the latest, greatest, biggest trends in law affecting lgbt persons david j. brown
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The Latest, Greatest, Biggest Trends in Law
Affecting LGBT Persons David J. Brown
May 28-29, 2015 University of Kansas School of Law
2015 Recent Developments CLE
The Latest, Greatest, BiggestTrends in Law Affecting LGBT Persons
OUTLINE
1. Obergefell v. Hodges, United States Supreme Court, Docket No. 14-556a. Windsor v. U.S.b. The 6th Circuit Decision, DeBoer, et. al., v. Snyder, c. The arguments on both sidesd. Signals so far
2. Nelson v. Dept. of Revenue, Shawnee County District Court case number 2013-C-1,465a. Department of Revenue Notice 13-18b. Issues raised
3. Marie, et. al., v. Moser, et.al. United States District Court for the District ofKansas, 14-CV-2518a. The original rulingb. The amended complaint to address recognition issues
4. State of Kansas, ex. Rel. Derek Schmidt v. Moriarty, Kansas Supreme Court,case number 112,590a. County v. Countyb. The Kansas Supreme Court Decision
5. State of marriage in Kansasa. Where can same-sex couples marry?b. Should couples marry?c. What does “marriage” mean for those who do?
6. Divorce – some good things do come to an enda. Do courts have jurisdiction for same-sex couple divorce? Annulment? b. What is happening statewide?
7. Parentinga. Life after Frazier v. Goudschaal, 296 Kan. 730, 295 P.ed 542 (2013)b. Adoption
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RESOURCE MATERIALS (attached)
1. Opinion, DeBoer v. Snyder, 772 F.3d 388 (Court of Appeals, 6th Circuit, 2014).
2. Brief for the United States as Amicus Curiae Supporting Petitioners, Obergefell,et. al., v. Hedges, United States Supreme Court, No. 14-556.
3. Kansas Department of Revenue, 2014 Allocation of Income Worksheet (withNotice 13-18).
4. Order, State of Kansas, ex. rel. Derek Schmidt, v. Moriarity, Kansas SupremeCourt, case number 112, 590, November 18, 2014.
5. Memorandum in Support of Plaintiff’s Motion for Preliminary Injunction onMarriage Recognition Claims, Marie, et. al., v. Moser, et. al., United StatesDistrict Court for the District of Kansas, 14-CV-2518.
6. Opinion, Frazier v. Goudschaal, 296 Kan. 730, 295 P.ed 542 (2013).
DISCUSSION
For attorneys working in the area of LGBT family law, legal proceedings in the
past year have provided few answers and raised numerous questions. Some hope for
answers may be forthcoming when the U.S. Supreme Court issues a decision in
Obergefell v. Hodges, but in Kansas it is likely that uncertainty will continue to be the
rule for some time.
First, some background is necessary.
The seminal case for current struggles on the state level is Windsor v. U.S., 570
U.S. ___, (2013). In Windsor, a tax case, the Supreme Court ruled that provisions of
the Defense of Marriage Act (DOMA) requiring the federal government to define
marriage as being between a man and a woman were unconstitutional. The Court did
not address the section of DOMA that allowed states to refuse to recognize same-sex
marriage performed in other jurisdictions.
The Windsor decision was unique in several ways. First, the court did not rely
upon the traditional “strict-scrutiny, intermediate-scrutiny, rational-basis” analysis used
in cases alleging discrimination and violation of due process rights. Rather, the Court
first stressed the historic rights of states to define marriage, but then almost mid-
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stream switched to an animus-based argument to say the federal government had no
legitimate reason to discriminate against same-sex couples who had been legally
married. The court said the only purpose of the federal act was to “disparage and
injure” couples whose “personhood and dignity” and been protected in jurisdictions
where same-sex marriage was legal.
The Windsor decision dissent by Justice Antonin Scalia was, in the context of
state battles for marriage equality, a critical portion of the decision. In blasting the
majority, Justice Scalia presciently stated that advocates of same sex marriage would
use the majority opinion word-for-word, simply substituting the words “state
government” for “federal government” to argue for the defeat of state statutes and
constitutional amendments banning same-sex marriage. In the months that followed,
as lawsuits challenging state bans were filed in every single state that had a statute
or constitutional amendment prohibiting same-sex marriage, lawyers almost universally
used the outline and language Justice Scalia suggested.
In court after court, Justice Scalia’s predictions proved true. Same-sex marriage
bans were overturned on essentially the animus grounds relied upon by the Windsor
majority. State laws were held to be invalid because their only purpose was to injure
and discriminate against same-sex couples. The run of successes for same-sex-
marriage advocates came in DeBoer, et. al., v. Snyder, 772 F.3d 388 (2014) when the
6th Circuit U.S. Court of Appeals upheld state bans in Michigan, Ohio, Kentucky and
Tennessee in a 2 to 1 decision. The decision from this case is attached. It is this case
that was appealed, re-titled, and is now known as Obergefell v. Hodges. That case
was argued before the Supreme Court on April 28, 2015. A ruling is expected in late
June.
The DeBoer opinion provides perfect insight into the arguments relied upon by
proponents of state bans of same-sex marriage. In part, the court held that it was not
the place of the lower courts to anticipate societal changes without guidance from the
Supreme Court. It relied on an earlier Supreme Court decision, Baker v. Nelson, 409
U.S. 810 (1972) in which a same-sex couple challenged Minnesota’s refusal to allow
them to marry. The Supreme Court dismissed that challenge on the basis that it did
not present a “substantial federal question.” The DeBoer decision essentially said the
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elements of change should be left to the public and that the courts should “let the
people resolve new social issues like this one.”
A record number of amicus briefs were filed in the Supreme Court in the
Obergefell case. Attached as part of the materials for this presentation is the brief
submitted by the Solicitor General on behalf of the United States. This brief is striking
for its reliance upon a strict-scrutiny analysis of reviewing the constitutional claims
raised by the same-sex couple plaintiffs. On the surface, this argument hints at a
discomfort with the animus approach to arguing civil rights questions. But, in fact, the
animus argument was addressed in various ways in dozens of the 141 amicus briefs
filed in Obergefell.
Supreme Court observers have attempted to look for various hints at what the
ultimate Obergefell decision will be. After the argument in April, various commentators
argued the signs were clear:
(1) Chief Justice Roberts will vote with the majority to overturn state bans;
(2) Chief Justice Roberts will certainly remain committed to allowing the
democratic process to play out in the states; and,
(3) Chief Justice Roberts is on the fence, we don’t know what he will do.
Prior to the argument, LGBTQ advocates were confident that because so many same-
sex couples had been allowed to marry, the Supreme Court would not permit the
chaos that would result in declaring those same marriages invalid. To support their
claim, they pointed to the number of times the Supreme Court had refused to grant
cert to appeals from court decisions over-turning same-sex marriage bans.
Nevertheless, governors in various states, Kansas, South Carolina and Alabama among
them, had gambled in various ways that the Court would decide in favor of states’
rights. They pointed to the DeBoer decision.
In Kansas, the first challenge to the state ban on same-sex marriage came in
Nelson v. Dept. of Revenue. This case, filed in December 2013, directly challenged the
state’s implementation of “regulations” requiring legally married same-sex couples to
file income taxes in Kansas as single person. The state implemented the rules in this
regard by issuing Department of Revenue Notice 13-18 and preparing a separate tax
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form for completion by same-sex couples. Both of these documents are in the
materials provided.
Nelson challenges the state’s action on the grounds that:
a. state law requires use of federal definitions for filing state income taxes;
b. Notice 13-18 is a regulation adopted in violation of statutes governing
the adoption of such regulations; and,
c. The state is discriminating against same-sex couples in violation of their
equal protection and due process rights.
The state argued the Notice is not a regulation and plaintiffs failed to exhaust their
administrative remedies. This case, filed in Shawnee County District Court, is still
pending as the assigned judge has decided to wait until the federal courts rule on the
equal protection and due process issues in same-sex marriage cases.
October 6, 2014, was a pivotal day in Kansas for same-sex marriage cases.
That was the day the U.S. Supreme Court denied cert in five separate same-sex
marriage cases on appeal. That action terminated the stays issued in all cases. Two
cases from the 10th Circuit were involved. The first was from Utah, Kitchen v. Herbert,
755 F.3d 1193 (2014). The second was from Oklahoma, Bishop v. Smith, 760 F.3d
1070 (2014). Lifting of the stays, and leaving the 10th Circuit decisions in place,
created uncertainty in Kansas.
Applications for marriage by same-sex couples were requested in several
counties. District Court clerks had no idea how to handle the requests. Kansas has
both a Constitutional amendment defining marriage as between a man and a woman;
and statutes saying the same thing. The Office of Judicial Administration issued a
guidance letter to clerks advising they should issue marriage license applications but
should let their respective chief judges rule on whether actual marriage licenses should
issue.
As a result, marriage licenses were issued in Johnson County, but denied in
Douglas and Sedgwick Counties. Lawsuits quickly followed.
State Attorney General Derek Schmidt filed a mandamus action in the Kansas
Supreme Court to stop Judge Kevin Moriarty in Johnson County from issuing licenses.
State of Kansas ex. rel. Derek Schmidt, v. Moriarity, case no. 112,590. Attached and
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included in the materials are the Kansas Supreme Court’s two rulings in this case: the
first imposes a stay on Judge Moriarity’s actions; the second, lifting that stay pending
further action in federal courts on the questions raised. Meanwhile the ACLU filed suit
in U.S. District Court in Kansas City for orders requiring judges in Douglas and
Sedgwick Counties to issue licenses. Marie v. Moser, case no. 14-cv-2518. Judge
Crabtree granted the ACLU’s request for relief and ordered that marriage licenses be
issued in both counties.
In most cases involving same-sex marriage, there have been two separate legal
issues. The first is whether the states should issue marriage licenses. The second is
whether the state should recognize marriages performed outside the jurisdiction. The
orders issued in relation to the Kansas cases have so far only addressed the question
of issuance of marriage licenses. The question of recognition, raised in both Nelson and
in Marie, has not been ruled on. Attached in the materials is a memorandum in support
of the ACLU’s request for a preliminary injunction requiring the state to recognize
legally performed same-sex marriages from other jurisdictions. It is interesting to note
that the situation in Kansas has been complicated by the fact that the state now
refuses to recognize same-sex marriages that have been performed in Kansas. The
ACLU memorandum addresses this issue.
As of May 15, 2015, marriage licenses are being issued in 61 of the 105
counties in Kansas. There is no accurate method of determining how many same-sex
couples have been married in the state.
The question of whether same-sex couples in Kansas should marry is difficult
to address and advising clients is risky. These are personal decisions and lawyers who
are consulted to give advice should be wary. The primary concern is whether such
marriages will be valid after the U.S. Supreme Court rules in June. If couples make
financial commitments, do estate planning, or make any of the other commitments that
often accompany marriage, a decision that such marriages are invalid will wreck havoc
in clients’ lives. At the same time, all the traditional questions about whether couples
should marry exist for same-sex couples. There are positives and negatives for all.
Counsel should be aware that until matters are resolved, there is a great deal of
uncertainty about the status of same-sex marriages. As discussed, currently Kansas
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doesn’t recognize their validity and that can have serious ramifications. That means,
for example, in many instances that a married person in a same-sex couple cannot
obtain health insurance through employers for his or her same-sex spouse. On the
federal level, the situation is complex. Some agencies, notably the IRS, treat married
same-sex couples as married for tax-filing purposes no matter where they live. Some
agencies, notably Social Security, only treat married same-sex couples as married if
they reside in a state that recognizes same-sex marriage.
The flip side of marriage, of course, is divorce. In advising couples about
marriage, counsel should advise of the legal consequences of divorce. The advantages
of premarital agreements should be discussed. There is no way to know, however,
what the effect of a premarital agreement may be for a couple who marries now (or
has been married) only to have their same-sex marriage declared invalid by some later
U.S. Supreme Court ruling.
Currently, even the availability of divorce is a problem in Kansas. Most county
courts are denying divorces based on jurisdictional grounds. The argument is: for
jurisdiction to grant a divorce, the court must find a valid marriage exists; same-sex
marriages are not valid in Kansas; therefore, the court lacks jurisdiction to act. In other
counties, the courts are holding that annulments can be granted for married same-sex
couples. That argument is this: the court has jurisdiction to determine whether a
marriage is void so as to permit an annulment; same-sex marriages are void; so,
annulment is appropriate. A few counties do grant divorces. The argument in those
counties: the same-sex marriage is valid where it was performed, therefore, the court
has jurisdiction to grant a divorce.
If the question of marriage is uncertain for same-sex couples, recent
developments make parenting rights equally, if not more, uncertain. For example, if a
married same-sex couple wants to divorce but courts dismiss the divorce petition on
jurisdictional grounds, how are parenting issues addressed? Or, to be more basic, how
do same-sex couples get children in the first place? How do we advise our clients
about their parental rights?
Frazier v. Goudschaal, 296 Kan. 730 (2013) was a ground-breaking case
nationally in the realm of same-sex parental rights. The decision is included in the
The Law Office ofDavid J. Brown, LC1040 New HampshireLawrence, Kansas 66044Telephone 785-842-0777djbrown@davidbrownlaw.com Page 7 of 8
materials and facts can be gleaned from the decision. Part of the Court’s decision is
that a same-sex couple can establish parental rights and responsibilities by means of
an express agreement. The court held that maternity can be presumed under the
Kansas Parentage Act; that a child has a constitutional right to two parents; and, a
child can have two parents. The long-term effects of this decision are uncertain. But,
it raises many questions. For example, the agreement in that case was between two
unmarried women to have children together through artificial insemination and raise
those children together. Would a similar agreement entered into after birth be as
effective as the agreement prior to conception? What effect does the decision have on
the long-standing legal precedents holding that similar parenting agreements assigning
rights and responsibilities are invalid? Or, if couples can establish their parental rights
and responsibilities by agreement, what does that mean for Kansas adoption statutes?
The general question about how same-sex couples have children is relatively
straightforward. Children in same-sex couples come from prior relationships, artificial
insemination, surrogacy or adoption. Parenting rights when children were the product
of prior relationships are frequently governed by court orders issued in parentage or
divorce cases. Kansas statutes regarding artificial insemination and surrogacy have not
been modified in decades. There have also been no definitive decisions in Kansas on
these topics in the past year.
There has been a significant development in the past year regarding same-sex
couple adoptions. In most Kansas counties, courts will not approve same-sex
adoptions. Same-sex couple adoptions have long been possible in Wyandotte County.
This year, however, the court in Douglas County has begun granting adoptions for
same-sex couples as long as the couple is married. All that is required is that the
marriage be valid in the jurisdiction where the marriage was performed.
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