Filed under: DOMA trials
By Scottie Thomaston
Yesterday, a federal district court issued its final decision in Cozen O’Connor v. Tobits, a long-awaited decision in a challenge to Section 3 of the federal Defense of Marriage Act (DOMA). The judge ruled that after United States v. Windsor, the plaintiffs challenging the law should win. The case involved a married same-sex couple who sought retirement benefits from one spouse’s private employer – Cozen O’Connor, a law firm. The Employee Retirement Income Security Act (ERISA) is a federal law that provides a base line for implementing these plans, and it had always used the opposite-sex only meaning of “surviving spouse” provided by Section 3 of DOMA’s restriction of “spouse” to opposite-sex couples. Since Windsor held Section 3′s definition unconstitutional, the judge wrote, ERISA plans can’t block same-sex couples from receiving benefits any longer.
The decision marks a further-reaching outcome than most other challenges to Section 3 of DOMA so far, as attorneys from the National Center for Lesbian Rights told Buzzfeed:
Shannon Minter, the National Center for Lesbian Rights attorney representing Tobits, said the ruling was as broad as Jones had begun describing in his decision—that it applied to all legally married same-sex couples.
“Today’s decision is not only a victory for Jennifer and Ellyn, it is a victory for every married same-sex couple in the country. No longer can employers hide behind DOMA to deny equal benefits to some employees solely because their spouse is a person of the same sex,” Minter said in a statement.
Chris Stoll, another NCLR attorney on the case, compared the decision to the government’s implementation of immigration law and federal employee health insurance benefits, saying, “We see this decision as showing that ERISA is going to be in that category of benefits that are included as long as the marriage was valid in the place of celebration, regardless of where the couple is.”
The case, the judge wrote, comes down to the question of who is a spouse for purposes of the law firm’s ERISA-qualified plan. Since the plan is modeled on ERISA’s baseline, and since there is no definition of “spouse” embedded within the plan’s terms, “[b]ased on the language of the Plan — which Cozen drafted pursuant to ERISA’s mandates — the Court must look to ERISA and then the Code for those definitions.” And DOMA Section 3′s federal definition meant that ERISA considered someone a spouse if they were in an opposite-sex marriage. Windsor‘s decision invalidating that definition means that “the term “Spouse” is no longer unconstitutionally restricted to members of the opposite sex, but now rightfully includes those same-sex spouses in “otherwise valid marriages.””
What’s less clear is how the court decided the couple in this case is married for purposes of ERISA. There are different ways in which someone is considered to be a “spouse”, depending on which federal law is at issue. Sometimes the “place of celebration” is used, meaning that if a marriage was considered legal in the place where it was performed, it’s a legal marriage for purposes of some federal laws. Other times, the “place of domicile” is the key factor: if the marriage is considered legal where the couple lives. The opinion itself uses seemingly different language, writing that “[t]here can be no doubt that Illinois, the couple’s place of domicile, would consider Ms. Tobits Ms. Farley’s “surviving Spouse” — indeed it already has made that specific finding under state law,” but also that “where a state recognizes” the marriage, it is legal.
But the opinion also says that Illinois recognized the couple’s Canadian marriage as a civil union because of a state law laying out how same-sex unions are recognized, though, apparently, under another provision, a spouse is equal to someone in a civil union under Illinois law. And it’s not clear, based on the opinion at least, whether ERISA uses the place of celebration or place of domicile method for determining recognition of a marriage for purposes of issuing retirement benefits.
The bottom line, though, is that the judge held that a same-sex spouse is a spouse for purposes of federal law after the demise of Section 3 of DOMA in Windsor, and ERISA plans have to comply with that constitutional definition.
Thanks to Kathleen Perrin for this filing
By Scottie Thomaston
Bishop v. United States (formerly Bishop v. Oklahoma): This case challenges Sections 2 and 3 of the federal Defense of Marriage Act (DOMA) as well as Oklahoma’s ban on marriage equality. The plaintiffs had previously filed a supplemental brief arguing that United States v. Windsor‘s outcome and reasoning means this case should be decided in their favor. Now they have formally asked the court to rule in their favor on their claims challenging the constitutionality of Section 3 of DOMA. Simply put, the statute is invalid on its face after the Supreme Court’s ruling, so the plaintiffs here are asking for final judgment on those claims the Supreme Court decided in Edith Windsor’s challenge. The Justice Department did not oppose the filing, but they did ask fir the chance to respond within 30 days.
Cooper-Harris v. USA: This is a military-related challenge to Section 3 of DOMA and other military benefits statutes. The Bipartisan Legal Advisory Group (BLAG), who had stepped in to defend these statutes on behalf of House Republicans after the Justice Department stopped its defense, had asked to withdraw from this and almost all other DOMA cases. Their request was granted by the court, and their previous motions were also withdrawn.
Blesch v. Holder: This is Immigration Equality’s challenge to Section 3 of DOMA. BLAG requested withdrawal from the case, and the judge granted the request:
“Minute Entry: Premotion conference held by telephone before Chief Judge Amon on 7/26/13. … Intervenor-Defendant’s [BLAG] motion to withdraw as party defendant is GRANTED. Remaining parties to file a letter with the Court by August 21, 2013 apprising Court of status of the case.”
Thanks to Kathleen Perrin for these filings
By Scottie Thomaston
Now that the Supreme Court has issued its decision in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act, some members of Congress are seeking to make changes to the US Code that would bring it in line with the Court’s decision, and federal agencies are developing rules to make changes required by the invalidation of Section 3. At the Federal Election Commission, the agency had previously held against same-sex married couples who sought to combine their donations under federal laws for spouses who donate to campaigns. The FEC had held that they couldn’t recognize the couple as spouses under Section 3 of DOMA.
This week, the FEC posted two draft advisory opinions on the subject, that would require recognition of same-sex marriages:
n two draft advisory opinions posted on the FEC’s website on the agenda for Thursday’s meeting, the agency tasked with regulating the financing of federal elections states that following the decision in the Windsor case, “the term ‘spouse’ includes same-sex couples married under state law.”
The two opinions come in response to separate requests by the Democratic Senatorial Campaign Committee as well as a same-sex Massachusetts couple who are members of Log Cabin Republicans and wanted to donate to the special election campaign for pro-gay Republican Senate candidate Dan Winslow. The conclusions of the two opinions are identical in language.
“The term ‘spouse’ is not defined in FECA or the Commission’s regulations. The Commission has previously relied on state law to supply the meaning of terms not explicitly defined in the Act or Commission regulations,” the opinions state. “In light of the foregoing, the Commission concludes same-sex couples married under state law are ‘spouses’ for the purpose of Commission regulations.”
On Thursday, the opinions were unanimously approved. This was set to happen post-DOMA, and even the earlier decision rejecting the same-sex couple’s claims had announced that newer guidance would need to be issued were Section 3 of DOMA invalidated.
In other post-DOMA advancements, the U.S. Citizenship and Immigration Services has now posted a FAQ on its site for questions related to same-sex couples and immigration now that Section 3 of DOMA is no longer law. The FAQ says petitions can now be filed to sponsor a same-sex spouse, and also notes that the USCIS uses the “place of celebration” method to determine whether a marriage is legal: as long as it was legal in the state where the marriage was performed, it’s generally legal for immigration purposes, subject to some limitations.
In a new development related to LGBT legal equality, the Senate Appropriations Committee approved a bill that would ban discrimination in jury selection on the basis of sexual orientation or gender identity. Bills have been proposed to fix this problem for years, and this one was attached to a larger appropriations bill. There are currently only two cosponsors. Senator Shaheen spoke about the bill’s importance to the LGBT community:
Sen. Jeanne Shaheen (D-N.H.), who introduced the LGBT bill in January, said in a statement the move would ensure that LGBT people don’t face discrimination as part of the juror selection process.
“Discrimination based on sexual orientation or gender identity simply has no place in the United States,” Shaheen said. “The judicial process should represent our nation’s principles of inclusion and acceptance, and eliminating the discriminatory exclusion of LGBT jurors is a necessary step to meeting that goal.”
Currently, discrimination on the basis of race, color, religion, sex, national origin and economic status is prohibited under U.S. code in the jury selection process for federal courts. However, there are no such protections for LGBT people. The Jury Access for Capable Citizens & Equality in Service Selection Act would amend this section of U.S. code to include sexual orientation and gender identity.
Importantly, non-discrimination in jury selection is geared toward helping the accused person rather than individual LGBT jurors. Accused people are entitled to an impartial jury, and when a minority defendant is accused and minority jurors are excluded, it creates a problem in our legal system. The Supreme Court and Congress have worked to remedy this in other areas like race and gender. The entire appropriations bill will eventually go to the full Senate.
- The Ninth Circuit Court of Appeals has dismissed the appeal in Golinski v. Office of Personnel Management, challenging Section 3 of DOMA. Since the Supreme Court struck down the statute in United States v. Windsor, the case is now over.
- In the federal challenge to Michigan’s ban on marriage equality, state officials and a county clerk have filed answers to the complaint, asserting that the ban doesn’t restrict the rights of gays and lesbians. Think Progress has more.
- Missouri’s state supreme court is hearing a challenge to a law denying survivor benefits to same-sex partners, and after the Supreme Court decided Windsor, striking down Section 3 of DOMA, the state court is asking for more briefing on that decision’s impact on the case.
- A newly-formed coalition is pushing for marriage equality in New Jersey.
- After Windsor, New York’s Governor Cuomo is ordering the state to refund estate taxes for surviving spouses in legal same-sex marriages going back to 2008.
- Chris Johnson at the Washington Blade reports on LGBT progress post-Windsor.
Thanks to Kathleen Perrin for the filings in this post.
By Scottie Thomaston
More challenges to Section 3 of the federal Defense of Marriage Act (DOMA) are still working their way through the courts, and EqualityOnTrial is working to keep up with the latest developments in the ongoing cases. Here is a round-up of some of the most recent updates:
- Golinski v. Office of Personnel Management: This case is on appeal to the Ninth Circuit Court of Appeals. In the latest filing, the parties to the case have agreed that the appeal should be dismissed. Golinski and her wife won at the district court level, and the Supreme Court struck down Section 3 of DOMA in United States v. Windsor. Golinski’s wife has been receiving health benefits at the same time the government pursued an appeal to the Ninth Circuit. The latest request would simply leave the district court’s order in place, now that the Supreme Court has invalidated the statute.
- Dragovich v. Department of Treasury: This is another case that is on appeal to the Ninth Circuit. In the latest filing, the Justice Department and the Bipartisan Legal Advisory Group (BLAG) – who stepped in to defend Section 3 of DOMA on behalf of House Republicans – are asking for the dismissal of BLAG’s appeal to the Ninth Circuit. They’re also asking for BLAG’s removal from the case. (BLAG is only defending Section 3 of DOMA, which has been invalidated, so they are opting to remove themselves from these challenges.) The Justice Department still has its own appeal in this case, and neither BLAG nor the Justice Department have asked for dismissal of that appeal at this point. (The case involves more than just the now invalid statute.) The case is still stayed until August 1.
- McLaughlin v. Panetta: This is a challenge to Section 3 of DOMA as well as statutes defining marriage for purposes of military benefits. BLAG asked to withdraw from the case last week, and the Justice Department told the court that in light of Windsor it would construe the military benefit statutes to apply to both opposite-sex and same-sex married couples. The Justice Department argued that judgment should not be entered for the plaintiffs for procedural reasons – they argued the case was brought to the wrong court, as they have done previously. In the latest filings, the stay in the case was continued, and the Justice Department is ordered to issue a status report by September 9 on the government’s progress in implementing benefits for same-sex couples. The court granted BLAG’s motion to withdraw as well.
Thanks to Kathleen Perrin for these filings
- A gay judicial nominee for the Federal Circuit has advanced in a Senate committee.
- Another judicial nominee who is gay and black is facing a stalled process in the Senate.
- An analysis of why it will take a year for same-sex couples in England and Wales to be able to marry.
-Yet another poll finds more support than opposition to marriage equality in Virginia.
- Now that Section 3 of DOMA is gone, New York officials are asking the federal government to recognize marriages performed in states where they are considered legal.