Site moved to, redirecting in 2 seconds!

49 posts categorized "DoMA"

July 08, 2011

Change of heart: No DoMA challenge after all to gay couple filing joint petition for bankruptcy - UPDATED

The United States Trustee, a component of the Justice Department, has withdrawn its appeal of a Bankruptcy Court ruling that a lawfully married gay couple could file a joint petition, as spouses, seeking bankruptcy. The Justice Department has stopped defending DoMA, and the appeal was filed only to give the legal team hired by House Republicans the opportunity to defend it. So what this really means is that Paul Clement's team has taken a pass on this case, and presumably any bankruptcy case raising the same issue.

It isn't a surprise - the House Republican legal team bypassed the opportunity to become involved in this case earlier.  And it also makes sense for them to prioritize the much more important direct challenges to the constitutionality of DoMA's Section 3, like the Gill case, which is being actively contested in the First Circuit.

But it is also true that every time a court invalidates DoMA and that ruling goes unchallenged, a sense that there is a new status quo becomes more deeply entrenched, and the realization spreads that federal recognition of same-sex marriage does nothing to harm the administration of programs or the other functions of government. 

Meanwhile, Senator Patrick Leahy, chair of the Committee on the Judiciary, announced that the committee would hold hearings on a bill to repeal DoMA.

More details from MetroWeekly:

...DOJ spokeswoman Tracy Schmaler wrote to Metro Weekly that the July 6 filing in the Balas and Morales case represents a new policy, writing, "The Department of Justice has informed bankruptcy courts that it will no longer seek dismissal of bankruptcy petitions filed jointly by same-sex debtors who are married under state law."

Because of the federal definition of marriage contained within Section 3 of the Defense of Marriage Act, such joint filings have routinely been dismissed by courts at the urging of the U.S. Trustee, whose job as a "watchdog" over the bankruptcy process includes "[t]aking legal action to enforce the requirements of the Bankruptcy Code," according to the website for U.S. Trustee Program, which is a program under the Department of Justice.

In Balas and Morales's case, however, the bankruptcy court found on June 13 that Section 3 of DOMA was unconstitutional in its application to such couples attempting to file joint bankruptcy petitions. The U.S. Trustee, in consultation with the BLAG, had filed a notice that it was appealing the decision. The July 6 filing asks the court to withdraw that appeal.

In the filing, made in U.S. Bankruptcy Court in the Central District of California on July 6, Assistant U.S. Trustee Jill Sturtevant writes, "The [DOJ] has advised the [BLAG] of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA."

Sturtevant goes on to write, "The BLAG is actively participating in litigation in several other courts in which the constitutionality of Section 3 has been challenged. In light of the decision by the BLAG not to participate in this appeal and the availability of other judicial fora for the resolution of the constitutional question, the United States Trustee has determined that it is not a necessary or appropriate expenditure of the resources of this Court and the parties to continue to litigate this appeal."

About the department-wide policy, Schmaler wrote to Metro Weekly that the decision was made after consulting with the BLAG went on to note, "This decision is consistent with and follows the Administration's notification to Congress in February of this year that it would no longer defend the constitutionality of Section 3 of  DOMA as applied to legally married same-sex couples but would seek to provide Congress an opportunity to enter litigation to argue in favor of DOMA's constitutionality. This decision to stop filing motions to dismiss bankruptcy petitions avoids generating costly and time-consuming constitutional litigation that neither the BLAG nor the Department plans to defend."

UPDATE - Based on the Department's agreement to treat this ruling as applying to all bankruptcies nation-wide, the plaintiffs have notified the court that they will not contest the motion for withdrawal.  See the filing here.

July 03, 2011

A new (limited) line in the sand for Equal Protection analysis

The United States Department of Justice is now on record before the federal courts as supporting heightened scrutiny for sexual orientation classifications, at least in civilian contexts, and as seeking the invalidation of laws that bar legal recognition of same-sex marriages.  In In re Golinski, the Department filed In its first merits brief since Attorney General Holder issued a letter announcing that DoJ would no longer defend the constitutionality of DoMA. Although the brief does not go as far as I have stated in the first sentence, it is unlikely that a distinction could be drawn that would not extend its position to all civil law and to recognition of a marriage that was validly performed under state law.

The brief tracks the analysis of the Holder letter, but, because of the litigation context, it ratchets up the analysis from an explanation of why DoMA is too flawed to be defended to an argument that DoMA is unconstitutional and should be stricken. It's a subtle difference, but it gives the brief considerably more rhetorical firepower than the letter. Reading it drove home the point to me that this endorsement of heightened scrutiny is what the federal government will bring to every sexual orientation analysis for at least the next two, and hopefully six, years.

As the Veep would say, this is a big f**king deal. And although a Republican administration could and likely would reverse this position, that step would be seen as an extreme position. Boring as it might sound, the gay equality argument really has now become the new normal.

There is a but in this welcome development, though, and it's a big one. The DoJ argument is contingent on the court adopting a higher standard of review (DoJ takes no position on strict v. intermediate scrutiny - see fn. 13) than the rational basis standard. And rational basis is the standard that most courts have used to assess sexual orientation classifications (with differing results). DoJ essentially concedes that DoMA is constitutional under rational basis review. Footnote 14, page 18 reads (emphasis added):

Though the government believes that heightened scrutiny is the appropriate standard of review for Section 3 of DOMA, if this Court holds that rational basis is the appropriate standard, as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard.

 This dance-on-the-edge-of-concession language allows the Administration not to have to explicitly retract the arguments it made prior to the Holder letter, when it asserted that rational basis was the correct standard and that DoMA was constitutional.

 Golinski now has joined Gill v. OPM as a case to watch: the District Court has before it a brief filed by lawyers hired by House Republicans arguing that DoMA should be judged under the rational basis standard and upheld; the brief filed by the United States arguing that "Section 3 of DOMA fails heightened scrutiny;" and plaintiff's brief, arguing that DoMA is unconstitutional under either standard. 

June 16, 2011

Another DoMA challenge (probably) heads for appeal

A little noticed decision on Monday adds to the crowd of challenges to Section 3 of DoMA, which bars the federal government from recognizing the validity of same-sex marriages. In In re Balas and Morales, 20 of the 24 judges who comprise the U.S. Bankruptcy Court for the Central District of California signed an opinion finding that Section 3 is unconstitutional.

Most Bankruptcy Court decisions are signed by a single judge, and there was no explanation of why so many signed this opinion.  It may be because the Central District, located in Los Angeles, has one of the largest dockets of bankruptcy cases in the nation, and the judges wanted to signal that they would not apply DoMA to married same-sex couples so that they would not have to keep considering the question in multiple cases. 

This case arose when Gene Balas and Carlos Morales, "like many struggling families during these difficult economic times," filed for bankruptcy. Because the two men were married, they filed a joint petition. The United States Trustee (an office within the Justice Department that is charged with identifying problematic legal issues not raised by either debtors or creditors) moved to dismiss the joint petition on the ground that DoMA barred any recognition of the marriage for federal law purposes.

Relying heavily on Attorney General Holder's letter declaring that DoJ would no longer defend the constitutionality of DoMA, the Bankruptcy Court judges found that DoMA, as applied to Balas and Morales, failed to satisfy either a rational basis or heightened scrutiny test of constitutionality, essentially for the same reasons articulated in the Holder letter and in the District Court's opinion in Gill v. Office of Personnel Management (the case brought by GLAD challenging Section 3). Balas is the first federal court decision on this question since the Holder letter was issued.

There is some question whether Balas will be appealed. The Administration's decision to drop its defense of DoMA led Speaker Boehner to retain former Solicitor General Paul Clement to defend DoMA on behalf of the House of Representatives. Clement was given two weeks to intervene in Balas, but he elected not to file any papers. So he may not pursue an appeal either. 

If Clement does appeal,the case will not go to the Ninth Circuit, at least immediately, but instead to the Bankruptcy Appellate Panel for the Ninth Circuit. The plaintiffs' lawyer, however, has said that he would then seek to move the case to the Ninth Circuit.

Balas is the most recent ruling in a string of cases filed in federal courts in California that seek benefits for public employees who are married to their same-sex partners and whose benefits were denied based on DoMA: Dragovich v. Department of Treasury, In re Golinski, and In re Levenson. There are also two cases pending in the trial courts in the Second Circuit: Pedersen v. OPM and Windsor v. OPM. In none of those cases, however, has the trial judge rendered a final judgment on the merits of the constitutionality issue.  But because Balas will not go directly to the Ninth Circuit, even though its ruling does reach the merits, one of the other California cases may jump ahead of it in the Ninth Circuit pipeline.

The Gill case, already before the First Circuit, is the farthest along of all the DoMA challenges, but briefing is suspended pending a ruling on the motion to intervene filed by the House of Representatives through its Legal Advisory Group.  

There is no way to predict when any appellate court will render a decision, but I would bet that at least one gets handed down next year, when the 2012 campaigns will be intense. If the decision strikes down Section 3, we will get an acid test of whether Republican gay-baiting still works as a political attack and whether or to what extent gay marriage has lost its wedge issue value to the right wing. For most of the country, like for Balas and Morales, the spectre of financial ruin may be a much more pressing issue.

June 14, 2011

New Medicaid policy is more important than it may seem

The Obama administration issued guidance last Friday delineating how same-sex couples can be financially protected if one becomes Medicaid eligible in the process of securing long-term care for a serious disability (often age-related). As the letter explains, married heterosexual couples have a variety of legal mechanisms that allow the non-disabled spouse to retain some basic assets such as their home. Because of DoMA, same-sex marriages cannot be recognized. Thus no same-sex couples have had access to the same options for preventing spousal impoverishment. 

The new guidance letter on Medicaid rules for same-sex couples suggests a variety of ways that the same kinds of protections can apply to same-sex couples, whether married or not.  This may sound like a mush of bureaucratic legalese, but it is much more than that. Aside from the smart lawyering involved in producing this analysis (kudos to the HHS legal staff), this development has both short and long term importance.

In the here and now, more and more same-sex couples are entering the final third of life, along with every other baby booomer in the U.S.  Medicaid, originally set up as a health insurance system for the poor, including the "medically indigent," now pays more than half the total costs of long-term care in the U.S. Given the crushing expense of nursing homes even for middle-class Americans, Medicaid has been necessary for millions of elders to receive decent care.  For senior same-sex couples, the new Administration position is a huge and immediate change.

But there is another, potential long-term effect of the new guidance as well. It's less obvious but, with a little investment of energy, one that could help end routinely anti-gay policies in social services agencies.  Here's why -

Medicaid is a joint federal-state program, both in funding and administration. Its day-to-day operations are carried out by state agencies - you don't go to the local federal building to apply for Medicaid, you go to the state human services field office.  Among other things, state government agencies determine eligibility. This is why the Administration's policy was announced in the form of a guidance letter to state officials: it provided every state agency with the green light to make eligibility determinations that de facto treat same-sex couples as straight married couples are treated.

In some states, officials wanted to accord these benefits to gay couples, but may have been worried that to do so would expose them to charges that they were violating DoMA. In Massachusetts, for example, HHS may now assert that the new policy moots the state's claim that DoMA forces it to violate its own state law allowing same-sex couples to marry. There will be other states - probably all those that already allow either marriage or a civil union status - that will welcome the new HHS policy as well.

The most important political change could occur in states with the worst anti-gay policies. There the new policy creates a strong basis for demanding equal treatment for same-sex couples.  In other words, those officials cannot hide behind the DoMA argument any longer. 

As the HHS letter states, the federal agency cannot require state agencies to take these steps: the Medicaid statute itself does not provide authority for a mandate. But the letter does explicitly declare that states have the discretion to do so, and it encourages states to exercise that discretion.

With this guidance from the federal level, state advocates can much more powerfully demand the implementation of such policies. State officials may refuse, but their legal justification for a refusal has just gotten immensely weaker.

March 02, 2011

How the Obama position on DoMA will strengthen public employment rights

Following are excerpts from a column posted on Bilerico by former Hill staffer Tico Almeida:

...[C]onsider the hypothetical examples of a lesbian employee of the Alabama State Department of Agriculture, a gay male employee of the Arizona State Department of Transportation, and a bisexual employee of the Alaska State Department of Tourism. These three states have more in common than alphabetical privilege. Alabama, Arizona, and Alaska each currently lacks a state ENDA statute that protects against discrimination based on sexual orientation. As noted, there is no federal ENDA statute either. 

As of today, the lesbian employee in Alabama can be fired just because she is a lesbian. The gay employee in Arizona can receive lower pay and fewer promotions just because he is gay. The bisexual employee in Alaska can be severely harassed and subjected to hostility just because he is bisexual. Without a state ENDA statute or the proposed federal ENDA, these three employees would have very little to absolutely no legal recourse for sexual orientation discrimination in either state or federal court. 

Now imagine that the U.S. Supreme Court eventually agrees with President Obama and Attorney General Holder that gays and lesbians deserve "heightened scrutiny." At that point, the lesbian employee in Alabama, the gay employee in Arizona, and the bisexual employee in Alaska have a far greater chance of successfully arguing in federal court that the discrimination by their employers - each one a state government actor - was a violation of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. 

Under current constitutional law, it is possible, though sadly unlikely, that a gay or lesbian employee of a state government could win this type of constitutional case based on the lower level of constitutional protection called "rational basis review." Some plaintiffs have won cases at this lower level of protection, but it is such an uphill climb that victory is the exception and not the rule. The spillover effect of the Obama Administration's decision to argue for "heightened scrutiny" in the DOMA cases is that these three hypothetical employees would have a far greater chance than they currently do of winning their lawsuit based on sexual orientation discrimination and securing justice in the workplace - even if neither a state ENDA nor the proposed federal ENDA has passed yet... 

Continue reading "How the Obama position on DoMA will strengthen public employment rights" »

February 25, 2011

The wedge turns: Republicans now gun shy on gay marriage

The NY Times this morning makes it official that the political tide for cheap anti-gay political attacks is ebbing, with an article (read it after the jump) on the astonishing degree of silence from the Republican establishment in reaction to the Attorney General's announcement that the Justice Department will no longer defend the constitutionality of DoMA.

The Times article concentrates on reactions, or the lack thereof, from likely Republican presidential nominees, but the let's-just-think-about-cutting-spending response from Republicans in Congress is much more important because Congress actually has some authority to respond to the Justice Department decision. Each chamber of Congress can determine independently whether it will seek to intervene in the pending lawsuits to defend DoMA as constitutional.

Consider the statement issued by Speaker Boehner:

While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.

The statement gave no indication of whether the Speaker will ask the General Counsel of the House to actively defend the law. Since the Dems control the Senate, as a practical matter it would be only the House that can exercise an option to ask the courts to allow it as a body to intervene as a defendant. [Both chambers have their own independent counsel offices. The General Counsel of the House has authority under 2 U.S. Code 130f to "provide legal assistance and representation to the House..." I will write more about these possibilities in the DoMA litigation in coming days.] 

Individual members can seek to intervene, as Rep. Lamar Smith already has in the Gill case, arguing that the Justice Department was not defending DoMA strongly enough. But if only individual members of Congress seek to intervene, that will simply add to the marginalization of arguments in support of DoMA. The courts will be hard pressed to sustain a statute repudiated by the Executive Branch and effectively abandoned by Congress.

On the technical jurisdictional issues, it is unclear whether parties other than DoJ would have standing to appeal a ruling that the law is unconstitutional (shades of Perry). However, here, unlike in Perry, DoJ seems to be saying that it will seek review of decisions that the law is invalid in order to eliminate the possibility of a standing question such as has arisen in the Prop 8 case.

All of this indicates to me that the wedge has turned, and in a stunningly short period of time. Seven years ago, Republicans rolled through the states with constitutional amendments banning same-sex marriage (and it will be a while before those get dislodged). Gay marriage as an issue was no-lose for them and no-win for the Dems. Now it has become an "oh no, let's avoid" issue as much for Republicans as for Dems.

We saw the beginnings of this crack emerge with the brouhaha over the C-PAC conference just a few weeks ago. I wrote then that "we may look back on this in a few years and see it as watershed marking the beginning of the end of the coalition of economic and social conservatives in the Republican Party." Whatever else happens, this is going to be fun to watch.

Continue reading "The wedge turns: Republicans now gun shy on gay marriage" »

January 31, 2011

What will DoJ tell the Second Circuit about DoMA?

The NY Times has made public a major angst producing question that looms before the Justice Department: whether and how to defend the constitutionality of DoMA in a circuit where there is no precedent as to the level of scrutiny required for sexual orientation classifications. In both the First and Ninth Circuits, DoJ can point to precedent developed in military cases that only rational basis review applies to Equal Protection Clause challenges to discrimination based on sex/o. Seeming simply to defer to precedent has been how the Obama administration has sought so far not to take a definitive stand on whether barriers to same-sex marriage violate the Constitution. That option doesn't play in the Second Circuit, however -

Mr. Obama, whose political base includes many supporters of gay rights, has urged lawmakers to repeal [DoMA]. But at the same time, citing an executive-branch duty to defend acts of Congress, he has sent Justice Department lawyers into court to oppose suits seeking to strike the law down as unconstitutional.

[Two new lawsuits], however, have provoked an internal administration debate about how to sustain its have-it-both-ways stance, officials said. Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.

That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful, and can choose to change their sexual orientation....James Esseks, an American Civil Liberties Union lawyer helping with one case, said the new suits could be game-changing.

The Obama legal team has not yet decided what path to take on the lawsuits, according to officials who spoke on the condition of anonymity about the internal deliberations. But the Justice Department must respond by March 11. The debate has arisen at a time when Mr. Obama has signaled that his administration may be re-evaluating its stance [and that his views on marriage rights “are evolving.”]

“I have a whole bunch of really smart lawyers who are looking at a whole range of options,” Mr. Obama said, referring to finding a way to end the Defense of Marriage Act. “I’m always looking for a way to get it done, if possible, through our elected representatives. That may not be possible.”

... [U]nder the Defense of Marriage Act, the federal government cannot recognize [same-sex marriages]. That has raised a crucial question: Is it constitutional for the federal government to grant certain benefits — like health insurance for spouses of federal workers, or an exemption to estate taxes for surviving spouses — to some people who are legally married under their state’s laws, but not to others, based on their sexual orientation?...

Justice officials have argued that the marriage act is justified, under [a rational basis] standard, by a government interest in preserving the status quo at the federal level, allowing states to experiment. And in its brief appealing the Massachusetts ruling, the department stressed seven times that a “binding” or “settled” precedent in that circuit required the easy test.

But for the new lawsuits, no such precedent exists. The Obama team has to say which test it thinks should be used. Courts give a class the protection of [heightened scrutiny] if it has been unfairly stigmatized and if its members cannot choose to leave the class, among other factors. By those standards, it could be awkward, especially for a Democratic administration, to proclaim that gay people do not qualify for it...

November 09, 2010

ACLU files DoMA challenge with new twist

Today, in addition to the Pedersen case being brought by GLAD, the ACLU LGBT Rights Project Edie & Thea: A Very Long Engagement Posterwill file a complaint challenging the constitutionality of DoMA in federal court in New York City. New York, like Connecticut, is in the Second Circuit, so both cases will eventually reach the same Court of Appeals. Also like the GLAD cases, the legal claims are founded in the Equal Protection Clause.

What is new and different about Windsor v. United States is that it is the first case to challenge the estate tax, and it seeks relief on behalf of a person who does not live in a state that performs same-sex marriages. Plaintiff Edith Windsor married her now deceased partner Thea Spyer in Canada in 2007 and the two lived in New York, which recognized their marriage. After Spyer died in 2009, Windsor had to pay a huge amount in estate tax - $350,000 - which she would not have had to pay if the federal government had recognized the marriage, as New York state does. She is now seeking to recover the payment, which is the largest amount of money at stake in any of the DoMA challenges. 

The state attorney generals in Maryland and Rhode Island have issued formal opinions (AGOs) declaring that those states would, like New York, recognize same-sex marriages validly performed elsewhere, even though the state doesn't treat gay marriages performed within its borders as legal. So far as I know, no litigation has been based on or tested the Maryland and RI AGOs.

A film about the Windsor-Spyer relationship - "Edie and Thea: A Very Long Engagement" -  won the prize for best documentary at the 2009 Hamburg Lesbian and Gay Film Festival. The NY Times featured their marriage in its wedding announcements.

November 08, 2010

GLAD files another challenge to DoMA, this time in 2d Circuit

Tomorrow lawyers for GLAD will file a complaint in federal district court in Connecticut challenging the constitutionality of the Defense of Marriage Act (DoMA), the law that prohibits recognition of same-sex marriages under any federal program. The new case parallels Gill v. OPM, the DoMA challenge that GLAD won in federal court in Massachusetts last summer that is now in the early stages of appeal before the First Circuit.

The second case, Pedersen v. OPM, is being brought on behalf of same-sex couples and one widower who live in Connecticut, New Hampshire and Vermont. Because cases brought in federal court in Connecticut are appealed to the Second Circuit, this case will insure that two separate appellate courts will rule on the constitutionality of DoMA. If the two courts reach different results, the chances of the Supreme Court granting review will substantially increase. There is little likelihood that the Supreme Court will accept the Gill case if the government wins, but it's a virtual certainty if plaintiffs win.  If plaintiffs lose in Gill, however, the Pedersen case will give them a second shot at winning a favorable ruling and also create a circuit split, the most common reason for the Supreme Court agreeing to decide a case. The third DoMA challenge - Windsor v. U.S., which is being brought in New York - also creates this possibility.

As in Gill, the plaintiffs in Pedersen seek a declaratory judgment that DoMA is unconstitutional and an injunction barring its enforcement. The complaint alleges that Congress had no legitimate purpose in enacting DoMA.

Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex.  Singling out same-sex couples who are married among all married persons is simply an expression of the intent to discriminate against gay people.

At root, DOMA, 1 U.S.C. § 7, is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate federal interest.

Also like Gill, the legal claims in Pedersen are founded on the Equal Protection Clause. 

Although the Prop 8 litigation has gotten much more attention, mostly because of the drama of the 2008 election in which Prop 8 was adopted, followed by the drama of the trial before Judge Walker, the Gill/Pedersen litigation - together with Windsor - is more important. The plaintiffs have a better chance of winning before the Supreme Court in the DoMA challenge and, paradoxically, if they do win, the ramifications could be much more significant. The latter point will depend on whether the Prop 8 case is decided on standing rather than on the merits or on grounds that apply only to California. In either of those situations, the direct precedent will be limited to one (albeit incredibly important) state. 

If the Supreme Court invalidates DoMA, however, same-sex married couples would gain access to federal benefits and programs, which generally speaking are far more important than state law benefits. Moreover, assuming that their marriage was legal in the state where it was performed, they would be eligible for federal benefits no matter where in the U.S. they currently lived. Their local state of residence might deny them recognition for state law purposes, but the longstanding previous policy that recognition for federal law purposes depended on whether the marriage was legal where performed (the place of celebration rule) would be reinstated. 

Many gay couples who would choose to marry see little point in doing so when it would not change their status under federal law.  Eliminating DoMA would transform the legal landscape.


October 12, 2010

Federal court cases on DADT and DoMA move onward and upward

In a three-page order that the NY Times called "a significant new milestone for gay rights in the United States," Judge Virginia Phillips has enjoined the Department of Defense from "enforcing or applying the 'Don't Ask Don't Tell' Act and implementing regulations, against any person under their jurisdiction or command." The ruling, entered in Log Cabin Republicans v. U.S., also orders the Department to suspend any investigation or discharge proceeding already begun under DADT.

The Justice Department will almost certainly seek and obtain a stay of this injunction pending appeal.

Back on the other coast, Justice filed its notice of appeal in Gill v. Office of Personnel Management, the constitutional challenge brought by GLAD to DoMA in federal court in Boston.  The Gill case is now before the First Circuit Court of Appeals.

Some voices in the community have castigated the Obama administration for defending the constitutionality of these statutes; I take a somewhat different view.  

Anyone interested in hearing these arguments about defending statutes play out can join a national conference call being sponsored by the American Constitution Society and the National LGBT Bar Association on "Don't Ask Don't Tell and the Duty to Defend." Along with me, the other participants will be Walter Dellinger, former acting SG, and Professor Neil Kinkopf, formerly with Office of Legal Counsel. It will take place next Monday the 18th from 12 noon to 1 pm EDT.  It's free; you can register here.

August 21, 2010

Gill and Perry cases shape up for appeals

Judge Tauro has entered an amended judgment in Gill v. OPM. This is the formal order that declares the relief due each plaintiff; it does not alter the content of the opinion issued in July, which contains the constitutional analysis. One effect of the formal judgment is that it starts the clock ticking on appeals deadlines; the Justice Department now has until October 18 to file its notice of appeal.

In Perry, Imperial County has appealed Judge Walker's ruling denying its motion to intervene as defendant. This is important, because if the Ninth Circuit allows intervention, an official government entity would be defending Prop 8, and the question of the standing of the Prop 8 proponents would become less central. Imperial County's appeal is set to proceed on the same timetable as the rest of the Perry case, so that the county's case will be included at oral argument. The county is being represented by lawyers from Advocates for Faith and Freedom.

For the moment, the big question mark in the Perry case is the November election. A new governor and attorney general will take office in early January, about a month after the case is argued before the Ninth Circuit. If either of those positions is held by a Republican, the question will become whether the new official will seek to reverse the current position of the state not to defend Prop 8, and how such a change will be viewed by the court.

UPDATE - According to the Sacramento Bee, Republican gubernatorial candidate Meg Whitman has made it official that she will seek to intervene as a defendant if she is elected:

Responding to a question from The Bee yesterday during a campaign stop, Whitman said, "The issue right now is, as I understand is 'Will Proposition 8 have the appropriate support to actually make an appeal to the circuit court of appeals?'And I think the governor, the attorney general today has to defend the constitution and has to enable the judicial process to go along and has to enable an appeal to go through. So if I was governor, I would give that ruling standing to be able to appeal to the circuit court."

Whitman's campaign later told The Bee that she would become a defendant in the appeal of Walker's ruling if needed.

August 06, 2010

Recusing Justice Kagan

Kagan_650x250_100702-400x153 Congratulations to Elena Kagan, set to be sworn in tomorrow as the next Justice of the Supreme Court.

Now let's consider how she might be restricted from hearing certain cases.

No federal judge can participate in a case in which she has

served in governmental employment and in such capacity participated as counsel [or] adviser ... concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy. 28 U.S.C. § 455(b)(3).

Based on her answers to written questions from members of the Senate Judiciary Committee, there are several lgbt-related cases in which Justice Kagan would recuse herself and one case where she may be subject to recusal. Most will probably not be consequential, but recusal in the last case, if it occurs, would be significant.

The first is Smelt v. United States, a challenge to the constitutionality of DoMA. Kagan stated that she had participated in discussions of DoJ's briefs in this case and that she would recuse herself if it came before the Supreme Court. (These were the briefs defending DoMA that caused such heartburn among lgbt advocates.) However, the Smelt case was dismissed on technical grounds a year ago. 

The second case is Witt v. Air Force, a DADT challenge. After the Ninth Circuit ruled that the military had to demonstrate on an individualized basis that the discharge of gay service members was justified by unit cohesion, the decision on whether to file a cert petition was squarely in the bailiwick of the SG's office. No cert petition was filed, and the case is now on remand to the district court. Again, there is no question that Kagan would have to recuse herself from this case. Hopefully, though, the DADT policy will have been repealed - and the case mooted - by the time it could re-enter the appellate process. Kagan testified that she also discussed discovery issues in Log Cabin Republicans v. U.S., another pending DADT challenge, which, like Witt, hopefully will be mooted by congressional action.

The most important case - and the one with the biggest question mark - is Gill v. OPM, in which a federal district court ruled that Section 3 of DoMA (barring federal recognition of same-sex marriages) is unconstitutional. This case is very likely to reach at least the front door of the Supreme Court, by which I mean that a cert petition will almost certainly be filed by whichever party loses in the Court of Appeals. If the First Circuit affirms the district court, the Supreme Court will probably grant review. And it's a virtual certainty that plaintiffs can't get five votes on this Court without one from Justice Kagan.

Kagan told the Senate Judiciary Committee that she would recuse herself from a case if she had "participated in formulating the government's litigating position or reviewed a draft pleading. In all other circumstances, I would consider recusal on a case-by-case basis."

With regard to Smelt, she said "I reviewed some briefs in the Smelt case and participated in discussions about the case shortly before the briefs were filed. My participation in the case was sufficiently substantial that I would recuse myself..."

She was then asked whether she reviewed briefs or participated in discussions about Gill. Her response: "Yes, I believe that discussions about Gill overlapped with discussions about Smelt." In other words, recusal in Gill is certainly a possibility. However, without knowing the extent and nature of the discussion specifically of Gill, it is not clear whether her participation was sufficiently substantial to require recusal. The outcome of the litigation could turn on the answer to that question.

There is a back-up scenario, however, even if Kagan is recused: if there is a four-four split among the Justices, the decision of the First Circuit would determine the outcome. Since it is unlikely that the Court would grant cert if the circuit court upholds the statute, this may turn out to be the fail safe option. In other words, if they win in the First Circuit, plaintiffs could win the case without any opinion from the Supreme Court. But the loss of Justice Kagan's vote, as well as of her participation in conferencing among the Justices, is likely to make that more difficult.

July 08, 2010

Federal judge strikes down Section 3 of DOMA as violation of Equal Protection

Judge Joseph Tauro in U.S. District Court in Massachusetts ruled that the federal government's refusal to recognize the marriages of same-sex couples violates the Equal Protection rights of the individuals involved and also violates the Tenth Amendment's preservation of state sovereignty in certain fields. Judge Tauro issued decisions in the two parallel challenges to this portion of DoMA:

  1. the Gill v OPM decision finds that the denial of recognition to same-sex couples who are lawfully married under their state's law could not pass even a rational basis test for constitutionality;
  2. the  Massachusetts v HHS decision finds that Congress lacked authority to regulate marital status in this context and that compliance with DoMA by the commonwealth would hamper its own governmental functions.

The decisions granted summary judgment to the plaintiffs in both cases. They apply to married couples in Massachusetts. The case was limited to the portion of DOMA that forbids the federal government from recognizing same-sex marriages; it did not address whether state laws barring same-sex marriage are constitutional.

In the Equal Protection analysis, found in the Gill decision, the court repeatedly invoked Romer v. Evans, in which the Supreme Court invalidated an anti-gay Colorado state constitutional amendment. As in Romer, the district court judge found that DoMA imposed broad negative consequences across a wide range of federal programs, with no logical connection to a legitimate purpose. The court wrote,

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

...[W]hen the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest, this court finds that DOMA lacks a rational basis to support it.

These cases go now to the U.S. Court of Appeals for the First Circuit, and from there, in all likelihood, to the Supreme Court.

A huge BRAVO to the lawyers at GLAD -

June 02, 2010

IRS reverses DoMA-style interpretation of community property rights of registered partners

By Guest Blogger Patricia A. Cain, Inez Mabie Distinguished Professor of Law, Santa Clara University

One of my pet peeves over the past decade or so has been that the IRS has not been willing to give same-sex couples any guidance on tax issues.  That complaint has deepened as more and more states recognize same-sex relationships, accord couples property rights akin to married couples, and impose obligations of support. Property rights and support obligations are state law rules that have federal tax consequences. Spousal community property rights, for example, have had tax-favored status ever since the United States Supreme Court in 1930 agreed that community income rights, if imposed by the state, rather than by private contract, would be honored for federal tax purposes. As a result each spouse reports as income only half of the total community earnings, even if the earnings are attributable to the personal services of only one spouse. In fact, this rule is what led us to the adoption of joint returns in 1948. The effect of the joint return was to treat all married couples the same, whether they lived in community property or non-community property states. Similarly, state-imposed support obligations are recognized at the federal level and have gift tax consequences. A husband who supports a wife is not making a taxable gift. An adult child who supports a dependent parent does make taxable gifts if the support exceeds the annual exclusion. State law matters for federal tax purposes.

On January 1, 2005, California Registered Domestic Partners (RDPs) were accorded many rights and obligations equivalent to spouses. Most important, RDPs were suddenly made subject to the state’s community property regime.  This was no surprise. Californians had advance notice of this change. Assembly Bill 205 was passed in 2003, but not effective until 2005. RDPs, who were able to register statewide as early as 2000, were notified of this change and given the opportunity to decide whether they wanted to remain registered – and, if they did, were given until June of 2005 to opt out of the community property system with no adverse consequences at the state level.  California tax attorney Don Read and I were concerned about how the IRS would treat these community property rights, newly vested in RDPs, especially since the law provided that all property acquired during the registration would be retroactively classified as community property unless the couple elected the opt out provision.  With the interests of the 30,000 or so registered partners in mind, we asked Treasury to issue a revenue ruling, preferably before June 2005, that would advise California RDPs whether there might be any adverse tax consequences inherent in this new community property regime. Who would be taxed on current income? What about past income that was now reclassified? Would the reclassification result in a taxable gift? Should couples opt out to avoid taxable gifts or simply sign an agreement avoiding the retroactive application of the rule?  It would have been nice to know the answers to these questions, but we were met with silence.

The next step was to request a private letter ruling on behalf of a registered domestic partner couple. The availability of private letter rulings is a pro-taxpayer service, based on the notion that when tax law is unclear, a taxpayer ought to be able to ask the IRS for a clear rule before engaging in a transaction that might have unintended consequences.  The request is made on behalf of a particular taxpayer and the answer from the IRS is only good for that taxpayer. But in the absence of any clear rules, a single PLR would at least provide some guidance – and, we had hoped, it might lead to a public ruling that other taxpayers could rely on. That request was made in early 2005 and the IRS answer in 2007 was that it would not rule on any of the questions asked.  It did, however, in 2006 issue a Chief Counsel Advice memorandum (CCA 200608038) stating that community income from the personal services of RDPs would not be covered by the 1930 Supreme Court ruling in Poe v. Seaborn.  Instead a special rule, just for RDPs, would be applied: the income would be taxed to the earner even though under state law it belonged equally to both partners.

For four years now, tax academics and practitioners have discussed this CCA and tried to figure out how it should be applied to various situations involving same-sex RDPs. Most commentators have criticized the conclusion in the CCA as being out of line with established federal tax principles. Federal tax law does recognize state property rights and assesses tax burdens accordingly. Yes, the taxpayers in Seaborn were married under state law, but the court’s analysis was about the vesting of property rights and not about marital status.

Finally, in large part due to the persistent efforts of Don Read on behalf of his clients, the IRS has broken the silence. On May 5, in a private letter ruling, the IRS agreed that Poe v. Seaborn applies to California RDPs. And, on May 28, that ruling was made public. See PLR 201021048. The IRS also issued a Chief Counsel Advice memorandum on May 28, coming to the same conclusion, that Poe v. Seaborn applies to California RDPs. See CCA 201021050.  There are, in my view, problems with the CCA. A CCA is not authority. It is not precedent that can be cited. It seems to conclude that tax years 2005 and 2006 may be covered by a different rule than 2007 because California state income tax law taxed community earnings before 2007 to the earner (even though the earnings were otherwise treated as community property).  And the CCA does not address gift and estate tax issues or division of property at divorce issues, all of which should have a different outcome if they are fully covered by the Seaborn case.

But in the end, this is a good story. This is a change from the prior position of the IRS. And it is a change in the right direction. This is an indication that at long last the IRS is willing to acknowledge that same-sex couples exist in this country and to recognize that in some states, the rights and obligations accorded such couples are real and have real tax consequences.

June 01, 2010

Trial court arguments wrap up in challenge to DoMA

Oral arguments on dispositive motions are now complete before U.S. District Court Judge Joseph Tauro in Boston, who will issue the initial ruling in Gill v. OPM, GLAD's challenge to the constitutionality of DoMA. Whatever his decision, it is certain to be appealed.

The first round of arguments focused on the appropriate standard of review. Following is Lisa Keen's report on the second round, which arose in a separate case brought by the Commonwealth of Massachusetts, which is on a parallel track with Gill. Judge Tauro is expected to rule at the same time on all the pending motions in both cases. There is no deadline for when he will rule, but many judges try to get opinions out by the end of the summer, when new clerks begin work.

Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, told Judge Tauro that Section 3 of DOMA—the section that limits the definition of marriage for federal benefits to straight couples—violates the state’s constitutional right, under the federal constitution, to sovereign authority to define and regulate the marital status of its residents.

DOMA, said Healey, is an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.” She likened DOMA to the Colorado Amendment 2 initiative that was struck down by the U.S. Supreme Court in 1996 with its Romer v. Evans decision. Amendment 2 said no law in the state of Colorado could prohibit discrimination based on sexual orientation.

“DOMA, like Amendment 2,” said Healey, “is a “wholesale, unprecedented denial of protection for a group of people.”

“Imagine the federal government giving money for the construction of schools and telling us that we can build them for white children but not for black children,” said Healey. Or imagine, she said, that the federal government would give money to subsidize health care for men, but not for women.

“That’s what DOMA does to Massachusetts,” said Healey. “It gives us funding but tells us to treat one category of married people differently than another. It forces us to violate equal protection.”

As GLAD did in Gill v. Office of Personnel Management, Healey urged Tauro to apply heightened scrutiny in considering whether the federal government had any legitimate need for DOMA. Heightened scrutiny would require the government to come up with a fairly significant reason for treating gay couples differently under the law.

But Healey told Tauro that, even if he uses only the lowest level of review—simple rational basis—the government still cannot identify a reason to treat gay couples differently, other than animus. She noted the federal government has “disavowed” the reasons Congress offered in 1996 when it passed the law. And she said it has no evidence to support the reasons it offers now.

Christopher Hall, the attorney arguing on behalf of the federal government, repeated at least twice that the current administration “does not support DOMA.” He said it believes the law is discriminatory and that it should be repealed. But, he said, federal attorneys “have an obligation to defend it,” nonetheless.

Hall said the government’s two key points are: 1) Congress should be able to control the meaning of terms used in its own statutes, and 2) that Congress should be able to control how federal money is allocated.

When Judge Tauro echoed Healey’s contention that marriage has always been left to the states to define and regulate, Hall disagreed. He the federal government has been involved in defining marriage for immigration laws.

He said DOMA does not, as Healey contended, violate the 10th amendment. The 10th amendment says “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Hall said DOMA does not prevent any state from defining marriage or who may marry.” It simply defines marriage “for the limited purposes of federal benefits,” said Hall.

Tauro interrupted Hall at one point to note that his arguments were “interesting and valuable.”

“But we’re here dealing with something basic,” said Tauro. “Are these people married or not?”

“They are married in the state,” said Hall.

“But not for federal purposes?” asked Tauro.

“They’re not eligible for federal benefits,” said Hall.

Tauro prompted Hall to respond to Healey’s claim that DOMA was coercing Massachusetts into discriminating against gay couples by the threat of losing billions of dollars in federal funds in Medicaid (hence the identification of HHS as a defendant).

Hall said DOMA does nothing different than what the government did in 1984 when it conditioned federal funds for highway construction on each state adopting a federal drinking age minimum of 21.

At the end of the 90-minute argument, Tauro said he would issue his ruling “shortly.”...