JUDGE ISSUES STAY IN CASE TO OVERTURN MICHIGAN'S CONSTITUTIONAL BAN ON SAME-SEX MARRIAGE AND ADOPTION
March 7, 2013 - Arguments were heard today in a challenge to Michigan's Constitutional Amendment barring same-sex couple from marrying.
Judge Bernard Friedman of the Eastern District of Michigan said the arguments of the plaintiffs were "compelling," however, he first wishes to review U.S. Supreme Court rulings on the upcoming cases involving the Defense of Marriage Act (DOMA) and the California case involving Proposition 8. In both those matters, the plaintiffs were successful in challenging laws which discriminated against gays and lesbians.
Accordingly, Judge Friedman took the motions under advisement, and issued a formal stay of proceedings. He indicated a written opinion would be issued shortly after the Supreme Court opinions are received. Those arguments will be heard by the U.S. Supreme Court later this month, and a decisions are expected in June.
Southeastern Michigan residents April DeBoer and Jayne Rowse are challenging Michigan's constitutional ban on same-sex marriage, as well as its adoption code that prohibits them from adopting their children together.
"While we are disappointed that an immediate decision was not made, we are hopeful that it will only be a matter of time until the law recognizes that we are as much a family as any other," said DeBoer. "We will never stop fighting for our family or for our children."
The couple, who has been in a committed relationship for over a decade, has three special-needs children. DeBoer, a neo-natal intensive care nurse, and Rowse, an emergency room nurse, became licensed as a couple to be foster parents. Within a year and a half, they welcomed three newborns who had been abandoned or surrendered at birth. The children faced long-term physical and mental impairments due to prematurity, little or no prenatal care, maternal drug use, and other complications.
DeBoer and Rowse's desire to jointly adopt all three children would establish each parent's legal claim and relationship to their children. Currently one has adopted two of the children and the other has adopted one. April and Jayne asserted that the Michigan Adoption Code, which prohibits joint adoption for their kids and thousands of other children in households like theirs across the state, violates their right to Equal Protection under the United States Constitution.
Attorneys Dana Nessel (Nessel & Kessel Law) and Carole Stanyar (The Law Offices of Carole Stanyar) filed a complaint on behalf of April, Jayne, and their children against the State of Michigan in January of 2012, however, at the behest of Judge Bernard Friedman, the pleadings were amended to challenge the same-sex marriage ban, significantly expanding the scope of the case.
Michigan's Marriage Amendment, approved by voters in 2004, prohibits gays and lesbians from a legal marriage, civil unions, or domestic partnerships.
"While we understand his reasoning, we are nonetheless disappointed that Judge Friedman did not take this opportunity to strike down Michigan's draconian prohibition on same-sex marriages, civil unions, and domestic partnerships," said Nessel. "We believe this issue is ripe for an immediate decision. The citizens of our state are hurting each and every day as a result of these abominable laws. A declaration that equal rights apply to everyone can never be made too quickly or come too soon."
"The children of gays and lesbians in Michigan are forbidden from having two parents," said attorney Carole Stanyar. "Michigan is one of only a handful of states left in the country that allows no mechanism for the legal recognition of two parents of the same sex, meaning that whether same-sex couples adopt or one of the partners conceives a child biologically, only one partner can ever have a legally recognized relationship with that child."
source: press release
Brief Argues DOMA Impermissibly Relegates Same-Sex Married Couples to Second-Class Status
Schneiderman: My Office Will Fight Every Day to Defend the Fundamental Guarantee of Equal Protection for All New Yorkers
NEW YORK – In a friend-of-the-court brief filed in the case of Windsor v. United States in the U.S. Court of Appeals for the Second Circuit, Attorney General Eric T. Schneiderman, together with the Attorneys General of Vermont and Connecticut, challenged the constitutionality of the federal Defense of Marriage Act (“DOMA”), which rejects same-sex marriages valid under state law for all federal purposes. The brief argues that DOMA violates same-sex couples’ right to equal protection under the law as required by the U.S. Constitution and should be viewed with great skepticism because it is an unprecedented intrusion on the authority of States to regulate marriage and enhance equality for their citizens.
“The federal Defense of Marriage Act clearly violates the principle of equal justice under law as enshrined in the U.S. Constitution, and improperly intrudes on the traditional role of states in regulating marriage and promoting equality,” Attorney General Schneiderman said. “The State of New York has long recognized out-of-state, same-sex marriages, and the enactment of the Marriage Equality Act last year further cemented our state’s position on this critical civil rights issue. My office will fight every day to defend the fundamental guarantee of equal protection under law for all New Yorkers.”
Attorney General Schneiderman filed the brief in the case of Windsor v. United States. The plaintiff, Edie Windsor, was married in Canada in 2007 to her partner, Thea Spyer, who died two years later. Following Spyer’s death, the federal government refused to acknowledge the couple’s marriage under DOMA and taxed the resulting inheritance accordingly. Windsor then filed suit, challenging the constitutionality of DOMA and seeking a refund of the estate taxes she was forced to pay as a result of the federal government’s refusal to recognize her marriage. United States District Judge Barbara S. Jones of the Southern District of New York held that DOMA’s rejection of Windsor’s valid marriage was unconstitutional because it serves no legitimate government interest. Another federal appeals court, the First Circuit in Boston, reached a similar conclusion about DOMA.
In the amicus curiae brief, Attorney General Schneiderman argues that in rejecting same-sex marriages, Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause, and must therefore be invalidated. He also argues that the statute improperly intrudes on the traditional role of states in regulating marriage and domestic relations generally; that it discriminates based on sex and sexual orientation and therefore must be subjected to heightened scrutiny; and that DOMA fails any level of scrutiny because it does not advance any legitimate federal interest.
The United States Supreme Court has been asked to review several decisions that have found DOMA unconstitutional — including the decision of Judge Jones in Windsor, the decision from the federal appeals court in Boston, and federal district court decisions from California and Connecticut — and may decide as early as October of this year whether it will grant one or more of those requests.
Oral arguments in the case are set for September 27, 2012.
Ceara Sturgis and her same-sex partner, Emily
Southern Poverty Law Center Demands Mississippi Agriculture & Forestry Museum Repeal Anti-Gay PolicyJACKSON, Miss. – The Southern Poverty Law Center (SPLC)
sent a letter to the Mississippi Agriculture & Forestry Museum
and the Mississippi attorney general demanding that the museum immediately rescind its unlawful policy of refusing to rent the facilities to same-sex couples for commitment and wedding ceremonies or face a federal lawsuit.Ceara Sturgis
and her same-sex partner
, are asking to hold their commitment ceremony at the museum this fall. The museum is owned and operated by the state and has previously refused to rent its facilities for same-sex wedding and commitment ceremonies on the basis that such ceremonies violate state law. Museum representatives have until July 25 to advise the SPLC and its clients of its position.
“Our clients simply want to have the opportunity to express their love for one another in front of their family and friends,” said Elissa Johnson
, a staff attorney for the SPLC
. “It is unfair and illegal for the state to refuse to rent its facilities to couples based solely on their sexual orientation.”
Sturgis and her mother, Veronica Rodriguez
, are both from Jackson and wish to hold the ceremony at the museum’s Masonic Hall so that family and friends in the area may attend.
“We love each other and want to spend the rest of our lives together,” said Sturgis. “Like any other couple, we want to be able to share this special day with our family and friends.”
To support its policy, the museum cites a 2009 letter from Attorney General Jim Hood
expressing his opinion that the museum may restrict use of its property to events that are “legal” under state law and therefore may “prohibit same gender marriages on museum property.”
But the letter warns the museum that it has no legal basis for denying same-sex couples the use of its facilities for such ceremonies. The museum routinely rents its facilities, including the Masonic Hall, to heterosexual couples for weddings, wedding rehearsal dinners and wedding receptions. It must make the facilities available to same-sex couples also. The letter states that, “the Museum’s refusal to rent the same facilities to same-sex couples for the same purposes constitutes viewpoint discrimination in violation of the First Amendment.”
The letter also notes that the policy violates the Equal Protection Clause of the United States Constitution
, because under the 14th Amendment, a state may not single out a class of citizens for different treatment, absent a valid state interest. A commitment ceremony or same-sex wedding ceremony does not require that the state recognize or endorse the committed same-sex couple as a married couple.
“As a mother, I have dreamed of giving my daughter the wedding that she desires and I want her to be able to get married in her hometown in front of our family and friends,” said Rodriguez. “We are not asking Mississippi to recognize Ceara and Emily’s relationship, although it should. We are just asking that they have the opportunity to hold a ceremony in a public place – the same as other couples.”
Other attorneys signing the letter include Jody E. Owens
, II, and Christine P. Sun
of the SPLC,
and Alysson Mills of Fishman Haygood Phelps Walmsley Willis & Swanson, L.L.P.
in New Orleans.
A copy of the letter can be found at www.splcenter.org
PHILADELPHIA –- Beginning July 1
, the University of Pennsylvania
will provide a tax offset of as much as $125 per month for employees who are covering same-sex domestic partners under their Penn medical plans, with a maximum of $1,500 per year. This offset will appear in employees’ paychecks as additional taxable income — minus applicable state and federal taxes — starting in late July.
Currently, many Penn faculty and staff enjoy the employee benefit of paying pre-tax health-insurance premiums for themselves and their dependents, resulting in more take-home pay. However, employees who cover a same-sex domestic partner under the University’s benefit plans must pay federal and state taxes on the value of their partner’s coverage because federal and Pennsylvania tax codes do not recognize domestic partners as dependents.
“At Penn, this tax inequality is being addressed,” Jack Heuer
, vice president of the Division of Human Resources, said
. “Penn has a long history of supporting our LGBT community. We were the first Ivy League institution and among the first local employers to include same-sex domestic partners in our benefits coverage, and now we’re among the first universities to provide this tax offset.”
Early versions of the Obama
administration’s Patient Protection and Affordable Care Act
included a tax-equalization provision that would have made health coverage for domestic partners and same-sex spouses free from taxation. But the provision wasn’t included in the final bills signed by the president. Robert W. Carpick
, a professor in the School of Engineering and Applied Science,
said the tax offset is a “terrific” step for the University and will make more than just a financial difference. He said it will also “have an effect both in retention and recruitment of top talent.”
“The effect goes beyond LGBT employees,” Carpick said. “Employees who have LGBT family members or friends are increasingly informed and concerned about institutional policies like these, so this will give many people one more reason to be proud of Penn, and that includes me.”
Employees who have elected to cover a same-sex domestic partner under a Penn medical plan will receive a letter outlining the tax offset. Any faculty or staff wishing to add a domestic partner to a medical plan has until June 30 to do so for coverage effective July 1.
On or after July 1,
employees can make changes only during a qualifying life event or the annual Benefits Open Enrollment
Additional information on the tax offset is available on the Penn Human Resources Web site www.hr.upenn.edu/News
or by calling 888-736-6236
The law in Illinois now states that same-sex couples joined in a civil union shall be granted all the same rights, benefits, protections, and responsibilities as couples in a traditional heterosexual marriage. The law also states that terms and definitions such as spouse, family, immediate family, dependent, husband, wife, next of kin, and so on that are used throughout the law shall now be extended to same sex couples jointed in a civil union.
The term "marriage" as it is used throughout the law, whether in statutes, administrative or court rule, policy, common law or any other source of civil or criminal law will now include marriage and civil unions between same-sex couples. Further, partners joined in a civil union will be responsible for the support of one another in the same manner as stated by the law for heterosexual couples in a traditional marriage.
All of Illinois’ law concerning domestic relations, probate, and family law will now apply to civil unions. With this in mind, should a couple decide to split (divorce), the same procedures, rights and obligations that are involved in the dissolution of a marriage will apply.
Illinois LGBT couples in a Civil Union will have new rights and responsibilities regarding the control, division and disposition of property in case of a breakup or divorce. The rights relating to inheritance, Probate, and others will apply. In divorce proceedings, the responsibilities of child custody, support payments or spousal support, will be the same as a married couple. Premarital agreements are just as valid as the right to bring a wrongful death action. All marriage law will apply to the benefit of exemption of real property from creditors by owning a house as tenants by the entities. It means, if one dies, the survivor takes the whole estate. Under the new of Civil Union laws, if one of the partners dies, the living spouse has the right to the property even without a will.
What does all of that mean to Illinois LGBT couples? Under the new law couples will have the right to recover damages from for your spouse’s injury. You have the right to enter hospitals as family member, and participate in medical or economic decisions in case of disability or long term illness. Civil Union partners also have visitation rights to jails, and to restricted places that says "immediate family." Couples will have the right to live in neighborhoods zoned "family only," and obtain health/dental insurance, bereavement leave, and other employer benefits.
Now that the legal rights are available for those who want to engage in a civil union, the question becomes, “Should you?”
Before entering into one, it is important for low-income individuals to consider the impact their civil union may have on their public benefits. Because the Civil Union Act is a state law, the changes will be primarily in state programs. But since it’s not always clear which programs are state and which are federal, review first the main public benefits programs, especially those accessed by people with HIV to determine what effect, if any, the new law will have on them.
Don’t ignore the need to have current Power of Attorney. Having a civil union does not remove the need to have a current one. Effective July 1, 2011, the new Illinois Power of Attorney Act went into effect. The new law has changes, new forms and new legal obligations.
Although the new law states that the old forms are valid, banks and other institutions, may refuse to honor them. An “old” power of attorney is more difficult to deal with than a new one because questions may arise as to whether it is still good or has it been replaced. Consult with your attorney to determine if your power of attorney needs to be replaced with a new one.
Since 1990 married couples in Illinois have enjoyed the option of owning their Illinois marital home as tenants. Now LGBT couples who enter into a civil union can also have the same right to hold title to real estate as tenants by the entirety. Tenancy by the entirety combines the survivor-ship attributes of joint tenancy with the bonus of limited protection against creditors. That is, a judgment creditor of just one of the homeowners can not enforce its lien against the residence of the homeowners owned as tenants by the entirety. This means that if you enter into a Civil Union in Illinois and sign and record a new deed conveying the title of your house, which has to be your residence, to yourselves, as tenants by the entirety, the creditors of one of you cannot take away the house. This is the greatest protection for your home.
A creditor may evoke the tenancy when the intention is to avoid the payment of debts existing at the time of the transfer. There is no protectionwhatsoever, and both owners are liable to pay the debt. The protection only applies to your main residence, where you live, and not to a vacation house or a vacant real estate such as farmland.
Civil Unions should not be taken lightly. Because this subject involves considerable legal and tax consequences, one should first consult with their attorney. Before you leap – consider how will this benefit or adversely affect your personal,financial and estate planning.
This material is for informational purposes only and subject to the unique needs of each individual. As laws differ from state to state please check the laws in your state AND please consult your own attorney for specific answers to your individual needs and situation. A consultation with your attorney can answer questions for your individual rights for any of the matters raised in this article.
Roger V. McCaffrey-Boss, Esq. is a graduate of Hamlin University School of Law in St. Paul Minnesota. As a member of the Chicago Bar Association and LAGBAC., Mr. McCaffrey-Boss, has provided legal services and support to Chicago’s LGBT community for over 34 years. You may contact him at email@example.com or 312-263-8800.