Materials Provided by Shelley Bishop and Matt Voorhees. Same Sex Marriage & Related Issues in Missouri

Transcription

1 Materials Provided by Shelley Bishop and Matt Voorhees Same Sex Marriage & Related Issues in Missouri Program Description: A survey of the status of the law, same sex dissolution and custody issues, the impact of Respect for Religious Freedom Acts on LGBT individuals and considerations in working with the LGBT community. HISTORICAL OVERVIEW NATIONWIDE & IN MISSOURI (AS OF 4/26/15): 1 o First Challenge: 10/10/72: Baker v. Nelson Minnesota same sex couple denied marriage license by district court clerk. Trial court dismissed claim holding that clerk could refuse a marriage license. Couple lost at Minnesota Supreme Court and U.S. Supreme Court. o First Same Sex Marriage Ban: 1/1/73: Maryland becomes first state to pass same sex marriage ban. Additional bans pass quickly throughout 90s and 00s. o First (short lived) Success for Same Sex Couples: 5/5/93: Baehr v. Lewin Hawaii S.C. ruled that denying marriage to same sex couples violates the Equal Protection Clause of the Hawaii Constitution. Hawaii later amended its constitution to ban same sex marriage. o DOMA Passes: 9/21/96: President Clinton signs the Defense of Marriage Act (DOMA) into law. DOMA allowed states to refuse to recognize same sex marriages granted under laws of other states and barred same sex couples from being recognized as spouses for purposes of federal law and benefits. o Civil Unions: 12/20/99: Baker v. State of Vermont Court ruled same sex couples must be treated equally to different sex married couples. Vermont legislature established civil unions that granted some, but not all, of the benefits of marriage. The law went into effect on 7/1/00. o First Same Sex Marriage: 11/18/03: Goodridge v. Department of Public Health: Argued that state constitution mandates the freedom to marry for same sex couples. The court reaffirmed its decision and stated that only marriage (not civil unions) provide sufficient benefits to same sex couples. On 5/17/04 Massachusetts becomes first state in U.S. to grant same sex marriage. o The Missouri Ban: August of 2004, Missouri passes amendment banning samesex marriage. From 2004 through 2006, 18 additional states pass same sex marriage bans. o California Grants Same Sex Marriage/Rise of Prop 8: 5/15/08: California Supreme Court determines that a state same sex marriage ban is unconstitutional. Quickly thereafter, Proposition 8 (a ballot initiative to ban same sex marriage) qualifies for the November 2008 ballot. Same sex couples begin marrying on 6/16/08. On 11/4/08 Proposition 8 passes in CA, banning same sex marriage. Additional bans pass in FL and AZ. o Challenge to DOMA (GILL): 7/8/10: Gill v. Office of Personnel Management v. US Dept. of Health and Human Services U.S. District Court Judge Tauro rules that DOMA s Section 3 (restricting marriage to different sex couples) is unconstitutional. o Changing Public Opinion: August 2010: CNN releases first poll to show a national majority supporting the freedom to marry.

2 o Continued Challenge to DOMA (Golinski): 2/22/12: U.S. District Court Judge White rules in Golinski v. Office of Personnel Management that DOMA S Section 3 (restricting marriage to different sex couples) is unconstitutional. o The President Weighs In: 5/9/12: President Obama announces support for same sex marriage. o Continued Challenge to DOMA (Windsor): 6/6/12: U.S. District Court Judge Jones finds that Section 3 of DOMA is unconstitutional in Windsor v. United States. o DOMA (Section 3) Declared Unconstitutional: 6/26/13: U.S. Supreme Court overturns Section 3 of DOMA and also allows lower CA court ruling stand, restoring same sex marriage to California. o Rights After DOMA: (excellent resource from Lambda Legal): 2 1) Private employment issues and benefits; 2) Benefits and protections for civilian federal employees and their spouses; 3) Family and Medical Leave Act for non federal employees; 4) Federal taxes; 5) FAFSA; 6) Immigration; 7) Medicaid; 8) Social Security & family protections; 9) Military spousal benefits; 10) Veteran s spousal benefits; 11) Supplemental Security Income for Aged, Blind and Disabled (SSI); 12) Medicare Spousal Protections; 13) Bankruptcy; and 14) TANF. o Supreme Court Signals Its Position?: 10/6/14: The U.S. Supreme Court denies review in five marriage cases. This allowed the lower court rulings to stand and same sex couples obtained right to marry in Utah, Oklahoma, Virginia, Indiana, Wisconsin. At this point, 30 states allowed for same sex marriage and 60% of the US population lived in states with same sex marriage. o The Circuits Split: 11/6/14: U.S. Court of Appeals for the Sixth Circuit reversed 6 pro same sex marriage rulings out of Kentucky, Michigan, Ohio and Tennessee. This decision split from other circuits setting up Supreme Court challenge. o The Supreme Court Grants Review: 1/16/15: U.S. Supreme Court grants review announcing it will review the Sixth Circuit Court of Appeals ruling in Kentucky, Ohio, Michigan and Tennessee. Oral arguments to be heard in April of Ruling expected in June Additional case information. 3 A BRIEF HISTORY (AS OF 4/26/15) MISSOURI: o Missouri Legal Status: MO Constitution Article 1 Bill of Rights Section 33: That to be valid and recognized in this state, a marriage shall exist only between a man and a woman. Mo. Rev. Stat : It is the public policy of this state to recognize marriage only between a man and a woman. o Missouri Statistics: As of the 2010 U.S. Census, there were a reported 10,557 same sex couples living in Missouri. This represented 4.4 same sex couples per 1,000 households. 4 As of June 2012, a majority of Missouri residents supported some form of legal recognition for same sex couples with 33% supporting marriage equality and 31% supporting civil unions. 5 o Missouri Cases: State of Missouri v. Jennifer Florida (same sex marriage license): Summer of 2014, Recorder of Deeds, Sharon Carpenter, in conjunction with St. Louis Mayor Slay, issued marriage licenses to 4 MO same sex couples. State argued that the marriage licenses should not have been granted. 11/5/14, St. Louis City Judge Burlison ruled that it was unconstitutional to ban same 2

3 sex couples the ability to marry. As of 4/26/15, this case was on appeal with the Missouri Supreme Court. On 1/28/15, the Missouri Supreme Court stayed the briefing schedule until the U.S. Supreme Court rules on the pending marriage cases. 6 Barrier v. Vasterling (same sex marriage recognition): 8 Missouri same sex couples (all of whom were married outside of Missouri), filed suit in Jackson County, MO, challenging MO s same sex marriage ban. On 10/3/14, Circuit Judge Youngs ruled that Missouri must recognize the valid out of state same sex marriages of the plaintiffs. On 10/6/15, Attorney General Koster announced he would not appeal the decision. Some disagreement as to whether this decision extends beyond Jackson County. 7 Lawson v. Jackson County Department of Recorder of Deeds (same sex marriage license): On 6/24/14, ACLU filed suit on behalf of 2 same sex couples seeking marriage licenses in MO. Case was removed to the 8 th Circuit federal court. On 11/7/14, U.S. District Court Judge Smith ruled in favor of the plaintiffs, striking down Missouri s same sex marriage ban. Attorney General Koster appealed the decision to the U.S. Court of Appeals for the 8 th Circuit. The ruling is stayed until the judgment is final. Oral arguments scheduled for May 11 15, In re the Marriage of M.S. v. D.S. (same sex dissolution of marriage): On 12/3/14, private attorneys filed dissolution of marriage case in St. Louis County on behalf of a man who was legally married to another man in Iowa in M.S. filed for divorce, but the case was dismissed citing lack of subject matter jurisdiction. The plaintiff argues that the court has jurisdiction and that his equal protection rights under the 14 th Amendment are being violated. On 2/10/15, the MO Supreme Court unanimously ruled that the Circuit Court of St. Louis County has subject matter jurisdiction to dispose of the Petition for dissolution. However, the court also stated that while the court has subject matter jurisdiction over the civil case, the court expressed no opinion as to the merits of any aspect of the case, including the constitutional or statutory authority of the circuit court to dissolve same sex marriage. The circuit court s judgment was reversed and the case remanded for a decision. 9 SAME SEX DISSOLUTION IN MISSOURI (EASTERN MISSOURI PERSPECTIVE): o Are courts granting same sex dissolutions? It depends. (As of 4/26/15). See In re the Marriage of M.S. v. D.S. re jurisdictional issues. Divorces are moving forward as judges permit. o Unique Issues: Some judges are only allowing non contested cases to proceed. There is a danger that U.S. Supreme Court could rule against same sex marriage. If so, what happens to these prior judgments? Will they be set aside? Clients should be made aware of this risk prior to proceeding. Concerns Regarding Property Division: Given the status of the law, many same sex relationships are much longer than the length of the marriage. What can/should courts consider in dividing property in these situations? When would an unequal asset division be appropriate? See Mo. Rev. Stat. 3

4 regarding property division. How much emphasis will be paced on factors (1) economic circumstances of each spouse; and (3) the value of the non marital property set apart to each spouse? 10 Concerns Regarding Maintenance: Again, given the length of the marriage in relationship to many relationships, will the court treat these relationships differently? Should they? See Mo. Rev. State regarding maintenance award. Again, how much emphasis will the court place on the various factors in same sex dissolutions? 11 o Tax Filing Status: Federal: For federal tax purposes, the IRS looks to state or foreign law to determine whether individuals are married. The IRS has a general rule recognizing a marriage of same sex spouses that was validly entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same sex marriages. See 12 Missouri: The Missouri Department of Revenue accepts joint tax filings from married same sex couples. The state and federal filing status must match. See Missouri Executive Order Concerns in Divorce Situations: In divorce situations, it is important to be aware of possible tax liabilities (or benefits) that may exist if the parties have filed incorrectly. For 2013 and going forward, same sex spouses generally must file using a married filing separately or jointly filing status. See Rev. Rule o Division of Retirement: Qualified retirement plans are required to: 1) treat a same sex spouse as a spouse for purposes of satisfying the federal tax laws relating to qualified retirement plans; and 2) for purposes of satisfying the federal tax laws relating to qualified retirement plans, a qualified retirement plan must recognize a same sex marriage that was validly entered into in a jurisdiction whose laws authorize the marriage, even if the married couple lives in a domestic or foreign jurisdiction that does not recognize the validity of same sex marriages. See Rev. Rul WHEN DIVORCE IS NOT AN OPTION: o Alternative dispute resolution: When is mediation appropriate? o Partition Suits 16 and 17 custody dispute. WORKING WITH THE LGBTQ COMMUNITY: o Understand the terminology and why it may matter to your clients. LGBT Terms and Definitions 18 An Allys Guide to Terminology Talking about LGBT People & Equality 19 4

5 o Build your network of LGBTQ friendly professionals as a resource for you and your clients. It is good to have a strong network of professionals that you trust for all clients! o Be aware of some unique emotional concerns. For example, in dissolution cases, where a spouse is leaving an opposing sex spouse, there may be additional and unique emotional concerns to be addressed. It is important to have a solid network of LGBTQ friendly mental health professionals. o Tips for Legal Advocates Working with Lesbian, Gay, Bisexual, & Transgender Clients by the National Center for Lesbian Rights, California Rural Legal Assistance and Legal Services for Children: 20 Become comfortable with the issues. Historically, society has been intolerant of lesbian, gay, bisexual, and transgender (LGBT) people and these negative attitudes may affect how we think about LGBT people. It is important for advocates to understand LGBT people and the issues they face. One can become a compassionate advocate by building relationships with local LGBT organizations and activists, attending trainings, visiting educational websites, and reading articles and books or watching movies with positive portrayals of LGBT people. Make your office space friendly to LGBT people. Often, LGBT people will assume that a lawyer s office is unfriendly to LGBT people until he or she receives a clear indication otherwise. Use visual cues to indicate that your office is a safe and welcoming space for LGBT people. Put up posters or stickers that have positive messages about LGBT people and make sure your resource display includes materials specifically for LGBT people. When possible, hire LGBT people as staff members in your organization. With all clients, use language that does not implicitly assume the client s sexual orientation or gender. Using inclusive language that does not assume the gender of your client or your client s significant other sends a message that it is safe for your client to talk to you about his or her sexual orientation or gender identity. It is important to use this inclusive language with all clients, not just the ones who you think may be LGBT. For example, ask are you in a relationship? instead of do you have a boyfriend? Be aware of assumptions you may have based on a client s sexual orientation or gender identity. We all make assumptions about others based on our own background and experience. The important thing is to be aware so that you do not unconsciously make decisions based on your assumptions about people who are LGBT rather than on your client s unique situation. For example, a gay male client does not necessarily appreciate sexual advances from other male coworkers, and he may have a sexual harassment claim. Use the name and pronoun that conforms to the client s gender identity consistently in all your interactions with the client, as well as in all correspondence and court documents. It is important to be respectful of your client s gender identity by using the name and pronoun that he or she prefers and by asking co workers, opposing counsel, judges, and court staff to do so. If you are unsure what name or pronoun to use, ask. Court documents may need a footnote explaining that you will use to the client s current name and gender. 5

6 An LGBT client s legal problems may not be directly related to his or her sexual orientation or gender identity. LGBT clients face the same types of legal problems that non LGBT clients face. An LGBT client s legal problems will not inevitably involve sexual orientation or gender identity discrimination. For example, an LGBT client may come to the legal aid office because his or her landlord has failed to fix an unsafe condition, and that failure may be unrelated to the client s sexual orientation or gender identity. Be prepared to address hostile attitudes and irrelevant arguments. An LGBT client may face hostility from the legal system, even if the case does not relate directly to his or her sexual orientation or gender identity. For example, in a custody case between different sex parents where one parent is LGBT, the other parent may argue that the LGBT parent shouldn t have custody because of his or her sexual orientation or gender identity. Reach out to LGBT organizations and attorneys who have experience working with LGBT legal issues. The laws affecting LGBT people are complicated and constantly changing. Organizations and attorneys experienced with LGBT legal issues can help you identify the most effective strategies and may be able to provide legal research and information on these issues. 21 TRANSGENDER RESOURCES: o Transgender FAQ, Human Rights Campaign 22 ; Transgender 101, Glaad 23 ; Transgender Resources 24 ; and PFLAG Resources 25 o For the Practitioner: Petition for Name Change (See 26 ) and for Amendment of Birth Certificate and Change of Sex. Permitted in Missouri per Mo. Rev. Stat : Upon receipt of a certified copy of an order of a court of competent jurisdiction indicating the sex of an individual born in this state has been changed by surgical procedure and that such individual's name has been changed, the certificate of birth of such individual shall be amended. 27 The statute does require evidence (typically a letter from a doctor) that a surgical procedure has occurred. MONA: Workplace discrimination issues for the LGBTQ community. An overview and current status of the Missouri Nondiscrimination Act. 28 6

7 IN THE CIRCUIT COURT OF COUNTY, MISSOURI ) Client ) ) CASE NO. ) ) DIVISION NO. PETITIONER. ) PETITION FOR COURT ORDER CHANGING SEX AND TO AMEND MISSOURI BIRTH CERTIFICATE COMES NOW Petitioner,, by her undersigned counsel of record, having had her sex changed by surgical procedure, and having changed her name by court order from, to, and having fulfilled the requirements of Section (9) RSMo., hereby petitions the Court to order the Bureau of Vital Statistics to change the birth record of the Petitioner,, born on, as, in the County of, State of Missouri, to parents, and, such that the sex is changed to Female. [attorney signature block] ATTORNEY FOR PETITIONER IN THE CIRCUIT COURT OF COUNTY, MISSOURI ) Client ) ) CASE NO. ) ) DIVISION NO. PETITIONER. ) JUDGMENT UPON PETITION FOR CHANGE OF SEX AND FOR AMENDMENT OF BIRTH CERTIFICATE On the day of,, the Petition of for Change of Sex and Amendment of Birth Certificate coming on to be heard, and after having fully examined the said as to reasons for such desired change of sex, it is found that said Change of Sex is proper and that it will not be detrimental to the interests of any other person. It is therefore ordered that the sex of, born in, State of Missouri, to, and, on, birth name, be changed to that of, that the Bureau of Vital Statistics alter the birth records accordingly and that publication issue according to law. SO ORDERED: 7

8 1 History and Timeline of the Freedom to Marry in the United States. and timeline of marriage 2 doma 3 cases seeking supreme court review 4 content/uploads/census2010snapshot_missouri_v2.pdf mo.org/legal docket/barrier v vasterling marriage recognition/ 8 mo.org/legal docket/lawson v jackson county department of recorder of deeds/ 9 mo.org/legal docket/in re the marriage of ms and ds amicus brief/ 10 Mo. Rev. Stat Mo. Rev. Stat Answers to Frequently Asked Questions for Individuals of the Same Sex who Are Married Under State Law to Frequently Asked Questions for Same Sex Married Couples 13 Executive Order orders/executive order Rev. Rul drop/rr pdf 15 Rev. Rul drop/rr pdf 16 Mo. Rev. Stat Partition 17 Rule 96 Partition of Real and Personal Property 18 LGBT Terms and Definitions from international + LGBT at the University of Michigan 19 An Ally s Guide to Terminology Talking About LGBT People & Equality guide to terminology_1.pdf 20 Tips for Legal Advocates Working with Lesbian, Gay, Bisexual, & Transgender Clients by the National Center for Lesbian Rights, California Rural Legal Assistance and Legal Services for Children Tips for Legal Advocates Working with Lesbian, Gay, Bisexual, & Transgender Clients by the National Center for Lesbian Rights, California Rural Legal Assistance and Legal Services for Children Transgender FAQ, Human Rights Campaign faq 23 Transgender 101, Glaad 24 Transgender Resources, Glaad 25 PFLAG Resources 8

9 26 The Missouri Bar Name Change 27 Mo. Rev. Stat (Amendment of birth certificate related to sex change) 28 Missouri Workplace Equality missouri nondiscrimination act 9