Posted by: euser
January 06, 2011
Topic: Marriage and Divorce

On November 4, 2010, Louis and I presented a CLE with Andrew Green of Cotton Allen PSC at the Louisville Bar Association. We discussed the Defense of Marriage Act, ramifications of Perry v. Schwarzenegger, and tax/estate planning for same-sex couples. The December 6, 2010 issue of The National Law Journal featured an opinion piece by Alan B. Morrison titled "Courts aren't perfect, but..." This article focused on a few gay rights cases, including ones that Louis and I featured in our CLE presentation. The gist of Morrison's article is that in most cases, the judiciary grapples with warring contentions and decides which result most conforms to the facts and applicable law. You can read the full text of Morrison's article here:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202475674996&slreturn=1&hbxlogin=1

Since Louis and I are particularly interested in the ongoing litigation surrounding the Defense of Marriage Act, the article captured my attention because it featured some of the forefront gay rights cases. Particularly compelling to me was Morrison's assertion that recent gay rights cases illustrate how powerful a weapon the judicial system is in dealing with defenses that, in the end, amount to little more than claims that "we've always done it this way" or "that's the way we voted to do it." According to Morrison, accepting the first approach would mean that the court would have had to let segregated schools continue forever.

Morrison's article highlighted Gill v. U.S. Office of Personnel Management, Perry v. Schwarzenegger, Log Cabin Republicans v. U.S., and Florida Department of Children & Families v. Matter of Adoption of X.X.G & N.R.G.

In Gill, Massachusetts District Judge Joseph L. Tauro found that Section 3 of the Defense of Marriage Act (DOMA), which provides that the term "marriage" in all federal laws means only marriages between a man and a woman, even when state laws allow same-sex marriages, violates equal protection because the discriminatory treatment of same-sex marriage is wholly irrational. In support of DOMA, the defense argued that Congress was maintaining the status quo, and that it was administratively difficult for the government to keep track of ever-changing state laws. Judge Tauro stated that this argument could be viewed two ways: that Congress had always relied on state laws, or state laws had always limited marriage to opposite sex couples. Judge Tauro explained that the status quo is not a justification, but simply an explanation of what the government is doing, and that the government could accept the law in each state as to what constitutes a valid marriage.

In Perry, the challenge to Proposition 8, which limits marriage in California to opposite-sex couples, both the attorney general and the governor found the reasons behind the law so unconvincing that they refused to defend it. The proponents of the ballot initiative that led to the law came in to defend it, and their principal claims were that Prop. 8 was needed to protect the marriages of opposite-sex couples and that disallowing marriage of same-sex couples would somehow increase the number of children raised by opposite-sex parents. They made no claim that children are better off with opposite-sex parents. Morrison believes the crucial finding made by District Judge Vaughn Walker was that the proponents failed to produce any evidence that allowing same-sex marriages would have any harmful effects on the marriages of opposite-sex couples. As to the procreation claim, there was no evidence that Walker found credible as to how that goal would be advanced as applied to same-sex couples already bound to each other by civil unions recognized by California law. In the face of the harm shown to same-sex couples from Prop. 8, Judge Walker struck down the discrimination as wholly unjustified under the equal protection clause.

In Log Cabin Republicans v. U.S., District Judge Virginia Phillips found the law known as "Don't ask, don't tell" unconstitutional because of its harsh treatment of gays and lesbians who wished to serve their country in the armed forces. The thrust of the government's defense was that allowing gays and lesbians to serve with heterosexuals would cause problems that would result in a loss of unit cohesion (morale), although they offered no witnesses during the nearly two weeks of trial who said so in open court, subject to cross-examination. The plaintiffs, on the other hand, offered data that seriously undercut the unit-cohesion claim, two parts of which were particularly compelling. The first was that discharges under the policy increased until wars in Afghanistan and Iraq increased the needs of the military, then the discharges declined sharply even though the military did not allege that there were fewer gays and lesbians in the military in those years. Second, the plaintiffs showed that the military routinely delayed discharges of service members alleged to have violated the policy until after they completed their overseas deployment. If the issue was so serious, the service members' discharge should have been expedited.

In Florida Department of Children & Families v. Matter of Adoption of X.X.G & N.R.G., the court rejected an appeal by the state of Florida after a four-day trial and a 53-page decision holding that the statutory ban on adoptions by gays or lesbians was so irrational that it could not stand. The state did not argue that all gays and lesbians were unfit to be good parents. It contended that placing children in non-homosexual households "preferably with a husband and wife as parents" would give them better role models. As the court noted, Florida specifically allows single-parent adoptions, with one-third of all adoptions falling into that category, thus seriously undermining the two-parents claim. The role model argument is also rebutted by the fact that Florida allows gays and lesbians to be permanent legal guardians, as well as foster parents, at whose homes the average stay is 30 months. The state did not show role model issues with these guardians and foster parents, or ill effects to the biological children of gays or lesbians.

Morrison's ultimate conclusion was that the judges rolled up their sleeves, closely scrutinized the facts and the law, and gave reasoned explanations for their conclusions.

Louis and I are eager to see how other states respond to DOMA, and how the law will evolve to respond to the growing number of non-traditional families. We enjoy rolling up our sleeves to work on cases at the forefront of changing law. If you are part of a non-traditional family with a legal problem, we'd be happy to set up a consultation with you to see how we can help. Please click "Contact Us" above, or use the form on our homepage to send us a message. -Stacy Anne Hoehle

Judges "roll up sleeves" to tackle DOMA and same-sex adoption cases

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