Brett R. Turner, Senior Attorney, National Legal Research Group

Ohio: Obergefell

     A previous entry in this series of posts discussed Obergefell v. Kasich, No. 1:13‑CV‑501, 2013 WL 3814262 (S.D. Ohio July 22, 2013). Obergefell granted a preliminary injunction, holding that Ohio was required to recognize a Maryland same-sex marriage. The parties to the marriage had almost no connection with Maryland. They flew there in an airplane, were married literally while the airplane sat on the tarmac, and then immediately flew back. The court reasoned, first, that Ohio's constitutional and statutory restrictions upon same-sex marriage were motivated by antigay prejudice, and second, that there is no rational basis for refusing to recognize gay marriage.

     The final decision in Obergefell has now been handed down. Obergefell v. Wymyslo, No. 1:13-CV-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013). Not surprisingly, it reaches the same end result as the initial decision did. The decision expressly holds that when a couple is legally married in a state that permits same-sex marriage, the couple therefore acquires a constitutional right to remain married in other states. "The right to remain married is therefore properly recognized as one that is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution. " Id. at *6 (emphasis added). Because the court viewed the plaintiffs as already married, it held that intermediate scrutiny should apply in an equal protection attack upon legislation restricting the right to remain married. It then held that the Ohio provisions failed both the intermediate scrutiny test and the rational basis test.

     The opinion claims that "[t]he Court's ruling today is a limited one," id. at *1, but this is plainly not so. The plaintiffs in Obergefell had utterly no jurisdictional connection to Maryland.  They were not domiciled there and did not live there. They went there only for the purpose of being married, and they left as soon as their purpose was accomplished. If Obergefell is broadly accepted, any same-sex couple in the nation can obtain a marriage that their home state is constitutionally required to recognize, simply by traveling to a state that recognizes same-sex marriage. The practical effect of Obergefell is to create a national federal constitutional right to same-sex marriage, so long as the actual license is issued by another state's clerk.

     Despite the court's initial claim that its ruling was limited, the court recognized later in a footnote that its ruling is much broader.

     As a final note, although the question of whether Ohio's refusal to grant same‑sex
marriages also violates Ohio same‑sex couples' right to due process and equal protection is not before the Court in this case, the logical conclusion to be drawn from the evidence, arguments, and law presented here is that Ohio's violation of the constitutional rights of its gay citizens extends beyond the bounds of this lawsuit.

Id. at *21 n.22. Given this statement, the court's initial claim that its ruling was limited borders upon disingenuous. Further recognizing that the actual effect of its decision is very broad, the court spent most of its opinion providing a legal justification for its holding that states cannot take away the right to remain married. The court's focus upon the right to be remarried is also somewhat misleading, for the court placed utterly no jurisdictional limitations on the right to get married.  Since a couple can functionally be married anywhere, the right to remain married is for all practical purposes no different from the right to get married. If Ohio must recognize a Maryland same-sex marriage, even where the parties plainly traveled to Maryland only for the purpose of getting married, then functionally all Ohio residents have a right to obtain a same-sex marriage that Ohio must recognize.

     Whether this holding survives appellate review remains to be seen. If five members of the Supreme Court had been inclined to create a federal constitutional right to same-sex marriage in 2012, Windsor would have been a very different opinion. If Obergefell were to be appealed to the 2012 Supreme Court, it would likely be reversed.

     But of course, any appeal in Obergefell is likely to end up in the Supreme Court in 2014 or 2015. Even if there is no turnover on the Court before that time, developments after 2012 are likely to influence the decision.

     In particular, it is very possible that by 2014 or 2015, the more liberal Justices on the Supreme Court—Justices Breyer, Sotomayor, Kagan, and Ginsburg—will be ready to hold that there is a fundamental right to same-sex marriage.  It seems unlikely that the most conservative judges—Justices Roberts, Alito, Thomas, and Scalia—would reach this result.

     The question therefore turns upon Justice Kennedy. The actual basis for Justice Kennedy's Windsor opinion is that DOMA section 3 was enacted out of antigay prejudice. As previous posts on this blog have noted, that reasoning is potentially quite powerful, because essentially all
restrictions upon same-sex marriage were motivated to some material extent by antigay prejudice. Justice Kennedy's opinion can easily be used to strike down any and all provisions limiting recognition of same-sex marriages.

     But Justice Kennedy's opinion also included a long discussion of federalism, stressing that marriage has traditionally been a subject for state law. The key issue is whether this discussion was intended to materially limit the much broader reasoning in the remainder of the provision,
or whether it was intended to distract more conservative readers from the very broad reach of the remainder of the opinion. The author suspects that in 2012, Justice Kennedy was not willing to concede that the entire discussion of federalism was irrelevant. But the law on same-sex marriage is evolving, and restrictions upon same-sex marriage are weakening all over the country. By 2014 or 2015, Justice Kennedy might see that discussion of federalism is considerably less important.

     The author would nevertheless have preferred that Obergefell make a straightforward argument for a federal right to same-sex marriage—essentially to extend to same-sex marriages the rationale of Loving v. Virginia, 388 U.S. 1 (1967). The actual Obergefell opinion stresses its limited nature, functionally creates a national right to same-sex marriage, and then essentially admits in a footnote that the decision is actually not limited. One hopes that if the court's reasoning is reviewed on appeal, the appellate courts will recognize the opinion for what it is, and not for what it claims to be.

Utah: Kitchen

     The other big news of the week was Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 697874 (D. Utah Dec. 20, 2013), which held that Utah was required to allow same-sex marriage. Kitchen is another in a growing line of cases giving very little weight to the discussion of federalism in Windsor, and holding that states are not free to choose either to recognize or not recognize same-sex marriage.

     Interestingly, Kitchen was skeptical of the argument that Utah's restrictions upon same-sex marriage had been motivated by antigay prejudice. The court recognized that some degree of prejudice was present, as it almost always is when these sorts of provisions are enacted. But the court continued:

     But there are also reasons why Amendment 3 may be distinguishable from the laws the
Supreme Court has previously held to be discriminations of an unusual character. Most notably, the Court has not articulated to what extent such a discrimination must be motivated by a "bare . . . desire to harm a politically unpopular group." U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). . . .

     While the Plaintiffs argue that many Utah citizens voted for Amendment 3 out of a dislike of gay and lesbian individuals, the court finds that it is impossible to determine what was in the mind of each individual voter. Some citizens may have voted for Amendment 3 purely out of a belief that the amendment would protect the benefits of opposite-sex marriage. Of course, good intentions do not save a law if the law bears no rational connection to its stated legitimate interests, but this analysis is the test the court applies when it follows the Supreme Court's rational basis jurisprudence. It is unclear how a mix of animus and good intentions affects the determination of whether a law imposes a discrimination of such unusual character that it requires the court to give it careful consideration.

Id. at *23 (emphasis added).

Brett Turner, Senior Attorney, National Legal Research Group  

     The most recent American state to recognize same-sex marriage by statute is Illinois. A bill recognizing same-sex marriage was signed by the governor on November 20, 2013, but the bill does not take effect until June 1, 2014. S.B. 10, 2013 Ill. Legis. Serv. Pub. Act 98-597 (West) (codified primarily at 750 ILCS §§ 5/201, 5/212, 80/10).

     Vernita Gray and Patricia Ewert have a long-standing same-sex relationship. In 2011, when Illinois first recognized same-sex civil unions, they immediately joined in such a union.  When it became apparent that Illinois would soon allow same-sex marriages, they planned to enter into such a marriage.

     But a cruel twist of fate intervened. Gray developed cancer, and her cancer advanced rapidly, leaving her with only weeks to live. It was gravely questionable whether Gray would live until June 1, 2014, the effective date of the new Illinois legislation. When the Cook County Clerk refused to issue an immediate marriage license, Gray and Ewert sued the Clerk in federal court, arguing that the Clerk's refusal to grant the marriage license violated due process and equal protection. To prevent irreparable harm, they sought a temporary restraining order ("TRO") directing the Clerk to issue them a marriage license.

    The federal court granted the TRO. Gray v. Orr, No. 13 C 8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013). Failure to grant the TRO would cause irreparable harm, because Gray was
unlikely to live until June 1, 2014. If the plaintiffs were unmarried when Gray died, they would be denied important legal benefits such as "the right to take leave under the Family and Medical Leave Act, 29 U.S.C. § 2614(c)(1); the right to file a joint income tax return; spousal tax benefits such as exemption from certain estate tax obligations; and eligibility for Ewert for social security benefits as a surviving spouse." Id. at *4. The plaintiffs therefore had standing to seek the TRO. 

     The question then became whether the plaintiffs were likely to succeed on the merits.  The Supreme Court held in United States v. Windsor, 133 S. Ct. 2675 (2013), that a restriction on recognition of same-sex marriage violates due process and equal protection if it is motivated by antigay prejudice. "An examination of the Illinois Marriage Act's history and the 1996 amendment declaring same-sex marriages to be against Illinois public policy reveals a similar animus towards same-sex couples." Gray, 2013 WL 6355918, at *4. Like Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013), discussed here, Gray suggests that all state law provisions barring same-sex marriage might be invalid—a holding that as a practical matter would force recognition of same-sex marriages nationwide.  Whether this is a correct interpretation of Windsor remains to be seen.

       In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court held that federal law must defer to state law on the validity of same-sex marriages. After Windsor, when a valid marriage exists for purposes of state law, it exists for purposes of federal law. 

     Is federal law likewise required to recognize a civil union as a valid marriage? A split in authority seems to be developing. One view of the issue is taken by the leading IRS Revenue Ruling on same-sex marriage:  

     For Federal tax purposes, the term "marriage" does not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law that are not denominated as a marriage under that state's law, and the terms "spouse," "husband and wife," "husband," and "wife" do not include individuals who have entered into such a formal relationship. This conclusion applies regardless of whether individuals who have entered into such relationships are of the opposite sex or the same sex.

Rev. Rul. 2013-17, § 4, 2013-38 I.R.B. 201. Thus, for tax purposes, the IRS will not recognize any state civil union as a valid marriage. 

     But a recent Ninth Circuit decision takes a conflicting view. In In re Fonberg, No. 13-002, 2013 WL 6153265 (9th Cir. Nov. 25, 2013), a female law clerk in the District of Oregon filed a petition to review an employment dispute. The plaintiff was a party to a same-sex civil union that was valid under Oregon law. She had attempted to enroll herself and her partner in a family health insurance plan offered to married employees of federal courts. The Office of Personnel Management ("OPM") denied her claim, reasoning that an Oregon civil union is not a marriage. OPM relied on a formal opinion letter somewhat similar to Revenue Ruling 2013-17:

     The Supreme Court's decision addressed the constitutionality of a statute that defined "marriage" and "spouse" for purposes of federal law to include only opposite‑sex couples. Therefore, same‑sex couples who are in a civil union or other forms of domestic partnership other than marriage will remain ineligible for most Federal benefits programs.

OPM Ben. Admin. Ltr. No. 13-203 (July 17, 2013).

     After mediation failed, the plaintiff filed a formal employment complaint alleging discrimination. The district court held that the federal government was required to recognize the plaintiff's civil union as a marriage but held that there was no authority for granting reimbursement for insurance payments made before the date of the order. 

     A previous entry in this series of posts discussed Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013) (see article below entitled "Is DOMA § 2 Next?"). Obergefell granted a preliminary injunction requiring Ohio to recognize a Maryland same-sex marriage, holding that Ohio constitutional and statutory provisions barring such recognition were likely unconstitutional. Ohio would recognize out-of-state marriages between persons of the opposite sex, the court held, and there was no rational basis for failing to likewise recognize out-of-state marriages between persons of the same sex.

     But other courts have taken a different view of these provisions. A good example is the unpublished decision in Stankevich v. Milliron, No. 310710, 2013 WL 5663227 (Mich. Ct. App. Oct. 17, 2013). The plaintiff in Stankevich was a woman who married the child's mother in Canada.  The couple then moved to Michigan. The couple jointly raised a child, who was born to the mother.

     When the relationship broke down, the plaintiff sued for custody and visitation. The mother moved to dismiss, arguing that the plaintiff lacked standing. In custody cases in which a parent is a party, Michigan gives standing only to other biological parents. Mich. Comp. Laws Ann. § 722.25(1); Bowie v. Arder, 441 Mich. 23, 490 N.W.2d 568 (1992). A court-created doctrine of equitable adoption gives standing to spouses of parents, but it does not apply to partners who are not spouses. Van v. Zahorik, 460 Mich. 320, 597 N.W.2d 15 (1999).

     The plaintiff argued that she was the spouse of the mother because the Canadian marriage
should be recognized. The trial court disagreed, and the appellate court affirmed:

     Furthermore, plaintiff's suggestion that she is married for the purposes of the [Child Custody Act] is contrary to the law in Michigan. Earlier this year in United States v. Windsor, ___ U.S. ___; 133 S Ct 2675, 2689-2690; 186 L.Ed.2d 808 (2013), the United States Supreme Court reiterated, in the context of the Defense of Marriage Act (DOMA), that "[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States." The Court affirmed that "[t]he definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities." Id. at 2691 (quotation marks, citation, and brackets omitted).

Stankevich, 2013 WL 5663227, at *3. The court relied expressly on statutory and constitutional provisions barring recognition of same-sex marriages. "As we are bound by the Michigan Constitution and the plain statutory language, we agree with the trial court that plaintiff is not a
parent as defined under the [Child Custody Act] or the equitable parent doctrine, and therefore lacks standing to bring this action." Id. at *4.

September 26, 2013

Brett Turner, Senior Attorney, National Legal Research Group

     The controlling federal statute on same-sex marriage is the Defense of Marriage Act ("DOMA"). DOMA has two operative provisions.  Section 3, codified at 1 U.S.C. § 7, provides that no same-sex marriage can ever be treated as a valid marriage under federal law.  This section was held unconstitutional in United States v. Windsor, 133 S. Ct. 2675 (2013).

     DOMA § 2, codified at 28 U.S.C. § 1738C, provides that "[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex."  In other words, no state shall ever be required to recognize a same-sex marriage from another state.

     Case law before Windsor upheld the constitutionality of § 2.  E.g., Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005).  In light of Windsor, however, that position is being revisited.  The next big issue in federal constitutional law involving same-sex marriage may well be the constitutionality of § 2 of DOMA.

     The first post-Windsor case to address the issue is Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013).  The plaintiffs in that case were two men who ived together in a committed relationship.  One of the plaintiffs was terminally ill with amyotrophic lateral sclerosis, more commonly known as Lou Gehrig's disease.  Both plaintiffs lived in Ohio, which does not recognize same-sex marriage.

     On July 11, 2013, a specially equipped airplane flew the plaintiffs to Maryland, which allows same-sex marriage.  While the airplane sat on the tarmac, the plaintiffs were married.  They then immediately returned to Ohio.  Neither plaintiff was ever domiciled in Maryland.

     On the face of Ohio law, the Maryland marriage was not entitled to recognition in Ohio, which has both a statute and a constitutional provision barring recognition of same-sex marriage.  Ohio Rev. Code Ann. § 3101.01(C)(2)-(3); Ohio Const. art. XV, § 11.

     Upon their return to Ohio, the plaintiffs filed an action against the State of Ohio and various state officials, asking the court to order them to recognize the Maryland marriage.
The plaintiffs then sought a preliminary injunction.

     The court granted the injunction, finding a substantial likelihood that the plaintiffs would prevail at trial.  Ohio state law has traditionally held that the validity of a marriage depends upon the law of the jurisdiction in which it was created.  The rule has been applied to underage marriage, Hardin v. Davis, 16 Ohio Supp. 19, 1945 WL 5519 (C.P. 1945), and to marriage between relatives (e.g., first cousins), Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958).  The court also cited a passage in 45 Ohio Jur. 3d Family Law § 11, stating that the rule applies to common-law marriage.

     The question then became whether Ohio could apply a different rule only to same-sex marriage. For two reasons, the court held not. First, the core reasoning of Windsor is that a rule violates equal protection if it was adopted out of prejudice against a minority group.  Windsor held that DOMA § 3 was enacted out of prejudice against gay people, and that it was therefore
unconstitutional.  The court saw no valid reason for the Ohio statute and constitutional provision at issue, other than similar prejudice against gay people.

     Second, a rule violates equal protection if it does not have a rational basis.  "Even if the
classification of same‑sex couples legally married in other states is reviewed under the least demanding rational basis test, this Court on this record cannot find a rational basis for the Ohio provisions discriminating against lawful, out‑of-state same sex marriages that is not related to the impermissible expression of disapproval of same‑sex married couples."  Obergefell, 2013 WL 3814262, at *6.

     Because the plaintiffs were likely to succeed on the merits, the court granted a preliminary injunction.

     Obergefell did not expressly consider the constitutionality of DOMA § 2.  But that provision is merely a federal version of the provisions that Obergefell held are likely unconstitutional.  If equal protection requires that the courts apply to same-sex marriage the exact same choice-of-law rules applied to opposite-sex marriages, then DOMA § 2 is unconstitutional and out-of-state same-sex marriages must generally be recognized.

     There is reasonable support in the majority opinion in Windsor for the result reached in Obergefell. Windsor stressed heavily a series of comments made by legislators enacting DOMA, suggesting prejudice against gay people.  Those comments cannot be limited to only one
section of DOMA.  If the prejudice shown by those statements is the controlling reason for invalidating DOMA § 3, it is likewise a strong reason for invalidating the rest of DOMA, including § 2.

     But there is also reason to hold otherwise.  At a practical level, Obergefell comes extremely close to forcing nationwide recognition of same-sex marriage.  Any same-sex couple wishing to be married can travel to a state recognizing same-sex marriage, get married, return to their
home state, and have a marriage that their home state must recognize for all purposes as a matter of federal law.

     It is highly significant that the facts of Obergefell show absolutely no Maryland domicile. The airplane landed, the marriage was conducted, and the airplane took off.  If that is a permissible procedure, then federal law is essentially forcing state recognition of all same-sex marriages, because it is very easy to obtain an out-of-state same-sex marriage.

     In addition, there are arguably valid reasons for imposing requirements upon recognition of out-of-state same-sex marriages that do not apply to other types of marriages. States have different rules on underage marriages and marriages among relatives, but none of these rules are matters of public policy.  People are not marching in the streets, demanding that the state not recognize underage marriages or common-law marriages or marriages between close relatives. These are matters on which the states agree that reasonable people can differ.

     But same-sex marriage is a fundamental public policy issue.  The presence of statutory and
constitutional provisions in many states shows that recognition of same-sex marriage is viewed by many as a fundamental public policy issue.  Obergefell held that one of the most serious and divisive disputes in modern American family law can be resolved by court action, because the judge believes that one side of the dispute is adopting an irrational position.  That is certainly not an example of judicial restraint.

October 2, 2013

Brett Turner, Senior Attorney, National Legal Research Group

     The IRS has now issued guidance on how it will construe the Windsor opinion.  The guidance is found in Revenue Ruling 2013-17. 

     The ruling begins by recognizing that Windsor applies broadly to all issues of federal tax law. "In light of the Windsor decision . . . the Service also concludes that the terms 'husband and wife,' 'husband,' and 'wife' should be interpreted to include same-sex spouses" for purposes of federal income tax law." Rev. Rul. 2013-17 at 4. 

     The ruling then relies heavily upon Rev. Rul. 58-66, cited previously in this article, which held that the IRS will recognize common-law marriages which were valid in the state in which
they were formed. The IRS will apply the same rule to same-sex marriages:

     The Service has applied this rule with respect to common-law marriages for over 50 years, despite the refusal of some states to give full faith and credit to common-law marriages established in other states. Although states have different rules of marriage recognition, uniform nationwide rules are essential for efficient and fair tax administration. A rule under which a couple's marital status could change simply by moving from one state to another state would be prohibitively difficult and costly for the Service to administer, and for many taxpayers to apply.

Id. at 3.

     Consistent with the longstanding position expressed in Revenue Ruling 58-66, the Service has determined to interpret the Code as incorporating a general rule, for Federal tax purposes, that recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple's place of domicile. The Service may provide additional guidance on this subject and on the application of Windsor with respect to Federal tax administration.

Id. at 9.

     Under this rule, individuals of the same sex will be considered to be lawfully married under the Code as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex, even if they are domiciled in a state that does not recognize the validity of same-sex marriages.

Id. at 10 (emphasis added).

     Thus, even if the taxpayers are domiciled in a state which adamantly refuses to recognize same-sex marriages, they can spend a weekend in a state which does recognize such marriages, obtain a marriage license, and have a marriage which the IRS will recognize as valid
for federal tax purposes.