How do the Prop 8 and DOMA cases affect Florida?
January 26, 2013, ten-years to the day since the historic Lawrence v. Texas U.S. Supreme Court decision that overturned state sodomy laws, has proven to be an equally important day in the LGBT civil rights movement. In the cases of Hollingsworth v. Perry and U.S. v. Windsor, the Supreme Court set the stage for the final push towards marriage equality. Throughout the day, I’ve received numerous emails, phone calls, and FaceBook messages and posts to ask how these rulings will affect the rights of same-sex couples who reside in Florida and other states that do not allow gay marriage.
Background and Standing for Perry and Windsor
Aside form the civil rights issues at play, these two cases are among the most procedurally complicated that the U.S. Supreme Court has ever faced. Both cases were packed with issues of federalism versus states’ rights, the division of power among the three branches of government, and who has the right to bring a case on the federal level, particularly to the Supreme Court. Rather than go into depth here, I invite you to visit SCOTUS Blog for a detailed account of how the cases got from the U.S. District Court level to the U.S. Supreme Court. Perry and Windsor.
Briefly, Perry is the case that challenged California’s constitutional amendment, known as Proposition 8, that destroyed a California Supreme Court ruling which had held that same-sex couples have a constitutional right to be married. Proposition 8 was a voter initiative that passed after approximately 18,000 same-sex couples had already married in California, leaving those couples in a state of uncertainty. The State of California refused to defend Prop 8, and the backers of Prop 8 were allowed to intervene. The U.S. District Court found in favor of same-sex couples. The Ninth Circuit Court of Appeals, after seeking advice from the California Supreme Court, determined that the backers had the right to defend the amendment, in the absence of the State of California’s defense. Ultimately, the Ninth Circuit agreed with the lower court, and a stay of enforcement of the lower court ruling was in place until the U.S. Supreme Court made a decision.
Windsor involved an elderly lesbian couple from New York that had been together for decades. In 2007, they married in Canada, and when Edith Windsor’s partner passed away, Ms. Windsor inherited her partner’s estate. Because the federal Defense of Marriage Act Section 3 forbade the federal government from recognizing the legal marriage of Ms. Windsor and her partner, Ms. Windsor incurred a tax bill of more than $360,000. She sued for return of that payment to the IRS, arguing that DOMA Section 3 violated equal protection, as afforded by the 5th Amendment of the U.S. Constitution. The Obama administration and the U.S. Department of Justice stopped defending DOMA, in all cases, because the administration believes DOMA is unconstitutional. Enter the BLAG, the Bipartisan Legal Advisory Group, who stepped in on behalf of U.S. Congress to defend DOMA. Ms. Windsor won at the U.S. District Court and again at the Second Circuit Court of Appeals.
In Windsor, the Supreme Court agreed that BLAG had standing to defend DOMA, but in Perry the Court held that the supporters of Proposition 8 did not have standing (authority to bring the case) because the government is responsible for defending its laws. The difference is that the BLAG is an arm of the U.S. House of Representatives and was acting in a governmental capacity, whereas the Prop 8 supporters were private entities that had no authority to act for the State of California.
What the Court Said
For the Prop 8 case, Chief Justice Roberts wrote the majority opinion. Simply put, the Court held that the non-governmental Prop 8 supporters did not have standing to bring the appeal to the Ninth Circuit. It remanded (returned) the case to the Ninth Circuit and ordered that the appeal be dismissed. This leaves the lower court’s judgment in place, and same-sex marriage will resume in California, though at this time it is unclear how long it will take to shuffle the paper and get logistics in place. The Perry case did not get to the substantive issue of whether citizens have a constitutional right to gay marriage.
Windsor came out in favor of gay marriage, at least as applied in the federal realm. Again, the only thing at issue (aside from the standing issues noted above) was whether Section 3 of DOMA was unconstitutional as a violation of due process and equal protection under the 5th Amendment. Section 3 only concerns FEDERAL recognition of same-sex marriage. Justice Kennedy wrote the opinion. In brief, the Court held that Section 3 violates the 5th Amendment. Following are some important moments from the opinion:
“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles.” p. 21
Here we have a statement of how to interpret equal protection – “careful consideration.” Keep in mind that 5th amendment equal protection analysis is virtually identical to 14th amendment (applied to the states) equal protection analysis. This will become an important reference for future cases challenging DOMA Section 2 and challenges to state marriage amendments.
“The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”
The court looked into the legislative history behind DOMA and found that the legislation was driven not by a concern for government but by animus towards homosexuals. No doubt, in future 14th Amendment challenges to state marriage laws and Section 2 of DOMA, the legislative history behind those constitutional amendments and statutes will be important.
Then the court turned to the practical effects that DOMA has on same-sex couples who are married in their home states.
“DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
And finally, the proclamation that DOMA section 3 violates the 5th Amendment right to equal protection:
“What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. 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. This opinion and its holding are confined to those lawful marriages.”
That very last sentence is extremely important. The Court has not ruled that marriage equality is the law of the land. In order to be recognized by the federal government, the same-sex marriage must have been legally entered into in whatever state. States rights was an important part of this decision, and the Court leaves it in the hands of the States to define their own marriage laws. HOWEVER, as Justice Roberts points out in his dissent, the flood gates are now open for Challenges to Section 2 of DOMA.
DOMA Section 2
Section 2 of DOMA was not at issue in either Perry or Windsor. Section 2 allows states to ignore valid same-sex marriages from other states. This has created numerous problems for married same-sex couples who relocated to states that refuse to recognize their marriages, as well as for couples who reside in a state that does not allow gay marriage but who traveled to get married in a state that does. For example, only a few jurisdictions within an anti-marriage equality state have granted divorces to couples with out-of-state marriages – if its not a marriage, there can’t be a divorce. Until Section 2 of DOMA is declared unconstitutional, states will continue to ignore valid same-sex marriages, despite the veil of federal recognition that covers the entire country.
Certainly, a challenge to Section 2 will be forthcoming. I anticipate that such a case would be most successful for a couple married in and residing in a marriage equality state who relocates to an anti-marriage equality state. In addition to a challenge that would call on the 5th Amendment, such a case would also make use of the “full faith and credit clause” of the U.S. Constitution, as well as a 14th Amendment equal protection claim. It is also feasible that the U.S. Congress could completely repeal DOMA or make use of the commerce clause to force states to recognize valid gay marriages, as refusing to recognize them impedes interstate travel.
So What About Florida?
As anyone with an interest in the topic probably knows, Florida is among the anti-marriage equality states. Not only does Florida have a constitutional amendment banning same-sex marriage, it also has a statute that prevents recognition of same-sex marriages from other states. The Windosr case, with its limited ruling, does not force Florida to repeal its laws, nor does it force Florida to recognize same-sex marriages. Again, the case only requires that the federal government recognize same-sex marriages. Thus, Florida remains in a state of inequality and a sort of limbo for couples who married in other states and relocated here and couples who lived here and traveled to get married. I believe that Florida is an ideal state from which to bring a Section 2 challenge because we have many older, same-sex couples with dual residences in Florida and New England states.
Frequently Asked Questions
And now the practical. These are a few of the questions that I’ve been getting, repeatedly, since yesterday morning:
1. If my partner and I live in Florida/relocated to Florida and have a valid same-sex marriage from another state, will Florida recognize that marriage?
No. As stated above, Florida has a constitutional amendment banning same-sex marriage, as well as a statute that forbids recognition of same-sex marriages from other states. Section 2 of DOMA still stands and allows non-marriage equality states to refuse recognition of out-of-state, lawful, same-sex marriages.
2. If my partner and I are married or get married in another state but reside in Florida or relocate to Florida, will the federal government still recognize my marriage?
It depends. Some government agencies look at marriage in relation to the state of residence while others look to the state of celebration (where the marriage was performed). For tax and immigration issues, yes, the federal government will recognize your lawful same-sex union, no matter where you currently reside. I anticipate that the Obama administration will issue further guidance via executive orders in the days to come. For now, it just depends on the issue and the agency.
3. My partner and I are a bi-national couple. Will we now be able to secure a green card for the non-resident?
Immigration law can be very complicated, and there are many caveats that may apply that could prevent immigration of a non-citizen spouse. For example, has your spouse overstayed his or her visa? Generally, yes, married gay and lesbian bi-national couples will now be able to go through the exact same process as heterosexual couples. However, I anticipate that immigration agents will carefully scrutinize these marriages during the interview process, as there’s no visible test as to whether someone is actually gay. It would be very easy for two straight men to fake it for purposes of getting a green card. Straight couples are put through the same scrutiny, and if a pattern emerges that shows gay and lesbian couples are being reviewed in a different way than straight couples, litigation will follow.
4. Do the Supreme Court rulings have any impact on a civil union?
No. As gay and lesbian advocates have always argued, “civil unions” are not “marriages.” I suspect that additional litigation will clarify this issue, and I think it will also depend on whether the particular state considers their civil union scheme equivalent to marriage and only different by name.
5. Will the marriage rulings have any impact on my right to see my partner in a hospital?
In a VA hospital, yes. Married gay and lesbian couples will be recognized by the federal facility. In a private or state operated facility, it depends. If you live in a state that recognizes gay marriages, you should already have the right to make medical decisions for your incapacitated spouse (assuming you are married) or to visit them in the hospital. In states that have banned gay marriage and are still free to ignore out-of-state marriages, no, you will not be able to rely on the new marriage rulings. In those states, gay couples are still advised to establish a health care surrogate/medical power of attorney.
6. If I have been married for several years, will I be able to amend my federal tax returns or seek federal benefits that were previously denied to me?
We don’t know yet. I suspect that the IRS will allow amendment of prior tax returns, limited by their regulations for doing so. As for other agencies, we simply don’t know yet and await guidance. If there is a particular benefit you’re waiting to know about, keep track of the news. This issue is still developing.
7. Does this affect my right to step-parent or second-parent adopt my partner’s children?
No. With very few exceptions, the federal government has no power over state child custody and adoption laws. Even if you live in a state that recognizes gay marriages, the rulings have no impact on these issues. However, if you plan to adopt or adopted in the past, you may qualify for the adoption tax credit (a variety of factors to consider whether you qualify), and you may be able to amend past tax returns to capture the credit.
8. If a DOMA Section 2 challenge is brought, how soon would it make its way to the U.S. Supreme Court?
2 to 5 years. Civil rights litigation is very complex and can take many different paths in any given case. It is impossible to predict how long a case would take to wind its way to the Supreme Court or even if the Supreme Court would grant review of the case.
9. Will the rulings encourage states to take action so that gay marriages will become legal in other states?
I think it will. The tides have shifted. In less than 10 years, 12 states and the District of Columbia have added gay marriage. Meanwhile, 18 states added medical marijuana laws. Even in the last three years, public opinion polls show increasing support for gay marriage, now at more than 50% in favor. Politicians can no longer ignore the demand for marriage equality.
10. Should I consult a family law attorney?
Yes! Clearly, these Supreme Court opinions did not give us a clean and certain path for the various sub-issues that come along with marriage. Particularly if you live in a state that does not recognize gay marriage, there are many options that a competent family lawyer can help with to get you as close to married as possible (estate planning, living wills, health care surrogate designation, etc.).
I have helped numerous gay and lesbian couples establish protections for their relationship in Florida. Almost every one of them said that they put off seeing a lawyer because they were worried about homophobia, the legal profession being a pretty conservative occupation. Though I have personally never encountered an attorney who expressed disdain for homosexuals, I can understand why non-legal professionals might be concerned. As for my office, I will never judge you and am glad to assist. Call me for a free consultation.