A Symbolic Victory for Marriage Equality

By Kate Paine, Esq.

Earlier today, the a three-judge panel from the First Circuit Court of Appeals became the first federal appeals panel to rule on the constitutionality of Section 3 of DOMA.  The panel unanimously agreed that Section 3 — which limits the definition of “marriage” for federal purposes to a union between one man and one woman as husband and wife — is unconstitutional as applied to lawfully-married same-sex couples.  Nevertheless, because decisions of the First Circuit are binding only on those states in its jurisdiction (Massachusetts, Rhode Island, Maine, New Hampshire, as well the territory of Puerto Rico), the First Circuit also stated that its ruling will not be enforced until the United States Supreme Court rules on the issue of Section 3’s constitutionality.  

Until the Supreme Court so rules, the First Circuit’s decision represents only a symbolic victory for marriage equality. 

Read the entire article here: http://www.nytimes.com/2012/06/01/us/appeals-court-rules-against-federal-marriage-act.html.

Part II: Domestic Partner or Cohabitation Agreements – Questions to Consider

By Maureen Cohon, Esq.

Clients who contact us after deciding to terminate their partnership most often find parting less stressful if there is a signed domestic partnership or cohabitation agreement. After all, agreeing on property issues is a lot harder when the enchantment is lost. If you have ever ended a relationship or seen friends who have ended their relationships, you may better understand why a domestic partner agreement is important.

If you still have doubts about the importance of this agreement, consider the following:

Living Together
If you are living with someone, this agreement will let each of you know what the other expects out of the living arrangements. Consider discussing the following with your partner:

  1. What will we each contribute to living expenses, mortgage, utilities, entertainment, real estate taxes, homeowners or renters insurance and other items relating to our place of residence or any other shared property?
  2. Do we have – or will we open – joint banking or checking accounts, joint credit cards, or investment accounts? There are pros and cons to having these accounts since each partner has no control of the others access to the funds. Joint credit card accounts allow both partners to use the card and both partners are responsibilities for payment. Before opening such accounts, ask these questions:
    • Do you really need joint accounts? Maybe you would want a joint account for only household purchases and separate accounts for credit card purchases or paying for personal items. If you have or want joint accounts of any kind, you may want to have both signatures for any withdrawals over a certain amount.
    • If you and your partner decide to go separate ways, how will you split the accounts?

Are there children living with you or do you plan on having children together? There are many times when children may be visiting or living in the home. What are the responsibilities of the nonparent? Are you and your partner thinking of adopting? Will one partner carry the baby and the other partner adopt after birth? Are you considering a surrogate or anonymous or known sperm or egg donor?

There are many ways to have children and each situation is different. There are so many issues to consider both before and after bringing a child into a family. Each of the above situations has different issues involved and the couple should talk to someone, such as an attorney experienced in adoptions and related issues, to create a written agreement that outlines parenting expectations.

For example, after the baby is born and before any adoption, you may want an agreement that states your wish for your partner to adopt the baby. Until the time of the adoption she/he will share responsibilities for the baby and be the guardian. This is important because if something happens to the adoptive or birth parent, the Court and relatives know your wishes regarding your child. Or, if a second parent adoption is not allowed in your state , you may want to have a document stating that you want your partner to adopt your baby at the time such adoption is allowed but be the child’s guardian until such adoption.

Home Ownership
Is the home you live in titled in one partner’s name? You may want to define the following:

  1. Did the non-owner partner contribute money to the purchase of the home?
  2.  Does the non-owner pay any amounts to the mortgage for the property you are living in?
  3. What about for improvements on the home?
  4. Do these payments give the non-owner partner any ownership interests in the home?

Is the home or other real estate property owned jointly?

  1. Did each partner share the down payment and settlement costs equally and/or share the mortgage payments equally?
  2. If you sell the home, how will the equity be distributed? Will it be in proportion to the amount paid on the home by each, equally or some other way? How do you determine the value of the house? How soon does it have to go on the market?
  3. If you separate, who will have the right of refusal to purchase the home? In what amount of time?
  4. If one partner moves out, will that partner have to continue to contribute to the cost of the home?

Other Property
Do you each have property in the home that you intend to share? Do you want the property to remain yours after a termination?

This “separate property” could include family heirlooms or inherited property or property that just has sentimental value to you. Most couples have such property and agree that it belongs to the original owner.

What would happen if the relationship no longer works for you or your partner?

If you have a domestic partner or cohabitation agreement most of the above issues, which could cause problems, would be covered. Parting will still be painful but the agreement will be determined by you before the separation. The agreement should address:

  • How the notice of termination is given to each other
  • The time limits for the purchase or sale of the home and the distribution of the equity if it is a joint ownership
  • Distribution of your joint accounts
  • Children
  • Any other issues that you determine you want in the agreement

Each couple is different and this agreement is tailored to the couple’s needs. There are many issues that we can address in an agreement, but I think the above are good discussion starters.

While agreements are not easy to talk about, it is better to talk while you are feeling more generous than at the end of a relationship. Of course, the best outcome would be to create and sign the agreement and then put it in a safe place and never have to look at it again!

Part I: Domestic Partner or Cohabitation Agreements – Why & What

By Maureen Cohon, Esq.

Why would you want to have a domestic partner or cohabitation agreement? (I use these words interchangeably.) But first, who needs such an agreement? Our Nontraditional Couples & Families Group is comprised of those persons who can’t marry and those who don’t marry. Gays and lesbian couples are the largest group of our clients, but there are many clients who don’t marry for various reasons. For instance, senior adults, who may have been married for many years and had accumulated wealth with their deceased spouse. They and their new partner may love each other very much but may decide to live together thereby protecting those accumulated assets for children. We have clients in their 30’s and 40’s who have children and may want to live together with another person of the opposite sex. They may move into one or the other person’s home and they may need to have an agreement that allows them to tell the other person that the living arrangement is not working and the non-homeowner should move out. All of these couples have the same problems as any unmarried couple.

Virtually all couples say to me “we don’t need to talk about this as things are fine and why do I need this anyhow?” These are good questions.

Here are my questions to you:

  1. Are you living with someone?
  2. Are there children living with you?
  3. Is the home you live in titled in one partner’s name?
  4. Is the home owned jointly?
  5. Do you have property that you brought into the joint household which has value (monetary or sentimental value)?
  6. What would happen if the relationship is no longer working for you or your partner?

In the absence of the ability to marry in the State that you live in or if you do not want to marry, this agreement will help you make a plan for your partnership. These agreements address the sharing of income, expenses and property and can document for a court and any other interested parties (i.e. to obtain domestic partner benefits from an employer) the “family nature” of the cohabiting parties’ relationship and living arrangements. This agreement may define the partners’ financial obligations to one another and to their children, clarify the ownership of major assets such as real or personal property, and protect the partners’ rights should they ever terminate their relationship. In the event of a separation, a domestic partnership agreement could save the parties the time and expense of litigating their rights and obligations, particularly with respect to property. It may also prescribe alternative dispute resolution, such as mediation, as a way of resolving issues concerning enforcement of provisions contained within or outside of the agreement.

This is a document that can make the partners think and talk about issues they really don’t want to think or talk about. While this is a hard, but necessary conversation, you will feel better when the decisions are made and placed in an agreement

Check back next week to learn why this type of agreement would be useful and important to do when your partnership is going well.

Would you like to further discuss your rights and these types of agreements?  Contact us.

DOMA Series, Part 4: Heightened Scrutiny, Rational Basis, or Both?

By Kate Paine, Esq.

Unlike with race and gender, the United States Supreme Court has never explicitly stated whether “sexual orientation” is a suspect/quasi-suspect class. Because the Supreme Court has not decided the issue, individual courts must determine, based on the four factors mentioned in previous posts, whether sexual orientation is a suspect/quasi-suspect class, such that heightened scrutiny applies when assessing the constitutionality of Section 3 of DOMA. Until recently, most, if not all, courts reviewing the issue applied rational basis review. Most of these courts upheld Section 3’s constitutionality under rational basis review on the basis that limiting the definition of “marriage” to opposite-sex marriages was rationally related to achieving several legitimate government interests. Notably, however, a few did find that, even under rational basis scrutiny, Section 3 unconstitutionally discriminates against lawfully-married same-sex couples.

As mentioned, President Obama’s view is that Section 3 of DOMA is unconstitutional. Even more importantly, the President has determined that laws that base different treatment on sexual orientation are subject to heightened scrutiny, not rational basis review. Although he did not explicitly say that sexual orientation is a suspect or quasi-suspect class, he implied as much by finding that: 1) there exists a significant history of purposeful discrimination against gays and lesbians, by both governmental and private entities; 2) there is a growing scientific consensus that sexual orientation is a characteristic that is not capable or susceptible to change; 3) the group has limited political power and ability to attract the favorable attention of lawmakers; and 4) there is a growing acknowledgement that one’s sexual orientation bears absolutely no relation to his or her ability to perform in or contribute to society. Because, according to the President, Section 3 cannot survive heightened scrutiny, it is unconstitutional as applied to legally-married same-sex couples. As a result, the Attorney General made the highly unusual announcement that the Department of Justice (whose job it is to defend the constitutionality of federal laws in lawsuits) would no longer defend Section 3.

Nevertheless, the House of Representatives’ Bipartisan Legal Advisory Group (which is Republican-led) has been permitted to intervene to defend the constitutionality of DOMA. The President’s determination, as expressed in the Attorney General’s letter, is thus crucial in that it provides courts a framework (and, possibly, an incentive) to analyze the issue under heightened scrutiny, rather than under rational basis review. Indeed, after the Attorney General’s pronouncement, at least a few courts, quoting from the letter, have agreed with the President that laws that discriminate based on sexual orientation, like Section 3 of DOMA, are subject to heightened scrutiny, and that, under heightened scrutiny, Section 3 is unconstitutional. Still, because no court is bound by the President’s determination, some courts will likely continue using rational basis review to find Section 3 constitutional, unless and until the United States Supreme Court definitively sets the level of scrutiny for assessing the constitutionality of laws that discriminate based on sexual orientation.

Now that you (hopefully) understand the basics of how a court determines whether a discriminatory law is constitutional, many of you are probably still wondering what legitimate governmental interests could possibly be served by limiting the federal definition of marriage to only those between one man and one woman. The answer to that question deserves a post all its own, so stay tuned!

As always, please feel free to leave a comment with any thoughts, questions, or suggestions you had while reading this post.

DOMA Series, Part 3: What Does “Equal Protection” Mean?

By Kate Paine, Esq.

You’ll recall that the first and second DOMA blog posts ended with a question: under what circumstances may the government enact a law that discriminates against a particular group of people, given that, according to the Constitution, neither the federal nor state governments may “deny to any person within its jurisdiction the equal protection of the laws?”

Contrary to what may be a common assumption, “equal protection” does not mean that the government cannot create laws that discriminate against certain groups of people. Instead, the Supreme Court has interpreted this language as meaning that the government may discriminate, as long as it can sufficiently “justify” the different treatment. What constitutes “sufficient” justification in a particular situation depends on how deeply the court dissects (or “scrutinizes”) the government’s reason(s) for enacting a discriminatory law. In turn, whether the court will essentially take, at face value, the government’s rationale(s) for the different treatment, or whether the court will instead engage in a deeper analysis to determine if the government’s rationale is sufficiently important to justify discriminating against a certain group, depends on the identity of group treated differently. In legal speak, this concept is referred to as the “level of scrutiny” the court applies when assessing the constitutionality of a discriminatory law.

Although courts sometimes discuss three levels of scrutiny, in the DOMA context, courts have applied only two levels, known as “heightened scrutiny” and “rational basis review.” Generally speaking, heightened scrutiny applies when the class of people being discriminated against is deemed a “suspect” class (race is a suspect class) or a “quasi-suspect” class (sex is a quasi-suspect class). To determine whether a group of people with a common characteristic qualifies as suspect/quasi-suspect, a court considers four factors: 1) whether there is a history of discrimination against the group; 2) whether the characteristic that distinguishes the class indicates a typical class member’s ability to contribute to society; 3) whether the distinguishing character is “immutable” (beyond an individual’s control); and 4) the political power of the class. The court will weigh the degree of presence (or absence) of each of these factors in deciding whether heightened scrutiny, rather than rational basis review, applies.

If the court determines heightened scrutiny applies to the class of people against whom the law discriminates – for example, if the law treats people differently based on their race or sex – the law will be upheld as constitutional only if the reason for treating one group differently is substantially related to an important government interest. This means that the government not only needs at least one actual, on-the-record interest to justify enacting a law that treats people differently based on their race, sex, or other “protected” characteristic, that interest must also be deemed “important.” Furthermore, the differential treatment must be substantially related to actually achieving that important interest. For example, according to the Supreme Court, although increasing traffic safety by preventing drunk driving is indeed an important governmental interest, a law that sets the drinking age for men at twenty-one and for women at eighteen is not substantially related to achieving that interest, and thus does not survive heightened scrutiny.

On the other hand, if the class of people a law treats differently does not qualify as “suspect” or “quasi-suspect,” the court will instead use the deferential rational basis standard of review to determine if the law is constitutional. Under rational basis review, the law will be upheld so long as the discriminatory treatment is rationally (i.e. somehow) related to achieving a “legitimate” goal, even if that goal is hypothetical and conceived after the law was enacted. Although a law is not automatically upheld as constitutional under rational basis review, it is rare that a court finds no conceivable basis for the differential treatment, or finds that, even if there is a conceivable goal, treating people differently will not achieve that goal. Clearly, then, the level of scrutiny the court applies plays a crucial role in determining whether the statute violates the constitution.

Come back tomorrow to find out which level of scrutiny courts have applied when assessing laws that discriminate based on sexual orientation.

DOMA Series, Part 2: Obama Spoke, Now What?

By Kate Paine, Esq.

It was an exciting moment for those seeking marriage equality for same-sex couples when, on May 9, 2012, President Barack Obama announced that he believes same-sex couples should be able to marry. Although the President’s evolved stance on same-sex marriage is indeed an extraordinary symbolic victory for marriage equality, at the moment, his views unfortunately have no direct legal effect on the issue of same-sex marriage (apart from essentially guaranteeing that the President will sign a congressional bill repealing DOMA, should one make its way to his desk).

The President’s statement came only one day after North Carolina voters approved a state constitutional amendment banning same-sex marriage. This highlights the fact that, even if Congress were to enact (and the President to sign into law) a bill repealing Section 3 of the federal Defense of Marriage Act (the provision limiting marriage for federal purposes to those unions between one man and one woman), this would serve only to afford same-sex couples legally married in a state or in another country equal treatment under federal laws that condition rights and responsibilities on marital status; it would have no effect on a state’s ability to define marriage for its own citizens. And, in fact, the large majority of states have enacted their own version of DOMA or passed a constitutional amendment banning same-sex marriage. As was the case with marriage between blacks and whites forty-five years ago, only a declaration by the United States Supreme Court that laws and constitutional amendments forbidding same-sex marriage violates the United States Constitution will ensure that every person can legally marry an individual of the same sex and have that marriage recognized by both the federal government and other state governments.

For this reason, more significant than the President openly supporting same-sex marriage is the fact that, last February, the United States Attorney General (the chief lawyer for the U.S. government) sent a letter to the members of Congress informing them President Obama had determined that Section 3 of DOMA violates the equal protection component of the Fifth Amendment, as applied to legally married same-sex couples. (Read the letter here.) What this means, exactly, is precisely where tomorrow’s post will pick up.

Obama Fully Supports Gay Marriage

At a press conference on Wednesday, President Obama stated that he is personally in favor of allowing nontraditional couples to marry.  For many years, Obama has wavered on the issue.  But now, only one day after North Carolina’s vote to outlaw such unions, Obama has made his opinion clear. 

The President told ABC’s Robin Roberts: “Over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.”

Click here to read the full article in the Chicago Tribune.

EEOC Opens Door to Title VII Suits by Transgender Workers

The Equal Employment Opportunity Commission recently ruled for the first time that workers’ claims of discrimination based on transgender status or gender identity are cognizable under Title VII and may be adjudicated through the EEOC’s administrative procedures. In a decision dated April 20, 2012, the EEOC reversed the final decision of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“Bureau”), which had declined to process a job applicant’s complaint of discrimination based on gender identity, change of sex and/or transgender status under Title VII and the EEOC’s regulations. Macy v. Holder, Appeal No. 0120120821 (April 20, 2012).

Read more.