Pennsylvania Leads the Fight After DOMA for Whole-Milk Marriages

by Kate Paine

We are excited to announce that Equal Magazine’s August 2013 issue features another article by attorney Kate Paine.  Her article, “Pennsylvania Leads the Fight After DOMA for Whole-Milk Marriages,” briefly describes the Supreme Court’s June decisions in the Proposition 8 and DOMA cases, and then discusses the merits and potential outcome of the recently-filed Pennsylvania lawsuit challenging the state’s law prohibiting same-sex marriage.

Read the full article at the link below (begins on page 36).


DOMA and Prop 8 are Dead, But Same-Sex Marriage Bans Remain

by Kate Paine

Today, the United States Supreme Court issued two marriage-equality opinions that—though awaited by many—were surprising to few. In a 5-4 vote, the Court declared the federal Defense of Marriage Act (DOMA) unconstitutional, because it treats one category of legally-married couples (same-sex couples) differently than another category of legally-married couples (opposite-sex couples), for the  principal purpose of demeaning those in a lawful same-sex marriage.  Such absence of a legitimate purpose behind the discrimination violates the Equal Protection Clause to the United States Constitution.

 In another 5-4 vote, the Court found that the Ninth Circuit Court of Appeals lacked standing (i.e. power) to hear the appeal of the Prop 8 case in the first place, and so the Court made no decision regarding the constitutionality of Proposition 8, or similar state laws that prohibit same-sex marriage. The result of this decision is that same-sex marriage will likely once again be permitted in California, but states that do not yet permit same-sex marriage will not be required to do so.

 For more information, see:  (DOMA) and (Prop 8)


Prop8 + DOMA: Making Sense of Laws that Don’t Make Sense

by Kate R. Paine

Equal Magazine’s May/June 2013 issue featured Kate Paine’s article, “Prop8 + DOMA: Making Sense of Laws that Don’t Make Sense.” In the article, Kate describes the several likely ways in which the Supreme Court could decide on the fate of Proposition 8 and DOMA, both cases dealing with the controversial same-sex marriage debates.

Read the full article at the link below (begins on page 82).
See our ad on page 22.


What We Learned from the Proposition 8 Oral Arguments

By Kate Paine, Esq.

Last week, the Supreme Court of the United States heard argument in two cases involving same-sex marriage. This post will discuss the most important take-aways from the first of those two cases: that involving a challenge to the constitutionality of California’s constitutional amendment declaring that only marriages between one man and one woman are valid and recognized in California (often referred to as “Prop 8″). 

First, it is important to understand that, although the Supreme Court could determine that all laws refusing to recognize same-sex marriages as valid are unlawful (just as it may, sadly, decide that such laws are not prohibited by the Constitution), there is also the possibility that the Court’s decision will not affect any, or many, states other than California.  To comprehend why, it is essential to understand how the Prop 8 case arrived in the Supreme Court. 

Originally, the defenders of Prop 8 lost at the trial Court level, when a federal Judge in California determined that Prop 8 violates a fundamental right to marry and constitutes unlawful discrimination. The case was then appealed to the Ninth Circuit Court of Appeals.  Although that court agreed Prop 8 is unconstitutional, it did so on much narrower grounds than the trial court, finding Prop 8 unconstitutional because it stripped the right to marry from one group only: same-sex couples.  Because no other state in this country has first allowed same-sex couples to marry, and then stripped them of that right, if the Supreme Court agrees with the Ninth Circuit, then its decision will likely affect only California—a victory, but a small one.

There is also the possibility that the Court could reach a middle ground and adopt what commentators call the “nine-state solution.”  Under this approach, the Court would find that states like California which, through civil unions or domestic partnerships, already give same-sex couples all of the rights of married couples, cannot withhold from those couples the actual label of “marriage.”  This would lead to the legalization of same-sex marriage in California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island—a bigger victory.

Of course, the Supreme Court could also agree with the federal trial judge and decide that laws refusing to recognize same-sex marriages violate the Constitution—the biggest victory of all.  The Court would base this decision on one of two grounds (or on both grounds): 1) it could decide that marriage is a fundamental right for everyone, whether between opposite-sex couples or same-sex couples; or 2) it could decide that laws that prohibit same-sex couples from marrying discriminate unlawfully

Based on Wednesday’s oral arguments, at which some Justices described the institution of same-sex marriage as “uncharted waters,” newer than cell-phones and the internet, it is unlikely that at least five of the nine Justices will decide that the fundamental right to marry includes same-sex couples.  The Justices also discussed their concerns over the unstudied effects of same-sex parenting on children and of same-sex marriage on society, generally.  Importantly, however, Justice Anthony Kennedy (who many believe will be the Judge to swing the vote to one side or the other) did emphasize his internal conflict, caused by the 40,000 children of same-sex couples in California, who want their same-sex parents to marry, and who are clearly faring well.  

It is more likely that the Court will find that the law unconstitutionally discriminates against same-sex couples.  You’ll remember from my previous posts about DOMA that a government must have one or more legitimate reasons for enacting a law that discriminates against a particular group of people.  Yet, during oral arguments, the lawyer defending Prop 8 had trouble articulating any such reasons, other than to allow more time for studies to emerge regarding the “real world consequences” of same-sex marriage, and to encourage “natural” (i.e. mother-and-father) procreation.  Although some of the Justices appeared to agree with these points, others disagreed with viewing marriage as an institution whose primary purpose is to produce children, especially because many people, including those past child-bearing age, are permitted to marry.  Even more importantly, these Justices questioned the notion that a law that prohibits same-sex marriage will encourage those in opposite-sex marriages to procreate.

The main takeaways from the Prop 8 arguments, then, are that: 1) the Court may again legalize same-sex marriage in California, and may even require legalization of same-sex marriage in those states that give same-sex couples all of the same rights as married couples, but there is a good change it will not legalize same-sex marriage nationwide; and 2) the question of whether same-sex marriage should be legalized nationwide will likely come down to what the majority believes to be the best situation for children.  Hopefully, the Justices will realize that, what is best for children, is to have two parents devoted to loving and caring for the child.

Supreme Court to Decide on November 20 Whether It Will Review DOMA’s Constitutionality

By Kate Paine, Esq.

Unsurprisingly, the Obama Administration is pushing for the Court to review the recent Second Circuit Court of Appeals case, described here, which not only found Section 3 of DOMA unconstitutional but also held that laws that discriminate based on sexual orientation are subject to intermediate (i.e. harsher) scrutiny, rather than the First Circuit Court of Appeals case, which also found Section 3 unconstitutional but only applied rational basis review.

Two Steps Forward & 1/2 Step Back

By Kate Paine, Esq.

At first blush, yesterday’s opinion by the Second Circuit Court of Appeals represents a resounding victory, both in the fight to overturn Section 3 of DOMA (which, again, essentially says that only one man and one woman are considered “married” in the eyes of the federal government), and in the quest to achieve marriage equality nationwide.   

Yet, keeping this end goal of marriage-equality in mind, what actually stands out most about the opinion is that it simultaneously represents two steps forward and one half-step back.  The two steps forward are a result of both the positive outcome reached and the advantageous method used to arrive at that outcome.  Unlike the lower court in this same case, and unlike the First Circuit Court of Appeals, the Second Circuit applied the more rigorous intermediate level of scrutiny in reviewing (and rejecting) Section 3’s constitutionality.  Where applicable, this standard requires that the government have an important reason for discriminating and the important reason be substantially furthered by the discrimination

In deciding that intermediate scrutiny was appropriate, the court determined that sexual orientation qualifies as a “quasi-suspect” class because of the history of discrimination against homosexuals, the group’s historical lack of political power, and the obvious absence of any connection between homosexuality and one’s ability to perform in and contribute to society.  Then, applying intermediate scrutiny, the court concluded that all of the reasons given in support of Section  either did not qualify as “important,” or, even if important, were not actually furthered by refusing to recognize lawfully-wed same-sex couples as “legally married” for federal purposes.  Consequently, the court declared Section 3 unconstitutional.

The reason the court’s decision to apply intermediate scrutiny is itself a step in the right direction, is because the fate of both Section 3 and other laws that discriminate based on sexual orientation, like laws forbidding same-sex marriage, essentially go hand-in-hand.   If Section 3 cannot survive intermediate scrutiny, these other laws are also unlikely to survive.  Indeed, even the dissenting Second Circuit judge (who argued that rational basis review is the proper standard to apply) conceded that “an affirmance by the Supreme Court of the majority’s view [applying intermediate scrutiny] would likely doom the laws of the forty-one states which exclude same-sex couples from civil marriage.”    

That being the case, the reason this case also represents a half-step back is because, although the Second Circuit did apply intermediate scrutiny, the court came close to admitting that DOMA would survive under rational basis review, writing: “the existence of a rational basis for Section 3 of DOMA is closely argued. . . . [because there are] several justifications that alone or in tandem are said to constitute sufficient reason for the enactment[, including] . . . protection of the fisc, uniform administration of federal law . . . the protection of traditional marriage generally, and the encouragement of ‘responsible’ procreation.” 

This does not mean that, if the United States Supreme Court ultimately decides rational basis review is appropriate, the Court will also determine that Section 3 survives that scrutiny.  You’ll remember from a previous post that both the lower court in this case and the First Circuit Court of Appeals held the opposite—that is, that DOMA fails even rational basis review.  Still, the Second Circuit’s retreat from the holding in those two cases is unsettling.

As discussed in my last post, ideally, the Supreme Court will decide, like the Second Circuit did, that sexual orientation is a quasi-suspect class subject to intermediate scrutiny, and that it fails such scrutiny.  Then, not only will Section 3 of DOMA fall, so too are those laws preventing same-sex couples in all states from marrying likely to become a thing of the past.

The full text of the Second Circuit’s majority and dissenting opinions can be found here.


The Supreme Court Could Rule on Both DOMA and Prop 8

By Kate Paine, Esq.

Come next term, the United States Supreme Court may have, not one, but two, opportunities to determine whether sexual orientation is a suspect class afforded extra protection against discriminatory laws.

Heightened Scrutiny, Rational Basis, or Both?

The Supreme Court has been asked to review the opinions of both the First Circuit Court of Appeals (finding unconstitutional Section 3 of DOMA, which defines marriage for federal purpose as only those unions between one man and one woman as husband and wife, but does not address whether same-sex couples may marry in the first place) and the Ninth Circuit Court of Appeals (striking down as unconstitutional California’s Proposition 8, which does ban same-sex couples from marrying).

The Supreme Court receives approximately 8,000 requests to review cases per year and grants review in only one or two percent of those cases (approximately 80 to 150). However, because different courts have reached the opposite result regarding both the constitutionality of Section 3 of DOMA and the same-sex marriage issue, these two cases are prime candidates to be accepted for review by the Court.

Should the Supreme Court grant review in these cases and ultimately agree with the decisions of the Courts of Appeals, this will indeed be a great victory for same-sex marriage. Perhaps even more important than the outcome reached in these cases, however, will be the analysis by which the Court reaches its conclusion. This is because the Supreme Court can decide that DOMA and Prop 8 are unconstitutional while, at the same time, sidestepping the issue of whether sexual orientation, as a whole, is a suspect class afforded heightened protection from all laws that discriminate (not just those relating to marriage).

With respect to DOMA, as discussed in my last post, the Court could determine that, because there simply is no legitimate reason rationally related to the alleged goals sought to be achieved by preventing federal recognition of same-sex marriage, the Court does not need to decide whether all laws that discriminate based on sexual orientation should be subject to rational basis review or heightened scrutiny.

Why Two Courts Found Section 3 Unconstitutional

Regarding Prop 8 (and other state laws that ban same-sex marriage), the Court could again avoid the equal protection issue and instead base its decision on the fundamental right to marry. Indeed, the fundamental “freedom of choice to marry” was one of the bases for the Supreme Court’s 1967 opinion striking down state laws that prohibited interracial marriages.

More information on the Prop 8 appeal can be found here.

DOMA Update: Why Two Courts Found Section 3 Unconstitutional

By Kate Paine, Esq.

Since writing my last post, two more courts  have had to determine which standard of review to apply in deciding a challenge to Section 3’s constitutionality (the First Circuit Court of Appeals and the District Court for the Southern District of New York).

As I predicted, neither court viewed as authoritative President Obama’s determination that sexual orientation is a suspect class. Consequently, instead of applying heightened scrutiny, they used rational basis review, albeit “a more searching form of rational basis review,” sometimes referred to as “rational basis review with bite.” Essentially, this is when, although the court does not apply heightened scrutiny – because the law does not affect a class that has been deemed “suspect” – the court does take a closer look at the potential justifications because the law discriminates against a historically disadvantaged/politically unpopular group.

Applying rational basis “with bite,” the courts determined that Section 3 is unconstitutional because no legitimate Congressional interest – whether documented or hypothetical – can actually be served by excluding same-sex couples who are legally married from receiving the same federal benefits as opposite-sex married couples.

In reaching this determination, the courts chiefly evaluated four “governmental interests”: 

  1. defending and nurturing the institution of traditional, heterosexual marriage
  2. promoting the “ideal” family structure for having and raising children
  3. defending traditional notions of morality
  4. preserving scarce government resources

With respect to the first and second interests, the courts determined that, whetherDOMA, Same Sex Marriage, Laws legitimate interests or not, excluding same-sex couples who are already married from receiving federal benefits in no way defends heterosexual marriage or promotes parenting by married, opposite-sex couples. Regarding the second rationale, the courts noted that, although defending morality may once have been viewed as a legitimate interest, cases decided in the past twenty years have established that moral disapproval, on its own, is not a sufficient ground for discriminating.

The courts disposed of the third rationale, preserving scarce government resources, on the basis that Section 3 does not serve this interest, as recent studies show that DOMA is more likely to actually deprive the government of revenue.

Clearly, the result reached in these cases was positive: Section 3 was declared unconstitutional. When it has the opportunity, hopefully the United States Supreme Court will reach the same result. However the true victory in the battle against laws that discriminate based on sexual orientation will be a simultaneous determination by the Supreme Court that sexual orientation is a suspect class afforded extra protection against discriminatory laws.

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:

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.