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February 9, 2016

Windsor Retroactive: Litigant Wins Right to Benefits

The U.S. District Court for the Northern District of California recently issued a ruling in a procedurally and factually complex case that provides that the invalidation of the Defense of Marriage Act in U.S. v. Windsor, 133 S.Ct. 2675, is retroactive, at least in California. The case is Schuett v. FedEx Corp., __ F. Supp. 3d __, 2016 WL 104267 (N.D. Cal. Jan. 4, 2016).

The plaintiff, Stacey Schuett, lived in a committed relationship with her partner Lesly Taboada-Hall for 27 years. They married on June 19, 2013, just a week before the Supreme Court issued the decisions in the Windsor and Hollingsworth v. Perry cases. Ms. Schuett's wife died from cancer the next day. At the time they married, they were not able to obtain a marriage license because California's Proposition 8 was still in effect. Prior to the federal case being filed, however, the California Courts had certified that the marriage occurred and was valid as of June 19, 2013.

Ms. Taboada-Hall was a longtime employee of FedEx and was fully vested in the FedEx pension plan. ERISA requires that pension plans provide that if an employee dies before retiring, the surviving spouse is entitled to an annuity for life. The FedEx pension plan incorporated the federal definition of "spouse," which under DOMA only included a spouse of the opposite sex. Based on the definition of "spouse" in the plan, FedEx rejected Ms. Schuett's request for spousal survivor benefits.

Ms. Schuett brought a number of claims against FedEx, including breach of the terms of the pension plan. The decision at issue is the court's ruling on the motion to dismiss those claims. The court found that FedEx did not breach the terms of the plan based on the claims alleged. However, the court allowed Ms. Schuett claims to proceed on another legal theory: that the pension plan itself violated ERISA and, thus, the plaintiff was entitled to relief under ERISA itself, which provides a cause of action against pension plans that violate ERISA.

To reach this result, the court first had to hold that the invalidation of DOMA was retroactive. The court reasoned that the Windsor case invalidated DOMA retroactively as to the date of its enactment based on the fact that the court had held not only that DOMA was invalid but that the U.S. had to refund with interest the estate taxes that Windsor had paid, and thus because the Windsor court granted retroactive relief it clearly intended for the case to apply retroactively. The court then reasoned that given that DOMA was invalid as of the date of its enactment, the definition of "spouse" in the plan violated ERISA to the extent that the definition of "spouse" only included opposite sex spouses, because without DOMA, ERISA would require survivor benefits to be provided to any legal spouse. Because the plaintiff and Ms. Taboada-Hall were spouses pursuant to California law, to deny a lawful spouse ERISA-required benefits would violate ERISA.


Key Words: solo and small firm, litigation, Windsor, DOMA, retroactive, Prop 8, ERISA


Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



September 4, 2015

The Case of the Kentucky County Clerk

Although the litigation regarding Rowan County Kentucky clerk Kim Davis has generated substantial national media coverage, largely missing is a more detailed description of the legal proceedings, which we attempt to offer here.


The ACLU of Kentucky and a Kentucky law firm filed the case on July 2, 2015, on behalf of a number of plaintiffs after clerk Kim Davis refused to issue marriage licenses in wake of the Obergefell decision. The case has been styled Miller et al. v. Davis et al., 0:15-cv-00044-DLB (E.D. Ky.). At the time of filing, the plaintiffs also moved for a preliminary injunction to compel Ms. Davis to issue the marriage licenses.


The court held a number of hearings and received numerous rounds of briefing during July and early August. Ultimately, the court issued the preliminary injunction on August 12, 2015, and Ms. Davis immediately appealed. Ms. Davis moved to stay the injunction pending appeal. The court refused the motion, but issued a temporary stay in order to allow the Sixth Circuit to address the stay issue. The temporary stay lapsed on August 31, 2015, after the Sixth Circuit denied the motion to stay made at the appellate level. The district court refused to extend its temporary stay pending an appeal to the Supreme Court.


While the litigation over the plaintiffs’ preliminary injunction was ongoing, Ms. Davis filed a third party complaint and a motion for preliminary injunction of her own on August 7, 2015. Her case is against the governor of Kentucky, who has ordered her to issue marriage licenses. The court stayed Ms. Davis’s motion for preliminary injunction pending the appeal of the court’s order granting the plaintiffs’ motion for preliminary injunction. Ms. Davis appealed the order staying her motion for preliminary injunction and then filed another motion for preliminary injunction on September 2, 2015, against the governor, this time asking for a preliminary injunction while the appeals were pending.


In the meantime, Ms. Davis has indicated that she will not abide by the court’s injunction requiring her to issue marriage licenses. Accordingly, on September 1, 2015, the plaintiffs filed a motion asking the court to hold her in contempt and requesting monetary sanctions (as opposed to incarceration) sufficient to compel her to comply with the court’s injunction. The court held a hearing on that motion on September 3, 2015. After hearing witnesses and argument, the court held Ms. Davis in contempt of court and ordered her “remanded to the custody of the United States Marshall pending compliance of the Court’s Order of August 12, 2015, or until such time as the Court vacates the contempt Order.” The court then denied Ms. Davis’s motion to stay enforcement of the court’s contempt order and denied her motion to certify the contempt order for appeal.


Keywords: LGBT, marriage licenses, litigation, Obergefell, Kentucky, same-sex marriage


Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



July 17, 2015

Ninth Circuit Sets Oral Argument in Transgender Prisoner Medical Needs Case

The Ninth Circuit recently set oral argument for August 13, 2015, in the case Norsworthy v. Beard, No. 15-15712. Norsworthy is an expedited appeal of a preliminary injunction order issued on April 2, 2015, from the Northern District of California that orders the California Department of Corrections and Rehabilitations to provide a transgender male to female prisoner with appropriate medical care, including sex reassignment surgery. The district court found that the plaintiff had a likelihood of succeeding on her substantive claim that her constitutional protection against cruel and unusual punishment under the Eighth Amendment would be violated if she was not provided adequate medical care for her serious medical need. The court found specifically that the plaintiff 1) had a serious medical need for sex reassignment surgery, and 2) that the defendants were deliberately indifferent to that need by denying her the surgery.


The Ninth Circuit appeal sets up a potential circuit split between the Ninth and First Circuits. An en banc panel of the First Circuit issued a ruling in 2014 that found that the denial of sex reassignment surgery to the plaintiff in that case did not violate the plaintiff’s Eighth Amendment right to adequate medical care. Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc). The district court in Norsworthy distinguished the case on the facts, holding that in the First Circuit case there was a finding that alternative treatments would be adequate, whereas in the case before it, sex reassignment surgery was the only adequate treatment. The district court also noted that the First Circuit decision “is not binding on this Court.”


Keywords: LGBT, litigation, transgender, Eighth Amendment, litigation, Norsworthy


Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



May 18, 2015

Justice, Can I Talk Now?

On April 28, 2015, the U.S. Supreme Court heard arguments in the Tennessee, Michigan, Ohio, and Kentucky same-sex marriage cases consolidated under Obergefell v. Hodges. There were two questions presented for argument: first, whether the Fourteenth Amendment requires a state to license same-sex marriages; and second, whether the Fourteenth Amendment requires a state to recognize a same-sex marriage that was lawfully licensed out-of-state.


Three attorneys argued on the first question. Mary Bonauto argued on behalf of the petitioners. Solicitor General Donald Verrilli argued for the United States, as amicus curiae supporting the petitioners. John Bursch, special assistant attorney general for Michigan, argued on behalf of the respondents.


Perhaps the liveliest and most contentious portion was Ms. Bonauto’s argument. The first question of the argument, from Justice Ginsburg, was an interesting one, as it implied some skepticism. She asked how the petitioners reconciled their arguments with the Windsor case, which “stressed the Federal government’s historic deference to States when it comes to matters of domestic relations.” The petitioners’ argument sparked substantial debate among the justices themselves, with the justices at times responding to questions posed for Ms. Bonauto before she could answer or supplementing her answers. There were notable exchanges between Justices Roberts and Ginsburg about the nature of “traditional marriage,” and later with Justices Scalia, Kagan, and Breyer about whether religious figures would be forced to officiate over same-sex marriages, where it appeared the debate was more between the justices than among the justices and Ms. Bonauto.


General Verrilli’s argument was considerably tamer, with the justices by and large letting him argue with fewer questions and more focused discussion of specific governing cases. Mr. Bursch’s argument drew less debate among the justices. The respondents’ argument justifying same-sex marriage bans was that there is a rational basis for such bans because children being raised by parents who are not married is a problem states are justified in addressing. They further argued that same-sex marriage decouples marriage from biological procreation, and thus by recognizing same-sex marriage, more children will be born outside of marriage. This argument was met with substantial skepticism by the liberal wing of the Court, as well as by Justice Kennedy. The four conservative justices were generally quiet during Mr. Bursch’s argument.


Two lawyers argued on the second question: Douglas Hallward-Driemeier of Ropes & Gray on behalf of the petitioners and Joseph Whalen, associate solicitor general of Tennessee, on behalf of the respondents. Both attorneys admitted that the second question would be moot if the Court found in deciding the first question that the Constitution prohibited states from not licensing same-sex marriages. The questioning during the petitioners’ argument focused on why if the Court found on the first question that there was no obligation for states to issue same-sex marriage licenses, it would be unconstitutional to decline to recognize marriages performed out of state. Even Justice Ginsburg asked why states would not be justified in treating out of state couples the same as they treated their own residents.


The questioning during the respondents’ argument focused on why the Full Faith and Credit Clause did not apply, and on how marriages in each state are almost universally recognized in other states. Justice Scalia quoted the Full Faith and Credit Clause and noted, “I’m so happy to be able to quote a portion of the Constitution that actually seems relevant.” Justice Roberts asked when the last time Tennessee refused to recognize an out of state marriage was (answer: 1970).


Keywords: LGBT, litigation, same-sex marriage, Supreme Court, Obergefell


Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



May 8, 2015

"Pray the Gay Away" Stays Illegal in New Jersey

On Monday, May 4, 2015, the U.S. Supreme Court declined certiorari in the Third Circuit case King v. Governor of the State of New Jersey, 767 F.3d 216 (9th Cir. 2014), cert. denied, No. 14-672 (May 4, 2015). The case involved a challenge to a New Jersey Statute enacted in 2013 that prohibited licensed counselors from engaging in therapies intended to change a person’s sexual orientation for patients under the age of 18 years old.


The appellants and plaintiffs were licensed counselors and founders of Christian counseling centers that provide counseling “from a Biblical perspective” to attempt the reduction or elimination of their client’s same-sex sexual attractions. The Third Circuit had rejected the plaintiffs’ challenge to the statute, finding that it was a permissible regulation on the plaintiffs’ free practice of professional speech and that there was no violation of the plaintiffs’ free exercise of religion. The Third Circuit had also held that the plaintiffs lacked standing to assert any constitutional claims on behalf of their minor clients.


The Third Circuit now joins the Ninth Circuit in federal appellate courts that have rejected constitutional challenges to anti-gay conversion therapy laws. The Ninth Circuit upheld a similar law in its 2013 decision in Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013) amended and superseded on denial of hearing en banc by 740 F.3d 1208 (9th Cir. 2013), cert. denied, 134 S.Ct. 2871. The Supreme Court rejected certiorari in the Pickup case in 2014. The Third Circuit’s reasoning in the King case differed from the Ninth Circuit’s in the Pickup case. The Ninth Circuit found that the counselling activity at issue was not speech with First Amendment protection and prohibitions subject to any level of scrutiny, but rather conduct, with prohibitions subject only to a rational basis review. The Third Circuit disagreed with this analysis and held that the counselling was protected speech, but as professional speech, a prohibition was subject to intermediate scrutiny, which the law at issue survived.


Keywords: LGBT, New Jersey, anti-gay conversion therapy, pray the gay away, litigation


Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



April 15, 2015

I Get by with a Little Help from My Friends

The case challenging the legality of the same-sex marriage bans in Ohio, Michigan, Tennessee, and Kentucky has received a flurry of amicus briefs on both sides of the issue. The 150 briefs filed include a mixture of organizations that have long appeared in the same-sex marriage cases, more idiosyncratic groups, public figures, scholars, businesses, and other individuals. The briefs range from those amici and briefs making somewhat expected arguments to the much more unusual.


For the opponents of the marriage bans, the amici include the American Bar Association, the Anti-Defamation League, Members of Congress (mostly Democrats), the NAACP, and a number of "blue" states. Some more unanticipated amici, either because they were not expected to take a position or because they are organizations that do not typically appear as amici before the Supreme Court on personal liberty issues, include the United States, Indiana University, and the AFL-CIO. Among the most unusual amici are, for example, Judge John Olson, a United States Bankruptcy Judge in Florida who entered into a same-sex marriage in 2010 in Massachusetts, and Lisa Brown, the County Clerk/Register of Deeds for Oakland County, Michigan, who would like to issue same-sex marriage licenses.


Perhaps the more interesting group of briefs, however, is from the supporters of the same-sex marriage bans. These amici include the usual opponents, such as multiple Republican politicians, various "red" states, and a number of religious organizations. There is, however, a more interesting array of unusual amici among the opponents. Amicus Richard Lawrence, for example, is an individual representing himself who has been married for 45 years and wanted to provide a brief "from the viewpoint of a married man." The "Scholars of Marriage and Fertility" are two professors who wrote "in order to highlight the procreative aspects of marriage" and "the importance of societies reproducing in adequate numbers." Another amicus is a group of "Same-Sex Attracted Men and Their Wives." This group distinguishes itself from other amici, those who claim to have changed their sexual orientation, by noting that they choose to be in opposite-sex marriages despite being attracted to those of the same sex, which they openly acknowledge and accept they cannot change. They argue that the legality of same-sex marriage will cause them to be demeaned and marginalized because they have chosen to be in opposite sex marriages, despite their same-sex attractions.


Key Words: LGBT, litigation, Obergefell, amicus, same-sex marriage, Supreme Court


Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



April 7, 2015

From Russia with Love

On March 24, 2015, the U.N. General Assembly budget committee voted to reject Russia's attempt to strip employee benefits from the spouses of same-sex employees. The issues arose in July 2014 when U.N. Secretary General Ban Ki Moon granted benefits to all same-sex spouses of U.N. staff. Prior to his decision, same-sex spouses were granted benefits only if their countries of nationality recognized same-sex marriages, even if they had been married in another country that recognized same-sex marriages. Thus a same-sex spouse of Egyptian nationality would not receive benefits, even if the couple had been legally married in New York.

Russia fiercely resisted the U.N.'s expansion of LGBT benefits to its employees. It based its opposition on an argument that the prior system based on the nationality of the spouse was "an example of how the U.N. respects cultural differences." The Russians also cited the financial impacts of increasing employee benefits as a reason for opposing the Secretary General's decision.

Russia's proposed measure to override the Secretary General's ruling failed in a vote of 80 to 43 with 47 nations abstaining. Countries voting against the measure included North Korea, Somalia, and Iran. The United States and the European Union countries led a diplomatic effort to defeat the proposal. The Secretary General's decision applies to approximately 40,000 U.N. employees.

Key Words: LGBT, litigation, United Nations, U.N., benefits, Russia, same-sex marriage


Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



February 11, 2015

Sweet Home Alabama?

Alabama is the 37th state in which same-sex marriage is now recognized as legal, but it is probably the state that has produced the most drama. It started on January 23, 2015, when U.S District Judge Callie v. Granade issued a decision in Searcy v. Strange holding that Alabama's constitutional ban on same-sex marriage violates the U.S. Constitution. Two days after issuing her opinion invalidating Alabama's prohibition of same-sex marriage, the Court granted a 14-day stay of her order to allow the Eleventh Circuit the option of issuing a further stay. As an aside, Judge Granade, a George W. Bush appointee, is the granddaughter of civil-rights era Fifth Circuit Judge Richard T. Rives, who was one of the "Fifth Circuit Four" who issued a number of decisions advancing civil rights in the 1950s and 1960s.

The first piece of drama concerning the Alabama case played out at the U.S. Supreme Court level. On February 9, 2015, the Court denied Alabama's request to stay the district court's order pending the decision on same-sex marriage expected from the U.S. Supreme Court this term. Justice Thomas authored a bitter dissent from the 7–2 denial that Justice Scalia joined. Justice Thomas wrote that to not give a state the benefit of the doubt on the constitutionality of one of its statutes while the issue was on review was "indecorous" and "yet another example of this Court's cavalier attitude toward the States."

Justice Thomas's critical words were mild when compared with the controversy that Chief Justice Roy Moore of the Alabama Supreme Court has caused. Roy Moore was the justice who a state ethics panel removed from the bench in 2003 in a proceeding that arose from his refusal to remove a huge monument to the Ten Commandments from the Alabama Judiciary Building. In an administrative order issued on February 8, 2015, Roy Moore wrote that the federal district court's opinion did not bind the Alabama probate judges who issue marriage licenses and who he claimed fell under his supervision as the Chief Justice. He then ordered probate judges not to issue marriage licenses to same-sex couples, as those licenses would violate the Alabama Constitution's prohibit on same-sex marriage.

The result was mass confusion in Alabama, with some probate judges issuing licenses and some refusing. The governor side-stepped the opportunity to clarify the situation by declining to give any direction to the probate judges. The attorney general responded by telling probate judges to consult their own attorneys. The plaintiffs in the Searcy case also sought on February 9 to have Judge Granade hold one probate judge that refused to issue same-sex marriage licenses in contempt of her January 23, 2015, order. The court declined to do so, reasoning that because that probate officer was not a party to the case, his refusal to issue marriage licenses did not violate her order, although the refusal did violate the U.S. Constitution.

Keywords: LGBT, Alabama, marriage, same-sex, litigation

Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



January 21, 2015

Class Action Filed Based on Access to HIV/AIDS Medication

On December 19, 2014, an anonymous plaintiff filed a lawsuit against health insurer Aetna, Inc. and related companies in the U.S. District Court for the Southern District of California. The plaintiff brings his claims on behalf of a class of all persons nationwide enrolled in or covered by a health care plan administered by Aetna that includes a drug benefit, who are prescribed HIV/AIDS specialty medications, and who are required to participate in Aetna's new drug plan. The plaintiff also seeks to represent a subclass of California residents.

The plaintiff alleges that through a change in its health plans implemented on January 1, 2015, Aetna requires HIV/AIDS patients enrolled in its plans to purchase their medications by mail order through a company called ASP, a wholly-owned Aetna subsidiary. As a result of the change, community pharmacies will be considered "out of network," meaning that to continue purchasing HIV/AIDS medications from the community pharmacies, patients may see monthly cost increases of many thousands of dollars. The plaintiff claims that this change effectively forces patients to purchase through the mail order plan, which negatively effects their health and privacy. The plaintiff claims that HIV/AIDS patients also pay additional costs even if they purchase through the mail order plan.

The plaintiff alleges that patients will be harmed by switching to the mail order plan because they lose the opportunity to consult face-to-face with their community pharmacist on matters such as side effects and negative drug interactions. He also claims that the mail order requirement, coupled with restrictive procedures for obtaining refills and the potential for refills to be lost during processing or in the mail, creates a threat of missed dosages of their life-saving drugs. The plaintiff claims that because many HIV/AIDS medications must be constantly refrigerated, patients face privacy violations if they live in apartment buildings or must have their drugs delivered to their work places due to work schedules, since it increases the likelihood that neighbors and coworkers will learn of their HIV status.

The plaintiff brings 14 causes of action under the Affordable Care Act, ERISA, the Americans with Disabilities Act, California Unfair Competition Law, common law restitution, breach of the duty of good faith and fair dealing, violation of California's Unruh Civil Rights Act, and for declaratory relief. The attorneys representing the plaintiff and seeking to represent the class are Edith Kallas and Alan Mansfield of Whatley Kallas LLP, in its New York and San Diego offices, and Harvey Rosenfeld and Jerry Flanagan at Consumer Watchdog in Santa Monica. The case is styled Doe v. Aetna, Inc., 14-CV-2986-LAB-DHB.

Keywords: LGBT, HIV, AIDS, litigation, health insurance

Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



December 18, 2014

Litigation Continues in the Aloha State

On December 18, 2014, the Hawaii Supreme Court held oral arguments in McDermott v. Abercrombie, Case No. SCAP-14-0000843. McDermott is a rather unique case in that it presents a constitutional challenge to a state law authorizing same-sex marriage.


By way of background, the State of Hawaii passed the Hawaii Marriage Equality Act in December 2013. The statute reversed a prior law prohibiting same-sex marriage in Hawaii, and it authorized same-sex marriages going forward. The Marriage Equality Act followed two decades of activity on marriage equality in Hawaii, beginning with the Baehr v. Miike case filed in 1991. In 1996, after the case had already been up before the Hawaii Supreme Court and then remanded for trial, the trial court ruled that Hawaii’s denial of marriage licenses to same-sex couples violated the state’s constitution. In 1998, following the Baehr ruling, the legislature proposed, and the voters approved, an amendment that became Article I, Section 23 of the Hawaii Constitution. Instead of explicitly restricting same-sex marriages, the amendment gave the legislature the power to restrict marriage to only one man and one woman. Baehr was also the impetus for the U.S. Congress’s Defense of Marriage Act in 1996.


The McDermott Case argued on December 18, 2014, involved a contention that the Hawaii Marriage Equality Act is unconstitutional because it violates Article I, Section 23 of the Hawaii Constitution, enacted in response to Baehr. The Amendment reads “the legislature shall have the power to reserve marriage to opposite-sex couples.” McDermott was a state legislator who voted to put the proposed amendment on the ballot and voted for the 1999 law that prohibited same-sex marriages and that was passed under the authority the amendment provided. Other challengers included a voter who had voted for the amendment and a minister who argued that the Marriage Equality Act would harm him because he feared he would be forced to perform same-sex marriages against his personal beliefs. The challengers argued that the amendment was inconsistent with and prohibited the Marriage Equality Act.


The Hawaii justices’ questioning focused on three issues. First, whether a legislator or an ordinary voter who each voted for a constitutional amendment had standing fifteen years later to challenge a law that is inconsistent with their interpretation of that amendment. Second, whether the amendment itself, which only states that it authorizes the legislature to pass a same-sex marriage ban, can be interpreted as prohibiting a law that authorizes same-sex marriages. Third, if the amendment is interpreted as prohibiting a law authorizing same-sex marriages, whether the amendment itself would be unconstitutional under the U.S. Constitution and recent Ninth Circuit precedent invalidating same-sex marriage bans in Nevada and Idaho. After over an hour of spirited argument and questioning, the court took the matter under advisement.

Keywords: litigation, same-sex marriage, LGBT, Hawaii, Marriage Equality Act

Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



December 16, 2014

Marriage Equality: Progress in Unexpected Places

Two significant events have occurred in the month since the last News & Developments piece on marriage equality in November. The first came out of the Eleventh Circuit Court of Appeals in Brenner v. Armstrong, No. 14-14061, (11th. Cir.) on December 3, 2014. The Brenner appeal arose out of a ruling on August 21, 2014, from the United States District Court for the Northern District of Florida, Tallahassee Division, Judge Robert Hinkle presiding. In that ruling, the court considered a challenge to Florida’s same-sex marriage ban. The defendants moved to dismiss the case, and the plaintiffs moved for a preliminary injunction prohibiting enforcement of the ban.


The court denied the defendants’ motion to dismiss and granted the motion for preliminary injunction. The order, however, issued a rather quirky stay of the injunction. At the time, there were pending same-sex marriage stays in the Fourth and Tenth Circuits, and the court held that its preliminary injunction would be stayed for 91 days after the stays then in place were lifted in the Fourth and Tenth Circuit cases. The court was concerned that “the opportunity for same sex marriages in Florida, once opened, will not close again,” and wanted to provide a process whereby the defendants had 91 days to seek a further stay if the Fourth and Tenth Circuit stays lifted.


The district court’s stay had one exception. One of the plaintiffs was widowed when her partner of 47 years died. The couple had been married in New York in 2011. The widow’s primary income came from social security benefits, which she used to support both herself and the extremely elderly parents of her wife. She wished to be recognized as her wife’s spouse for purposes of social security benefits and to have the wife’s death certificate amended to recognize her as the spouse. The court denied the stay and allowed the injunction to take immediate effect as to those issues.


The stays in the Fourth and Tenth Circuits were lifted on October 6, 2014, when the U.S. Supreme Court declined to grant certiorari in those cases. The Florida trial court’s decision was thus set to expire on its own terms on January 5, 2015. The defendants in the Brenner case filed for an extension of the stay on November 18, 2014, and for expedited consideration of the extension. On December 3, 2014, a three-judge panel of the Eleventh Circuit denied the request to extend the stay with no discussion, noting that the stay of the district court’s order would expire on January 5, 2015. Barring an unlikely intervention from the U.S. Supreme Court before that date, Florida will be enjoined from denying marriage benefits to same-sex couples as of January 5, 2015. Judges Frank Hull, Charles Wilson, and Adalberto Jordan comprised the Eleventh Circuit panel. Judge Hinkle of the Northern District of Florida, and Eleventh Circuit Judges Hull and Wilson, are Bill Clinton appointees, and Judge Jordan is a Barack Obama appointee.


A United States district court in Mississippi has also invalidated that state’s ban on same-sex marriage. The opinion for the United States District Court for the Southern District of Mississippi issued on November 25, 2014, in the case Campaign for Southern Equality et al. v. Bryant, Cause No. 3:14-CV-818-CWR-LRA, (S.D. Miss. Nov. 25, 2014). In that case, the court held that Mississippi’s ban on same-sex marriage violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and is therefore invalid. The Fifth Circuit now has before it opinions out of Mississippi and Texas invalidating same-sex marriage bans in those states, and an opinion in Louisiana upholding a marriage ban. It is scheduled to hear oral arguments on the three appeals on January 9, 2015.

Keywords: litigation, LGBT, same-sex marriage, Fifth Circuit, Eleventh Circuit, Mississippi, Florida

Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI



November 11, 2014

Same Sex Marriage Bans Upheld in Kentucky, Michigan, Ohio, and Tennessee

On Thursday, November 6, 2014, in a divided 2-1 opinion, the Sixth Circuit Court of Appeals upheld same sex marriage bans in the states of Kentucky, Michigan, Ohio, and Tennessee. DeBoer v. Snyder, No. 14-1341, __ F.3d __, (6th Cir. November 6, 2014). The Court reversed the district court opinions arising from each of the four states and created a circuit split with the multiple circuits that have invalidated same sex marriage bans.

The majority opinion, which Judge Jeffrey Sutton authored and Judge Deborah Cook joined, emphasized in particular the need to rely on the democratic process to effect “such a fundamental change to such a fundamental institution.” The court rejected each of the legal theories that plaintiffs offered for the unconstitutionality of the marriage bans, writing that “[n]ot one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.”

Judge Daughtrey authored a spirited dissent that began by noting that the majority opinion would “make an engrossing TED Talk, or, possibly, an introductory lecture in political philosophy.” The dissent rejected the majority opinion’s reasoning that the legalization of same sex marriage was best left to the electorate:

If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Judges Sutton and Cook are George W. Bush appointees, and Judge Daughtrey is a Bill Clinton appointee. This Sixth Circuit opinion comes exactly one month after the U.S. Supreme Court declined to grant certiorari in same sex marriage cases arising out of the Fourth, Seventh, and Tenth Circuits. In the wake of the circuit split the Sixth Circuit case creates, commentators have opined that it is growing less likely that the U.S. Supreme Court can again avoid granting certiorari in a same sex marriage case.

Keywords: litigation, LGBT, same-sex marriage, bans, Sixth Circuit

Nick Kacprowski, Alston Hunt Floyd & Ing, Honolulu, HI


October 29, 2014

District of Puerto Rico Joins Eastern District of Louisiana in Upholding Gay-Marriage Bans

On October 21, 2014, the District of Puerto Rico, Judge Juan M. Perez-Gimenez presiding, upheld the gay-marriage ban in Puerto Rico, relying on the 1971 Minnesota Supreme Court case of Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). See Conde-Vidal v. Garcia-Padilla, No. CIV. 14-1253 PG, 2014 WL 5361987 (D.P.R. Oct. 21, 2014). Judge Perez-Gimenez joins Judge Martin L.C. Feldman of the Eastern District of Louisiana in upholding gay-marriage bans following the United States Supreme Court decision of United States v. Windsor in 2013. See Robicheaux v. Caldwell, 2 F. Supp. 3d 910, at 926 (E.D. La. 2014). Judge Feldman’s decision is being appealed to the Fifth Circuit. If Judge Perez-Gimenez decision is appealed, it will go to the First Circuit.

These two decisions are against the tide. On October 6, 2014, the Supreme Court denied review of petitions arising from challenges to state bans on same-sex marriage, paving the way for gay marriage in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. In the weeks that followed, federal court decisions in North Carolina, Alaska, Arizona, and Wyoming held that gay-marriage bans were unconstitutional. As of today, same-sex marriage is now legal in 32 states and the District of Columbia.

Keywords: litigation, LGBT, District of Puerto Rico, same-sex marriage, marriage bans

Emily Ambrose, Blackwell Burke P.A., Minneapolis, MN


October 29, 2014

Groundbreaking Ruling for Transgender Federal Employee

The U.S. Office of Special Counsel (OSC) released a report finding that the Army had discriminated against Tamara Lusardi, a transgender federal employee, on the basis of her gender identity. Lusardi was represented by the Transgender Law Center.

The OSC held “the Agency’s intentional limitations on [Ms. Lusardi’s] restroom usage significantly changed her working conditions, as did her supervisor’s repeated use of her birth name and male pronouns and her manager’s targeted restriction of the content of her conversations with coworkers. We also find that the harassment stemmed from an abuse of the supervisor-subordinate relationship by Agency officials with the authority to take, recommend, and approve the actions at issue.” See the full report.

The decision follows President Obama’s July 2014 Executive Order prohibiting the federal government from employment discrimination on the basis of sexual orientation and gender identity.

Keywords: litigation, LGBT, army, Obama Executive Order

Emily Ambrose, Blackwell Burke P.A., Minneapolis, MN


August 5, 2014

Wisconsin Federal Judge Stays Ruling Overturning Same-Sex Marriage Ban

On June 13, 2014, in Wisconsin, U.S. District Court Judge Barbara Crabb hesitantly granted a stay to her June 6th ruling striking down the state’s same-sex marriage ban. However, in the interim week all across the state, same-sex couples arrived at county clerks’ offices seeking marriage licenses. In some circumstances, the clerks granted the marriage licenses and in others they did not. In approximately 60 out of Wisconsin’s 72 counties, marriage licenses were issued to over 500 same-sex couples before the clerks were enjoined from processing further license applications. The underlying case is Wolf v. Walker in the Western District of Wisconsin.

Keywords: litigation, LGBT, Wisconsin, same-sex marriage, marriage bans, marriage licenses

Nick Drury, Sandman, Levy and Petrich, Chicago, IL


August 5, 2014

Obama Poised to Sign EO Barring Federal Contractors from Discriminating Against LGBT Applicants

The new executive order appends the categories of sexual orientation and gender identity to the existing framework prohibiting federal contractors and subcontractors from discriminating against individuals on the basis of race, color, religion, sex, or national origin. This measure is seen as a stopgap while the House of Representatives continually refuses to vote on the Employment Non-Discrimination Act. While ENDA has passed the Senate, it has since to come to the House floor for a vote.

Keywords: litigation, LGBT, employment discrimination, gay rights, President Obama, ENDA

Nick Drury, Sandman, Levy and Petrich, Chicago, IL


March 20, 2014

9th Cir. Uses Heightened Scrutiny to Examine Sexual Orientation

The Ninth Circuit recently used heightened scrutiny to review an equal-protection claim based on sexual orientation. In SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), Abbott was accused of artificially raising the price of HIV drugs. During voir dire, Abbott’s attorney used a peremptory challenge against the only self-identified gay member of the venire. SmithKline objected, and the trial court overruled the objection. On appeal, the Ninth Circuit found that “the strike was based on a discriminatory motive,” and “Batson prohibits strikes based on sexual orientation.” See Batson v. Kentucky, 476 U.S. 79 (1986) (noting the privilege of peremptory strikes in selecting a jury is subject to the guarantees of the Equal Protection Clause).

Relying on U.S. v. Windsor, 133 S. Ct. 2675 (2013), SmithKline held that classifications based on sexual orientation are subject to heightened scrutiny. SmithKline, at 484. Although Windsor cited a rational-basis case and also to cases applying heightened scrutiny to defeat section three of the Defense of Marriage Act (DOMA) on an equal-protection basis, the Ninth Circuit said “Windsor review is not rational basis review.” Judge Reinhardt began his opinion in SmithKline by noting that Justice Kennedy did not expressly announce a level of scrutiny in Windsor. In so doing, Judge Reinhardt looked at what the Supreme Court did, not what it said.

The Ninth Circuit concluded that the “lowest level of review does not look to the actual purposes of the law. Instead, it considers whether there is some conceivable rational purpose that Congress could have had in mind when it enacted the law.” For Windsor, a hypothetical reason for DOMA’s enactment was not sufficient. Windsor went further; it looked to DOMA’s “design, purpose, and effect. “ Windsor,at 2689. Moreover, Windsor’s “careful consideration of DOMA’s actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review.” SmithKline, at 482.

Additionally, “[r]ational basis is ordinarily unconcerned with the inequality that results from the challenged state action.” Normally, “words like harm or injury rarely appear in the Court’s decisions applying rational basis review.” (emphasis added). Id. Windsor, however, used these words repeatedly. The majority opinion in Windsor considered DOMA’s “effect” on eight separate occasions. Indeed, Windsor was concerned with the “resulting injury and indignity” and the “disadvantage” inflicted on gays and lesbians. Windsor, at 2693.

Keywords: litigation, LGBT, sexual orientation, heightened scrutiny, equal-protection claim, Windsor, rational basis, DOMA, Ninth Circuit

Stanford L. Moore, 3L, Case Western Reserve University


March 11, 2014

Gay Marriage Update

As of this update, 17 states and the District of Columbia allow gay marriage: Massachusetts, California, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Maryland, Washington, Delaware, Rhode Island, Minnesota, New Jersey, Hawaii, New Mexico, and Illinois. Illinois will begin issuing marriage licenses in June 2014. In addition, beginning December 2013, a string of federal district court decisions in Utah, Oklahoma, Virginia and Texas held that their respective state laws banning gay marriage were unconstitutional. Gay marriage in those states is on hold while the appellate courts weigh in. Of the 33 states that do not allow gay marriage, 29 of them ban it by constitutional amendment.

Keywords: litigation, LGBT, gay marriage, same-sex marriage, constitution, state laws, marriage licenses

Emily A. Ambrose, Blackwell Burke P.A., Minneapolis, MN


November 11, 2013

Illinois Set to Become 15th State to Legalize Gay Marriage

On Tuesday November 5, 2013, Illinois lawmakers passed a bill which would allow same-sex couples in Illinois to be married. The bill is expected to be signed into law by Illinois Governor Pat Quinn on November 20, 2013. Once signed the law will go into effect June 1, 2014.

Keywords: litigation, LGBT, gay marriage, bill, Illinois, Governor Pat Quinn

Nicholas P. Drury, Sandman, Levy & Petrich, Chicago, IL


October 25, 2013

Oklahoma Governor Orders National Guard to Deny Same-Sex Benefits

Despite a Pentagon directive to do so, Oklahoma’s Republican Governor Mary Fallin ordered the Oklahoma National Guard to stop processing requests for military benefits for same-sex couples. According to her spokesman Alex Weintz, Fallin’s general counsel advised her to deny the benefits based on a 2004 amendment to the Oklahoma Constitution that prohibits giving any of the benefits of marriage to gay couples.

Previous to the order, the Oklahoma National Guard had been processing benefits for same-sex soldiers just like for heterosexual couples.  According to Guard spokesman Col. Max Moss, any soldier now requesting marriage benefits for their same-sex spouse will be directed to a federal facility where the request can be processed.

According to the Associated Press, Moss stated that “If we have a situation where we have a soldier who’s in a same-sex marriage, we’re going to explain to that soldier how they can go about acquiring those benefits,” by “directing them to a federal facility.”  “We want our soldiers to have all the benefits to which they’re entitled.

Oklahoma joined Texas, Louisiana, and Mississippi in imposing this policy despite the Pentagon’s announcement in August that as of September 3, same-sex spouses of military members would be eligible for health, housing, and other benefits enjoyed by opposite sex couples. The Pentagon consulted with the DOJ after the Supreme Court struck down the Defense of Marriage Act in June.

Keywords: litigation, LGBT, Oklahoma, Oklahoma National Guard, Governor Mary Fallin, same-sex couples, military, benefits

Mark T. Hamby, Bonham and Howard, PLLC, Tulsa, OK


October 22, 2013

Mixed Emotions for Marriage-Equality Proponents in Michigan

U.S. District Court Judge Bernard Friedman issued an order on October 18th that both confused and left hopeful Michigan proponents for marriage quality. The judge heard argument in DeBoer v. Snyder following each side’s motion for summary judgment.  Proponents hoped for a quick ruling in favor of marriage equality, instead the judge set the case for trial.  At issue is whether the State of Michigan has a legitimate state interest in denying same-sex couples the right to marry and to obtain the attendant legal benefits therefrom. Judge Friedman determined that would require “a battle of the experts” rather than oral argument by each side.

The case began as a complaint seeking second-parent adoption rights for a lesbian couple, but was amended to ask the court to overturn the 2004 constitutional ban on same-sex marriage in Michigan.  When the complaint was amended the plaintiffs added the court clerk for Oakland County where the women reside. The Oakland county court clerk, now Lisa Brown after the November 2012 election, has come out in support of the women and marriage equality.

Judge Friedman determined that although the plaintiffs were challenging the adoption statute, the statute itself was facially valid since it did not differentiate as to sexual orientation but rather limits adoptions to either single persons or married couples.  “Plaintiffs may not jointly adopt their children because they are not married.  And plaintiffs may not marry because any legal form of same-sex union in the state of Michigan is prohibited by the MMA [Michigan Marriage Amendment].  Thus, the relief plaintiffs request hinges on the constitutional validity of the MMA.” (Opinion at note 5).

Although both sides urged the court to adopt findings from, or based upon, similar cases in other courts, Judge Friedman determined that “the parties must be afforded the opportunity to develop their own record in this matter with the benefit of calling witnesses and subjecting them to cross-examination.”  Trial is set for 9 a.m. on February 25, 2014, at the federal courthouse in Detroit.

Keywords: litigation, LGBT, marriage, gay, lesbian, marriage, Michigan, gay, lesbian, Judge Friedman, DeBoer v. Snyder, Michigan Marriage Act

Mark T. Hamby, Bonham and Howard, PLLC, Tulsa, OK


October 18, 2013

New Jersey Allows Gay Marriages

New Jersey became the 14th state to allow gay and lesbian marriages. On September 27, 2013, the New Jersey Superior Court held that New Jersey’s civil-union law unconstitutionally discriminated against gay and lesbian couples. Although the court’s decision is on appeal to the New Jersey Supreme Court, the New Jersey Supreme Court unanimously held that, while the appeal is pending, gays and lesbians may begin entering into civil marriages beginning October 21. In making its pronouncement, the New Jersey Supreme Court expressly rejected Governor Chris Christie’s request to block marriages pending exhaustion of appeals.

Keywords: litigation, LGBT, marriage, gay, lesbian, Governor Chris Christie, New Jersey, civil marriage

Emily Babcock, Blackwell Burke P.A., Minneapolis, MN


October 4, 2013

First Openly Gay Appellate Judge Appointed to Federal Circuit

On September 24, 2013, the Senate confirmed the nomination of Todd Hughes to the United States Court of Appeals for the Federal Circuit, by a vote of 98–0. Hughes is the first openly gay federal appellate judge. He previously served as deputy director of the commercial litigation branch of the Civil Division of the Justice Department.

In addition to Hughes, the Obama administration has won Senate approval for six openly gay nominees (Dan Baer, John Berry, Rufas Gifford, James Costos, Stuert Delery, and Elaine Kaplan) to various posts this term and has appointed 13 openly gay officials who did not require Senate confirmation.

Keywords: litigation, LGBT, Todd Hughes, Federal Circuit, Obama administration, Senate, gay, nominees

Emily Babcock, Blackwell Burke P.A., Minneapolis, MN


July 23, 2013

Ohio Federal Court Orders State to Recognize Marriage on Death Certificate

On July 22, 2013, an Ohio federal court, relying in part on the Supreme Court's recent decision in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675, granted a TRO on the basis that Ohio's state-level ban on the recognition of same-sex marriages performed in other states violated the Equal Protection Clause, and the court ordered Ohio to identify a dying man’s same-sex couple as his spouse on his death certificate. Obergefell v. Kasich, Civil Action No. 13-cv-00501-TSB, U.S. District Court for the Southern District of Ohio, Western Division.

According to the court's order granting the TRO, the plaintiffs, John Obergefell and John Arthur, are two male Cincinnati residents who have lived together for more than 20 years. Arthur is a hospice patient with terminal ALS and, in the words of the court, “is certain to die soon.”  On July 11, the men travelled to Maryland, on a jet specially equipped with medical equipment, married in the jet as it sat on the tarmac, and returned to Cincinnati the same day. Obergefell and Arthur then filed suit seeking a TRO and injunction ordering Ohio to issue a death certificate recognizing Arthur as married and identifying Obergefell as his surviving spouse. 

Relying on Windsor, Romer v. Evans, 517 U.S. 620 (1996), and U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), the Ohio federal court held that Ohio violated the Equal Protection Clause in refusing to recognize the couple’s marriage. The court found that Ohio had “unjustifiably created two tiers of couples:  (1) opposite-sex married couples legally married in other states; and (2) same-sex marriage couples legally married in other states.” The court bolstered its finding of unequal treatment of same-sex couples by citing Ohio cases recognizing the validity of marriages that were lawful in their states of celebration but would have been unlawful if performed in Ohio, such as marriages between first cousins or marriages of minors.  Finally, the court found that Ohio had no legitimate state purpose in refusing to recognize legal, out-of-state marriages. Therefore, the court ordered Ohio to recognize Obergefell as Arthur's spouse on the death certificate. 

Keywords: LGBT, litigation, same-sex couples, out-of-state marriage, death certificate, surviving spouse, Equal Protection Clause, Windsor

J. Dalton Courson, Stone Pigman, New Orleans, LA


May 13, 2013

Delaware Becomes 11th State to Legalize Gay Marriage

On May 8, 2013, the Delaware State Senate voted 12-9 to approve the bill recognizing same-sex marriage in Delaware. The bill was then signed into law almost immediately by Delaware Governor Jack Markell. The bill had passed the Delaware House two weeks prior. This development comes little more than a year following the state's recognition of same-sex civil unions. The law takes effect on July 1, 2013.

Keywords: LGBT, litigation, Delaware, same-sex marriage, civil unions, bill, Jack Markell

Nicholas P. Drury, Sandman, Levy & Petrich, Chicago, IL


May 7, 2013

Rhode Island Passes Same-Sex Marriage Law

Rhode Island has become the 10th state, and last New England state, to pass a gay marriage law. The final vote was on May 2 and Governor Lincoln Chafee signed the bill that evening. The new law will take effect on August 1, 2013. Lawmakers in Minnesota and Delaware are also debating bills to legalize gay marriage.

Keywords: LGBT, litigation, Rhode Island, gay marriage, Lincoln Chafee

Emily Babcock, Blackwell Burke P.A., Minneapolis, MN


May 7, 2013

Gay Rights in Immigration Reform Bill

Senate Judiciary Committee Chairman Patrick Leahy, a Democrat from Vermont, pledged to introduce an amendment to immigration reform that would permit gay and lesbian Americans to, like heterosexuals, sponsor their partners for green cards. As we reported on October 12, 2012, LGBT couples are already considered “family” under current U.S. immigration policy. Some Republicans have publicly commented that introducing the amendment may hurt bipartisan support of the immigration reform bill.

Keywords: LGBT, litigation, immigration, Patrick Leahy, Senate Judiciary Committee

Emily Babcock, Blackwell Burke P.A., Minneapolis, MN


May 7, 2013

Larry Smith Receives Diversity Leadership Award

On Thursday, April 25, the Section of Litigation, with sponsorship from Navigant, presented the 2013 Diversity Leadership Award to LGBT Litigator member Larry D. Smith. Larry is a founding partner of Southern Trial Counsel | PLC in Orlando, Florida. Among Larry’s many accomplishments: he was the first openly gay attorney asked to address The Florida Bar on diversity issues, the first openly gay attorney to serve on the Florida Supreme Court Commission on Professionalism, and the founder of the Central Florida Gay & Lesbian Law Association. Larry was joined at the awards luncheon by his partner, Clayton Glover, and their two children. We salute Larry for this great achievement. Congratulations!

Keywords: LGBT, litigation, Larry D. Smith, diversity, award, Florida Bar, Florida Supreme Court Commission on Professionalism, Central Florida Gay & Lesbian Law Association

J. Dalton Courson, Stone, Pigman, Walther, Wittman, LLC, New Orleans, LA


February 15, 2013

Illinois Senate Votes Yes on Gay Marriage

The Illinois State Senate voted 34 to 21 in favor of gay marriage with two senators voting present on Valentine’s Day. The bill now must now pass the Illinois House before reaching Illinois Governor Pat Quinn who has previously voiced support for the legislation.

Keywords: LGBT, litigation, Illinois Senate, gay marriage bill, Valentine's Day, Pat Quinn

Nicholas P. Drury, Sandman, Levy & Petrich, Chicago, IL


December 20, 2012

Supreme Court to Hear Same-Sex Marriage Cases

On December 7, 2012, the Supreme Court agreed to review a pair of landmark cases challenging state and federal laws defining marriage as a union between a man and a woman.

In Windsor v. U.S., the question presented is whether Section 3 of the Defense of Marriage Act (DOMA) deprives same-sex couples (who are lawfully married in their state) the equal protection guaranteed by the U.S. Constitution. Section 3 of DOMA provides that for federal law purposes, “marriage” means only a legal union between one man and one woman as husband and wife. Because of DOMA, Edith Windsor was assessed with a large federal estate tax bill when her same-sex spouse died. The couple had married in Canada in 2007, but were residents of the State of New York at the time of the spouse’s death in 2009. Although New York did not license same-sex marriage in 2009, the decision presumed that New York would recognize same-sex marriages entered into in other jurisdictions. The Second Circuit Court of Appeals found that DOMA violates the equal protection provision of the 5th Amendment of the Constitution, which states that no person shall be deprived of property without due process.

In Hollingsworth v Perry, 671 F.3d 1052 (9th Cir. 2012), the question presented is whether the Equal Protection Clause of the 14th Amendment of the U.S. Constitution prohibits a state from defining marriage as the union of a man and woman. Proposition 8 was a voter initiative that amended the California constitution to limit marriage to the union of a man and woman. The Ninth Circuit Court of Appeals found that Proposition 8 violated the Equal Protection Clause, which provides that no State shall deny to any person the equal protection of the laws, because Proposition 8 failed to identify a legitimate governmental interest for eliminating the right of same-sex couples to marry.

The two cases mark the first time Supreme Court will squarely address the constitutionality of efforts to ban gay marriage. They are likely to be argued in March, with rulings expected in June.

Keywords: LGBT, litigation, Supreme Court, same-sex marriage, DOMA, Windsor v. U.S., Hollingsworth v Perry, equal protection, constitutionality

Robb McFadden is an associate in the Labor and Employment Department in Seyfarth Shaw LLP office in San Francisco, California.


October 18, 2012

Second Circuit Rules DOMA Unconstitutional

On October 18, 2012, the Second Circuit ruled in a 2-1 decision that Section 3 of the Defense of Marriage Act—the provision that requires federal agencies to construe marriage as “a legal union between one man and one woman as husband and wife”—is unconstitutional. The case, Windsor v. United States, involves Edith Windsor’s claim that she was wrongfully denied a $363,053 spousal deduction for federal estate taxes when her spouse—a woman whom she married in Canada in 2007—died. The key rulings were that Windsor had standing because New York would have recognized Windsor as a surviving spouse under New York law; Section 3 of DOMA is subject to intermediate scrutiny under the Equal Protection analysis; and Section 3 of DOMA is unconstitutional because “DOMA’s classification of same-sex spouses was not substantially related to an important government interest.” The court “sidesteps” the fact that same-sex marriage is “unknown” in history and tradition, observing that state and federal law “is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples.”

To see the full opinion, click here.

The Second Circuit’s decision follows a First Circuit decision made earlier this year that also found Section 3 of DOMA to be unconstitutional, albeit not under heightened scrutiny. It is widely expected that the U.S. Supreme Court will ultimately decide the issue.

Keywords: LGBT, litigation, lesbian, gay, bisexual, transgender, Second Circuit, DOMA, Defense of Marriage Act, Equal Protection

Emily Babcock, Blackwell Burke P.A., Minneapolis, Minnesota


October 17, 2012

California Bans Therapy Said to "Cure" Gay Minors

On September 28, 2012, California governor Jerry Brown signed SB1172, a law banning unscientific reparative therapies aimed at curing gay youth. The law, which will take effect January 1, 2013, applies only to mental health providers as they are defined by California law, and states: “Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.”

The law also states that “any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.” See the full text here.

Governor Brown is quoted as saying, “This bill bans non-scientific ‘therapies’ that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery.” To be sure, unlicensed Christian “counselors” will still be able to continue practicing “praying away the gay” programs, but state-regulated mental health providers cannot. The National Association for Research & Therapy of Homosexuality has responded to the law, stating that it is an “unprecedented legislative intrusion.” The association vows to “lend its full support to the legal efforts to overturn it.”

Keywords: LGBT, litigation, lesbian, gay, bisexual, transgender, SB1172, Governor Jerry Brown, reparative therapy, National Association for Research & Therapy of Homosexuality

Emily Babcock, Blackwell Burke P.A., Minneapolis, Minnesota


October 12, 2012

LGBT Couples Considered 'Family' Under Immigration Policy

Current U.S. Immigration and Customs Enforcement (ICE) policy permits ICE personnel to exercise prosecutorial discretion when considering enforcement decisions. One of the factors that may be considered by ICE personnel is whether an individual has close family relationships. Long-term, same-sex partnership is under the definition of “family relationships” according to U.S. immigration law, so says U.S. Secretary of Homeland Security Janet Napolitano in a September 27, 2012 letter. The letter clarifies that close family relationships include long-term, same-sex partnerships, and Napolitano warns that “[a]s with every other factor [in the policy,] the applicability of the ‘family relationships’ factor is weighed on an individualized basis in the consideration of whether prosecutorial discretion is appropriate in a given case.”

The Department of Homeland Security’s interpretation comes months after another LGBT-favorable interpretation of federal law was made by the Department of Health and Human Services regarding the Affordable Health Care Act. On July 12, 2012, the Department of Health and Human Services issued a letter clarifying that Section 1557’s provision providing that individuals cannot be denied benefits or be subject to discrimination on grounds prohibited by other federal laws, “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

Keywords: LGBT, litigation, lesbian, gay, bisexual, transgender, immigration, family, Affordable Care Act, Immigration and Customs Enforcement, ICE, Department of Homeland Security, Janet Napolitano, Department of Health and Human Services

Emily Babcock, Blackwell Burke P.A., Minneapolis, Minnesota


September 24, 2012

'Don't Ask, Don't Tell'—One Year Later

On September 20, 2011, “Don’t Ask, Don’t Tell” (DADT), the policy that prohibited openly gay and lesbian service members from serving in the military, was repealed. Despite many warnings from prominent politicians such as former presidential candidate Rick Santorum, and interest groups like the Center for Military Readiness, the military has not collapsed. The Pentagon, in fact, has reported that repeal has gone smoothly.

It is important to note that the repeal of DADT was not a magic bullet. Anti-gay harassment has not ended and same-sex military families still do not enjoy all the benefits that heterosexual military families do. The anniversary of the repeal of DADT, however, is a reminder that progress is indeed happening.

Keywords: LGBT, lesbian, gay, bisexual, transgender, litigation, Don’t Ask, Don’t Tell, DADT, military

Nicholas P. Drury, Sandman, Levy & Petrich, Chicago, Illinois


August 15, 2012

LGBT Litigator Committee Holds Program at ABA Annual

As many as 9 out of 10 lesbian, gay, bisexual, and transgender (LGBT) teens have reported being bullied within the past year because of their sexual orientation, panelists noted during “Leave My Child Alone, or I’ll . . . What? Using the Law to Stand Up to Bullies,” a program presented by the LGBT Litigator Committee at the ABA Annual Meeting in Chicago, Illinois. Read all about it at ABA Now.

Keywords: litigation, LGBT, bullying

—J. Dalton Courson, Stone, Pigman, Walther, Wittmann, LLC, New Orleans, Louisiana


June 5, 2012

First Circuit: Defense of Marriage Act Is Unconstitutional

The First U.S. Circuit Court handed down a ruling on May 31, 2012, affirming the decision of a lower court that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional based on equal protection and states’ rights grounds. In short, the court found that Section 3 of DOMA, which defines marriage as only between a man and a woman, discriminated against same-sex couples lawfully married in states that recognize same-sex marriage because it denied federal benefits to one set of couples and not another. The court further affirmed that DOMA interfered with a state’s right to define marriage.

Keywords: litigation, LGBT, Defense of Marriage Act, First Circuit

—Nicholas P. Drury, Sandman, Levy & Petrich, Chicago


May 22, 2012

Judicial Nominee Rejected after Anti-Gay Lobbying

Less than a week following President Barack Obama’s endorsement of gay marriage, Virginia’s House of Delegates held a late-night vote rejecting Tracy Thorne-Begland, a former naval officer, former project spokesman for the Human Rights Campaign, and Deputy Commonwealth Attorney for the City of Richmond, for a post on the General District Court in Richmond. The vote came out 33–31 in support of Thorne-Begland with 10 members abstaining from the vote. Judicial nominees need 51 votes out of 100 to be approved. Thorne-Begland was expected to sail through the nomination process after receiving broad support from both Democrats and Republicans on the Courts of Justice Committee, which is the legislative committee tasked with vetting proposed judicial nominees. However, fierce lobbying by conservative groups that included several caustic remarks on the House floor by Republican Delelegate Robert G. Marshall preceded the House’s rejection of Thorne-Begland.

Marshall, relying on the old standby of perceived judicial activism, criticized Thorne-Begland for being “an aggressive activist for the pro-homosexual agenda.” As evidence, Marshall referred to Thorne-Begland’s decision to join the Navy despite the (now-repealed) policy banning gays from the military as evidence of Thorne-Begland’s contempt for oaths to his nation. Furthermore, Marshall took issue with Thorne-Begland’s relationship with his same-sex partner for “holding himself out as married” even though Virginia’s constitution defines marriage as a relationship between a man and a woman.

Marshall assures the people of Virginia that Thorne-Begland was rejected as a judicial nominee not because he was gay, but rather because “It’s about a pattern that is just notorious for homosexual advocacy.” In other words, one can be a gay Virginia judge, but only without talking about being gay publicly. Marshall’s litmus test for judges: Don’t Ask, Don’t Tell for the Virginia Judiciary.

Keywords: litigation, LGBT, judiciary, Virginia, Thorne-Begland

—Nicholas Drury, Sandman, Levy & Petrich, Chicago, Illinois


May 4, 2012

Annual Conference Panel Discusses LGBT Issues

The 2012 Section of Litigation Annual CLE Conference, held April 18–20, 2012, in Washington, D.C., included the panel discussion “Gay Marriage and the Law: Same-Sex Marriage Litigation and Defense of Marriage Act Repeal Efforts.” During this session, three legal-community leaders revealed their personal experiences, their challenges, and the current state of marriage and the law. The panelists discussed the most critical factors affecting the right of marriage, which is a basic human right, and debated whether these concerns are changing.

David J. Tsai, an associate attorney for Perkins Coie LLP, San Francisco, moderated the panel and fervently serves the lesbian, gay, bisexual, and transgender (LGBT) legal community. The panel included Jennifer C. Pizer, legal director of the Williams Institute, UCLA School of Law, and former senior counsel with Lambda Legal. The Williams Institute provides research and education advancing public policy for sexual orientation and gender-identity law. Also on the panel was Hilary E. Ware, associate general counsel with Netflix and former managing litigation counsel with Google. She and her wife are parents of three children. Rounding out the panel was Enrique A. Monagas, an associate for Gibson, Dunn & Crutcher, San Francisco. Monagas lended a hand to the successful Perry v. Brown case challenging California’s Proposition 8, which eliminated the right of same-sex couples to marry.

The discussion, led by Jennifer Pizer, began with a brief statistical analysis of the 2012 Census Snapshot results counting self-reported LGBT persons. The report indicated that 646,464 same-sex couples self-identified as living in a partnership. The census discloses that same-sex couples live nationwide, in every congressional district, and are a diverse collection of various economic classes and ethnicities. Pizer pointed out that seven states offer marriage equality: Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia. While Maryland granted marriage rights to same-sex couples on February 24, 2012, Maryland offers referendum options allowing citizens the opportunity to reverse recently passed legislation. Both Maryland and Washington are awaiting possible referendum votes. Maine is awaiting an override referendum veto. States offering civil unions include Delaware, Hawaii, Illinois, New Jersey, and Rhode Island. In addition, Delaware, Oregon, Washington, Rhode Island, California, Illinois, Hawaii, Nevada, and New Jersey have extensive domestic-partnership provisions providing the same rights and protections as married persons, and Colorado, Wisconsin, Maine, and Maryland provide less comprehensive domestic-partnership packages.

Pizer also pointed out that, of all economic issues that are a primary concern, voters rank gay marriage at the bottom. The ranking puts gay rights, specifically marriage rights, into a broad picture that includes the barriers created by backlash, similar to the Brown v. Education aftermath, where discouraging setbacks came after significant progress.

Ware shared what it is like to be a mom and to deal with same-sex marriage issues that range from filing tax returns to traveling. While Ware and her wife legally married under California law and can jointly file California tax returns, under the federal tax provisions, they must file separately. This disparate treatment extends to an even more personal level. For example, when Ware and her wife travel outside the state, which happens frequently, they must carry stacks of paperwork, such as medical directives, birth certificates, marriage licenses, and proof of domestic-partnership registration. In the event that their children go to the hospital, Ware’s wife must prove she is the mother too because she did not physically give birth. Should Ware or her wife get admitted into the hospital outside the state of California, visitation rights and the ability to make medical decisions then become issues.

The 1996 Defense of Marriage Act (DOMA) defines marriage as “between one man and one woman” and spouse as “someone legally married.” The LGBT argument stands strongly on the issue of unconstitutionality under the Full Faith and Credit, Equal Protection, and Due-Process clauses.

Monagas worked side by side with plaintiffs Kristin Perry’s and Sandra Steir’s attorneys, Theodore B. Olson and David Boies, helping craft trial strategy and managing day-to-day operations. Monagas began his discussion with an emotionally charged video collage of various news excerpts taken from throughout the Perry v. Brown litigation process. The defendant’s witness, David Blankenhorn, is the “reasonable person witness.” When asked “If allowing gay marriage is harming the institution of marriage, what is the harm?” Monagas pointed out that Blankenhorn said “I don’t know.” During the panel discussion, Monagas and Pizer brilliantly fielded one primary question regarding the narrow application of Perry v. Brown and whether the case could apply to every state on same-sex marriage. How does Perry apply, or could Perry apply, to states that have never introduced the same-sex marriage right, considering the facts of the case are that the state of California gave rights to a group of people, then took those rights away? Pizer and Monagas both stated that the conversation would be the same. Regardless of whether there was a right or not, the same discussions apply to anyone in any state wanting the basic marriage right. The focus is prohibition and barrier, not taking a right. It is unconstitutional to prohibit one’s fundamental right under the U.S. Constitution.

Keywords: litigation, LGBT, Proposition 8, same-sex marriage, DOMA, gay marriage

—Sandra D. Delgado Esq. is an attorney in Washington, D.C.


February 10, 2012

Ninth Circuit Affirms District Court Opinion on Prop 8

On February 7, 2012, the Federal Court for the Ninth Circuit issued a 2–1 split decision affirming the California District Court’s decision striking down the California law known as Proposition 8, which eliminated the right of same-sex couples to marry in California. Prior to this law, passed by referendum in 2008, California’s constitution protected the right to marriage of both same-sex and opposite-sex couples. In Perry v. Brown, the court’s rationale was that Proposition 8 violated the Equal Protection component of the Fourteenth Amendment.

Circuit Judge Reinhardt’s majority opinion states, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of the opposite-sex couples.” The court finds that this issue is easily resolvable, however, and decides the case on narrow grounds. Specifically, Judge Reinhardt writes, “Were we unable, however, to resolve this matter on the basis we do, we would not hesitate to proceed to the broader question—the constitutionality of denying same-sex couples the right to marry.”

The majority explains:

The official, cherished status of ‘marriage’ is distinct from the incidents of marriage, such as those listed in the California Family Code. . . . The incidents of marriage, standing alone, do not, however, convey the same governmental and societal recognition as does the designation itself. . . . Before Proposition 8, California guaranteed gays and lesbians both the incidents and the status and dignity of marriage. Proposition 8 left the incidents but took away the status and the dignity.

The court finds that this distinction is an important one and questions whether the state has any legitimate interest or reason for stripping a privilege or protection (marriage) from a class of disfavored individuals (same-sex couples). The court inevitably finds that the purported interests (furthering childrearing and responsible procreation, being cautious about changing marriage, protecting religious freedom, and preventing same-sex marriage from being discussed in schools) are not legitimate state interests, and therefore, Proposition 8 has not passed the rational basis threshold.

The dissent by Judge N.R. Smith assesses the question before the court in a very similar way to the majority. In fact, the dissent, like the majority, uses the rational-basis test. However, the dissent distinguishes Romer v. Evans from Perry and notes that Romer does not directly control. The dissent finds that the purported governmental interests that are advanced by the defenders of Proposition 8, such as “the optimal parenting rationale,” are indeed a legitimate governmental interest. The dissent then goes on to conclude that excluding same-sex couples from entering into a formally declared marriage may rationally relate to California’s interest in optimal parenting and procreation, and, therefore, the law should be immunized from a Constitutional challenge.

Keywords: litigation, LGBT, California, Proposition 8, same-sex marriage

—Nicholas Drury, Sandman, Levy & Petrich, Chicago, Illinois


January 12, 2012

Michigan Prohibits Domestic Partner Medical Benefits

On December 22, 2011, Michigan Governor Rick Snyder signed into law HB 4770. This bill, dubbed the Public Employee Domestic Partner Benefit Restriction Act, prohibits public employers from providing medical benefits to individuals currently residing with an employee unless said individual is married to the employee, a dependent of the employee, or otherwise eligible to inherit from the employee under Michigan’s intestate succession laws.

According to Equality Michigan, a statewide lesbian, gay, bisexual, and transgender (LGBT) activist group, the passage of HB 4770 is a devastating blow to LGBT public employees, as many public entities formerly provided coverage for domestic partners of employees, including the University of Michigan, Michigan State University, Wayne State University, 11 of the 12 other public universities, and at least eight cities, counties, and school districts, including Ann Arbor and Kalamazoo.

Efforts to repeal HB 4770 are already underway. The American Civil Liberties Union (ACLU) has already filed at least one lawsuit on behalf of an LGBT couple, JoLinda Jach and Barbara Ramber, challenging HB 4770. Jach is an employee of the city of Kalamazoo, which had provided Ramber health care through the city’s insurance plan. A recent accident left Ramber with permanently damaged eyesight and glaucoma, resulting in the need for daily medication. Given the new law, Ramber will no longer be able to obtain said medications and, with her current medical problems, private insurance would likely be prohibitively expensive, if she is even able to obtain coverage.

Certainly, our thoughts go out to Jach and Ramber and all other LGBT citizens of Michigan affected by this bill. While great strides have been made on many LGBT issues in recent years, these events serve as a reminder that the struggle is not yet over.

Keywords: litigation, LGBT, insurance, domestic partners

—Justin Stephens, Baker Donelson, Baton Rouge, Louisiana


January 12, 2012

Court Hears Ninth Circuit Attorney's DOMA Challenge

On December 16, 2011, the U.S. District Court for the Northern District of California heard oral argument on summary judgment motions arguing the constitutionality of the Defense of Marriage Act (DOMA). In Golinski v. Office of Personnel Management, Case No. 3:10-cv-0257-JSW, the plaintiff, Karen Golinski, is a staff attorney for the Ninth Circuit. Golinski is seeking to obtain health insurance coverage through the court for her same-sex spouse, to whom she is lawfully married under California law. Golinski argues that it is a violation of equal protection for the federal government as her employer to offer spousal health insurance to opposite-sex spouses but deny that same benefit to her and her same-sex spouse. Golinski is represented in the matter by Lambda Legal.

The Obama Justice Department joined Golinski in arguing that DOMA was unconstitutional, urging that heightened scrutiny applies to sexual-orientation classifications. According to news reports, Tony West, the head of the DOJ Civil Division, appeared in court to argue the administration’s position. Attorneys for the House of Representatives’ Bipartisan Legal Advisory Group (BLAG) also appeared and argued in favor of the constitutionality of DOMA. The presiding judge questioned whether BLAG had standing to appear in the litigation in addition to the question of DOMA’s constitutionality.

Keywords: litigation, LGBT, Defense of Marriage Act, Ninth Circuit

—J. Dalton Courson, Stone, Pigman, Walther, Wittmann, LLC, New Orleans, Louisiana


January 12, 2012

Hawaii and Delaware Civil Unions Go into Effect

Starting with the new year, same-sex couples in Hawaii and Delaware could enter into civil unions, offering those couples the rights of heterosexual married couples. Delaware’s governor previously signed into law civil unions for same-sex couples in May 2011. Similarly, Hawaii enacted civil-union legislation in February 2011. These laws became effective January 1, 2012. While not without limitation, civil unions address some of the issues same-sex couples face, providing protections and rights under state law similar to those offered to married spouses, including hospital visits or parental rights.

Just a few days prior to the January 1 effective date, two churches in Hawaii filed for a restraining order from the U.S. District Court for the District of Hawaii to prevent the bill from going into effect. The two churches claimed “imminent threat of sexual-discrimination claims because Act 1 would make them liable for ‘declining to perform a funeral for a same-sex couple, or for refusing a same-sex couple a same-sex ceremony on church grounds.’” Judge J. Michael Seabright denied the injunction request, stating that the plaintiffs lacked standing and that “H.R.S. 489 prohibit[ed] unfair discriminatory practices that deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, including gender identity or expression, sexual orientation, color, religion, ancestry, or disability.”

The Associated Press reported two Delaware lawyers were first to receive their civil union license.

Keywords: litigation, LGBT, Delaware, Hawaii, civil unions

—Sandra D. Delgado, Addison, Texas


October 27, 2011

Senate Committee to Debate Repeal of DOMA

In a notable first, the Senate Judiciary Committee has scheduled debate and a markup on legislation to repeal the Defense of Marriage Act (DOMA) for November 3, 2011. Senator Patrick Leahy, committee chairman, held a hearing in July on proposals to repeal DOMA, which defines marriage as between a man and a woman. The committee will consider a bill introduced by Sen. Dianne Feinstein in March—The Respect for Marriage Act—that would allow the federal government to provide benefits to couples in same-sex marriages.

The news was quickly heralded by many of the legislation’s supporters. “This markup is an incredible step toward ending federal marriage discrimination that causes real harm to American families,” said Joe Solmonese, president of the Human Rights Campaign. “Chairman Leahy and Senator Feinstein have been leaders in this fight, and we applaud them for continuing the momentum against this unjust law.”

President Barack Obama still has not publicly come out in support of marriage equality, but he does support repealing DOMA. In May, U.S. Attorney General Eric Holder announced that the Obama administration would no longer be defending the 1996 law in federal court after the Justice Department concluded it is unconstitutional.

Read more at MSNBC.

Keywords: litigation, LGBT, U.S. Congress, DOMA

Spencer Jones, O’Melveny & Myers, San Francisco, California


October 27, 2011

Supreme Court Declines to Hear Gay Adoption Case

In early October, the U.S. Supreme Court denied review to a case involving the rights of same-sex parents to adopt and be listed on their child’s birth certificate. In Oren Adar v. Darlene Smith, a case closely watched by gay-rights advocates, the high court rejected without comment an appeal by Oren Adar and Mickey Ray Smith, a gay couple who sued to be listed as parents on a Louisiana birth certificate of the infant they adopted.

With their ruling, the justices let stand a ruling by a U.S. appeals court that a Louisiana registrar’s decision not to list both men does not violate the child’s right to equal protection under the law and does not deny legal recognition of the New York adoption. The couple had claimed that Louisiana, where the child was born, has an unconstitutional policy against adoption by unmarried partners. The state used that policy to justify naming only one of them on an amended birth certificate. But the appeals court had also rejected the argument that gay couples have a due-process right to be listed on such certificates as joint custodial parents.

Some civil-rights groups had urged a high-court review, saying the case would have broader implications in the current legal fight in state and federal courts over same-sex marriage and whether states must honor legal rights that gays and lesbians enjoy in other states. Because the court’s ruling came without comment, however, it is not possible to use it to predict how the justices might decide in the future on these separate but related issues.

Read more from CNN.

Keywords: litigation, LGBT, federal courts, California

Spencer Jones, O’Melveny & Myers, San Francisco, California


October 27, 2011

Court Action in Minnesota Challenges Bullying

Minnesota’s Anoka-Hennepin School District, just outside the Twin Cities, made headlines in recent years after seven students committed suicide between November 2009 and May 2011. Parents and friends say four of those students were gay, perceived to be gay, or questioning their sexuality. They say at least two of them were bullied because of their sexuality.

As a result of this rash of suicides, back in July of this year, the Southern Poverty Law Center (SPLR), the National Center for Lesbian Rights (NCLR), and Faegre & Benson, LLP, sued the Anoka-Hennepin School District, alleging pervasive anti-gay harassment in the district’s schools as well as a “gag policy” that prevents teachers from discussing issues related to lesbian, gay, bisexual, and transgender (LGBT) people. The groups filed suit in the U.S. District Court for the District of Minnesota after the school district failed to address the persistent abuse or repeal its discriminatory policy.

Anoka-Hennepin encompasses the Twin Cities’ northwestern suburbs and is the state’s largest school district. The district’s curriculum policy, adopted in 2009, bars teachers from taking a position on homosexuality in the classroom and says such matters are best addressed outside of school. It’s become known as the neutrality policy. Though the groups have participated in at least two mediation sessions since the suit was commenced, the case remained unresolved.

Read more from CNN.

Keywords: litigation, LGBT, federal courts, Minnesota

Spencer Jones, O’Melveny & Myers, San Francisco, California


August 10, 2011

Oetken Will Serve as First Male Openly Gay Federal Judge

On July 18, the Senate voted 80 to 13 to approve the nomination of J. Paul Oetken, a lawyer and senior vice president and associate general counsel of Cablevision, to the U.S. District Court of Southern New York. President Obama had nominated Oetken to the federal bench in January of this year. Oetken’s nomination was sent to the Senate floor in early April after being unanimously approved by the Senate Judiciary Committee.

Although the approval of Oetken’s nomination made him the first openly gay male Article III federal judge, he is not the first openly gay judge to reach the federal bench. In 1994, Deborah Batts, an openly gay woman, was sworn in as a Federal District Judge for the Southern District of New York, a position she is still currently serving.

Further hopes to diversify the federal bench are still in process. Alison Nathan, a former associate White House counsel and an openly gay woman, was also nominated to the U.S. District Court of Southern New York by President Obama in March of this year. Her nomination was approved by the Senate Judiciary Committee in July and will now be moved to the Senate to be voted on in the near future.

Keywords: litigation, LGBT, federal courts, judges, New York

Spencer Jones, O’Melveny & Myers, San Francisco, California


August 10, 2011

New Trial Judge Refuses to Vacate Prop. 8 Decision

In a decision released on June 15, 2011, Chief U.S. District Judge James Ware of the Northern District of California denied a motion by the proponents of Proposition 8 to vacate last summer’s ruling by now-retired Chief Judge Vaughan Walker, which held Prop. 8 to be unconstitutional.

The proponents argued that because Judge Walker is a gay man with a long-term partner, he “stood in the shoes” of plaintiffs who were challenging Prop. 8 and thus had a conflict of interest requiring his recusal from the case. Judge Ware squarely rejected all of the proponents’ arguments, concluding that “In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge.”

Within weeks of the ruling, counsel for proponents filed an appeal with the 9th Circuit of Judge Ware’s ruling rejecting the motion to vacate.

Keywords: litigation, LGBT, California, Proposition 8

Spencer Jones, O’Melveny & Myers, San Francisco, California


August 10, 2011

Former Committee Chair Asks Prop. 8 Opponents to Reengage

Former LGBT Litigator Committee Chair Laura Brill, a partner at the Los Angeles law firm Kendall Brill & Klieger, LLP, and the author of four amicus briefs on equal marriage rights in California, recently wrote an opinion piece in the Orange County Register marking the two-year anniversary of the California Supreme Court’s decision upholding Proposition 8 as a valid exercise of the state’s initiative process.

The piece, titled “It’s Time for Prop. 8 Opponents to Re-engage,” laments that Proposition 8 remains in effect in California despite the fact that “most people now support equal marriage rights and that the State of California itself has actively sought to nullify the law, rather than defend it in court. Brill urges supporters of marriage equality not to wait for the courts to act, as the complexity of the issues involved and the process of appeals promises only further delay in reaching any final result from them for some time.

In answer to the question “But what can I do?” Brill’s answer is “a lot.” She goes on to describe five specific actions “anyone can take that will hasten the end of Proposition 8 once and for all.”

Keywords: litigation, LGBT, California, Proposition 8

Spencer Jones, O’Melveny & Myers, San Francisco, California


June 17, 2011

Bankruptcy Court Declares DOMA Unconstitutional

Thomas Donovan, a bankruptcy judge for the Central District of California, declared the Defense of Marriage Act (DOMA) unconstitutional in a ruling issued on June 13, 2011. In a surprising and unusual move, his decision was joined by 19 other bankruptcy judges in the Central District (only four of that court’s judges did not join in the decision).

This case involves a gay couple in California who filed for joint bankruptcy protection as a married couple. The U.S. Trustee’s Office, an arm of Department of Justice that oversees bankruptcy cases, asked Donovan to dismiss the case on the grounds that DOMA barred the court from recognizing the couple’s marriage. Donovan declined to dismiss the case, saying the couple “demonstrated that there is no valid governmental basis for DOMA. In the end, the court finds that DOMA violates the equal protection rights of the debtors as recognized under the due process clause of the Fifth Amendment.” The ruling also criticized Congress for passing the law, saying:

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry.

Earlier this year, the Obama Administration said it believed DOMA violated the Constitution, and, despite the Trustee’s Office’s bid to dismiss the couple’s bankruptcy case, ordered the Department of Justice to stop defending the law in court. Judge Donovan’s decision, coming with the backing of a large majority of the Central District, may well prove to be a model for other bankruptcy courts that take up this issue.

Read more about the lawsuit in The New York Times.

Keywords: litigation, LGBT, Defense of Marriage Act, Department of Justice, Central District of California

Spencer Jones, O’Melveny & Myers, San Francisco, CA


June 17, 2011

Equal Treatment Required for Gay-Straight Alliances

On June 14th, the U.S. Department of Education released a policy guidance letter to school districts across the country making it clear that gay-straight alliances (GSAs) must be allowed to form on an equal basis with other student groups. Recognizing that “[h]arassment and bullying are serious problems in our schools,” especially for lesbian, gay, bisexual, and transgender (LGBT) kids, the letter directs as follows:

The general rule, approved by the U.S. Supreme Court, is that a public high school that allows at least one noncurricular student group to meet on school grounds during noninstructional time (e.g., lunch, recess, or before or after school) may not deny similar access to other noncurricular student groups, regardless of the religious, political, philosophical, or other subject matters that the groups address.

Despite a string of court cases dating back to the 1990s that have interpreted the Federal Equal Access Act to require public schools to allow GSAs to organize as recognized clubs and use school facilities, some school districts have still acted to thwart their existence. The letter called such attempts “unlawful” and urged all school districts to refer to the department’s previously issued guidance on establishing antibullying policies to help ensure equal and safe access to education for all students.

Lambda Legal, who won a recent victory for a blocked student GSA in a lawsuit about antigay, sexist discrimination in a school in upstate New York, declared in response to the directive that “we hope that every administration in every school district across the country gets the message loud and clear: If you allow student clubs on campus, then you must allow gay-straight alliances equally.”

Keywords: litigation, LGBT, gay-straight alliances, Department of Education

Spencer Jones, O’Melveny & Myers, San Francisco, CA


June 17, 2011

Lawyers Asked to Help LGBT Kids in Foster Care

The ABA’s Center on Children and the Law has put out a call to lawyers to join in its Opening Doors Project, which is targeted at helping lesbian, gay, bisexual, and transgender (LGBT) kids in foster care. The center recently launched a new video and web campaign, The Kids Are Listening, which is the first service of its kind in the nation. It offers free online resources and support to legal and social services professionals—from judges to children’s attorneys and social services personnel—who are involved in the foster-care community.

Via the online video, Facebook, Twitter, and YouTube Pages, the Kids are Listening campaign encourages people of all ages and walks of life to stand up to hate speech and discrimination against LGBT youth. The campaign enjoys the support of a growing coalition of major organizations across the nation, including the Anti-Defamation League, Cartoon Network, the Child Welfare League of America, the It Gets Better Project, the Safe Schools Coalition, Healthy Teens Network, the National Association of Counsel for Children, the National Association of Juvenile and Family Court Judges, the American Humane Association, the National Black Justice Coalition, and Stop Bullying Now!, a federal program run by the Health Resources and Services Administration.

We hope you will take a moment to view the website and video and share this information with others committed to improving the lives of LGBT young people in foster care and in our communities.

Keywords: litigation, LGBT, Center on Children and the Law, The Kids Are Listening

Spencer Jones, O’Melveny & Myers, San Francisco, CA


December 30, 2010

Illinois Legislature Approves Civil Unions

The Illinois legislature has passed a bill authorizing civil unions. News reports indicate that Illinois Governor Patrick Quinn has promised to sign the bill into law in early January.

Unlike other states, in which civil unions are available only to same-sex couples, Illinois will allow both same-sex and opposite-sex couples to enter into a civil union under the new measure. “It just seemed wrong to me to write a law that would be discriminatory,” said state Rep. Greg Harris, D-Chicago, the bill’s chief sponsor in the Illinois House. It is interesting to note that many heterosexual senior citizens lobbied for the civil unions bill. Many seniors stand to lose survivorship benefits if they remarry, but they want to obtain the benefits of marriage with new partners.

An Illinois civil union will confer on a couple the same benefits that a married couple would receive under Illinois state law. However, important federal-level marriage rights remain off-limits to couples in a civil union, such as the right to file joint tax returns and the right to survivorship benefits under Social Security. Civil unions are expected to begin in Illinois in June 2011. At that time, Illinois will become the tenth state to provide a method for the recognition of same-sex couples under state law that approximates the rights of married couples, joining Massachusetts, Connecticut, New Hampshire, Iowa, and Vermont (which, along with the District of Columbia, allow same-sex marriage), and California, Nevada, New Jersey, Oregon, and Washington (which allow for civil unions or domestic partnerships).

Read more about the lawsuit in The Chicago Tribune.

Dalton Courson, Stone Pigman Walther Wittmann, New Orleans, Louisiana


December 30, 2010

Ninth Circuit Hears Proposition 8 Appeal

The Ninth Circuit Court of Appeals took on the historic clash over California’s Proposition 8 on December 6, 2010, and the judges asked probing questions as they weighed arguments about whether voters acted rationally in banning gays from marrying in 2008. Proposition 8 supporters are appealing a ruling issued in August by U.S. District Judge Vaughn Walker that the measure violated the federal constitutional rights of gay people. For more than two hours, the panel of judges asked pointedly whether the voters could legally take from gay people the right to marry that had been briefly granted them by the California Supreme Court.

The questions and comments by the three-judge panel hinted that the court may craft a ruling that would allow gays and lesbians to marry in California while leaving other states’ laws intact—a restrained approach seemingly designed to appeal to the U.S. Supreme Court. Neither side predicted how quickly the judges might return with their ruling.

Read more about the hearing in The San Francisco Chronicle and The Sacramento Bee.

Spencer Jones, O’Melveny & Myers, San Francisco, California


December 30, 2010

Study Shows LGB Youth Are Over-Criminalized

Lesbian, gay, and bisexual (LGB) adolescents are about 40 percent more likely than other teens to receive punishment at the hands of school authorities, police, and the courts, according to research released online today and set to be published in the January 2011 issue of Pediatrics. Absent any differences in misbehavior between LGB youth and their heterosexual peers, youth who identified themselves as LGB nonetheless more frequently received virtually all types of punishment, including school expulsions, arrests, juvenile convictions, adult convictions, and especially police stops.

Criminal-Justice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Study,” by Kathryn E.W. Himmelstein, B.A., and Hannah Brückner, Ph.D., is the first study to document excessive punishment of LGB youth nationwide. The study was based on the National Longitudinal Study of Adolescent Health and included approximately 15,000 middle and high school students, who were followed for seven years into adulthood.

The study asserts that the excessive punishments of LGB youth may reflect authorities’ reluctance to consider mitigating factors such as young age or self-defense in determining punishment for LGB youth. Analysis suggests an urgent need for all child-serving professionals to reflect on strategies to reduce the criminalization of nonheterosexual youth as they navigate adolescence in an often hostile environment.

— Catherine Krebs, committee director, ABA Section of Litigation, Children’s Rights Committee, Washington, D.C.


December 28, 2010

Law Firms Offer "Gross-Up" Tax Offsets to Lesbian and Gay Employees

Several national law firms are rolling out a new perk aimed at reimbursing their gay employees for the tax liability they incur when they elect to add domestic partners to their health benefit plans. The latest firm is McDermott Will & Emery, which recently said that, beginning in 2011, it would provide a tax “gross-up” payment for its employees in same-sex domestic partnerships. McDermott followed Morrison & Foerster, which last month said it would provide a similar payment to assist its staff and non-partner attorneys who elect domestic partner health benefits.

Large law firms have for some time offered their gay employees the option to get health benefits for their domestic partners, but gay employees face a disadvantage because they are taxed on the value of their partners’ medical, dental, and vision benefits. Now some law firms are trying to plug that hole by paying their gay employees the difference. Other law firms that offer a gross up include Cadwalader, Wickersham & Taft and Linklaters. This is a promising trend that, it is to be hoped, will continue to spread to other law firms in 2011.

Read more about the “gross-up” trend in The New York Law Journal.


October 28, 2010

Enforcing a Right to Counsel for Children: The Time is Now

On Thursday, August 5, 2010, at the ABA Annual Meeting in Chicago, Illinois, the Children’s Rights Litigation Committee presented the program Enforcing a Right to Counsel for Children: The Time is Now. Every day, children are removed from their homes and placed into state custody. Depending on the state in which they live, they may not be represented by a lawyer in life-impacting legal proceedings.

This program explored the role a lawyer should play for a child in dependency court under the ABA Model Rules of Professional Responsibility and what barriers exist to allowing lawyers to represent children. Speakers included Judge Rosemary Barkett, U.S. Court of Appeals for the Eleventh Circuit; Diane Geraghty, Civitas ChildLaw Center, Loyola University School of Law; Hilarie Bass, vice chair of the Section of Litigation; Trevor Wade, former foster youth, Denver, Colorado; Michael Dale of the Nova Southeastern University Law Center; Trenny Stovall of the DeKalb County Child Advocacy Center; and Angela Vigil of the Section of Litigation’s Children’s Rights Litigation Committee.

Panelists had a vigorous discussion about why children need lawyers and what role lawyer should have in cases. As one panelist noted, “When the state comes with all of its power to remove you from your home, who do you want standing with you? You would choose a lawyer. What you want for a child is what you also want for yourself.” Michael Dale addressed the concern that if children have lawyers who are client-directed, children may choose to argue for dangerous outcomes. He noted that this type of argument “denigrates the professionalism of lawyers.” Lawyering includes the process of counseling and the provision of guidance to clients. Panelists noted that a guardian ad litem does not have a confidential relationship with a child client, but a lawyer does. Due to the establishment of trust through this confidential relationship, children are more willing to work with lawyers to establish the goals of representation.

Diane Geraghty discussed her representation of a 13-year-old girl who noted at the end of her case that due to her representation, “I had my day in court; I understood the outcome better; I counted.”

This panel really illustrated how legal representation provides a child with a voice. It can be the difference between a future a child embraces and one he or she rejects. For the children, the time is now.

To read more about this program, visit ABA Now.

— Catherine Krebs, committee director, ABA Section of Litigation, Children’s Rights Committee, Washington, D.C.


October 22, 2010

Law Firms Excel in Corporate Equality Index

Since 2002, the Human Rights Campaign Foundation’s Corporate Equality Index has surveyed major businesses, including law firms, to benchmark important employer benefits and protections for LGBT employees and their families. In 2006, of the first-year law firms invited to participate, 12 achieved a 100 percent rating.

The HRC Foundation recently released its ninth edition of the Corporate Equality Index 2011: Rating American Workplaces on Lesbian, Gay, Bisexual, and Transgender Equality. This year, even with the struggling economy, 477 companies actively participated in the system that will rate them on more than 40 specific policies and practices covering nearly every aspect of employment for LGBT workers—from pension benefits to gender transition guidelines to supplier diversity. This number includes the participation of an unprecedented 97 law firms—eclipsing every other industry represented on the index.

The HRC Foundation not only tracks firms’ progress, but also actively works with firm diversity managers and partnership committees, as well as with LGBT attorneys, to implement inclusive policies at the nation’s most prestigious firms. If your firm has not participated in the Corporate Equality Index, you can find information on the HRC website about how to complete a survey for the Corporate Equality Index 2012 (surveys are due June 30, 2011).

Spencer Jones, O’Melveny & Myers, San Francisco, California


October 15, 2010

Florida Appeals Court Invalidates State’s Gay Adoption Ban

On September 22, 2010, a three-judge panel of the Florida Third Circuit Court of Appeal unanimously struck down Section 63.042(3) of the Florida Statutes, which banned homosexuals from adopting. Florida Dep’t of Children & Families v. In re Matter of Adoption of X.X.G. and N.R.G., No. 3D08-3044. Ruling on the state’s appeal of a decision by a state trial judge granting Plaintiff Martin Gill’s petition to adopt his foster children, the appeals court found that the ban violated the equal protection provision of the Florida Constitution because no rational basis existed to exclude gay applicants from adopting. Gill was represented by a trial team that included Hilarie Bass, a partner at Greenberg Traurig in Miami and current chair of the Section of Litigation.

Following the decision, on October 12, Florida’s Department of Children and Families announced that it had decided not to appeal the court’s decision. Therefore, the state’s gay adoption ban will no longer be enforced.

The case also appeared in the Miami Herald story DCF won't appeal overturn of gay adoption ban.

Dalton Courson, Stone Pigman Walther Wittmann, New Orleans, Louisiana


October 15, 2010

U.S. District Court: "Don't Ask, Don't Tell" Unconstitutional

On September 9, 2010, Judge Virginia A. Phillips of the U.S. District Court for the Central District of California declared the U.S. military’s ban on openly gay service members, better known as “Don’t Ask, Don’t Tell,” unconstitutional because it violates the First and Fifth Amendment rights of lesbians and gay men. The Don’t Ask Don’t Tell policy prohibits the military from asking about the sexual orientation of service members. Under the 1993 policy, service members who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

In her decision, Judge Phillips found that the Don’t Ask Don’t Tell policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruitment efforts during wartime and requiring the discharge of service members who have critical skills and training, Judge Phillips wrote. The plaintiffs in the case, the Log Cabin Republicans, sued the federal government in 2004 to stop the policy.

Subsequently, on October 12, 2010, Judge Phillips issued an injunction ordering the military to suspend and discontinue any investigation or discharge, separation, or other proceeding that has been commenced under the policy. The Department of Justice responded with an appeal and a request for a stay of the ruling.

The case also appeared in the New York Times story Unexpected Turns for Suit Over “Don’t Ask” Rule.

Spencer Jones, O’Melveny & Myers, San Francisco, California


October 15, 2010

Federal Court Dismisses Challenge to Hate Crimes Legislation for Lack of Standing

Judge Thomas Ludington of the Eastern District of Michigan issued a ruling dismissing a challenge to the constitutionality of the criminal provisions of the Matthew Shepherd and James Byrd, Jr., Hate Crimes Prevention Act, 18 U.S.C. Sec. 249(a)(2). Glenn v. Holder, No. 10-10429-TLL-CED (E.D. Mich. Sept. 7, 2010). The act, passed by Congress in 2009, provides criminal penalties for anyone who “willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person.”

The plaintiffs in Glenn, a group of pastors and the president of the American Family Association of Michigan, alleged that the act violated their First Amendment right to express their opposition to homosexuals. Granting a motion to dismiss filed by the attorney general, the court held that the plaintiffs lacked standing because they failed to demonstrate any likelihood that they would be prosecuted under the act. Online reports have indicated that the plaintiffs plan to appeal.

The case also appeared in the Bay City Times story Federal judge in Bay City dismisses lawsuit challenging Hate Crimes Act.

Dalton Courson, Stone Pigman Walther Wittmann, New Orleans, Louisiana


October 15, 2010

Federal Court Rules California’s Proposition 8 to be Unconstitutional

On August 4, 2010, Judge Vaughn Walker of the U.S. District Court for the Northern District of California ruled in Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal.) that Proposition 8, the 2008 ballot initiative that amended the California Constitution to provide that only the union of one man and one woman would be valid or recognized as a marriage in California, violated the Due Process and Equal Protection Clauses of the 14th Amendment.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” wrote Judge Walker in his 136-page decision. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.” The ruling was a win for lawyers Ted Olson and David Boies, an unlikely pair who faced off against one another during the aftermath of the 2000 presidential election (Olson represented George W. Bush and Boies represented Al Gore.). California Governor Arnold Schwarzenegger applauded the ruling, saying it “affirms the full legal protections and safeguards I believe everyone deserves.”

Judge Walker subsequently rejected the Proposition 8 proponents’ motion for a stay, 702 F.Supp.2d 1132 (Aug. 12). But on August 16, the motion panel of the Ninth Circuit Court of Appeals ordered Judge Walker’s decision stayed pending appeal—though also ordered an expedited briefing and hearing schedule for the case.

The case also appeared in the San Francisco Chronicle story Prop. 8 judge strikes down same-sex marriage ban.

Spencer Jones, O’Melveny & Myers, San Francisco, California


October 15, 2010

David Boies Addresses Opening Assembly at ABA Annual Meeting in San Francisco

Liberty, equality, and protection. These watchwords framed David Boies’ address to the ABA Annual Meeting Opening Assembly in August in San Francisco. Outgoing ABA president Carolyn Lamm introduced Boies as “a star by all who know him.” Surely, after his and Ted Olson’s victory in challenging Proposition 8, the LGBT community and its allies count Boies among the stars as well.

Boies’ address centered on the rule of law and its place within American culture. Boies identified judicial supremacy and judicial independence as unique innovations in the American legal system. He emphasized that the applicability of the rule of law must be predictable, but recognized that the increasingly disproportionate distribution of resources in American society presents a challenge to predictability and, consequently, to the rule of law.

Boies made four recommendations for overcoming these challenges. First, the legal profession must examine its procedures and eliminate the ways it favors the better resourced party. Second, the profession must find creative ways to bring the jury system into the 21st Century. Specifically, he recommended that juries be provided with the tools to evaluate the increasingly complex and specialized problems they are asked to consider. Third, the system must increase compensation for both federal and state judges in accordance with the standard of living. Boies noted that compensation is particularly important to maintaining an independent judiciary, especially in light of judges falling under attack for promoting civil and human rights. Fourth, Boies called for the elimination of state-sponsored and state-enforced discrimination. He warned that if judicial decisions are made based on the identity of the parties, the rule of law will be undermined.

In closing, Boies recognized that the legal system recently took an important step in eliminating discrimination against gay and lesbian citizens with the repeal of Proposition 8. He noted that the decision comports with his ideal of bringing the rule of law to every citizen. Overall, Boies was cautiously optimistic that the legal profession can overcome the challenges it faces.

David Alan Perkiss, UCLA Law School, Los Angeles, California


October 15, 2010

ABA House of Delegates Passes Landmark Same-Sex Marriage Resolution

During the ABA Annual Meeting in San Francisco in August, the ABA House of Delegates adopted a landmark resolution in support of marriage equality. The text of the measure urged all “state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

The proposal was submitted by the ABA’s Section of Individual Rights and Responsibilities, and it had 13 sponsors, including bar associations in the states of New York, Vermont, Massachusetts, and Washington, as well as the cities of San Francisco, New York, and Beverly Hills. The proposed resolution built on previous actions by the House of Delegates, including a 2009 vote urging the repeal of Section 3 of the federal Defense of Marriage Act (DOMA), which denies federal marital benefits and protections to lawfully married same-sex spouses, and a 2004 vote opposing efforts to enact a federal constitution amendment or other legislation that would prevent states from permitting same-sex marriages. In their report and recommendations to the House, supporters of the measure rejected civil unions as a substitute for full marriage equality, calling civil unions a “separate and ultimately inferior system” and comparing the argument for civil unions in lieu of marriage to the separate-but-equal reasoning of Plessy v. Ferguson that upheld racial segregation.

The resolution also appeared in the ABA Journal story ABA Backs Marriage Equality for Gays and Lesbians.

Spencer Jones, O’Melveny & Myers, San Francisco, California


ABA House of Delegates to Consider Same-Sex Marriage Resolution

During the ABA Annual Meeting in San Francisco, August 5-10, 2010, the ABA House of Delegates will consider a resolution in support of marriage equality. The text of the measure calls for the ABA to “urge[] state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.” If adopted, the measure would become official ABA policy.

The ABA’s Section of Individual Rights and Responsibilities submitted the proposal, which has 13 cosponsors, including bar associations in the States of New York, Vermont, Massachusetts, and Washington, as well as the Cities of San Francisco, New York, and Beverly Hills. The proposed resolution builds on previous actions by the House of Delegates, including a 2009 vote urging the repeal of Section 3 of the federal Defense of Marriage Act (DOMA)—which denies federal marital benefits and protections to lawfully married same-sex spouses—and a 2004 vote opposing efforts to enact a federal constitution amendment or other legislation that would prevent states from permitting same-sex marriages. In their report and recommendations to the House, supporters of the measure reject civil unions as a substitute for full marriage equality, calling civil unions a “separate and ultimately inferior system” and comparing the argument for civil unions in lieu of marriage to the reasoning of Plessy v. Ferguson that upheld racial segregation.


U.S. District Court finds DOMA Section 3 to be Unconstitutional

A federal judge ruled in two separate decisions issued in early July that a federal ban on same-sex marriages is unconstitutional because it interferes with a state’s right to define marriage. U.S. District Judge Joseph Tauro’s rulings came in response to two challenges to the 1996 Defense of Marriage Act (DOMA). In the first case, the State of Massachusetts argued that the law denied benefits such as Medicaid to gay married couples in the state, where same-sex unions have been legal since 2004. Tauro agreed, saying the act forces Massachusetts to discriminate against its citizens. The act “plainly encroaches” upon the right of the state to determine marriage, the judge said. In the second case, brought by several Massachusetts same-sex couples, Judge Tauro ruled that DOMA violates the equal protection clause of the U.S. Constitution.



Victory in Supreme Court in Christian Legal Society v. Martinez

In a 5-4 decision, the U.S. Supreme Court affirmed the University of California-Hastings’ decision to deny funding to student groups that discriminate against its LGBT students. A public university is not required to subsidize student groups with discriminatory membership policies, the Court ruled.

Hastings’s requirement that officially recognized student organizations be open to everyone does not force the Christian Legal Society to change either its beliefs or its membership practices to stay on campus. A school “may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership,” wrote Justice Ruth Bader Ginsburg in the majority opinion.

In a separate opinion, Justice Kennedy, who typically casts the deciding vote in close cases, said inclusiveness and diversity are especially valuable in a law school, where students of varying backgrounds and beliefs learn through open discussion.



Supreme Court Rules that Washington State Must Disclose Petition Signers’ Information

The U.S. Supreme Court ruled in favor of disclosing the names of petitioners who called for a ballot measure that could have repealed an expanded domestic partnership rights law in Washington State last year. The case, Doe v. Reed, centered on Referendum 71, a ballot initiative that asked voters whether they wanted to approve or reject a 2009 “everything but marriage law” for same-sex couples.

Writing for the majority in the 8-1 ruling, Chief Justice John G. Roberts ruled that the plaintiffs’ arguments about potential harm were ancillary to the fundamental question before the court of whether such disclosure violates the First Amendment. “Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, plaintiffs’ broad challenge to the [Washington Public Records Act] must be rejected.” Justice Thomas was the sole dissenting justice in the case.


IRS Changes Tax Filing Rules for Registered Domestic Partners in California

The Internal Revenue Service (IRS) has ruled that same-sex couples must be treated the same as heterosexual couples under a feature of California tax law. Advocates for the change say it is the first time the agency has acknowledged gay couples as a unit for tax purposes.

The change reverses a 2006 IRS ruling and opens a tax benefit to many same-sex couples that wasn’t available before. Nearly 58,000 couples registered as domestic partners in California must combine their income and each report half on their individual tax returns. The ruling may also affect couples in Nevada and Washington State.


LGBT Domestic Violence Toolkit for Attorneys

The ABA, in collaboration with the National LGBT Bar Association, has released an LGBT Domestic Violence Toolkit designed specifically for attorneys. This legal resource was produced as part of the ABA’s Legal Assistance and Education for LGBT Victims of Domestic Violence Project, which was created to provide national leadership and education on domestic violence issues in LGBT communities. The toolkit contains helpful resources to assist attorneys and their clients in better understanding and responding to domestic violence in the context of LGBT relationships.


What Lawyers Need to Know About Representing LGBTQ Youth

A complete video recording of an informative panel hosted by the ABA Children’s Rights Litigation Committee at Cardozo Law School in April 2010 is now available online. The program, “What Lawyers Need to Know About Representing LGBTQ Youth,” focused on providing lawyers with advocacy tools to successfully represent lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth in a variety of settings. View the four-part video recording below (you may need to click the “play” button again if a video pauses).


White House Agrees to Compromise for Reform of "Don't Ask, Don't Tell"

A proposal to step up the repeal of the ban on gays and lesbians serving openly in the military but still allow the Pentagon time—perhaps even years—to implement new policies recently won the White House’s backing after administration officials met with gay rights activists. “The proposed amendment will allow for completion of the comprehensive review, enable the Department of Defense to assess the results of the review, and ensure that the implementation of the repeal is consistent with standards of military readiness, effectiveness, unit cohesion, recruiting and retention,” Budget Chief Peter Orszag wrote in an evening letter to Rep. Patrick Murphy (D-PA), who is leading the repeal in the House.


President Obama Extends Hospital Visitation Rights to Same-Sex Partners

President Obama has requested that the Department of Health and Human Services begin rulemaking and eventually enter regulations prohibiting hospitals that receive Medicare funds from preventing LGBT patients’ same-sex partners from having full visitation rights. This executive order will ensure that LGBT patients’ choices about who may make critical healthcare decisions for them will be honored, and it’s perhaps the most significant step so far in President Obama’s efforts to expand the rights of gay and lesbian Americans.


Judge Strikes Down Arkansas Adoption Ban

In a closely watched case brought by the ACLU challenging a successful 2008 Arkansas ballot initiative that bans unmarried couples from adopting children and serving as foster parents, a circuit court judge found the new law to be unconstitutional. “It infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas,” wrote Circuit Judge Chris Piazza. The decision is expected to be appealed to the Arkansas Supreme Court.


Paul Smith to Receive 2010 Thurgood Marshall Award

The American Bar Association Section of Individual Rights and Responsibilities named civil liberties and human rights attorney Paul M. Smith as the recipient of this year’s Thurgood Marshall Award, which will be presented on August 7, 2010, at the ABA Annual Meeting in San Francisco.

An openly gay partner in the Washington, D.C., office of Jenner & Block, Smith is one of the country’s leading lawyers in the areas of First Amendment litigation and appellate advocacy. He has presented oral argument in more than a dozen Supreme Court cases, including his groundbreaking advocacy in Lawrence v. Texas, the landmark gay rights case that is often compared in significance to the Brown v. Board of Education case, which was argued and won by Thurgood Marshall. Smith has not only led the way in advancing LGBT civil rights, but he has also been a leading advocate in addressing voting rights issues, including arguing three times before the U.S. Supreme Court in voting rights matters since 2004.


Inclusiveness Efforts Highlighted in the ABA Journal

Inclusiveness efforts seek to make LGBT lawyers—and all others—feel at home. Legal employers are increasingly realizing that their efforts at creating diversity—simply recruiting a certain number of LGBT attorneys every year—has resulted in little growth in the number of such lawyers who stay long term and move into leadership ranks. So some have shifted their focus to creating workplaces in which LGBT and other minority candidates feel understood, appreciated, and respected. The expectation is that those attorneys will be more creative and productive and less likely to move on.”


Washington, D.C., Begins Marrying Same-Sex Couples

Following Justice Roberts’ decision to keep the Supreme Court out of the matter, Washington, D.C., became the sixth jurisdiction to allow gay marriage on March 3, 2010. Before the day was over, about 150 gay couples had filed for marriage licenses. On a normal day, D.C. Superior Court processes about 10 marriage licenses.


Perry v. Schwarzenegger: Challenge to Proposition 8 Brought by the American Foundation for Equal Rights

On January 11, 2010, a remarkable legal case opened in a San Francisco courtroom—on its way, it seems almost certain, to the Supreme Court. Perry v. Schwarzenegger challenges the constitutionality of Proposition 8, the California referendum that, in November 2008, overturned a state Supreme Court decision allowing same-sex couples to marry. Its lead lawyers are unlikely allies: Theodore B. Olson, the former solicitor general under President George W. Bush, and a prominent conservative; and David Boies, the Democratic trial lawyer who was his opposing counsel in Bush v. Gore. The two are mounting an ambitious case that pointedly circumvents the incremental, narrowly crafted legal gambits and the careful state-by-state strategy that leading gay-rights organizations have championed in the fight for marriage equality. The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage. Recent filings and court developments can be found here.


Gill v. Office of Personnel Management: GLAD’s Federal Challenge to Section 3 of the Defense of Marriage Act

In the first concerted, multi-plaintiff legal challenge to Section 3 of the federal Defense of Marriage Act (DOMA), GLAD filed a lawsuit on March 3, 2009, on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. Specifically, the lawsuit challenges the federal government’s denial of marriage-related protections and benefits to legally married Massachusetts same-sex couples, protections, and benefits that are available to all other legally married couples. Recent filings and court developments can be found here.


Ninth Circuit Rulings on Gay Couples’ Benefits Question Defense of Marriage Act

Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals ruled that Mr. Tony Sears—who married Mr. Brad Levenson, a deputy federal public defender, last July—is entitled to the same spousal benefits that heterosexual couples employed by the department receive. The 9th Circuit's chief judge, Alex Kozinski, also weighed in on the subject previously, granting benefits to the same-sex spouse of a staff attorney for the court. But he stopped short of basing that decision on constitutional grounds.


Related Resources:

Filings Before the California Supreme Court