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COHEN ON MARRIAGE EQUALITY

Debra Cohen's update on marriage equality appears in the September 2013 issue of the New York Women's Bar Association's newsletter. (A copy of that piece has been reproduced here.)

Marriage Equality: U.S. Supreme Court Update

By Debra S. Cohen

This past term, the United States Supreme Court issued two rulings impacting marriage equality for same-sex couples. Both cases were decided by a 5 to 4 majority.

“Prop 8” Case – In Hollingsworth v. Perry, 133 S.Ct. 2652 (2013),Chief Justice John Roberts delivered the opinion of the Court. The case involved a challenge to the decisions by a California district court and the Ninth Circuit Court of Appeals’ holding that Proposition 8 (California’s voter initiative amending the state constitution to state that marriage was a “union between one man and one woman”) was unconstitutional.

Early in the case, the State of California refused to defend Prop 8, and a group of advocates who had been involved in filing the initial petitions in support of Prop 8 stepped in to defend the law. In its decision, the Supreme Court held that these advocates had no standing, since they had no personal stake in the case and were not personally adversely impacted by the lower court rulings finding Prop 8 unconstitutional.

The effect of the Supreme Court’s standing ruling was to reinstate an earlier California Supreme Court decision holding that same-sex marriage was a constitutional right in that state.

“DOMA” Case – The second case, United States v. Windsor, 133 S.Ct. 2675 (2013), was a challenge to the constitutionality of Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined “marriage,” for purposes of federal law, as a union between a man and a woman. That narrow definition forbade the federal government from treating same sex married couples as “spouses” under more than 1,000 federal laws and regulations, and it impacted the lives of these couples, and their families, in profound ways – denying them equal treatment under the tax codes, pension laws, penal laws, health insurance and federal financial aid regulations and plans, and in other ways affecting important rights and benefits.

The Windsor case is, at its core, a human story. Edith Windsor and Dr. Thea Speyer were together for more than forty years. With Thea in failing health, the couple legally married in Canada in 2007 and then returned to their New York City home. Although New York State had not yet legalized same-sex marriage, it did recognize those same-sex unions that had been sanctioned by other jurisdictions.

Two years after they were married, Thea died and left her entire estate to Edith. Because of DOMA’s Section 3 limits on the definition of marriage, however, federal law did not recognize the couple’s status as “spouses,” and the IRS ruled that Edith was not eligible for the standard estate tax exemption as a surviving spouse. As a result, she was required to pay $363,000 in taxes that a spouse in a different-sex marriage would not have had to pay.

Edith filed suit, and both the federal district court and the Second Circuit Court of Appeals ruled that Section 3 of DOMA was unconstitutional and ordered the United States to provide Edith a refund. [In an interesting procedural twist, the Justice Department had been previously instructed by President Obama not to oppose challenges to Section 3’s constitutionality. Normally, that would have ended the case, but the House of Representatives’ “Bipartisan Legal Advisory Group” intervened as an interested party to defend the law in suits brought by Edith and others.]

The Court’s decision, authored by Justice William Kennedy, was striking for both its legal analysis and sensitivity on what, for many, remains a very controversial, personal, and emotional issue. The opinion recounts the couple’s story in the context of the evolving laws on gender-neutral marriage throughout the United States, and it acknowledges “the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” Id. at 2689.

Justice Kennedy noted that Congress’ enactment of DOMA was an extraordinary intrusion into the traditional rights of the states to define what constitutes “marriage,” and “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State….” Id. at 2692. He observed that “the State’s power in defining the marital relation is of central relevance in this case,” but that DOMA’s definition of “marriage” imposed undue restrictions on same-sex married couples and was injurious to “the very class New York seeks to protect.” Id. at 2692-93. The Court concluded that DOMA violated “basic due process and equal protection principles applicable to the Federal Government.” Id. at 2693.

Justice Kennedy’s final observation regarding the unconstitutionality of Section 3 of DOMA was that:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Id.at 2696.

Women’s Bar Role – We are extremely proud that the Women’s Bar Association of the State of New York, of which the NYWBA is a founding chapter, participated as amicus in the Windsor case before the Second Circuit, and in both Windsor and Hollingsworth before the U.S. Supreme Court, through its Amicus Committee (co-chaired by Melinda Saran, Alayne Katz, and NYWBA Past President Elizabeth A. Bryson, who took the lead on the review and editing of the briefs on behalf of WBASNY).

What Does This Mean for Attorneys and Same Sex Couples? – While Hollingsworth and Windsor provide certain benefits and rights tosame-sex married couples in New York and California (and potentially in other states that currently recognize marriages on a gender-neutral basis or enact legislation to do so in the future), such couples and their families still do not enjoy all of the same rights, benefits and status conferred on other families.

This is because the U.S. Supreme Court did not recognize a general federal constitutional right to marriage for gays and lesbians. These cases also do not immediately or automatically unravel the administrative labyrinth of institutionalized discrimination created by Section 3’s prior limited definition of “marriage.” Plus, the Windsor ruling striking down DOMA applies only in states that already allow recognition of same-sex marriages.

While the federal government is working through the many laws and regulations impacted by DOMA to effectuate required changes, and states with gender-neutral marriage are implementing their own procedures, it will take time for the new rules to take effect even in those states.

Nor does either case require the private sector to cease all discriminatory employment practices, which include the wrongful denial of spousal and parent benefits to same-sex couples and their families. My firm currently represents a same-sex married couple, where a spouse’s employer is denying health insurance coverage under a family plan unless she adopts her stepson; a requirement not imposed on different-sex blended families, and one that has proven impossible to satisfy, because the boy’s father has not waived his parental rights.

So, while Windsor was a significant step in affirming to same-sex couples and their children that they are worthy of equal respect and recognition, there remains an important role for lawyers to play in helping these families complete their journey to true marriage equality.

Debra S. Cohen is Co-Chair of the Civil Rights Practice Group at Newman Ferrara LLP and an adjunct professor at Pace University School of Law, where she teaches courses on civil rights law and litigation. She was recently appointed Co-Chair of the Committee to Advance the Status of Women in the Profession .

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