” filing status. The reason for this “marriage penalty” is that joint return income thresholds (i.e., the income Q. I live in a state with a Civil Union or Registered Domestic level at which the next marginal tax bracket applies), while higher than Partnership system, and my partner and I have entered into unmarried individual return thresholds, are not twice as high. Thus, some that status. Am I eligible to be treated as a spouse for tax high-earning married taxpayers, whether they file as “married filing jointly” purposes? or “married filing separately,” will pay higher rates of tax than they would if they were unmarried individual filers. A. As stated above, the IRS has a practice of using a place of domicile rule for assessing marital status, but not in the case of common law marriages. We should await guidance from the IRS on this point. In WITH DOMA GONE, ARE THERE ANY STEPS I NEED TO TAKE addition, certain authorities have indicated that partners in a civil union NOW WITH RESPECT TO MY 2013 FEDERAL TAXES? are not spouses eligible to be treated as “married” for federal tax purposes. Your 2013 taxes are not due until April 15, 2014, but if you earn wages as an On the other hand, the Chief Counsel of the IRS in Illinois stated in a employee, you may want to consult a tax advisor about whether to change letter that a heterosexual couple joined in civil union, which Illinois had your filing status and claimed allowances on Form W-4, which may affect your recognized “as husband and wife,” were permitted to file federal returns withholdings. You also may want to consult a tax advisor if you pay estimated with the filing status “married filing jointly.” If a person encounters income taxes on a quarterly basis about whether to change the amount of these problems or questions, they should contact a tax advisor and a legal payments. organization listed below. If you have not yet filed your 2012 federal income tax return because you obtained a six month extension, you should consult your tax advisor before filing about what is the correct filing status and compute your income accordingly.
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See below if you are considering filing amended returns for a tax refund with I live in a community property state that permits same-sex respect to earlier tax years. couples to marry or register as domestic partners. Will this ruling affect how much income I report on my Federal return?
WHAT ARE SOME OF THE OTHER DIFFERENCES FOR SAME- It depends. We do not yet know how long it will take for the IRS to release SEX COUPLES IN BEING TREATED AS “MARRIED” FOR instructions about how married same-sex couples should file in community FEDERAL TAX PURPOSES? property states. But, if you are married and recognized as married in the state Apart from tax rate schedules, there are numerous other ways in which your where you live, we expect that the IRS will instruct you to file federal income taxes marital status may affect your federal taxes depending on your individual as a married couple. You will then be able to combine your income and file one circumstances. For those persons the IRS regards as “married,” for example: return just as other married couples if you use the “married filing jointly” filing status. If you file jointly, you will avoid the need to engage in a process known as • Standard Deductions. Taxpayers can either take “itemized deductions” income-splitting, in which all community income earned by both individuals is found on Schedule A of the federal income tax return, or a “standard added together and half is allocated to each individual. If you use the “married deduction,” whichever is greater. The standard deduction is a fixed filing separately” filing status in one of these community property states, then the dollar amount based on filing status plus some specific adjustments. same rules that apply to different-sex couples who use this status also will apply to For 2013, the standard deduction is $12,200 for joint filers, exactly you. This means you will apply income-splitting to your separate returns, unless double the $6,100 deduction available to “single” or “married filing an exception applies. For example, you may have entered into a valid pre-nuptial separately” filers. or post-nuptial agreement opting out of the community property system. • Pooled income and deductions. Only married couples filing jointly If you are in a registered domestic partnership (or another union recognized as may combine spouses’ income and expenses to be taken into account for a registered domestic partnership) in a community property state and are not computing deductions or credits on a return. For example, the itemized married, you will likely use the “single” or “head of household” filing status and deduction for medical and dental expenses on Schedule A permits joint income-splitting will likely apply. It is too early to tell if the IRS will or will not filers to combine their qualifying medical and dental expenses. But this allow registered domestic partners to file a joint return. deduction is limited if the couple has a comparatively high aggregated adjusted gross income (“AGI”). Only medical and dental expenses that In 2010, the IRS announced that it would recognize the community property exceed a certain percentage of the joint filers’ AGI (7.5% of AGI in rights of same-sex couples, including those who were married or in registered 2012 and 10% in 2013) may be deducted. domestic partnerships. This was consistent with the longstanding rule thatstate law determines ownership of property, while federal law determines how much • Income associated with employer-provided health insurance. federal tax the owner must pay. Because DOMA did not bar the IRS from Married same-sex couples should no longer have to pay income taxes applying income-splitting to same-sex couples, the ruling striking down DOMA on the value of employer provided insurance to an employee’s spouse. should not change how the IRS treats same-sex couples’ community property Typically, when an employer provides group health insurance and rights if they continue to file taxes separately. premium contributions for its employees and their spouses, children and other qualifying tax dependents, the value of those benefits is not The following states have community property laws: Alaska (which permits a subject to federal income tax. This tax advantage is now available to community property election), Arizona, California, Nevada, Idaho, Louisiana, married same-sex couples. Under DOMA, the value of the employer- New Mexico, Texas, Washington and Wisconsin. However, only three of those provided health insurance benefits for a same-sex spouse (unless a states—California, Nevada and Washington—currently allow same-sex couples dependent) was taxable income to the employee. either to marry or register as domestic partners and thus be governed by the state’s community property laws. In New Mexico, the Attorney General has issued • Tax-advantaged fringe benefits. Some employer-provided fringe an opinion stating the marriages of same-sex couples performed elsewhere will benefits will be handled differently now that DOMA has been be recognized in the state. Because same-sex married couples in New Mexico invalidated. For example, a married taxpayer/employee may be able are and should be recognized as married in their state, we believe that same-sex to use pre-tax dollars to pay premiums on employer-provided health married couples in New Mexico should file their state and federal tax returns insurance for his or her spouse. Under DOMA, tax-advantaged as married unless there is contrary instruction from relevant state or federal employment benefits were not available to same-sex spouses unless the authorities. spouse qualified as a “tax dependent” of the employee. For more information, go to www.irs.gov/pub/irs-pdf/p555.pdf. • Earned Income Tax Credit (EITC). This is a refundable tax credit available to low- and medium-income taxpayers. Credits may in some cases be higher, and may be obtained at higher income levels, for some How does DOMA’s invalidation affect divorce? joint filers. Divorcing spouses unwinding their economic partnership by dividing marital • Exclusion of gain from sale of principal residence. The Code allows assets should obtain information from qualified professionals about possible tax taxpayers to exclude from gross income the gain from the sale or consequences, which may include: exchange of a principal residence. The exclusion is capped at $250,000 • Transfers of property because of divorce. Property transferred between for individuals and $500,000 for joint returns. Thus, the previous spouses because of a divorce is not subject to income or gift tax. Under inability of same-sex spouses to file joint returns may have resulted DOMA, when a married same-sex couple divorced, transfers of the home in their receiving a smaller exclusion than they would if they were and other assets were taxable events. permitted to file jointly. • Spousal support. If alimony (also known as “spousal support”) or separate Important Note: There are many portions of the Code that differentiate between maintenance payments are paid to a spouse or former spouse under a divorce married and unmarried persons. Consult a tax advisor for more information or separation instrument or court order, the payments are deductible to about how these and many other factors might affect you. the person making the payments on his or her tax returns. The spouse or
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former spouse receiving the payments must report the payments as income. consult a knowledgeable tax professional about your circumstances. Under DOMA, the spouse paying alimony could not deduct payments for spousal support. How does DOMA’s invalidation affect estate taxes? • QDROs. Certain retirement assets in the name of one spouse may be viewed as marital property to be divided at divorce. Without DOMA, it A taxable “estate” (the money and assets of the deceased person) may will be easier to divide retirement assets that normally cannot be touched by take an “unlimited marital deduction.” This means that, essentially, the anyone other than the employee/retiree. Through a court-issued “Qualified estate will not incur any estate tax liability with respect to any assets Domestic Relations Order” (QDRO), certain workplace retirement plans left by the deceased spouse to his or her surviving spouse. The “marital belonging to one spouse can be assigned to (or shared with) the non- deduction” effectively permits married couples to postpone federal estate employee/former spouse on a tax-free basis. tax that otherwise would have to be paid on the deceased’s estate because the property passing to the surviving spouse will not be taxed until the A former spouse who receives benefits paid under a QDRO generally must surviving spouse’s death. report the benefits as income. If the employee/retiree (“plan participant”) contributed to the retirement plan, then a prorated share of the participant’s Under DOMA, no marital deduction was available to same-sex couples, cost (investment in the contract) is used to figure the taxable amount. and the value of the assets left to a same-sex spouse was fully included in the taxable estate. As a result, these assets ultimately would be subject to • IRA transfers pursuant to divorce. The transfer of all or part of an interest the estate tax twice; once when the first spouse dies and again at the death in a traditional IRA to a spouse or former spouse, under a decree of divorce of the other spouse. This is the very issue that affected Edie Windsor and or separation or divorce instrument incident to the decree, is not considered reached the Supreme Court: Edie, as executor of her spouse’s estate, paid a a taxable transfer. $363,000 estate tax she would not have had to pay if she had been married to a man. In prior tax years, I paid more taxes than I should have because DOMA disrespected my marriage. What can I do? HELPFUL RESOURCES There may be steps you can take to preserve your rights if you act within the time • General Guides: permitted by law. You can discuss with your tax advisor whether it makes sense for you to pursue a refund claim with the IRS. Taxpayer Advocate Service’s basic guide to taxes: www.taxpayeradvocate. irs.gov/Individuals/Complying-With-Tax-Laws Generally, to make a refund claim for income taxes, an individual must complete an amended tax return for each tax year at issue and send it to the IRS with an and FAQ: www.taxpayeradvocate.irs.gov/Individuals/FAQ. explanation as to why the original filing was incorrect. There is some question IRS publications under “General Information” (www.irs.gov/taxtopics/ about the deadline for filing an amended return when a couple could not file a tc300.html), including “When, Where, and How to File.” tax return as married but now can. Planning conservatively, you should file any amended return within three years of its original due date, as opposed to the extended due date. For example, for the tax year 2010 (where the return was • IRS Pub 17/1040 Guide: originally due April 15, 2011), any amended return would have to be filed by IRS Publication 17 addresses common issues for taxpayers who itemize April 15, 2014. deductions. English version: www.irs.gov/pub/irs-pdf/p17.pdf ; Spanish The IRS has a precise process and required forms for amended returns. For more version: www.irs.gov/pub/irs-pdf/p17sp.pdf. General instructions on information, see the instructions for IRS Form 1040X (www.irs.gov/pub/irs-pdf/ filling out Form 1040:www.irs.gov/pub/irs-pdf/i1040.pdf . i1040x.pdf), and GLAD’s Tax Time and Preserving Your Federal Rights. Note that to recover Social Security taxes paid or taxes imputed on health insurance for a spouse you have to specifically request that such amounts be refunded. • Life Transitions: A taxpayer should also consider potential downsides of taking these steps, such The IRS also addresses how life events make a significant impact on taxes: as an increased risk of audit, possible assessment of a tax deficiency, and in some www.irs.gov/Individuals/Did-you-know-life-events-like-marriage,- instances, the burden, expense, and uncertainty of litigation. divorce-and-retirement-may-have-a-significant-tax-impact%3F. If your spouse died before DOMA was struck down and you think you paid “Divorced or Separated Individuals,” at www.irs.gov/pub/irs-pdf/p504. more in taxes than you should have because of DOMA (e.g., you could not take pdf and www.irs.gov/pub/irs-pdf/p1819.pdf; and an inherited IRA as a spouse), you should consult a qualified tax professional “Exemption, Standard Deduction, and Filing Information,” at www.irs. for advice. gov/pub/irs-pdf/p501.pdf.
How does DOMA’s invalidation affect gift taxes? IMPORTANT TAX DISCLAIMERS As a very general matter, spouses make gifts and transfer property to one another This guidance is intended for general information purposes. It should without incurring gift taxes. With DOMA invalidated, the gift tax “marital not be construed as legal advice or a legal opinion on any specific facts or exemption” should apply to married same-sex couples. Married same-sex couples circumstances, and does not create an attorney-client relationship. will not have to file a federal gift tax return if one spouse transfers a home, other property, or cash to the other spouse. For more information about gift taxes, Because sound legal advice must necessarily take into account all relevant consult your tax advisor. facts and developments in the law, the information you will find in this guidance is not intended to constitute legal advice or a legal opinion as to If you made one or more substantial gifts to a spouse of the same sex before any particular matter. DOMA was invalidated and filed a federal gift tax return, you should
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU FEDERAL TAXES 5
Any tax advice included in this document was not intended or written to be used, and it cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code.
FOR MORE INFORMATION, CONTACT GAY & LESBIAN ADVOCATES & DEFENDERS glad.org
LAMBDA LEGAL lambdalegal.org
AMERICAN CIVIL LIBERTIES UNION aclu.org/lgbt
NATIONAL CENTER FOR LESBIAN RIGHTS nclrights.org
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
THE FREE APPLICATION FOR Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal FEDERAL STUDENT AID (FAFSA) government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights. This guidance addresses the Free Application for Federal Student Aid (FAFSA). The FAFSA is the unified application used to apply for federal student aid such as grants, loans, • Federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and work study. It is also used by public and private higher education institutions (like and efficiently incorporate same-sex couples into the spousal- colleges and universities) and some private financial aid providers to determine whether an based system. applicant qualifies for additional aid through his or her school. • Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will You can access the FAFSA, fill out the online application, or print a paper application at receive federal marital-based protections nationwide. For federal www.fafsa.ed.gov. programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws The FAFSA calculates your potential aid based on your individual circumstances, the will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities. income of your household, and the possible contributions of your parents and spouse or “expected family contribution” (EFC). A dependent student’s EFC is calculated based on his • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. or her parents’ adjusted gross income plus the student’s available income. An independent In some situations, it may require Congressional action or formal student’s EFC is calculated based on the student and spouse’s combined adjusted gross rule-making by agencies. income, if the independent student is married. • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for Under the federal Defense of Marriage Act (DOMA), applicants with married same-sex people who are on certain public benefits, as getting married may parents were instructed to treat their parents as if they were divorced, and were therefore jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples permitted only to list the contributions and income of one parent. Likewise, applicants who travel to another place to marry and then return to live in a with same-sex spouses were informed that their marriage was not recognized by the federal state that does not respect their marriage may be unfairly unable government and were not permitted to list their spouse on the application. Now that to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when DOMA has been declared unconstitutional, applicants with same-sex married parents will and where to marry, even as we work together to end this injustice. be required to list the incomes and contributions of both of their parents, and applicants • We are committed to winning universal access to federal marital with same-sex spouses will be required to list their spouse as part of their household. protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact The FAFSA is a complex federal form. Please do your own research and consult a financial our organizations if you have questions, for updates and to learn aid officer or the Department of Education for advice about your specific circumstances. more about what you can do to achieve full equality for those who are LGBT. This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on Updated FAFSA Form how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any Prior to the Supreme Court’s ruling on DOMA, the Department of Education proposed specific facts or circumstances, and does not create an attorney-client an update to the FAFSA application that requires all applicants to list both of their legal relationship. Past practice is no guarantee of future developments. parents regardless of marital status, provided they live together. This updateonly impacts While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true applicants filling out the FAFSA for the 2014-2015 school year and beyond. When this new now as the federal government dismantles DOMA and extends federal form comes into effect during the 2014-2015 funding cycle, marital status will no longer protections to same-sex couples. None of the organizations publishing be relevant for applicants whose same- or different-sex legal parents are living together. this information can ensure the information is current or be responsible for any use to which it is put. This guidance is for applicants using the 2013-2014 or 2014-2015 FAFSA forms. No tax advice is intended, and nothing therein should be used, and Please be sure to refer to the section that corresponds to your FAFSA form. cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. Contact a qualified attorney in your state for legal advice about your particular situation.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU THE FREE APPLICATION FOR FEDERAL STUDENT AID (FAFSA) 2
Do I qualify for financial aid? Other people who may be your legal parent include: This guidance cannot answer that question because every financial aid • A biological parent, unless they are a sperm or egg donor or a surrogate applicant’s situation is unique. Your eligibility for federal financial aid is under your state’s laws, or their rights were terminated by a court; an individual calculation based on your personal circumstances. Contact a • Parents who were married to or in a civil union or registered domestic financial aid officer for more information. partnership with a legal parent at the time you were born if you live in a state that recognizes their relationship; or Should I list both of my parents on the FAFSA application? • In some states, parents who have lived with you and held themselves out 2014-2015 as your parent, who were intended parents who conceived you through assisted reproduction, or who qualify under other laws in your state that If you are using the 2014-2015 FAFSA, you are required to list both your recognize them as parents. parents (and their income and potential contributions) if they live together and if they are your legal parents, regardless of their marital status. This is true for same- and different-sex couples. Should I list my same-sex partner on the FAFSA application? If you are using the 2014-2015 FAFSA, you will not need to list both of 2014-2015 your parents if: If you are using the 2014-2015 FAFSA, you must list your same-sex spouse • They do not live together; OR if you were validly married in a jurisdiction that allows same-sex couples to marry, regardless of where you now live. If you are not married, even if you • They are not both your legal parents (list only the legal parent). If you have a legally recognized civil union or domestic partnership, you do not have a step-parent married to your legal parent, however, you will be need to list your partner. required to list the step-parent. 2013-2014 2013-2014 If you are using the 2013-2014 FAFSA, you must list your same-sex spouse If you are using the 2013-2014 FAFSA, there are two circumstances under if you were married in a jurisdiction that allows same-sex couples to marry, which you must list both of your parents on the FAFSA form: regardless of where you now live. If you are not married, even if you have • Your parents live together AND a legally recognized civil union or domestic partnership, you do not need • Are a different-sex couple and are married; OR to list your partner. • Are a same-sex couple and were validly married in a jurisdiction where same-sex couples may marry, and both are your legal parents. • If your parents were married in a marriage equality state, but now live in a state that does not recognize their relationship, you must list them. FAFSA uses a place of celebration standard, which means even if your parents were married in a marriage equality state and then moved to a state that does FOR MORE INFORMATION, CONTACT not recognize their marriage, they are considered married for FAMILY EQUALITY COUNCIL the purposes of FAFSA. familyequality.org If you are using the 2013-2014 FAFSA, you do not need to list both of your parents if: NATIONAL CENTER FOR LESBIAN RIGHTS • Your parents are not married, regardless of their living situation; nclrights.org • Your parents are divorced, regardless of their living situation; OR AMERICAN CIVIL LIBERTIES UNION • Your parents have a registered domestic partnership or civil union, aclu.org/lgbt regardless of their living situation. GAY & LESBIAN ADVOCATES & DEFENDERS How do I know if my parents qualify as my “legal parents”? glad.org Your parents qualify as “legal parents” if they are considered such under LAMBDA LEGAL the state law where you live. Every state has different laws about who is lambdalegal.org a legal parent. Please contact a legal organization listed below for more information about your state. We also recommend that you consult with a lawyer in your state if you are unsure about who qualifies as your legal parents. As explained above, only legal parents who live together must both be listed. If you have two legal parents who do not live together, only the parent you live with should be listed. A legal parent is anyone who: • Is an adoptive parent; or • Has a valid court order saying they are a parent.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
IMMIGRATION Keep in Mind: These FAQs address some of the questions we anticipate LGBT families with immigration • The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding issues will have following a Supreme Court decision striking down the Defense of Marriage same-sex couples from state-conferred marriage rights. Act (DOMA). For general information about U.S. immigration law and how it affects LGBT • Federal agencies—large bureaucracies—may need and take some individuals and their families, see the Immigration Equality website, immigrationequality. time to change forms, implement procedures, train personnel, org. Immigration is a complicated area of law, with many factors to consider specific to each and efficiently incorporate same-sex couples into the spousal- based system. individual. Consult with a qualified immigration attorney about your specific situation. • Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal Immigration attorneys told me in the past not to marry my partner because programs that assess marital status based on the law of a state that this will ruin my chances of getting a visa. Now that DOMA has been struck does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving down, should I seek advice about whether this may have changed? spouses in accessing federal protections and responsibilities. For those seeking permanent resident status in the United States, yes, that advice may • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. change now. A reason attorneys have advised foreign partners of U.S. citizens not to marry In some situations, it may require Congressional action or formal is that for many of the most common types of non-immigrant visas, such as tourist visas rule-making by agencies. (B1/B2) and student visas (F1), the foreign national entering the U.S. must demonstrate to • Before making a decision, it is essential that you consult an attorney the U.S. immigration official that he or she does not have the intent to remain in the U.S. for individualized legal advice. This is particularly important for permanently. Since there now is a legal means to apply for permanent immigrant status in people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure the U.S. based on a marital relationship, in many cases it will make sense to go ahead and of protections other married couples enjoy. In addition, couples marry and file for permanent benefits. who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when Now that DOMA has been held unconstitutional, if I marry my partner can I and where to marry, even as we work together to end this injustice. sponsor her for a green card? • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public In many cases, yes. Options for families will vary from case to case, based upon a number policy advocacy, and, where necessary, strategic litigation. Contact of factors, including: whether the partners are living together or in different countries; our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who whether the partners are living together in the United States or abroad; whether the partners are LGBT. have married; whether the partners can marry; and for families together in the United This Guidance is intended to provide general information regarding States, whether the non-U.S. citizen partner arrived here after having been inspected by an major areas of federal marriage-based rights and protections based on immigration officer or whether the partner entered without inspection. Same-sex couples how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any will also have to meet the general criteria for marriage-based immigration. For general specific facts or circumstances, and does not create an attorney-client information about the procedure to apply for marriage-based immigration petitions on relationship. Past practice is no guarantee of future developments. behalf of foreign spouses who are inside the U.S., see Immigration Equality’s adjustment While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true of status page (immigrationequality.org/issues/transgender/adjustment-of-status-procedural- now as the federal government dismantles DOMA and extends federal steps/), and for foreign spouses who are outside the U.S., see Immigration Equality’s protections to same-sex couples. None of the organizations publishing consular processing page (immigrationequality.org/issues/transgender/consular-processing- this information can ensure the information is current or be responsible for any use to which it is put. procedural-steps/). No tax advice is intended, and nothing therein should be used, and The following outlines some common circumstances for same-sex binational couples. cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. Contact a qualified attorney in your state for legal advice about your particular situation.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU IMMIGRATION 2
WE ARE BOTH IN THE UNITED STATES lead to a denial of the application. This is the law for different-sex couples, My spouse and I married in a marriage equality state and live and we expect it will apply identically to same-sex couples. in a state that recognizes our marriage. Can I file for her? Yes, your application should be treated exactly as the application of a FOR IMMIGRANTS WHO ARE OUT OF STATUS different-sex couple. I entered the U.S. with a visa several years ago and never left. Can my U.S. citizen spouse file a green card application for me even though I am now here without legal status? My spouse and I married in a marriage equality state but live in a state that does not recognize our marriage. Can I still file Yes. While the general rule under U.S. immigration law is that you cannot for him? change your status from unlawful to lawful from within the United States, one very important exception to that rule is for spouses of U.S. citizens. U.S. Citizenship and Immigration Services (USCIS) focuses on the place As long as you entered the U.S. with inspection by a U.S. immigration where the marriage was entered (the place of celebration), not the place officer, you can still file for a green card (adjust status) from within the where one spouse or both spouses live. As long as the marriage was validly U.S. even if you are currently here without lawful status. entered into under the laws of the state or country of celebration, it should not matter where you currently reside. I entered the U.S. without a visa and without inspection, by crossing the Mexican border. Can my spouse sponsor me for If my partner and I entered into a civil union (for example a green card? in New Jersey) or a Domestic Partnership (for example in California) with all the rights of marriage, but are not actually It’s complicated. You cannot file for a green card from within the United married, can I sponsor her for a green card? States if you entered without inspection. (There is an exception to this rule for people who had an immigration petition or labor certification The answer to this is not entirely clear, and we hope to have guidance on this filed on their behalf on or before April 30 2001.) That means you will soon. If it is possible for you and your partner to marry even if you have to have to return to your home country to apply for a green card through travel to a different state to do so, you may be better off marrying because consular processing. However, when you leave the U.S. to apply, you you could then feel more secure in filing right away without having to wait will probably be prohibited from returning because of the three year/ for further guidance. ten year bar on returning to the U.S. following the accrual of unlawful presence immigrationequality.org/issues/immigration-basics/most- OTHER CONSIDERATIONS: common-questions/#unlawful-presenceundocumented-immigrants here. You may be able to file for a provisional waiver immigrationequality. FOR IMMIGRANTS WHO ARE IN LAWFUL org/issues/transgender/the-provisional-unlawful-presence-waiver/ of this IMMIGRATION STATUS bar from within the U.S. and wait here for the waiver to be approved I am in the U.S. legally on a non-immigrant visa that allows me before you leave the U.S. to use consular processing. This is a complicated to have the intention to stay in the U.S. (for example an H1B or application, and you will need to consult with an immigration attorney. L1 visa). I am married to my spouse; can she file a green card application for me? I AM IN THE UNITED STATES BUT MY PARTNER IS ABROAD Yes, as long as the two of you are lawfully married, and you meet the other general immigration marriage requirements, you should be able to apply to My spouse and I are legally married. I live in the United adjust status to lawful permanent resident and process your paperwork from States but my spouse currently lives abroad because she within the U.S. See immigrationequality.org/issues/transgender/adjustment- had no way to get a green card here. What do we do now? of-status-procedural-steps/ The two of you can file a marriage-based green card application. Since she is currently outside the United States, the application will be processed through the U.S. consulate in her country (consular processing) I am in the United States on a non-immigrant visa (for example immigrationequality.org/issues/transgender/consular-processing- a tourist or student visa) that required me to demonstrate procedural-steps/, meaning that the U.S. consular staff will interview her that I did not have the intent to immigrate to the U.S. Is it there, rather than in the U.S. If her application is approved and she enters a problem for me to marry my partner and have her file a the U.S., she should be able to do so as a lawful permanent resident. marriage-based green card application? Maybe. As with many areas of immigration law, this is an area that will involve a fact-intensive inquiry by the USCIS. It is considered acceptable I live in the United States in a marriage equality state and to enter the U.S. with the intention to remain here temporarily and then my partner currently lives abroad because he had no way to have your intent change as circumstances in your life change. For example, get a green card here. We are not married, and same-sex a university student might meet someone after attending school here and couples are unable to marry in my partner’s home country. decide to marry that person months or years after entering the U.S. on a What should we do now? student visa. On the other hand, if a person enters the U.S. on a tourist You have several options and should consult with an immigration attorney visa, marries, and applies for a green card within three weeks of entering the about them. One possible option is for you to file a fiancé visa petition for U.S., USCIS may conclude that the individual misrepresented her lack of him. American citizens can file a fiancé/e visa immigrationequality.org/ immigrant intent to the immigration official at the airport and this could issues/transgender/fiancee-visas-procedural-steps/ petition for a partner
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU IMMIGRATION 3 overseas with whom he or she has a committed relationship. The couple Since my spouse was not able to find a permanent immigration must marry within 90 days of the foreign partner’s entry into the United solution in the U.S., we have been living abroad for many years. States. Once married, the American citizen spouse can file a marriage- We are not yet ready to move back to the U.S., but I want to do based petition For the foreign spouse. what I can to establish his right to live there. Can I file for my spouse from abroad if we don’t intend to live in the U.S.? If your partner is able to travel to the United States as a tourist, another possibility would be for him to come to the U.S. as a tourist, marry, and No, once an individual applies for lawful permanent residence in the U.S., then return to his home country and go through consular processing he or she must actually live here. In fact, a green card holder who moves there. Different consulates have different backlogs in different categories; abroad for an extended period of time can lose his or her right to return to the consult with an immigration attorney to decide which option would be U.S. You should wait until you are ready to actually live in the U.S. to file an fastest and most appropriate. application for lawful permanent residence.
I live in the United States in a marriage equality state and my OTHER ISSUES partner lives abroad in a country where same-sex couples I am the foreign national spouse of a U.S. citizen and am HIV- are unable to marry. He has never been able to get a visa positive. Can my spouse still sponsor me for a green card? to the United States, and we are not married. What do I do now? Yes. The U.S. ban on immigration for people with HIV/AIDS ended in January 2010. When you take the medical examination as part of the green As with the previous answer, you should be able to file a fiancé visa card application process you will not be tested for HIV. However, the doctor petition for him. Since he cannot travel to the United States another can ask questions about your overall health and medications you are taking, and way, this may be your only option to bring him to the U.S. You may also you should answer honestly. USCIS can take your health into consideration as be able to marry in a third country that has marriage equality if you and one factor in determining whether you are “likely to become a public charge,” your partner can travel to another marriage equality country. He then that is, likely to need public assistance or social security disability benefits. could apply for lawful permanent residence through consular processing. Simply being HIV-positive, however, is not a reason to deny an application for lawful permanent residence, especially if you have a work history. I live in a state that does not have marriage equality, and my partner lives abroad in a country where same-sex couples My foreign national spouse has a child who was born abroad. are unable to marry. She has never been able to get a visa Can I also file a green card application for her child when I file to the United States, and we are not married. What do I do for my spouse? now? You should be able to. Under current law, a U.S. citizen can petition for the As with the previous answer, you should be able to file a fiancée visa minor children of a foreign spouse once a step-parent/step-child relationship petition for her. However, since the state in which you reside would not has been formed. allow a same-sex couple to celebrate a marriage, you would have to submit evidence with your fiancée petition that indicates you plan to marry in a marriage equality state. This is the approach that USCIS has taken I am a lawful permanent resident of the U.S. – I have a green www.immigrationequality.org/wp-content/uploads/2012/04/USCIC- card, but I am not a citizen. Can I sponsor my foreign national guidance-Transgender_FINAL.pdf for fiancé/e visas where one spouse is spouse for a green card? transgender, which is another area of marriage law where different states have different rules. Another option is that you may be able to marry in Lawful permanent residents can sponsor a spouse for immigration benefits, a third country that has marriage equality if you and your partner can but under current U.S. law as it applies to all married couples, your spouse travel to another marriage equality country and then she could apply for would not qualify as an “immediate relative,” but rather would fall under the lawful permanent residence through consular processing. “family preference system” www.travel.state.gov/visa/bulletin/bulletin_5953. html in category F2A. That means that rather than filing the application for an immigrant visa (I-130) and the application for lawful permanent residence MY PARTNER AND I ARE IN EXILE – LIVING TOGETHER (I-485) simultaneously, you would first have to file the I-130, and then wait for OUTSIDE OF THE UNITED STATES the visa to be current. Presently, there is about a two year wait before she would be able to apply for permanent residence. However, if you become a citizen Since my spouse was not able to find a permanent while she is “in line” to file for permanent residence, she could immediately file immigration solution in the U.S., we relocated abroad, for the green card once you are naturalized. where we have lived for many years. What do we need to do now to relocate to the U.S.? Individuals who fall under the family preference system and wish to apply to adjust status from within the U.S. must be in lawful status and must not have To file a marriage-based green card application, the U.S. citizen spouse accrued any unlawful presence here. This is different than the rule for spouses generally must reside, or submit proof of an intention to reside, in the of U.S. citizens, who can apply to adjust status even if they are here unlawfully, U.S. If the U.S. citizen spouse lives abroad, part of the application packet as long as they entered with inspection. should be a letter describing his or her intent to establish a residence in the U.S. Also, unlike U.S. citizens, lawful permanent residents cannot sponsor a fiancé/e for a fiancé/e visa, though it may be possible to marry in a third country and go through consular processing for a green card after the marriage.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU IMMIGRATION 4 How soon after I get residence can I apply to become a U.S. citizen? While the general rule is that an individual must be a lawful permanent resident for five years before applying to become a citizen, spouses of U.S. citizens can apply three years after obtaining their green card, provided they remain married and living together as a couple. FOR MORE INFORMATION, CONTACT IMMIGRATION EQUALITY immigrationequality.org WILL THINGS WE SAID OR DID IN THE PAST AFFECT OUR FUTURE APPLICATION? NATIONAL CENTER FOR LESBIAN RIGHTS I have been in the U.S. for three years on a student visa. I live nclrights.org with my partner and he provides financial support for me, but I have always indicated on my immigration papers that he is a AMERICAN CIVIL LIBERTIES UNION “family friend.” Will the fact that I never disclosed that he’s aclu.org/lgbt my partner before make it harder for him to sponsor me for a green card now? GAY & LESBIAN ADVOCATES & DEFENDERS The answer to this may depend on the specific facts of your case. We are glad.org advocating that USCIS take a fair and reasonable approach to issues such as this, given the systemic discrimination that LGBT families have faced under LAMBDA LEGAL U.S. law. If you have any fear that USCIS could find fraud in your case, you should consult with an immigration attorney before filing your application. lambdalegal.org
INFORMATION FOR DUAL FOREIGN NATIONAL COUPLES My spouse and I are both citizens of a foreign country. I have been offered a skilled worker visa (for example an H-1B) to work in the U.S. Can my spouse come with me while I’m in the U.S.? Yes, she will qualify for an H-4 “derivative” visa, which means your spouse can accompany you for the duration of your visa. However, as with different-sex spouses, your spouse will not be entitled to work while in the U.S.
Where can I get more information? The Immigration Equality website immigrationequality.org/ has a great deal of general information on U.S. immigration law and its application to LGBT people. If the website does not answer your question, you may submit an inquiry immigrationequality.org/contact-us/ online to the Immigration Equality legal staff. You can also consult with the legal organizations below.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
MEDICAID Keep in Mind: Medicaid is a health insurance program for very low-income people who meet certain • The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding guidelines. Medicaid also provides insurance coverage for long term care, such as when same-sex couples from state-conferred marriage rights. someone needs nursing home care. Many states have additional specific programs that are • Federal agencies—large bureaucracies—may need and take some also called Medicaid, such as pre-natal care coverage for pregnant women. time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal- Each state has its own Medicaid program that is partially funded by the federal government. based system. Most states call this program “Medicaid,” but some states have their own name for their • Until same-sex couples can marry in every state in the nation, there Medicaid program (for example, in California it is called Medi-Cal). Each state has will be uncertainty about the extent to which same-sex spouses will different rules about who can get Medicaid and what is covered, although there are some receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that federal requirements that states must all follow. Even if you qualify in one state, you may does not respect marriages of same-sex couples, those state laws not qualify in a different state if you move. The best way to determine the specific eligibility will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities. standards used in your state is to visit www.healthcare.gov or www.medicaid.gov. • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal Who qualifies for Medicaid? rule-making by agencies. Medicaid is run and designed by each state, so each state has different rules about who • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for qualifies and what benefits you can get. In some states, very few people qualify for Medicaid, people who are on certain public benefits, as getting married may and the benefits are very limited. In general, Medicaid is currently available to very low- jeopardize your eligibility without providing you the full measure income people who are a child, pregnant, a parent or relative caretaker of a child; have a of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a disability; or are elderly. Because eligibility may depend on being recognized as a parent, in state that does not respect their marriage may be unfairly unable states where same-sex parents are not recognized under the law, non-biological parents may to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when not be able to qualify for Medicaid. and where to marry, even as we work together to end this injustice. Medicaid will change drastically in many states in 2014. Beginning in 2014, many • We are committed to winning universal access to federal marital states will make Medicaid available to all very low-income people regardless of whether protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact they have a child, a disability, or are elderly. This change is required under the Affordable our organizations if you have questions, for updates and to learn Care Act (also called Obamacare), but under the recent U.S. Supreme Court ruling about more about what you can do to achieve full equality for those who the Affordable Care Act, not every state has to expand Medicaid under this law. In states are LGBT. that choose not to expand Medicaid, the old eligibility rules will still apply. Even in states This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on that expand Medicaid, there may be some smaller programs that are called “Medicaid” that how the various federal agencies have administered federal benefits. It will not change under this law. should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client Beginning in 2014, all states will change how they calculate financial eligibility for Medicaid relationship. Past practice is no guarantee of future developments. – although some Medicaid programs will still follow the old rules. These new financial While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true eligibility rules will be based on your Modified Adjusted Gross Income (MAGI), which is now as the federal government dismantles DOMA and extends federal calculated using your federal income tax return. If you file federal taxes as married filing protections to same-sex couples. None of the organizations publishing jointly, both of your incomes will be considered in determining your Medicaid eligibility this information can ensure the information is current or be responsible for any use to which it is put. under the MAGI rules. See guidance on Federal Taxes for more information. No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. Who will be recognized as married for Medicaid purposes? Contact a qualified attorney in your state for legal advice about your particular situation. Because the federal government pays for part of Medicaid, there are federal rules that restrict how states run this program. Many states that have marriage equality did not
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU MEDICAID 2 treat same-sex married couples as married for many Medicaid programs, him as a legal father. Identifying your sperm donor as a father can have although several states have already been recognizing marriages between severe results – it can mean that he will be recognized as the legal second same-sex spouses for Medicaid purposes. parent of your child for all purposes under the law, including the ability • If your state recognizes your marriage: Now that Section 3 of the to seek custody or visitation, and can prevent a non-biological parent who federal Defense of Marriage Act (DOMA) has been overturned, every is raising the child from being recognized. If you are facing this situation, state that recognizes marriages between same-sex couples will recognize please contact one of the legal groups listed at the end of this publication their marriages for all Medicaid purposes. for more information. • If you are in a civil union or registered domestic partnership and your state recognizes your relationship: You may be treated as married How can I apply for Medicaid? for Medicaid purposes. We do not yet know if you will file federal The application process will be different in each state. Currently, in most taxes jointly with your partner. But if you do file taxes jointly, both of places, there will be a county office where you can apply, or you may be your incomes will be considered for most Medicaid income eligibility able to apply online. Beginning in 2014, you will be able to apply online calculations, which could make you ineligible. See guidance on Federal and determine your eligibility through the Health Insurance Marketplace. Taxes for more information. For more information, and to see if you are eligible for Medicaid coverage • If you live in a state that doesn’t recognize your relationship: You will in your state, please visit www.healthcare.gov. probably not be recognized as married for Medicaid purposes, although some states may decide to provide hardship protections to a partner of a person in long term care. The federal government has also allowed states to provide the same protections given to the spouses of people who are receiving long term care to any domestic partner, regardless of whether they are in a formally recognized relationship. These protections can be very significant – they can allow the partner who is not in long term care to remain in the family FOR MORE INFORMATION, CONTACT home and allow the partner to keep more joint assets. Most states have NATIONAL CENTER FOR LESBIAN RIGHTS not yet decided whether to provide these protections to domestic partners. nclrights.org
How does being married impact my Medicaid eligibility? LAMBDA LEGAL Because this program is limited to very low-income people, who is lambdalegal.org considered to be a part of your family for purposes of determining your family income and assets impacts your eligibility for Medicaid. As explained GAY & LESBIAN ADVOCATES & DEFENDERS above, how your income is calculated for most Medicaid programs will glad.org change in 2014. For people receiving long term care coverage through Medicaid (such as AMERICAN CIVIL LIBERTIES UNION coverage for nursing home care), Medicaid provides protections for the aclu.org/lgbt healthy spouse’s assets. CAUTION: For many couples, being married is not beneficial for Medicaid purposes and can result in losing eligibility for benefits. But, being married can be beneficial if one spouse is receiving long- term care coverage through Medicaid. People receiving Medicaid should speak to an attorney if possible about their benefits before deciding to marry.
I have been told that I have to identify the biological father of my child to receive Medicaid. Is this true? Federal law currently requires people who receive Medicaid because they are parents to “cooperate” in efforts to identify the biological father of their child – the federal law requiring this is written in gendered terms and assumes that a biological father must be identified. Parents who have conceived using a known sperm donor may be required to identify their sperm donor as the father of their child in order to receive benefits. If you live in a state with laws that say a sperm donor is not a parent (and you followed those laws) or if a court has already ruled that your donor is not a parent, you should not have to identify him as a father – although you may have to push the agency to recognize this. But, if your donor could be a legal parent under your state’s laws, you may be required to identify
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
SOCIAL SECURITY SPOUSAL AND Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal FAMILY PROTECTIONS government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights. • Federal agencies—large bureaucracies—may need and take some This guidance addresses Social Security spousal benefits: when one spouse retires; in the event of time to change forms, implement procedures, train personnel, disability; and when one spouse has passed away. Access to each of these benefits was blocked or and efficiently incorporate same-sex couples into the spousal- based system. affected by the federal Defense of Marriage Act (DOMA). Now that DOMA has been declared • Until same-sex couples can marry in every state in the nation, there unconstitutional by the United States Supreme Court, this guidance summarizes these benefits, will be uncertainty about the extent to which same-sex spouses will who qualifies, special concerns, possible reductions to benefits, how to apply, and how to appeal receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that if your claim is denied. does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving For more information, visit the Social Security Administration website, www.socialsecurity.gov. spouses in accessing federal protections and responsibilities. • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. What is the Social Security Retirement Spousal Benefit? In some situations, it may require Congressional action or formal rule-making by agencies. The “retirement spousal benefit” (the spousal benefit) is a benefit for a non-earning or lower- • Before making a decision, it is essential that you consult an attorney earning spouse that allows him or her to collect an amount that is equal to half of the other for individualized legal advice. This is particularly important for people who are on certain public benefits, as getting married may spouse’s Social Security benefit. People are only eligible for a spousal benefit when their own jeopardize your eligibility without providing you the full measure benefit is less than half of their retired spouse’s benefit, or when they seek to delay their own of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a application for Social Security benefits based on their own work record. For more information, state that does not respect their marriage may be unfairly unable consult the SSA’s “Retirement Planner: Benefits For You As A Spouse,” www.socialsecurity.gov/ to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when retire2/applying6.htm. and where to marry, even as we work together to end this injustice. • One-earner couples receive a spousal benefit of an extra 50% of the worker’s retirement • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public benefit while both spouses are alive. policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn • For two earner couples who worked long enough to qualify for Social Security benefits, a more about what you can do to achieve full equality for those who lower-earning spouse can receive his or her own benefit plus a spousal benefit to bring his or are LGBT. her total benefit up to 50% of the higher benefit. This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on • If you are at retirement age and your spouse has applied for Social Security benefits (even if how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any he or she files and suspends), you can choose to file and receive benefits on just your spouse’s specific facts or circumstances, and does not create an attorney-client Social Security record and delay filing for benefits on your own record up until age 70. relationship. Past practice is no guarantee of future developments. While laws and legal procedure are subject to frequent change and For more information, consult: differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal the SSA’s page, “Delay my Social Security retirement and receive spouse’s benefits,” http://ssa- protections to same-sex couples. None of the organizations publishing this information can ensure the information is current or be responsible custhelp.ssa.gov/app/answers/detail/a_id/1944/kw/can%20i%20draw%20a%20spousal%20 for any use to which it is put. benefit%20and%20delay%20my%20retirement%3F; No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal the SSA’s publication, “Retirement Benefits,” www.socialsecurity.gov/pubs/EN-05-10035.pdf; Revenue Code. Consumer Reports’ “Timing your Social Security benefits,” www.consumerreports.org/cro/ Contact a qualified attorney in your state for legal advice about your particular situation. magazine-archive/2011/october/money/timing-your-social-security-benefits/overview/index. htm;
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU SOCIAL SECURITY SPOUSAL AND FAMILY PROTECTIONS 2 and AARP’s “How to Maximize Your Social Security Benefits,” www.aarp.org/ Survivors Receive?,” www.socialsecurity.gov/survivorplan/onyourown5. content/dam/aarp/money/budgeting_savings/2012-02/How-to-Maximize- htm, and GLAD’s publication, “Social Security Benefits and The Defense of Your-Social-Security-Benefits-AARP.pdf. Marriage Act,” www.glad.org. Note: In calculating a survivor benefit, reductions for early retirement, maximum What is the Social Security Disability Spousal Benefit? family benefits, and the Government Pension Offset apply, but the Windfall Elimination Provision (WEP) does not apply to survivor benefits. See below: Social Security pays benefits to people who cannot work (are unable to engage “What Factors Could Reduce My Benefits?” in substantial gainful activity) because they have a medical condition that is expected to last at least one year or result in death. For more information, consult the SSA’s Disability Planner: Social Security Protection If You What is the Lump-Sum Death Benefit? Become Disabled, http://www.ssa.gov/dibplan/index.htm, and publication, There is a one-time death benefit of $255 payable to a surviving spouse, or, “Disability Benefits,” www.socialsecurity.gov/pubs/EN-05-10029.pdf. if there is no spouse, to a minor child—if certain conditions are met. If When a worker qualifies for Social Security disability benefits, the spouse no spouse or child meeting these requirements exists, the lump-sum death may be eligible for a monthly benefit of up to 50% of the disabled worker’s payment will not be paid. For more information, consult the SSA’s “Lump- benefit. The requirements are very similar to the retirement spousal benefit sum death payment,” http://ssa-custhelp.ssa.gov/app/answers/detail/a_ discussed above. id/202/~/lump-sum-death-payment.
What is the Surviving Spouse Benefit? What is the Child’s Benefit? After a spouse’s death, Social Security allows the surviving spouse to keep Social Security can also help a worker’s “children” when one or both parents collecting his or her own Social Security payment or to collect the full are disabled, retired or deceased. payment of the deceased spouse. A surviving spouse can also use the survivor’s Because Social Security provides an important economic safety net, “child” benefit to delay retiring on his or her own record, thereby earning delayed is defined broadly and is based on state law recognition of the parent-child retirement credits and increasing his or her own benefit. For examples and relationship. Please refer to the Social Security website for the numerous tests more information, see SSA’s “Survivors Planner: How Much Would Your of who can be a “child.”
Who Qualifies for Social Security Spousal Benefits This chart outlines the basic requirements for each type of Social Security benefit available to spouses and is discussed in more detail below. You must meet each requirement listed under a given benefit in order to qualify for the benefit. The Social Security website provides further details.
Spousal Retirement Benefit Spousal Disability Benefit Survivor’s Benefit Lump-Sum Death Benefit
o Your spouse worked and paid into the system long enough to qualify for this particular benefit Credits SS Work SS Work
o The wage earner’s state of domicile (primary residence) at the time o The wage earner’s state of domicile (primary residence) at the time of your application would consider you married or able to inherit of your spouse’s death would consider you married or able to inherit personal property from each other without a will as would a spouse from each other without a will as would a spouse Recognition
o You have been married for at least 9 months immediately prior to the day your spouse died (Click for exceptions o You have been married for at least 12 months prior to here to this rule from the SSA). applying for spousal benefits http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/395/kw/defense%20 Duration of%20marriage%20act
o You are at least age 60, at least age 50 and disabled, or of o You are at least age 62 or of any age if you have a qualifying “child” any age if you have a qualifying
Age of the worker in your care who is under age 16 or disabled “child” of the worker in your care who is under age 16 or disabled
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o You have not re-married before age 60 (or, if you are oYou and your spouse were living disabled, age 50) unless the later in the same household at the marriage has ended at the time time of the death (with certain
Other of application, whether by death, exceptions for things like hospital divorce, or annulment (see SSA’s and nursing home stays) “Survivors Planner”) o You are not entitled to a higher Social Security benefit o You are not entitled to a Social Security benefit on your own on your own record (unless you earnings record that is greater than one half of your spouse’s (unless are applying for the spousal you are applying for the spousal benefit to delay your own application disability benefit to delay your for Social Security benefits based on your own earnings record) own retirement, as discussed above regarding the spousal Benefit Limitations retirement benefit)
oYou, as surviving spouse, applied No deadline, but there may be for the $255 death benefit within eligibility for limited number of Same Same two years of the date of your months prior to filing application. Deadline spouse’s death Application
Q. I’m married and my spouse resides (or resided at the time Q. My spouse resides (or at the time of passing away resided) in a of passing away) in a state that recognizes marriages between state that does not recognize marriages of same-sex couples, but spouses of the same sex. If I meet the other criteria, am I we married in another state and I meet all of the other criteria. eligible for spousal-based benefits? Am I eligible for the spousal-based benefits? A. Yes. The Social Security law uses the wage earner’s “place of domicile” as A. Under existing law, the Social Security statute uses the wage earner’s “place the relevant state law for assessing who is a spouse for benefits purposes. The of domicile” as the relevant state law for assessing who is a spouse for benefits Social Security law states that a person is considered a spouse if the courts purposes. This will likely result in the agency denying crucial benefits to married of the state at the time of application would find that the couple was validly same-sex couples and widows and widowers until the law is changed. Our married. organizations will be working urgently to attain respect for all marriages, though it will take legal changes.
Q. I joined in a Civil Union or Registered Domestic Partnership, my spouse resides (or resided at the time of passing away) in Q. I am divorced. Can I obtain benefits based on my former that state, and I meet the other criteria. Am I eligible for marriage? What happens to those benefits if I remarry? spousal-based benefits? A. A divorced spouse of a retired, disabled or deceased worker—assuming the A. Although this is untested, we believe the answer should be yes. The marriage lasted at least 10 years and that the divorced spouse is not married to Social Security law states that even if the state law of domicile at the time of someone else and meets age and other requirements—is entitled to receive benefits application would find that you are not married, you are nevertheless eligible based on the earnings record of a former spouse. This includes the retirement for spousal benefits if the laws of your state provide that you can inherit spousal benefit, the disability spousal benefit, and the survivor’s benefit, though personal property without a will under your state’s law as would a “wife, some eligibility differences apply for divorced spouses. For information about husband, widow or widower.” 42 U.S.C. § 416(h)(1)(A)(ii). access to benefits and how marrying will affect benefits from a former spouse, All of the state civil union and registered domestic partner laws allow those consult the SSA’s “Retirement Planner: Benefits For Your Divorced Spouse,” joined in these statuses to inherit intestate (without a will) personal property www.socialsecurity.gov/retire2/yourdivspouse.htm. as a spouse. In addition, states with more limited domestic partnership or reciprocal beneficiary laws (e.g. Wisconsin), even if the state also has marriage What Factors Could Reduce My Benefits? or civil unions (e.g. HI, ME, NJ), may provide a basis for those joined in the more limited statuses to make a claim for spousal benefits if you meet all of The most common factors that can reduce benefits are discussed below. the other qualifications. Consult a local practitioner to learn more about Early retirement. If you start retirement benefits early, before the full retirement your state’s relationship recognition and intestacy laws. age set for you by Social Security, your monthly benefits are reduced. The full If you are married but your spouse resides (or resided at the time of passing retirement age for people born between 1943 and 1954 is 66. You can calculate away) in a state that treats marriages of same-sex couples as a “civil union” the benefits of early or later retirement on the Social Security website, www. or “registered domestic partnership,” we believe you may make a claim for socialsecurity.gov/OACT/quickcalc/early_late.html. For more information, spousal benefits if you meet all of the other qualifications. consult the SSA’s publications, “Retirement Benefits,” “When To Start Receiving Retirement Benefits” and “Retirement Planner: Other Things to Consider.”
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU SOCIAL SECURITY SPOUSAL AND FAMILY PROTECTIONS 4
Maximum Family Benefits Limit (Family Cap) If your or your spouse’s need to persist politely until you are permitted to complete an application. If children are also eligible for or receiving Social Security based on the same necessary, you can explain that you simply wish to preserve your legal rights. spousal benefit worker’s earnings, your may be subject to a cap on total family Insist on a Written Denial. It is possible that a Social Security representative benefits under a single earnings record. For more information, consult the will tell you orally that your application is denied. If that happens, politely “ SSA’s Formula For Family Maximum Benefit,” www.ssa.gov/oact/cola/ insist on a written denial, which Social Security is required to give you. This familymax.html. is important in order to assure your right to appeal. Windfall Elimination Provision (“WEP”). Where a worker worked for Addressing Delays. If you do not receive a decision on your application an employer that did not withhold Social Security taxes from the worker’s from Social Security within two weeks, write to Social Security and request salary, such as a federal, state or local government agency, a nonprofit a decision. organization or another country, the pension based on that work may reduce the worker’s Social Security benefits because of Social Security’s Windfall Appeal Denials to Keep Benefits Claim Alive. When your application for Elimination Provision (“WEP”). Since the spousal benefit is derived from any Social Security benefit is denied, you must appeal the denial to try to the worker’s benefit, WEP affects thespousal benefitas well. While benefits keep your claim for benefits “open” or “alive” and possibly obtain benefits are lowered because of the WEP, they are never totally eliminated. For more based on the date of application. The time limit for filing an appeal is 60 days information, consult the SSA’s “WEP eliminating a monthly Social Security from the Notice of Denial. benefit,” http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/1354/~/wep- • Follow the Directions. The Social Security Administration will tell you eliminating-a-monthly-social-security-benefit; www.socialsecurity.gov/ your options at each stage of the appeals process. You have an absolute pubs/10045.pdf. right to appeal the denial of your benefits. For more information from Government Pension Offset (“GPO”). The GPO applies directly to Social Security about the appeals process, consult the SSA’s publication, reduce spousal benefits if you receive a pension from a federal, state, or local “Your Right To Question The Decision Made On Your Claim,” www.socialsecurity.gov/pubs/EN-05-10058.pdf. government based on work where you did not pay Social Security taxes. If the GPO applies to you, your Social Security benefits will be reduced by • Try to keep your appeal pending as long as possible. Because it is two-thirds of your government pension. For more information, consult the likely that it will take some amount of time for the post-DOMA issues SSA’s publication, “Government Pension Offset,” www.socialsecurity.gov/ to sort themselves out, keep your appeal pending as long as possible pubs/10007.pdf. so that the agency and legal processes can do what they need to do to clarify the rules. To extend your appeal process, wait until any deadline nears to file the next challenge to your denial (but be sure not to miss What Can I Do to Protect and Preserve My Rights While the the 60 day deadline for each step of the appeal process). You can apply again if the law changes. Social Security Administration Sorts Out if My Marriage or Other Relationship “Counts” for Benefits Purposes? Question About Grant of Benefits. If your application for benefits is granted and you think it should not have been under existing legal standards, If you meet all of the qualifications for a benefit, you can apply for Social contact an attorney. If you improperly receive benefits, the government can Security benefits now to preserve the start date for your benefits based on the require you to pay those back. date of your application. Timing. There is no deadline for applying for a spousal benefit (except the However, if the wage earner lives or lived in a state that does not recognize your lump-sum death benefit) though benefits begin based on the date you filed legal relationship (marriage, civil union, registered domestic partnership), an application. you will likely be denied benefits if you apply. Our organizations are working to ensure that all marriages respected, but it will take legal changes.
How Do I Apply for Social Security Spousal Benefits and How Do I Appeal If Benefits Are Denied? GLAD’s publication, “Social Security Benefits and The Defense of Marriage Act,” www.glad.org, outlines the application and appeals process in detail. FOR MORE INFORMATION, CONTACT Some of the important tips from that publication: GAY & LESBIAN ADVOCATES & DEFENDERS Apply in Person! You can apply for Social Security benefits in person on glad.org your own at your local Social Security Administration Office. LAMBDA LEGAL What to bring. Provide a copy of your marriage, civil union or RDP lambdalegal.org certificate in support of your application and, if you are applying for survivor benefits, a copy of your spouse’s death certificate. Make sure you get a dated NATIONAL CENTER FOR LESBIAN RIGHTS copy of your application (or some other dated receipt) as evidence that you nclrights.org actually applied should you need this later. If you are told you cannot apply. You may be told that you cannot apply AMERICAN CIVIL LIBERTIES UNION for marriage-based benefits based on your marriage, civil union or RDP. You aclu.org/lgbt
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
MILITARY SPOUSAL BENEFITS Keep in Mind: Service members receive only approximately 30% of their total compensation in the form • The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding of base pay. The remaining 70% of their compensation package comes in the form of same-sex couples from state-conferred marriage rights. allowances, in-kind benefits, and—in the case of retirees—deferred compensation. For • Federal agencies—large bureaucracies—may need and take some service members who are married (or who have another qualified dependent), many of time to change forms, implement procedures, train personnel, these allowances and benefits are increased, to account for the reality that the service and efficiently incorporate same-sex couples into the spousal- based system. member is providing for a family, instead of an individual. These increases are generous, • Until same-sex couples can marry in every state in the nation, there and reflect the unique strains and challenges placed on a family with a member serving in will be uncertainty about the extent to which same-sex spouses will the military. receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving Who is a military spouse? spouses in accessing federal protections and responsibilities. For the active military, reserves, and National Guards, by statute a “spouse” is “a husband • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. or wife as the case may be.” Then-Secretary of Defense Panetta said in a memo on In some situations, it may require Congressional action or formal February 11, 2013, that: rule-making by agencies. In the event that the Defense of Marriage Act is no longer applicable to the Department • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for of Defense, it will be the policy of the Department to construe the words “spouse” and people who are on certain public benefits, as getting married may “marriage” without regard to sexual orientation, and married couples, irrespective of jeopardize your eligibility without providing you the full measure sexual orientation, and their dependents, will be granted full military benefits. of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a www.defense.gov/news/Same-SexBenefitsMemo.pdf state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and With the Supreme Court striking down DOMA as unconstitutional, it no longer applies financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice. to the Department of Defense (DOD) and we can expect the DOD to issue a formal statement that it will construe the statute definition of spouse to be inclusive, as laid out in • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public Secretary Panetta’s statement. policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who are LGBT. Which marriages does the military consider valid? This Guidance is intended to provide general information regarding Generally, the military will consider a marriage valid if it was valid in the state where major areas of federal marriage-based rights and protections based on the marriage took place. A state-issued marriage certificate is normally all the evidence how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any necessary to demonstrate that the marriage was considered valid by the state. specific facts or circumstances, and does not create an attorney-client relationship. Past practice is no guarantee of future developments. Marriages entered into in foreign countries to foreign nationals generally must be approved While laws and legal procedure are subject to frequent change and by the military service beforehand. If such a marriage is not approved beforehand, the differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal service member must obtain a “recognition of marriage” from the military service. In protections to same-sex couples. None of the organizations publishing general, no benefits will result from marriage entered into in a foreign country to a foreign this information can ensure the information is current or be responsible national unless it was pre-approved by the service or ratified afterwards. for any use to which it is put. No tax advice is intended, and nothing therein should be used, and While a marriage may be valid according to state law, the military does not provide cannot be used, for the purpose of avoiding penalties under the Internal benefits—or will seek restitution for benefits already paid—for “sham” marriages entered Revenue Code. into solely for the purposes of obtaining benefits. The military has aggressively prosecuted Contact a qualified attorney in your state for legal advice about your such cases in several instances. particular situation.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU MILITARY SPOUSAL BENEFITS 2
What happens if I move from a marriage state to a non- What action do I need to take? marriage state (or overseas)? Couples who are married, regardless of whether you currently live in a state Because the military determines a marriage to be valid based on the law that recognizes your marriage, should proceed immediately to any DEERS of the state where the marriage took place, it should not matter what state office or ID Card office and report that you are married. You will need a you lived in when you married, what state you move to after you marry, or copy of your marriage certificate. where you are stationed around the world. Once your spouse is recognized Couples who are in state registered domestic partnerships or state civil by the military as your spouse, the laws of the state in which you live no unions, or couples who have no state legal status, have no mandatory longer play a role in whether you remain eligible for spousal benefits from requirement to report those relationships to the military. the military.
What does the court’s ruling mean for the military domestic How do I register for spousal benefits? partnership benefits extension? Eligibility for all military spousal benefits flows from a spouse’s valid On February 22, 2013, then-Secretary of Defense Panetta announced that enrollment in the Defense Enrollment Eligibility Reporting System certain benefits not blocked by DOMA would be made available to the (DEERS). To add a spouse to DEERS, the service member must go to an same-sex domestic partners of service members. The benefits extension is ID Card office or DEERS office and present a valid marriage certificate, or scheduled to take effect between August 31, 2013 and October 1, 2013, in the case of a common law marriage, a determination from the Staff Judge with some news reports identifying the effective date as September 1, 2013. Advocate (SJA) that the common law marriage is valid under state law. Any same-sex couple who meets the eligibility requirements can register as a For a list of documents required to add dependents to DEERS, please visit: domestic partner, regardless of whether the couple has any state-recognized www.dmdc.osd.mil/rsl/html/RequiredDocuments.html relationship status. See www.defense.gov/news/Same-SexBenefitsMemo.pdf. Recognition of a marriage provides many more benefits than the domestic What is the duty to report marriages? partnership status established by DOD. A married couple will receive all the benefits that a domestic partnership couple would receive, but the domestic Service members have a duty to report changes in their dependent status partnership couple will receive far fewer benefits than the married couple. within 30 days. Under DOMA, marriages to a person of the same-sex did not have to be reported because the military could not recognize these In the memorandum announcing the domestic partnership benefits marriages. Now that DOMA has been struck down, service members who extension, Secretary Panetta said “The benefits changes directed by this are legally married under any states’ laws must report the marriage. It is memorandum will be re-assessed” when DOMA no longer applies to the unclear when the 30-day deadline for reporting will begin, but it is best to DOD “to determine whether other changes are needed or appropriate, to report as soon as possible. include whether unmarried same-sex domestic partnerships should be a basis for eligibility for benefits in the future.” Now that DOMA has been struck down, it remains to be seen whether WHAT ARE THE BENEFITS MY SPOUSE CAN GET? DOD will continue to implement the domestic partnership benefits Once a spouse is enrolled in DEERS, he or she is eligible for a whole host extension, or require all benefits to be conferred through state-recognized of benefits. The most important benefits to most service members and their marital status. spouses are: • Spousal Identification Card \ • TRICARE medical insurance coverage • Dependent-rate housing allowance • Family separation allowance FOR MORE INFORMATION, CONTACT • Ability to move off base to live with a spouse OUTSERVE-SLDN outserve-sldn.org • Command-sponsored visas
• Access to military installations and facilities, including: base; GAY & LESBIAN ADVOCATES & DEFENDERS commissaries; exchanges; Morale, Welfare and Recreation (MWR) glad.org centers; Family Center programs • Joint Duty Assignments AMERICAN CIVIL LIBERTIES UNION • Access to legal assistance aclu.org/lgbt While it does not flow directly from DEERS enrollment, the spouses of service members may also invoke the protections of the Servicemembers LAMBDA LEGAL Civil Relief Act (SCRA), which provides certain protections from civil lambdalegal.org actions against service members who are called to Active Duty. For more information on the SCRA, visit www.dmdc.osd.mil/appj/scra/welcome.xhtml. NATIONAL CENTER FOR LESBIAN RIGHTS nclrights.org
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
VETERAN’S SPOUSAL BENEFITS Keep in Mind: There are two categories of veterans who receive benefits from the Department of Veterans • The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding Affairs: qualified non-retired veterans and retirees. Qualified veterans are those who meet same-sex couples from state-conferred marriage rights. eligibility requirements for specific benefits (usually related to time-in-service and discharge • Federal agencies—large bureaucracies—may need and take some characterization). Retirees are those who served at least 20 years in the military and who time to change forms, implement procedures, train personnel, formally retired from military service. Retirees receive benefits both from the Department of and efficiently incorporate same-sex couples into the spousal- based system. Defense (DOD) (see guidance on Military Spousal Benefits fact sheet for information related • Until same-sex couples can marry in every state in the nation, there to these benefits) and the Department of Veterans Affairs (VA). will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that WHO IS A VETERAN SPOUSE? does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving The law that governs veteran’s benefits contains a DOMA-like provision defining spouse. spouses in accessing federal protections and responsibilities. According to the law, for these purposes, a spouse is “a person of the opposite sex who is a wife • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. or husband.” There is a similarly restrictive definition of “surviving spouse.” In some situations, it may require Congressional action or formal In light of the Supreme Court’s ruling on DOMA, we believe that the definitions rule-making by agencies. described above are constitutionally invalid and can no longer be enforced. This position • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for is supported by the position that the Obama administration took in another DOMA people who are on certain public benefits, as getting married may challenge that also challenged the veteran’s statutes. In that case, the Attorney General wrote jeopardize your eligibility without providing you the full measure a letter to the Speaker of the House informing the Speaker that the United States would of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a not defend these provisions because the Attorney General viewed them, like DOMA, as state that does not respect their marriage may be unfairly unable violating the Equal Protection clause of the Fifth Amendment. See http://sldn.3cdn.net/ to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when b43c938d6601df41b9_26m6bu2hc.pdf. and where to marry, even as we work together to end this injustice. • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public WHICH MARRIAGES DOES THE DEPARTMENT OF VETERANS AFFAIRS policy advocacy, and, where necessary, strategic litigation. Contact CONSIDER VALID? our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who The statute that governs veteran’s benefits has problematic provisions for determining are LGBT. when a marriage is valid. According to the law, a marriage is considered a marriage if it This Guidance is intended to provide general information regarding was “valid. . . according to the law of the place where the parties resided at the time of the major areas of federal marriage-based rights and protections based on how the various federal agencies have administered federal benefits. It marriage or the law of the place where the parties resided when the right to benefits accrued.” should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client Because this determination of marriage validity comes from federal statute, action will likely relationship. Past practice is no guarantee of future developments. be required by courts or by Congress. The better standard would be a “place of celebration” While laws and legal procedure are subject to frequent change and rule, so that spousal status is assessed according to the law of the state where one married or differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal secured a spousal status. This is the standard DOD and the military use, where there is no protections to same-sex couples. None of the organizations publishing statute specifying a place of residence rule. In our mobile society, it would make more sense this information can ensure the information is current or be responsible for any use to which it is put. for the federal government to recognize all marriages that were valid where entered. We are working to ensure that the federal government respects married couples wherever possible. No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Unless a “place of celebration” rule is established for the VA, if a veteran and his or her spouse Revenue Code. traveled from a state that would not recognize their marriage to marry in a state that allows Contact a qualified attorney in your state for legal advice about your same-sex couples to marry, and lived in a non-recognition state when their veteran’s benefits particular situation.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU VETERAN’S SPOUSAL BENEFITS 2 took effect, they would likely not be considered married for purposes of the • VA Guaranteed Home Loan Program VA. To help clarify, see the chart below. For more information, please visit www.benefits.va.gov/homeloans/
If… Then, for For information on receiving a Certificate of Eligibility, please visit purposes of the www.benefits.va.gov/HOMELOANS/purchaseco_certificate.asp VA, you are… • Burial benefits You lived in a recognition state when you got Married For more information, please visit married and live in a recognition state when the www.cem.va.gov/burial_benefits/ and benefits take effect www.cem.va.gov/cem/burial_benefits/eligible.asp You lived in a recognition state when you got mar- Married ried but live in a non- recognition state when the benefits take effect HOW DO I REGISTER? You lived in a non- recognition state when you got Married All VA benefits require individual application. However, for every benefit, married (by traveling to a recognition state to get a valid marriage license or marriage certificate is sufficient to demonstrate a married) but live in a recognition state when the spousal relationship. (Other documentation will be required to demonstrate benefits take effect general eligibility, such as proof of veteran’s service or a death certificate, in You lived in a non- recognition state when you got Likely Not the case of surviving spouses.) married (by traveling to a recognition state to get married married) and continue to live in a non- recognition state when the benefits take effect WHAT ACTION DO I NEED TO TAKE? With the Supreme Court’s ruling, we believe that married veterans who There are many veterans who live in non- recognition states (e.g., Texas, lived in recognition states (states that either licensed or respected marriages Virginia) who traveled to recognition states to get married, but who still of same-sex couples at the time of the marriage) when they got married or live in non- recognition states and will do so when the benefits take effect. live in recognition states when the benefits take effect should qualify for VA Veterans and their spouses in this situation likely will still not qualify as being spousal benefits for which they meet all other requirements. in valid marriages for purposes of the VA. If your application for a benefit is denied based on the VA’s failure to This would give rise to particularly troubling outcomes for retirees in this recognize your marriage, please contact a legal organization to discuss the situation, who would normally get some of their benefits from the DOD matter. For general information on appealing benefits determinations, please and some from the VA. For those retirees, the DOD would recognize their visit www.bva.va.gov/. marriage and provide benefits, but the VA would not. Veterans who lived in non-marriage states when they got married and continue to live in non-marriage states when the benefits take effect should WHAT ARE THE SPOUSAL VETERANS BENEFITS? monitor the Department of Veterans Affairs website to learn how the VA will address the likely limitation on marriage recognition. If your marriage is respected by the VA, there are a number of important benefits that the VA offers to spouses or surviving spouses. Some of the most important are: • Passing on GI Bill benefits For more information, please visit www.gibill.va.gov/benefits/post_911_gibill/transfer_of_benefits.html • Veterans Health Administration healthcare (CHAMPVA) FOR MORE INFORMATION, CONTACT For more information, please visit www.va.gov/hac/forbeneficiaries/champva/champva.asp OUTSERVE-SLDN outserve-sldn.org • Dependency and Indemnity Compensation For more information, please visit GAY & LESBIAN ADVOCATES & DEFENDERS benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asp glad.org The relevant application form can be found here: www.vba.va.gov/pubs/forms/VBA-21-534-ARE.pdf AMERICAN CIVIL LIBERTIES UNION • Dependent’s Educational Assistance Program aclu.org/lgbt For more information, please visit www.gibill.va.gov/benefits/other_programs/dea.html LAMBDA LEGAL The relevant application form can be found here: lambdalegal.org www.vba.va.gov/pubs/forms/vba-22-5490-are.pdf NATIONAL CENTER FOR LESBIAN RIGHTS nclrights.org
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
SUPPLEMENTAL SECURITY Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal INCOME FOR AGED, BLIND, government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights. AND DISABLED (SSI) • Federal agencies—large bureaucracies—may need and take some The Supplemental Security Income (SSI) program pays a modest cash benefit to people time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal- who are at least age 65 and meet financial limits or have severe disabilities and very limited based system. income and resources. See www.ssa.gov/pgm/ssi.htm. • Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal How does marital status matter for SSI purposes? programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws Being recognized as married generally makes it more difficult for someone to qualify for SSI will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities. when the couple is living together. A married couple living together where both spouses • Securing fair access to federal protections that come with marriage are at least age 65 or meet the Social Security Act disability standard must apply for SSI as for all same-sex couples in the nation will take some time and work. a couple. The limit on allowable resources for a couple to be eligible for SSI is 50% higher In some situations, it may require Congressional action or formal than for an individual, and in most states, the limit on allowable income for a couple is also rule-making by agencies. 50% higher than for an individual. Very few married couples will qualify. • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for If a married couple lives together, but only one spouse meets the age or disability standard, people who are on certain public benefits, as getting married may then that spouse must apply as an individual, but the income and resources of the ineligible jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples spouse will be “deemed” to the spouse applying for SSI (i.e., considered to be income and who travel to another place to marry and then return to live in a resources of the spouse applying for SSI) under a formula set forth in the SSI regulations. state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and Relatively few will qualify if they are subject to deeming. financial consequences. People must make careful decisions when If a married couple lives apart from each other, they will be treated the same as unmarried and where to marry, even as we work together to end this injustice. individuals for SSI purposes. • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public For more information, see policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn www.ssa.gov/policy/docs/issuepapers/ip2003-01.html. more about what you can do to achieve full equality for those who are LGBT. Caution: For most couples, being married is not beneficial for SSI purposes. People receiving SSI should, if possible, consult an attorney who is knowledgeable about the SSI program This Guidance is intended to provide general information regarding major areas of federal marriage-based rights and protections based on before deciding to marry. how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. Past practice is no guarantee of future developments. How is marital status determined for SSI? While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true The Social Security Act defines the rules for determining marital relationships for now as the federal government dismantles DOMA and extends federal SSI recipients. See 42 U.S.C. § 1382c(d). Marital status is based under the statute protections to same-sex couples. None of the organizations publishing on “appropriate State law,” and regulations further specify that the law of the state of this information can ensure the information is current or be responsible for any use to which it is put. domicile—where the couple principally lives—at the time of application should apply. No tax advice is intended, and nothing therein should be used, and Under additional statutory provisions, even if the marriage is not recognized by the state cannot be used, for the purpose of avoiding penalties under the Internal where the couple lives, the couple will nevertheless be considered married for SSI purposes Revenue Code. if they can inherit personal property from the other without a will under the state’s law as Contact a qualified attorney in your state for legal advice about your would a spouse. particular situation.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU SUPPLEMENTAL SECURITY INCOME FOR AGED, BLIND, AND DISABLED (SSI) 2
What does this mean for a married same-sex couple who lives in a state that respects their marriage? A married same-sex couple living in a state that respects their marriage should be regarded as married for SSI purposes, and the income and resources of both spouses would be taken into account to determine SSI eligibility and benefits.
What does this mean for a married same-sex couple who lives in a state that does not respect their marriage? The answer is uncertain. The couple would not be regarded as married under the law of their state of domicile. But it is possible that the couple nevertheless could be determined to be “holding themselves out” as married to the community, and hence subject to the rules for married couples for federal SSI purposes. A section of the Social Security Act provides that even if there is no recognized marital relationship, if two individuals hold themselves out as “husband and wife” to the community in which they reside, they will be treated the same as a married couple for SSI eligibility purposes. See 42 U.S.C. 1382c(d)(2). Efforts may be made in non-recognition states to apply this “holding out” provision to same-sex partners in evaluating eligibility for SSI. Whether a couple is “holding out” as a couple is an intensely factual determination. The fact that the couple was married in another state or shares all expenses should not be decisive.
What does this mean for a same-sex couple who has a civil union or comprehensive domestic partnership and lives in a state that recognizes the status? A couple in a civil union or registered domestic partnership in a state that recognizes their relationship will be treated as married if under the law of the state they would be treated the same as married individuals for purpose of intestate succession of personal property (i.e., they would inherit from each other under state law without a will). Seek counsel from an attorney in your state for advice about your eligibility for SSI benefits and consequences to you of entering into a marriage, civil union, domestic partnership, or other potentially legally recognized relationship.
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FOR MORE INFORMATION, CONTACT LAMBDA LEGAL lambdalegal.org
GAY & LESBIAN ADVOCATES & DEFENDERS glad.org
NATIONAL CENTER FOR LESBIAN RIGHTS nclrights.org
AMERICAN CIVIL LIBERTIES UNION aclu.org/lgbt
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
MEDICARE SPOUSAL PROTECTIONS Keep in Mind: This guidance addresses the spousal protections of Medicare, the federal health insurance • The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding program for adults 65 and older, as well as for certain younger people with disabilities. same-sex couples from state-conferred marriage rights. Several aspects of Medicare are implicated by whether a person is married, including • Federal agencies—large bureaucracies—may need and take some eligibility based on a spouse’s work history, premium amounts, and enrollment penalty time to change forms, implement procedures, train personnel, exemptions related to remaining on a spouse’s private health plan. Access to these Medicare and efficiently incorporate same-sex couples into the spousal- based system. protections was blocked or affected by the federal Defense of Marriage Act (DOMA). Now • Until same-sex couples can marry in every state in the nation, there that DOMA has been declared unconstitutional by the United States Supreme Court, this will be uncertainty about the extent to which same-sex spouses will guidance summarizes the benefits, who qualifies, special concerns, and how to apply. receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that For more information, visit the federal Medicare website, www.medicare.gov and the Social does not respect marriages of same-sex couples, those state laws Security Administration’s Medicare page, www.ssa.gov/pgm/medicare.htm. will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities. • Securing fair access to federal protections that come with marriage INTRODUCTION TO MEDICARE BENEFITS AND WHO MAY BE for all same-sex couples in the nation will take some time and work. In some situations, it may require Congressional action or formal CONSIDERED A SPOUSE rule-making by agencies. Medicare is a federal health insurance program designed to help senior citizens and those • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for with certain disabilities with the costs of health care. It has four major components: people who are on certain public benefits, as getting married may jeopardize your eligibility without providing you the full measure • Medicare Part A - hospital insurance, covering inpatient stays in hospitals, skilled of protections other married couples enjoy. In addition, couples nursing facilities, and hospice care, and some types of home health care. who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable • Medicare Part B - medical insurance, covering medically necessary doctors’ services, to obtain a divorce, which can lead to serious negative legal and outpatient care, medical supplies, and preventive services. (Together, Parts A & B are financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice. known as “Original Medicare.”). • We are committed to winning universal access to federal marital • Medicare Part C - Medicare Advantage Plans, which are private health plans that protections for married same-sex couples through ongoing public contract with Medicare to provide both Part A and Part B benefits, as well as, most policy advocacy, and, where necessary, strategic litigation. Contact our organizations if you have questions, for updates and to learn often, prescription drug coverage. more about what you can do to achieve full equality for those who are LGBT. • Medicare Part D - prescription drug coverage added to Original Medicare, as well as to This Guidance is intended to provide general information regarding some types of Part C plans with no drug coverage. major areas of federal marriage-based rights and protections based on For most people, becoming eligible for Medicare is as simple as turning 65 years old, but how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any other aspects of the program – requirements and amounts of premiums, eligibility for specific facts or circumstances, and does not create an attorney-client certain types of plans, and timing for enrollment, among them – may turn on your work relationship. Past practice is no guarantee of future developments. While laws and legal procedure are subject to frequent change and history, your access to other health care, your health status, and your income. In several differing interpretations in the ordinary course, this is even more true situations, having a spouse alters the way you access these benefits. This publication is now as the federal government dismantles DOMA and extends federal designed to address those circumstances. protections to same-sex couples. None of the organizations publishing this information can ensure the information is current or be responsible For more information on the basics of Medicare benefits, see Centers for Medicare for any use to which it is put. and Medicaid Servs., Medicare & You 2013, at www.medicare.gov/publications/pubs/ No tax advice is intended, and nothing therein should be used, and pdf/10050.pdf, or Social Security Administration, Medicare, at www.ssa.gov/pubs/EN-05- cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. 10043.pdf. Contact a qualified attorney in your state for legal advice about your particular situation.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU MEDICARE SPOUSAL PROTECTIONS 2
Who is considered a spouse for purpose of Medicare? What if I entered into a civil union or comprehensive domestic partnership but I live in a state that does not recognize those The definition of spouse for purposes of Medicare is tied to the same spousal statuses and would not consider us to be spouses? definitions for purposes of Social Security. A person is a spouse for Am I eligible for Medicare spousal benefits? purposes of Medicare if: • She/he is validly married under the law of the state where she/he lives at Unfortunately, for the same reasons discussed above, the answer is likely the time of filing for benefits; or no. Medicare looks to the law of the place where you live when you apply for benefits, and if your home state does not recognize you as a spouse or • She/he has the same rights as a husband or wife for purposes of the allow you to inherit as a spouse, neither will Medicare. distribution of intestate personal property under the laws of the state where she/he lives at the time of filing for benefits. I used to live in a state that recognizes the spousal relationships See Social Security Administration, Program Operations System Manual, §§ of same-sex couples, but have since moved to a state that HI 00801.022, HI 00805.266, RS 00202.001; Social Security Handbook does not. Am I eligible for Medicare spousal benefits? § 306.1, at www.socialsecurity.gov/OP_Home/handbook/handbook.03/ handbook-0306.html. If you applied for the benefit while living in a state that respected your marriage or allowed you to inherit without a will as a spouse and only moved after you started receiving benefits, you should continue receiving Does this definition apply to married same-sex couples who your Medicare benefits in your new home state, regardless of its own live in a state that recognizes their marriage? relationship recognition laws because benefits are determined by your Yes. Social Security law provides that a person is considered a spouse if the marital status in the state where you applied for benefits. courts of the state where the person lives at the time of filing the application If you moved before applying for benefits, then as discussed above, would find that the couple was validly married, or if a spouse has died, the discriminatory state laws will likely block your access to spousal-based state where the spouse died would find that the couple was validly married. benefits until such time as Medicare law includes a “place of celebration” See 42 U.S.C.A. § 416 (h)(1)(A)(i). rule, recognizing your marriage for federal Medicare purposes if it was valid where entered, rather than the current “place of domicile” rule. Does this definition apply to couples who have comprehensive spousal statuses like civil unions or registered domestic MEDICARE ELIGIBILITY BASED ON SPOUSAL partnerships in those states that recognize those statuses? WORK HISTORY Although this is untested, we think the answer should be yes if you live in How does being married affect my eligibility for Medicare a state that recognizes your relationship as one in which you could inherit Part A? personal property without a will as a spouse would. The Social Security law states that even if the state law of domicile at the time of application Ordinarily, for a person age 65 or older to obtain Medicare Part A without would find that you are not married, you are nevertheless eligible for paying a premium, you must have paid Social Security and Medicare spousal benefits if you can inherit personal property without a will under payroll taxes while working for forty quarters, or about ten years. If you do your state’s law as would a “wife, husband, widow or widower.” 42 U.S.C. not have enough credits on your own, however, you may qualify for Part § 416(h)(1)(A)(ii). All of the state civil union and registered domestic A benefits without paying a premium or paying a reduced premium based partner laws allow intestate inheritance as a spouse, as do the more limited on your spouse’s work history. Under some circumstances, you may even laws in places such as Wisconsin. Consult a local practitioner to learn more qualify based on the work record of a deceased or ex-spouse. Otherwise, about your state’s relationship recognition and intestacy laws. you can buy into Part A, but you must pay a monthly premium of up to $441 and there are penalties for failing to buy Part A coverage when you are first eligible. What if we got married in a state that allows same-sex couples to marry, but I live in a state that does not recognize my marriage? Am I eligible for Medicare’s spousal-based Who is eligible for no-premium Medicare Part A based on a benefits? spouse’s work history? For purposes of Medicare, federal law likely prevents legally married same- To qualify for Medicare Part A with no premium based on a spouse’s work sex couples who live in states that discriminate against their marriages from history, you must accessing spousal benefits on equal terms. The Social Security statute uses • Be at least 65 years old; a “place of domicile” rule that assesses marital status based on the law of the state of domicile (i.e., primary residence), and this will likely result in • Be a United States citizen or a legal resident for five years; and the agency denying crucial benefits to same-sex couples. Our organizations • Have a current or former spouse who is at least 62 years old and receives will be working urgently to attain respect for all marriages regardless of or is eligible to receive Social Security or railroad retirement benefits where you live, but for Medicare, it will take changes in the law. (having worked at least 40 quarters, or 10 years) or has worked the same length in a government job where Medicare taxes were paid, with the following limitations: • If you are currently spouses: you have to have been spouses for at least one year before applying.
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• If you are divorced: you must have been recognized as spouses for equitable relief to people whose Part A or B enrollment or coverage rights at least 10 years, and you must be single at the time of application. “have been prejudiced by the error, misrepresentation, action or inaction • If you are widowed: you must have been recognized as spouses for of an employee or agent of the Government. This relief may include, but at least nine months under the law of the state where your spouse is not limited to, providing special enrollment and/or coverage periods See lived before she/he died, and you must be single. and appropriate adjustment of premium liability.” Social Security Administration, Program Operations Manual System, § HI 00830.001, at See the section above on who is recognized as a spouse for Medicare www.secure.ssa.gov/apps10/poms.nsf/lnx/0600830001. Whether and purposes. To qualify for a reduced premium based on a spouse’s work how this relief may be available for Medicare recipients who had previously history, the spouse has to have worked 30 quarters (at least seven and a half been disadvantaged by DOMA is likely to be a work in progress, and we years), but the same parameters apply regarding length of the marriage, will have to wait and see how the Administration approaches this issue. divorce, and death. For more general information about Part A enrollment, see Centers for SPOUSAL PROTECTIONS RELATED TO MEDICARE PART B Medicare and Medicaid Servs., Enrolling in Medicare Part A & Part B, at ENROLLMENT www.medicare.gov/Pubs/pdf/11036.pdf; What does being married have to do with enrolling in Social Security, Medicare, at: Medicare Part B? www.ssa.gov/pubs/EN-05-10043.pdf; As a general matter, when you turn 65, you have to enroll in Medicare Part www.ssa-custhelp.ssa.gov/app/answers/detail/a_id/400/~/how-to-qualify- B or face a 10% lifetime penalty for every year you fail to enroll. There for-medicare; are two exceptions, however: one, if you yourself are working and remain www.cms.gov/Medicare/Eligibility-and-Enrollment/OrigMedicare on your employer or union’s health plan (and for 8 months after you stop PartABEligEnrol/index.html?redirect=/origmedicarepartabeligenrol/01_ working), or two, if you remain on your spouse’s current employment-based overview.asp; 42 U.S.C. §426, § 1395i-2(d). health plan. So long as you are on your own or your spouse’s employment- based health plan, no late enrollment penalty applies. Additionally, being on a spouse’s health plan means that you will be able How do I enroll in Medicare Part A when I am qualifying to participate in a special enrollment period for Medicare Part B once that based on my spouse’s work history? spousal coverage ends. If you already receive retirement benefits based on your spouse’s work history from Social Security or the Railroad Retirement Board, you will be automatically enrolled for both parts of Original Medicare starting the first Who can qualify for the spousal exemption to Medicare Part day of the month in which you turn 65. B late penalties? If you are close to 65, but are not receiving retirement benefits, you have to To avoid penalties for enrolling in Part B: sign up. If you are eligible for Part A without having to pay a premium, you • You must be considered a spouse at the time you apply, can sign up at any time, starting three months before the month in which • You must have been spouses at the time you turned 65, you will turn 65. (By contrast, if you are required to pay a premium, you may only enroll during one of three designated enrollment periods.) • You must be covered through your spouse’s employer or union group health plan, and To enroll, you can call Social Security at 18007721213, enroll online at www.socialsecurity.gov/medicareonly/, or make an appointment at your • Your spouse must still be working. local Social Security Office, which you can find at www.secure.ssa.gov/ ICON/main.jsp. See the section above on who is recognized as a spouse for Medicare purposes. If you meet these criteria, you will not face a penalty when For more information, see www.medicare.gov/sign-up-change-plans/get- you enroll. parts-a-and-b/when-sign-up-parts-a-and-b/when-sign-up-parts-a-and-b. html; Centers for Medicare and Medicaid Servs., Medicare & You, at www. medicare.gov/publications/pubs/pdf/10050.pdf; Centers for Medicare and What if I have been receiving employment-based domestic Medicaid Servs., Enrolling in Medicare Part A & Part B, at www.medicare. partnership benefits through my partner, but we have no gov/Pubs/pdf/11036.pdf. state-wide legal status? Can I avoid late penalties when I enroll in Part B?
What if I am paying a premium for Part A because DOMA In most circumstances, no. The only plans that exempt you from the late prevented me from qualifying on my spouse’s work history? penalty are your own or that of a person recognized as a spouse. If, however, Can I qualify for premium-free Part A now? Can I get the you receive incorrect information about this from someone at Social money I paid for premiums back? Security and delay enrolling in Part B based on that error, you may be able to get equitable relief from those penalties under some circumstances. See It remains to be seen, but this is an area where we expect agency guidance to 42 U.S.C. § 1395p(h); Social Security Administration, Program Operations be forthcoming. At a minimum, it should be clear that you can ask to have Manual System, § HI 00805.322, at www.secure.ssa.gov/apps10/poms.nsf/ your premium reduced or eliminated going forward based on your spouse’s lnx/0600805322; Medicare Rights Center, Equitable Relief: Navigating the work history, but we do not yet know how the agency will process those Process, at www.medicarerights.org/fliers/Part-B-Enrollment/Equitable- requests or whether there will be any way to seek relief for past premiums. Relief.pdf?nrd=1. Medicare law allows the Social Security Administration to provide
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If I have been on my spouse’s health plan and that coverage is SPOUSAL PROTECTIONS RELATED TO PART D about to end, when can I enroll in Medicare Part B? ENROLLMENT If you didn’t sign up during the initial enrollment period (the seven How does being married or being considered legal spouses months surrounding your 65th birthday) because you were covered by your affect my enrollment in Part D? spouse’s employment-based group health plan, you are eligible to enroll Similar to Part B, if you are covered by a spouse’s health insurance, you during a special enrollment period. This means you can sign up for Part may be able to delay enrollment in Part D without paying late enrollment B any time you are still covered by your spouse’s health plan (though penalties. As well, the end of your coverage by your spouse’s health you may want to discuss the ramifications of enrolling in Medicare with insurance makes you eligible for a special enrollment period. your benefits administrator), or during the eight month period starting the month after either your spouse’s employment or the plan coverage ends, whichever comes first. How soon you receive the benefit depends How do I avoid late enrollment penalties for Part D? on when you apply. By contrast, if you have not been covered by a group health plan and you did not enroll in Part B during the initial enrollment If you don’t join Part D during the initial enrollment period, you can period, you are limited to enrolling during the general enrollment period of avoid paying late penalties for enrollment later if you have creditable January 1 – March 30 every year, which may result in a gap in coverage, as prescription drug coverage through the employer- or union-based health coverage will not begin until July 1. plan of your own, your spouse, or another family member. A plan is considered creditable if it is at least as good at the basic federal plan, and For more information about enrollment periods, see Centers for Medicare the employer or union providing the coverage will notify you each year if and Medicaid Servs., Medicare & You, at www.medicare.gov/Pubs/ the coverage is creditable. pdf/10050.pdf; Centers for Medicare and Medicaid Servs., Enrolling in Medicare Part A & Part B, at www.medicare.gov/Pubs/pdf/11036.pdf; Unlike Part B, this exemption from late penalties is not limited to plans Social Security, Medicare, at www.ssa.gov/pubs/EN-05-10043.pdf. through a spouse, and there is no requirement that your spouse must be currently working. Creditable plans may include retirement health benefits and COBRA coverage. How do I enroll in Medicare Part B if I have been on my For more information, see: spouse’s health insurance? www.medicare.gov/sign-up-change-plans/when-can-i-join-a-health-or- To enroll, you can call Social Security at 18007721213, enroll online at drug-plan/special-circumstances/join-plan-special-circumstances.html; www.socialsecurity.gov/medicareonly/, or make an appointment at your local Social Security Office, which you can find at www.secure.ssa.gov/ Centers for Medicare and Medicaid Servs., Medicare & You, at www. ICON/main.jsp. medicare.gov/Pubs/pdf/10050.pdf; Social Security, Medicare, at www.socialsecurity.gov/pubs/media/pdf/EN- 05-10043.pdf. What if I was on my spouse’s health insurance, but was assessed a late enrollment penalty because of DOMA? What if I had to enroll in Part B even while I remained on my What if I have been receiving employment-based domestic spouse’s health insurance because of DOMA? Can I get my partnership benefits through my partner, but we have no premium amount changed going forward? Can I get back the state-wide legal status? Can I avoid late penalties when I money I overpaid? enroll in Part D? It remains to be seen. Medicare law allows the Social Security Administration Yes. Medicare Part D requires only that you have creditable coverage, to provide equitable relief to people whose Part A or B enrollment or regardless of the source. coverage rights “have been prejudiced by the error, misrepresentation, action or inaction of an employee or agent of the Government. This relief may include, but is not limited to, providing special enrollment and/or If I have been on my spouse’s health plan and that coverage is coverage periods and appropriate adjustment of premium liability.” See about to end, when can I enroll in Medicare Part D? Social Security Administration, Program Operations Manual System, § HI If you didn’t sign up during the initial enrollment period (the seven months 00830.001, at www.secure.ssa.gov/apps10/poms.nsf/lnx/0600830001. surrounding your 65th birthday) because you were covered by your spouse’s Whether and how this relief may be available for Medicare recipients who employment-based group health plan, you are eligible to enroll during a had previously been disadvantaged by DOMA is a work in progress, and special enrollment period. This special enrollment period lasts 63 days, and we will have to wait and see how the Administration approaches this issue. if you are not receiving Part D coverage before it ends, there may be a late CAUTION: Even if these processes become available, they may or penalty. If you miss the deadline for enrolling during the special enrollment may not be helpful to you depending on your situation. Eligibility for period, you may enroll during the general enrollment period of October equitable relief is a highly individualized assessment that may be even 15-December 7. more complicated for seeking recoupment of Part B premiums paid For more information, see: while you still had coverage through your spouse than seeking to undo late enrollment penalties. We strongly encourage that you seek private www.medicare.gov/sign-up-change-plans/when-can-i-join-a-health-or- legal advice about your specific situation to help you make the cost/ drug-plan/special-circumstances/join-plan-special-circumstances.html; benefit analysis of whether to pursue any particular form of relief.
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Centers for Medicare and Medicaid Servs., Medicare & You, at www. Security Administration finds any differences between the information medicare.gov/Pubs/pdf/10050.pdf; the IRS provides and that which they have used previously, it is possible they will alter your monthly payment amount. See Social Security, Social Security, Medicare, at www.socialsecurity.gov/pubs/media/pdf/EN- Medicare Annual Verification Notices: Frequently Asked Questions, at 05-10043.pdf. www.socialsecurity.gov/pubs/EN-05-10507.pdf. Consult with tax and other counsel about your specific situation. How do I enroll in Medicare Part D if I have been on my spouse’s health insurance? What if I have already been paying higher premiums based You can enroll by phone at 1-800-633-4227, online at www.medicare. on my own income, and my premiums would have been lower gov/find-a-plan/questions/enroll-now.aspx, or through the website or if DOMA hadn’t prevented me and my spouse from being phone number of the plan of your choice. You can find information about considered jointly? Can I get my premiums adjusted? available plans in your area on Medicare’s website. Maybe. There is a process for requesting a new decision about your income- related monthly adjustment amount if you can show that your income has COMBINING SPOUSAL INCOME FOR MEDICARE PREMIUMS changed due to a change in marital status, but it is unclear how the Social Security Administration will be considering DOMA’s unconstitutionality How does having a spouse affect how much I pay for in this regard. Regardless of whether you may be able to make adjustments Medicare? to your past premiums, it should be clear that your amount can be adjusted A couple’s income is considered jointly in determining the amount of going forward. For more information about making these requests, see your premium for Parts B and D. Although most people pay the standard Social Security, Medicare Premiums: Rules for Higher-Income Beneficiaries, at premiums for Part B and Part D every month, if your income is above a www.ssa.gov/pubs/EN-05-10536.pdf. certain amount, you may pay more. For single individuals, the threshold for having to pay more is $85,000, but if you have a spouse, the threshold for having to pay more is $170,000 combined. The premiums continue COMBINING SPOUSAL INCOME FOR PROGRAMS TO ASSIST to increase at varyingly higher income levels, with different amounts for WITH MEDICARE COSTS individuals and spouses. How does having a spouse affect my ability to get help paying for Medicare? How are my Part B and Part D premiums calculated if I am A couple’s income is considered jointly in determining whether you are married? eligible for assistance with paying Medicare costs, including premiums, deductibles, and prescription co-payments. Couples with limited income If you are recognized as spouses (see the section above on who is recognized and resources may qualify for the Extra Help program, which assists in as a spouse for Medicare purposes), your premium is based on your and paying for the costs of Part D, assistance estimated to be worth about your spouse’s modified adjusted gross income (MAGI), as reported on your $4,000. To qualify for Extra Help, an individual’s resources must be limited IRS tax return from two years ago. Your MAGI is your adjusted gross to $13,300 and his or her income must be limited to $17,235. For spouses income plus your tax exempt interest income. living together, their resources must be limited to $26,580 and their joint CAUTION: For some people, having your MAGI considered together income must be limited to $23,265. with your spouse will lower your premium, while for others, it will raise your premium. For more specific information about income thresholds Many couples who qualify for Extra Help may also be eligible for Medicare and increased premiums, see Social Security, Medicare Premiums: Savings Programs, which are state-run programs administered through Rules for Higher-Income Beneficiaries, atwww.socialsecurity.gov/ Medicaid that provide assistance with Part A and B premiums, deductibles, pubs/10536.pdf. and co-pays. See our fact sheet on Medicaid for more information on being recognized as a spouse for that program, and see www.medicare.gov/your- medicare-costs/help-paying-costs/medicare-savings-program/medicare- Two years ago, DOMA forced me to file as “single.” How will savings-programs.html for more general information on Medicare Savings Medicare consider our income together? Programs. Even if you weren’t recognized as married two years ago, Medicare will combine the MAGI on the tax return you filed as “single” with the MAGI on How do I qualify for Extra Help if I have a spouse? the tax return your spouse filed as “single” to determine your joint income. To qualify for Extra Help: If you amend your federal income tax returns (see Tax Fact Sheet), and the amended returns change your MAGI, notify Social Security, sending • You must live in one of the fifty states or Washington, DC; them a copy of the amended return you filed and the receipt from the IRS. • You must be considered a spouse based on the law of the state where you Social Security should update its records and make adjustments. See Social live at the time of application; and Security, Medicare Premiums: Rules for Higher-Income Beneficiaries, at www. socialsecurity.gov/pubs/10536.pdf. • If you are living with your spouse and you have no other dependents, CAUTION: Be aware that even if you do not notify Social Security, any • Your combined income must be less than $22,695, AND amendments you make to past tax returns may have ramifications for • Your combined resources must be less than $26,120. your premium amounts. Each fall, Social Security seeks verification of income from the IRS to determine the next year’s premiums. If the Social See the section above on who is recognized as a spouse for Medicare purposes. Resources considered in this evaluation include money in a
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU MEDICARE SPOUSAL PROTECTIONS 6 checking or savings account, retirement accounts, stocks, bonds, mutual funds, or real estate other than your primary residence. They do NOT include the value of your primary residence, your cars, personal property (like jewelry, clothes, and furniture), burial expenses, or life insurance. There are also some circumstances where you may have higher income, but still qualify for Extra Help. For more information, see Social Security, Understanding the Extra Help With Your Medicare Prescription Drug Plan, at www.socialsecurity.gov/pubs/EN-05-10508.pdf; www.ssa-custhelp.ssa. gov/app/answers/detail/a_id/1435/~/income-and-resource-requirements- for-the-extra-help-with-prescription-drug-costs.
How do I apply for Extra Help? To enroll, you can call Social Security at 18007721213, enroll online at www.socialsecurity.gov/extrahelp/, or make an appointment at your local Social Security Office, which you can find at www.secure.ssa.gov/ICON/ main.jsp.
FOR MORE INFORMATION, CONTACT LAMBDA LEGAL lambdalegal.org
AMERICAN CIVIL LIBERTIES UNION aclu.org/lgbt
GAY & LESBIAN ADVOCATES & DEFENDERS glad.org
NATIONAL CENTER FOR LESBIAN RIGHTS nclrights.org
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
BANKRUPTCY Keep in Mind: Bankruptcy is a legal process designed by Congress to give debtors a fresh start from debts • The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding they can’t afford to pay. It allows them to “discharge,” or eliminate, certain debts, and prevents same-sex couples from state-conferred marriage rights. creditors from taking further action to collect on those debts. There are specific rules about • Federal agencies—large bureaucracies—may need and take some which assets you can keep if you go through bankruptcy, and which debts you can discharge. time to change forms, implement procedures, train personnel, Some kinds of debt are never dischargeable. If you are married, you have different options for and efficiently incorporate same-sex couples into the spousal- based system. bankruptcy filings. Now that the Defense of Marriage Act (DOMA) has been struck down, • Until same-sex couples can marry in every state in the nation, there this guidance provides basic information about bankruptcy filings, how being married matters will be uncertainty about the extent to which same-sex spouses will in bankruptcy proceedings, and what married same-sex couples can expect. Consult with a receive federal marital-based protections nationwide. For federal professional bankruptcy advisor for information and advice about your specific situation. programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities. What kinds of bankruptcy proceedings are available to individuals? • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. Married people can file for bankruptcy either singly or jointly (where both spouses file In some situations, it may require Congressional action or formal together). Businesses also can file for bankruptcy. There are many different kinds of bankruptcy rule-making by agencies. proceedings. Chapter 7 and Chapter 13 are most commonly used by individuals. • Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for In a Chapter 7 bankruptcy, the debtor’s assets are sold and any proceeds are used to repay people who are on certain public benefits, as getting married may creditors. The debtor is allowed to keep certain property, known as “exempt” property. What jeopardize your eligibility without providing you the full measure property counts as “exempt” is a matter of either state or federal law. With some important of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a exceptions, debts will be discharged, even if there are no non-exempt assets. Recent changes state that does not respect their marriage may be unfairly unable to the bankruptcy laws mean that if a debtor’s income (including a spouse’s income) is above a to obtain a divorce, which can lead to serious negative legal and financial consequences. People must make careful decisions when certain amount, a Chapter 7 filing will be converted to a Chapter 13 filing. and where to marry, even as we work together to end this injustice. Under a Chapter 13 bankruptcy, you will be required to follow through on a court-approved • We are committed to winning universal access to federal marital payment plan to repay your debts. You will be protected from creditors while the plan is in protections for married same-sex couples through ongoing public policy advocacy, and, where necessary, strategic litigation. Contact effect, and how much you have to repay will depend in part on how much of your assets are our organizations if you have questions, for updates and to learn exempt. more about what you can do to achieve full equality for those who are LGBT. For either kind of bankruptcy, there are limits on how frequently you can file. This Guidance is intended to provide general information regarding Because bankruptcy can damage your credit and have other serious consequences, it is major areas of federal marriage-based rights and protections based on how the various federal agencies have administered federal benefits. It very important to fully understand the advantages and disadvantages of filing. For more should not be construed as legal advice or a legal opinion on any information, consult with a reputable bankruptcy attorney. specific facts or circumstances, and does not create an attorney-client relationship. Past practice is no guarantee of future developments. While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true How can marriage or having been married impact a bankruptcy filing? now as the federal government dismantles DOMA and extends federal protections to same-sex couples. None of the organizations publishing Married couples can file a joint petition for bankruptcy. This means that your combined this information can ensure the information is current or be responsible property and debts are part of the same bankruptcy, and the debts of both spouses are for any use to which it is put. discharged. Filing a joint bankruptcy rather than two individual bankruptcies may result in No tax advice is intended, and nothing therein should be used, and financial savings, since filing bankruptcy requires paying a filing fee to the court, and may also cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. involve paying for a lawyer. It also may simply be more convenient to proceed in a single filing, Contact a qualified attorney in your state for legal advice about your rather than two bankruptcy filings. particular situation. There are other ways that marriage matters in a bankruptcy filing. If you are married, your spouse’s income will be included in determining whether you can file for Chapter 7 bankruptcy.
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And if you were married and get divorced, debts owed for “domestic support obligations” (such as alimony, maintenance or support) are non-dischargeable and get priority in bankruptcy, which means they will get paid off first if there are assets to pay them. While it may make sense for a married couple to file jointly in many cases, sometimes, you or your spouse might be better off filing alone. If only your FOR MORE INFORMATION, CONTACT spouse has significant debt, for example, it might make more sense for your AMERICAN CIVIL LIBERTIES UNION spouse to file individually. If you have significant joint debt, on the other hand, filing only one petition could mean that creditors are still free to go after the aclu.org/lgbt other spouse. The rules differ somewhat in community property states. For more information on how to assess whether you are better off filing singly or NATIONAL CENTER FOR LESBIAN RIGHTS jointly, consult with a reputable bankruptcy attorney. nclrights.org
LAMBDA LEGAL Who will be recognized as married for bankruptcy lambdalegal.org filing purposes? The federal bankruptcy courts administer bankruptcy proceedings. These are GAY & LESBIAN ADVOCATES & DEFENDERS governed by the Bankruptcy Code, but state law may determine which assets glad.org are part of the bankruptcy estate, and which are “exempt” (which means you get to keep them). The bankruptcy law says that which state’s law applies to determine your exemptions depends on how long you have lived in the state before you file for bankruptcy. • If you live in a state that respects your marriage: Now that DOMA has been overturned, married same-sex couples living in states that respect their marriages will be considered married for bankruptcy purposes. • If you always lived in a state that doesn’t respect your marriage: There is no federal statute or regulation that addresses how the bankruptcy courts are to determine whether a marriage is valid. You may still be recognized as married for bankruptcy purposes, although it is not entirely clear how state laws relating to exemptions will apply to joint filings by married same-sex couples. This may take some time to sort out. In our mobile society, it makes sense for the federal government to recognize all marriages that were valid where entered. We are working to ensure that the federal government respects married couples wherever possible. If you encounter problems, contact one of the legal organizations listed below. • If you married and lived in a state that respected your marriage but then moved to a state that does not respect your marriage: There is no federal statute or regulation that addresses how the bankruptcy courts are to determine whether a marriage is valid. You may be recognized as married for bankruptcy purposes, and depending on when you moved, the law of your former home state might apply to determine your exemptions. Again, it may take some time for the bankruptcy courts to sort out how they will handle joint filings by married couples in states that do not respect marriages of same-sex couples. If you encounter problems, contact one of the legal organizations listed below.
How can I find out more about how bankruptcy works, and how to file? One place to start is this website from the federal courts, which administer bankruptcies: • www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics.aspx For more information, see: • http://consumer.abi.org/consumers For information about how to file, see: • www.uscourts.gov/FormsAndFees/Forms/BankruptcyForms.aspx
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. The Supreme Court victory in United States v. Windsor striking down the discriminatory federal Defense of Marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the United States government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts.
TEMPORARY ASSISTANCE FOR Keep in Mind: • The Supreme Court’s ruling in Windsor applies only to the federal NEEDY FAMILIES (TANF) government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights. • Federal agencies—large bureaucracies—may need and take some What is TANF? time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal- Temporary Assistance for Needy Families (TANF) is a federally-funded program run by based system. states that provides limited cash assistance to extremely low-income parents and their • Until same-sex couples can marry in every state in the nation, there children. States may have different names for this program, but it can be called public will be uncertainty about the extent to which same-sex spouses will receive federal marital-based protections nationwide. For federal assistance, temporary assistance, general assistance or cash assistance. This program is programs that assess marital status based on the law of a state that extremely limited and provides small amounts of assistance to parents who have little or does not respect marriages of same-sex couples, those state laws no income and very few assets for limited periods of time. It also provides some assistance will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities. directly for their children. Since the passage of Welfare Reform in the mid-90s, there are severe restrictions on the program, which vary state by state, and many extremely low- • Securing fair access to federal protections that come with marriage for all same-sex couples in the nation will take some time and work. income parents do not qualify. In some situations, it may require Congressional action or formal rule-making by agencies. There is a requirement that adult recipients of TANF generally must work or participate • Before making a decision, it is essential that you consult an attorney in a welfare-to-work program, although the requirements vary widely from state to state. for individualized legal advice. This is particularly important for In many states, being eligible for TANF may also make you eligible for free child care, people who are on certain public benefits, as getting married may although child care may not actually be available. jeopardize your eligibility without providing you the full measure of protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unfairly unable to obtain a divorce, which can lead to serious negative legal and Who qualifies for TANF? financial consequences. People must make careful decisions when and where to marry, even as we work together to end this injustice. TANF is run and designed by states, so each state has different rules for who qualifies and what aid is available. Generally, TANF may be available to pregnant women, legally- • We are committed to winning universal access to federal marital protections for married same-sex couples through ongoing public recognized parents and their children, and in some circumstances, stepparents or legally- policy advocacy, and, where necessary, strategic litigation. Contact recognized relatives caring for children. This means that in states where same-sex parents are our organizations if you have questions, for updates and to learn more about what you can do to achieve full equality for those who not recognized under the law, non-biological parents may not be able to qualify for TANF. are LGBT. However, there are other assistance programs for relatives and non-relative caregivers who This Guidance is intended to provide general information regarding are caring for a child (but only if there is no legal parent raising the child). Some of these major areas of federal marriage-based rights and protections based on other programs may actually provide better aid than TANF. how the various federal agencies have administered federal benefits. It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. Past practice is no guarantee of future developments. Who will be recognized as married for TANF purposes? While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal There are federal rules that restrict how states run this program. protections to same-sex couples. None of the organizations publishing • If your state recognizes your marriage: this information can ensure the information is current or be responsible Now that Section 3 of the federal Defense for any use to which it is put. of Marriage Act (DOMA) has been overturned, every state that recognizes marriages No tax advice is intended, and nothing therein should be used, and between same-sex couples will recognize their marriages for all TANF purposes. cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. • If you are in a civil union or registered domestic partnership and your state recognizes your relationship: You may be treated as married for TANF purposes. Contact a qualified attorney in your state for legal advice about your particular situation. • If you live in a state that doesn’t recognize your relationship: You will probably not be recognized as married for TANF purposes.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN. AFTER DOMA: WHAT IT MEANS FOR YOU TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF) 2
How will being married affect my eligibility for TANF? If you and your partner or spouse are both legally recognized as parents, whether or not you are married should not afect your eligibility. If one spouse is not a legally-recognized parent, the income of a stepparent may be considered for TANF eligibility depending on your state, so in that FOR MORE INFORMATION, CONTACT circumstance, whether your marriage is recognized can directly affect your NATIONAL CENTER FOR LESBIAN RIGHTS eligibility for TANF. Also, whether you are recognized as married to your partner, and whether you are both recognized as legal parents, impacts who nclrights.org must participate in a welfare-to-work program and whether you can receive child care assistance. AMERICAN CIVIL LIBERTIES UNION Many states also have various marriage incentive programs designed to aclu.org/lgbt encourage parents to marry each other, but these are focused on encouraging biological parents to marry. GAY & LESBIAN ADVOCATES & DEFENDERS glad.org CAUTION: For many couples, being married is not beneficial for TANF purposes. People receiving TANF should speak to an attorney if possible about their benefits before deciding to marry. LAMBDA LEGAL lambdalegal.org
I have been told that I have to identify the biological father of my child to receive TANF. Is this true? Federal law currently requires parents who receive TANF to “cooperate” in efforts to identify the biological father of their child – the federal law requiring this is written in gendered terms and assumes that a biological father must be identified. Parents who have conceived using a known sperm donor may be required to identify their sperm donor as the father of their child in order to receive benefits. If you live in a state with laws that say a sperm donor is not a parent (and you followed those laws) or if a court has already ruled that your donor is not a parent, you should not have to identify him as a father – although you may have to push the agency to recognize this. But, if your donor could be a legal parent under your state laws, you may be required to identify him as a legal father. Identifying your sperm donor as a father can have severe results – it can mean that he will be recognized as the legal second parent of your child for all purposes under the law, including the ability to seek custody or visitation, and can prevent a non-biological parent who is raising the child from being recognized. If you are facing this situation, please contact one of the legal groups listed at the end of this publication for more information.
How can I apply for TANF? The application process will be different in each state. Usually, there will be a county office where you can apply, or you may be able to apply online.
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN.
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MIKYLA MILLER andKATRINA WHITWELL andGREG FLAMER; VIBE;FLETCHER KAREN GOODY and and THEODORESMALL; KAREN CARRILLO BARANOVICH; ANTIOCO MARY SEVCIKand BEVERLY Attorne Tel: 702.784.5200|Fax:702.784.5252 [email protected] Email: [email protected] Las Vegas,Nevada89169 3883 HowardHughesParkway,Suite1100 SNELL &WILMER LLP MAREK P.BUTE(NevadaBarNo.09989) BarNo.10569) KELLY H.DOVE(Nevada Tel: 213.430.6000|Fax:213.430.6407 [email protected] [email protected] [email protected] Email: [email protected] Los Angeles,California90071 400 SouthHopeStreet O’MELVENY &MYERSLLP ( RAHI AZIZI MELANIE CRISTOL DAWN SESTITO CHRISTOFFERSON CARLA Tel: 213.382.7600|Fax:213.351.6050 [email protected] [email protected] [email protected] Email: [email protected] Los Angeles,California90010 3325 Wilshire Boulevard,Suite1300 INC. FUND, ANDEDUCATION LAMBDA LEGALDEFENSE ( SHELBI DAY PETER C.RENN TARA L.BORELLI JON W. DAVIDSON
above counselwillcomply with above counselwillcomply with
Case 2:12-cv-00578Document1Filed04/10/12Pageof30 y s f or Plainti ff s UNITED STATES DISTRICT COURT COURT DISTRICT STATES UNITED LRIA10-2within10days) LRIA10-2within10days) DISTRICT OFNEVADA DISTRICT RELIEF AND INJUNCTIVE FORDECLARATORY COMPLAINT No. ______
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capacity asClerk-Recorder forCarson City, County; andALANGLOVER, official capacityasClerk for Washoe Clark County;AMYHARVEY,inher ALBA, inherofficialcapacityasClerkfor as GovernoroftheStateNevada;DIANA hisofficialcapacity BRIAN SANDOVAL,in LANZ andSARAGEIGER, andMEGAN CAFFERATA-JENKINS; CAFFERATA-JENKINS andFARRELL CAREN TARA NEWBERRY; MILLER; ADELETERRANOVAand Defendants, BrianSandoval,DianaAlba, Amy Harve Jenkins; MeganLanzandSaraGeig Miller; AdeleTerranova andTaraNewberry;Ca Karen GoodyandVibe;FletcherWhitwell pursuant to42U.S.C.§1983,seekingdeclaratorya formed committed, enduringfamily bondsequallywo celebrated hallmark ofacouple’scommitment to bu lesbians andgaymen insame-sex relationships. disrespected themarriages some ofthem have these couplestotheinferiorandnovelstatus denied therighttomarry inthe rights under theFourteenth Am
Case 2:12-cv-00578Document1Filed04/10/12Page2of30 v. Plaintiffs BeverlySevcik andMaryBara 1. 2.
Plaintiffs areeightloving, committed same Civil marriage playsauniqueroleinso Defendants Plaintiffs, in his official inhis endment totheUnitedStates State ofNevada(the“State”). er, byandthroughtheirattorneys, INTRODUCTION of registereddomestic - 2 entered inotherjurisdictions, because theyare novich; AntiocoCarrilloandTheodore Small; ren Cafferata-Jenkins and GregFlamer; MikylaMillerandKatrina nd injunctiverelieffor ild family lifetogether.Plaintiffs have y, andAlanGlover, rthy oftherespect affordedbythe Stateto ciety astheuniversallyrecognized and -sex couples.They bringthis action,
Constitution causedbytheir being TheStatehas instead relegated partnerships,andhas filethisComplaint against and FarrellCafferata- the violationoftheir allege asfollows:
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merit thesame family, parenti selective bar toaccessmarriage—despite apubl are grantedtoandimposed uponspouses.” myriad harms inflictedbytheStateon Plaintiffs seekequalaccess tothe institution of serious andirreparableharms uponPlaintiffsa their sexualorientationandsex. upon lesbiansandgaymentheirrelationships spouses—serves nopurposeotherthantoimpose same rights, protectionsandbenef alternative status thatthey areallowed toente which limits marriage solely is enshrinedbothinNevadast sexual orientationandsex.Thisdiscrimination (re their validmarriagesfromotherjurisdictions adequate justification,hasdepriv different-sex couplesthroughaccesstothestatus committed same-sex coupleresiding inReno,Nevada. committed same-sex coupleresiding in LasVegas,Nevada. committed same-sex coupleresiding in CarsonCity,Nevada.
Case 2:12-cv-00578Document1Filed04/10/12Page3of30 4. 3. 7. 6. 5. A.
This exclusionfrom andrelega marriage After barringlesbiansand Plaintiffs KarenGoodyand KarenVibe Plaintiffs AntiocoCarrilloandTheodoreSm Plaintiffs BeverlySevcikandMaryBara Plaintiffs to couplescomposed of“amale andfemale.” ng, andrelationshiprightsres atutes, andinarticle1,secti ed lesbianandgayNevadansof its” and“thesame responsibilities, them andothersame-sex couples. gay men from civilmarriage,the State created an PARTIES Nev. Rev.Stat.§122A.200(1)(a).TheState’s recognized asmarriages, basedsolelyontheir r that, withonly afew - 3 nd othersame-sex couplesandtheirchildren. marriage astheonlymeans tofully eliminate the ofmarriage. YettheState,without any a stigmatizing governmentlabelofinferiority and deniesPlaintiffs ic policyrecognizingthatsame-sex couples ferred toherein astheState’s “marriage ban”)
arelesbianindividualswho area tion toasecond-classstatusinflicts novich arelesbianindividualswhoa on 21oftheNevadaConstitution, all aregaymale individualswhoarea ponsibilities asdifferent-sex the righttomarry, ortohave exceptions, provides“the obligationsandduties.as equal treatment basedon
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issuing marriage licenses,solemnizing marriages Commissioner ofCivilMarriages for Washoe acting under colorof state lawatall times relevant tothis complaint. couples frommarriage. Ms.Albaisaperson through allofthesefunctionswithrelevantNeva county, andmaintaining recordsrelatingtomarriag licenses, solemnizing marriages, of CivilMarriagesforClarkCounty,Nevada. relevant tothiscomplaint. within themeaningof42U.S.C.§1983andwas laws arefaithfullyexecuted,includingthestat Sandoval isvestedwiththeexecutivepowerof of Nevada.Asdecreedbyarticle5,sections committed same-sex coupleresiding inLasVegas,Nevada. in CarsonCity,Nevada. Farrell Cafferata-Jenkins) arelesbian individu committed same-sex coupleresiding inLasVegas,Nevada. committed same-sex coupleresiding inReno,Nevada. committed same-sex coupleresiding inLasVegas,Nevada.
Case 2:12-cv-00578Document1Filed04/10/12Page4of30 15. 14. 13. B. 12. 11. 10. 9. 8.
Amy issued inherofficial Harvey Diana Albaissuedinherofficialcap Defendant BrianSandovalissu Defendants Plaintiffs MeganLanzandSaraGeig CarenCafferata-J Plaintiffs Plaintiffs AdeleTerranova andTaraNewb Plaintiffs MikylaMiller andKatrina Mill Plaintiffs FletcherWhitwell andGregFl certifying otherpersonswhoma enkins andFarrellCafferata-Jenkins(fullname, Janet 1and7oftheNevadaConstitution, Governor within themeaning of42U.S.C.§1983andwas als whoareacommitted same-sex coupleresiding e’s marriage ban.GovernorSandovalisaperson - 4 Ms.Alba’sdutiesincludeissuingmarriage County, Nevada.Ms.Ha ed inhisofficialcapacity da laws,includingthose , certifyingotherpersons whomay solemnize a acting undercolorofst capacityastheCountyClerk and e licenses.Ms.Albamustensurecompliance State andhasthedutyto er arelesbianindividualswhoa acity astheCountyCl amer aregaymale individualswhoarea er arelesbianindividualswhoa erry arelesbianindividualswhoa y solemnizeamarriage inthe asGovernor oftheState rvey’s dutiesinclude ate lawatall times that excludesame-sex erk andCommissioner seethattheState’s
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irreparably ifnotenjoined. alleged herein, proximately caused the harm alleged herein, andwillcontinue toinjure Plaintiffs control, intentionallyperformed, complaint. meaning of42U.S.C.§1983andwas including thosethatexcludesame-sex couplesfro Glover must ensure compliance throughallofth Bureau andhisdutiesinclude solemnize amarriage inthecity,andmaintaini Nevada. AstheClerk-Recorder,Mr.Gloverovers U.S.C. §1983andwasactingundercolorofstate exclude same-sex couples from marriage. Ms. deprivation undercolor ofstatelawri ensure compliance throughallof marriage inthecounty,andmaintaining recordsre Civil Procedure,and28 U.S.C. §§2201and2202. preliminary andpermanent injunctive reliefpursu Plaintiffs’ claims tookplacewithin theDistrictof Nevada. reside withintheDistrictandStat and lawsoftheUnitedStates. to 28U.S.C.§§1331and1343becausethematters incontroversy ariseunder theConstitution
Case 2:12-cv-00578Document1Filed04/10/12Page5of30 17. 16. 21. 20. 19. 18.
Each oftheDefendants,andthosesubject Alan Gloverissuedinhis officialcapac This Courthastheauthor Venue isproperinthisCourt under28 This Courthasoriginaljurisdictionover Plaintiffs bringthisactionunder42 issuing marriage licenses, cer JURISDICTION ANDVENUE JURISDICTION participated in,aidedand/orab these functionswithrelevantNe e ofNevada,andasubstantialpart acting undercolorofstatelawat ity toenteradeclarator ghts securedbytheUnitedStatesConstitution. - 5 ng recordsrelatingtoma Harvey isapersonwithinthemeaning of42 ese functionswithrelevantNevadalaws, ant toRules57and65of theFederalRulesof m marriage. Mr.Glover law atall times relevant tothis complaint. lating tomarriage licenses.Ms.Harveymust ees theoperationsof U.S.C. §§1983and1988toredressthe U.S.C. §1391(b)becauseallDefendants ity astheClerk-RecorderforCarsonCity, the subject matter of thisaction pursuant totheirsupervision,direction,and tifying otherpersonswhomay y judgment andtoprovide etted insome manner theacts vada laws,includingthosethat
of theeventsthatgaveriseto alltimes relevanttothis rriage licenses. Mr. the city’s Marriage is apersonwithinthe
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the State. employee workingbehindthecounterstated“You ha $75 fee,andcomplete amarriage application.Wh prepared topresentvalid forms Carson CityMarriageBureauin another spouse.Nev.Rev.Stat.§122.020(1). closely relatedtohisorherli Plaintiff isovertherequisiteage legally qualifiedtomarry underthelawsofNevada that different-sex spouses andtheir families enjoy. children assecond-classcitizens status, theStatesendsapurposef marriage bans,anditsrelegationofsame-sex coupl domestic partnership,subjectsPlai exclusion ofPlaintiffsfrom marriage, relegating reputation, standinginthecommun Instead, Plaintiffs areconsignedtoregistered by theStatetootherfamiliesth families and nurturetheirchildren,but must dosowithoutthe same dignityandrespect afforded members whofreelymay marry. Plaintiffsare same lifeastheirheterose challengesoffamily them andtheirchildrenofequaldignitysecu
Case 2:12-cv-00578Document1Filed04/10/12Page6of30 23. 22. 25. 24. A.
Plaintiffs’Attempts toMarry Plaintiffs areresidentsof This Courthas personaljurisdictionover Defendantsbecause theyaredomiciled in On April3,2012,BeverlySevcikandMaryBaranovich appearedinpersonatthe But forthefactthat they areofthesa fe partner,andnoPlaintiffis rough accesstothe universallycelebrated statusofmarriage. of identification toprovetheir Carson City,Nevadatoseekamarriage license.Theybothwere ul messagethat theStateviews who areundeservingofthelegalsanction,respect,andsupport of 18,noPlaintiffisprecludedfr ntiffs tolegalvulnerability a STATEMENT OFFACTS ity, andtraditionsprestigeasmarriage. TheState’s Nevada whoexperiencethesame joysandshoulderthe domestic partnership,whichlacksthesame - 6 and Marriages inOtherJurisdictions. xual neighbors,co-workers,andothercommunity productive, contributingci them tothesecond-classstatusofregistered rity. Throughitsconstitutionalandstatutory en thecouplerequested es tothelesserregistereddomestic partnership andwishestomarry intheState. Each me-sex, eachunmarried Plaintiffcoupleis ve togotheSecretary ofState’sofficeto recognized bytheStateashaving names andages,paytherequired nd relatedstress,whiledepriving
lesbians andgaymen andtheir om marriage asaresultofbeing tizens whosupporttheir a marriage license,the
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that sheandKarenG.wished toobtainamarriage officer thenaskedthem “Do youhaveaman with wanted toapply foramarriage license forthetwo building asecurityofficerasked however, fromevengoingthroughsecuritytoenter and ages,paytherequired$60fee,comple license. Theybothwerepreparedtopresentva Was appeared inpersonatthe orientation. Nevada’s prohibitiononmarriage forsame-sex c Alba’s agentoremployee deniedthecouple’s could notbecausethestatedoesissuemarri indicated thattheyhadalreadyre have tocontact the SecretaryofStatetoregist of DefendantAlbaforamarriage licenseapplic applicants must bea“brideandgroomonly.” they approached thecounter toapply forama prove theirnames andages,paytherequired$60f to seekamarriage license. Theybothwereprepar person attheMarriageBureau fortheOfficeof orientation. marriageprohibition on forsame-sex couples obtain amarriage licensebyanemployee ofDe employee refusedtheirrequest.Beverly andMa already registeredasdomestic partnersinNe register asdomestic partners,
Case 2:12-cv-00578Document1Filed04/10/12Page7of30 27. 26.
On April1,2012,KarenGoody(“KarenG.”)andVibeV.”) On April6,2012,AntiocoCarrilloandTheodoreSmall (“Theo”)appearedin we don’tdothathere.”When hoe CountyMarriageBureauin about thepurposeofth gistered asdomestic partnersandwishedtomarry, shesaidthey vada andwantedtogetamarriage license,the rriage licensethey sawasign indicatingthat er asdomestic partners.When AntiocoandTheo and Plaintiffs’respec - 7 request foramarriagelicense,basedsolelyon Antioco andTheodore askedanagentoremployee te amarriage application.Theywerebarred, lid forms of identification toprovetheir names age licensesforsame-sex couples.Defendant ation, andsherespondedth fendant GloverbasedsolelyonNevada’s the ClerkforClarkCountyinLasVegas,Nevada ry accordingly weredenied theopportunityto ouples andPlaintiffs’ respectivesexandsexual you?” When you?” KarenV.saidno andexplained ed topresent validforms of identification to ee, andcompleteamarriage application.As of them tomarry oneanother.Thesecurity license, thesecurity guard the MarriageBureau.When theyenteredthe eir visit,andthec Beverly clarifiedthattheyhad Reno, Nevadatoseekamarriage tive sexandsexual ouple saidthatthey at thecouplewould toldthemthatthey
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took theirapplicationforamarriage licenseto names andages,paytherequired$60fee,co marriage license.Theybothwere Marriage BureaufortheOfficeofClerk and sexualorientation. solely onNevada’sprohibitionmarriage forsame denied theopportunitytoobtainamarriage licen for acivilpartnershipwiththeSecretaryofSt could not.KarenV.askedifth their marriage onthegroundthatitisamarriage another jurisdiction andseek throughthissuit to ground thatitisamarriage enteredby and seekthroughthissuittoe ground thatitisamarriage enteredby seek through thissuit to endtheState’s curren Plaintiffs’ respectivesex their request,basedsolelyonNevada’sprohi partners. WhenGregclarifiedthattheywere Defendant Alba,theyweredirected woman.” Theemployee behindthecountertheni “Two women can’tapply.”These employee ofDefendantHarveywhowasstanding
Case 2:12-cv-00578Document1Filed04/10/12Page8of30 28. 31. 30. 29.
On April4,2012,FletcherWhitwell andGreg Caren Cafferata-Jenkins andFarrell Caffera Adele TerranovaandTaraNewberrywere Mikyla MillerandKatrinawerevali and sexualorientation. nd theState’scurrentdenialof ey couldatleast filloutthema prepared topresent valid forms of identification toprovetheir curity officeraddedthatithasto“bebetweenaman anda totheSecretaryofState’swe twoindividualsofthesame sex. two individualsofthesame sex. bition onmarriage forsame-sex couplesand ate.” KarenG.andV.accordingly were there togetamarriage license, theclerkdenied - 8 t denialofrecognition theclerk,whoisanagentoremployee of Clark CountyinLasVegas,Nevadatoseeka se byanemployeeofDefendantHarveybased end theState’scurrent denialofrecognition of mplete amarriage application.When thecouple entered bytwoindividuals ofthesame sex. ndicated thatthecouple’ behind theMarriageBureau counterresponded -sex couplesandPlaintiffs’respectivesex validly married inanotherjurisdiction validly dly married inanotherjurisdictionand ta-Jenkins werevalidlymarried in recognition oftheirmarriage onthe Flamer appearedinpersonatthe rriage licenseapplication,andan bsite toregisterasdomestic of their marriage onthe s optionwasto“apply
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married toeachotherintheState, domestic partnership.Nev. Rev.Stat.§122A.100. with adifferentperson,are not acts” and“promot[ing] allowing same-sex couplestomarry wouldlead eligible toregister if they shareacommonreside the stateasdomestic partners.Nev.Re one another’s livesinanintimate and committed re Partnership Act”toalloweligib not experimentwithNevada’schildren.”Ot One 2002flyer,forexample,urgedvoterstoadopt and thatboththeinstitutionofmarriage andchildre relied onfalse,stigmatizing messages thatsame-sex amend thestateconstitution,pursuan approved themeasure biennially(duringthe200 between amaleandfemale personshallberecogni general electionballotthat number ofsignaturesrequired toplaceapr couple. that itisamarriageentered bytw through thissuittoendtheStat
Case 2:12-cv-00578Document1Filed04/10/12Page9of30 36. 35. 34. 33. B. 32.
In 2009,theNevadastatelegislatureenact Many of thecampaign messages usedtopersuade voterstoamend theconstitution In 2000,agroupcalledtheCoalitionforth Nevada RevisedStatutes§122.020(1)restri Same-Sex CouplestoanInferiorRegi Nevada’s ExclusionofSame-SexCouples Megan LanzandSaraGeigerwerevalidly homosexuality.” year. Theproposedamendment e’s currentdenialof related bybloodinaway thatwouldpreventthem frombeing le same-sex anddifferent-sexcoupleswhohave“chosento share o individualsofthesame sex. areatleast18yearsofage, a t toNev.Const.art.1,§21. v. Stat.§§122A.100,122A.010etseq.Couples are oposed amendment toNevada’s Constitution onthe her campaignmaterial fa - 9 toschoolsteaching“explicithomosexual sex 0 and2002generalelections),asrequiredto nce, arenot married or theconstitutionalamendment bysaying“Let’s zed andgiven effectin thisstate.” Thevoters recognitionoftheirmarriage ontheground lationship of mutual caring”toregister with n needtobeprotected ThelawtookeffectonOctober 1,2009. couplesareinferiorto stered DomesticPartnership Status. ed alawentitledth e ProtectionofMarri married inanotherjurisdictionandseek fromMarriageandConsignmentof cts marriage toamale andafemale provided that“Onlyamarriage nd arecompetent toconsentthe lsely suggestedthat in adomestic partnership from couples. same-sex different-sexcouples, e “NevadaDomestic age collectedthe
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and protections.Forexample, asistruefor di domestic partnersasequaltodi Nev. Rev.Stat.§122A.200(1)(d).TheStatethus derived fromstatutes,administ benefits, andaresubjecttothesame responsibil exceptions describedbelow,registereddomestic pa Nev. Rev.Stat.§125.450 etseq.andNev.Rev.Stat partners inthesame manner asspouseswithre domestic partnership,Nev. Rev. Stat.§126.051.Th domestic partnershiparepresumed parentsof domestic partners“withrespect to support, Nev.Rev.Stat.§125.150etseq. dissolution oftherelatio 123.070 etseq.;community propertyandcommun administrative regulations,courtrules,government to thesame responsibilities, and thatasurviving domestic partner“has thesame or anyotherprovisionssource derived fromstatutes,administ benefits, andaresubjecttothesame responsibil statute alsoprovidesthatform or anyotherprovisionssource agreements, Nev.Rev.Stat.§123A.010etseq. domestic partnersenjoyright or sourcesoflaw,asaregr
Case 2:12-cv-00578Document1Filed04/10/12Page10of30 37. 38.
Pursuant toNevadaRevi The lawexpresslyprovidesthattheright nship infamilycourt,Nev.Rev. anted toandimposed uponawidoworwidower.”Registered obligations anddutiesunderlaw,whetherderivedfrom statutes, s andresponsibilitiesrelated er domestic partners “have th rative regulations,courtrules, rative regulations,courtrules, fferent-sex spousesforthefullspectrum ofparentingobligations s oflaw,asaregrantedtoandimposed uponformer spouses,” s oflaw,asaregrantedtoandimposed uponspouses.”That achildofeither sed Statutes§122A.200(1)(a),andwithonlyafew - 10 achildborntodomes fferent-sex spouses,both spect toallocationofch ; postnuptialagreements, Nev.Rev.Stat.§ ities, obligationsanddutiesunderlaw,whether ities, obligationsanddutiesunderlaw,whether treats same-sex couples whoareregistered ity debt,Nev.Rev.Stat.§123.220etseq.; policies,commonlawor rtners “havethesame rights,protectionsand rights,protectionsandbenefits,issubject . §125C.010etseq.;ch e Statealsotreatsregistereddomestic them thesame are asthoseofspouses.” s andresponsibilitie Stat. §125.010etseq.;andspousal to, forexample, pre-marital e same rights,protectionsand government policies,common law government policies,common law tic partnerduringthe ild custodyandvisitation, members ofaregistered s ofregistered ild support,Nev.Rev. anyotherprovisions
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tie same-sex parentsandtheirchildrenarele same-sex couplesmarriage, theStatereinforcesviewheldbysome thatthefamily bondsthat means ofdemonstrating tothirdpartiesalegalba affords officialsanctuary tothefamily unit, stability, permanence, andlegitimacy thatchildren include particularharms forsame-sex couples other couples,throughmarriage.” sharing alife together, allwewantis tocommem We’ve seeneachotherthroughthick andthin,insi Sevcik saidofherlifepartner sanctioned ceremony andritualthatmeans somu the couple’sintentionsforfutu wedding. Antioco’sfamilyseesmarriage astheh Theo Small have family andfriendseagerlyaw personal happiness,andtheirself-determination. respect forthatcommitment asothersdosimply byinvokingtheirmarried status. adequately tocommunicateothersthedeptha access tothe familiar language andlegal label of which areof constitutionaldimension. inferior, same-sexcouplesandtheirchildrensu of thesedifferences,coupledwiththestigma of similar rightsandresponsibiliti et seq. Stat. §125B.020 etseq.; andaccesstojointa
Case 2:12-cv-00578Document1Filed04/10/12Page11of30 42. 41. 40. 39.
The substantive anddignitary inequities imposed oncommitted same-sex couples Plaintiffs’ exclusionfrom marriage frustr The statusofmarriage hasuniquesocial Although registereddomestic partnership Mary Baranovich,“We’ve beent es, notabledifferencesremain be re. Heisdisheartenedthat offering parentsandchildren afamiliar and public ss consequential,enduri - 11 nd step-parentadoption,Nev.Rev.Stat. §127.010 ’ children,whoareequallydeservingof the aiting thedaythatthey ffer bothtangibleanddignitaryharms, allof exclusion andofbeingbrandedbygovernment as nd permanence oftheircommitment, ortoobtain marriage, Plaintiffsareunableinstantly or ch tohislovedones.AsPlaintiffBeverly sis fortheparent-childrelationship. Bydenying orate our love foreachotherinthesame wayas For example, PlaintiffsAntiocoCarrilloand onorable waytorespectone’slifepartnerand ckness and inhealth. of different-sexspousesenjoy.Civilmarriage significanceandrecognition.Without ates their lifegoals anddreams, their and civilmarriage en the lawbarshim from thestate- ogether foralmost 41years. tween thetwostatuses. Because ng, andmeaningful than canattendthecouple’s After fourdecadesof tail substantially
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those ofdifferent-sexparentsa Stat. §398.452.Bytreating same-sex couplesas appointment asanotary,Nev.Rev. St process notunlikethatrequiredtolicensea partners byfilinganotarized others viewthecouples’relationship.Same-s marriage withofficialStatesanction, which can commitments arepreferredandmoresignificant. marriages andnotregistereddomestic partners solemnize aregistereddomestic partnership, law, Nev.Rev.Stat.§122.010(1),butthela invites disrespectinschool, Geiger, andtheexpecteddaughter Terranova andTaraNewberry,CarenFarrell same-sex couples, support asother families. TheStatehas noadequate other families, undeserving ofmarriage, andnot unit, andlikewise understandwhentheStatehas d to beingmarried. medical settingsandinmoments possibility thatothers mayquestiontheirfam their childrenaccordingly must livewiththevulner others thesignificance andpermanence oftheir deprived ofthefamily securitythatinheresin
Case 2:12-cv-00578Document1Filed04/10/12Page12of30 45. 44. 43.
The Staterefusessame-sex couplesthe Couples whomarry inNevada havetheir Children fromayoungageunderstandthat
including thechildren ofPlaintiffsFletcher Whitwell andGreg Flamer, Adele on theplayground,andineveryothe form withtheSecretaryof nd theirchildren.Same-sex pare of crisis—in awaythatspouse of of MikylaandKatrinaMiller,with at. §240.010;ortoregister as business, Nev.Rev.Stat.§76.100;toapplyfor w providesnostate-approvedmechanism to - 12 Nev. Rev. Stat. § 122A.110. By solemnizing only Nev. Rev.Stat.§122A.110.Bysolemnizing ilial relationship—in social,educational,and areadyandfamiliarme ex couplesinsteadmust registerasdomestic hips, theStatesendsamessage thatmarital familial relationships. Same-sex couplesand negatively affecthowtheirfamily members and entitled tothe same societalrecognitionand Cafferata-Jenkins, andMeganLanzSara unworthy ofstate-sanctioned solemnization, the eemed aclassoffamilies aslessworthythan ability and stress inflictedbythe ever-present interest to justifymarking thechildren of same opportunitytocelebratetheir State, Nev.Rev.Stat.§122A.100,a marriages solemnized pursuanttostate marriage signifies anenduringfamily nts andtheirchildrenthusare s canavoidbysimple reference r sphereoftheirlives. anathlete’sagent,Nev. Rev. abadgeofinferioritythat thod ofcommunicating to
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State deniesthem thedignity,respect,andstat domestic partnershiplaw. Diff available tosame-sex couples. life, inwaysthatwouldbele couples andtheirchildrenbyothe insurance for family members. TheStatealso encourages disrespect of committedsame-sex couples andtheirchildrenfrom important safety for purposesofanarrayimpor them. ManyprivateentitiesdefertotheState’sbe couples, butalsocausesothers partnership, notonlyproliferates confusion re relegates same-sex couplesandtheirchildren to imprimatur ofthegovernment, Nevada’sstat name changecanbegranted,whichisnot of publiclyprovingtoothersthatoneisnotengagi 41.280. Thisprocessnotonlyrequirestime andexpense,butalsoimposes thedemeaning burden and topublishnoticeoftherequestedname chan petition instatecourt certifying th wish toadopt afamily name atthetime thatthey partners insteadmust obtainacourt-orderedname and NevadaDepartment ofMotorVehicleswith sex spouses,whocaneffectaname changethro to themselves, theirchildren, andthe communityth process foronepartnertoadopttheother’ssurnam marry.
Case 2:12-cv-00578Document1Filed04/10/12Page13of30 48. 47. 46.
Plaintiffs donotchallenge theinclusionof The government isapowerfulteacher ofdiscriminationtoothers.Bearing the Nevada lawalsofailstoaffordregister ss likely tooccurand more readily corrected ifmarriage were erent-sex couples,however, have to followthegovernment’s exam tant benefits,oftenresulting rs inworkplaces,schools,busine at theyareneitherafelonnor requiredofdifferent-sexspouses. - 13 utory andconstitutionalmarriage ban,which garding thelegal rights of committed same-sex ure affordedtodifferent-sexcoupleswhocan ugh thefederalSocialSecurityAdministration theunfamiliar andlesser statusofdomestic amarriage certificate, netssuchasprivate ge inanewspaper.Nev.Rev.Stat.§§41.270, enter intoalegalrelationship tofile averified change.Thisrequiressame-sex coupleswho stowment ofmarital statusindefining“family” ng incriminal orfraudulentactivitybeforethe e, animportant riteformany couplestosignify at theyareforming afa ed domestic partnersthesame streamlined different-sexpartnersin theState’s in the exclusion of same-sex in theexclusionofsame-sex attempting todefraudcreditors, ple indiscriminating against two optionsforprotecting their sses, andothermajor arenasof employer-provided health registereddomestic mily. Unlikedifferent-
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as domestic partners,astepthatnodifferent-s understood andrespected,thenove families: marriage, whichcommunicatesastatus Beverly’s children—then ageseight,ten,andtw such asharassment fromtheirneighbors,bei worried aboutfacingdiscrimination commonlyvisi careful nottopurchasematching lives toeach otheronOctober2,1971 andbought ri that theymight someday identifyopenlyasaco grandchildren andwillcelebrate their couple residinginCarsonCity,Nevada.Th same state-sanctioned commitment toeachothe commitment toloveandcherishoneanother,but 122A.500. domestic partnershipandonlyifthesame-sex c marriages. Instead,asame-sex couple’smarriag refuses, however,torecognizemarriages entered regularly arehonoredasmarriages respected status. contrast, committed same-sex couplesaredenied
Case 2:12-cv-00578Document1Filed04/10/12Page14of30 52. 51. 50. C. 49.
Beverly andMarydidnotdream whenthey Plaintiffs BeverlySevcik,age73,andMa Plaintiffs arelovinganddevotedsame Equality. DenialMaterial Respects AndAreInjuredByTheState’s ofMarriage Plaintiffs Are SimilarlySituatedTo Additionally, marriages enteredbydifferent Plaintiffs Beverly SevcikandMaryBaranovich rings forfearofhavingtheirrelationshipdiscovered. They by theState,withoutanyadditi forty-first yeartogether asacouple inOctoberof thisyear. l alternativestatus ey areproudgrandmothe ng firedfrom theirjobs - 14 ex spousesneedundertak ouple paysthefeerequired r asspousesdothroughcivilmarriage. uple. When BeverlyandMarycommittedtheir elve—whom theywereraisingtogether. e may onlyberecognizedasaregistered by same-sex spousesinotherjurisdictionsas that option andrelegatedtothelatter,less- with deepsocial significance thatisreadily ted uponlesbiansandgaymen atthattime, theStatedeniesthemabilitytomake the ngs tosignify theirrelationship, they were Different-SexNevadaCouplesInAll -sex coupleswhohavepledgedtheir ry Baranovich,age76,arealesbian of registereddomes begantheirrelationshipdecadesago -sex spousesinotherjurisdictions onal stepsrequired.TheState , andpotentiallylosing rs totheirseveral e. Nev.Rev.Stat.§
of couplesregistering tic partnership.In
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to oneanotherforlife.Antioco knowsthatTh years andhaveregistered as community involvement. Theyhavebeeninalo educators. Antiocoand Theohaveknown Education Association thatallowsparents,stud recently nominated asaClassroom Superhero,as Theo isateacherandhasworkedinthesame sc provides support andadvocacy foradults andchildr residing inLas Vegas,Nevada.Antiocoistheex only boxthatfeelsfitting:“married.” They arefrustrated that notevenfourdecadesof to confrontthequestionofhow others. of heterosexualsbecauseshecannotunderstand amend Nevada’sconstitu cannot earnthem thathonoredstatus.Maryfe someday bepermitted tomarry, theyhavecome and Marycouldnothaveimagined whentheyfi 1950s—police routinelywouldraidth catered tolesbians—oneofthe abnormal andunhealthy.Sherecallsvividlythat Being gaywasstillunderstoodasamental illness learn thatshe wasgayuntilshe took an“abnorma
Case 2:12-cv-00578Document1Filed04/10/12Page15of30 53. 56. 55. 54.
Mary hadalwaysknownthatshewasdi Antioco and Theowish tomarry because theylove eachother andarecommitted Plaintiffs AntiocoCarrillo,age44,andTheoSmall,43,areagaymale couple Beverly andMarygotoalloftheirmedi Plaintiffs Antioco CarrilloandTheodoreSmall tion thatallowingsame-sex couples domestic partnersinNevada. only placeslesbians couldassoci to identifythemselves onhospitalanddoctor’soffice forms. e facilitieswiththeirnight each othersincethemid-1990s throughmutual - 15 lt deeplyhurtbymessages from to thecampaign eo is“theone”forhim, Antiococannot because ents, andcommunitymembers toshow supportto hool districtfornearlytwo decades.Theowas rst fellinlovethatsame-sex couplesmight towonderwhytheirdecadesofcommitment how herlifelongcommitment toBeverly harms family lifetogetherwill whenshebegangoingtobarsthatquietly ving, committed relationshipfor more thanfive partofaprojectcreated bytheNational ecutive directorofanon-p l psychology” collegeclassinthe mid-1950s. at thattime, andshe en livingwithHIV/AIDS fferent from otherwomen, butdidnot cal appointments togetherandoftenhave to marry wouldhurtthemarriages ate witheachotherinthe sticks drawn.AlthoughBeverly was taughtthatit
allow them to checkthe rofit organizationthat in southern Nevada.
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 a second-classstatusthatbrands They havenot registered asdomestic partnerswith December of2005,KarenV.askedG.tomarry her,andtheyhavebeenengaged eversince. have beenin aloving,committed relationship mentors youththroughaphilharmonic program called financial advisor.KarenV.alsoisapercus Reno, Nevada.KarenG.worksasasalesagentfor amedical supplycompany,andKarenV.isa access tothelanguagethat readilyexpresses proud oftheirrelationship thatshe communicates toothers the same depthofcommitmen years. Thecoupleanxiouslyawaitthedaythatth parents weremarried for50yearsbefore herfath secondary statuswithme?” when sheproposedtoKarenG.,herquestion
filed withthe SecretaryofState. his “bestself.”Eachknowsthat see himself withanyoneelse.ForTheo, Antiocois Nevada areabletodo,throughmarriage. witness totheir loveandcommitment foreachothe live afulllife. Theybothlongforthedaywhenth a wedding.AsAntiocoputsit,hedoesnotwantthecrumbs ofafulllife;hewantsforthem to do sowould,forthem, feelinauth couple didnothaveawedding-likeceremony toceleb before anotarypublicinorderto
Case 2:12-cv-00578Document1Filed04/10/12Page16of30 58. 57. 59.
Plaintiffs KarenG.,age51,andV In 2010,inthemiddle ofabanklobby,the Marriage has playedasignificant roleinbothwomen’s families. KarenG.’s Plaintiffs Karen GoodyandKarenVibe their relationshipas“lessthan”ot Itwasaquietandsterilepro the otherwillalwaysbetherefor completeadomestic partnershi entic. Theydonotwantsometh wants to“telltheworl sionist withtheRenoPhilharmonic Orchestraand their lifelongcommitment suchas“spouse” or was “Will youmarry me?” andnot“Will youenter a - 16 since meeting duringthe summer of2005.In er passedaway,andKarenV.’sformorethan40 ey canhavesuchastat theStatebecause theydonotwanttoenterinto ey caninvitetheirfamily andfriendstobear r inthesame waythatdifferent-sexcouplesin the essentialingredientth t astheirparents’marriages. KarenV.isso Discovery Music.KarenG.andV. rate theirregistration,th ., age37,arealesbiancoupleresidingin d aboutit,”butisfrustrated nottohave two ofthem raised cess. When friendsaskedwhythe p registrationform, whichthey hers. As KarenV.describesit, ing “like”awedding;theywant him, nomatter whathappens.
e-sanctioned weddingthat theirrighthands at allowsTheotobe ey explainedthatto
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 need toexplaintheirrelationship confusion aboutwhethertheyarebusinesspartners at thenetworkingeventstheyoftenattendforwo “wife.” Without thesete their relationshipsthroughonewordinst
in 2006sothatFletchercoul sports, travel,music, and,most importantly, fami teens. FletcherandGregmet in1998 andinstantl residing inLas Vegas,Nevada.FletcherandGr at theirwedding astheir flowergirlandthat her parentsarenotworthy ofmarriage. They feel sociallyoutcastbeca they careforherwhenshe’s sick;they readher different shapesandcolors;they parenting ayoungchild: theyfeed,bathe,andclothe family throughadoption.FletcherandGreg anti-bullying campaign, whichwaslaunchedin2010 to schoolsinsouthernNevada. advertising executive,serveson as alicensingsupervisorwiththeClarkCounty advancing childwelfare.Greg for 14yearsandhaveregisteredasdomestic Greg worrythat,asHudsongrowsolder,shewi Fletcher and Gregwishtomarry fortheirdaughte
Case 2:12-cv-00578Document1Filed04/10/12Page17of30 60. 61.
Fletcher Whitwell, age37,andGreg In 2011,FletcherandGregwelcomed a rms, thecouplestrugglestoexplainth use shewillabsorbthemessage she Plaintiffs FletcherWhitwellandGregFlamer d pursuehiscurrentjob. helps findhomes forabusedandne Fletcher alsoisanactivememb the boardofanon-prof stressful andbelittlingwhentheSt play peek-a-boowithherandtake antly understoodbyothe shewillunderstandthat theloveandcommitment share thetypicalrespons - 17 partners inNevada.Bothshareapassionfor hope that,oneday,Hudson canwalkdowntheaisle bedtime storiesandrockhe ll be deprived of a sense of normalcy andmayll bedeprivedofasensenormalcy Department ofFamily Services.Fletcher,an eg havebeeninaloving, committed relationship rk. Theyfrequentlyhavetocorrectothers’ ly andfriends.Thecouplemovedly toLasVegas r’s sakeaswellfortheirown.Fletcherand y connected becauseoftheirmutual interestin insteadoflifepartners.Theyfindtheongoing Flamer, age39,areagaymale couple her;theyteachhertowalkandrecognize after asurgeinreport baby girl,HudsonWhitwell,intotheir it literacyprogramthatdistributesbooks receives fromhergovernment that eir relationshiptoothers,including er ofafoundationengagedinan rs: marriage. glected childreninhisposition hertovisitgrandparents; ate allowsotherstodescribe ibilities andjoysof
ed suicidesamong gay r tosleepatnight.
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then, MikylaandKatierepeat that theirmarriage isnot instead ofasMikyla’s“friend.” began totreatKatiedifferentlyaftertheceremony, all whoattendedtookavowduri rite ofpassagethatdrew theirfamilies closer of theCourt’sruling,and foundthat, becausepe yet ineffect,KatieandMikylawe Court ruledthatsame-sex couplesmust bepe planned acommitment ceremony. twodays Just Katie’s family toadoptthemiddle name “Love.” couple residinginReno,Nevada. relationship. When theylooked family, theirdaughterwillbenamed Amelia L and iscarrying thecouple’sfirst child,whichisdu with anon-profitagencyservinglo preferred torentamarried registered asdomestic partners inbothNevada committed, lovingcoupleeversince. Theymarried inCaliforniaonJune17,2008andhave they begandating in2004, theyeachknewthat meet. KatieisworkingonaPh.D.inEnglishat who currentlymay marry. stability asamarried couple. When Mikylawent her parentsfeel foroneanother—andtheirfa
Case 2:12-cv-00578Document1Filed04/10/12Page18of30 64. 63. 62.
When thecouplemoved toNevada,theirfa While living inCalifornia,Katieand Plaintiffs MikylaMiller,age29,andKatr recognized thereandthatthey,ineff Plaintiffs MikylaMill couple, andtheyhadtoexplain edly haveencounteredconfus for theirfirstrentalhome, thelandlordtoldthem thatshe ng ittosupportthecouple’sre Mikylaisarecentlawschool re overjoyedthattheirceremony c w-income clientsandpart-time atarestauranttomake ends together. Katie’smom plannedtheceremony,and - 18 rmitted tomarry. Although thatdecision wasnot ove Miller,making herth andCalifornia.Mikyla the otherwas“theone,”andhavebeena theUniversityofNeva ople understood itassuch, itwasan important mily—is asgreatth er andKatrinaMiller before theceremony, theCaliforniaSupreme to thehospital inFebruary for chestpain,with e inJuly.Aspartofatradition inKatie’s introducing hertoothersasadaughter-in-law, Mikyla each proposedto theotherand ina Miller(“Katie”),age27,arealesbian mily andfriendswereshockedtolearn ion from othersabouttheir that theywouldofferthe same ect, havebeen“unmarried.” Since lationship. Mikyla’smother graduatewhoworkspart-time ould feelmoreould “real”inlight at feltbyothercouples da, Reno.Shortlyafter
adopted Katie’ssurname e sixthgenerationin
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They feelaparticularsense ofurgencyabout confusion theirdomestic partners being deniedmarriage-related disc have encounterednumerous examples ofdisres in California2008,andareregistereddomestic volunteers tohelpyouthinajuveni children’s play groupforsame-sex couples’families called“WeAreFamily.” Taraalso Newberry, agetwo,andEmily Newberry,threemont works asthefirm’s officemanager. Their Vegas, Nevada.Tara,formerly apoliceofficer,is money theycouldotherwisesetaside Mikyla willspendthousandsofdolla be consideredaqualifyingevent,andKatiema Mikyla that, unlikeamarriage, adomestic partnershi provides farsuperiorcoverage born, MikylaandKatiewouldliketoinsureher about howthiswillaffectrecognition oftheirle refusal torecognizethemasmarried encourages Katie backtoMikyla. Katie joinMikyla,andMikylafina patient hadbeenadmitted tothesame area. Wh emergency room treatment area,eventhough Mikyla when Katiearrived. The receptionist refused,sayingthatonlypatients could beallowedinthe Katie arrivingseparatelyfrom
Case 2:12-cv-00578Document1Filed04/10/12Page19of30 67. 66. 65.
Adele andTara havebeen aloving,committed couple since 2005. Theymarried Plaintiffs AdeleTerranova,age31,and Based onthese experiences, Mi Plaintiffs Adele Terranova andTaraNewberry another location,Mikylaaskedthere to Mikyla’s.Katie’sinsurancecompany, however,advised hip hascausedincircumstances ounts bytheirinsurance company lly hadtoseekoutherdoctorfo le offenderdiversionprogram. rs inattorneyandcourtfees for theirdaughter’seducation. lives revolvearoundth - 19 having theirmarriage recognizedbecauseofthe kyla andKatiefeelanxi y onlyinsureherafteranadoption.Katieand pect fortheirdomestic partnership,including gal relationship totheir baby.When thechildis en Katiearrived, thereceptionist refused tolet through Katie’shealthinsuranceplan,which disrespect from others,andworryparticularly partners inbothCaliforniaandNevada.They nowanattorneyatasmall lawfirm,and Adele p isnotsufficientforth couldseethatahete hs old,andtheyareactivelyinvolvedina Tara Newberry,age37,resideinLas for Katietoadopttheirchild— eir twochildren, Evan involving theirchildren. For r help,whothenhadtoescort ceptionist toletKatiejoinher for Tara’shealthcoverage. ety abouthowtheState’s
rosexual spouseofa eir daughter’sbirthto
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children wouldnotbeassubjec able toinform hospitalstaff thattheyaremarrie the emergency room inFebruary,hospitalstaffaske never askedofdifferent-sexspouses.Forexampl Adele andTara alsoaredistre modified, pointingoutthattodo the ExecutiveDirectorofNe committed relationship for 15yearsandhaveregistered asdomestic partners inNevada. Carenis lesbian coupleresidinginCarsonCity,Nevada could notbeprocessedasaltered, provisions tomake referencestoher initaccurate instant “zing.” Carenthen hiredFarrell tohelp motorcycle. When Carentookoffherhelmet, and hearing. on theboard ofastatewideadvocacy andresource 2, Farrelllearnedsignlanguageso boys, DeanandQuinn,ages87,respectively. grandmother wasthefirst woman inNevadaelected of theNevadaAcademy ofSignLanguage.Farr complete anotherdeclarationofpaternityform get acorrected certificatelisting Taraastheseco returned fromtheStatewithablankforseco the declarationofpaternityandrefusedtoletbot relationship, whenEvanwasbornahospital social workerinsisted that “the dad” hadtofill out example, althoughregistereddomestic partnersare
Case 2:12-cv-00578Document1Filed04/10/12Page20of30 68. 69.
Caren Cafferata-Jenkins, age53,andJ. Caren Cafferata-Jenkins, Caren andFarrellmet 15yearsagoatapo Plaintiffs Caren Cafferata-Jenkins andFarrellCafferata-Jenkins ssed to findthemselves answeri t toquestionanddisrespect. vada EthicsCommission andFarre otherwise wouldrequireTarato and Tarahadtostruggleget thattheycouldbettercommuni - 20 , thoughshehadtoalter . CarenandFarrellhavebeeninaloving, with landscaping workandinsiststhatFarrell d, theirfamilystructure nd parent’sname, andittookayear-and-a-halfto ell’s family hasdeeptiestoNevada;her h parentsbelisted.Evan nd parent.Duringthisprocess,Tarahadto e, whenthecoupletooktheirdaughterEmily to . TheStatereturned theform, insistingthatit centerforthosewhoaredeafandhardof When wasdiagnosedwithautism Dean atage Farrell lockedeyeswith her,therewasan presumed theparentsofchildrenborninto d “whichoneisthereal to federaloffice.CarenandFarrellhavetwo Farrell Cafferata-Jenkins,age48,area tluck, atwhichCarenhad arrivedona ng questionsthatgenerallyare perjureherselfontheform. the State toaccepttheform as cate. The couplenowserves ll isthePresidentandFounder it bycrossingoutvarious and relationshiptotheir ’s birthcertificatewas mom?” Iftheywere
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on thefacultyatCollegeofSouthernNevada both werepursuingmusic degreesattheUniversity Vegas, Nevada.Thecouplemet in2005throughth only envisiondifferent-sexmarried parents. identifying toothersthatbothofthemarepare marriage wouldalsobeimportantfortheirchildr to followintheirparents’footstepsandceleb parents havebeenmarried formore than50year had atasteofgold.Marriagehasalways beenim domestic partnersinNevada,itfeltlikeconsi State “unmarried” them andthattheyhadtostar marriage tobedisregarded.Afterreturning others viewtheirrelationship—buttheyalso marry. ahu’vah ring thatSara’sfatherhadgiventohermother toward hermaster’s degreeinmusic performance. could notmarry, theyhadtoexplainonthei been togethereversince.In2002,theyheldacommitment ceremony inReno.Becausethey took longerthannecessary pullingweedssothetw look theotherway.”Jarred bythisexperience, hospital, stafftoldMegan, “Youknow,wedon’thave In January2009,Saragave birthinNevada to th 2007, surroundedbyahandfulofclosefamily andfriends.
Case 2:12-cv-00578Document1Filed04/10/12Page21of30 71. 70. 72. , whichisHebrewfor“covenantoflove.”
Sara Geiger,age27,andMeganLanz, Caren andFarrellknowfirst-handhowma The couple’sinabilitytoberecognizedas Plaintiffs MeganLanzandSaraGeiger r invitationsthattheceremony wasinsteada - 21 know first-handhowhurtfulitcanfeelforthat rate agoldenanniversar gning themselves tobronze,whentheypreviously andthecouplemarried in nts totheirchildren,becauseschoolforms often their home stateofNevada,theyfeltasthoughthe Sara andMegansubsequentlyregistered as t overfrom scratch.Althoughtheyregisteredas e couple’sdaughter,Jordan Geiger-Lanz.Atthe s, andCarenFarrell en. CarenandFarrellexperiencedifficultyin portant tothecouple:bothCarenandFarrell’s and maintains aflute stud SaraproposedtoMeganwiththeengagement o couldspendmore time together.Theyhave They alsotraveledtoCaliforniain2008 ofNevadaatLasVegas.Megannowserves eir mutual passionformusic.Atthetime, to letyoustayhere,butwe’re justgoingto married inNevadacausesthem harm. rriage canchangethewaytheyand 31, arealesbiancoupleresidinginLas y. Recognitionoftheir
Vancouver,Canadain yearn fortheopportunity io. Saraisworking b’rit
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the time birth.Assuch,Megan’sst ofJordan’s does notrecognizetheir marriage and becausedomes relationship withJordanisnotaffordedexpre previously married outsideNe domestic partnersinNevadaonthefirstda wish tohavetheirmarriage recognized inNevada. loving, committed relationshipfor6years,have regi do youmean, Sara it’syourwife?” during atraffic stopthatSarawa which Saraislisted asthe prim relationship inarangeofcontexts.Forexampl couple, MeganandSaraarefr parenthood wouldapplytoMegan. existing asofthedateitwasentered),thenth State recognizedSaraandMegan’smarriage as married couplesarenotforcedtoadopttheirown prohibitive for thecouple.Meganalsofindsthis recognition ofhermarriage, Megan’ others, suchasthehospitalstaffondayof sex couplesfrom thehistoricandhighlyvenerate individual’s capacitytoesta creating theparallel,bu responsibilities through register State already grantslesbians andgay men access
Case 2:12-cv-00578Document1Filed04/10/12Page22of30 74. D. 73.
No legitimate, letaloneimpor State Purpose. to aCompellingState PurposeorEven The State’sExclusionofPlaintiffs While vulnerabilitysurroundingtheirdaughter t lessrespected, institution of regi blish alovinganden ustrated thatthelawcauses vada atthetime ofJordan’s ary insured,butwhen Megantried ed domestic partnership.AstheState hasacknowledgedby s herwife,thepoliceofficeras andMeganhavebeentogetherasasame-sex coupleina s onlyoptionistoadoptJordan, y whentheycoulddoso.Althoughhad - 22 tant orcompelling, interest ere wouldbenoquestionth ss protection under Nevadalaw,because Jordan’s birth.Intheabsence oftheState’s e, MeganandSaraalsohavecarinsurancein atus asaparentisvul itwouldadifferent-sexcouple’smarriage ( during relationshipdoes not dependuponsexual forcedchoicedemeaning whendifferent-sex d institutionofmarriage, to almost allsubstantivespousalrights and children toberecognized from MarriageIsNotNarrowly Tailored stered asdomestic partnersinNevada,and tic partnershipswerenotevenavailable at Reasonably Related ToaLegitimate stered domestic partnership,an birth,Megan’sparent-child others confusionabouttheir is particularlydistressingto the ked, “What’s What thatabout? to explainapoliceofficer nerable tochallengesby the costofwhichiscurrently existstoexcludesame- at thepresumptionof especiallywherethe asparents.Ifthe i.e. ,
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
legitimate interestjustifyingdeni orientation or his orher sex in relation tohisorher committed life partner, noristhere evenany different-sex spousesmore secure.Different-sex the parentingrightsofsame-sex The State’sownpublicpolicyalso medical, andmental healthprofe or biologicalconnection. researchers inthefieldisthat children andadolescentsraisedbydifferent-s reared bysame-sex parentsare as successful marriage tothosecapable ofor of coupleswhoareparents.Neith status, Nev.Rev.Stat.§125B.020et Stat. §126.031etseq.,andparentsarerequired into their families through fostercareor technology thatisavailabletoboth parent. Nevadasame-sex couplescanand parenting orchildwelfare. to theinstitution of registered bases. parents areaseffectivediffere
Case 2:12-cv-00578Document1Filed04/10/12Page23of30 80. 79. 78. 77. 76. 75.
Excluding same-sex couplesfrom civilmarriage willnotmake children of This consensusisreflectedbynumerous l The consensus withinthe scientific community isthatchildren andadolescents Parentage canbedetermined forallchild Barring lesbiansandgaymen from civil The State’sdecisiontoexcludesame-sex parenting abilitiesarenotafunc domestic partnership,bearsnorelati intendingtoprocreate. anddifferent-sexcouples. ssionals, whichhaveissuedstat nt-sex parentsinrearingwell-adj al ofspousalprotections,rights er Nevadanoranyothe same-sex anddifferent-sexcoupl incorporates thisviewbymaking seq.Moreover,marriage has adoption orfrom apriorrelationship. do bearchildrenthr - 23 psychologically, emotionally, andsociallyas ex parents.Theconsensusamongrespected to supporttheirchildren spouses’childrenwill marriage doesnotaffect whobecomes a ren regardlessofmarital status,Nev.Rev. couples from marriage, relegatingthem eading organizationsofchildwelfare, r stateinthiscountryhaseverrestricted tion ofgender,sexualorientation, ough useofreproductive , andresponsibilitiesonsuch ements confirming thatsame-sex usted childrenandadolescents. on tothe State’s interests in never beenthesoleprovince es. Theyalsobringchildren no distinction withrespect to continue toenjoythe regardless ofmarital
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
rather thanregistereddo would likely accrue cost-savingsbyallowingsame-s adequate justification.Moreover, pursue thatinterestbymakinginvidiousdistinc ancient pedigreeofsuchdiscrimination. notions ofequality,andnoexcusefortheState’ restrictions oninterracial marriage and coverture. resiliency inresponsetoadynamic society,as same-sex couples.Marriagehasremainedvi the acknowledgment thatthisfreedombelongs status conferredbymarriage re rights of different-sex spouses. Different-sex sp children than itisfor different-s State’s officialrecognitionand as itsinterestinthewelfareofanyotherchil and byencouragingprivatebi couples’ children,including bybranding theirfamilie permitted tomarry. benefits thatflowfrom their
Case 2:12-cv-00578Document1Filed04/10/12Page24of30 85. 84. 83. 82. 81.
Although theStatehasavalidinterestin Neither historynortraditioncanjustify Excluding same-sex couplesfrom marriage The State’sinterest inthe welfareofchild Excluding same-sex couplesfrom marriagedoes,however,harm same-sex Equal Protectiononthe Basisof Sexual Orientation and Sex mestic partnership. U.S. Const.Amend.XIV, 42U.S.C.§1983 parents’ marriage, regardless of as anddiscrimination. gardless ofwhethersame-sex couplesmay marry, by unimpaired support isnolessimportant forsame-sex parentsandtheir ex parentsandth the Statenotonlylacksanysuch CLAIM FOR RELIEF CLAIM FOR dren. Thefamily securitythat comes fromthe - 24 tal andenduringbecauseof,notdespite,its equallytolesbiansandgaymen. society andthecourts tions betweenclassesof s discriminatory restrict ouses willcontinue toenjoythesame rightsand eir children. TheConstitutionisnot confined tohistoric ex couples toenterth s asinferiorandless deserving ofrespect, the State’sdiscrimina protectingthepublicfisc,itmay not ren oflesbianandgayparentsisasgreat does nothingtoprotectorenhancethe whethersame-sex couplesare
fiscal justificat havecastoffprior ion canbefoundinthe itscitizenswithout e institution ofmarriage tory exclusionof ion butrather
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
for purposesofseekingdeclar complaint. Defendant Harvey’sduties andactionstoensure Small, FletcherWhitwell, andGregFlamer. Fourteenth Amendment totheUnited StatesCo constitutional rightstoequaltr those eligible tosolemnize marriages, andmaintaining marriage license records, violate the marriage banthrough denyingmarriage licenses, Defendant Alba’sdutiesandactionstoensure United States Constitution. treatment, withoutregardto enforce theState’sdiscriminatory marriagebanvi guarantee oftheFourteenthAmendment bothfa marriages because theywereenteredbyindividual other sources ofstatelaw that sexual orientationandsex. Plaintiffs’ righttoequalprotec marriage forsame-sex couplesandrestrictthem so 1, §21,andNevadaRevisedStatutes122.020,a of thelaws.TheconductDefendantsandtheir pursuant to42U.S.C.§1983,providesthatnostate
Case 2:12-cv-00578Document1Filed04/10/12Page25of30 87. 86. 92. 91. 90. 89. 88.
Plaintiffs statethis cause ofactionagains Plaintiffs incorporatebyreferenceand As theCountyClerkand Commissioner of As theCountyClerkandCommissioner As theState’schiefexecutiveofficer,De Nevada Constitution article1,§21,Neva The Fourteenth Amendment totheUnited States Constitution, enforceable sexual orientationorsex,underth atory andinjunctiverelief. preclude marriage forsame-sex couplesor prevent recognition of eatment, withoutregardtosexual tion ofthelawsbydiscriminating impermissibly onthebasisof - 25 compliance withtheState’sdiscriminatory nstitution of Plaintiffs Antioco Carrillo, Theo cially andasappliedtoPlaintiffs. compliance withtheState’s discriminatory refusing tosolemnize marriages, certifying agents inenforcingNeva olate Plaintiffs’constitu s ofthesame sexviolatethe equalprotection lely toregistereddomes shall denytoanypersontheequalprotection reallege paragraphs1to85ofthis ll othersourcesofstatelawthatpreclude of CivilMarriagesfor ClarkCounty, fendant Sandoval’sdutiesandactionsto t Defendants intheirofficial capacities da RevisedStatutes §122.020,andall CivilMarriagesfor Washoe County, e FourteenthAmendment tothe orientationorsex,underthe tional rightstoequal tic partnership,violates da Constitutionarticle
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
couples equaldignityandrespect injury. a reckless or callous indifferencetotherights has acquiesced intheconstitutional deprivations of constitutional injuries upon thePlaintiffs.Th those lawsthatDefendantsknow,orreasonably s Defendant hassetinmotion, orhas refusedtote Sevcik andMaryBaranovich. sex, undertheFourteenth Amendment tothe UnitedStatesConstitution of PlaintiffsBeverly Vibe. Fourteenth Amendment to the UnitedStates constitutional rightstoequaltr those eligible tosolemnize marriages, andmaintaining marriage license records, violate the marriage banthroughdenyingmarriage licenses, facially andasapplied. from marriage anddiscriminates againsteachPlai disapproval andantipathytowardlesbiansgay men. bias anddiscrimination. The as second-classcitizensthroughamessage of demonstrably inferior. The State’s marriageban records, violatetheconstitutionalrightstoequal licenses, certifying those eligible tosolemn ensure compliance withtheState’sdiscri
Case 2:12-cv-00578Document1Filed04/10/12Page26of30 95. 94. 93. 96.
The State’smarriage ban,andDefendants’ac By actingintentionallytoenforcetheSt As theClerk-RecorderforCarsonCity, The State’smarriage bantargetslesbian a State’s marriage banandDefenda eatment, withoutregardtosexual and relegatesthem toasepara minatory marriage ban ize marriages,and maintaining marriage license Constitution ofPlaintiffsKarenGoodyand - 26 rough thisconduct, eachDefendant alsoknowingly of Plaintiffs,therebyproximately causingthem government-imposed stigma and causesprivate rminate, actsbyotherstoenforceandimplement treatment, withoutregard brands lesbiansandgaymen andtheirchildren hould know, willcause otherstoinflictthese refusing tosolemnize marriages,certifying ntiff basedonhisorher sexualorientation both those that heorshesupervises, and hasshown ate’s discriminatory marriage ban,each Defendant Glover’sdutiesandactionsto nd gayNevadansasaclassforexclusion tions toenforceit,deniessame-sex nts’ actionsreflectmoral te-and-unequal statusthatis orientationorsex,underthe through denyingmarriage to sexualorientationor
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
partners virtuallythesame fa crimes. employment. Lesbiansandgaymen disproportiona criminalized. Lesbianandgaycivilservants been classifiedasamental illness.Theintima endured hostilityandantipathyfr sex alsowarrantsheightenedscrutiny. at leastheightenedscrutiny.Th scrutiny, differential treatment bythegovernment Plaintiffs seektomarry aresimilar tothose different-sex spousesandtheirchildren.Th Plaintiffs and theirchildren are asworthyof re partners orparents,theirab Plaintiffs’ sexualorientationnortheirsexbears housing, andpublicaccommodations,Nev.Rev.Stat.§§613.330,118.020,651.070,neither spouses enjoyandbyprohibitingdiscriminati and consciencethatapersoncannotberequired to through intervention.Nocredible treatments. them haveadoptedpolicystatements cautioni professional organization approvesinterventionsto effective orsafe;indeed, theyoftenareharmfu
Case 2:12-cv-00578Document1Filed04/10/12Page27of30 97. 100. 99. 98. 102. 101.
Plaintiffs aresimilarly situatedtodifferent Further, astheStatehasacknowledgedby Lesbians andgaymen havesufferedalong Although thedenialofequaltreatment is Sexual orientationgenerallyis Sexual orientationisacore, mily, parenting,andrelationship ility tocontributesociety. e government’s differentialtreatme om bothpublicandprivatepartie evidence supportsthenotionthat defining traitandissofunda of different-sexcoupleswhochoosetomarry. e emotional, romantic, anddignitaryreasons - 27 have beenpurgedfrom federalandmunicipal fixedatanearlyageand ng professionalsandth on basedsexualorientationinemployment te relationshipsofsame-sex coupleshave been spect, dignity, social acceptance, andlegitimacy as l anddamaging. Nomainstream mental health any relationtotheirworthascommitted life based onPlaintiffs’sexualorientationwarrants abandon itasaconditionofequaltreatment. tely havebeenthevictims ofbrutalhate change sexualorientati invalid underanyform ofconstitutional -sex spousesinevery granting same-sex registereddomestic history ofdiscrimination. Theyhave rights andresponsibilitiesas s. Beinggayorlesbianhas nt ofPlaintiffsbasedontheir such interventionsareeither e publicaboutthese highly resistanttochange mental toone’sidentity on, andvirtuallyallof relevant respect.
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
complaint. marry through29stateconstitutional amendments a underrepresented infederal,state,andlocaldemocr public accommodations,andhousing power. Lesbiansandgaymen lackstatutorypr discrimination against them isevidentintheir ongoing relative vulnerability andlack of political which Plaintiffshaveno adequate Defendants wouldredress andpreventtheirreparable constitutional rightsand avoid the issuanceofadeclaratoryjudgment. denial ofequaltreatment toPlaintiffssubjects and thatwomen shouldmarry men. failed toconform totheprevailingandState-en her toregistered domestic partnershipwiththeone total of44states;andnowhave departures from sexstereotypes same sex. registered domestic partnershipsolely becausehe both faciallyandasapplied,barringeachPlain other group.
Case 2:12-cv-00578Document1Filed04/10/12Page28of30 28 U.S.C.§§2201and2202;FederalRulesofCivilProcedure,5765 107. 106. 103. 108. 105. 104.
This casepresents anactualcontrovers Plaintiffs incorporatebyreferenceand asmallLesbians andgaymen minorityofthepopulation,andlegacy are Plaintiffs seekpreliminary and/orperm TheState’smarriage banalsoserves The State’smarriage bandiscriminates agai DECLARATORY ANDINJUNCTIVERELIEF the injuriesdescribedabove. been targetedthroughthevoterin by excludingeachPlaintifffrom remedy atlaworinequity. at thefederallevelandin - 28 them toseriousandimmediate harms, warranting tiff from marriage andrelegatinghim herto or otection againstdiscrimination inemployment, forced stereotypethatmen shouldmarry women orshewishes tomarry alifepartnerof the person heorsheloves, becausePlaintiffshave atic bodies;havebeen nd currently arenotpermitted tomarry ina the impermissible purposeofblocking y becauseDefendants’presentandongoing reallege paragraphs1to105ofthis injuries toPlaintiffs identified herein,for anent injunctive relief toprotecttheir nst eachPlaintiffonthebasisofsex A favorabledecisionenjoining 29 states;aresystematically marriage andrelegatinghim or itiative processmore thanany stripped oftherightto
28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
to, couples fromotherjurisdictions; sex couplesfrom otherjurisdicti marry onthesame terms asdifferent-sexcouples Plaintiffs aresame-sex couples; enjoining Defendantsfrom denyingr partnership; andforthosesame-sex couplesw law thatexcludesame-sex couplesfrom marriage a Constitution Article1,§21,NevadaRevisedStat marriages inNevada; that Plaintiffsaresame-sex couples,toresp jurisdiction, declaringthat itisunconstitutional fo Amendment totheUnitedStatesConstitution; an partnership, violatePlaintiffs’ law thatexcludesame-sex couplesfrom marrying a Constitution Article1,§21,NevadaRevisedStat Plaintiffs. denial oftheirconstitutionalrights.The bala relegated toademonstrably inferior as different-sexcouples,whereas in recognizingthevalidmarriages ofsame-sex c
inter alia Case 2:12-cv-00578Document1Filed04/10/12Page29of30 D. C. B. A. WHEREFORE, Plaintiffsrespectfullyre 109.
, 42U.S.C.§1988andother applicablelaws;and Awarding Plaintiffstheir costs,expenses Requiring Defendants intheirofficialcap Preliminarily andpermanently enjoiningenforcement ofNevada byDefendants Declaring thattheprovisionsanden The Statewillincurlittleto rights undertheEqua ons onthesame terms asthevalidmarriages ofdifferent-sex the hardshipforPlaintiffsof relationshipstatusis PRAYER FOR RELIEF PRAYER FOR ecognition of those marriages ba ecognition ofthosemarriages noburdeninallowingsame-sex couplestomarryand ect Plaintiffs’out-of-st - 29 nce ofhardshipsthustip ho arelegallymarried in quest thatthisCourtenterjudgment: ouples from otherjurisdictionsonthesame terms , andtorecognizetheva d, forthosecoupleslegallymarried inanother utes §122.020, andanyothersources ofstate utes §122.020, andanyothersources ofstate r Defendantstorefuse,basedsolely onthefact forcement byDefendantsofNevada nd restrictthem toonlyregistereddomestic nd relegatethem toonlyregistereddomestic l ProtectionClauseoftheFourteenth , andreasonableattorneys’ feespursuant acities toallowsame-sex couples to severe,subjectingthem toanirreparable
being deniedequaltreatment and ate validmarriages as s stronglyinfavorof sed solelyonthefactthat anotherjurisdiction, lid marriages ofsame-
Case 2:12-cv-00578 Document 1 Filed 04/10/12 Page 30 of 30
1 The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan
2 organization with more than 500,000 members dedicated to the principles of liberty and equality
3 embodied in the Constitution and our nation’s civil rights laws. The ACLU is committed to 4 protecting the freedoms guaranteed by the First Amendment and advocating for the rights of 5 LGBT persons and criminal defendants. The ACLU of Arizona (ACLU-AZ) is the Arizona state 6 affiliate of the national ACLU. The ACLU-AZ has acted to protect the rights and well-being of 7 arrested, incarcerated and otherwise confined transwomen including in the state’s largest shelter 8 and in various jails and prisons. Because the ordinance under which the defendant was convicted 9 is unconstitutional and the continued prosecution of individuals under that law raises serious 10 concerns for the transgender community, the proper resolution of this case is a matter of 11 significant concern to the ACLU and its membership throughout the country. 12 Lambda Legal Defense and Education Fund, Inc. (Lambda Legal) is a national 13 organization dedicated to achieving full recognition of the civil rights of lesbian, gay, bisexual, 14 and transgender (LGBT) people and those living with HIV through impact litigation, education 15 and public policy work. Lambda Legal has appeared as counsel or amicus curiae in numerous 16 cases in federal and state court involving the rights of transgender people, including incarcerated 17 transgender people. See, e.g., Fields v. Smith, 653 F.3d 550 (7th Cir. 2011), (holding that 18 Wisconsin law preventing transgender prisoners from accessing transition-related care violated 19 prohibition against cruel and unusual punishment) cert. denied, 132 S. Ct. 1810 (2012); Shaw v. 20 District of Columbia, 944 F. Supp. 2d 43 (D.D.C. 2013), appeal docketed, No. 13-5212 (D.C. Cir. 21 Mar. 19, 2014) (arguing as amici that D.C. Circuit should affirm district court decision denying 22 defendants' motions to dismiss deliberate indifference claim of transgender female detainee who 23 was sexually harassed while housed with male detainees). Because protecting and advancing the 24 rights of transgender people is integral to Lambda Legal’s mission, Lambda Legal has a strong 25 interest in the proper resolution of this case. 26 Founded in 1876, The Legal Aid Society is the nation’s oldest and largest provider of 27 legal services to indigent clients. Annually, in all five boroughs of New York City, The Legal Aid 28 Society (“LAS”) provides legal assistance in more than 300,000 individual matters for low-
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1 income families and individuals with civil, criminal, and juvenile rights legal problems. Since
2 1965, we have served as the primary defender in New York City. In addition to representing
3 many thousands of people each year in trial and appellate courts, LAS also pursues impact 4 litigation and other law reform initiatives. Two specific projects at The Legal Aid Society 5 contribute to our interest in the issues raised in the instant case. First, the Trafficking Victims 6 Advocacy Project is a specialized unit in our criminal practice — dedicated to identifying and 7 advocating for victims of human trafficking and people arrested and prosecuted for prostitution 8 offenses in the criminal justice system. This unit is the first effort by a public defender office to 9 look critically at the issue of criminalization of victims of trafficking and to respond to anti- 10 prostitution policing practices that violate the rights of those engaging in prostitution or those 11 merely profiled as such and falsely arrested. Similarly, the LGBT Law & Policy Initiative at The 12 Legal Aid Society engages in litigation, public policy and legislative efforts on behalf of low- 13 income LGBT New Yorkers, and has specifically fought policies that unjustly discriminate 14 against transgender individuals in the areas of medical coverage and foster care. 15 Transgender Law Center (TLC) is the nation’s largest organization dedicated to advancing 16 the rights of transgender and gender nonconforming people. TLC works to change law, policy, 17 and attitudes so that all people can live safely, authentically, and free from discrimination 18 regardless of their gender identity or expression. TLC works to fight the systems that 19 disproportionately funnel transgender people — and especially low-income transgender people of 20 color — into prison. Transgender Law Center has a serious interest in the proper resolution of this 21 case because unconstitutional ordinances similar to the one defendant was convicted under 22 disproportionately harm transgender women of color around the country. 23 For 30 years, the Urban Justice Center (UJC) has served New York City's most vulnerable 24 residents through a combination of direct legal service, systemic advocacy, community education 25 and political organizing. The UJC assists clients on numerous levels, from one-on-one legal 26 advice, to helping individuals access housing and government assistance, to filing class action 27 lawsuits to bring about systemic change. The UJC often defends the rights of people who are 28 overlooked or turned away by other organizations. The UJC is composed of eleven distinct
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1 projects that offer services to severely marginalized individuals, including lesbian, gay, bisexual,
2 and transgender community; survivors of domestic violence; sex workers and those profiled as
3 sex workers; the homeless, veterans and people with mental illness. The UJC seeks a proper 4 resolution of this case because the law under which Monica Jones was convicted is 5 unconstitutional and results in the profiling and targeting of transgender women as well as other 6 marginalized individuals. 7 STATEMENT OF THE CASE 8 Phoenix City Code Section 23-52(A)(3) (hereafter “Section” or “Manifesting Law”) 9 makes it a crime to “manifest[] an intent to commit or solicit an act of prostitution.” The 10 “circumstances that may be considered in determining whether such intent is manifested” include 11 whether a person “repeatedly beckons to, stops or attempts to stop or engage passersby in 12 conversation or repeatedly, stops or attempts to stop, motor vehicle operators by hailing, waiving 13 [sic] of arms or any other bodily gesture,” or “inquires whether a potential patron, procurer or 14 prostitute is a police officer or searches for articles that would identify a police officer,” or 15 “requests the touching or exposure of genitals or female breast.” Id. This list of enumerated 16 “criteria [is] not exclusive and . . . other conduct may also form the basis of an arrest if the 17 conduct manifests the prohibited intent.” Arizona v. Savio, 924 P.2d 491, 493 (1996). As a result, 18 a law enforcement officer may “consider [any] other behaviors, including other bodily gestures” 19 when making an arrest under the Section. Id. 20 On May 18, 2013, Monica Jones, a transgender woman of color and full-time social work 21 student at Arizona State University, was arrested for allegedly manifesting intent to commit an act 22 of prostitution in violation of the City Code. At trial, the arresting officer testified that, based on 23 his experience as an officer, Ms. Jones’s presence near her home, in an area “known for 24 prostitution” and her “black, form-fitting dress,” suggested to him that she was manifesting intent 25 to engage in prostitution justifying his targeting of her in the undercover sting. [Trial Transcript 26 (“Trial Tr.”) at 42: 11-12; 71: 3]. The Court credited the officer’s testimony and in a bench trial 27 on April 11, 2014, Ms. Jones was convicted of one count of manifesting intent to engage in 28 prostitution. Defendant-Appellant Monica Jones appeals her conviction. Amici agree with the
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1 Defendant-Appellant that her conviction must be overturned for the reasons outlined in
2 Appellant’s brief. This brief focuses on the Section’s infringement upon protected speech,
3 including gender expression, and the Section’s violation of basic principles of Due Process. Amici 4 also offer background information about the profiling of transgender women as sex workers by 5 law enforcement to highlight the particular dangers to the transgender community of standardless 6 and overreaching laws like the law at issue here. 7 SUMMARY OF THE ARGUMENT 8 The First Amendment, as applied to the states through the Fourteenth Amendment, 9 protects the rights of individuals to speak and express themselves without undue interference 10 from the government. Amend. I, U.S. Const. The Arizona Constitution also protects the rights of 11 individuals to “freely speak, write, and publish on all subjects.” Art. 2, § 6 Ariz. Const.; see 12 Coleman v. City of Mesa, 284 P.3d 863, 872 n.5 (Ariz. 2012) (observing that, in some respects, 13 Article 2 Section 6 is “more protective of free speech rights than the First Amendment”). The 14 Manifesting Law severely infringes upon these rights. The law is overbroad, both facially and as 15 applied to Ms. Jones, infringing upon protected speech and expression, including constitutionally 16 protected gender expression, extending far beyond what is necessary to advance any alleged 17 interest in preventing prostitution. 18 Additionally, the vagueness of the law allows officers unfettered discretion to profile 19 transgender women and presume that they are engaging in criminal conduct when conducting 20 constitutionally protected activities such as walking down the street with friends, going to a 21 grocery store in their neighborhood, flagging a cab, or greeting friends. Comparably overbroad 22 and vague prostitution laws have been struck down by other courts. See, e.g., Silvar v. Eighth 23 Judicial Dist. Court ex rel. Cnty. Court of Clark, 129 P.3d 682 (2006) (striking down Nevada law 24 making it a crime to loiter for purposes of prostitution and recognizing that the law invited 25 discriminatory enforcement); Wyche v. Florida, 619 So.2d 231 (1993) (striking down equivalent 26 Florida law for same reasons). By failing to provide guidance as to what conduct is prohibited, 27 the law “encourage[s] arbitrary and discriminatory enforcement” in violation of due process. 28 United States. v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006); cf. State v. Speer, 212 P.3d
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1 787, 795 (Ariz. 2009)(en banc)(Due Process standards of state Constitution coextensive with
2 federal constitutional standards).
3 The problem of profiling transgender women, particularly transgender women of color, as 4 sex workers is well documented and widespread. Rather than serve as a barrier to arbitrary and 5 biased law enforcement, this vague and overbroad law encourages discriminatory targeting of 6 disfavored communities. As a black transgender woman and activist, Monica Jones was 7 particularly vulnerable to the type of discriminatory enforcement and profiling that the 8 constitution does not tolerate. Should the Manifesting Law be allowed to stand, Ms. Jones and 9 other individuals vulnerable to police profiling and abuse will suffer greater harms and 10 indignities. 11 ARGUMENT 12 I. PHOENIX CITY CODE 23-52(A)(3) IS UNCONSTITUTIONALLY OVERBROAD AND SWEEPS UP CONSTITUTIONALLY PROTECTED SPEECH IN VIOLATION OF THE 13 FIRST AMENDMENT.
14 “[A]s a general matter, the First Amendment means that government has no power to 15 restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. 16 American Civil Liberties Union, 535 U.S. 564, 573 (2002). In the First Amendment context, a law 17 may be invalidated as overbroad if “a substantial number of its applications are unconstitutional, 18 judged in relation to the statute’s plainly legitimate sweep.” Wash. State Grange v. Wash. State 19 Republican Party, 552 U.S. 442, 449 n.6 (2008) (internal quotation marks omitted). 20 Here, the sweep of the Phoenix ordinance is far-reaching and encompasses a wide range 21 of constitutionally protected speech. Under a plain reading of the Section, the Phoenix police 22 could impose criminal penalties on Arizonans engaged in a wide range of everyday activities. 23 See Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (“The First Amendment doctrine of 24 substantial overbreadth is an exception to the general rule that a person to whom a statute may be 25 constitutionally applied cannot challenge the statute on the ground that it may be 26 unconstitutionally applied to others.”); U.S. v. Stevens, 559 U.S. 460 (2010) (considering 27 implications of federal law banning depictions of animal cruelty beyond the particular facts of 28 Defendant’s prosecution). Pursuant to this law, an officer could arrest a canvasser that stops
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1 passersby to discuss a petition on the public forum of a city sidewalk; a person seeking help who
2 inquires as to whether someone is a police officer; a lost tourist who beckons to pedestrians and
3 vehicles in an attempt to obtain directions. There is no requirement that the acts manifesting 4 intent be cumulative or that an act in furtherance of the crime of prostitution be present. Under 5 this law, a single act “manifesting intent” is sufficient. This means that on its face, the law makes 6 it a crime to stand on the edge of the road and repeatedly attempt to hail a vehicle. Even if that 7 vehicle is a cab and even if the person doing the hailing is only trying to get to the airport on a 8 particularly busy day. The Manifesting Law also permits, as in Ms. Jones’s case, the government 9 to imprison a person for having a conversation about constitutionally protected, private, 10 consensual sexual activity. Cf. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“‘[I]ndividual 11 decisions by married persons, concerning the intimacies of their physical relationship, even when 12 not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause . . . 13 [T]his protection extends to intimate choices by unmarried as well as married persons.’”) (citing 14 Bowers v. Hardwick, 478 U.S., at 216 (1986)) (Stevens, J., dissenting)). 15 This Section both facially and as applied to Ms. Jones also impermissibly permits the 16 criminalization of the particularized message conveyed by gender expression. Non-verbal 17 expression is entitled to protection under the First Amendment, Tinker v. Des Moines Indep. 18 Cmty. Sch. Dist., 393 U.S. 503 (1969), where such non-verbal expression conveys a 19 “particularized message” likely to be “understood by those who viewed it.” Spence v. State of 20 Wash., 418 U.S. 405, 411 (1974) (Court found that student’s act of displaying upside down U.S. 21 flag with peace symbol as message of discontent with political climate around Cambodia invasion 22 and Kent State shooting was particularized message likely to be understood by those who viewed 23 it). Of particular relevance here, clothing that expresses a particularized message “is 24 unquestionably protected by the First Amendment.” Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 25 419, 427-28 n.21 (9th Cir. 2008) (a t-shirt with words on the shirt constitutes pure speech for 26 purposes of the First Amendment); Tinker, 393 U.S. 503 (wearing of black armbands in protest 27 of Vietnam War constitutes speech protected by the First Amendment). 28 Clothing that expresses a particularized message of one’s gender identity falls under the
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1 protections of the First Amendment. For a transgender person, like Ms. Jones, choice about
2 clothing is grounded in the person’s every day existence and conveys a central message about her
3 core identity. See, e.g., Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199 at *3 (Mass. 4 Super. Oct. 11, 2000), attached hereto as Exhibit A, (“plaintiff’s expression is not merely a 5 personal preference but a necessary symbol of her very identity”), aff'd sub nom. Doe v. Brockton
6 Sch. Comm., No. 2000-J-638, 2000 WL 33342399 (Mass. App. Ct. Nov. 30, 2000).2 7 Where clothing affirms the female identity of a transgender woman, it conveys an 8 important, particularized message – that they are women despite the fact that they were assigned 9 male at birth. In Doe v. Yunits, a Massachusetts court held that “by dressing in clothing and 10 accessories traditionally associated with the female gender, [a transgender person] is expressing 11 her identification with that gender” and the Defendant School District’s suppression of that 12 message violated the First Amendment. Yunits, 2000 WL 33162199 at *3; see also Zalewska v. 13 Cnty. of Sullivan, New York, 316 F.3d 314, 320 (2d Cir. 2003) (citing Yunits and recognizing that 14 there “may exist contexts in which a particular style of dress may be a sufficient proxy for speech 15 to enjoy full constitutional protection.”); McMillen v. Itawamba Cnty. School Dist., 702 F. Supp. 16 2d 699, 704-05 (N.D. Miss. 2010) (holding that a female student’s desire to wear a tuxedo to the 17 prom to convey her “social and political views that women should not be constrained to wear 18 clothing that has traditionally been deemed ‘female’ attire . . . is the type of speech that falls 19 squarely within the purview of the First Amendment”). 20 For a person who is known or perceived to be transgender, like Ms. Jones, the 21 unambiguous message conveyed by her traditionally feminine attire – that she is a woman – is 22 readily understood by those who view it. On the night of her arrest, Ms. Jones was wearing a 23 skirt, a black t-shirt and a long blonde and burgundy wig. Ms. Jones clearly communicated the 24 message to the officer and the public that she is female even though she was assigned male at 25 birth. In fact, the arresting officer clearly understood that message and then used Ms. Jones’s
26 2 Amici are aware that pursuant to Ariz. R. Crim. P. 31.24 and Ariz. R. Civ. App. P. 28 (c), the 27 Court does not accept Memorandum Decisions. This decision from Massachusetts provides important background information about the application of First Amendment principles to the dress of transgender 28 individuals and is offered for that purpose. A copy of this decision is attached hereto.
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1 perceived gender non-conformity as a basis to approach her.3 Besides referring to Ms. Jones as
2 male on or around nineteen times in the report, the officer refers to her attire as “his [sic] dress.”4
3 [Trial Tr. 67: 18-25]. It was thus Ms. Jones’s message of expression in accordance with her 4 female gender that suggested to the arresting officer, who instead incorrectly viewed her as a 5 male dressed as a female, that she was manifesting intent to engage in prostitution. Cf. Yunits, 6 2000 WL 33162199 at *9 (“Defendants in this case have prohibited the plaintiff from wearing 7 items of clothing that are traditionally labeled girls’ clothing, such as dresses and skirts, padded 8 bras, and wigs. This constitutes direct suppression of speech because [non-transgender] females 9 who wear items such as tight skirts to school are unlikely to be disciplined by school officials.”). 10 The officer’s use of Ms. Jones’s transgender status and gender expression as evidence of a 11 manifestation of intent to engage in prostitution demonstrates how the Manifesting Law’s
12 overbreadth criminalizes protected speech. 13 As the Appellant’s brief highlights, this infringement on protected speech cannot survive 14 constitutional review.
15 II. THE VAGUENESS OF THE CITY CODE ENCOURAGES ARBITRARY ENFORCEMENT OF THE LAW AGAINST TRANSGENDER WOMEN WHO ARE 16 REGULARLY PROFILED BY POLICE AS ENGAGING IN PROSTITUTION WHEN GOING ABOUT THEIR DAILY ROUTINES. 17 The Manifesting Law violates the basic principles of due process because it lacks 18 sufficient guidance to put the public on notice as to what conduct is criminalized and 19 impermissibly affords officers unfettered discretion to determine when there is an intent to engage 20 in prostitution. Jae Gab Kim, 449 F.3d at 942 (a law violates due process when it fails to “provide 21 guidance to citizens concerning how they can avoid violating it” or to “provide authorities with 22
23 3 The fact that the officer distorted and equated this message with an intent to engage in 24 prostitution does not change the message that Ms. Jones communicated (that she is female) and the fact that he understood it. 25 4 The officer’s suggestion was also that Ms. Jones was wearing overly suggestive and revealing 26 clothing. But as she testified, Ms. Jones was wearing a t-shirt and skirt, an outfit that would likely describe the clothing of countless non-transgender women on any given night. As a policy matter, criminal law 27 should not be used to control the contours of acceptable dress for women. As a constitutional matter, it is plainly unconstitutional to criminalize the particularized message conveyed by the dress of a transgender 28 woman.
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1 principles governing enforcement”). Due process prohibits “impermissibly delegate[ing] basic
2 policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis,
3 with the attendant dangers of arbitr ary and discriminatory application.” Grayned v. City of 4 Rockford, 408 U.S. 104, 108-09 (1972); see also City of Chicago v. Morales, 527 U.S. 41, 52 5 (1999)(striking down Chicago’s anti-gang loitering ordinance as impermissibly vague because it 6 failed to provide sufficient guidance to prevent arbitrary enforcement). “[W]here a vague statute 7 ‘abut(s) upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the 8 exercise of (those) freedoms.’” Grayned, 408 U.S. at 109 (internal citations omitted). As in Ms. 9 Jones’s case, the Manifesting Law affords law enforcement officers standardless discretion “to 10 censor ideas and enforce their own personal preferences,” id. at 113 n.22 (internal citations 11 omitted), regarding gender expression and to target “disfavored” communities, here transgender 12 women of color. Desertrain v. City of Los Angeles, No. 11-56957, 2014 WL 2766541 at *9 (9th 13 Cir. June 19, 2014) (If a statute provides ‘no standards governing the exercise of ... discretion,’ it 14 becomes ‘a convenient tool for harsh and discriminatory enforcement by local prosecuting 15 officials, against particular groups deemed to merit their displeasure.’” (internal citations 16 omitted)). 17 The Manifesting Law fails to provide guidance to the public and to law enforcement as to 18 what conduct is criminal. It is entirely unclear when waving down a car or passersby would be 19 evidence of intent to engage in prostitution or whether someone’s inquiry about a person’s status 20 as a law enforcement officer could be evidence that the person is manifesting intent to engage in 21 prostitution. See id. (striking down Los Angeles ordinance prohibiting the use of vehicles as 22 living quarters as unconstitutionally vague where individuals were forced to guess when 23 otherwise legal conduct would constitute a violation of the ordinance); cf. Akron v. Rowland, 618 24 N.E.2d 138, 146 (Ohio 1993) (striking down drug loitering ordinance as unconstitutionally vague 25 and overbroad noting “an average person who lives or works in a high-crime neighborhood could 26 not be sure whether just standing on the street in front of his or her home or workplace might 27 ‘manifest’ something illegal.”). Not only do the enumerated examples of “manifesting intent” to 28 solicit prostitution provide no guidance regarding what conduct is criminal, the list is “non-
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1 exclusive.” Savio, 924 P.2d at 493 The ordinance allows any “bodily gesture”, id., that an officer
2 considers to manifest intent to engage in prostitution to be a crime. There are no limiting
3 principles or other protections to prevent the targeted and arbitrary enforcement of the law. For 4 Ms. Jones, merely walking down the street in her own neighborhood signaled to the officer that 5 she was manifesting intent to engage in prostitution. 6 Without any guidance as to what actually constitutes the crime of manifesting intent to 7 engage in or solicit an act of prostitution, the Manifesting Law impermissibly delegates “basic 8 policy matters to police[ ],” Grayned, 408 U.S. at 108-09, and permits the targeting of disfavored 9 communities for discriminatory enforcement. Desertrain, 2014 WL 2766541. The Manifesting 10 Law purports to criminalize “intent” to engage in prostitution but does not actually require that a 11 person possess a specific intent to engage in prostitution (only that an officer perceives intent 12 based on the person’s actions) nor does the law require an act in furtherance of the crime (only an 13 act that evidences intent to the officer). 14 Other courts have struck down comparable laws because they invite discriminatory 15 enforcement against disfavored and marginalized communities. A Florida appeals court struck 16 down a similar ordinance that made it a crime to loiter for the purposes of engaging in prostitution 17 holding that the law “allows for arbitrary enforcement by law enforcement.” City of West Palm 18 Beach v. Chatman, 112 So.3d 723, 729 (Fla. Dist. Ct. App. 2013); see also Silvar, 129 P.3d at 19 687 (striking down similar prostitution-related ordinance and noting that such ordinances “do not 20 require an overt act of solicitation or prostitution [such that] an officer may arrest someone on a 21 mere suspicion of future criminality” (internal citations and quotation marks omitted)). In 22 Chatman the court explained that the law’s “language that the violator’s conduct must be activity 23 which ‘demonstrates’ a specific intent does not vitiate the fact that much is left to individual 24 officers’ discretion. The individual officer may still determine subjectively if waving at passersby 25 or strolling down the street ‘demonstrates’ the specific intent to violate the ordinance.” Chatman, 26 112 So.3d at 729. The same is true here. 27 The vagueness of the Manifesting Law poses a particular risk to transgender women, 28 particularly transgender women of color like Ms. Jones, who are often assumed by law
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1 enforcement to manifest intent to engage in prostitution simply because of who they are and how
2 they express their gender (i.e., the way that an individual looks, dresses, stands, speaks). This
3 perception by law enforcement that gender non-conformity by definition constitutes “intent to 4 prostitute” leads to the criminalization, as here, of one’s message of gender expression and makes 5 it almost inevitable that standardless prostitution laws will be discriminatorily enforced against 6 transgender women and that protected speech will be infringed. 7 Police profiling of transgender women of color is well documented. A survey of four 8 major U.S. cities documented how transgender persons are routinely profiled as sex workers and 9 are “stopped and searched while doing nothing illegal, including walking home, returning from 10 school, and waiting for the bus.” Human Rights Watch, Sex Workers at Risk: Condoms as 11 Evidence of Prostitution in Four U.S. Cities, 75 (July 2012); see also Frank Galvan & Mohsen 12 Bazargan, Interactions of Latina Transgender Women With Law Enforcement, BIENESTAR, 1 13 (April 2012) (Almost 60% of transgender survey respondents of color who had been stopped by 14 police reported they had been “coming back from the grocery store” “waiting for the bus” or 15 otherwise engaged in completely legal “everyday things”); Make the Road New York, 16 Transgressive Policing: Police Abuse of LGBTQ Communities of Color in Jackson Heights, 17 Queens, 15-16 (October 2012) (59% of transgender respondents indicated that they had been 18 stopped by police, in comparison to only 28% of surveyed non-transgender respondents). 19 “Transgender women, particularly transgender women of color, are so frequently perceived to be 20 sex workers by police that the term walking while trans… was coined” to describe the problem of 21 profiling of transgender women by the police. Joey Mogul et al., Queer (In)justice: The 22 Criminalization of LGBT People in the United States 61 (2011). Like so many women of color, 23 particularly transgender women and low-income women, Ms. Jones was targeted based on how 24 she looked for simply walking down the street in her own neighborhood, which happened to be a 25 neighborhood that the arresting officer associated with prostitution-related activity. 26 The profiling and arrest of transgender individuals for engaging in everyday legal 27 activities are not isolated or merely anecdotal, but systematic and nationwide. The Center for 28 Constitutional Rights has estimated that 80% of transgender women of color have experienced
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1 “police harassment or false arrest based on unfounded suspicion of prostitution.” Center for
2 Constitutional Rights, Stop-and-Frisk: The Human Impact (2012). In recognition of this
3 widespread problem, some police departments have deemed it necessary to issue affirmative 4 guidance to officers to prevent such profiling. For example, the Chief of Police of the Los 5 Angeles Police Department (LAPD) issued a policy directive instructing that “non-traditional 6 gender identities and gender expression do not constitute reasonable suspicion or prima facie 7 evidence that an individual is or has engaged in prostitution or any other crime.” Charlie Beck, 8 Chief of Police, “Police Interactions with Transgender Individuals,” Los Angeles Police 9 Department (April 10, 2012). 10 Laws like the Manifesting Law that give the police license to profile transgender women 11 as sex workers not only violate those women’s basic constitutional rights but also discourage 12 transgender women from interacting with the police which compromises the safety of transgender 13 women and the general public. The threat of arrest for merely walking down the street adds to the 14 fear and distrust of law enforcement within the transgender community. In a national survey of 15 over 6,000 transgender respondents, 46% of respondents indicated that they are uncomfortable 16 seeking police assistance. Jaime M. Grant et al., Injustice at Every Turn: A Report of the National 17 Transgender Discrimination Survey 6 (2011), http://www.thetaskforce.org/downloads/reports/ 18 reports/ntds_full.pdf; see also Monsello Arrington, Move Along: Policing Sex Work in 19 Washington, D.C. 43 (2008), https://dctranscoalition.wordpress.com/tag/police/ (In a survey of 20 individuals who either identified as sex workers or who were perceived to be sex workers in the 21 District of Columbia, 86.7% of transgender survey respondents reported being fearful of police). 22 Amplifying this fear is the fact that transgender people are disproportionately subjected to abuse 23 and violence by the police. See Amnesty International, Stonewalled: Police Abuse and 24 Misconduct Against Lesbian, Gay, Bisexual and Transgender People in the U.S., 3, 17-19 25 (September 2005)(“Transgender people, particularly low-income transgender people of color, 26 experience some of the most egregious cases of police brutality reported.”); Make the Road 27 Report (Noting that 51% of gay, lesbian, bisexual, transgender, and queer respondents who had 28 been stopped by police indicated they had been verbally harassed by law enforcement and 46% of
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1 transgender respondents faced physical abuse at the hands of law enforcement officers); Lambda
2 Legal, Protected and Served, available at http://www.lambdalegal.org/protected-and-served-
3 police#2b (In a survey of 2,376 respondents about experiences with police, 22% of transgender 4 and gender non-conforming respondents reported experiencing verbal assault from officers). 5 The transgender community’s fear of interacting with the police is particularly concerning 6 given the fact that transgender women experience disproportionately high rates of violence and, 7 thus, are in great need of protection. The National Coalition for Anti-Violence Programs 8 (“NCAVP”) reported that, among hate violence incidents targeting LGBT people in 2013, 9 “[m]ore than half (72%) of victims were transgender women, while 67% of homicide victims 10 were transgender women of color, yet transgender survivors and victims only represent 13% of 11 total reports to NCAVP, highlighting a disproportionate impact of homicide against transgender 12 people.” Lesbian, Gay, Bisexual, Transgender, Queer and HIV-Affected Hate Violence in 2013 13 (2014), available at http://www.avp.org/storage/documents/2013_ncavp_hvreport_final.pdf; 14 Where vulnerable communities fear the police because of profiling and violence, everyone is less 15 safe. As one veteran police officer from the District of Columbia explained, “[a]fter 25 years as a 16 D.C. police officer, I can say with confidence that building relationships with the community is 17 fundamental to preventing and solving crimes. When trust is replaced by fear …everyone’s public 18 safety is compromised.” See, e.g., National Immigration Law Center et al., Uncover the Truth 19 Behind ICE and Police Collaboration: A Toolkit (2010), 20 http://www.nationalimmigrationproject.org/resources/deportation/Uncover_the_Truth_Toolkit.pd 21 f (documenting problems of distrust of police in context of fear of deportation). 22 Given the well-documented problem of police profiling of transgender women, 23 particularly transgender women of color, as sex workers, the Section’s lack of any guidance as to 24 what conduct is prohibited all but guarantees that transgender women like Ms. Jones will be 25 stopped and arrested for simply walking down the street.
26 27 28
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1 CONCLUSION
2 For the foregoing reasons, amici curiae respectfully request that the conviction of
3 Defendant-Appellant Monica Jones be reversed.
4
5 Dated: August 5, 2014 ACLU FOUNDATION OF ARIZONA 6 By: /s/ Daniel J. Pochoda (#021979) 7 Daniel J. Pochoda 3707 North 7th Street, Suite 235 8 Phoenix, Arizona 85013
9 AMERICAN CIVIL LIBERTIES UNION 10 By: /s/ Chase Strangio 11 Chase Strangio 12 (Motion for Admission Pro Hac Vice to be Filed) th 13 125 Broad St., 18 Fl. New York, NY 10004 14
15 Counsel for Applicant and Applicant Amicus Curiae in Support of Monica Jones 16
17 Copy of the foregoing mailed 18 this 5th day of August, 2014, to:
19 Gary L. Shupe Assistant City Prosecutor 20 P O Box 4500 Phoenix, AZ 85030-4500 21 Attorney for Plaintiff
22 Jean-Jacques Cabou Alexis Danneman 23 PERKINS COIE LLP Milo Iniguez Law Firm 24 2901 N. Central Ave. Suite 2000 25 Phoenix, AZ 85012-2788 Attorney for Defendant 26
27 28
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EXHIBIT A
Page 1 Not Reported in N.E.2d, 2000 WL 33162199 (Mass.Super.) (Cite as: 2000 WL 33162199 (Mass.Super.))
born biologically male, she has a female gender FN4 Only the Westlaw citation is currently available. identity. Plaintiff seeks to attend school wear- ing clothes and fashion accouterments that are con- Superior Court of Massachusetts. FN*,FN1 sistent with her gender identity. Defendants have Pat DOE, informed plaintiff that she could not enroll in school this academic year if she wore girls' clothes FN* Editor's Note: A petition for inter- or accessories. After a hearing, and for the reasons locutory relief from the preliminary injunc- stated below, plaintiff's motion for preliminary in- tion entered in this opinion was denied by junction is ALLOWED. the Appeals Court sub nom Doe v. Brock- ton School Committee, No.2000-J-638 FN3. Apseudonym. (November 30, 2000) (Jacobs, J.). FN4. This court will use female pronouns FN1. By her next friend, Jane Doe, to refer to plaintiff: a practice which is plaintiff's grandmother and guardian. consistent with the plaintiff's gender iden- tity and which is common among mental v. FN2 health and other professionals who work John YUNITS, et al. with transgender clients. FN2. Maurice Hancock, Wayne Carter, BACKGROUND George Allen, Mary Gill, Dennis Eaniri, Plaintiff began attending South Junior High, a Kevin Nolan, Ronald Dobrowski. School Brockton public school, in September 1998, as a Committee Members; Joseph Bage, Super- 7th grader. In early 1999, plaintiff first began to ex- intendent; Kenneth Cardone, Principal of press her female gender identity by wearing girls' South Junior High School; Dr. Kenneth make-up, shirts, and fashion accessories to school. Sennett, Senior Director for Pupil Services, South Junior High has a dress code which prohibits, in their individual and official capacities; among other things, “clothing which could be dis- and Brockton Public Schools. ruptive or distractive to the educational process or No. 001060A. which could affect the safety of students.” In early Oct. 11, 2000. 1999, the principal, Kenneth Cardone (“Cardone”), would often send the plaintiff home to change if she MEMORANDUM OF DECISION AND ORDER arrived at school wearing girls' apparel. On some ON PLAINTIFF'S MOTION FOR PRELIMINARY occasions, plaintiff would change and return to INJUNCTION school; other times, she would remain home, too GILES. upset to return. In June 1999, after being referred to FN3 *1 Plaintiff Pat Doe (“plaintiff'), a fifteen- atherapistbytheSouthJuniorHigh,plaintiffwas year-old student, has brought this action by her next diagnosed with gender identity disorder. Plaintiff's friend, Jane Doe, requesting that this court prohibit treating therapist, Judith Havens (“Havens”), de- defendants from excluding the plaintiff from South termined that it was medically and clinically neces- Junior High School (“South Junior High”), Brock- sary for plaintiff to wear clothing consistent with ton, Massachusetts, on the basis of the plaintiff's the female gender and that failure to do so could sex, disability, or gender identity and expression. cause harm to plaintiff's mental health. Plaintiff has been diagnosed with gender identity disorder, which means that, although plaintiff was Plaintiff returned to school in September 1999,
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 Not Reported in N.E.2d, 2000 WL 33162199 (Mass.Super.) (Cite as: 2000 WL 33162199 (Mass.Super.))
as an 8th grader, and was instructed by Cardone to grandmother tried to enroll plaintiff in school and come to his office every day so that he could ap- was told by Cardone and Sennett that plaintiff prove the plaintiff's appearance. Some days the would not be permitted to enroll if she wore any plaintiff would be sent home to change, sometimes girls' clothing or accessories. Defendants allege that returning to school dressed differently and some- they have not barred the plaintiff from school but times remaining home. During the 1999-2000 have merely provided limits on the type of dress the school year, plaintiff stopped attending school, cit- plaintiff may wear. Defendants claim it is the ing the hostile environment created by Cardone. plaintiff's own choice not to attend school because Because of plaintiff's many absences during the of the guidelines they have placed on her attire. 1999-2000 school year, plaintiff was required to re- Plaintiff is not currently attending school, but the peat the 8th grade this year. school has provided a home tutor for her to allow her to keep pace with her classmates. Over the course of the 1998-1999 and 1999-2000 school years, plaintiff sometimes ar- On September 26, 2000, the plaintiff filed a rived at school wearing such items as skirts and complaint in this court claiming a denial of her dresses, wigs, high-heeled shoes, and padded bras right to freedom of expression in the public schools with tight shirts. The school faculty and administra- in violation of G.L.c. 71, § 82;adenialofherright tion became concerned because the plaintiff was to personal dress and appearance in violation of experiencing trouble with some of her classmates. G.L. c. 76, § 83; a denial of her right to attend Defendants cite one occasion when the school ad- school in violation of G.L. c. 76, § 5;adenialof justment counselor had to restrain a male student her right to be free from sex discrimination guaran- because he was threatening to punch the plaintiff teed by Articles I and XIV of the Declaration of for allegedly spreading rumors that the two had en- Rights of the Massachusetts Constitution; a denial gaged in oral sex. Defendants also point to an in- of her right to be free from disability discrimination stance when a school official had to break up a con- guaranteed by Article CXIV of the said Declaration frontation between the plaintiff and a male student of Rights; a denial of her due process rights as to whom plaintiff persistently blew kisses. At an- guaranteed by G.L. c. 71, § 37 and G.L. c. 76, § 17; other time, plaintiff grabbed the buttock of a male adenialofherlibertyinterestinherappearanceas student in the school cafeteria. Plaintiff also has guaranteed by the Massachusetts Declaration of been known to primp, pose, apply make up, and Rights, Art. I and X; and a violation of her right to flirt with other students in class. Defendants also free expression as guaranteed by the said Declara- advance that the plaintiff sometimes called atten- tion of Rights, Art. I and X. tion to herself by yelling and dancing in the halls. Plaintiff has been suspended at least three times for DISCUSSION using the ladies' restroom after being warned not to. I. Introduction In evaluating a request for a preliminary in- *2 On Friday, September 1, 2000, Cardone and junction, the court must examine “in combination Dr. Kenneth Sennett (“Sennett”), Senior Director the moving party's claim of injury and chance of for Pupil Personnel Services, met with the plaintiff success on the merits.” Packing Industries Group, relative to repeating the 8th grade. At that meeting, Inc. v. Cheney, 380 Mass. 609, 617 (1980).“Ifthe Cardone and Sennett informed the plaintiff that she judge is convinced that failure to issue the injunc- would not be allowed to attend South Junior High if tion would subject the moving party to a substantial she were to wear any outfits disruptive to the edu- risk of irreparable harm, the judge must then bal- cational process, specifically padded bras, skirts or ance this risk against any similar risk of irreparable dresses, or wigs. On September 21, 2000, plaintiff's harm which granting the injunction would create
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 Not Reported in N.E.2d, 2000 WL 33162199 (Mass.Super.) (Cite as: 2000 WL 33162199 (Mass.Super.))
for the opposing party ... Only where the balance (1974).Ifthedefendants'conductisnotrelatedto between these risks cuts in favor of the moving the suppression of speech, furthers an important or party may a preliminary injunction properly issue.” substantial governmental interest, and is within the GTE Products Corp. v. Stewart, 414 Mass. 721, constitutional powers of the government, and if the 722-23 (1993),quotingPackaging Industries incidental restriction on speech is no greater than Group, Inc. v. Cheney, supra (footnote omitted). In necessary, the government's conduct is permissible. addition, where the injunction is sought against a See United States v. O'Brien, supra. In addition, be- public entity, as it is here, the court must consider cause this case involves public school students, the risk of injury to the public interest which would suppression of speech that “materially and substan- flow from the grant of the injunction. Brookline v. tially interferes with the work of the school” is per- Goldstein, 388 Mass. 443, 447 (1983); Biotti v. missible. See Tinker v. Des Moines Community Board of Selectmen of Manchester, 25 School Dist., 393 U.S. 503, 739 (1969). Mass.App.Ct. 637, 639 (1988). 1. The Plaintiff's Conduct is Expressive Speech II. The Likelihood of Plaintiff's Success on the Which is Understood by Those Perceiving It Merits Symbolic acts constitute expression if the act- *3 Plaintiff's complaint asserts eight causes of or's intent to convey a particularized message is action based on the Massachusetts Declaration of likely to be understood by those perceiving the Rights and the General Laws. They are individually message. See Spence v. Washington, 418 U.S. 405, addressed below to evaluate the likelihood of suc- 410-11 (1974) (finding that an upside-down flag cess on the merits. with a peace symbol attached was protected speech because it was a purposeful message people could A. Freedom of Expression, Massachusetts Declara- understand); see also Chalifoux v. New Caney Inde- tion of Rights, Art. II and X pendent School Dist., 976 F.Sup. 659 The Massachusetts Declaration of Rights, Art- (S.D.Tex.1997) (students wearing rosary beads as a icle XVI (as amended by Article 77) provides, sign of their religious belief was likely to be under- “[t]he right of free speech shall not be abridged.” stood by others and therefore protected). The analysis of this article is guided by federal free speech analysis. See Hosford v. School Committee Plaintiff in this case is likely to establish that, of Sandwich, 421 Mass. 708, 712 n. 5 (1996); Opin- by dressing in clothing and accessories traditionally ion of the Justices to the House of Representatives, associated with the female gender, she is expressing 387 Mass. 1201, 1202 (1982); Colo. v. Treasurer her identification with that gender. In addition, and Receiver General, 378 Mass. 550, 558 (1979). plaintiff's ability to express herself and her gender According to federal analysis, this court must first identity through dress is important to her health and determine whether the plaintiff's symbolic acts con- well-being, as attested to by her treating therapist. stitute expressive speech which is protected, in this Therefore, plaintiff's expression is not merely a per- case, by Article VXI of the Massachusetts Declara- sonal preference but a necessary symbol of her very tion of Rights. See Texas v. Johnson, supra, citing identity. Contrast Olesen v. Board of Education of Spence v. Washington, supra. If the speech is ex- School District No. 228, 676 F.Sup. 820 pressive, the court must next determine if the de- (N.D.Ill.1987) (school's anti-gang policy of prohib- fendants' conduct was impermissible because it was iting males from wearing earrings, passed for safety meant to suppress that speech. See Texas v. John- reasons, was upheld because plaintiff's desire to son, 491 U.S. 397, 403 (1989),citingUnited States wear an earring as an expression of his individual- v. O'Brien, 391 U.S. 367, 377 (1968);seealso ity and attractiveness to girls was a message not Spence v. Washington, 418 U.S. 405, 414 n. 8 within the scope of the First Amendment).
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 Not Reported in N.E.2d, 2000 WL 33162199 (Mass.Super.) (Cite as: 2000 WL 33162199 (Mass.Super.))
*4 This court must next determine if the gument that the school's policy is a content-neutral plaintiff's message was understood by those per- regulation of speech is without merit because, as ceiving it, i.e., the school faculty and plaintiff's fel- has been discussed, the school is prohibiting the low students. See Bivens v. Albuquerque Public plaintiff from wearing clothes a biological female Schools, 899 F.Sup. 556 (D.N.M.1995) (student would be allowed to wear. Therefore, the plaintiff failed to provide evidence that his wearing of sag- has a likelihood of fulfilling the Texas v. Johnson ging pants to express his identity as a black youth test that her speech conveyed a particularized mes- was understood by others and, therefore, such attire sage understood by others and that the defendants' was not speech). In the case at bar, defendants con- conduct was meant to suppress that speech. tend that junior high school students are too young to understand plaintiff's expression of her female 3. Plaintiff's Conduct is not Disruptive gender identity through dress and that “not every This court also must consider if the plaintiff's defiant act by a high school student is constitution- speech “materially and substantially interferes with ally protected speech.” Id. at 558. However, un- the work of the school.” Tinker v. Des Moines like Bivens, here there is strong evidence that Community School Dist., supra. Defendants argue plaintiff's message is well understood by faculty that they are merely preventing disruptive conduct and students. The school's vehement response and on the part of the plaintiff by restricting her attire at some students' hostile reactions are proof of the fact school. Their argument is unpersuasive. Given the that the plaintiff's message clearly has been re- state of the record thus far, the plaintiff has demon- ceived. Moreover, plaintiff is likely to establish, strated a likelihood of proving that defendants, through testimony, that her fellow students are well rather than attempting to restrict plaintiff's wearing aware of the fact that she is a biological male more of distracting items of clothing, are seeking to ban comfortable wearing traditionally “female”-type her from donning apparel that can be labeled “girls' clothing because of her identification with that clothes” and to encourage more conventional, male- gender. oriented attire. Defendants argue that any other stu- dent who came to school dressed in distracting 2. The Defendants' Conduct Was a Suppression of clothing would be disciplined as the plaintiff was. the Plaintiff's Speech However, defendants overlook the fact that, if a fe- Plaintiff also will probably prevail on the mer- male student came to school in a frilly dress or its of the second prong of the Texas v. Johnson test, blouse, make-up, or padded bra, she would go, and that is, the defendants' conduct was meant to sup- presumably has gone, unnoticed by school officials. press plaintiff's speech. Defendants in this case Defendants do not find plaintiff's clothing distract- have prohibited the plaintiff from wearing items of ing per se, but, essentially, distracting simply be- clothing that are traditionally labeled girls' clothing, cause plaintiff is a biological male. such as dresses and skirts, padded bras, and wigs. This constitutes direct suppression of speech be- *5 In addition to the expression of her female cause biological females who wear items such as gender identity through dress, however, plaintiff tight skirts to school are unlikely to be disciplined has engaged in behavior in class and towards other by school officials, as admitted by defendants' students that can be seen as detrimental to the counsel at oral argument. See Texas v. Johnson, learning process. This deportment, however, is sep- 491 U.S. 397, 408-16 (1989).Therefore,thetestset arate from plaintiff's dress. Defendants vaguely cite out in United States v. O'Brien, which permits re- instances when the principal became aware of strictions on speech where the government motiva- threats by students to beat up the “boy who dressed tion is not directly related to the content of the like a girl” to support the notion that plaintiff's speech, cannot apply here. Further, defendants' ar- dress alone is disruptive. To rule in defendants' fa-
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 Not Reported in N.E.2d, 2000 WL 33162199 (Mass.Super.) (Cite as: 2000 WL 33162199 (Mass.Super.))
vor in this regard, however, would grant those con- nated a primary school. Therefore, plaintiff will tentious students a “heckler's veto.” See Fricke v. probably fail in this claim if defendants can sub- Lynch, 491 F.Sup. 381, 387 (D .R.I.1980).Thema- stantiate their assertion. Nevertheless, the Supreme jority of defendants' evidence of plaintiff's disrup- Court's constitutional analysis in Tinker, which was tion is based on plaintiff's actions as distinct from codified by G.L. c. 71, § 82,seePyle v. School her mode of dress. Some of these acts may be a fur- Committee of South Hadley, 423 Mass. 283, 286 ther expression of gender identity, such as applying (1996),remainsapplicableinthiscaseandimplic- make-up in class; but many are instances of mis- ates the same principles. As discussed, plaintiff has conduct for which any student would be punished. demonstrated a likelihood of success on the merits Regardless of plaintiff's gender identity, any stu- in her common law freedom of expression claim. dent should be punished for engaging in harassing behavior towards classmates. Plaintiff is not im- C. Liberty Interest in Appearance Massachusetts mune from such punishment but, by the same Declaration of Rights Article I and X token, should not be punished on the basis of dress *6 Plaintiff is also likely to prevail in this alone. claim. A liberty interest under the First Amendment has been recognized to protect a male student's Plaintiff has framed this issue narrowly as a right to wear his hair as he wishes. See Richards v. question of whether or not it is appropriate for de- Thurston, 424 F.2d 1281 (1st Cir.1970),citedwith fendants to restrict the manner in which she can approval Bd. of Selectmen of Framingharn v. Civil dress. Defendants, on the other hand, appear unable Service Commission, 366 Mass. 547, 556 (1974). to distinguish between instances of conduct connec- The question in liberty interest cases is whether the ted to plaintiff's expression of her female gender government's interest in restricting liberty is strong identity, such as the wearing of a wig or padded enough to overcome that liberty interest. Given that bra, and separate from it, such as grabbing a male plaintiff has a likelihood of success in proving that student's buttocks or blowing kisses to a male stu- her attire is not distracting, as discussed above, she dent. The line between expression and flagrant be- is likely to prove that defendants' interests do not havior can blur, thereby rendering this case difficult overcome the recognized liberty interest in appear- for the court. It seems, however, that expression of ance. gender identity through dress can be divorced from conduct in school that warrants punishment, regard- D. Sex Discrimination G.L. c. 76, § 5 and Article I less of the gender or gender identity of the offender. and XIV of the Massachusetts Declaration of Therefore, a school should not be allowed to bar or Rights discipline a student because of gender-identified G.L. c. 76, § 5 states that “Every person shall dress but should be permitted to ban clothing that have the right to attend the public schools of the would be inappropriate if worn by any student, such town where he actually resides ... No person shall as a theatrical costume, and to punish conduct that be excluded from or discriminated against in admis- would be deemed offensive if committed by any sion to a public school of any town, or in obtaining student, such as harassing, threatening, or obscene the advantages, privileges and course of study of behavior. See Bethel v. Fraser, 478 U.S. 675 (1986) such public school on account of race, color, sex, . religion, national origin or sexual orientation.” G.L. c. 76, § 5 (2000).Federalcaseshaverecognizedthe B. G.L. c. 71, § 82 impropriety of discriminating against a person for Defendants argue that G.L. c. 71, § 82 is inap- failure to conform with the norms of' their biologic- plicable because the statute only applies to second- al gender. See Price Waterhouse v. Hopkins, 490 ary school; and South Junior High has been desig- U.S. 228, 250 (1989) (sex stereotyping occurred
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 Not Reported in N.E.2d, 2000 WL 33162199 (Mass.Super.) (Cite as: 2000 WL 33162199 (Mass.Super.))
when members of an accounting firm denied female students dressed in clothing of the opposite associate promotion because she failed to walk, gender from attending the prom against a talk, and dress femininely); Rosa v. Park West claim that the plaintiffs' First Amendment Bank, 214 F.3d 213 (1st Cir .2000) (claim of sex rights were violated. The court found the discrimination may be sustained when cross- school's action permissible because it dressing man was denied a loan application until he fostered community values and maintained went home to change clothes). This court finds discipline. Plaintiff in this case, however, plaintiff's reliance on such cases persuasive and the is not merely engaging in rebellious acts to cases cited by defendants distinguishable, as dis- demonstrate a willingness to violate com- cussed below. munity norms; plaintiff is expressing her personal identity, which cannot be sup- Plaintiff contends that defendants' action con- pressed by the school merely because it de- stitute sex discrimination because defendants pre- parts from community standards. vented plaintiff from attending school in clothing associated with the female gender solely because FN6. LaFleur v. Bird-Johnson Co., 1994 plaintiff is male. Defendants counter that, since a W.L. 878831 (Mass.Super. Nov. 3, 1994) [ female student would be disciplined for wearing 3Mass.L.Rptr.196],is also distinguish- distracting items of men's clothing, such as a fake able. LaFleur was decided after Price Wa- beard, the dress code is gender-neutral. Defendants' terhouse v. Hopkins but recognized the Su- argument does not frame the issue properly. Since preme Judicial Court's holding in Ma- plaintiff identifies with the female gender, the right cauley v. MCAD, 379 Mass. 279 (1979), question is whether a female student would be dis- that transsexual discrimination is not with- ciplined for wearing items of clothes plaintiff in the scope of this state's sexual discrim- chooses to wear. If the answer to that question is ination law. However, the case at hand dif- no, plaintiff is being discriminated against on the fers from LaFleur, where the plaintiff FN5 basis of her sex, which is biologically male. claimed she was discriminated against in Therefore, defendants' reliance on cases holding the employment context because she was a that discrimination on the basis of sexual orienta- transvestite, because the instant plaintiff is tion, transsexualism, and transvestism are not con- likely to establish that defendants have dis- trolling in this case because plaintiff is being dis- criminated against her on the basis of sex criminated against because of her gender. See by applying the dress code against her in a Ulane v. Eastern Airlines, 742 F.2d 1081 (7th manner in which it would not be applied to FN6 Cir.1984). Furthermore, such cases have been female students. criticized and distinguished under both Title VII and the First and Fourteenth Amendments. See *7 In support of their argument, defendants cite Quinn v. Nassau County Police Dept., 53 F.Sup.2d cases in which gender-specific school dress codes 347 (E.D.N.Y.1999); Blozis v. Mike Raisor Ford, have been upheld in the face of challenges based on Inc., 896 F.Sup. 805 (N.D.Ind.1995); Schwenk v. gender discrimination and equal protection because Hartford, 204 F.3d 1187 (9th Cir.2000). the codes serve important governmental interests, such as fostering conformity with community FN5. This case is distinguishable from standards. See Jones v. W.T. Henning Elementary Harper v. Edgewood Bd. of Education, 655 School, 721 So.2d 530 (La.App.3rd Cir1998); F.Sup. 1353 (S.D.Ohio 1987).InHarper, Hines v. Caston School Corp., 651 N.E.2d 330, 335 the court granted summary judgment in fa- (Ind.App.1995); Harper v. Edgewood Board of vor of the defendants, who prevented two Education. 655 F.Sup. 1353 (S.D.Ohio 1987).Such
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 7 Not Reported in N.E.2d, 2000 WL 33162199 (Mass.Super.) (Cite as: 2000 WL 33162199 (Mass.Super.))
cases are not binding on this court. This court can- II. Irreparable Harm not allow the stifling of plaintiff's selfhood merely The party seeking an injunction bears the bur- because it causes some members of the community den of establishing irreparable harm, i.e., that it discomfort. “Our constitution ... neither knows nor may suffer a loss of rights that cannot be vindicated tolerates classes among citizens.” Plessy v. Fer- should it prevail after a full hearing on the merits. guson, 163 U.S. 537, 539 (1896) (dissenting opin- GTE Products Corp. v. Stewart, supra at 726. ion of Harlan, J.). Thus, plaintiff in this case is Plaintiff in this case has met the burden of estab- likely to establish that the dress code of South Juni- lishing irreparable harm. The plaintiff is currently or High, even though it is gender-neutral, is being being home schooled because the defendants will applied to her in a gender discriminatory manner. not allow her to attend school in girls' attire. There- fore, plaintiff is being denied the benefits of attend- E. Disability Discrimination Article CXIV of the ing school with her peers, learning in an interactive Massachusetts Declaration of Rights environment, and developing socially. See Plaintiff does not have a likelihood of success McLaughlin v. Boston School Committee, 938 in proving that the defendants' conduct constituted F.Sup. 1001, 1011-12 (D.Mass.1994).Suchharmis disability discrimination. Analysis of federal dis- further exacerbated by the fact that the plaintiff has crimination law is instructive in construing state been the subject of much controversy over the past disability discrimination law. See Cox v. New Eng- two years and now is noticeably absent from land Tel. & Tel. Co., 414 Mass. 375 (1993).The school. Defendants argue that any harm to the federal Americans with Disabilities Act expressly plaintiff is self-induced because plaintiff has chosen excludes “transvestism, transsexualism ... [and] not to attend school under the conditions the de- gender identity disorders not resulting from physic- fendants have put on her attire. This contention is al impairments ...” 42 U.S.C. 12211(b) (2000). without merit. Defendants are essentially prohibit- While noting that the courts of this state can, and ing the plaintiff from expressing her gender identity often do, provide more protection than its federal and, thus, her quintessence, at school. Their actions counterpart, there is no authority to support the no- have forced plaintiff to submit to home schooling. tion that Gender Identity Disorder is a protected However, “in the field of public education the doc- disability under the Massachusetts Declaration of trine of ‘separate but equal’ has no place.” Brown v. Rights of laws of this state. Board of Education of Topeka, 347 U.S. 483, 495 (1954). F. Due Process G.L. c. 76, § 17 Plaintiff does not have a likelihood of success III. The Balance of the Equities on the merits of this claim because, as defendants *8 The balance of the equities tips in favor of correctly point out, the plaintiff has not been ex- plaintiff in his case. The plaintiff attended South pelled from school. Therefore, no process was due Junior High School for two academic years; and the the plaintiff. school and its students, with the exception of new students entering this year, are accustomed to inter- G. G.L. c. 71, § 83 acting with plaintiff and, thus, are capable of doing Defendants again are correct in asserting that so again. Because the school is empowered to dis- this section, which protects a student's right to per- cipline plaintiff for conduct for which any other sonal dress, is a local option statute which applies student would be disciplined, the harm to the school only to jurisdictions that have chosen to adopt it. in readmitting plaintiff is minimal. On the other G.L. c. 71, § 86.Therefore,theplaintiffhasnot hand, if plaintiff is barred from school, the potential demonstrated a likelihood of success on the merits harm to plaintiff's sense of self-worth and social de- of this claim. velopment is irreparable. Defendants cite cases that
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 8 Not Reported in N.E.2d, 2000 WL 33162199 (Mass.Super.) (Cite as: 2000 WL 33162199 (Mass.Super.))
stand for the proposition that a school's interest in 2. Defendants are further preliminarily en- disciplining students by barring them from school joined from disciplining plaintiff for any reason for outweigh the harm to the student. See Katchak v. which other students would not be disciplined. Glasgow Independent School District, 690 F.Sup. 580, 583 (W.D.Ky.1988).Inthiscase,however,the 3. If defendants do seek to discipline plaintiff school is not disciplining the plaintiff for certain in conformance with this order, they must do so ac- conduct. The school is barring her from school on cording to the school's standing policies and pro- account of the expression of her very identity. De- cedures. fendants maintain that plaintiff is free to enroll in Mass.Super.,2000. school as long as she complies with the stated dress Doe ex rel. Doe v. Yunits code. This is not entirely true because the defend- Not Reported in N.E.2d, 2000 WL 33162199 ants have placed specific restrictions on plaintiff's (Mass.Super.) dress that may not be placed on other female stu- dents. This court does take note of the fact that de- END OF DOCUMENT fendants made efforts to accommodate the plaintiff's desire to dress in girl's clothes for over a year. However, their proscription of the items of clothing that can be worn by plaintiff is likely to be impermissible. Therefore, the harm to plaintiff by the actions of the defendants outweigh the harm to the defendants in granting this injunction.
IV. The Harm to the Public Interest Defendants have not made a showing that the granting of this injunction will harm the public in- terest. Although defendants contend that plaintiff's dress is disruptive to the learning process, the workings of the school will not be disrupted if they are permitted to discipline plaintiff according to normal procedures for truly disruptive attire and in- appropriate behavior. Furthermore, this court trusts that exposing children to diversity at an early age serves the important social goals of increasing their ability to tolerate such differences and teaching them respect for everyone's unique personal experi- ence in that “Brave New World” out there.
ORDER For all the foregoing reasons, plaintiff's motion for preliminary injunction is ALLOWED; and it is hereby ORDERED THAT:
1. Defendants are preliminarily enjoined from preventing plaintiff from wearing any clothing or accessories that any other male or female student could wear to school without being disciplined.
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 1 of 43 (1 of 95)
FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 07 2014
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
SUSAN LATTA; TRACI EHLERS; LORI No. 14-35420 WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA D.C. No. 1:13-cv-00482-CWD ALTMAYER; AMBER BEIERLE; RACHAEL ROBERTSON, OPINION Plaintiffs - Appellees,
v.
C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity,
Defendant - Appellant,
And
CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity,
Defendant,
STATE OF IDAHO,
Intervenor-Defendant.
1 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 2 of 43 (2 of 95)
SUSAN LATTA; TRACI EHLERS; LORI No. 14-35421 WATSEN; SHARENE WATSEN; SHELIA ROBERTSON; ANDREA D.C. No. 1:13-cv-00482-CWD ALTMAYER; AMBER BEIERLE; RACHAEL ROBERTSON,
Plaintiffs - Appellees,
v.
C. L. OTTER, “Butch”; Governor of the State of Idaho, in his official capacity,
Defendant,
And
CHRISTOPHER RICH, Recorder of Ada County, Idaho, in his official capacity,
Defendant - Appellant,
STATE OF IDAHO,
Intervenor-Defendant - Appellant.
2 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 3 of 43 (3 of 95)
Appeal from the United States District Court for the District of Idaho Candy W. Dale, Magistrate Judge, Presiding
BEVERLY SEVCIK; MARY No. 12-17668 BARANOVICH; ANTIOCO CARRILLO; THEODORE SMALL; KAREN GOODY; D.C. No. 2:12-cv-00578-RCJ-PAL KAREN VIBE; FLETCHER WHITWELL; GREG FLAMER; MIKYLA MILLER; KATRINA MILLER; OPINION ADELE TERRANOVA; TARA NEWBERRY; CAREN CAFFERATA- JENKINS; FARRELL CAFFERATA- JENKINS; MEGAN LANZ; SARA GEIGER,
Plaintiffs - Appellants,
v.
BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Clark County, Nevada; AMY HARVEY, in her official capacity as the County Clerk and Commissioner of Civil Marriages for Washoe County, Nevada; ALAN GLOVER, in his official capacity as the Clerk Recorder for Carson City, Nevada,
Defendants - Appellees,
And
COALITION FOR THE PROTECTION
3 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 4 of 43 (4 of 95)
OF MARRIAGE,
Intervenor-Defendant - Appellee.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Argued and Submitted September 8, 20141 San Francisco, California
Before: REINHARDT, GOULD, and BERZON, Circuit Judges.
Opinion by Judge Reinhardt:
Both Idaho and Nevada have passed statutes and enacted constitutional amendments preventing same-sex couples from marrying and refusing to recognize same-sex marriages validly performed elsewhere.2 Plaintiffs, same-sex couples
1A disposition in Jackson v. Abercrombie, Nos. 12-16995 & 12-16998, is forthcoming separately. 2Idaho Const. Art. III, § 28 (“A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”); Idaho Code §§ 32-201 (“Marriage is a personal relation arising out of a civil contract between a man and a woman . . . .”), 32-202 (identifying as qualified to marry “[a]ny unmarried male . . . and unmarried female” of a certain age and “not otherwise disqualified.”); 32-209 (“All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriage, and marriages entered into under the laws of another state or (continued...) 4 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 5 of 43 (5 of 95)
who live in Idaho and Nevada and wish either to marry there or to have marriages entered into elsewhere recognized in their home states, have sued for declaratory relief and to enjoin the enforcement of these laws. They argue that the laws are subject to heightened scrutiny because they deprive plaintiffs of the fundamental due process right to marriage, and because they deny them equal protection of the law by discriminating against them on the bases of their sexual orientation and their sex. In response, Governor Otter, Recorder Rich, and the State of Idaho, along with the Nevada intervenors, the Coalition for the Protection of Marriage (“the
Coalition”), argue that their laws survive heightened scrutiny, primarily because the states have a compelling interest in sending a message of support for the institution of opposite-sex marriage. They argue that permitting same-sex marriage will seriously undermine this message, and contend that the institution of opposite- sex marriage is important because it encourages people who procreate to be responsible parents, and because opposite-sex parents are better for children than same-sex parents.
2(...continued) country with the intent to evade the prohibitions of the marriage laws of this state.”); Nev. Const. Art. 1, § 21 (“Only a marriage between a male and female person shall be recognized and given effect in this state.”); Nev. Rev. Stat. § 122.020(1) (“[A] male and female person . . . may be joined in marriage.”). 5 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 6 of 43 (6 of 95)
Without the benefit of our decision in SmithKline Beecham Corp. v. Abbott
Labs., 740 F.3d 471 (9th Cir. 2014), reh’g en banc denied, 759 F.3d 990 (9th Cir.
2014), the Sevcik district court applied rational basis review and upheld Nevada’s laws. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). After we decided
SmithKline, the Latta district court concluded that heightened scrutiny applied to
Idaho’s laws because they discriminated based on sexual orientation, and invalidated them.3 Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at
*14–18 (D. Idaho May 13, 2014). We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays4 who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.
I.
3The Latta court also found a due process violation because, it concluded, the laws curtailed plaintiffs’ fundamental right to marry. Latta v. Otter, No. 1:13- CV-00482-CWD, 2014 WL 1909999, at *9–13 (D. Idaho May 13, 2014). 4We have recognized that “[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005), vacated, 547 U.S. 183 (2006). 6 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 7 of 43 (7 of 95)
Before we reach the merits, we must address two preliminary matters: first, whether an Article III case or controversy still exists in Sevcik, since Nevada’s government officials have ceased to defend their laws’ constitutionality; and second, whether the Supreme Court’s summary dismissal in Baker v. Nelson, 409
U.S. 810 (1972), is controlling precedent that precludes us from considering plaintiffs’ claims.
A.
Governor Sandoval and Clerk-Recorder Glover initially defended Nevada’s laws in the district court. However, they have since withdrawn their answering briefs from consideration by this Court, in light of our decision in SmithKline, 740
F.3d at 480-81 (holding heightened scrutiny applicable). Governor Sandoval now asserts that United States v. Windsor, 133 S. Ct. 2675 (2013), “signifies that discrimination against same-sex couples is unconstitutional,” and that “[a]ny uncertainty regarding the interpretation of Windsor was . . . dispelled” by
SmithKline. As a result, we have not considered those briefs, and the Governor and
Clerk-Recorder were not heard at oral argument, pursuant to Fed. R. App. P. 31(c).
The Nevada Governor and Clerk Recorder remain parties, however, and continue to enforce the laws at issue on the basis of a judgment in their favor below. As a result, we are still presented with a live case or controversy in need of
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resolution. Despite the fact that Nevada “largely agree[s] with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact the [state] intend[s] to enforce the challenged law against that party.” Windsor, 133 S. Ct. at 2686–87 (citation and quotation marks omitted). Although the state defendants withdrew their briefs, we are required to ascertain and rule on the merits arguments in the case, rather than ruling automatically in favor of plaintiffs-appellants. See Carvalho v. Equifax Info.
Servs., LLC, 629 F.3d 876, 887 n.7 (9th Cir. 2010) (“[Defendant’s] failure to file a brief does not compel a ruling in [plaintiff’s] favor, given that the only sanction for failure to file an answering brief is forfeiture of oral argument.”).
There remains a question of identifying the appropriate parties to the case before us—specifically, whether we should consider the arguments put forward by the Nevada intervenor, the Coalition for the Protection of Marriage. As plaintiffs consented to their intervention in the district court—at a point in the litigation before Governor Sandoval and Clerk-Recorder Glover indicated that they would no longer argue in support of the laws—and continue to so consent, the propriety of the intervenor’s participation has never been adjudicated.
Because the state defendants have withdrawn their merits briefs, we face a situation akin to that in Windsor. There, a case or controversy remained between
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Windsor and the United States, which agreed with her that the Defense of Marriage
Act was unconstitutional but nonetheless refused to refund the estate tax she had paid. Here as there, the state defendants’ “agreement with [plaintiffs’] legal argument raises the risk that instead of a real, earnest and vital controversy, the
Court faces a friendly, non-adversary proceeding . . . .” 133 S. Ct. at 2687
(citations and quotation marks omitted). Hearing from the Coalition helps us “to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). As a result, we consider the briefs and oral argument offered by the Coalition, which, Governor Sandoval believes, “canvass the arguments against the Appellants’ position and the related policy considerations.”5
B.
Defendants argue that we are precluded from hearing this case by Baker, 409
U.S. 810. In that case, the Minnesota Supreme Court had rejected due process and equal protection challenges to a state law limiting marriage to a man and a woman.
5For the sake of convenience, we refer throughout this opinion to arguments advanced generally by “defendants”; by this we mean the parties that continue actively to argue in defense of the laws—the Idaho defendants and the Nevada intervenor—and not Governor Sandoval and Clerk-Recorder Glover. 9 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 10 of 43 (10 of 95)
191 N.W.2d 185, 186–87 (Minn. 1971). The United States Supreme Court summarily dismissed an appeal from that decision “for want of a substantial federal question.” Baker, 409 U.S. at 810. Such summary dismissals “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions,” Mandel v. Bradley, 432 U.S. 173, 176
(1977) (per curiam), until “doctrinal developments indicate otherwise,” Hicks v.
Miranda, 422 U.S. 332, 343–44 (1975) (citation and quotation marks omitted).
Defendants contend that this decades-old case is still good law, and therefore bars us from concluding that same-sex couples have a due process or equal protection right to marriage.
However, “subsequent decisions of the Supreme Court” not only “suggest” but make clear that the claims before us present substantial federal questions.6
Wright v. Lane Cnty. Dist. Ct., 647 F.2d 940, 941 (9th Cir. 1981); see Windsor,
6To be sure, the Court made explicit in Windsor and Lawrence that it was not deciding whether states were required to allow same-sex couples to marry. Windsor, 133 S. Ct. at 2696 (“This opinion and its holding are confined to those lawful marriages [recognized by states].”); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”). The Court did not reach the question we decide here because it was not presented to it. Although these cases did not tell us the answers to the federal questions before us, Windsor and Lawrence make clear that these are substantial federal questions we, as federal judges, must hear and decide. 10 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 11 of 43 (11 of 95)
133 S. Ct. at 2694–96 (holding unconstitutional under the Fifth Amendment a federal law recognizing opposite-sex-sex but not same-sex marriages because its
“principal purpose [was] to impose inequality, not for other reasons like governmental efficiency”); Lawrence v. Texas, 539 U.S. 558, 578–79 (2003)
(recognizing a due process right to engage in intimate conduct, including with a partner of the same sex); Romer v. Evans, 517 U.S. 620, 631–34 (1996)
(invalidating as an irrational denial of equal protection a state law barring protection of lesbians and gays under state or local anti-discrimination legislation or administrative policies). Three other circuits have issued opinions striking down laws like those at issue here since Windsor, and all agree that Baker no longer precludes review. Accord Baskin v. Bogan, No. 14-2386, 2014 WL 4359059, at *7
(7th Cir. Sept. 4, 2014); Bostic v. Schaefer, 760 F.3d 352, 373–75 (4th Cir. 2014);
Kitchen v. Herbert, 755 F.3d 1193, 1204–08 (10th Cir. 2014). As any observer of the Supreme Court cannot help but realize, this case and others like it present not only substantial but pressing federal questions.
II.
Plaintiffs are ordinary Idahoans and Nevadans. One teaches deaf children.
Another is a warehouse manager. A third is an historian. Most are parents. Like all human beings, their lives are given greater meaning by their intimate, loving,
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committed relationships with their partners and children. “The common vocabulary of family life and belonging that other[s] [] may take for granted” is, as the Idaho plaintiffs put it, denied to them—as are all of the concrete legal rights, responsibilities, and financial benefits afforded opposite-sex married couples by state and federal law7—merely because of their sexual orientation.
7Nevada, unlike Idaho, has enacted a domestic partnership regime. Since 2009, both same-sex and opposite-sex couples have been allowed to register as domestic partners. Nev. Rev. Stat. §§ 122A.100, 122A.010 et seq. Domestic partners are generally treated like married couples for purposes of rights and responsibilities—including with respect to children—under state law. However, domestic partners are denied nearly all of the benefits afforded married couples under federal law—including, since Windsor, same-sex couples married under state law. The fact that Nevada has seen fit to give same-sex couples the opportunity to enjoy the benefits afforded married couples by state law makes its case for the constitutionality of its regime even weaker than Idaho’s. With the concrete differences in treatment gone, all that is left is a message of disfavor. The Supreme Court has “repeatedly emphasized [that] discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants,” can cause serious “injuries to those who are denied equal treatment solely because of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728, 739–40 (1984) (citation omitted). If Nevada were concerned, as the Coalition purports it to be, that state recognition of same-sex unions would make the institution of marriage “genderless” and thereby undermine opposite-sex spouses’ commitments to each other and their children, it would be ill-advised to permit opposite-sex couples to participate in the alternative domestic partnership regime it has established. However, Nevada does just that. 12 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 13 of 43 (13 of 95)
Defendants argue that their same-sex marriage bans do not discriminate on the basis of sexual orientation, but rather on the basis of procreative capacity.
Effectively if not explicitly, they assert that while these laws may disadvantage same-sex couples and their children, heightened scrutiny is not appropriate because differential treatment by sexual orientation is an incidental effect of, but not the reason for, those laws. However, the laws at issue distinguish on their face between opposite-sex couples, who are permitted to marry and whose out-of-state marriages are recognized, and same-sex couples, who are not permitted to marry and whose marriages are not recognized. Whether facial discrimination exists “does not depend on why” a policy discriminates, “but rather on the explicit terms of the discrimination.” Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991). Hence, while the procreative capacity distinction that defendants seek to draw could in theory represent a justification for the discrimination worked by the laws, it cannot overcome the inescapable conclusion that Idaho and Nevada do discriminate on the basis of sexual orientation.
In SmithKline, we held that classifications on the basis of sexual orientation are subject to heightened scrutiny. 740 F.3d at 474. We explained:
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In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.
Id. at 481.
Windsor, we reasoned, applied heightened scrutiny in considering not the
Defense of Marriage Act’s hypothetical rationales but its actual, motivating purposes.8 SmithKline, 740 F.3d at 481. We also noted that Windsor declined to adopt the strong presumption in favor of constitutionality and the heavy deference to legislative judgments characteristic of rational basis review. Id. at 483. We concluded:
Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second- class status.
Id.
8Although as discussed in the text, SmithKline instructs us to consider the states’ actual reasons, and not post-hoc justifications, for enacting the laws at issue, these actual reasons are hard to ascertain in this case. Some of the statutory and constitutional provisions before us were enacted by state legislatures and some were enacted by voters, and we have been informed by all parties that the legislative histories are sparse. We shall assume, therefore, that the justifications offered in defendants’ briefs were in fact the actual motivations for the laws. 14 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 15 of 43 (15 of 95)
We proceed by applying the law of our circuit regarding the applicable level of scrutiny. Because Idaho and Nevada’s laws discriminate on the basis of sexual orientation, that level is heightened scrutiny.
III.
Defendants argue that their marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting. Governor
Otter argues that same-sex marriage “teaches everyone—married and unmarried, gay and straight, men and women, and all the children—that a child knowing and being reared by her mother and father is neither socially preferred nor officially encouraged.” Governor Otter seeks to have the state send the opposite message to all Idahoans: that a child reared by its biological parents is socially preferred and officially encouraged.
This argument takes two related forms: First, defendants make a
“procreative channeling” argument: that the norms of opposite-sex marriage ensure that as many children as possible are raised by their married biological mothers and fathers. They claim that same-sex marriage will undermine those existing norms, which encourage people in opposite-sex relationships to place their children’s interests above their own and preserve intact family units, instead of pursuing their own emotional and sexual needs elsewhere. In short, they argue that allowing
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same-sex marriages will adversely affect opposite-sex marriage by reducing its appeal to heterosexuals, and will reduce the chance that accidental pregnancy will lead to marriage. Second, Governor Otter and the Coalition (but not the state of
Idaho) argue that limiting marriage to opposite-sex couples promotes child welfare because children are most likely to thrive if raised by two parents of opposite sexes, since, they assert, mothers and fathers have “complementary” approaches to parenting.9 Thus, they contend, children raised by opposite-sex couples receive a better upbringing.
A.
We pause briefly before considering the substance of defendants’ arguments to address the contention that their conclusions about the future effects of same-sex marriage on parenting are legislative facts entitled to deference. Defendants have not demonstrated that the Idaho and Nevada legislatures actually found the facts asserted in their briefs; even if they had, deference would not be warranted.
9These arguments are not novel. The Bipartisan Legal Advisory Group (BLAG) relied in part on similar contentions about procreative channeling and gender complementarity in its attempt to justify the federal Defense of Marriage Act, but the Court did not credit them. Brief on the Merits for Respondent BLAG at 44-49, Windsor, 133 S. Ct. 2675 (No. 12-307), 2013 U.S. S. Ct. Briefs LEXIS 280 at *74–82. 16 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 17 of 43 (17 of 95)
Unsupported legislative conclusions as to whether particular policies will have societal effects of the sort at issue in this case—determinations which often, as here, implicate constitutional rights—have not been afforded deference by the
Court. To the contrary, we “retain[] an independent constitutional duty to review factual findings where constitutional rights are at stake. . . . Uncritical deference to
[legislatures’] factual findings in these cases is inappropriate.” Gonzales v.
Carhart, 550 U.S. 124, 165–66 (2007); see also Hodgson v. Minnesota, 497 U.S.
417, 450–55 (1990).
B.
Marriage, the Coalition argues, is an “institution directed to certain great social tasks, with many of those involving a man and a woman united in the begetting, rearing, and education of children”; it is being “torn away,” they claim,
“from its ancient social purposes and transformed into a government-endorsed celebration of the private desires of two adults (regardless of gender) to unite their lives sexually, emotionally, and socially for as long as those personal desires last.”
Defendants struggle, however, to identify any means by which same-sex marriages will undermine these social purposes. They argue vehemently that same-sex marriage will harm existing and especially future opposite-sex couples and their
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children because the message communicated by the social institution of marriage will be lost.
As one of the Nevada plaintiffs’ experts testified, there is no empirical support for the idea that legalizing same-sex marriage would harm—or indeed, affect—opposite-sex marriages or relationships. That expert presented data from
Massachusetts, a state which has permitted same-sex marriage since 2004, showing no decrease in marriage rates or increase in divorce rates in the past decade.10 See
Amicus Brief of Massachusetts et al. 23–27; see also Amicus Brief of American
Psychological Association et al. 8–13. It would seem that allowing couples who want to marry so badly that they have endured years of litigation to win the right to do so would reaffirm the state’s endorsement, without reservation, of spousal and parental commitment. From which aspect of same-sex marriages, then, will opposite-sex couples intuit the destructive message defendants fear? Defendants offer only unpersuasive suggestions.
10The Coalition takes issue with this conclusion, arguing that the effects of same-sex marriage might not manifest themselves for decades, because “something as massive and pervasive in our society and humanity as the man-woman marriage institution, like a massive ocean-going ship, does not stop or turn in a short space or a short time.” Given that the discriminatory impact on individuals because of their sexual orientation is so harmful to them and their families, such unsupported speculation cannot justify the indefinite continuation of that discrimination. 18 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 19 of 43 (19 of 95)
First, they argue that since same-sex families will not include both a father and a mother, a man who has a child with a woman will conclude that his involvement in that child’s life is not essential. They appear to contend that such a father will see a child being raised by two women and deduce that because the state has said it is unnecessary for that child—who has two parents—to have a father, it is also unnecessary for his child to have a father. This proposition reflects a crass and callous view of parental love and the parental bond that is not worthy of response. We reject it out of hand. Accord Kitchen, 755 F.3d at 1223 (concluding that it was “wholly illogical” to think that same-sex marriage would affect opposite-sex couples’ choices); Windsor v. United States, 699 F.3d 169, 188 (2d
Cir. 2012); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 998 (N.D. Cal.
2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal. 2010).
Defendants also propose another possible means by which endorsing same- sex marriage could discourage opposite-sex marriage, albeit less explicitly: opposite-sex couples who disapprove of same-sex marriage will opt less frequently or enthusiastically to participate in an institution that allows same-sex couples to participate. However, the fear that an established institution will be undermined due to private opposition to its inclusive shift is not a legitimate basis for retaining the status quo. In United States v. Virginia, the Court explained:
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The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self- fulfilling prophec[ies],” see Mississippi Univ. for Women [v. Hogan], 458 U.S. [718,] 730 [(1982)], once routinely used to deny rights or opportunities. . . . A like fear, according to a 1925 report, accounted for Columbia Law School’s resistance to women’s admission, although “[t]he faculty . . . never maintained that women could not master legal learning.11 . . . No, its argument has been . . . more practical. If women were admitted to the Columbia Law School, [the faculty] said, then the choicer, more manly and red-blooded graduates of our great universities would go to the Harvard Law School!” The Nation, Feb. 18, 1925, p. 173.
518 U.S. 515, 542–44 (1996); see also Palmore v. Sidoti, 466 U.S. 429, 433 (1984)
(“The Constitution cannot control such prejudices but neither can it tolerate them.
Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”). The Sevcik district court thus erred in crediting the argument that “a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter it less frequently . . . because they no longer wish to be associated with the civil institution as redefined,” both because defendants failed to produce any support for
11Likewise, Governor Otter assures us that Idaho’s laws were not motivated by judgments about the relative emotional commitments of same-sex and opposite- sex couples; his argument is about an “ethos,” he claims, and so is not weakened by the fact that same-sex couples may, as he admits, be just as child-oriented. 20 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 21 of 43 (21 of 95)
that prediction, and because private disapproval is a categorically inadequate justification for public injustice. Sevcik, 911 F. Supp. 2d at 1016.
Same-sex marriage, Governor Otter asserts, is part of a shift towards a consent-based, personal relationship model of marriage, which is more adult- centric and less child-centric.12 The Latta district court was correct in concluding, however, that “marriage in Idaho is and has long been a designedly consent-based institution. . . . Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision” of conjugal marriage. Latta, 2014
WL 1909999, at *23.
Idaho focuses on another aspect of the procreative channeling claim.
Because opposite-sex couples can accidentally conceive (and women may choose not to terminate unplanned pregnancies), so the argument goes, marriage is important because it serves to bind such couples together and to their children.
This makes some sense. Defendants’ argument runs off the rails, however, when they suggest that marriage’s stabilizing and unifying force is unnecessary for same-
12He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll. 21 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 22 of 43 (22 of 95)
sex couples, because they always choose to conceive or adopt a child.13 As they themselves acknowledge, marriage not only brings a couple together at the initial moment of union; it helps to keep them together, “from [that] day forward, for better, for worse, for richer, for poorer, in sickness and in health.” Raising children is hard; marriage supports same-sex couples in parenting their children, just as it does opposite-sex couples.
Moreover, marriage is not simply about procreation, but as much about
expressions of emotional support and public commitment . . . . [M]any religions recognize marriage as having spiritual significance; . . . therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication . . . . [M]arital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety,
13As Judge Richard Posner put it, bluntly:
[These states] think[] that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured . . . to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
Baskin, 2014 WL 4359059, at *10 (7th Cir. Sept. 4, 2014). Idaho and Nevada’s laws are both over- and under-inclusive with respect to parental fitness. A man and a woman who have been convicted of abusing their children are allowed to marry; same-sex partners who have been adjudicated to be fit parents in an adoption proceeding are not. 22 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 23 of 43 (23 of 95)
inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock).
Turner v. Safley, 482 U.S. 78, 95–96 (1987) (recognizing that prisoners, too, enjoyed the right to marry, even though they were not allowed to have sex, and even if they did not already have children).
Although many married couples have children, marriage is at its essence an
“association that promotes . . . a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (recognizing that married couples have a privacy right to use contraception in order to prevent procreation). Just as “it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” Lawrence, 539 U.S. at 567, it demeans married couples—especially those who are childless—to say that marriage is simply about the capacity to procreate.
Additionally, as plaintiffs argue persuasively, Idaho and Nevada’s laws are grossly over- and under-inclusive with respect to procreative capacity. Both states give marriage licenses to many opposite-sex couples who cannot or will not reproduce—as Justice Scalia put it, in dissent, “the sterile and the elderly are
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allowed to marry,” Lawrence, 539 U.S. at 604–05—but not to same-sex couples who already have children or are in the process of having or adopting them.14
A few of Idaho and Nevada’s other laws, if altered, would directly increase the number of children raised by their married biological parents. We mention them to illustrate, by contrast, just how tenuous any potential connection between a ban on same-sex marriage and defendants’ asserted aims is. For that reason alone, laws so poorly tailored as those before us cannot survive heightened scrutiny.
If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by
14Defendants acknowledge this, but argue that it would be unconstitutionally intrusive to determine procreative capacity or intent for opposite-sex couples, and that the states must therefore paint with a broad brush to ensure that any couple that could possibly procreate can marry. However, Idaho and Nevada grant the right to marry even to those whose inability to procreate is obvious, such as the elderly. 24 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 25 of 43 (25 of 95)
single people. Neither state does. See Idaho Code §§ 39-5401 et seq.; Nev. Rev.
Stat. §§ 122A.200(1)(d), 126.051(1)(a), 126.510 et seq., 127.040; see also Carla
Spivack, The Law of Surrogate Motherhood in the United States, 58 Am. J. Comp.
L. 97, 102 & n.15 (2010); Idaho is a destination for surrogacy, KTVB.com (Dec.
5, 2013).
In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada materially harm and demean same-sex couples and their children.15 Windsor, 133 S. Ct. at 2694. Denying children resources and stigmatizing their families on this basis is “illogical and unjust.” Plyler v. Doe, 457
U.S. 202, 220 (1982) (citation omitted). It is counterproductive, and it is unconstitutional.
C.
15Idaho attempts to rebut testimony by the Idaho plaintiffs’ expert that children of unmarried same-sex couples do just as well as those of married opposite-sex couples; the state mistakenly argues that this evidence shows that the children of same-sex couples are not harmed when the state withholds from their parents the right to marry. A more likely explanation for this expert’s findings is that when same-sex couples raise children, whether adopted or conceived through the use of assisted reproductive technology, they have necessarily chosen to assume the financial, temporal, and emotional obligations of parenthood. This does not lead, however, to the conclusion that these children, too, would not benefit from their parents’ marriage, just as children with opposite-sex parents do. 25 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 26 of 43 (26 of 95)
Governor Otter and the Coalition, but not the state of Idaho, also argue that children should be raised by both a male parent and a female parent. They assert that their marriage laws have “recognized, valorized and made normative the roles of ‘mother’ and ‘father’ and their uniting, complementary roles in raising their offspring,” and insist that allowing same-sex couples to marry would send the message that “men and women are interchangeable [and that a] child does not need a mother and a father.”
However, as we explained in SmithKline, Windsor “forbid[s] state action from ‘denoting the inferiority’” of same-sex couples. 740 F.3d at 482 (citing
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954)).
It is the identification of such a class by the law for a separate and lesser public status that “make[s] them unequal.” Windsor, 133 S. Ct. at 2694. DOMA was “practically a brand upon them, affixed by the law, an assertion of their inferiority.” Strauder v. West Virginia, 100 U.S. 303, 308 (1879). Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose.
SmithKline, 740 F.3d at 482. Windsor makes clear that the defendants’ explicit desire to express a preference for opposite-sex couples over same-sex couples is a categorically inadequate justification for discrimination. Expressing such a preference is precisely what they may not do.
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Defendants’ argument is, fundamentally, non-responsive to plaintiffs’ claims to marriage rights; instead, it is about the suitability of same-sex couples, married or not, as parents, adoptive or otherwise. That it is simply an ill-reasoned excuse for unconstitutional discrimination is evident from the fact that Idaho and Nevada already allow adoption by lesbians and gays. The Idaho Supreme Court has determined that “sexual orientation [is] wholly irrelevant” to a person’s fitness or ability to adopt children. In re Adoption of Doe, 326 P.3d 347, 353 (Idaho 2014).
“In a state where the privilege of becoming a child’s adoptive parent does not hinge on a person’s sexual orientation, it is impossible to fathom how hypothetical concerns about the same person’s parental fitness could possibly relate to civil marriage.” Latta, 2014 WL 1909999, at *23. By enacting a domestic partnership law, Nevada, too, has already acknowledged that no harm will come of treating same-sex couples the same as opposite-sex couples with regard to parenting. Nev.
Rev. Stat. § 122A.200(1)(d) affords same-sex domestic partners parenting rights identical to those of married couples, including those related to adoption, custody and visitation, and child support. See also St. Mary v. Damon, 309 P.3d 1027, 1033
(Nev. 2013) (en banc) (“Both the Legislature and this court have acknowledged that, generally, a child’s best interest is served by maintaining two actively involved parents. To that end, the Legislature has recognized that the children of
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same-sex domestic partners bear no lesser rights to the enjoyment and support of two parents than children born to married heterosexual parents.”).
To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in “family values.” In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.
Thus, we need not address the constitutional restraints the Supreme Court has long imposed on sex-role stereotyping, which may provide another potentially persuasive answer to defendants’ theory. See Virginia, 518 U.S. at 533 (explaining that justifications which “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females” are inadequate to survive heightened scrutiny); see also Caban v. Mohammed, 441 U.S. 380, 389 (1979)
(rejecting the claim that “any universal difference between maternal and paternal relations at every phase of a child’s development” justified sex-based distinctions in adoption laws). We note, in addition, that defendants have offered no probative evidence in support of their “complementarity” argument.
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IV.
Both the Idaho defendants and the Coalition advance a few additional justifications, though all are unpersuasive.16 First, they argue that the population of each state is entitled to exercise its democratic will in regulating marriage as it sees fit. Each state “has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.” Zablocki v. Redhail, 434 U.S.
374, 399 (1978) (Powell, J., concurring). True enough. But a primary purpose of the Constitution is to protect minorities from oppression by majorities. As Windsor itself made clear, “state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” 133 S. Ct. at 2691 (citing Loving v.
Virginia, 388 U.S. 1 (1967)). Thus, considerations of federalism cannot carry the day for defendants. They must instead rely on the substantive arguments that we find lacking herein.
Second, defendants argue that allowing same-sex couples to marry would threaten the religious liberty of institutions and people in Idaho and Nevada.
16None of the arguments advanced by other states in defense of their bans is any more persuasive. In particular, we agree with the Seventh Circuit that states may not “go slow” in extending to same-sex couples the right to marry; “it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying [if not proving] its fears; it has provided none.” Baskin, 2014 WL 4359059, at *16–17. 29 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 30 of 43 (30 of 95)
Whether a Catholic hospital must provide the same health care benefits to its employees’ same-sex spouses as it does their opposite-sex spouses, and whether a baker is civilly liable for refusing to make a cake for a same-sex wedding, turn on state public accommodations law, federal anti-discrimination law, and the protections of the First Amendment.17 These questions are not before us. We merely note that avoiding the enforcement of anti-discrimination laws that “serv[e] compelling state interests of the highest order” cannot justify perpetuation of an otherwise unconstitutionally discriminatory marriage regime. Bd. of Dirs. of
Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (citation omitted).
Third, the Coalition argues that Nevada’s ban is justified by the state’s interest in protecting “the traditional institution of marriage.”18 Modern marriage
17See, e.g., Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M. 2012) (holding that a wedding photographer was liable for discrimination against a same- sex couple under state public accommodations law, and that this law did not violate the First Amendment), cert. denied, 134 S. Ct. 1787 (2014). Nevada law currently prohibits discrimination based on sexual orientation in public accommodations, while Idaho law does not. Nev. Rev. Stat. §§ 651.050(3), 651.070; Dan Popkey, Idaho doesn’t protect gays from discrimination, but Otter says that does not make the state anti-gay, Idaho Statesman (Feb. 23, 2014). We note also that an increasing number of religious denominations do sanctify same-sex marriages. Amicus Brief of Bishops of the Episcopal Church in Idaho et al. 8–9. Some religious organizations prohibit or discourage interfaith and interracial marriage, but it would obviously not be constitutional for a state to do so. Amicus Brief of the Anti-Defamation League et al. 23–25. 18This argument was not advanced to this Court by the Idaho defendants. 30 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 31 of 43 (31 of 95)
regimes, however, have evolved considerably; within the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands. See generally Claudia Zaher, When A Woman's Marital Status Determined Her Legal
Status: A Reserach Guide on the Common Law Doctrine of Coverture, 94 Law
Libr. J. 459, 460–61 (2002) (“Under coverture, a wife simply had no legal existence. She became . . . ‘civilly dead.’”). Women lost their citizenship when they married foreign men. See Kristin Collins, When Father’s Rights Are Mothers’
Duties, 109 Yale L.J. 1669, 1686–89 (2000). (In fact, women, married or not, were not allowed to serve on juries or even to vote. See J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127, 131–35 (1994).). Before no-fault divorce laws were enacted, separated spouses had to fabricate adulterous affairs in order to end their marriages. Lawrence M. Friedman, A History of American Law 577–78 (2005). As plaintiffs note, Nevada has been a veritable pioneer in changing these practices, enacting (and benefitting economically from) laws that made it among the easiest places in the country to get married and un-married. Both Idaho and Nevada’s marriage regimes, as they exist today, bear little resemblance to those in place a century ago. As a result, defendants cannot credibly argue that their laws protect a
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“traditional institution”; at most, they preserve the status quo with respect to one aspect of marriage—exclusion of same-sex couples.
Certainly, the exclusion of same-sex couples from marriage is longstanding.
However, “it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been.”
Goodridge v. Dep't of Pub. Health, 798 N.E. 2d 941, 961 n.23 (Mass. 2003). The anti-miscegenation laws struck down in Loving were longstanding. Here as there, however, “neither history nor tradition [can] save [the laws] from constitutional attack.” Lawrence, 539 U.S. at 577–78 (quoting Bowers v. Hardwick, 478 U.S.
186, 216 (1986) (Stevens, J., dissenting)).
V.
Idaho and Nevada’s marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere,19 impose profound legal, financial, social and psychic harms on numerous citizens of those states. These harms are not inflicted on opposite-sex couples, who may, if
19Because we hold that Idaho and Nevada may not discriminate against same-sex couples in administering their own marriage laws, it follows that they may not discriminate with respect to marriages entered into elsewhere. Neither state advances, nor can we imagine, any different—much less more persuasive—justification for refusing to recognize same-sex marriages performed in other states or countries. 32 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-1 Page: 33 of 43 (33 of 95)
they wish, enjoy the rights and assume the responsibilities of marriage. Laws that treat people differently based on sexual orientation are unconstitutional unless a
“legitimate purpose . . . overcome[s]” the injury inflicted by the law on lesbians and gays and their families. SmithKline, 740 F.3d at 481–82.
Defendants’ essential contention is that bans on same-sex marriage promote the welfare of children, by encouraging good parenting in stable opposite-sex families. Heightened scrutiny, however, demands more than speculation and conclusory assertions, especially when the assertions are of such little merit.
Defendants have presented no evidence of any such effect. Indeed, they cannot even explain the manner in which, as they predict, children of opposite-sex couples will be harmed. Their other contentions are equally without merit. Because defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.
The official message of support that Governor Otter and the Coalition wish to send in favor of opposite-sex marriage is equally unconstitutional, in that it necessarily serves to convey a message of disfavor towards same-sex couples and their families. This is a message that Idaho and Nevada simply may not send.
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The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions. When we integrated our schools, education improved. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483,
492–95 (1954). When we opened our juries to women, our democracy became more vital. See Taylor v. Louisiana, 419 U.S. 522, 535–37 (1975). When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. See Witt v. Dep’t of Air Force, 527 F.3d 806, 821 n.11 (9th Cir. 2008).
When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.
The judgment of the district court in Latta v. Otter is AFFIRMED. The judgment of the district court in Sevcik v. Sandoval is REVERSED, and the case is
REMANDED to the district court for the prompt issuance of an injunction permanently enjoining the state, its political subdivisions, and its officers, employees, and agents, from enforcing any constitutional provision, statute, regulation or policy preventing otherwise qualified same-sex couples from marrying, or denying recognition to marriages celebrated in other jurisdictions which, if the spouses were not of the same sex, would be valid under the laws of the state.
AFFIRMED REVERSED and REMANDED.
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Counsel
Lawrence G. Wasden, Attorney General, Steven L. Olsen, Chief of Civil Litigation Division, W. Scott Zanzig, Deputy Attorney General, and Clay R. Smith, Deputy Attorney General, Office of the Attorney General, Boise, Idaho, for Defendant- Appellant Christopher Rich and Intervenor-Defendant-Appellant State of Idaho
Monte Neil Stewart (argued) and Daniel W. Bower, Stewart Taylor & Morris PLLC, Boise, Idaho; Thomas C. Perry and Cally A. Younger, Office of the Governor, Boise, Idaho, for Defendant-Appellant Governor C.L. “Butch” Otter
Deborah A. Ferguson (argued), The Law Office of Deborah A. Ferguson, PLLC, Boise, Idaho; Craig Harrison Durham, Durham Law Office, PLLC, Boise, Idaho; Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, California, for Plaintiffs-Appellees Susan Latta, Traci Ehlers, Lori Watsen, Sharene Watsen, Shelia Robertson, Andrea Altmeyer, Amber Beierle, and Rachael Robertson
Tara L. Borelli (argued), Lambda Legal Defense and Education Fund, Inc., Atlanta, Georgia; Jon W. Davidson, Peter C. Renn, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California; Carla Christofferson, Dawn Sestito, Dimitri Portnoi, Melanie Cristol, and Rahi Azizi, O’Melveny & Myers LLP, Los Angeles, California; Kelly H. Dove and Marek P. Bute, Snell & Wilmer LLP, Las Vegas, Nevada, for Plaintiffs-Appellants Beverly Sevcik, Mary Baranovich, Antioco Carrillo, Theodore Small, Karen Goody, Karen Vibe, Fletcher Whitwell, Greg Flamer, Mikyla Miller, Katrina Miller, Adele Terranova, Tara Newberry, Caren Cafferata-Jenkins, Farrell Cafferata-Jenkins, Megan Lanz, Sara Geiger
Catherine Cortez Masto, Attorney General, C. Wayne Howle, Solicitor General, Office of the Attorney General, Carson City, Nevada, for Defendant-Appellee Governor Brian Sandoval
Neil A. Rombardo, District Attorney, Randal R. Munn, Chief Deputy District Attorney, Joseph L. Ward, Jr., Senior Deputy District Attorney, Carson City District Attorney’s Office, Carson City, Nevada, for Defendant-Appellee Alan Glover
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Monte Neil Stewart (argued), Craig G. Taylor, and Daniel W. Bower, Stewart Taylor & Morris PLLC, Boise, Idaho, for Intervenor-Defendant-Appellee Coalition for the Protection of Marriage
Counsel for Amici
Shannon P. Minter, Christopher F. Stoll, and Samantha Ames, National Center for Lesbian Rights, San Francisco, California, for Amici Curiae 13 Public Interest and Legal Service Organizations
Michael L. Whitlock, Susan Baker Manning, Jared A. Craft, Sara Carian, John A. Polito, and Erik Wilson, Bingham McCutchen LLP, Washington, D.C., for Amici Curiae 27 Employers and Organizations Representing Employers
Byron J. Babione, David Austin R. Nimocks, and James A. Campbell, Alliance Defending Freedom, Scottsdale, Arizona, for Amicus Curiae Alliance Defending Freedom
Dean Robert Broyles, Western Center for Law & Policy, Escondido, California, for Amicus Curiae Helen M. Alvare
Staci J. Pratt and Allen Lichtenstein, ACLU of Nevada Foundation, Las Vegas, Nevada; Daniel M. Gluck and Lois K. Perrin, ACLU of Hawai’i Foundation, Honolulu, Hawai’i, for Amici Curiae American Civil Liberties Union Foundation of Nevada and American Civil Liberties Union Foundation of Hawai’i
Nathalie F.P. Gilfoyle, American Psychological Association, Washington D.C.; Paul M. Smith, Jenner & Block LLP, Washington, D.C., for Amici Curiae American Psychological Association, American Psychiatric Association, and National Association of Social Workers
Nathalie F.P. Gilfoyle, American Psychological Association, Washington, D.C.; Paul M. Smith, Jenner & Block LLP, Washington, D.C., for Amici Curiae American Psychological Association, National Association of Social Workers, American Association for Marriage and Family Therapy, American Psychoanalytic Association, and Hawaii Psychological Association
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Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andra Troy, and Andrew P. Meiser, Cleary Gottlieb Steen & Hamilton LLP, New York, New York, for Amicus Curiae American Sociological Association
Rocky C. Tsai, Samuel P. Bickett, and Rebecca Harlow, Ropes & Gray LLP, San Francisco, California; Steven M. Freeman, Seth M. Marnin, and Michelle Deutchman, Anti-Defamation League, New York, New York, for Amici Curiae Anti-Defamation League, Americans United for the Separation of Church and State, Bend the Arc: A Jewish Partnership for Justice, Central Conference of American Rabbis, Global Justice Institute, Hadassah, the Women’s Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Japanese American Citizens League, Jewish Social Policy Action Network, Keshet, Metropolitan Community Churches, More Light Presbyterians, National Council of Jewish Women, Nehirim, People for the American Way Foundation, Presbyterian Welcome, Reconcilingworks: Lutherans for Full Participation, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Sikh American Legal Defense and Education Fund, Society for Humanistic Judaism, T’ruah: The Rabbinic Call for Human Rights, Women of Reform Judaism, and Women’s League for Conservative Judaism
Rocky C. Tsai, Samuel P. Bickett, Rebecca Harlow, and Idin Kashefipour, Ropes & Gray LLP, San Francisco, California; Steven M. Freeman, Seth M. Marnin, and Michelle Deutchman, Anti-Defamation League, New York, New York; Eric Alan Isaacson, Anti-Defamation League, San Diego, California, for Amici Curiae Anti- Defamation League, Americans United for Separation of Church and State, Bend the Arc: A Jewish Partnership for Justice, Board of Trustees of the Pacific Central District/Unitarian Universalist Association, Hadassah, the Women’s Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Interfaith Alliance Hawai’i, Japanese American Citizens League, Keshet, National Council of Jewish Women, Metropolitan Community Churches, More Light Presbyterians, Nehirim, Pacific Central District/Unitarian Universalist Association, Pacific Southwest District/Unitarian Universalist Association, People for the American Way Foundation, Reconcilingworks: Lutherans for Full Participation, Religious Institute, Inc., Sikh American Legal Defense and Education Fund, Society for Humanistic Judaism, South Asian Americans Leading Together, Southern California Nevada Conference of the United Church of Christ, T’ruah: The Rabbinic Call for Human Rights, Union for Reform Judaism, Central
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Conference of American Rabbis, Women of Reform Judaism, Unitarian Universalist Association, Universal Fellowship of Metropolitan Community Churches, and Women’s League for Conservative Judaism
Jyotin Hamid and Joseph Rome, Debevoise & Plimpton LLP, New York, New York, for Amicus Curiae Professor Carlos A. Ball
Daniel McNeel Lane, Jr., Akin Gump Strauss Hauer & Feld LLP, San Antonio, Texas; Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California, for Amici Curiae Historians of Marriage Peter W. Bardaglio, Norma Basch, Stephanie Coontz, Nancy F. Cott, Toby L. Ditz, Laura F. Edwards, Michael Grossberg, Hendrik Hartog, Ellen Herman, Martha Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine Tyler May, Serena Mayeri, Steve Mintz, Elizabeth Pleck, Carole Shammas, Mary L. Shanley, Amy Dru Stanley, and Barbara Welke
Jerome C. Roth and Amelia L. B. Sargent, Munger, Tolles & Olson LLP, San Francisco, California, for Amici Curiae Bay Area Lawyers for Individual Freedom, et al.
Jeffrey S. Trachtman, Norman C. Simon, Jason M. Moff, Kurt M. Denk, and Jessica N. Witte, Kramer Levin Naftalis & Frankel LLP, New York, New York, for Amici Curiae Bishops of the Episcopal Church in Idaho, General Synod of the United Church of Christ, Mormons for Equality, Reconstructionist Rabbinical Association, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Union for Reform Judaism, Unitarian Universalist Association, Affirmation, Covenant Network of Presbyterians, Methodist Federation for Social Action, More Light Presbyterians, Presbyterian Welcome, Reconciling Ministries Network, Reconcilingworks: Lutherans for Full Participation, Religious Institute, Inc., and 38 Faith Leaders in the State of Idaho
John C. Eastman, Center for Constitutional Jurisprudence, Chapman University, Orange, California; D. John Sauer, Clark & Sauer, LLC, for Amici Curiae Center for Constitutional Jurisprudence and 27 Scholars of Federalism and Judicial Restraint
Lynn D. Wardle, J. Reuben Clark Law School, Provo, Utah; Stephen Kent Ehat, Lindon, Utah, for Amici Curiae Center for Urban Renewal and Education,
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Coalition of African-American Pastors USA, and Frederick Douglass Foundation, Inc.
Suzanne B. Goldberg, Columbia Law School Sexuality and Gender Law Clinic, New York, New York, for Amicus Curiae Columbia Law School Sexuality and Gender Law Clinic
Holly Carmichael, San Jose, California, for Amicus Curiae Concerned Women for America
Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, D.C., for Amicus Curiae Eagle Forum Education and Legal Defense Fund
Katherine Keating and Robert Esposito, Bryan Cave LLP, San Francisco, California, for Amicus Curiae Family Equality Council and Colage
K. Lee Marshall, Katherine Keating, Tracy Talbot, and Robert Esposito, Bryan Cave LLP, San Francisco, California, for Amici Curiae Family Equality Council, Equality Hawaii Foundation, We Are Family, and Colage
Joanna L. Grossman, Hofstra Law School, Hempstead, New York; Marjory A. Gentry, Arnold & Porter LLP, San Francisco, California, for Amici Curiae Family Law and Conflict of Laws Professors
Joan Heifetz Hollinger, Berkeley School of Law, Berkeley, California; Courtney Joslin, UC Davis School of Law, Davis, California; Laura W. Brill and Meaghan L. Field, Kendall Brill & Klieger LLP, Los Angeles, California, for Amici Curiae Family Law Professors
Elizabeth L. Deeley, Sarah E. Piepmeier, and Raghay Krishnapriyan, Kirkland & Ellis LLP, for Amicus Curiae Gary J. Gates
Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, California, for Amicus Curiae Gary J. Gates
Mary L. Bonauto, Gay & Lesbian Advocates & Defenders, Boston, Massachusetts, for Amicus Curiae Gay & Lesbian Advocates & Defenders
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Charles S. Limandri, Freedom of Conscience Defense Fund, Rancho Santa Fe, California, for Amici Curiae Robert P. George, Sherif Girgis, and Ryan T. Anderson
Nicholas M. O’Donnell, Sullivan & Worcester LLP, Boston, Massachusetts, for Amicus Curiae GLMA - Health Professionals Advancing LGBT Equality
Lynn D. Wardle, Brigham Young University Law School, Provo, Utah, for Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll
Rita F. Lin and Sara Bartel, Morrison & Foerster LLP, San Francisco, California, for Amici Curiae Joan Heifetz Hollinger, Courtney Joslin, and 63 Other Family Law Professors
Catherine E. Stetson, Erica Knievel-Songer, Mary Helen Wimberly, Madeline H. Gitomer, Jenna N. Jacobson, Hogan Lovells US LLP, Washington D.C., for Amicus Curiae Historians of Antigay Discrimination
Aderson Bellegarde Francois, Howard University School of Law Civil Rights Clinic, Washington, D.C.; Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, California, for Amicus Curiae Howard University School of Law Civil Rights Clinic
Gregory F. Zoeller, Attorney General, and Thomas M. Fisher, Solicitor General, Office of the Attorney General of Indiana, Indianapolis, Indiana; Luther Strange, Attorney General, State of Alabama; Michael C. Geraghty, Attorney General, State of Alaska; Thomas C. Horne, Attorney General, State of Arizona; John Suthers, Attorney General, State of Colorado; Lawrence G. Wasden, Attorney General, State of Idaho; Timothy C. Fox, Attorney General, State of Montana; Jon Bruning, Attorney General, State of Nebraska; E. Scott Pruitt, Attorney General, State of Oklahoma; Alan Wilson, Attorney General, State of South Carolina; Sean Reyes, Attorney General, State of Utah, for Amici Curiae States of Indiana, Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma, South Carolina and Utah
Robert H. Tyler and Jennifer L. Bursch, Advocates for Faith and Freedom, Murrieta, California, for Amicus Curiae Institute for Marriage and Public Policy
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G. David Carter, Joseph P. Bowser, and Hunter T. Carter, Arent Fox LLP, Washington, D.C., for Amici Curiae Law Enforcement Officers, First Responders, and Organizations
Stephen M. Crampton, Mary E. McAlister, and Mandi D. Campbell, Liberty Counsel, Lynchburg, Virginia; Mathew D. Staver and Anita L. Staver, Liberty Counsel, Orlando, Florida, for Amici Curiae Liberty Counsel
William C. Duncan, Marriage Law Foundation, Lehi, Utah, for Amicus Curiae Marriage Law Foundation
Martha Coakley, Attorney General, Genevieve C. Nadeau, Assistant Attorney General, and Jonathan B. Miller, Assistant Attorney General, Commonwealth of Massachusetts, Office of the Attorney General, Boston, Massachusetts; Kamala D. Harris, Attorney General of California, Sacramento, California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut; Joseph R. Biden, III, Attorney General of Delaware, Department of Justice, Wilmington, Delaware; Irvin B. Nathan, Attorney General for the District of Columbia, Washington, District of Columbia; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois; Tom Miller, Attorney General of Iowa, Des Moines, Iowa; Janet T. Mills, Attorney General of Maine, Augusta, Maine; Douglas F. Gansler, Attorney General of Maryland, Baltimore, Maryland; Joseph A. Foster, Attorney General of New Hampshire, Concord, New Hampshire; Gary K. King, Attorney General of New Mexico, Santa Fe, New Mexico; Eric T. Schneiderman, Attorney General of New York, New York, New York; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon; William H. Sorrell, Attorney General of Vermont, Montpelier, Vermont; Robert W. Ferguson, Attorney General of Washington, Olympia, Washington, for Amici Curiae Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington
Gerard V. Bradley, Notre Dame Law School, Notre Dame, Indiana, for Amicus Curiae Dr. Paul McHugh
Sherrilyn Ifill, Christina A. Swarns, Natasha M. Korgaonkar, and Ria Tabacco Mar, NAACP Legal Defense & Educational Fund, Inc., New York, New York, for
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Amicus Curiae NAACP Legal Defense & Educational Fund, Inc.
Bruce A. Wessel, Moez M. Kaba, C. Mitchell Hendy, and Brian Eggleston, Irell & Manella LLP, Los Angeles, California, for Amici Curiae National and Western States Women’s Rights Organizations
Marcia D. Greenberger and Emily J. Martin, National Women’s Law Center, Washington, D.C., for Amici Curiae National Women’s Law Center, Gender Justice, Legal Momentum, Legal Voice, National Association of Women Lawyers, National Partnership for Women & Families, Southwest Women’s Law Center, Women Lawyers Association of Michigan, Women’s Law Project, and Professors of Law Associated with the Williams Institute
Marcia D. Greenberger, Emily J. Martin, and Cortelyou C. Kenney, National Women’s Law Center, Washington, D.C.; David C. Codell, Williams Institute, UCLA School of Law, Los Angeles, California, for Amici Curiae National Women’s Law Center, Williams Institute Scholars of Sexual Orientation and Gender Law, and Women’s Legal Groups
Abbe David Lowell and Christopher D. Man, Chadbourne & Parke LLP, Washington, D.C., for Amici Curiae Outserve - SLDN and American Military Partner Association
Kevin T. Snider, Pacific Justice Institute, Sacramento, California, for Amicus Curiae Pacific Justice Institute
Jiyun Cameron Lee and Andrew J. Davis, Folger Levin LLP, San Francisco, California, for Amicus Curiae Parents, Families and Friends of Lesbians and Gays, Inc.
Mark W. Mosier and Jennifer Schwartz, Covington & Burling LLP, Washington, D.C., for Amici Curiae Political Science Professors
Abram J. Pafford, Pafford Lawrence & Childress PLLC, Washington, D.C., for Amici Curiae Professors of Social Science
David Alan Robinson, North Haven, Connecticut, for Amicus Curiae David Alan
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Robinson
Alexander Dushku, R. Shawn Gunnarson, and Justin W. Starr, Kifton & McConkie, Salt Lake City, Utah, for Amici Curiae United States Conference of Catholic Bishops, National Association of Evangelicals, Church of Jesus Christ of Latter-Day Saints, Ethics & Religious Liberty Commission of the Southern Baptist Convention, and Lutheran Church - Missouri Synod
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Latta, et al. v. Otter, et al. Nos. 14-35420 & 14-35421 OCT 07 2014
MOLLY C. DWYER, CLERK Sevcik, et al. v. Sandoval, et al. No. 12-17688 U.S. COURT OF APPEALS
REINHARDT, Circuit Judge, concurring:
I, of course, concur without reservation in the opinion of the Court. I write separately only to add that I would also hold that the fundamental right to marriage, repeatedly recognized by the Supreme Court, in cases such as Loving v.
Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), is properly understood as including the right to marry an individual of one’s choice. That right applies to same-sex marriage just as it does to opposite-sex marriage. As a result, I would hold that heightened scrutiny is appropriate for an additional reason: laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a “compelling state interest” which they are “narrowly tailored” to serve. United States v. Juvenile
Male, 670 F.3d 999, 1012 (9th Cir. 2012) (citing Reno v. Flores, 507 U.S. 292, 302
(1993)), cert. denied, 133 S. Ct. 234 (2012)). Because the inadequacy of the states’ justifications has been thoroughly addressed, I write only to explain my view that the same-sex marriage bans invalidated here also implicate plaintiffs’ substantive due process rights.
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Like all fundamental rights claims, this one turns on how we describe the right. Plaintiffs and defendants agree that there is a fundamental right to marry, but defendants insist that this right consists only of the right to marry an individual of the opposite sex. In Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997), the
Supreme Court explained “that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this
Nation’s history and tradition.” Our articulation of such fundamental rights must, we are told, be “carefully formulat[ed].” Id. at 722 (citations and quotation marks omitted).
However, “careful” does not mean “cramped.” Our task is to determine the scope of the fundamental right to marry as inferred from the principles set forth by the Supreme Court in its prior cases. Turner held that prisoners who had no children and no conjugal visits during which to conceive them—people who could not be biological parents—had a due process right to marry. 482 U.S. at 94–97.
Zablocki held that fathers with outstanding child support obligations—people who were, at least according to adjudications in family court, unable to adequately provide for existing children—had a due process right to marry. 434 U.S. at
383–87.
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In each case, the Supreme Court referred to—and considered the historical roots of—the general right of people to marry, rather than a narrower right defined in terms of those who sought the ability to exercise it. These cases rejected status- based restrictions on marriage not by considering whether to recognize a new, narrow fundamental right (i.e., the right of prisoners to marry or the right of fathers with unpaid child support obligations to marry) or determining whether the class of people at issue enjoyed the right as it had previously been defined, but rather by deciding whether there existed a sufficiently compelling justification for depriving plaintiffs of the right they, as people, possessed.1 See id. at 384 (“[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals.”).
The third and oldest case in the fundamental right to marry trilogy, Loving, is also the most directly on point. That case held that Virginia’s anti-miscegenation laws, which prohibited and penalized interracial marriages, violated the Fourteenth
Amendment’s Equal Protection and Due Process Clauses. 388 U.S. at 2–6. In a
1Turner and Zablocki illustrate another important point, pertinent to the adequacy of defendants’ justifications for curtailing the right. The first of these cases involved plaintiffs whom the state was entitled to prevent from procreating, and the second involved those who were unable to support existing offspring financially. If the fundamental right to marry extends to them, it certainly cannot be limited only to those who can procreate or to those who, in the eyes of the state, would form part of an ideal parenting unit.
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rhetorical stroke as uncomprehending as it is unavailing, defendants contend that lesbians and gays are not denied the freedom to marry by virtue of the denial of their right to marry individuals of the same sex, as they are still free to marry individuals of the opposite sex. Defendants assert that their same-sex marriage bans are unlike the laws in Turner and Zablocki because they do not categorically bar people with a particular characteristic from marrying, but rather limit whom lesbians and gays, and all other persons, may marry. However, Loving itself squarely rebuts this argument. Mildred Jeter and Richard Loving were not barred from marriage altogether. Jeter was perfectly free to marry a black person, and
Loving was perfectly free to marry a white person. They were each denied the freedom, however, to marry the person whom they chose—the other. The case of lesbians and gays is indistinguishable. A limitation on the right to marry another person, whether on account of race or for any other reason, is a limitation on the right to marry.2
2Defendants are apparently concerned that if we recognize a fundamental right to marry the person of one’s choice, this conclusion will necessarily lead to the invalidation of bans on incest, polygamy, and child marriage. However, fundamental rights may sometimes permissibly be abridged: when the laws at issue further compelling state interests, to which they are narrowly tailored. Although such claims are not before us, it is not difficult to envision that states could proffer substantially more compelling justifications for such laws than have been put forward in support of the same-sex marriage bans at issue here.
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Defendants urge that “man-woman” and “genderless” marriage are mutually exclusive, and that permitting the latter will “likely destroy[]” the former. Quite the opposite is true. Loving teaches that Virginia’s anti-miscegenation laws did not simply “deprive the Lovings of liberty without due process of law.” 388 U.S. at 12.
They did far worse; as the Court declared, the laws also “surely . . . deprive[d] all the State’s citizens of liberty without due process of law.” Id. (emphasis added).
When Virginia told Virginians that they were not free to marry the one they loved if that person was of a different race, it so grievously constrained their “freedom of choice to marry” that it violated the constitutional rights even of those citizens who did not themselves wish to enter interracial marriages or who were already married to a person of the same race. Id. When Idaho tells Idahoans or Nevada tells
Nevadans that they are not free to marry the one they love if that person is of the same sex, it interferes with the universal right of all the State’s citizens—whatever their sexual orientation—to “control their destiny.” Lawrence v. Texas, 539 U.S.
558, 578 (2003).
To define the right to marry narrowly, as the right to marry someone of the opposite sex, would be to make the same error committed by the majority in
Bowers v. Hardwick, 478 U.S. 186, 190 (1986), which considered whether there was a “fundamental right to engage in homosexual sodomy.” This description of
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the right at issue “fail[ed] to appreciate the extent of the liberty at stake,” the Court stated in Lawrence, 539 U.S. at 567. Lawrence rejected as wrongheaded the question whether “homosexuals” have certain fundamental rights; “persons”—of whatever orientation—are rights-holders. See id. Fundamental rights defined with respect to the subset of people who hold them are fundamental rights misdefined.
The question before us is not whether lesbians and gays have a fundamental right to marry a person of the same sex; it is whether a person has a fundamental right to marry, to enter into “the most important relation in life,” Maynard v. Hill, 125 U.S.
190, 205 (1888), with the one he or she loves. Once the question is properly defined, the answer follows ineluctably: yes.
Historically, societies have strictly regulated intimacy and thereby oppressed those whose personal associations, such as committed same-sex relationships, were, though harmful to no one, disfavored. Human intimacy, like “liberty[,] [has] manifold possibilities.” Lawrence, 539 U.S. at 578. Although “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress[,] [a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Id. at 578-79.
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We, as judges, deal so often with laws that confine and constrain. Yet our core legal instrument comprehends the rights of all people, regardless of sexual orientation, to love and to marry the individuals they choose. It demands not merely toleration; when a state is in the business of marriage, it must affirm the love and commitment of same-sex couples in equal measure. Recognizing that right dignifies them; in so doing, we dignify our Constitution.
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Latta, et al. v. Otter, et al. Nos. 14-35420 & 14-35421 OCT 07 2014
MOLLY C. DWYER, CLERK Sevcik, et al. v. Sandoval, et al. No. 12-17688 U.S. COURT OF APPEALS
BERZON, Circuit Judge, concurring:
I agree that Idaho and Nevada’s same-sex marriage prohibitions fail because they discriminate on the basis of sexual orientation and I join in the Opinion of the
Court. I write separately because I am persuaded that Idaho and Nevada’s same- sex marriage bans are also unconstitutional for another reason: They are classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications.
I. The Same-Sex Marriage Prohibitions Facially Classify on the Basis of Gender
“[S]tatutory classifications that distinguish between males and females are
‘subject to scrutiny under the Equal Protection Clause.’” Craig v. Boren, 429 U.S.
190, 197 (1976) (quoting Reed v. Reed, 404 U.S. 71, 75 (1971)). “To withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. “The burden of justification” the state shoulders under this intermediate level of scrutiny is “demanding”: the state must convince the reviewing court that the law’s “proffered justification” for the gender classification
“is ‘exceedingly persuasive.’” United States v. Virginia, 518 U.S. 515, 533 (1996)
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(“VMI”). Idaho and Nevada’s same-sex marriage bans discriminate on the basis of sex and so are invalid unless they meet this “demanding” standard.
A. Idaho and Nevada’s same-sex marriage prohibitions facially classify on the basis of sex.1 Only women may marry men, and only men may marry women.2
Susan Latta may not marry her partner Traci Ehlers for the sole reason that Latta is a woman; Latta could marry Ehlers if Latta were a man. Theodore Small may not marry his partner Antioco Carillo for the sole reason that Small is a man; Small could marry Carillo if Small were a woman. But for their gender, plaintiffs would be able to marry the partners of their choice. Their rights under the states’ bans on same-sex marriage are wholly determined by their sex.
A law that facially dictates that a man may do X while a woman may not, or
1 “Sex” and “gender” are not necessarily coextensive concepts; the meanings of these terms and the difference between them are highly contested. See, e.g., Katherine Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev 1 (1995). For present purposes, I will use the terms “sex” and “gender” interchangeably, to denote the social and legal categorization of people into the generally recognized classes of “men” and “women.”
2 Idaho Const. art. III § 38 (“A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”); Idaho Code § 32-201(1) (“Marriage is a personal relation arising out of a civil contract between a man and a woman . . . .”); Nev. Const. art. I, § 21 (“Only a marriage between a male and female person shall be recognized and given effect in this state.”); Nev. Rev. Stat. § 122.020 (“[A] male and a female person . . . may be joined in marriage.”).
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vice versa, constitutes, without more, a gender classification. “[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether [a policy] involves disparate treatment through explicit facial discrimination does not depend on why the [defendant] discriminates but rather on the explicit terms of the discrimination.” UAW v.
Johnson Controls, Inc., 499 U.S. 187, 199 (1991).3 Thus, plaintiffs challenging
3 UAW v. Johnson Controls was a case brought under Title VII of the Civil Rights act of 1964, which, inter alia, bans employment policies that discriminate on the basis of sex. Title VII provides it is
an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; (2) to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a). The Supreme Court has “analog[ized]” to its decisions interpreting what constitutes discrimination “because of” a protected status under Title VII in analyzing Fourteenth Amendment equal protection claims and vice versa. See, e.g., Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976), superseded by statute on other grounds as recognized in Johnson Controls, 499 U.S. at 219 (“While there is no necessary inference that Congress . . . intended to incorporate into Title VII the concepts of discrimination which have evolved from court decisions construing the Equal Protection Clause of the Fourteenth Amendment, the similarities between the congressional language and some of those decisions surely indicate that the latter are a useful starting point in interpreting the former.”). As the Court has explained, “[p]articularly in the case of defining the
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policies that facially discriminate on the basis of sex need not separately show either “intent” or “purpose” to discriminate. Personnel Adm’r of Massachusetts v.
Feeney, 442 U.S. 256, 277–78 (1979).
Some examples help to illuminate these fundamental precepts. Surely, a law providing that women may enter into business contracts only with other women would classify on the basis of gender. And that would be so whether or not men were similarly restricted to entering into business relationships only with other men.
Likewise, a prison regulation that requires correctional officers be the same sex as the inmates in a prison “explicitly discriminates . . . on the basis of . . . sex.”
Dothard v. Rawlinson, 433 U.S. 321, 332, 332 n. 16 (1977). Again, that is so whether women alone are affected or whether men are similarly limited to serving only male prisoners.4 term ‘discrimination,’” Title VII must be interpreted consistently with Fourteenth Amendment equal protection principles, because Congress does not define “discrimination” in Title VII. See Gilbert, 429 U.S. at 133; see also 42 U.S.C. § 2000e. I therefore rely on Title VII cases throughout this Opinion for the limited purpose of determining whether a particular classification is or is not sex-based.
4 Dothard in fact dealt with a regulation that applied equally to men and women. See 433 U.S. at 332 n. 16 (“By its terms [the regulation at issue] applies to contact positions in both male and female institutions.”); see also id. at 325 n. 6. Dothard ultimately upheld the sex-based discrimination at issue under Title VII’s “bona fide occupational qualification” exception, 42 U.S.C. § 2000e-2(e), because of the especially violent, sexually charged nature of the particular prisons involved
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Further, it can make no difference to the existence of a sex-based classification whether the challenged law imposes gender homogeneity, as in the business partner example or Dothard, or gender heterogeneity. Either way, the classification is one that limits the affected individuals’ opportunities based on their sex, as compared to the sex of the other people involved in the arrangement or transaction.
As Justice Johnson of the Vermont Supreme Court noted, the same-sex marriage prohibitions, if anything, classify more obviously on the basis of sex than they do on the basis of sexual orientation: “A woman is denied the right to marry another woman because her would-be partner is a woman, not because one or both are lesbians. . . . [S]exual orientation does not appear as a qualification for marriage” under these laws; sex does. Baker v. State, 744 A.2d 864, 905 (Vt.
1999) (Johnson, J., concurring in part and dissenting in part).
The statutes’ gender focus is also borne out by the experience of one of the
Nevada plaintiff couples:
When Karen Goody and Karen Vibe went to the Washoe County Marriage in that case, and because the regulation applied only to correctional officers in “contact positions” (i.e. working in close physical proximity to inmates) in maximum security institutions. See Dothard, 433 U.S. at 336–37 (internal quotation marks omitted). For present purposes, the salient holding is that the same-sex restriction was overtly a sex-based classification, even if it could be justified by a sufficiently strong BFOQ showing. Id. at 332–33.
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Bureau to obtain a marriage license, the security officer asked, “Do you have a man with you?” When Karen Vibe said they did not, and explained that she wished to marry Karen Goody, she was told she could not even obtain or complete a marriage license application . . . [because] “[t]wo women can’t apply” . . . [and] marriage is “between a man and a woman.”
Notably, Goody and Vibe were not asked about their sexual orientation; Vibe was told she was being excluded because of her gender and the gender of her partner.
Of course, the reason Vibe wants to marry Goody, one presumes, is due in part to their sexual orientations.5 But that does not mean the classification at issue is not sex-based. Dothard also involved a facial sex classification intertwined with presumptions about sexual orientation, in that instance heterosexuality. The
Supreme Court in Dothard agreed that the state was justified in permitting only male officers to guard male inmates, because there was “a real risk that other inmates, deprived of a normal heterosexual environment, would assault women guards because they were women.” 433 U.S. at 335. Thus, Dothard’s reasoning confirms the obvious: a statute that imposes a sex qualification, whether for a marriage license or a job application, is sex discrimination, pure and simple, even
5 The need for such a presumption, as to a factor that does not appear on the face of the same-sex marriage bans, suggests that the gender discrimination analysis is, if anything, a closer fit to the problem before us than the sexual orientation rubric. While the same-sex marriage prohibitions obviously operate to the disadvantage of the people likely to wish to marry someone of the same gender—i.e. lesbians, gay men, bisexuals, and otherwise-identified persons with same-sex attraction—the individuals’ actual orientation is irrelevant to the application of the laws.
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where assumptions about sexual orientation are also at play.
Lawrence v. Texas, 539 U.S. 558 (2003) also underscores why the continuation of the same-sex marriage prohibitions today is quite obviously about gender. Lawrence held that it violates due process for states to criminalize consensual, noncommercial same-sex sexual activity that occurs in private between two unrelated adults. See id. at 578. After Lawrence, then, the continuation of the same-sex marriage bans necessarily turns on the gender identity of the spouses, not the sexual activity they may engage in. To attempt to bar that activity would be unconstitutional. See id. The Nevada intervenors recognize as much, noting that
Lawrence “differentiates between the fundamental right of gay men and lesbians to enter an intimate relationship, on one hand, and, on the other hand, the right to marry a member of one’s own sex.” The “right to marry a member of one’s own sex” expressly turns on sex.
B. In concluding that these laws facially classify on the basis of gender, it is of no moment that the prohibitions “treat men as a class and women as a class equally” and in that sense give preference to neither gender, as the defendants6 fervently maintain. That argument revives the long-discredited reasoning of Pace
6 Following the style of the Opinion of the Court, see Op. Ct. at 9 n. 4, I will refer throughout this Opinion to arguments advanced generally by “defendants,” meaning the parties that continue actively to argue in defense of the laws, i.e. the Idaho defendants and the Nevada intervenors.
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v. Alabama, which upheld an anti-miscegenation statute on the ground that “[t]he punishment of each offending person, whether white or black, is the same.” 106
U.S. 583, 585 (1883), overruled by McLaughlin v. Florida, 379 U.S. 184 (1964).
Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Board of
Education, 347 U.S. 483 (1954), similarly upheld racial segregation on the reasoning that segregation laws applied equally to black and white citizens.
This narrow view of the reach of the impermissible classification concept is, of course, no longer the law after Brown. Loving v. Virginia reinforced the post-
Brown understanding of impermissible classification under the Fourteenth
Amendment in a context directly analogous to the present one. Addressing the constitutionality of anti-miscegenation laws banning interracial marriage, Loving firmly “reject[ed] the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the
Fourteenth Amendment’s proscription of all invidious racial discrimination.” 388
U.S. 1, 8 (1967). As Loving explained, “an even-handed state purpose” can still be
“repugnant to the Fourteenth Amendment,” id. at 11 n. 11, because restricting individuals’ rights, choices, or opportunities “solely because of racial classifications violates the central meaning of the Equal Protection Clause” even if members of all racial groups are identically restricted with regard to interracial
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marriage. Id. at 12. “Judicial inquiry under the Equal Protection Clause . . . does not end with a showing of equal application among the members of the class defined by the legislation.” McLaughlin, 379 U.S. 184 at 191.
If more is needed to confirm that the defendants’ “equal application” theory has no force, there is more—cases decided both before and after Loving. Shelley v.
Kraemer, for example, rejected the argument that racially restrictive covenants were constitutional because they would be enforced equally against both black and white buyers. Shelley v. Kraemer 334 U.S. 1, 21–22 (1948). In so holding,
Shelley explained: “The rights created by the first section of the Fourteenth
Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.” Id. at 22. Shelley also observed that “a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons, and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons” violated the Fourteenth Amendment despite its equal application to both black and white occupants. See id. at 11
(describing Buchanan v. Warley, 245 U.S. 60 (1917)).
The same individual rights analysis applies in the context of gender classifications. Holding unconstitutional peremptory strikes on the basis of gender,
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J.E.B. explained that “individual jurors themselves have a right to nondiscriminatory jury selection procedures . . . . [T]his right extends to both men and women.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 140–41 (1994). “The neutral phrasing of the Equal Protection Clause, extending its guarantee to ‘any person,’ reveals its concern with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question).” Id. at 152 (Kennedy, J., concurring).
City of Los Angeles, Dep’t of Water & Power v. Manhart further explains why, even in “the absence of a discriminatory effect on women as a class” or on men as a class, the same-sex marriage bars constitute gender classifications, because they “discriminate against individual[s] . . . because of their sex.” 435
U.S. 702, 716 (1978) (emphasis added). In that case, the parties recognized that women, as a class, lived longer than men. Id. at 707–09. The defendant
Department argued that this fact justified a policy that facially required all women to contribute larger monthly sums to their retirement plans than men, out of fairness to men as a class, who otherwise would subsidize women as a class. Id. at
708–09. Manhart rejected this justification for the sex distinction, explaining that the relevant focus must be “on fairness to individuals rather than fairness to classes,” and held, accordingly, that the policy was unquestionably sex
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discriminatory. Id. at 709, 711.
Under all these precedents, it is simply irrelevant that the same-sex marriage prohibitions privilege neither gender as a whole or on average. Laws that strip individuals of their rights or restrict personal choices or opportunities solely on the basis of the individuals’ gender are sex discriminatory and must be subjected to intermediate scrutiny. See J.E.B., 511 U.S. at 140–42. Accordingly, I would hold that Idaho and Nevada’s same-sex marriage prohibitions facially classify on the basis of gender, and that the “equal application” of these laws to men and women as a class does not remove them from intermediate scrutiny.7
7 Several courts have so held. See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n. 4 (N.D. Cal. 2012) (“Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, DOMA would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex.”), initial hearing en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048 (9th Cir. 2013) ; In re Levenson, 560 F.3d 1145, 1147 (9th Cir. EDR 2009) (Reinhardt, J., presiding) (“If [Levenson’s husband] were female, or if Levenson himself were female, Levenson would be able to add [his husband] as a beneficiary. Thus, the denial of benefits at issue here was sex-based and can be understood as a violation of the . . . prohibition of sex discrimination.”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010) (“Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex.”), aff’d sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993) (plurality op.) (a same-sex marriage bar, “on its face, discriminates based on sex”); Baker, 744 A.2d at 905 (Johnson, J., concurring in part and dissenting in part) (a same-sex marriage bar presents “a
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C. The same-sex marriage prohibitions also constitute sex discrimination for the alternative reason that they impermissibly prescribe different treatment for similarly situated subgroups of men and women. That is, the same-sex marriage laws treat the subgroup of men who wish to marry men less favorably than the otherwise similarly situated subgroup of women who want to marry men. And the laws treat the subgroup of women who want to marry women less favorably than the subgroup of otherwise identically situated men who want to marry women.
The Supreme Court has confirmed that such differential treatment of similarly-situated sex-defined subgroups also constitutes impermissible sex discrimination. Phillips v. Martin Marietta Corp., for example, held that an employer’s refusal to hire women with preschool-age children, while employing men with children the same age, was facial sex discrimination, even though all men, and all women without preschool-age children, were treated identically. See
400 U.S. 542, 543–44 (1971) (per curiam). And the Seventh Circuit held an airline’s policy requiring female flight attendants, but not male flight attendants, to be unmarried was discrimination based on sex, relying on Phillips and explaining that a classification that affects only some members of one gender is still sex discrimination if similarly situated members of the other gender are not treated the straightforward case of sex discrimination” because it “establish[es] a classification based on sex”).
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same way. “The effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class.” Sprogis v. United Air
Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971).
Of those individuals who seek to obtain the state-created benefits and obligations of legal marriage to a woman, men may do so but women may not.
Thus, at the subclass level—the level that takes into account the similar situations of affected individuals—women as a group and men as a group are treated differently. For this reason as well I would hold that Idaho and Nevada’s same-sex marriage prohibitions facially classify on the basis of gender. They must be reviewed under intermediate scrutiny.
D. One further point bears mention. The defendants note that the Supreme
Court summarily rejected an equal protection challenge to a same-sex marriage bar in Baker v. Nelson, 409 U.S. 810 (1972), holding there was no substantial federal question presented in that case. But the Court did not clarify that sex-based classifications receive intermediate scrutiny until 1976. See Craig, 429 U.S. at
221, 218 (Rehnquist, J., dissenting) (describing the level of review prescribed by the majority as “new,” and as “an elevated or ‘intermediate’ level scrutiny”). As this fundamental doctrinal change postdates Baker, Baker is no longer binding as to the sex discrimination analysis, just as it is no longer binding as to the sexual
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orientation discrimination analysis. See Op. Ct. at 9–11.
II. Same-Sex Marriage Bars Are Based in Gender Stereotypes
Idaho and Nevada’s same sex marriage laws not only classify on the basis of sex but also, implicitly and explicitly, draw on “archaic and stereotypic notions” about the purportedly distinctive roles and abilities of men and women.
Eradicating the legal impact of such stereotypes has been a central concern of constitutional sex-discrimination jurisprudence for the last several decades. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982). The same- sex marriage bans thus share a key characteristic with many other sex-based classifications, one that underlay the Court’s adoption of intermediate scrutiny for such classifications.
The Supreme Court has consistently emphasized that “gender-based classifications . . . may be reflective of ‘archaic and overbroad’ generalizations about gender, or based on ‘outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas.’” J.E.B., 511 U.S. at 135 (quoting Schlesinger v. Ballard, 419 U.S. 498, 506–07 (1975); Craig, 429
U.S. at 198–99) (some internal quotation marks omitted). Laws that rest on nothing more than “the ‘baggage of sexual stereotypes,’ that presume[] the father has the ‘primary responsibility to provide a home and its essentials,’ while the
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mother is the ‘center of home and family life’” have been declared constitutionally invalid time after time. Califano v. Westcott, 443 U.S. 76, 89 (1979) (quoting Orr v. Orr, 440 U.S. 268, 283 (1979); Stanton v. Stanton, 421 U.S. 7, 10 (1975); Taylor v. Louisiana, 419 U.S. 522 (1975)). Moreover, “gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization.” J.E.B., 511 U.S. at
139 n. 11. And hostility toward nonconformance with gender stereotypes also constitutes impermissible gender discrimination. See generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); accord Nichols v. Azteca Rest. Enters., Inc., 256
F.3d 864, 874 (9th Cir. 2001) (harassment against a person for “failure to conform to [sex] stereotypes” is gender-based discrimination) (internal quotation marks omitted).
The notion underlying the Supreme Court’s anti-stereotyping doctrine in both Fourteenth Amendment and Title VII cases is simple, but compelling:
“[n]obody should be forced into a predetermined role on account of sex,” or punished for failing to conform to prescriptive expectations of what behavior is appropriate for one’s gender. See Ruth Bader Ginsburg, Gender and the
Constitution, 44 U. Cin. L. Rev. 1, 1 (1975). In other words, laws that give effect to “pervasive sex-role stereotype[s]” about the behavior appropriate for men and
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women are damaging because they restrict individual choices by punishing those men and women who do not fit the stereotyped mold. Nev. Dep’t of Human
Resources v. Hibbs, 538 U.S. 721, 731, 738 (2003).
Idaho and Nevada’s same-sex marriage prohibitions, as the justifications advanced for those prohibitions in this Court demonstrate, patently draw on
“archaic and stereotypic notions” about gender. Hogan, 458 U.S. at 725. These prohibitions, the defendants have emphatically argued, communicate the state’s view of what is both “normal” and preferable with regard to the romantic preferences, relationship roles, and parenting capacities of men and women. By doing so, the laws enforce the state’s view that men and women “naturally” behave differently from one another in marriage and as parents.
The defendants, for example, assert that “gender diversity or complementarity among parents . . . provides important benefits” to children, because “mothers and fathers tend on average to parent differently and thus make unique contributions to the child’s overall development.” The defendants similarly assert that “[t]he man-woman meaning at the core of the marriage institution, reinforced by the law, has always recognized, valorized, and made normative the roles of ‘mother’ and ‘father’ and their uniting, complementary roles in raising their offspring.”
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Viewed through the prism of the Supreme Court’s contemporary anti- stereotyping sex discrimination doctrine, these proferred justifications simply underscore that the same-sex marriage prohibitions discriminate on the basis of sex, not only in their form—which, as I have said, is sufficient in itself—but also in reviving the very infirmities that led the Supreme Court to adopt an intermediate scrutiny standard for sex classifications in the first place. I so conclude for two, somewhat independent, reasons.
A. First, and more obviously, the gender stereotyping at the core of the same-sex marriage prohibitions clarifies that those laws affect men and women in basically the same way as, not in a fundamentally different manner from, a wide range of laws and policies that have been viewed consistently as discrimination based on sex. As has been repeated again and again, legislating on the basis of such stereotypes limits, and is meant to limit, the choices men and women make about the trajectory of their own lives, choices about work, parenting, dress, driving—and yes, marriage. This focus in modern sex discrimination law on the preservation of the ability freely to make individual life choices regardless of one’s sex confirms that sex discrimination operates at, and must be justified at, the level of individuals, not at the broad class level of all men and women. Because the same-sex marriage prohibitions restrict individuals’ choices on the basis of sex,
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they discriminate based on sex for purposes of constitutional analysis precisely to the same degree as other statutes that infringe on such choices—whether by distributing benefits or by restricting behavior—on that same ground.
B. Second, the long line of cases since 1971 invalidating various laws and policies that categorized by sex have been part of a transformation that has altered the very institution at the heart of this case, marriage. Reviewing that transformation, including the role played by constitutional sex discrimination challenges in bringing it about, reveals that the same sex marriage prohibitions seek to preserve an outmoded, sex-role-based vision of the marriage institution, and in that sense as well raise the very concerns that gave rise to the contemporary constitutional approach to sex discrimination.
(i) Historically, marriage was a profoundly unequal institution, one that imposed distinctly different rights and obligations on men and women. The law of coverture, for example, deemed the “the husband and wife . . . one person,” such that “the very being or legal existence of the woman [was] suspended . . . or at least
[was] incorporated and consolidated into that of the husband” during the marriage.
1 William Blackstone, Commentaries on the Laws of England 441 (3d rev. ed.
1884). Under the principles of coverture, “a married woman [was] incapable, without her husband’s consent, of making contracts . . . binding on her or him.”
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Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring). She could not sue or be sued without her husband’s consent. See, e.g., Nancy F. Cott, Public
Vows: A History of Marriage and the Nation 11–12 (2000). Married women also could not serve as the legal guardians of their children. Frontiero v. Richardson,
411 U.S. 677, 685 (1973) (plurality op.).
Marriage laws further dictated economically disparate roles for husband and wife. In many respects, the marital contract was primarily understood as an economic arrangement between spouses, whether or not the couple had or would have children. “Coverture expressed the legal essence of marriage as reciprocal: a husband was bound to support his wife, and in exchange she gave over her property and labor.” Cott, Public Vows, at 54. That is why “married women traditionally were denied the legal capacity to hold or convey property . . . .”
Frontiero, 411 U.S. at 685. Notably, husbands owed their wives support even if there were no children of the marriage. See, e.g., Hendrik Hartog, Man and Wife in
America: A History 156 (2000).
There was also a significant disparity between the rights of husbands and wives with regard to physical intimacy. At common law, “a woman was the sexual property of her husband; that is, she had a duty to have intercourse with him.”
John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in
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America 79 (3d ed. 2012). Quite literally, a wife was legally “the possession of her husband, . . . [her] husband’s property.” Hartog, Man and Wife in America, at 137.
Accordingly, a husband could sue his wife’s lover in tort for “entic[ing]” her or
“alienat[ing]” her affections and thereby interfering with his property rights in her body and her labor. Id. A husband’s possessory interest in his wife was undoubtedly also driven by the fact that, historically, marriage was the only legal site for licit sex; sex outside of marriage was almost universally criminalized. See, e.g., Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex,
115 Yale L.J. 756, 763–64 (2006).
Notably, although sex was strongly presumed to be an essential part of marriage, the ability to procreate was generally not. See, e.g., Chester Vernier,
American Family Laws: A Comparative Study of the Family Law of the Forty-
Eight American States, Alaska, the District of Columbia, and Hawaii (to Jan. 1,
1931) (1931) I § 50, 239–46 (at time of survey, grounds for annulment typically included impotency, as well as incapacity due to minority or “non-age”; lack of understanding and insanity; force or duress; fraud; disease; and incest; but not inability to conceive); II § 68, at 38–39 (1932) (at time of survey, grounds for divorce included “impotence”; vast majority of states “generally held that impotence . . . does not mean sterility but must be of such a nature as to render
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complete sexual intercourse practically impossible”; and only Pennsylvania
“ma[d]e sterility a cause” for divorce).
The common law also dictated that it was legally impossible for a man to rape his wife. Men could not be prosecuted for spousal rape. A husband’s
“incapacity” to rape his wife was justified by the theory that “‘the marriage constitute[d] a blanket consent to sexual intimacy which the woman [could] revoke only by dissolving the marital relationship.’” See, e.g., Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Rev 1373, 1376 n. 9
(2000) (quoting Model Penal Code and Commentaries, § 213.1 cmt. 8(c), at 342
(Official Draft and Revised Comments 1980)).
Concomitantly, dissolving the marital partnership via divorce was exceedingly difficult. Through the mid-twentieth century, divorce could be obtained only on a limited set of grounds, if at all. At the beginning of our nation’s history, several states did not permit full divorce except under the narrowest of circumstances; separation alone was the remedy, even if a woman could show
“cruelty endangering life or limb.” Peter W. Bardaglio, Reconstrucing the
Household: Families, Sex, and the Law in the Nineteenth-Century South 33 (1995); see also id. 32–33. In part, this policy dovetailed with the grim fact that, at English common law, and in several states through the beginning of the nineteenth century,
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“a husband’s prerogative to chastise his wife”—that is, to beat her short of permanent injury—was recognized as his marital right. Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2125
(1996).
Perhaps unsurprisingly, the profoundly unequal status of men and women in marriage was frequently cited as justification for denying women equal rights in other arenas, including the workplace. “[S]tate courts made clear that the basis, and validity, of such laws lay in stereotypical beliefs about the appropriate roles of men and women.” Hibbs v. Dep’t of Human Res., 273 F.3d 844, 864 (9th Cir.
2001), aff’d sub nom. Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721.
Justice Bradley infamously opined in 1887 that “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.” Bradwell, 83 U.S. at 141 (Bradley, J., concurring).
On this view, women could be excluded from various professions because “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” Id. Instead, the law gave effect to the belief that “[t]he paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.” Id.
As a result of this separate-spheres regime, “‘[h]istorically, denial or
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curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second.’ . . .
Stereotypes about women’s domestic roles [we]re reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men.” Hibbs, 538
U.S. at 736 (quoting the Joint Hearing before the Subcommittee on
Labor–Management Relations and the Subcommittee on Labor Standards of the
House Committee on Education and Labor, 99th Cong., 2d Sess., at 100 (1986)).
Likewise, social benefits programs historically distinguished between men and women on the assumption, grounded in the unequal marital status of men and women, that women were more likely to be homemakers, supported by their working husbands. See, e.g., Califano v. Goldfarb, 430 U.S. 199, 205–07 (1977);
Weinberger v. Wiesenfeld, 420 U.S. 636, 644–45 (1975).
(ii) This asymmetrical regime began to unravel slowly in the nineteenth century, starting with the advent of Married Women’s Property Acts, which allowed women to possess property in their own right for the first time. See, e.g.,
Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives’
Rights to Earnings, 1860–1930, 82 Geo. L. Rev. 2127(1994). Eventually, state legislatures revised their laws. Today, of course, a married woman may enter contracts, sue and be sued without her husband’s participation, and own and
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convey property. The advent of “no fault” divorce regimes in the late 1960s and early 1970s made marital dissolutions more common, and legislatures also directed family courts to impose child and spousal support obligations on divorcing couples without regard to gender. See Cott, Public Vows, at 205–06. As these legislative reforms were taking hold, “in 1971 . . . the Court f[ou]nd for the first time that a state law violated the Equal Protection Clause because it arbitrarily discriminated on the basis of sex.” Hibbs, 273 F.3d at 865 (citing Reed, 404 U.S. 71).
This same legal transformation extended into the marital (and nonmarital) bedroom. Spousal rape has been criminalized in all states since 1993. See, e.g.,
Sarah M. Harless, From the Bedroom to the Courtroom: The Impact of Domestic
Violence Law on Marital Rape Victims, 35 Rutgers L.J. 305, 318 (2003). Griswold v. Connecticut, 381 U.S. 479 (1965), held that married couples have a fundamental privacy right to use contraceptives, and Eisenstadt v. Baird, 405 U.S. 438 (1972), later applied equal protection principles to extend this right to single persons.
More recently, Lawrence clarified that licit, consensual sexual behavior is no longer confined to marriage, but is protected when it occurs, in private, between two consenting adults, regardless of their gender. See 539 U.S. at 578.
In the child custody context, mothers and fathers today are generally presumed to be equally fit parents. See, e.g., Cott, Public Vows, at 206. Stanley v.
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Illinois, 405 U.S. 645, 658 (1972), for example, held invalid as an equal protection violation a state law that presumed unmarried fathers, but not unwed mothers, unfit as parents. Later, the Supreme Court expressly “reject[ed] . . the claim that . . .
[there is] any universal difference between maternal and paternal relations at every phase of a child’s development.” Caban v. Mohammed, 441 U.S. 380, 389 (1979).
Likewise, both spouses in a marriage are now entitled to economic support without regard to gender. See Cott, at 206–07. Once again, equal protection adjudication contributed to this change: Orr, 440 U.S. at 278–79, struck down a state statutory scheme imposing alimony obligations on husbands but not wives.
In short, a combination of constitutional sex-discrimination adjudication, legislative changes, and social and cultural transformation has, in a sense, already rendered contemporary marriage “genderless,” to use the phrase favored by the defendants. See Op. Ct. at 12 n. 6. For, as a result of these transformative social, legislative, and doctrinal developments, “[g]ender no longer forms an essential part of marriage; marriage under law is a union of equals.” Perry, 704 F. Supp. 2d at
993. As a result, in the states that currently ban same-sex marriage, the legal norms that currently govern the institution of marriage are “genderless” in every resepect except the requirement that would-be spouses be of different genders.
With that exception, Idaho and Nevada’s marriage regimes have jettisoned the
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rigid roles marriage as an institution once prescribed for men and women. In sum,
“the sex-based classification contained in the[se] marriage laws,” as the only gender classification that persists in some states’ marriage statutes, is, at best, “a vestige of sex-role stereotyping” that long plagued marital regimes before the modern era, see Baker, 744 A.2d at 906 (Johnson, J., concurring in part and dissenting in part), and, at worst, an attempt to reintroduce gender roles.
The same-sex marriage bars constitute gender discrimination both facially and when recognized, in their historical context, both as resting on sex stereotyping and as a vestige of the sex-based legal rules once imbedded in the institution of marriage. They must be subject to intermediate scrutiny.
III. Idaho and Nevada’s Same-Sex Marriage Prohibitions Fail Under Intermediate Scrutiny
For Idaho and Nevada’s same-sex marriage prohibitions to survive the intermediate scrutiny applicable to sex discriminatory laws, it must be shown that these laws “serve important governmental objectives and [are] substantially related to achievement of those objectives.” Craig, 429 U.S. at 197. “The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.” Hogan, 458 U.S. at 725–26.
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In part, the interests advanced by the defendants fail because they are interests in promoting and enforcing gender stereotyping and so simply are not legitimate governmental interests. And even if we assume that the other governmental objectives cited by the defendants are legitimate and important, the defendants have not shown that the same-sex marriage prohibitions are substantially related to achieving any of them.
The asserted interests fall into roughly three categories: (1) ensuring children are raised by parents who provide them with the purported benefits of “gender complementarity,” also referred to as “gender diversity”; (2) “furthering the stability of family structures through benefits targeted at couples possessing biological procreative capacity,” and/or discouraging “motherlessness” or
“fatherlessness in the home”; and (3) promoting a “child-centric” rather than
“adult-centric” model of marriage.”8 The defendants insist that “genderless marriage run[s] counter to . . . [these] norms and ideals,” which is why “man-
8 The defendants also assert that the state has an interest in “accommodating religious freedom and reducing the potential for civic strife.” But, as the Opinion of the Court notes, even if allowing same-sex marriage were likely to lead to religious strife, which is highly doubtful, to say the least, that fact would not justify the denial of equal protection inherent in the gender-based classification of the same-sex marriage bars. See Watson v. City of Memphis, 373 U.S. 526, 535 (1963) (rejecting the city’s proffered justification that delay in desegregating park facilities was necessary to avoid interracial “turmoil,” and explaining “constitutional rights may not be denied simply because of hostility to their assertion or exercise”).
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woman marriage” must be preserved.
The Opinion of the Court thoroughly demonstrates why all of these interests are without merit as justifications for sexual orientation discrimination. I add this brief analysis only to show that the justifications are likewise wholly insufficient under intermediate scrutiny to support the sex-based classifications at the core of these laws.
A. The Idaho defendants assert that the state has an interest in ensuring children have the benefit of parental “gender complementarity.” There must be
“space in the law for the distinct role of ‘mother’ [and] the distinct role of ‘father’ and therefore of their united, complementary role in raising offspring,” the Idaho defendants insist. On a slightly different tack, the Nevada intervenors similarly opine that “[s]ociety has long recognized that diversity in education brings a host of benefits to students,” and ask, “[i]f that is true in education, why not in parenting?”
Under the constitutional sex-discrimination jurisprudence of the last forty years, neither of these purported justifications can possibly pass muster as a justification for sex discrimination. Indeed, these justifications are laden with the very “‘baggage of sexual stereotypes’” the Supreme Court has repeatedly disavowed. Califano v. Westcott, 443 U.S. at 89 (quoting Orr, 440 U.S. at 283).
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(i) It should be obvious that the stereotypic notion “that the two sexes bring different talents to the parenting enterprise,” runs directly afoul of the Supreme
Court’s repeated disapproval of “generalizations about ‘the way women are,’”
VMI, 518 U.S. at 550, or “the way men are,” as a basis for legislation. Just as Orr,
440 U.S. at 279–80, rejected gender-disparate alimony statutes “as effectively announcing the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role,” so a state preference for supposed gender- specific parenting styles cannot serve as a legitimate reason for a sex-based classification.
This conclusion would follow “[e]ven [if] some statistical support can be conjured up for the generalization” that men and women behave differently as marital partners and/or parents, because laws that rely on gendered stereotypes about how men and women behave (or should behave) must be reviewed under intermediate scrutiny. See J.E.B., 511 U.S. at 140. It has even greater force where, as here, the supposed difference in parenting styles lacks reliable empirical support, even “on average.”9 Communicating such archaic gender-role stereotypes to children, or to parents and potential parents, is not a legitimate governmental
9 As one of the plaintiffs’ expert psychologists, Dr. Michael Lamb, explained, “[t]here . . . is no empirical support for the notion that the presence of both male and female role models in the home enhances the adjustment of children and adolescents.”
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interest, much less a substantial one.
(ii) The assertion that preserving “man-woman marriage” is permissible because the state has a substantial interest in promoting “diversity” has no more merit than the “gender complementarity” justification. Diversity is assuredly a weighty interest in the context of public educational institutions, with hundreds or thousands of individuals. But “[t]he goal of community diversity has no place . . . as a requirement of marriage,” which, by law, is a private institution consisting only of two persons. Baker v. State, 744 A.2d at 910 (Johnson, J., concurring in part and dissenting in part). “To begin with, carried to its logical conclusion, the
[Nevada intervenors’] rationale could require all marriages to be between [two partners], not just of the opposite sex, but of different races, religions, national origins, and so forth, to promote diversity.” Id. Such an absurd requirement would obviously be unconstitutional. See Loving, 388 U.S. 1.
Moreover, even if it were true that, on average, women and men have different perspectives on some issues because of different life experiences, individual couples are at least as likely to exhibit conformity as diversity of personal characteristics. Sociological research suggests that individual married couples are more likely to be similar to each other in terms of political ideology, educational background, and economic background than they are to be dissimilar;
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despite the common saying that “opposites attract,” in actuality it appears that “like attracts like.” See, e.g., John R. Alford et al., The Politics of Mate Choice, 73:2 J.
Politics 362, 376 (2011) (“[S]pousal concordance in the realm of social and political attitudes is extremely high.”); Jeremy Greenwood et al., Marry Your Like:
Assortative Mating and Income Inequality (Population Studies Ctr., Univ. Of
Penn., Working Paper No. 14-1, at 1, 2014) (Since the 1960s, “the degree of assortative mating [with regard to educational level] has increased.”). Further, there is no evidence of which I am aware that gender is a better predictor of diversity of viewpoints or of parenting styles than other characteristics. Such
“gross generalizations that would be deemed impermissible if made on the basis of race [do not become] somehow permissible when made on the basis of gender.”
J.E.B., 511 U.S. at 139–40.
In short, the defendants’ asserted state interests in “gender complementarity” and “gender diversity” are not legitimate “important governmental objectives.”
See Craig, 429 U.S. at 197. Accordingly, I do not address whether excluding same-sex couples from marriage is substantially related to this goal.
B. The defendants also argue that their states have an important interest in
“encouraging marriage between opposite-sex partners” who have biological children, so that those children are raised in an intact marriage rather than in a
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cohabiting or single-parent household. Assuming that this purpose is in fact a
“important governmental objective,” the defendants have entirely failed to explain how excluding same-sex couples from marriage is substantially related to achieving the objective of furthering family stability.
(i) I will interpret the asserted state goal in preventing “fatherlessness” and
“motherlessness” broadly. That is, I shall assume that the states want to discourage parents from abandoning their children by encouraging dual parenting over single parenting. If the asserted purpose were instead read narrowly, as an interest in ensuring that a child has both a mother and a father in the home (rather than two mothers or two fathers), the justification would amount to the same justification as the asserted interest in “gender complementarity,” and would fail for the same reason. That is, the narrower version of the family stability justification rests on impermissible gender stereotypes about the relative capacities of men and women.
Discouraging single parenting by excluding same-sex couples from marriage is oxymoronic, in the sense that it will likely achieve exactly the opposite of what the states say they seek to accomplish. The defendants’ own evidence suggests that excluding same-sex couples from marriage renders their unions less stable, increasing the risk that the children of those couples will be raised by one parent rather than two.
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True, an increasing number of children are now born and raised outside of marriage, a development that may well be undesirable.10 But that trend began apace well before the advent of same-sex marriage and has been driven by entirely different social and legal developments. The trend can be traced to declines in marriage rates, as well as to the rise in divorce rates after the enactment of “no fault” divorce regimes in the late 1960s and early 1970s. “The proportion of adults who declined to marry at all rose substantially between 1972 and 1998 . . . . [In the same period,] [t]he divorce rate rose more furiously, to equal more than half the marriage rate, portending that at least one in two marriages would end in divorce.”
Cott, Public Vows, at 203. The defendants’ assertion that excluding same-sex couples from marriage will do anything to reverse these trends is utterly unsubstantiated.
(ii) The defendants’ appeal to biology is similarly without merit. Their core assertion is that the states have a substantial interest in channeling opposite-sex couples into marriage, so that any accidentally produced children are more likely to be raised in a two-parent household. But the exclusion of same-sex couples from
10 According to the defendants, “[b]etween 1970 and 2005, the proportion of children living with two married parents dropped from 85 percent to 68 percent,” and as of 2008, “[m]ore than a third of all U.S. children [were] . . . born outside of wedlock.” See Benjamin Scafidi, Institute for American Values, The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and All Fifty States 7 (2008).
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the benefits and obligations of state-sanctioned marriage is assuredly not
“substantially related,” Craig, 429 U.S. at 197, to achieving that goal.
The reason only opposite-sex couples should be allowed to marry, we are told by the defendants, is that they “possess the unique ability to create new life.”
But both same-sex and opposite-sex couples can and do produce children biologically related only to one member of the couple, via assisted reproductive technology or otherwise. And both same-sex and opposite-sex couples adopt children, belying the notion that the two groups necessarily differ as to their biological connection to the children they rear.
More importantly, the defendants “cannot explain how the failure of opposite-sex couples to accept responsibility for the children they create relates at all to the exclusion of same-sex couples from the benefits of marriage.” Baker,
744 A.2d at 911 (Johnson, J., concurring in part and dissenting in part). For one thing, marriage has never been restricted to opposite-sex couples able to procreate; as noted earlier, the spousal relationship, economic and otherwise, has always been understood as a sufficient basis for state approval and regulation. See supra pp.
18–21. For another, to justify sex discrimination, the state must explain why the discriminatory feature is closely related to the state interest. See Hogan, 458 U.S. at 725–26. The states thus would have to explain, without reliance on sex-
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stereotypical notions, why the bans on same-sex marriage advance their interests in inducing more biological parents to marry each other. No such showing has been or can be made.
Biological parents’ inducements to marry will remain exactly what they have always been if same-sex couples can marry. The legal benefits of marriage—taxation, spousal support, inheritance rights, familial rights to make decisions concerning the illness and death of a spouse, and so on—will not change.
See, e.g. Turner v. Safley, 482 U.S. 78, 95–96 (1987). The only change will be that now-excluded couples will enjoy the same rights. As the sex-based exclusion of same-sex couples from marrying does not in any way enhance the marriage benefits available to opposite-sex couples, that exclusion does not substantially advance—or advance at all—the state interest in inducing opposite-sex couples to raise their biological children within a stable marriage.
(iii) Finally, the defendants argue that “the traditional marriage institution” or “man-woman marriage . . . is relatively but decidedly more child-centric” than
“genderless marriage,” which they insist is “relatively but decidedly more adult- centric.”
These assertions are belied by history. As I have noted, see supra pp.
18–24, “traditional marriage” was in fact quite “adult-centric.” Marriage was,
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above all, an economic arrangement between spouses. See, e.g., Cott, Public
Vows, at 54. Whether or not there were children, the law imposed support obligations, inheritance rules, and other rights and burdens upon married men and women. Moreover, couples unwilling or unable to procreate have never been prevented from marrying. Nor was infertility generally recognized as a ground for divorce or annulment under the old fault-based regime, even though sexual impotence was. See, e.g., Vernier, I §50, II § 68.
Further, the social concept of “companionate marriage”—that is, legal marriage for companionship purposes without the possibility of children—has existed since at least the 1920s. See Christina Simmons, Making Marriage
Modern: Women’s Sexuality from the Progressive Era to World War II 121 (2009).
The Supreme Court called on this concept when it recognized the right of married couples to use contraception in 1965. Griswold, 381 U.S. at 486. Griswold reasoned that, with or without procreation, marriage was “an association for as noble a purpose as any.” Id.
Same-sex marriage is thus not inherently less “child-centric” than
“traditional marriage.”11 In both versions, the couple may bear or adopt and raise
11 Moreover, if the assertion that same-sex marriages are more “adult- centric” is meant to imply state disapproval of the sexual activity presumed to occur in same-sex marriages, that disapproval could not be a legitimate state purpose. After Lawrence, the right to engage in same-sex sexual activity is
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children, or not.
Finally, a related notion the defendants advance, that allowing same-sex marriage will render the marriage institution “genderless,” in the sense that gender roles within opposite-sex marriages will be altered, is also ahistorical. As I have explained, those roles have already been profoundly altered by social, legislative, and adjudicative changes. All these changes were adopted toward the end of eliminating the gender-role impositions that previously inhered in the legal regulation of marriage.
In short, the “child-centric”/“adult-centric” distinction is an entirely ephemeral one, at odds with the current realities of marriage as an institution.
There is simply no substantial relationship between discouraging an “adult-centric” model of marriage and excluding same-sex couples.
III. Conclusion
“Intentional discrimination on the basis of gender by state actors violates the
Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.” J.E.B., 511 U.S. at 130–31. Idaho and
Nevada’s same-sex marriage proscriptions are sex based, and these bans do serve
recognized as a protected liberty interest. See 539 U.S. at 578.
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to preserve “invidious, archaic, and overbroad stereotypes” concerning gender roles. The bans therefore must fail as impermissible gender discrimination.
I do not mean, by presenting this alternative analysis, to minimize the fact that the same-sex marriage bans necessarily have their greatest effect on lesbian, gay, bisexual, and transgender individuals. Still, it bears noting that the social exclusion and state discrimination against lesbian, gay, bisexual, and transgender people reflects, in large part, disapproval of their nonconformity with gender-based expectations.12 That is, such individuals are often discriminated against because they are not acting or speaking or dressing as “real men” or “real women” supposedly do. “[S]tereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.” Centola v. Porter, 183 F.
Supp. 2d 403, 410 (D. Mass. 2002); see also Andrew Koppelman, Why
Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U.
L. Rev. 197 (1994). The same-sex marriage prohibitions, in other words, impose harms on sexual orientation and gender identity minorities precisely because they impose and enforce gender-normative behavior.
I do recognize, however, that the gender classification rubric does not
12 Although not evidently represented among the plaintiff class, transgender people suffer from similar gender stereotyping expectations. See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000) (discrimination on the basis of transgender status is also gender discrimination).
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adequately capture the essence of many of the restrictions targeted at lesbian, gay, and bisexual people. Employment discrimination, housing discrimination, and peremptory strikes on the basis of sexual orientation, to name a few of the exclusions gays, lesbians, and other sexual orientation minorities have faced, are primarily motivated by stereotypes about sexual orientation; by animus against people based on their nonconforming sexual orientation; and by distaste for same- sex sexual activity or the perceived personal characteristics of individuals who engage in such behavior. See, e.g., Romer v. Evans, 517 U.S. 620 (1996);
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (2014). And those sorts of restrictions do not turn directly on gender; they do not withhold a benefit, choice, or opportunity from an individual because that individual is a man or a woman. Although the gender stereotyping so typical of sex discrimination may be present, see generally Koppelman, 69 N.Y.U. L. Rev. 197, those restrictions are better analyzed as sexual orientation discrimination, as we did in SmithKline. 740
F.3d at 480–84.
As to the same-sex marriage bans in particular, however, the gender discrimination rubric does squarely apply, for the reasons I have discussed. And as
I hope I have shown, the concepts and standards developed in more than forty years of constitutional sex discrimination jurisprudence rest on the understanding
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that “[s]anctioning sex-based classifications on the grounds that men and women, simply by virtue of their gender, necessarily play different roles in the lives of their children and in their relationships with each other causes concrete harm to women and to men throughout our society.” Deborah A. Widiss et al., Exposing Sex
Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J. L. & Gender
461, 505 (2007). In my view, the same-sex marriage bans belie that understanding, and, for that reason as well, cannot stand.
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Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-0526 (Attn: Jean Green, Senior Publications Coordinator); ► and electronically file a copy of the letter via the appellate ECF system by using "File Correspondence to Court," or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.
Post Judgment Form - Rev. 08/2013 3 Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-4 Page: 4 of 5 (94 of 95) Form 10. Bill of Costs ...... (Rev. 12-1-09)
United States Court of Appeals for the Ninth Circuit
BILL OF COSTS
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.
v. 9th Cir. No.
The Clerk is requested to tax the following costs against:
Cost Taxable REQUESTED ALLOWED under FRAP 39, Each Column Must Be Completed To Be Completed by the Clerk 28 U.S.C. § 1920, 9th Cir. R. 39-1
No. of Pages per Cost per TOTAL No. of Pages per Cost per TOTAL Docs. Doc. Page* COST Docs. Doc. Page* COST
Excerpt of Record $ $ $ $
Opening Brief $ $ $ $
Answering Brief $ $ $ $
Reply Brief $ $ $ $
Other** $ $ $ $
TOTAL: $ TOTAL: $
* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1. ** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.
Attorneys' fees cannot be requested on this form.
Continue to next page. Case: 14-35420 10/07/2014 ID: 9268466 DktEntry: 180-4 Page: 5 of 5 (95 of 95) Form 10. Bill of Costs - Continued
I, , swear under penalty of perjury that the services for which costs are taxed were actually and necessarily performed, and that the requested costs were actually expended as listed.
Signature ("s/" plus attorney's name if submitted electronically)
Date
Name of Counsel:
Attorney for:
(To Be Completed by the Clerk)
Date Costs are taxed in the amount of $
Clerk of Court
By: , Deputy Clerk
PENDING MARRIAGE EQUALITY CASES As of November 3, 2014
Scorecard
Pending Marriage Equality Lawsuits There are currently:
84 lawsuits involving the right of same-sex couples to marry or have their out-of-state marriages respected are pending in 29 states (AL, AK, AZ, AR, FL, GA, ID, IN, KS, KY, LA, MI, MS, MO, MT, NE, NV, NC, ND, OH, OR, PA, SC, SD, TN, TX, VA, WV, WY) and Puerto Rico. (Same-sex couples already are able to marry in some of these states, but some litigation still is pending in those states.)
55 of these are in federal court;
20 of those are on appeal
35 are in the district court
15 pending federal district court cases and 1 pending federal court of appeals case are within the 4th, 7th or 10th Circuits, in which the U.S. Supreme Court has denied certiorari (review) of rulings that bans on marriage by same-sex couples are unconstitutional.
29 are in state courts;
15 of these are on appeal, 5 of which are now before state supreme courts; and
20 raise federal claims,
4 of which are from states in the 4th, 7th or 10th Circuits.
Marriage equality lawsuits are pending in all states that do not currently allow same-sex couples to marry.
1
Post-Windsor Cases Ruling in Favor of Marriage Equality Claims
In 2013, the Supreme Court ruled that it is unconstitutional for the federal government to refuse to recognize marriages entered by same-sex couples. Since that decision (U.S. v. Windsor), there has been a nearly unbroken string of 32 rulings in 31 cases from 25 different federal courts that have held the laws of 20 states that barred same-sex couples from marrying or having their marriages recognized to be unconstitutional or that have entered partial or full injunctions against them (AK, AZ, CO, FL, ID, IL, IN, KY, MI, NV, NC, OH, OK, OR, PA, TN, TX, UT, VA, and WI). Including state courts, the total rises to 46 rulings in 42 cases from 37 different federal and state courts invalidating or enjoining the enforcement of the marriage bans of 24 states (the states in the last parenthetical, plus AR, CO, MO, NJ, and NM).
Marriage Equality Marriage equality currently exists in 32 states and DC: Explore our interactive map (click on “Marriage and Relationships”).
In addition, more than 500 same-sex couples married in AR and more than 300 same-sex couples married in MI before stays were issued of rulings that those states’ marriage bans are unconstitutional or orders were issued directing that no further marriage licenses be issued pending appeals of lower court rulings. The marriages entered in MI are now being recognized for at least federal law purposes, but the federal government has not yet announced whether it will recognize the marriages entered in AR.
In OH, the District Court’s rulings in two cases requiring recognition of marriages entered outside the state by same-sex couples remain in effect as to the named plaintiffs in both cases.
In other cases in which state marriage laws have been ruled unconstitutional in which appellate rulings have not yet issued, the rulings have been stayed pending appeal (in AR, FL, KY, TN, and TX ) and, in one of the OH cases, the court’s order has been stayed as to all couples except the named plaintiffs.
Marriage Recognition Although MO does not currently allow same-sex couples to marry, it has decided to recognize marriages same-sex couples have entered outside the state for all purposes. Whether other states that do not currently allow same-sex couples to marry will recognize marriages entered by same-sex couples out-of-state for all or at least some purposes is not yet fully resolved.
2
Other Relationship Recognition As a result of recent rulings, all states that provide comprehensive civil union or domestic partnership also now provide or have appellate court rulings mandating the current ability of same-sex couples to marry throughout the state. Civil union and domestic partnership ordinances and policies also exist in numerous local jurisdictions. Explore our interactive map (click on “Marriage and Relationships”).
IN THE UNITED STATES SUPREME COURT
On 10/6/14, the Supreme Court denied the 7 petitions for certiorari seeking review of decisions from the 4th, 7th, and 10th Circuits that struck down the marriage bans that had existed in IN, OK, UT, VA, and WI. On that same day, the 4th Circuit issued its mandate in Bostic v. Schaefer, making it possible for same-sex couples to marry in Virginia, and the 10th Circuit issued its mandates in Herbert v. Kitchen and Bishop v. Smith, making it possible for same-sex couples to marry in Utah and Oklahoma, respectively. On 10/7/14, the 7th Circuit issued its mandates in Baskin v. Bogan (which had been consolidated with Fujii v. Dept. of Revenue and Lee v. Pence) and in Walker v. Wolf, making it possible for same-sex couples to marry in Indiana and Wisconsin, respectively.
IN FEDERAL COURTS OF APPEALS
The 9th Circuit dismissed as moot the appeal in Jackson v. Abercrombie on October 10, 2014, due to Alaska’s legislative adoption of marriage equality. That case therefore is no longer listed below. In addition, the 10th Circuit granted the state of Colorado’s motion to dismiss the Evans v. Utah case, which had challenged Utah’s previous refusal to recognize marriages entered after the district court struck down Utah’s marriage ban and before the district court’s ruling was stayed, because Colorado is now recognizing those marriages. Furthermore, after the Colorado Supreme Court lifted its stay in the Bringman v. Long state marriage equality case, permitting same-sex couples to marry throughout the state, the district court for Colorado on 10/17/14 granted a motion to make permanent the preliminary injunction it previously had issued requiring the state to allow same-sex couples to marry and requiring the recognition of marriages entered by same- sex couples married out of state, and entered judgment in favor of the plaintiffs in the Burns v. Hickenlooper case. Those cases therefore are no longer listed below either.
3
STATE CIRCUIT CASE NAME NATURE COUNSEL STATUS OF 1 CLAIMS Alaska 9th Hamby v. B Heather Gardner Complaint filed 5/12/14. Suit by four same-sex couples married in other Parnell* Law Office; Law states and one unmarried couple. On 10/12/14, the court granted Offices of Caitlin plaintiffs’ motion for summary judgment, ruling that Alaska’s bar on Shortell; Mendell marriage for same-sex couples is unconstitutional. Same-sex couples & Associates currently can marry in Alaska. State officials filed an appeal to the 9th Cir. on 10/13/14 and requested issuance of an emergency stay pending appeal. The 9th Circuit granted a temporary stay until the Supreme Court ruled on a request for a stay to it, which the appellants proceeded to seek. The Supreme Court denied the request for a stay on 10/17/14, and the 9th Circuit’s temporary stay therefore expired. The State’s opening brief on appeal is due 1/21/15. On 10/22/14, the state petitioned the 9th Circuit for initial en banc review. Florida 11th Brenner v. Scott* B Sheppard, White & Same-sex couple married in Canada filed suit as well as a motion for Kachergus, P.A.; preliminary injunction on 2/28/14. On 3/18/14, plaintiffs filed an Bledsoe, Jackson, amended motion for declaratory and injunctive relief, adding an Schmidt, Wright, unmarried same-sex couple as additional plaintiffs. Consolidated by Lang & Wilkinson consent with Grimsley v. Scott. Florida Family Action moved to intervene, which was opposed 4/21/14, and denied 4/24/14. Plaintiffs moved for a preliminary injunction. Defendant Washington County Clerk and state defendant officials filed motions to dismiss and oppositions to plaintiffs’ preliminary injunction motion on 5/12/14. Plaintiffs’ opposition to the motions to dismiss and plaintiffs’ reply in support of their preliminary injunction motion were filed 5/27/14. On 8/21/14, the court denied the motions to dismiss and granted a preliminary injunction in favor of plaintiffs, which it stayed until 91 days after stays have been denied or lifted in Bostic, Bishop, and Kitchen. On 10/7/14, Plaintiffs filed a motion to lift the stay, on 10/24/14 the AG opposed this, and on 10/28/14 the other defendants filed a response in opposition to lifiting the stay as well. On 10/28/14 the Grimsely
1 Cases seeking only the freedom to marry for unmarried same-sex couples are marked “M.” Cases seeking only recognition of marriages entered by same-sex couples in other jurisdictions are marked “R.” Cases seeking both are marked “B.” Cases seeking in-state recognition of marriages entered in-state are marked “I-S R.” Cases in which same-sex couples are seeking a divorce are marked “D.” Cases in which second-parent adoptions are also being sought are marked “A.” Cases filed, or that newly included a marriage claim, since the decision in Windsor are marked with an asterisk. 4
plaintiffs filed a brief in support of lifting the stay. Defendants filed a notice of appeal on 9/5/14. Appellants’ opening brief on appeal to the 11th Circuit currently is due 12/15/14. Florida 11th Grimsley v. R ACLU; Podhurst Recognition case filed by 8 same-sex couples and SAVE (Florida LGBT Scott* Orseck, P.A. group) on 3/12/14. Florida Family Action moved to intervene, which was opposed 4/21/14 and denied 4/24/14. Consolidated by consent with Brenner v. Scott. On 4/10/14, the complaint was amended to add a widow, and plaintiffs moved for a preliminary injunction. Defendants’ response was filed 5/12/14. Plaintiffs’ opposition to the state’s motion to dismiss and plaintiffs’ reply in support of their preliminary injunction motion were filed 5/27/14. On 8/21/14, the court denied the motions to dismiss and granted a preliminary injunction in favor of plaintiffs, which it stayed until 91 days after stays have been denied or lifted in Bostic, Bishop, and Kitchen. See discussion of Brenner v. Scott, with which this case is consolidated, for further developments. Idaho 9th Latta v. Otter* B NCLR; Law Office Filed 11/8/13. On 5/13/14, the district court granted plaintiffs’ motion of Deborah A. for summary judgment, declaring that Idaho's ban on same-sex couples Ferguson, PLLC; marrying and on recognizing same-sex couples’ out-of-state marriages is Durham Law unconstitutional and enjoining enforcement of the ban. The Ninth Office, PLLC Circuit stayed that ruling pending decision on a motion for a stay pending appeal on 5/15/14, and then stayed the ruling pending appeal on 5/21/14. It further ordered that the briefing schedule be expedited. On 5/30/14, Appellant Otter filed a petition for initial hearing en banc. That petition was denied on 8/19/14. On 10/7/14, the 9th Circuit affirmed the district court, ruling that the denial of access to marriage violates the Equal Protection clause of the U.S. Constitution. It issued its mandate that same day. On 10/8/14, Gov. Otter sought a stay from the Supreme Court. Justice Kennedy granted a temporary stay but, after briefing, he referred the matter to the entire Court, which ended the stay on 10/10/14. The Ninth Circuit had recalled its mandate as to Idaho in response to Justice Kennedy’s original order, but, in response to further briefing, the Ninth Circuit on 10/13/14 dissolved its stay, effective 9 a.m. on 10/15/14, when same-sex couples became able to marry in Idaho. On 10/21/14, Gov. Latta petitioned the 9th Circuit for rehearing en banc, which the 9th Circuit thereafter ordered Plaintiffs-Appellees to respond to. Plaintiffs-Appellees’ response to the petition for rehearing en banc is due 11/12/14. Indiana 7th Bowling v. R Richard A. Mann, Filed 3/14/21. Assigned to same judge hearing Love v. Pence. On 5
Pence* P.C. 4/21/14, plaintiffs filed a motion for summary judgment. Defendants filed their motion for summary judgment and opposition to plaintiffs’ motion for summary judgment on 5/29/14. On 6/16/14, defendants filed their answer to the complaint. On 6/26/14, plaintiffs filed their combined response in opposition to defendants’ motion for summary judgment and reply in support of plaintiffs’ motion for summary judgment. Defendants filed their reply in support of their motion for summary judgment on 7/24/14 and sought a stay pending appeal. Plaintiffs filed their opposition to a stay pending appeal on 7/24/14. On 8/19/14, the court granted summary judgment in favor of plaintiffs, but stayed the case in light of the 7th Circuit’s pending decision in Baskin v. Bogan. On 8/21/14 defendants filed a notice of appeal. On 8/25/14, the 7th Circuit on its own motion suspended briefing of the appeal pending the court’s decision in Baskin v. Bogan. On 10/6/14, the Supreme Court denied the petitions for certiorari from the Bogan v. Baskin, Dept. of Revenue v. Fujii, Pence v. Lee, and Walker v. Wolf cases, letting stand the 7th Circuit’s decision finding that Indiana’s ban on marriage for same-sex couples is unconstitutional. The appeal in Bowling v. Pence may be dismissed, as a result. Kentucky 6th Bourke v. R Clay Daniel Walton Filed 7/26/13. Final judgment declaring refusal to recognize out-of-state Beshear* & Adams PLC; marriages of same-sex couples to be unconstitutional was entered Fauver Law Office 2/27/14, but has been stayed pending appeal. The State Attorney PLLC General declined to appeal, but the Governor retained outside counsel to handle the state’s appeal. On 3/11/14, plaintiffs’ counsel filed a motion for attorneys’ fees, which has been granted. Appellant’s brief was filed 5/7/14. Appellees’ answering brief was filed on 6/9/14. Appellant’s reply brief was filed on 6/26/14. The appeal was consolidated for submission and oral argument with Love v. Breshear, below. Oral argument was held 8/6/14. Awaiting decision. Kentucky 6th Love v. Beshear* M Clay Daniel Walton On 2/14/14, two same-sex couples moved to intervene in what was & Adams PLC; Bourke v. Beshear case (after the judge granted summary judgment in Fauver Law Office favor of the plaintiffs in that case, which raised only marriage PLLC recognition claims), to raise freedom to marry claims. That motion was granted and the judge renamed the case. A motion for preliminary injunction was denied 2/2/14. The Attorney General was ordered dismissed as a defendant on 3/24/14. Plaintiffs-Intervenors filed motions for summary judgment and immediate injunctive relief on 4/18/14. On 7/1/14, the trial court ruled in favor of plaintiffs, concluding 6
that Kentucky’s marriage ban violates the Equal Protection Clause of the U.S. Constitution. The trial court stayed its ruling pending an appeal. Appellees filed a motion to consolidate the appeal with the Bourke case, above, which was granted. Appellants filed their opening brief on 7/17/14. Appellees’ brief was filed on 7/24/14. Appellants’ reply brief was filed on 7/31/14. Oral argument was held 8/6/14. Awaiting decision. Louisiana 5th Robicheaux v. R Lambda Legal; Consolidated with the (now-dismissed) Robicheaux v. Caldwell case (in George* Law Office of which the court had held that the plaintiffs did not sue any defendant Richard G. Perque responsible for non-recognition). Status conference held 3/14/14. Robicheaux & LLC; and Scott J. Defendants answered 4/14/14. Defendant Barfield filed motions to Forum for Eq v. Spivey dismiss and for summary judgment 4/21/14. Robicheaux filed motion Caldwell, et al for partial summary judgment on 4/22/14. On 5/12/14, amicus briefs were filled in support of both parties. Cross-responses to the motions were filed on 5/19/14 by plaintiffs and on 5/20/14 by Barfield. Replies were filed on 6/4/14. Argument held 6/25/14, at which the judge indicated he desired further briefing in order to reach all issues related to the state’s ban on allowing same-sex couples to marry or to have their out-of-state marriages recognized. Supplemental briefing was submitted 7/16/14. On 7/17/14, the court granted a motion to dismiss without prejudice the Plaintiffs’ claim for violation of Full Faith and Credit Clause of the United States Constitution. On 9/3/14, the court filed its Order and Reasons, denying summary judgment for plaintiffs and granting it to defendants, stating, “The State of Louisiana has a legitimate interest under a rational basis standard of review for addressing the meaning of marriage through the democratic process.” Plaintiffs have filed a notice of appeal. On 9/25/14 the 5th Circuit granted the their motion to expedite briefing. Appellants’ opening brief was filed on 10/17/14. Appellee's Brief was filed on 10/31/14. Appellants’ Reply Brief is due on 11/07/14. Argument of the appeal has been scheduled for the week of January 5, 2015. Louisiana 5th Forum for R Lambda Legal; Filed 2/12/14. Consolidated with Robicheaux cases on 3/18/14. (See Equality Stone Pigman entries for those cases, which apply equally to this case.) Louisiana v. Walther Wittmann Barfield* LLC Michigan 6th DeBoer v. Snyder M/A Carole M. Stanyar; Case originally filed as a challenge to denial of second parent adoption; Mogill, Posner & subsequently amended, at trial court’s insistence, to raise freedom to Cohen; Dana P. marry claim. Decision holding state marriage ban unconstitutional on 7
Nessell; Robert A. equal protection grounds, applying the rational basis test, issued 3/21/14. Sedler Appeal and motion to stay were filed with the Sixth Circuit that day, which granted a temporary stay, and then on 3/25/14 granted a stay pending appeal. Appellant’s brief was filed 5/7/14. Appellees’ brief was filed on 6/9/14. The reply brief was filed 6/26/14. The state filed a motion to expedite the appeal on 3/25/14. On 3/26/14, the Governor issued a statement that the more than 300 marriages entered before the stay were validly entered, but that state benefits would be “suspended” until further court rulings are issued. By contrast, U.S. Attorney General Holder issued a statement on 3/27/14 that the federal government would treat the couples equally to all other validly married couples. On 4/4/14, the state filed a motion to have the appeal heard directly en banc. Counsel for plaintiffs opposed that motion on 4/11/14. Counsel in Obergefell filed an amicus brief also opposing that motion. Counsel for the proposed intervenors in Obergefell subsequently wrote to the 6th Circuit to state that they support direct en banc review. On 4/28/14, the motion for direct en banc review was denied. A married couple residing in Michigan who wish to complete a second parent adoption filed a motion to intervene on appeal. That motion was denied on 6/16/14 as was the state’s motion to expedite. On 6/17/14, a motion for cross filing of amicus briefs was denied. Appellants’ reply brief was filed on 6/26/14. Oral argument was held 8/6/14. Awaiting decision. Nevada 9th Sevcik v. B Lambda Legal; On 10/7/14, the 9th Cir. overturned the adverse ruling of the district Sandoval O’Melveny & court and held that it violates the Equal Protection Clause to deny same- Myers LLP; Snell sex couples access to marriage. That same day, the 9th Cir. issued its & Wilmer LLP mandate. On 10/8/14, Justice Kennedy issued a temporary stay but, later that day, clarified that that stay only applied to the appeal in the Idaho Latta v. Otter case. The district court judge who had ruled against the plaintiff recused himself and the case was reassigned. On 10/9/14, a permanent injunction was issued prohibiting enforcement of Nevada’s marriage ban and ordering that otherwise eligible same-sex couples must be allowed to marry. Same-sex couples began marrying later that day. On 10/13/14, the intervenor (the Coalition for the Protection of Marriage) filed a petition for rehearing en banc with the 9th Cir. The 9th Circuit ordered the other parties to the case to respond to that petition, and responses to this petition were filed on 10/24/14 by Washoe County & Clark County and on10/28/14 by Carson City. Plaintiffs’ and the state defendants’ responses are due 11/12/14, 8
Ohio 6th Henry v. Himes* R Lambda Legal; Filed 2/10/14. Motion for declaratory relief and permanent injunction (formerly Henry Gerhardstein & filed 2/28/14. At 4/4/14 hearing, the judge indicated he would issue a v. Wymyslo) Branch Co., LPA; decision on 4/14/14 that marriages entered by same-sex couples outside Newman & Meeks the state must be recognized for all purposes and that adoptions secured Co., LPA by same-sex couples in other states must be given full faith and credit. On 4/14/14, he did so. On 4/15/14, defendant filed a motion to stay, which the district court on 4/16/14 declined to enter as to the named plaintiffs, but otherwise granted. The case was docketed with the 6th Circuit on 5/12/14, and, on 5/20/14, was consolidated with the Obergefell v. Henry appeal for purposes of argument. Appellant’s brief was filed on 6/10/14; appellees’ brief was filed 7/8/14; and appellant’s reply brief was filed on 7/15/14. Oral argument was held 8/6/14. Awaiting decision. Ohio 6th Obergefell v. R ACLU; Filed 7/19/13. Permanent injunction granted 12/23/13 requiring Ohio to Himes* (formerly Gerhardstein & recognize marriages validly entered by same-sex couples in other states Obergefell v. Branch Co., LPA; on death certificates of two men who married same-sex partners. The Wymyslo) Newman & Meeks state appealed. Plaintiffs’ motion to expedite the appeal was denied. Co., LPA Appellants’ opening brief was filed 4/10/14; answering brief was filed early, on 4/24/14; amicus briefs supporting appellees were filed 5/1/14. On 4/23/14, Equality Ohio, the Equality Ohio Education Fund, and four unmarried same-same couples (represented by Roberta Kaplan) moved to intervene in the appeal, which Plaintiffs opposed. This was denied on 6/16/14. On 5/20/14, the appeal in this case was ordered consolidated with the Henry v. Himes appeal for purposes of argument. Oral argument was held 8/6/14. Awaiting decision. Oregon 9th Geiger v. B Law Works LLC; Case originally filed 10/15/13 and subsequently consolidated with Kitzhaber* Dorsay & Easton Rummell v. Kitzhaber, below. Plaintiffs’ motion for summary judgment LLP filed on 2/18/14 was granted 5/19/14, after the state Attorney General decided not to defend and filed a brief on 3/18/14 arguing that the state’s marriage ban is unconstitutional and that the state would comply with a decision so ruling. National Organization for Marriage (NOM) moved to intervene shortly before argument of the summary judgment motion and unsuccessfully sought to delay argument of that motion. Its motion to intervene was denied 5/14/14. On 5/19/14, plaintiffs’ summary judgment motion was granted on both equal protection and liberty grounds, and the state declined to appeal. NOM appealed to the 9th Circuit the denial of intervention and also sought a stay from the 9th Circuit of the district court’s grant of summary judgment. The State 9
moved to dismiss NOM’s appeal as moot on 5/20/14. The 9th Circuit denied NOM’s request for a stay of the district court’s ruling on the summary judgment motion. On 5/27/14, NOM asked the Supreme Court to issue such a stay. Respondents filed their responses to this stay application on 6/2/14. The Supreme Court denied the stay on 6/4/14. On 6/13/14, Appellee Kitzhaber also filed a motion to dismiss NOM’s appeal, arguing that NOM has no standing to appeal the ruling on the merits. NOM’s response to the motions to dismiss the appeal was filed on 6/23/14. On 8/27/14, the 9th Circuit dismissed the appeal, holding that NOM lacks standing to appeal the district court’s May 19, 2014 final judgment. On 9/10/14, NOM petitioned the 9th Circuit for rehearing en banc. On 9/25/14, NOM filed a further declaration in support of their petition for rehearing en banc. Oregon 9th Rummell v. M ACLU; Perkins Case originally filed 12/19/13, and subsequently consolidated with Kitzhaber* Coie LLP; Johnson Geiger v. Kitzhaber. (See entries above, which apply to this case as Johnson & Schaller well.) PC Pennsyl- 3rd Whitewood v. B ACLU; Hangley Filed 7/9/13. The state’s Attorney General declined to defend. Counsel vania Wolf* (appeal of Aronchick Segal hired by the defendants moved to dismiss, which was denied 11/15/13. clerk known as Pudlin & Schiller; A motion to certify the motion to dismiss for interlocutory appeal was Santai-Gaffney v. Seth Kreimer denied 12/17/13. Both the plaintiffs and the defendants filed motions for Whitewood) summary judgment on 4/21/14. On 5/21/14, the court ruled in favor of the plaintiffs, holding that Pennsylvania’s ban on marriage by same-sex couples marrying and refusal to recognize same-sex couples’ out-of-state marriages laws are unconstitutional and enjoining the state’s bans on marriage equality. On 5/21/14, the Governor announced he would not be appealing the decision, and same-sex couples became able to marry in the state. On 6/6/14 Schuylkill County Clerk, Theresa Santai-Gaffney, filed a motion to intervene and a motion to stay the decision. On 6/18/14, the district court denied the motion to intervene. The denial of the motion to intervene was appealed to the 3rd Circuit on 6/19/14, along with a protective appeal of the decision and a request for a stay pending appeal. On 7/3/14, the appeal of the motion to intervene was summarily dismissed by the 3rd Circuit and the appeal was dismissed. In addition, the motion for a stay pending appeal was dismissed as moot. On 7/3/14, the clerk sought a stay pending appeal from the Supreme Court, which was denied by Justice Alito on 7/9/14. On 7/17/14, the clerk petitioned the 3rd Circuit for rehearing en banc. This petition was denied on 8/4/14. 10
On 8/13/14, an amended order was filed denying the petition for en banc and panel rehearing. Unless the Schuylkill County Clerk petitions for cert. and that is granted, this case is over. Puerto 1st Conde-Vidal v. B Lambda Legal; Filed 3/25/14 on behalf of same-sex couple married out of state. Rico Rius- Ada Mercedes Amended complaint filed 6/25/14, adding additional plaintiffs and Armendariz* Conde-Vidal; defendants. Defendants filed a motion to dismiss on 8/27/14. Capellanes Law Offices of Internacionales Cristianos Leon de Juda, Inc. filed a motion to intervene Celina Romany; on 8/28/14. On 9/15/14, plaintiffs filed their opposition to the motion to Debevoise & dismiss and a motion for summary judgment. Opposition to the Plimpton LLP; summary judgment motion was filed on 10/2/14, and a reply was filed Wilmer Cutler on 10/14/14. On 9/29/14, defendants filed a motion requesting an order Pickering Hale and to deny or hold in abeyance plaintiffs' motion for summary judgment. Dorr LLP Plaintiffs' responsed on 10/15/14. On 10/21/14, the district court issued an opinion and order granting defendants’ motion to dismiss, based on the Supreme Court’s 1972 decision in Baker v. Nelson dismissing the appeal in that case for want of a substantial federal question. On 10/28/14, plaintiffs filed their notice of appeal. Tennessee 6th Tanco v. R NCLR; Rubenfeld Filed 10/21/13. Plaintiffs filed a motion for a preliminary injunction on Haslam* Law Office; 11/19/13. On 3/14/14, the court granted a preliminary injunction that the Holland & state must recognize the named plaintiffs’ marriages pending resolution Associates, PLLC; of the case. On 3/19/14, the state filed its notice of appeal and filed a Sherrard & Roe, motion with the district court for a stay pending appeal, which was PLC; Regina M. denied on 3/20/14. Defendants filed a motion to stay pending appeal Lambert with 6th Circuit on 3/25/14. Opposition was filed 4/4/14. The stay was granted 4/25/14. Appellants’ opening brief was filed 5/7/14. A corrected brief of appellees was filed 6/10/14. Appellants’ reply brief was filed 6/26/14. Oral argument was held 8/6/14. Awaiting decision. Texas 5th DeLeon v. Perry* B Akin Gump Strauss The court granted plaintiffs’ motion for preliminary injunction barring Hauer & Feld LLP enforcement of the state’s ban on same-sex couples marrying or recognition of their out-of-state marriages on 2/26/14, but stayed the injunction pending appeal. The state appealed. On 3/7/14, the district court case also was stayed pending appeal. On 4/14/14, the plaintiffs filed an opposed motion to expedite the appeal, which was denied on 5/21/14. Appellant’s opening brief was filed on 7/28/14. Appellees’ brief was filed on 9/9/14 and Appellant’s reply brief was filed on 10/13/14. On 10/6/14, Appellees filed an opposed motion to expedite oral argument. On 10/7/14, that motion was granted. On 10/10/14, the appellants filed their reply brief. Argument is scheduled for the week of 11
1/5/2015.
FEDERAL DISTRICT COURTS
Aside from possible motions for attorneys’ fees, the Arizona Connolly v. Roche and Majors v. Jeane cases have now concluded, with the court having granted the plaintiffs’ motions for summary judgment and the state having announced that it would not appeal, making it possible for same-sex couples to marry in the state and have their out-of-state marriages recognized. In addition, the Pennsylvania Palladino v. Corbett case has now been voluntarily dismissed based on the ruling in the Whitewood v. Wolf case. The Connolly, Majors, and Palladino cases therefore are no longer listed below.
STATE CIRCUIT CASE NAME NATURE COUNSEL STATUS OF CLAIMS Alabama 11th Hard v. Bentley* R Southern Poverty Law Filed 12/16/13, but not announced until 1/13/14. Case seeks Center recognition of marriage on behalf of widower whose husband was killed in car accident, including for purposes of recovery of proceeds of pending wrongful death lawsuit. On 3/20/14, mother of decedent (represented by anti-gay group) sought to intervene, which widower filed non-opposition to on 3/24/14. Intervention was granted on 3/31/14. Complaint was voluntarily dismissed against only defendant Reed on 4/11/14. Answer by Intervenor- Defendant was filed 4/21/14. On 7/24/14, defendant Gov. Bentley filed a motion to dismiss the claims against him. On 8/4/14, plaintiffs filed their opposition to the motion to dismiss. Plaintiffs moved for summary judgment on 8/29/14; defendants filed their motions for summary judgment and opposition to plaintiff’s motion for summary judgment on 10/1/14. Plaintiff responded to defendant’s motion for summary judgment on 10/13/14, and filed his reply on 10/21/14. Defendants’ surreply was filed 10/29/14. Alabama 11th Searcy v. M/A Christine Cassie Filed 5/7/14. A couple married in California in 2008 and their Strange* Hernandex, The minor child filed suit claiming violations of the equal protection (formerly Searcy Hernandez Firm, LLC; and due process clauses of the 14th Amendment and the Full Faith v. Bentley) David Kennedy, The and Credit Clause of the U.S. Constitution. The non-biological Kennedy Law Firm mother wanted to use Alabama’s step-parent adoption statutes to adopt the child, but the Alabama statute only allows spouses to
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adopt. Defendants have filed several motions to dismiss. On 6/12/14, plaintiffs filed a motion for summary judgment, but on 6/13/14 the judge ordered that it was premature and that the court would address that motion after the motions to dismiss have been adjudicated. On 6/24/14, plaintiffs filed their response to the motion to dismiss and defendants filed their reply on 6/27/14. The Magistrate’s report and recommendations was filed on 7/30/14, suggesting the case proceed solely against Attorney General Strange in his official capacity. The court so ordered, dismissing claims against other defendants on 8/28/14. Defendants filed their motion for summary judgment and opposition to plaintiffs' motion for summary judgment on 10/17/14. Plaintiffs’ reply brief was filed 10/31/14. Defendants’ surreply is due 11/14/14. Alabama 11th Aaron-Brush v. R ACLU; The Crew Law Filed on 6/10/14 by a same-sex couple seeking recognition of their Bentley* Firm; Baxley, Dillard, marriage validly entered out-of-state. Defendants filed a motion to McKnight & James; dismiss on 7/14/14 and their answer on 7/15/14. Plaintiffs’ Copeland, Franco, response to the motion to dismiss Gov. Bentley was filed on Screws & Gill, P.A.; and 7/24/14 and defendants’ reply was filed on 7/28/14. The 9/15/14 Edward Still Law Firm scheduling order set these dates: Mediation in 2/2015; discovery LLC due by 2/4/15; dispositive motions due by 4/6/15; pretrial conference ready in 8/15; this case will be trial ready in 9/15. On 9/22/14 the joint motion to dismiss defendant Bentley was granted. Arkansas 8th Jernigan v. B Wagoner Law Firm, Filed 7/15/13. Defendants answered and filed a motion to dismiss Crane* P.A. the plaintiffs’ comity claim 11/21/13. An amended complaint was filed 1/17/14. Defendants filed a motion to dismiss 1/31/14. Plaintiffs’ response was filed 2/14/14. Plaintiffs filed a motion for summary judgment on 7/16/14 and their memorandum in support on 7/17/14. On 7/30/14, defendants Hopkins, McDaniel, and Weiss filed their response to plaintiffs’ motion for summary judgment. On 8/6/14, defendants Hopkins, McDaniel, and Weiss filed a motion to stay. On 8/13/14, plaintiffs filed a response opposing the motion to stay. The stay was denied as moot on 10/17/14. A hearing on the motions to dismiss and for summary judgment is set for 11/20/14. Georgia 11th Inniss v. B Lambda Legal; Bryan Filed 4/22/14 as a putative class action on behalf of all unmarried Aderhold* Cave LLP; White & same-sex Georgia couples and all Georgia residents who have Case LLP married same-sex spouses. Defendants’ responses were filed on 7/21/14, including a motion to dismiss by defendant Aderhold. 13
Plaintiffs’ response to Aderhold’s motion was due 9/5/14, but, on 8/1/14, the court granted plaintiffs’ motion to amend their complaint to add two additional plaintiffs and an additional defendant. Plaintiffs filed their amended complaint on 8/4/14. On 8/8/14, the court granted defendants’ unopposed motion to stay further proceedings until the court rules on the motion to dismiss. On 8/18/14, defendants filed their further motion to dismiss. On 9/5/14, Plaintiffs filed their opposition to defendant’s motion to dismiss. Defendants filed their reply on 10/22/14. Idaho 9th Taylor v. R NCLR; Law Offices of Filed 7/7/14. Seeks recognition of marriage same-sex couple Brasuell* Deborah A. Ferguson, entered in California for purposes of joint burial in state-run PLLS; Durham Law veteran’s cemetery of ashes of veteran plaintiff’s late wife with Office, PLLC plaintiff’s ashes, when she dies. Status conference held 9/10/14. Amended complaint, dropping damages claim, filed 9/11/14. As a result of the 9th Circuit’s ruling on 10/7/14 that Idaho’s marriage ban is unconstitutional, Idaho state officials have agreed to the plaintiff’s request, which will moot this case. Indiana 7th Love v. Pence* R Clay Daniel Walton & Filed 3/7/14 by same (Kentucky) counsel handling Bourke v. Adams PLC; Fauver Beshear and Love v. Beshear. Motion for preliminary and Law Office PLLC permanent injunction filed 3/31/14. On 4/4/14, the Governor filed a motion to dismiss. On 4/14/14, plaintiffs filed a motion for summary judgment and immediate injunctive relief. On 4/25/14, defendant filed a response in opposition to plaintiffs’ motion for a preliminary and permanent injunction. On 4/25/14, plaintiffs responded. Replies by both plaintiffs and defendants were filed on 5/8/14. On 6/25/14, this case was dismissed on the ground that the Governor was not a proper defendant. On 7/22/14, plaintiffs filed a motion for reconsideration of the order dismissing the case. On 8/8/14, defendant filed a response in opposition to reconsideration. On 8/21/14, plaintiffs filed a reply in support of their motion for reconsideration. On 9/16/14, the court reinstated the married plaintiffs' claims and granted plaintiffs' motion to reconsider and vacated its prior entry of final judgment in favor of defendant. On 10/6/14, the Supreme Court denied the petitions for certiorari from the Bogan v.Baskin, Dept. of Revenue v. Fujii, and Pence v. Lee, and Walker v. Wolf cases, letting stand the 7th Circuit’s decision finding the Indiana’s marriage bans unconstitutional. On 10/10/14, plaintiffs filed a motion for summary judgment,and on 10/15/14 14
plaintiffs filed a memorandum in support of that motion. Indiana 7th Romero v. Brown R Quarles & Brady Filed 9/8/14 on behalf of an Indiana lesbian couple who married in Illinois. They are seeking recognition of their marriage, as one of the women is gravely ill. The defendants agreed not to enforce the state’s marriage ban as to the couple and to recognize their marriage, including on a death certificate. As a result, the court on 9/11/14 stayed the proceedings pending the resolution of Baskin. On 10/6/14, the Supreme Court denied the petitions for certiorari from the Bogan v.Baskin, Dept. of Revenue v. Fujii, and Pence v. Lee, letting stand the 7th Circuit’s decision finding Indiana’s marriage bans unconstitutional, which may moot this case. Kansas 10th Marie v. Moser* M ACLU; Denton US LLP Filed 10/10/14. Seeks to have 10th Cir. rulings in Kitchen v. Herbert and Bishop v. Smith that denying same-sex couples access to marriage is unconstitutional applied to Kansas, which is also in the 10th Cir. On 10/13/14, plaintiffs filed a motion for a preliminary injunction and temporary restraining order. On 10/22/14, a heterosexual married couple filed a motion to intervene, claiming that allowing same-sex couples to marry would harm them and deprive them of property interests in their marriage. That motion was denied on 10/24/14. On 10/23/14, defendants filed separate oppositions to plaintiffs’ motion for a preliminary injunction. Plaintiffs filed their reply on 10/27/14. A hearing was held on 10/31/14 on plaintiffs' motion for preliminary injunction and temporary restraining order , at which time the motion was taken under submission. Michigan 6th Caspar v. I-S R ACLU; Sachs Waldman Filed 4/14/14. Seeks recognition by the state of marriages entered Snyder* PC; Julian Davis by same-sex couples prior to the issuance of the stay in DeBoer v. Mortenson Snyder. Plaintiffs filed a motion for preliminary injunction on 5/29/14. On 6/5/14, defendants filed a motion to stay and a motion to dismiss. On 6/19/14, defendants filed their response to the motion for a preliminary injunction. On 6/30/14, plaintiffs filed their response to defendants’ motion to hold the case in abeyance and to defendants’ motion to dismiss. On 7/1/14, defendants filed a motion to consolidate. Plaintiffs filed a reply in support of their preliminary injunction motion on 7/7/14. Defendants’ reply to plaintiffs’ response to their motions to dismiss and to hold the case in abeyance were filed on 7/14/14. On 7/18/14, plaintiffs filed a response to the motion to consolidate. On 7/25/14 defendants filed 15
a reply to the plaintiffs’ response. A hearing was held on 8/21/14 on the motions to consolidate, for preliminary injunction, to dismiss and to stay, but has not yet been ruled on. Michigan 6th Blankenship v. R Law Offices of Gregory Filed on 6/5/14. Seeks recognition of a same-sex couple’s out-of- Snyder* T. Gibbs state marriage. Defendants filed a motion to stay and a motion to dismiss on 7/24/14. Plaintiffs filed an opposition to the stay motion on 8/14/14. Defendants’ reply regarding the motion to stay was filed 8/28/14. On 9/11/14, defendants filed their reply regarding the response to the motion to dismiss. Michigan 6th Morgan v. R Rhoades McKee PC Filed 6/11/14. Seeks recognition of a same-sex couple’s out-of-state Snyder* marriage. On 7/14/14, Defendant filed a motion for a stay and a motion dismiss for failure to state a claim. On 8/11/14 the court ordered a stay pending the decision in the 6th Circuit marriage cases. Mississippi 5th Campaign for B Paul, Weiss, Rifkin, Filed on 10/20/14 on behalf of the statewide LGBT equality Southern Wharton and Garrison organization and two couples, one seeking the freedom to marry Equality v. LLP; McDuff and Byrd; and the other seeking recognition of an out-of-state marriage. Bryant Walton Law Office; Plaintiffs also filed a motion for preliminary injunction on Silin & Ellis 10/20/14. Defendants’ response is due 11/10/14; plaintiffs’ reply isdue 11/11/14; and a hearing is set for 11/12/14. Missouri 8th Lawson v. Kelly* M ACLU Filed on 6/24/14 in state court by two same-sex couples seeking to (includes marry. Jackson County announced that it will not defend the ban. federal An unopposed motion by the State of Missouri to intervene was claims) granted on 7/11/14. Discovery is underway. On 7/15/14 this case was removed from state court to the U.S. District Court. The state defendants’ answer to the complaint was filed on 7/15/14, and defendant Kelly’s answer was filed on 7/22/14. The defendants filed a motion for judgment on the pleadings on 8/5/12. On 8/12/14, plaintiffs filed a motion for remand to the state court. Defendants filed their opposition to that motion on 8/28/14. Plaintiffs’ response to Intervenor's motion for judgment on the pleadings was filed on 9/5/14. Plaintiffs filed their motion for summary judgment on 9/5/14 and filed their motion for a permanent injunction on 9/15/14. On 9/17/14, the Missouri Family Policy Council filed their opposition to the motion. On 9/19/14 the State of Missouri filed their reply. Reply suggestions to response to the pposition to the motion for judgment on the pleadings were filed on 9/19/2014. .On 10/10/14, the court issued an order stating 16
that the Missouri Family Council is to be considered an amicus in this case. Missouri filed its suggestions in opposition/response to plaintiffs' motion for summary judgment on 10/21/14. On 10/22/14, Plaintiffs filed their reply to the intervenor’s suggestions in opposition to plaintiffs’ motion for summary judgment. Reply suggestions to suggestions in opposition to the motion for summary judgment are due 11/7/14. Montana 9th Rolando v. Fox* B ACLU; Goetz, Gallik & Filed 5/21/14 on behalf of four same-sex couples, some seeking the Baldwin, P.C.; Morrison freedom to marry and some seeking recognition of their out-of-state & Foerster LLP marriages. Montana’s Governor announced that he will not defend, although the state Attorney General is doing so. Defendants’ answer was filed on 7/17/14. Preliminary pretrial statements, a joint discovery plan, and a statement of stipulated facts were filed on 8/13/14. A status conference is set for 6/29/15. Plaintiffs filed a motion for summary judgment on 10/15/14. A hearing has been set for 11/20/14. North 4th Fisher-Borne v. B/A ACLU; Sullivan & This was a second-parent adoption case, but it was amended post Carolina Smith Cromwell LLP; Ellis & Windsor to raise marriage claims. Defendants’ motion to dismiss Winters LLP was fully briefed as of 11/14/13. Plaintiffs filed a motion for preliminary injunction on 4/9/14. Defendants’ response was filed 4/28/14. Briefing was ordered to address whether consideration of the motion should be stayed pending the 4th Circuit’s decision in Bostic v. Schaefer. Defendants filed a motion to stay proceedings on 4/11/14. Plaintiffs filed a consolidated brief in support of their motion for preliminary injunction and in opposition to defendants’ motion for a stay on 5/5/14. Defendants’ reply was filed 5/22/14. On 6/2/14, Magistrate Judge Peake recommended that the stay be granted pending the Fourth Circuit's decision in Bostic. Plaintiffs filed their objections to the magistrate’s ruling on 6/13/14. Defendants filed their responses to plaintiffs’ objections on 6/30/14. On 7/10/14, the case was referred to the Chief Judge of the district. On 7/30/14, the judge ordered briefing from the parties on the impact of the Bostic decision on this case. On 8/13/14, the parties filed their briefs in response to the court order. On 8/27/14, the court stayed the proceedings pending termination of the stay that the Supreme Court granted in McQuigg v. Bostic. On 9/10/14, plaintiffs filed a motion for reconsideration of this order; responses were filed 10/6/14. On that date, the Supreme Court denied the 17
petitions for certiorari from the Bostic case, letting stand the 4th Circuit’s decision finding the marriage bans unconstitutional. The district court then filed an order stating that the "Virginia marriage ban declared unconstitutional in Bostic is indistinguishable from the North Carolina prohibitions challenged in this matter." Status reports were filed on 10/7/14 from the parties agreeing that Bostic is binding, the adoption claim should be dismissed as moot, and there should be no discovery or further briefing. On 10/9/14, however, two North Carolina legislators filed a motion to intervene, it was granted on 10/14/14 but only for the purpose of lodging an objection and preserving that objection to the court’s application of Bostic for purposes of a possible effort by the legislators to appeal. On 10/15/14, the court issued an amended order declaring North Carolina’s constitutional amendment and statutes banning marriage for same-sex couples unconstitutional. Same-sex couples can now marry in the state and have their out-of-state marriages recognized by the state. North 4th Gerber v. R ACLU; Sullivan & Filed 4/9/14 on behalf of three same-sex couples married in other Carolina Cooper* Cromwell LLP; Ellis & jurisdictions, one of whom is elderly and the others of whom face Winters LLP medical needs to have their marriages promptly respected. A motion for a preliminary injunction also was filed 4/9/14. Responses were filed 4/28/14. Briefing was ordered to address whether consideration of the motion should be stayed pending the 4th Circuit’s decision in Bostic. Plaintiffs filed their consolidated memorandum of law in support of their motion for preliminary injunction and opposition to defendants’ motion for stay on 5/5/14. Defendants filed their motion to dismiss on 5/6/14. Defendants’ reply brief was filed 5/22/14. Defendant Thigpen answered the complaint on 5/30/14. On 6/2/14, Magistrate Judge Peake recommended that the stay be granted pending the Fourth Circuit's decision in Bostic v. Schaefer. Plaintiffs filed their objections to the magistrate’s ruling on 6/13/14. On 6/16/14, Defendant Catawba County filed their answer and affirmative defenses. Defendants filed their responses to plaintiffs’ objections on 6/30/14. On 7/30/14, the judge ordered briefing from the parties on the impact of the 4th Circuit’s Bostic decision on this case. Briefing in response to the 7/30/14 order was filed by all parties on 8/13/14. On 8/27/14, the court stayed the proceedings pending termination of 18
the stay granted by the Supreme Court in McQuigg v. Bostic. . On 9/10/14, plaintiffs filed a motion for reconsideration of this order; responses were filed 10/6/14. That same day, the Supreme Court denied the petitions for certiorari from the Bostic case, letting stand the 4th Circuit’s decision finding the marriage bans unconstitutional. The district court then filed an order stating that the "Virginia marriage ban declared unconstitutional in Bostic is indistinguishable from the North Carolina prohibitions challenged in this matter. See discussion of Fisher-Borne for further information. North 4th General Synod of M Arnold & Porter LLC; Filed 4/28/14. Includes free exercise of religion and expressive Carolina the United Tin Fulton Walker & association claims on behalf of church and clergy plaintiffs, as well Church of Christ Owen as due process and equal protection claims on behalf of same-sex v. Cooper* couple plaintiffs. Plaintiffs simultaneously filed a motion or a preliminary injunction. On 5/27/14, Defendants filed a motion to stay pending the 4th Circuit’s decision in Bostic v. Schaefer. On 6/3/14, plaintiffs filed an amended complaint. On 6/10/14, defendants filed responses to the motion for a preliminary injunction. On 6/13/14, plaintiffs filed an opposition to the motion for a stay. On 6/20/14, plaintiffs filed their reply brief on their motion for a preliminary injunction. On 6/24/24, defendants filed their reply in support of their motion for a stay. On 7/1/14, plaintiffs filed a request for oral argument of the preliminary injunction and stay motions. On 7/18/14, defendants filed a response in opposition to the motion for oral argument. On 8/12/14, the court stayed this case. On 8/25/14, the court issued a further order staying the proceedings pending the Supreme Court’s disposition of the cert. petition in Bostic. On 9/8/14, plaintiffs filed a motion to lift the stay. On 9/24/14 and 9/26/14, defendants filed responses to this motion; replies to these responses were filed 10/6/14. On 10/10/14, the court granted plaintiffs’ motion, ruling that North Carolina’s ban on marriage by same-sex couples is unconstitutional, and enjoining its enforcement. Same-sex couples may now marry in the state, and it appears that the defendants may not appeal. North 4th McCrory v. North B Pro se Filed 3/10/14, to obtain recognition of plaintiffs’ out-of-state Carolina Carolina* marriage, but complaint also seeks to broadly challenge both the NC amendment and NC statute that ban marriage between same- 19
sex couples. Defendants’ answer was due 6/10/14, but on 5/19/14 the case was ordered stayed pending the 4th Circuit’s decision in Bostic v. Schaefer. On 8/15/14, plaintiffs filed a motion to lift the stay and to grant summary judgment in their favor in light of the decision in Bostic. On 8/25/14, the court denied that motion and again stayed the case pending the Supreme Court’s disposition of Bostic. On 10/10/14, the Court dismissed this action as moot on the ground that the relief sought had already been granted in General Synod case. North 8th Jorgensen v. R Lambda Legal; John P. Complaint filed 6/9/14, seeking recognition of plaintiffs’ out-of- Dakota Montplaisir* Borger; state marriage. Plaintiffs filed a motion for summary judgment on Faegre Baker Daniels 6/17/14. On 7/2/14, the state filed a motion to dismiss. LLP Defendants’ responses to the motion for summary judgment and plaintiffs’ response to the motion to dismiss were filed on 8/22/14. On 9/4/14, replies to the responses were filed by defendants and, on 9/5/14, plaintiffs filed their reply to the response to their motion for summary judgment. North 8th Ramsay v. B NCLR; Joshua A. Filed 6/6/14. Seven plaintiff couples seek the right to marry and Dakota Dalrymple* Newville; Thomas D. recognition of out of state marriages. One couple resides outside of Fiebiger the state of North Dakota, but one member of the couple works for the state. NCLR subsequently joined the case as co-counsel. On 7/1/14, the state filed a motion to dismiss, joined by the clerk on 7/2/14. On 7/22/14, Plaintiffs filed their combined opposition to defendants’ motion for summary judgment and in support of their motion for summary judgment. Defendants’ response to the motion for summary judgment was filed on 8/22/14. Plaintiffs filed their reply on 9/5/14. Ohio 6th Gibson v. Himes* M Gerhardstein & Branch On 4/30/14, six same-sex couples filed a freedom to marry claim, Co. LPA citing violations of the freedom of association and due process and equal protection clauses. Defendant Cissel answered the complaint on 5/19/14. Defendant Himes answered on 5/21/14. On 6/19/14, plaintiffs filed a motion for declaratory judgment and permanent injunctive relief. Defendants' response was due 8/14/14 and plaintiffs' reply was due 8/28/14, but, on 8/4/14, the court issued an order staying the case and providing plaintiffs 2 weeks following the decision by the 6th Circuit in the DeBoer and Love appeals to supplement their motion. South 4th Bradacs v. R Warner, Payne & Black, Marriage recognition case filed 8/28/13. The State defendants 20
Carolina Haley* LLP; Bluestein, Nichols, answered on 11/14/13. An amended complaint was filed 1/23/14. Thompson & Delgado, Cross-motions for summary judgment were due 4/14/14. On LLC; Family Law 4/3/14, however, defendants filed a motion to stay pending Consulting resolution of the 4th Circuit appeal in Bostic v. Schaefer, which was granted 4/22/14. On that date, defendants also filed a motion to have the now-passed deadline for summary judgment motions held in abeyance until after Bostic is decided. On 4/23/14, the court issued an order staying all case deadlines. On 10/6/14, the Supreme Court denied the petitions for certiorari from the Bostic case, letting stand the 4th Circuit’s decision finding Virginia’s marriage bans unconstitutional. On 10/7/14 the court lifted the stay in this case. On 10/20/14, the plaintiffs filed a motion for summary judgment. On 10/23/14, defendants filed a motion for judgment on the pleadings. Several probate judges issued orders after the Supreme Court’s ruling in Bostic allowing same-sex couples to marry. On 10/9/14, the South Carolina Supreme Court ordered them to cease until the ruling in this case is issued. On 10/28/14, defendants filed their response to plaintiffs’ motion for summary judgment. Plaintiffs’ reply to the response is due 11/7/14. South 4th Condon v. M Lambda Legal; Callison Filed on 10/15/14 on behalf of a lesbian couple seeking the right to Carolina Haley* Tighe and Robinson; marry. Plaintiffs filed motions for a preliminary injunction and for Nexsen Pruet Jacobs and summary judgment on 10/22/14. A status conference was held Pollard on10/24/14. Responses to the motion for preliminary injunction are due 11/3/14; an optional reply is due 11/5/14. South 4th McEldowney v. R Andrew S. Radeker Filed on 10/24/14 on behalf of a lesbian seeking the recognition of Carolina South Carolinla Harrison & Radeker, her out-of-state marriage by the state and its agencies, including the Dept. of Motor P.A. ability to change her name on her drivers license now that she has Vehicles* adopted her wife’s name. South 4th Haas v. South R ACLU of South Filed on 10/31/14 on behalf of three same-sex couples who have Carolina Carolina Dept. of Carolina; Nexsen Pruet, been refused South Carolina driver’s licenses that reflect their Motor Vehicles* LLC; Callison Tighe and married names. Robinson South 8th Rosenbrahn v. B NCLR; Joshua Filed on 5/22/14 on behalf of four same-sex couples, seeking the Dakota Daugaard* Newville; Burd & Voigt freedom to marry and recognition of marriages entered by same-sex Law Office outside the state. Defendants filed a motion to dismiss on 6/17/14. On 7/3/14, plaintiffs filed a motion for summary judgment. On 7/7/14, NCLR joined the case as co-counsel for plaintiffs. On 7/14/14, defendants filed their reply to plaintiffs’ response to 21
defendants’ motion to dismiss. A hearing on the motion to dismiss was held 10/17/14. Texas 5th Zahrn v. Perry* B Bell Nunnally & Martin, Filed 10/31/13 as a putative class action. Defendants answered LLP; James J. Scheske 11/21/13. The case was then ordered consolidated with McNosky v. PLLC; Jorgeson Pittman Perry, below. A motion for class certification was filed 2/28/14. LLP On 3/12/14, the state filed an opposed motion to stay pending the 5th Circuit’s decision in DeLeon v. Perry. The motion to certify a class was dismissed and the case was ordered stayed on 9/10/14. Texas 5th McNosky v. M In Pro Per Filed 10/9/13 by two men, raising only a sex discrimination claim. Perry* A motion for a preliminary injunction and temporary restraining order was 11/14/13. The state defendants’ opposition was due 12/27/13. The case was then ordered consolidated with Zahrn v. Perry, above. On 3/12/14, the state filed what it captioned an unopposed motion to stay pending the 5th Circuit’s decision in DeLeon v. Perry but, on 3/22/14, plaintiffs filed an opposition to the stay. The case was ordered stayed on 9/10/14. Texas 5th Nuckols v. Perry* M In Pro Per Filed 1/9/14. Defendants filed a motion to dismiss 2/13/14, which was held moot due to plaintiffs’ filing of a motion for leave to file an amended complaint, which was granted 4/9/14. On that date, the court also granted a joint motion to stay pending the 5th Circuit’s decision in DeLeon v. Perry. Nontheless, the plaintiff filed an amended complaint on 4/15/14 and defendant Rosen has filed a further motion to dismiss. On 5/28/14, defendants filed a consent to proceed before a magistrate judge. Texas 5th Freeman v. R Lambda Legal Filed 12/26/13, to maintain recognition of out-of-state marriages of Parker* same-sex couples for purposes of Houston city employee spousal benefits, in response to Pidgeon v. Parker, listed in state cases below. On 8/29/14, plaintiffs filed an unopposed motion for a preliminary injunction to keep the benefits in place pending resolution of the case, which the court granted. The court also stayed the proceedings pending resolution of the constitutionality of the Texas marriage ban in DeLeon v. Perry. Virginia 4th Harris v. Rainey* B Lambda Legal; ACLU; Filed 8/1/13. Motions to dismiss clerk denied, and Governor (was v. Jenner & Block LLP dismissed as defendant 12/23/13. Motion for class certification was McDonnell) granted 1/31/14. Plaintiffs filed a motion for summary judgment on 9/30/13, which was fully briefed. Clerk defendant Roberts answered 1/23/14, taking no position on constitutionality of state marriage law. The state Attorney General filed an amended answer 22
and notice of switch in position on 1/27/14. The case stayed 3/31/14 pending the 4th Circuit’s ruling in Bostic v. Schaefer, above. On 10/6/14, the Supreme Court denied the petitions for certiorari from the Bostic case, letting stand the 4th Circuit’s decision finding the marriage bans unconstitutional. On 10/16/14 plaintiffs filed a motion to lift the stay and enter judgment in their favor. On 10/29/14, clerk defendant Roberts filed a motion to dismiss and opposition to plaintiffs’ motion and state defendant Rainey also filed a motion to dismiss for lack of jurisdiction as moot. Plaintiffs’ responses are due 11/5/14. West 4th McGee v. Cole* M Lambda Legal; Jenner & Filed 10/1/13. The clerk defendant filed amotion to dismiss on Virginia Block LLP; The Tinney abstention grounds on 11/26/13. A motion by the State to Law Firm PLLC intervene was granted on 12/2/13. Plaintiffs moved for summary judgment on12/23/13. The court issued an order on 1/29/14 denying the motion to dismiss the freedom to marry claims, but dismissing the recognition claims with leave to amend, and asking for briefing on effect of decision on non-named clerks, which was submitted on 2/12/14. The State defendants filed amotion to dismiss and the plaintiffs filed their opposition to that motion on 3/3/14. The defendants filed their opposition to plaintiffs’ summary judgment motion on 3/14/14. On 6/10/14, the case was stayed pending a decision in Bostic v. Schaefer. On 7/29/14,the defendants filed a motion to continue the stay. On 7/30/14, the plaintiffs filed a response in opposition to that motion and a cross- motion to lift the stay and enter judgment. On 7/30/14, the defendants filed a response opposing lifting the stay and entry of judgment. On 10/6/14, the Supreme Court denied the petitions for certiorari from the Bostic case, letting stand the 4th Circuit’s decision finding Virginia’s marriage bans unconstitutional. On 10/6/14, the plaintiffs filed a new motion to lift the stay and enter judgment. Defendants filed responses in opposition to plaintiffs’ motion and, on 10/23/14, the plaintiffs filed their reply. On 10/9/14, the West Virginia Attorney General announced that defendants would no longer be defending the state’s marriage bans, and same-sex couples became able to marry in the state. Wisconsin 7th Bloechl-Karlsen, I-S R ACLU; Mayer Brown Filed on 9/17/14. The case seeks recognition of the marriages v. Walker LLP entered into in Wisconsin by same-sex couples between June 6 and June 13, 2014, during the one-week period after the court declared 23
the marriage ban unconstitutional, but before the court stayed the judgment pending appeal of Wolf v. Walker. On 10/6/14, the Supreme Court denied the petitions for certiorari from the Walker v. Wolf case, letting stand the 7th Circuit’s decision finding the Wisconsin marriage bans unconstitutional. On 10/13/14, the State announced that it would be recognizing the marriages entered between June 6 and June 13, 2014, which may make this appeal moot. Wyoming 10th Guzzo v. Meade* M NCLR; Tracy Zubrod; Plaintiffs filed suit seeking the freedom to marry on behalf of four Arnold & Porter LLP, same-sex couples and Wyoming Equality on 10/7/14. Plaintiffs Rathod Mohamedbahi filed a motion for a preliminary injunction and temporary LLC restraining order on 10/8/14, seeking to have the 10th Circuit’s rulings in Kitchen v. Herbert and Bishop v. Smith applied to Wyoming, which is in the 10th Circuit and governed by its rulings. Defendants filed a response on 10/13/14. Plaintiffs filed a reply on 10/15/14 and a hearing was held on 10/16/14. The Court granted the preliminary injunction and temporary stay on 10/17/14. The state gave notice that it will not appeal and the Court ordered the stay lifted on 10/21/14 and enjoined the defendants from enforcing the marriage ban, making it possible for same-sex couples to marry in the state. On 10/24/14 the Laramie County Clerk filed an answer. On 10/31/14, the state defendants filed an answer.
Marriage equality currently exists in all states within the First, Second, and Third Circuits (although not in Puerto Rico or the Virgin Islands), as well as in the District of Columbia, within the D.C. Circuit. Marriage equality cases are now pending in or have been decided by all Circuits in which the freedom to marry does not yet exist in all states in the circuit.
IN STATE COURTS
The state litigation in Colorado has now concluded, based on the federal 10th Circuit’s rulings in the Utah and Oklahoma marriage cases becoming final. The Brinkman v. Long, McDonald-Miccio v. Colorado, and People of the State of Colorado ex rel. Sthers v. Hall cases are therefore no longer listed below. In
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addition, the court in the Missouri Barrier v. Vasterling case granted judgment in plaintiffs’ favor requiring recognition of marriages entered out-of-state by same- sex couples, which the state has agreed to comply with, so that case therefore also is no longer listed below.
STATE COURT CASE NAME NATURE COUNSEL STATUS LEVEL OF CASE Arkansas Supreme Wright v. B Wagoner Law Filed 7/3/13. Both defendants’ motion to dismiss and plaintiffs’ motion for Arkansas* (includes Firm, P.A.; Cheryl preliminary injunction were denied. The State then filed an answer to federal K. Maples plaintiffs’ 3rd amended complaint. Cross-motions for summary judgment claims) were filed 2/26/14, responded to 3/19/14, and replied to 4/2/14. A hearing was held 4/17/14. The court issued a ruling 5/9/14, holding that the state’s constitutional amendment and statutory bans on same-sex couples marrying or having their out-of-state marriages recognized violated federal guarantees of equal protection and due process. The State appealed and requested a stay from the trial court pending appeal, which was denied. On 5/16/14 the Arkansas Supreme Court ordered a stay of the trial court decision. The state defendant appellants’ opening brief was filed on 9/15/14. The appellees’ brief was filed 10/15/14. The state filed a motion for with the state Supreme Court for a stay on 8/6/14. On 8/15/14, appellees filed a response to the motion for a stay. On 10/7/14 Appellees filed their merits brief on appeal. The stay was denied on 10/9/14. Appellants’ reply brief was filed on 10/17/14. Oral argument has been scheduled for 11/20/14. Florida Appeal Pareto v. M NCLR; Carlton Filed 1/21/14. Motion for summary judgment and memo in support filed Ruvin* (includes Fields Jorden 5/1/14. Liberty Counsel filed motion to intervene on 2/25/14, which was federal Burt, P.A.; denied on 4/28/14. Florida Family Action, Inc., Florida Democratic League, claims) Elizabeth F. Inc., and People United to Lead the Struggle for Equality, Inc. (PULSE) Schwartz, P.A.; also filed motions to intervene as defendants, and those motions were Mary Meeks, P.A. denied on 6/3/14. Summary judgment motion was argued 7/2/14. On 7/25/14, the court granted plaintiffs’ motion for summary judgment and held Florida’s ban on same-sex couples marrying unconstitutional. The case was appealed on 7/28/14. Plaintiffs and the plaintiffs in Huntsman v. Heavlin, below, filed motions to have the two cases consolidated. Defendants moved to stay briefing. On 8/20/14, plaintiffs filed their opposition to the stay motion and requested that the case be certified for direct review by the Florida Supreme Court. On 8/28/14, the court consolidated the Pareto and Huntsman cases, denied the stay motion, and 25
carried the certification request for subsequent decision. On 10/13/14, Defendants filed a supplemental brief requesting certification in light of the U.S. Supreme Court’s denial of cert. from the 4th, 7th, and 10th Circuit appeals. Defendant’s initial brief is due 11/17/14. Florida Appeal Huntsman v. M Restivio, Reilly & Filed 4/1/14 by same-sex couple in Key West. Amended complaint, notice Heavilin* (includes Vigil-Farinas of constitutional question, answer and affirmative defenses, and reply to federal answer and affirmative defenses all have been filed. Motion for summary claims) judgment filed 5/20/14; argued 7/7/14. On 7/17/14, the court granted plaintiffs’ motion for summary judgment on 7/17/14 and ordered the Key West Clerk to allow same-sex couples to marry beginning 7/22/14. Defendants have appealed, which stayed the trial court’s order automatically. On 7/23/14, plaintiffs filed a motion to vacate the stay. On 7/28/14, plaintiffs requested the Florida Appeals Court exercise “pass through” jurisdiction and allow this case to proceed directly to the Florida Supreme Court. Plaintiffs and the plaintiffs in Pareto v. Ruvin, above, have filed motions to have the two cases consolidated. On 8/21/14, Appellees replied to the response of Appellants regarding certification to the Florida Supreme Court and responded to the motion to stay briefing. On 8/28/14 the motion to stay was denied and this case was consolidated with Pareto. See entries for Pareto for status since 8/28/14. Florida Appeal Shaw v. D The Ware Law Petition for dissolution by married same-sex couple filed 3/17/14. Shaw* (includes Group; Brett Argument was heard 4/22/14. On 5/9/14, the judge issued a decision federal Rahall, P.A. refusing to grant the dissolution based on the state’s ban on recognizing claims) marriages of same-sex couples. A notice of appeal to the second district court of appeals was filed on 5/16/14. A notice of cross appeal was filed on 5/28/14. The Florida second district court of appeals certified the case to the Supreme Court of Florida on 8/27/14. On 9/5/14, the Florida Supreme Court declined to take the case. The state attorney general subsequently intervened in the appeal. Appellant's brief was filed 9/22/14 in the second district court of appeals. Appellee’s answer brief was filed on 10/13/14, and Intervenor-Appellee’s answer brief was filed on 10/20/14. Florida Appeal Dousset v. R NCLR; Law Suit filed directly in state intermediate appellate court by gay student Florida (includes Offices of George married in Massachusetts who was denied in-state tuition by Florida state Atlantic federal Castrataro, PA university because of state’s ban on recognition of marriages entered by University* claims) same-sex couples in other jurisdictions. (Florida Administrative Procedures Act provides for direct appeal such as this of final state agency decisions.) Opening appellate brief and notice of constitutional question to the AG filed 5/14/14; Florida Atlantic University must respond by 8/20/14. Oral 26
argument requested, but not scheduled yet. On 8/20/14, Appellees filed their answer. On 9/8/14, Appellants filed their reply brief. On 9/12/14 the State of Florida filed a motion to intervene to defend the state’s marriage ban. Florida Trial Trepanier v. M Wayne LaRue Filed 5/21/14 by same-sex couple who alleged that they are particularly Heavilin* Smith concerned about the impact of not being able to marry upon their children.
Florida Trial In re D Bodzki Jacobs & Divorce case filed by same-sex couple. Broward County judge originally Marriage of (includes Associates, PI; the ruled state marriage ban unconstitutional on 8/4/14, but on 9/9/14, the judge Brassner and federal Carlyle Law Firm vacated that order because proper notice was not given to the state Attorney Lade claims) General of the challenge to a state law. The Florida Attorney General filed a motion to intervene on 9/12/14, arguing that Florida’s marriage ban is constitutional.
Florida Trial Simpson v. R Minerley Fein, Surviving spouse seeking to be appointed personal representative under Bondi* (also (includes P.A. Florida Probate Code (which only allows out-of-state “spouses” to be known as federal appointed) is challenging Florida’s ban on recognizing marriages same-sex Estate of claims) couples entered outside the state. On 5/12/14, an amended petition for Bangor) administration was filed. On 7/15/14, a memorandum of law was filed in support of the amended petition. A hearing on the petition was held 7/15/14. The trial court issued its decision on 8/5/14, holding that Florida’s marriage laws unconstitutionally impair Mr. Bangor’s right to choose a personal representative and that the marriage bans are “unconstitutional as applied in this estate,” but stating that the ruling is “strictly limited to the facts before it.”
Kansas Supreme Kansas v. M Filed by KS AG to Original proceeding filed directly with Kansas Supreme Court on 10/10/14 Moriarty* block marriages by state Attorney General to block further grant of marriage licenses by same-sex pursuant to the order of the Chief Judge of one of the state’s judicial couples districts. That same day, the Kansas Supreme Court granted a temporary stay, ordered a response by 10/21/14, allowed additional briefing by 10/28/14, and scheduled oral argument for 11/6/14. A response to the writ was filed on 10/21/14 by counsel for the Chief Judge of that judicial district and an amicus brief was submitted by All’s Fair Kansas (a marriage equality group) on 10/23/14. Kansas Trial Nelson v. R (for tax Law Office of Filed 12/31/13. Defendant answered on 2/3/14. Kansas filed a motion for Kansas Dept. purposes David J. Brown summary judgment on 5/2/14. Plaintiffs filed their opposition and a cross- 27
of Revenue* only) motion for summary judgment on 7/7/14. Defendant’s response was filed on 7/31/14. Oral argument is set for 11/14/14. Kentucky Trial Kentucky R Harbinger & Filed 9/10/13. Defendants’ motion to hold in abeyance was denied 2/21/14. Equality (includes Associates On 4/10/14, this case was consolidated with Hardee v. Beshear, below. Federation v. federal Plaintiffs and Defendants filed cross-motions for summary judgment on Beshear* claims) 7/2/14. Opposition briefs were filed 8/1/14. Argument was held 8/18/14. Kentucky Trial Hardee v. M O’Hara, Ruberg, Filed 3/20/14. On 4/10/14, this case was consolidated with Kentucky Beshear* (includes Taylor, Sloan & Equality Federation v. Beshear, above. See discuss of that case, which federal Sergent applies equally to this one. claims) Kentucky Trial Romero v. D Louis I. Filed 10/25/13 on behalf of a lesbian couple who married in MA. A Romero* Waterman, PLLC response was filed on 11/15/13. In February 2014, the judge requested and the parties submitted a memorandum of fact and law setting forth the jurisdiction of the Court to address the dissolution of a marriage of a same- sex couple. In April 2014, the parties entered into a property settlement agreement and a motion for a decree of dissolution. The couple’s lawyer has announced that she plans to appeal if the divorce petition is dismissed. Louisiana Appeal In re R/A Paul R. Baier; On 7/26/13, the trial court dismissed a petition for intra-family adoption Costanza and (includes Joshua S. Gillory sought by a same-sex couple married in California. The couple’s opening Brewer* federal brief was filed with intermediate appellate court 9/25/13. A hearing was claims) held 4/30/14, and the appellate court’s decision was rendered on 6/4/14, remanding the case to the trial court to allow the filing of an amended petition. On remand, the trial court was instructed to hear arguments on all issues raised by both the petitioners and the Attorney General. On 9/22/14, the trial court found Louisiana’s marriage ban unconstitutional. On 9/25/14, defendants filed a motion for a suspensive appeal. On 9/26/14, they then filed an application for direct appeal to the state supreme court. Mississippi Appeal Czekala- D Holland Law, P.C. Divorce petition filed 9/11/13. The trial court judge denied the petition for Chatham v. (includes divorce on 12/2/13. An appeal was filed 12/23/13. The State of Melancon* federal Mississippi filed a notice of appearance in the appeal. On 5/23/14, claims) appellant Lauren Beth Czekala-Chatham’s opening brief was filed . Appellee’s response was filed on 8/25/14. Appellant’s reply was filed on 9/29/14. Missouri Supreme In re D Capes, Sokol, Divorce action filed by member of couple married in Iowa. The divorce Marriage of (includes Goodman, & petition was dismissed in the trial court. A direct appeal was filed with the M.S. and federal Sarachan, PC Missouri Supreme Court on 3/13/14. The ACLU of Missouri has filed an D.S.* claims) amicus brief, joined by Lambda Legal and others. Missouri Trial Messer v. R Whitehood Law Challenge to governor’s Executive Order permitting same-sex couples 28
Nixon* Firm, L.L.C. married in other states can file state taxes jointly, filed on1/9/14. An (challenging amended motion/petition was filed on 2/7/14. A motion for a temporary recognition of restraining order and preliminary injunction was filed on 3/26/14. A marriages of hearing was held on 4/3/14, and the motion for a temporary restraining same-sex couples) order was denied on 4/4/14. The state LGBT equalitly group PROMO filed a motion to intervene, which was heard on 6/4/14, and on 6/9/14 the court denied intervention, but left open the possibility of filing an amicus brief. A further hearing was conducted on 8/20/14. Missouri Trial State of M MO AG Chris After the City of St. Louis issued marriage licenses to four same-sex Missouri v. Koster filed this to couples, the state Attorney General filed suit on 6/26/14 to block further Jennifer block further issuance of marriage licenses. Based on the City’s statement that it would Florida* marriages cease issuance of further marriage licenses, the court denied the AG’s motion for a temporary restraining order. On 8/5/14, defendants filed their (formerly motion and suggestions in support of judgment on the pleadings and their State of answer, affirmative defenses, and counterclaims. A status hearing was held Missouri v. on 8/11/14. On 9/9/14, the state filed its opposition to defendants’ motion Carpenter) for judgment on the pleadings. A hearing was held on 9/29/14. On 10/1/14, defendants filed their reply. Nebraska Trial Nichols v. D Domina Law Lesbian couple who married in Iowa in 2009 sought a divorce in Nebraska. Nichols* (includes Group The trial court dismissed their action based on the state’s constitutional federal amendment. They appealed. The ACLU of Nebraska filed an amicus brief claims) in support on 3/27/14. Argument was held on 5/27/14. On 6/13/14, the Nebraska Supreme Court dismissed the appeal for lack of jurisdiction because it was made on a conditional order rather than a final judgment and the case therefore has returned to the trial court. Pennsylvania Appeal Pennsylvania M Counsel for Clerk The trial court ruled on 9/12/13 that the county clerk did not have authority Health Dept. Hanes is to issue marriage licenses before a ruling on the constitutionality of the v. Hanes* Montgomery state’s marriage ban. The clerk appealed on 10/1/13. The appeal is now County Solicitor’s fully briefed. On 5/27/14, the Pennsylvania Supreme Court granted an Office; Rudolf, unopposed motion by the clerk to allow him to resume marrying same-sex Clarke & Kirk, couples in light of the federal Whitewood v. Wolf decision. LLC; Lowey Dannenberg Cohen & Hart, P.C. Pennsylvania Trial Cucinotta v. M Lyman & Ash Filed 9/6/13. Preliminary objections (the equivalent of a motion to dismiss) Pennsylvania (includes have been fully briefed and await scheduling of a hearing. Oral argument * federal before the Court sitting en banc scheduled for 6/18/14 was canceled. On 29
claims) 5/23/14, defendants filed an application to dismiss for mootness as a result of the federal Whitewood v. Wolf decision. Plaintiffs filed their answer to the application on 6/9/14. On 6/20/14, plaintiffs filed their answer to defendants’ application to dismiss for mootness. On 6/20/14, an order was filed, denying the application to dismiss. Pennsylvania Trial In re Estate R Jenner & Palmer, Estate tax case, filed 9/25/13. Oral argument held 4/29/14. of Burgi- (includes P.C.; Leonore F. Rios* federal Carpenter; claims) Alexander & Pelli, LLC South Appeal Swicegood v. D John G. Divorce case involving same-sex couple who allege they were in a common Carolina Thompson* Reckenbeil, LLC law marriage filed 3/13/14. An adverse decision in the case was appealed. The response brief of Intervernor-Attorney General and a motion to dismiss by respondent Thompson have been filed. Tennessee Appeal Borman v. D Mark N. Foster Same-sex couple who married Iowa in 2010 sought a divorce in Tennessee Borman (includes in 2011. The state Attorney General submitted briefing arguing that the federal state’s marriage ban precludes granting the divorce, to which counsel for claims) the petitioner responded. Argued 6/27/14. The trial court issued its decision on 8/5/14, holding that Tennessee’s ban on marriage for same-sex couples does not violate the Equal Protection or the Full Faith and Credit clauses of the U.S. Constitution. Plaintiff appealed on 9/16/14. Texas Supreme J.B. v. Dallas D James J. Scheske; Divorce case in which lower court granted divorce was appealed by state County (includes Jason Stead Attorney General and argued to the state supreme court on 11/5/13. federal Awaiting decision. claims) Texas Supreme Texas v. D Akin Gump Divorce case involving same-sex couple in which lower court granted Naylor (includes Strauss Hauever & divorce was appealed by state Attorney General and argued to the state federal Feld LLP; Law supreme court on 11/5/13. Awaiting decision. claims) Offices of Robert B. Luther, P.C. Texas Trial Pidgeon v. R Woodfell Law Filed 2/17/13. Effort to block provision of spousal health insurance Parker* Firm, P.C.; Texas benefits to city employees married to same-sex spouses out of state. Values; The Olson Removed to federal court 12/27/13. On 8/28/14, the federal district court Firm, PLLC (all remanded the case back to state court and held that the motions of the representing federal Freeman plaintiffs (represented by Lambda Legal) to intervene and taxpayers to consolidate the Freeman case with Pidgeon were therefore moot. challenging recognition of out- 30
of-state marriages) Texas Appeal In the Matter D Judith K. Dissolution case filed 2/18/14 by lesbian couple in Bexar County, Texas of the (includes Wemmert Law who had married in Washington and are having a custody dispute. On Marriage of federal Offices 4/22/14, the trial court ruled that Texas’s bar on marriage for same-sex is A.L.F.L. and claims) unconstitutional, as would be its refusal to recognize the parental K.L.L.* presumption of custody for married same-sex couples. On 4/24/14, the state intermediate court granted an emergency motion by the state Attorney General to stay that ruling while it considers his motion to vacate the ruling. On 5/28/14, the state AG’s petition for writ of mandamus was conditionally granted, vacating the trial court’s opinion on the ground that notice of the constitutional challenge was not given to the Texas AG as required by statute. On 6/16/14 the trial court judge vacated her order. The appeal of that order was pending in the 4th court of appeals; however, on 6/13/14 a motion for involuntary dismissal was filed by the appellees. On 7/23/14, an amended notice of appeal was filed. On 8/11/14, appellants filed a motion for emergency relief, and appellees filed a response. The motion was granted on 8/13/14. On 8/18/14, appellees filed a motion for reconsideration; Appellants responded on 8/20/14. On 9/9/14, Appellees filed a reply in support of their motion for reconsideration. On 9/12/14, the motion was denied. Wyoming Trial Courage v. B NCLR; Arnold & Filed 3/5/14. Plaintiffs filed motion for summary judgment 7/1/14. On Wyoming* (includes Porter LLP; 7/29/14, the judge denied defendants’ request for a stay, but deferred a federal Zabrod Law hearing on the motion for summary judgment for 90 days to give the state claims Office, PC; an opportunity to conduct discovery. On 10/6/14, a joint motion was filed Rathod to lift the stay and enter judgment. Mohamedbhai LLC
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