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.

The Top 10 Issues Facing Nontraditional Couples and Families

By: Mariah L. Passarelli, Esq.

Why should you care about legal issues that nontraditional couples are facing? How is the landscape changing for gay, lesbian and other nontraditional couples and families in your state and across the country?  What do you need to know to ensure that you and your loved ones are protected?

We launched nontraditionalcouples.com to help you answer these questions and better understand how the laws impact you.  

Our first post outlines the 10 reasons why you need to read this blog. Check back weekly for blog posts that further detail these, and many other, important issues.

1. Marriage

With a growing number of states legalizing gay marriage (eight, as of the date of this writing), the law in this area is all over the map. Literally. It is important to know your rights in the state where you live. What happens if you get married in another state? What are the ins and outs of domestic partnership laws? What is a common law marriage, is it acceptable in my state and do we qualify?

2. Domestic Partner and Cohabitation Agreements

No one getting together thinks that they are going to break up, but the fact is many of us do. We’ll look at the need for Domestic Partner and Cohabitation Agreements and the types of pitfalls you can avoid by having one in place when things are going well, rather than waiting until there’s a problem.

3. Adoption

The adoption process can be a complicated emotional rollercoaster for any prospective parent. For nontraditional couples, the legal road to a successful adoption can be even more complicated and filled with dead ends. Future blog entries will look at domestic and international adoption for nontraditional couples and single parents, as well as legal issues involving surrogacy, fertility options, and second-parent adoption.

4. Taxes

Related to the fluctuating legal status of gay marriage in the United States, the tax picture is anything but clear. When you get married in a state like New York, can you file your state taxes jointly? What about your federal taxes? If you mark “single,” is it a lie? If your partner puts you on the deed to a house that he already owns, is that a taxable event?

5. Insurance

There’s a laundry list of insurance available out there: life insurance, health insurance, renters insurance, disability insurance, long term care insurance, homeowner’s insurance. It can make your head spin. Despite your best efforts, are you really covered? If you own a house and you are not both on the deed, is your partner covered by the homeowners insurance? We’ll take a look at areas where nontraditional couples and families might be leaving themselves at risk and not even know it.

6. Joint Real Property
Owning a home with your significant other should be pretty simple, right? Absolutely not! Unlike traditional married couples, when nontraditional couples own join real property the law is anything but clear. What are the tax consequences if you break up and need to transfer the house from one joint owner to the other? Could a bankruptcy by one owner jeopardize the house? We’ll look at the pros and cons, legal ramifications and realities of putting your partner on the deed (or not).

7. Estate Planning
Estate planning should be everyone’s “problem.” However, the legal safety nets set up to protect the assets of traditional couples and families often leave nontraditional folks out in the cold. As such, the importance of good estate planning for nontraditional couples and families cannot be over emphasized. Who will get your assets upon your death? What will happen to your debts? Who should take care of your pets?

8. Children
There’s more to this than just adoption. With many countries (and even some U.S. states) banning single parent and same sex adoption, nontraditional couples are turning to solutions such as surrogacy and co-parenting arrangements. We will look at legal protections for these families, as well as address other related issues including child custody, authority for school and medical decisions, and ways to legally protect the rights of co-parents when formal adoption is not an option.

9. Employment Discrimination
United States civil rights laws still do not protect against discrimination on the basis of sexual orientation and/or gender identity. Increasingly, however employers, local municipalities, counties, and cities have adopted anti-employment discrimination provisions that provide some protection for the GLBT community. We’ll take a look at these protections. As an employer, what are the best practices for making my workplace GLBT-friendly? As an employee, what are my options if I feel I have been discriminated against or harassed? Do I have the same rights in the workplaces as my heterosexual counterparts?

10. Power of Attorney
Often swept under the rug as a bi-product of estate planning, powers of attorney are important tools that should be a part of any nontraditional couple’s or family’s arsenal of legal resources. Powers of Attorney make it possible for one half of a couple to make joint financial transactions and, perhaps more importantly, medical decisions. They can be triggered to take effect only when the other half of the couple is incapacitated, or set up to be used as a convenience feature that avoids joint trips to the bank. What kind of power of attorney should you have? When should it kick in? How much authority should it grant? We’ll take a look at both financial and medical powers of attorneys and discuss some pitfalls to avoid in creating these important documents.

We hope through this review of the Top 10 you’ve gained a better understanding of some of the legal issues that nontraditional couples and families face.