the latest, greatest, biggest trends in law affecting lgbt persons david j. brown

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

The Law Office ofDavid J. Brown, LC1040 New HampshireLawrence, Kansas 66044Telephone [email protected] Page 1 of 8

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-


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


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


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


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


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


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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