January 14, 2014

The strange tale of marriage equality in Utah

by Philip Yabut in gay marriage and divorce

Just before Christmas, marriage equality arrived in the most unlikely of states.

In 2004, Utah voters approved Amendment 3 to the state constitution defining marriage as between one man and one woman by a 66-34% margin. On December 20, U.S. District Judge Robert Shelby struck down that provision an unconstitutional violation of the 14th Amendment's Equal Protection Clause. This decision marks the first time a federal judge has ruled on marriage equality on Constitutional grounds as a "fundamental right" and that there was no "rational basis" in refusing to grant it to gay couples, a departure from the Supreme Court's decision in Windsor in 2013 that maintains that regulation of marriage is in the purview of the states and not the federal government.

Immediately thereafter, hundreds of gay couples lined up in courthouses around the state to get marriage licenses as the state filed an appeal with the U.S. Court of Appeals for the 10th Circuit. What followed was a series of appeals to three levels to attempt to stop county clerks from issuing licenses to gay couples:

December 22: The 10th Circuit rejected a motion for a stay for technical reasons.
December 23: Judge Shelby declined to grant a stay (delay) of his decision, which means same-sex marriages could continue while the appeal is pending. The 10th Circuit also denied a motion for a temporary stay.
December 24: The 10th Circuit rejected an emergency order to stay Judge Shelby's decision.
December 31: Utah requested the U.S. Supreme Court for a stay.

Finally, on January 6, 2014, the U.S. Supreme Court granted Utah's request for a stay, ending the issuance of marriage licenses to gay couples. However, some 1,000 couples who had already taken vows remain legally married. Those who did not must now wait for the 10th Circuit to rule sometime in the next few weeks.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

November 20, 2013

16 (plus DC) down, 34 to go

by Philip Yabut in gay marriage and divorce

Today, Illinois Gov. Pat Quinn signed marriage equality into law, making his state the 16th to legalize same-sex marriage. Religious groups have pledged to challenge the law in court, but barring any judicial setbacks, gay couple will be able to obtain marriage licenses starting on June 1, 2014.

Last week, Hawaii became the 15th state to adopt marriage equality when Gov. Neil Abercrombie signed it into law. And in October, gay marriage became legal in New Jersey when Gov. Chris Christie dropped an appeal challenging a court ruling it constitutional in light of June's Supreme Court's decision invalidating the Defense of Marriage Act.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

June 26, 2013

Quick Analysis of Today's DOMA and Proposition 8 Rulings

by Philip Yabut in gay marriage and divorce

Pro-marriage equality advocates gather at the U.S. Supreme Court. Photo by author. This morning, the Supreme Court struck down provisions of the 1996 Defense of Marriage Act (DOMA) as unconstitutional. In a 5-4 opinion, Associate Justice Anthony M. Kennedy, writing for the majority, states that "DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution." In the other marriage equality case, also a 5-4 decision (Chief Justice John G. Roberts writing for the majority), the Court ruled that the petitioners in the California Proposition 8 case did not have standing to appeal, which means that the trial court's decision invalidating Proposition 8 stands and California can resume recognition of same-sex marriages.

Q: Who does the DOMA decision affect directly?

A: Everyone in the country who is in a legal same-sex marriage.

The main purpose of DOMA was to prevent the federal government from recognizing same-sex marriages that several states have deemed legal. This delegitimatization prevented same-sex spouses from enjoying over 1,000 benefits under federal law that opposite-sex couples get automatically upon legal marriage. With DOMA's demise, legally married same-sex couples will soon have rights to Social Security survivorship, tax status, inheritance, and many other benefits listed in the U.S. Tax Code and other federal laws.

Q: Does the DOMA ruling mean that states where same-sex marriages are illegal must recognize gay unions?

A: No.

The Supreme Court did not give state same-sex marriage statutes "full faith and credit," which means that the 38 states that do not already recognize same-sex unions don't have to start doing so. The effect of the ruling is that the Court leaves the question of marriage to the individual states. This is in contrast to the 1967 Loving v. Virginia case, where the Court ruled that laws banning interracial marriages were unconstitutional nationwide.

Q: Who does the Proposition 8 decision affect directly?

A: Only residents of California.

The Court did not rule on the merits of the case, meaning that it did not discuss whether same-sex marriages should or should not be recognized on the state level. In plain English, the Court dismissed the case on a technicality.

Q: What is "standing?"

A: Standing means the ability to bring a suit before a court.

Proposition 8 (page 49 in this 2008 voter's guide)was a referendum passed in 2008 that forced California to stop performing gay marriages. The law was challenged and repealed at the trial level, but on appeal state officials declined to defend the statute. An interest group called ProtectMarriage.com, which led the initiative to get Proposition 8 on the ballot, filed the appeal in place of the State of California. The Court ruled that this group did not suffer "personal and tangible harm" and thus could not bring an appeal, and therefore returned the case to the trial court, whose ruling striking down Proposition 8 would immediately become effective.

Cases referenced:

U.S. v. Windsor, 12-307 (June 26, 2013)

Perry v. Hollingsworth, 12-144 (June 26, 2013)

Loving v. Virginia, 388 U.S. 1 (1967)

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

May 2, 2013

Marriage Equality Arrives in Rhode Island

by Philip Yabut in gay marriage and divorce

Today, Rhode Island Gov. Lincoln Chafee (I) signed two bills legalizing same-sex marriage on the steps of the state capitol in Providence. With that stroke of a pen, Rhode Island becomes the tenth state (plus DC) to accept marriage equality under the law. Same-sex couples will be able to marry beginning on August 1, while those who already are joined under the old civil union statute will be able to change their status to married.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

March 27, 2013

Defense of Marriage Act at the Supreme Court -- audio and transcript

by Philip Yabut in gay marriage and divorce

On March 27, 2013, the U.S. Supreme Court heard oral arguments on U.S. v. Windsor, a challenge to the Defense of Marriage Act of 1996, which defines marriage as only between a man and a woman in federal law. The Court has released full audio of the proceedings as well as a transcript. Both can be found at the Court's website here.

March 25, 2013

California Proposition 8 at the Supreme Court -- transcript and audio

by Philip Yabut in gay marriage and divorce

On March 26, 2013, the U.S. Supreme Court heard oral argument for Hollingsworth v. Perry, which is the challenge to California's Proposition 8, which overturned that state's same-sex marriage law. Listen to the audio here through The Washington Post, and read the trascript here through Politico.com. UPDATE: Both can now be downloaded directly from the Supreme Court's website.

March 12, 2013

Marriage Equality Update: Illinois and Rhode Island

by Philip Yabut in gay marriage and divorce

In the fight for marriage equality, two states have bills moving through their legislatures and are poised to to be the next jurisdictions to approve same-sex marriage this year, pending court challenges.

Illinois: The state Senate approved a marriage equality bill 34-21 on February 14, setting the stage for a vote in the Illinois House, which has not yet set a date for taking up the legislation. Lobbying on both sides is well underway, with sports legends lending their support and the GOP party chairman feeling pressure for backing the bill. Gov. Pat Quinn (D) has promised to sign the bill if it passes the legislature.

Rhode Island: A recent poll found 60% supporting same-sex marriage as a bill makes its way through the legislature. In January, the state House overwhelmingly passed the measure 51-19, sending it to the Senate, which will take it up this spring. The vote there is expected to be razor-thin, and fast and furious lobbying is ongoing. Gov. Lincoln Chafee (I) is a vocal supporter of marriage equality.

December 31, 2012

DOMA and Immigrant Status

by Philip Yabut in gay marriage and divorce

The 1996 Defense of Marriage Act (DOMA) prohibits the federal government from recognizing same-sex unions even if they are legal in any of the states. The most well-known effects of this legislation are that gay couples cannot file joint income tax returns, do not have automatic rights of hospital visitation or inheritance, cannot be automatic beneficiaries for pension or insurance plans, and so much more. In fact, there are at least 1,138 different automatic rights and privileges afforded to legally married heterosexual couples that the DOMA denies to same-sex marriages or civil unions.

The Washington Post recently published a story of one of the more little-known effects of DOMA: a lesbian couple legally married in Washington, DC, that may be separated by the law because one of the spouses has an expiring student visa. Normally, a citizen spouse in a bi-national marriage can automatically sponsor the immigrant spouse for a green card. Since the federal government does not recognize same-sex unions, the effect is that the immigrant spouse would have to return to his/her home country unless they can find another way to stay in the United States. The Family Equality Council estimates that around 36,000 couples (46% of which have children) are affected by this rule.

In September, Secretary of Homeland Security Janet Napolitano issued a directive recognizing binational same-sex couples as families and placing them on "low priority" status for deportation proceedings. This action was lauded by LGBT rights advocates as a step in the right direction. A more permanent solution, of course, would be a complete repeal of DOMA, which is currently on the Supreme Court docket this term.

Read more: Immigration Laws & Same-Sex Couples from Marriage Equality USA (MarriageEquality.org).

October 21, 2012

DOMA Struck Down by Federal Appeals Court

by Philip Yabut in gay marriage and divorce

The Defense of Marriage Act (DOMA), the statute that prohibits the federal government from recognizing same-sex marriages, suffered another blow when the Second Circuit Court of Appeals declared Section 3 of the act unconstitutional in a 2-1 decision. In striking down DOMA, Chief Judge Dennis Jacobs, an appointee of President George H.W. Bush, applied "intermediate scrutiny" in finding that homosexuals are a class historically subject to discrimination and with little political power to defend themselves against the majority, and that DOMA's "classification of same-sex spouses is not substantially related to an important government interest." Further, the court did not consider DOMA's interest in protecting "traditional (i.e., opposite-sex) marriage" as a civil institution:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

With two federal appeals courts now on record striking down DOMA, it is probably only a matter of time when the Supreme Court gets the final say.

The case is Windsor v. U.S., (2d Cir. Oct. 18, 2012).

October 18, 2012

News Update: Marriage Equality Ahead in Three States

by Philip Yabut in gay marriage and divorce

Besides high-profile presidential and congressional elections, three states -- Maryland, Maine and Washington state -- are voting on whether to legalize same-sex marriage. In all three states, supporters of marriage equality are leading in varying degrees. A fourth state, Minnesota, has a constitutional gay marriage ban on its ballot.

In Maryland, the governor signed a law legalizing same-sex marriage, but the measure is up for a referendum next month. A recent poll showed that the those in favor upholding the law are ahead 52% to 43% of likely voters.

Like Maryland, Washington's governor signed a law legalizing gay marriage, but the measure is appearing on the ballot as Referendum 74. A recent poll showed that marriage equality is leading 56.3% to 35.6%, with 6.1% undecided.

In Maine, the measure is up for a vote as a "citizen's initiative," and a recent poll showed support for marriage equality is leading 55% to 39%, with 4.5% undecided.

Unlike those three states, Minnesota has a ballot initiative for a state constitutional amendment banning same-sex marriage. This race is extremely tight in a state that is widely depicted as liberal, with 47% in favor of the ban 46% opposed.

Up to this point, every single state ballot measure banning same-sex marriage has passed. This year promises to be different, and possibly the start of a trend going the other way.

September 30, 2012

SCOTUS brief: DOMA

by Philip Yabut in gay marriage and divorce

The Supreme Court is beginning its 2012-2013 term tomorrow (October 1). While in this election year a lot of press and attention has been focused on challenges to affirmative action and the Voting Rights Act of 1965, there is much speculation that a challenge to the Defense of Marriage Act (DOMA), the Clinton-era law that prohibits the federal government from recognizing same-sex marriages, will make it to the high court. Justice Ruth Bader Ginsburg has further fueled speculation by predicting that it will be before the court within the next year.

What is at stake? As of this writing, six states and the District of Columbia recognize same-sex marriage, while two other states have referendums on laws pending this November. Currently, DOMA prevents legally married same-sex couples from enjoying federal benefits enjoyed by opposite-sex married persons, including (but not limited to) joint federal tax filing and Social Security survivor benefits. Several lower federal courts have ruled on various provisions of DOMA, putting pressure on the Supreme Court to have its say sooner rather than later. So far, the Court has not announced when (or if) it will hear oral arguments on DOMA, but on the eve of the first day of the new session, it is premature to speculate one way or the other. We'll see in the coming days and weeks.

September 4, 2012

In the news: DNC moves forward with same-sex marriage

by Philip Yabut in current events, gay marriage and divorce

This morning (9/4/2012), the fight for marriage equality took another step forward when the Democratic National Committee became the first major political party to adopt same-sex marriage as part of its official platform:

We support the right of all families to have equal respect, responsibilities, and protections under the law. We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference. We oppose discriminatory federal and state constitutional amendments and other attempts to deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples. We support the full repeal of the so-called Defense of Marriage Act and the passage of the Respect for Marriage Act.

See the entire DNC platform here (opens in PDF reader).

August 8, 2012

Mmm...Chicken...

by Philip Yabut in current events, gay marriage and divorce

The recent flap over Chick-Fil-A president Dan Cathy's very public stance about same-sex marriage brought out a lot of back-and-forth press releases, accusations, and insults by and between people and groups on both sides of the marriage equality issue. Here's what I got out of it:

1. There are no First Amendment issues at stake. The First Amendment only applies to the government suppressing the right to free expression. No one is attacking Dan Cathy's right to express his views, support any group, or practice his religion, and those who oppose him have every right to say that they do.

2. Those who complain about boycotts of Chick-Fil-A should remember that it's a very old tactic that has been used time and again over the years. Remember the Dixie Chicks?

3. Taken as a whole, "Biblical" marriage includes concubines, mistresses, and multiple wives (but not husbands). The Hebrew Scriptures (Old Testament) is full of examples of each. Also, there are various prohibitions on (among other things) eating pork (Leviticus 11:7-8) and shellfish (Leviticus 11:10), cutting your hair incorrectly (Leviticus 19:27), tattoos (Leviticus 19:28), and divorce for any reason (Mark 10:8-9). Hey, I should be out of a job!

The Chick-Fil-A story dominated the news cycle for a few days, but like every big splash it has faded and will soon be relegated to, at most, an historical footnote, though no doubt various groups will raise a lot of money from it. What will not fade is the advance of marriage equality and the resistance that it faces in the legislatures and courts.

July 17, 2012

From one newlywed to another...

by Philip Yabut in gay marriage and divorce

Congratulations to Rep. Barney Frank and Jim Ready! They got married on July 7, less than a week after my wife and I tied the knot. Rep. Frank became the first Member of Congress to be wed in a legal same-sex ceremony, yet another step forward for the cause of marriage equality.

Mazel tov!

May 28, 2012

Port v. Cowan -- an update

by Philip Yabut in current events, divorce, gay marriage and divorce

In a previous post I briefly wrote about the saga of Port v. Cowan, a same-sex divorce case that was headed to Maryland's highest court. The parties wed in a civil ceremony in California during the brief time same-sex unions were legal in that state, but their marriage subsequently went sour and they sought a divorce in Prince George's County, Maryland. The circuit court dismissed their claim, ruling that the state did not recognize their marriage as legal. On May 18, 2012, the Maryland Court of Appeals issued its decision, which overruled the circuit court's ruling and instructed it to grant the parties' divorce. The rationale is that Maryland courts only fail to recognize otherwise valid out-of-state marriages if they're contrary to public policy, and they did not consider gay marriage as such. The decision was hailed as a victory by gay rights advocates, and comes as Maryland faces an Election Day referendum on a same-sex marriage law passed by the state legislature and signed by Gov. Martin O'Malley.

May 9, 2012

Evolution

by Philip Yabut in current events, gay marriage and divorce

At around 3:00 pm on May 9, 2012, Barack Obama became the first U.S. president to openly endorse same-sex marriage. The president made his views known in an interview with Robin Roberts of ABC News after days of pressure from LGBT groups following similar public pronouncements from Vice President Joe Biden and Secretary of Education Arne Duncan over the weekend. A day earlier, North Carolina voters endorsed a state constitutional amendment banning gay unions, making it a busy time for the same-sex marriage debate.

Arguably, the president's declaration of support for gay marriage after famously saying his views were "evolving" back in 2010 will have the biggest impact in the debate. With North Carolina's vote, 31 states now have laws banning same-sex marriage. Only six states and DC have legalized gay marriage, while five others have civil union statutes in force. Maine, New Jersey, Maryland and Minnesota will vote on legalizing same-sex marriage later this year. Obama's announcement has been hailed by LGBT groups and denounced by heterosexual marriage proponents, which should galvanize both sides as the battle rages on.

It's worth noting that a weekend Gallup poll found 50 percent support of gay marriage nationwide, a dramatic shift from just a few years ago when it was not politically expedient to come out in favor of it. The trend line is clear -- gay marriage is making steady progress in public support. As with other civil rights struggles in our history, the law generally lags behind public opinion. But eventually it catches up, and now it may be possible foresee a future where gay Americans can enjoy the same right to marry the people they love just like everyone else.

April 27, 2012

Same-sex divorce in DC -- it's easier than you think

by Philip Yabut in gay marriage and divorce

At the time of this writing, only eight states and DC allow same-sex marriage. The corollary is that if a state does not recognize gay marriage, it (usually -- more on that in another post) will not help a same-sex couple get a divorce, and with so few gay-friendly jurisdictions it could be difficult to end a union that ends badly.

Fortunately, if you got married in DC, you're in luck. In March, the DC Council unanimously approved a bill that clears the way for routine gay divorce. The law goes a bit further by allowing a divorce even if one or neither party lives in DC, just as long as the marriage happened in the District and the parties live in a jurisdiction that will not let them get a legal divorce. And, finally, for legal gay marriages not performed in DC, the law allows for the a six-month residency requirement, tying it with Vermont for the shortest in the country.

The result of this law is that in DC gay couples seeking a divorce may now go through the normal process as their opposite-sex neighbors. For the full text of the law, click here.

April 18, 2012

A Custody Fight Like No Other

by Philip Yabut in child support, gay marriage and divorce

As I mentioned in a previous post, at this point in our history same-sex divorce can be a very difficult proposition, especially in a jurisdiction that does not recognize gay marriage. Complicating matters are potential ancillary issues that are routine (or at least as "routine" as they could be, as there are laws governing them already) in opposite-sex marriages.

Take the case of Lisa Miller and Janet Jenkins, a lesbian couple who obtained a civil union in Vermont in 2000. The couple had a child, born to Miller, in 2002, but their relationship ended in 2003. After the dissolution of the civil union, a Vermont court awarded physical custody of the child to Jenkins, with visitation rights to Miller. Miller then fled to Virginia to avoid complying with the court order. She filed suit in Frederick County (Va.) Circuit Court, which awarded her sole custody as the birth mother based on Virginia's 2004 Marriage Affirmation Act. Meanwhile, a Vermont court found Miller in contempt and awarded Jenkins full parental rights, which the Vermont Supreme Court upheld. Jenkins, in turn, appealed to the Virginia Court of Appeals, which overruled that the circuit court, saying that the trial judge should not have ruled on custody at all, citing the federal Parental Kidnapping Prevention Act declaring that once custody is established in one state, a court in another state must give "full faith and credit" to the original court's ruling and thus cannot assume jurisdiction.

The important result from this sad case is that Virginia must honor another state's custody order, even if it is contrary to Virginia statutes, because federal law prevents persons unhappy with child custody orders from seeking favorable rulings in other states. This is a measure of good news, as Virginia cannot apply its own laws restricting same-sex marriage to existing child custody orders in other states. In the big picture, it shows that at least in the subject of child custody there is uniformity in enforcement of laws.

For more information I used for this blog on Miller v. Jenkins, click on the following links:

The American Civil Liberties Union's (ACLU) summary of Miller v. Jenkins ACLU Virginia's summary The Virginia Court of Appeals' opinion for Miller-Jenkins v. Miller-Jenkins Lambda Legal's summary of Miller v. Jenkins "The Strange, Sad Case of Miller-Jenkins v. Miller-Jenkins" (Salon.com, December 23, 2009)

April 10, 2012

When Breaking Up Is REALLY Hard to Do -- An Article on Same-Sex Divorce

by Philip Yabut in current events, divorce, gay marriage and divorce

Divorce is a process that is almost, if not just, as old as marriage itself. In the U.S., it was once fairly difficult to end a marriage, but once states began formalizing uncontested divorce procedures it became a lot easier and less expensive. Of course, that is true only for marriages between a man and a woman.

The Washington Post's Ellen McCarthy writes:

"[Port v. Cowan] represents just one of the many blind spots in the legal infrastructure of same-sex marriage in America. Couples often have different rights when they cross jurisdictional lines and may not have the same status in the eyes of the federal government as they do in their home states. The laws are constantly evolving and election-year politics promise to heighten the already divisive passion surrounding the issue."

Port v. Cowan (link leads to a video of oral argument in the Maryland Court of Appeals), nicely summarized by The Baltimore Sun, is a divorce that would be a matter of a few minutes in court followed by a one-line declaration by a judge and a short decree declaring the parties are separated by law. But for gay couples that go sour, the country's current patchwork of same-sex marriage and divorce laws makes something that most people take for granted a more difficult proposition.

If you live in a state that has already legalized same-sex marriage and/or recognizes such unions from other states, divorce is as simple as following the rules. However, if you don't live in such a state and you need to separate from your spouse, the best way to protect your rights is to sign a binding property settlement agreement with your spouse, as well as rewriting your will and creating new beneficiary arrangements for insurance purposes, and that's just for starters. Simply put, you would need to manually sever as many ties as you can with your spouse with separate instruments to gain the same effect that a divorce does automatically.

It is difficult enough, especially during an emotionally stressful time like a separation, to have to deal with jumping through legal hoops. But it is better to safeguard your rights. And maybe someday the law will catch up so all of it will become unnecessary.