SURVEY OF SAME-SEX MARRIAGE AND CIVIL UNIONS IN OTHER JURISDICTIONS, DEFENSE OF MARRIAGE ACT AND OTHER RECIPROCITY ISSUES

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1 SURVEY OF SAME-SEX MARRIAGE AND CIVIL UNIONS IN OTHER JURISDICTIONS, DEFENSE OF MARRIAGE ACT AND OTHER RECIPROCITY ISSUES Marie Avery Moses Lass Moses Ramp, LLC th Street, Suite 300 Denver, CO Richard J. Rotole Rotole, Rotole & Blanchard, LLC 2 Steele Street, Suite 202 Denver, CO rjrotole@rrbl.net

2 US Jurisdictions Recognizing Same Sex Marriages (as of May 1, 2013): Connecticut (Connecticut civil unions automatically deemed marriages as of Oct. 2010) District of Columbia Iowa Maine Maryland Massachusetts New Hampshire (NH civil unions automatically deemed marriages unless dissolved by Jan. 2011) New York Vermont (Civil unions entered before Sept remain civil unions) Washington US Jurisdictions Legally Recognizing Other Same Sex Relationships (as of May 1, 2013) California: Domestic Partnerships Colorado: Civil Unions Delaware: Civil Unions Hawaii: Civil Unions Illinois: Civil Unions New Jersey: Civil Unions Nevada: Domestic Partnerships Oregon: Domestic Partnerships Rhode Island: Civil Unions Wisconsin: Domestic Partnerships Other Countries Recognizing Same Sex Marriages (as of May 1, 2013) Argentina Belgium Brazil (only some states) Canada Denmark France Iceland Mexico (only some states) Netherlands Norway Portugal Spain South Africa Sweden

3 States with Bans on Same-Sex Marriages (as of May 1, 2013) (per NCSL) Alabama: Constitutional and Statutory Alaska: Constitutional and Statutory Arizona: Constitutional and Statutory Arkansas: Constitutional and Statutory California: Constitutional only Colorado: Constitutional and Statutory Delaware: Statutory only Florida: Constitutional and Statutory Georgia: Constitutional and Statutory Hawaii: Statutory only Idaho: Constitutional and Statutory Illinois: Statutory only Indiana: Statutory only Kansas: Constitutional and Statutory Kentucky: Constitutional and Statutory Louisiana: Constitutional and Statutory Michigan: Constitutional and Statutory Minnesota: Statutory only Mississippi: Constitutional and Statutory Missouri: Constitutional and Statutory Montana: Constitutional and Statutory Nebraska: Constitutional only Nevada: Constitutional only North Carolina: Constitutional and Statutory North Dakota: Constitutional and Statutory Ohio: Constitutional and Statutory Oklahoma: Constitutional and Statutory Oregon: Constitutional only Pennsylvania: Statutory only South Carolina: Constitutional and Statutory South Dakota: Constitutional and Statutory Tennessee: Constitutional and Statutory Texas: Constitutional and Statutory Utah: Constitutional and Statutory Virginia: Constitutional and Statutory West Virginia: Statutory only Wisconsin: Constitutional and Statutory Wyoming: Statutory only

4 Defense of Marriage Act (DOMA): 28 USC 1738C An Act to define and protect the institution of marriage. SECTION 1. SHORT TITLE. This Act may be cited as the `Defense of Marriage Act'. SECTION 2. POWERS RESERVED TO THE STATES. No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. SECTION 3. DEFINITION OF MARRIAGE. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife. 28 USC 1738: STATE AND TERRITORIAL STATUTES AND JUDICIAL PROCEEDINGS; FULL FAITH AND CREDIT The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto. The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

5 Colorado Laws Addressing Recognition of Same Sex Marriages and Other Legally Recognized Relationships Constitution of the State of Colorado Article II. Bill of Rights 31. Marriages--valid or recognized CO CONST Art. 2, 31 Only a union of one man and one woman shall be valid or recognized as a marriage in this state. This section, proposed by Initiative, was ratified by the electorate at the general election on Nov. 7, 2006, effective upon the proclamation of the vote by the governor, Dec. 31, Title 14. Domestic Matters Article 2. Marriage and Rights of Married Women Part 1. Uniform Marriage Act Formalities (1) Except as otherwise provided in subsection (3) of this section, a marriage is valid in this state if: (a) It is licensed, solemnized, and registered as provided in this part 1; and (b) It is only between one man and one woman. (2) Notwithstanding the provisions of section , any marriage contracted within or outside this state that does not satisfy paragraph (b) of subsection (1) of this section shall not be recognized as valid in this state. (3) Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman: (a) Entered into prior to September 1, 2006; or (b) Entered into on or after September 1, 2006, that complies with section Amended by Laws 2000, Ch. 233, 1, eff. May 26, 2000; Laws 2006, 1st Ex.Sess., Ch. 3, 1, eff. July 18, 2006.

6 Application All marriages contracted within this state prior to January 1, 1974, or outside this state that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties are valid in this state. RECIPROCITY ISSUES: Will Other States Recognize Decrees Dissolving Civil Unions or Same-Sex Marriages? A. There could be severe adverse consequences if states refuse to recognize the decrees of dissolution of civil unions or same sex marriages of other states particularly in matters involving enforcement of child custody orders. See eg. Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88, 637 S.E.2d 330 (Va. App. 2006) (mother argued that DOMA prohibited Virginia from recognizing Vermont s valid custody determination in a dissolution of civil union action); and Miller v. Jenkins, 54 Va.App. 282, 678 S.E.2d 268 (Va. App. 2009) (custody orders entered in Vermont action dissolving a civil union were challenged as void when parent tried to register custody orders in Virginia for enforcement). B. Decrees Dissolving Same-Sex Marriages: Under Section 2 of DOMA, other states are not REQUIRED to recognize a Decree that dissolves a Same Sex Marriage because that Decree would be respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State. C. Decrees Dissolving Civil Unions: Because Civil Unions are often declared to be different than marriage, DOMA should not provide the basis for a state s refusal to recognize otherwise valid decrees of dissolution of civil unions. It is unclear whether state courts will interpret their own statutes and constitutions as grounds for refusal to recognize another s state s decree of dissolution.

7 Will Other States Dissolve Colorado Civil Unions? A. States with One Man One Woman statutes or constitutional amendments will probably refuse to dissolve civil unions. See eg. In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex.App.2010) (same sex marriage entered into in Massachusetts could not be dissolved in Texas); Kern v. Taney, 2010 WL (Pa. Com. Pl. 2010) (same); and In re Estate of Burnett, N.W.2d, 2013 WL (Mich. App. 2013). B. On the other hand, states without express statutory or constitutional provisions prohibiting same-sex marriages or civil unions may rely on principles of comity to determine whether the relationship can be recognized and then dissolved. Under the doctrine of comity, a state will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and respect. There are two exceptions to this general rule. First, the marriage must not be expressly prohibited by statute. Second, the marriage must not be repugnant to the state s public policy. See Port v. Cowan, 426 Md. 435, , 44 A.3d 970 (2012). C. States that permit same-sex marriages, but do not have civil union laws, may be willing to treat a Colorado Civil Union like a marriage. See Elia-Warnken v. Elia, 463 Mass. 29, 972 N.E.2d 17 (Mass. 2012) (Vermont civil union treated as the equivalent of marriage in Massachusetts). Or, the states may be willing to dissolve the union under principles of equity. See Dickerson v. Thompson, 88 A.D.3d 121, 928 N.Y.S.2d 97 (N.Y.A.D. 3 Dept. 2011)(under principles of equity, New York court willing to dissolve a Vermont civil union absent statutory authority because plaintiff needed a remedy). D. Finally, it may be possible to seek an annulment of a Civil Union in another state if the state refuses to dissolve the Civil Union. See Surnamer v. Ellstrom, 2012 WL (Ariz. App. Div ) (not published)(arizona court could annul a same-sex marriage and divide property because there was a strong public policy against same-sex marriages and annulling such a relationship would be consistent with that public policy). The Issue of Testimonial Privilege: Most states require that a valid marriage must exist for an individual to be entitled to invoke spousal privileged to avoid being required to testify against his or her spouse. Therefore, if a state does not expressly recognize civil unions, or does not view same-sex marriages as valid, the testimonial privilege will not apply in that state.

8 CONSTITUTIONAL ISSUES: DOMA Ruled Unconstitutional in at Least One Federal Circuit Court, Second Circuit Windsor v. United States of America, 699 F.3d 169 (2nd Cir. 2012) and Windsor v. United States, 833 F.Supp.2d 394 (S.D.N.Y.2012). These cases at the trial and appellate level held that the Defense of Marriage Act violated Equal Protection and is unconstitutional. On June 6, 2012, the United States District Court for the Southern District of New York granted summary judgment in favor of Plaintiff Edith Windsor in a thorough opinion. Windsor v. United States, 833 F.Supp.2d 394 (S.D.N.Y.2012). The trial court ruled that Section 3 of the Defense of Marriage Act (DOMA): 28 USC 1738C, violated the equal protection because there was no rational basis to support it. The Plaintiff sued as surviving spouse of a same-sex couple that was married in Canada in Windsor was resident in New York at the time of her spouse's death in Windsor was denied the benefit of the spousal deduction for federal estate taxes under 26 U.S.C. 2056(A) solely because Section 3 of the DOMA, 1 U.S.C. 7, defines the words " marriage" and " spouse" in federal law in a way that bars the Internal Revenue Service from recognizing Windsor as a spouse or the couple as married. The Court addressed the issue because for the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death. Eccles v. Comm'r., 19 T.C. 1049, 1051, (1953); Rev. Rul , C.B. 60. The marital status of individuals as determined under state law is recognized in the administration of the Federal income tax laws." The Appellate court entered four significant holdings: 1. Windsor has standing in this action because we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless have recognized Windsor and her spouse as married at the time of death in 2009, so that Windsor was a surviving spouse under New York law. 2. Windsor's suit is not foreclosed by Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), which held that the use of the traditional definition of marriage for a state's own regulation of marriage status did not violate equal protection. The court said Baker compels the inference that Congress may prohibit same-sex marriage in the same way under

9 federal law without offending the Equal Protection Clause. We disagree. The question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question whether same-sex marriage may be constitutionally restricted by the states. After all, Windsor and Spyer were actually married in this case, at least in the eye of New York, where they lived. 3. Section 3 of DOMA is subject to heightened scrutiny. Section 3 of DOMA is subject to intermediate scrutiny under the factors enumerated in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), and other cases. In reaching its conclusion, the Appellate Court reviewed four factors: the History of Discrimination of Homosexuals as a Class concluding there is a long history of discrimination; the Relation to Ability, i.e., whether the class characteristic frequently bears a relation to ability to perform or contribute to society; Distinguishing Characteristics, concluding that homosexuality is a sufficiently discernible characteristic to define a discrete minority class; and Political Power, concluding that homosexuals are a politically powerless minority and unable to protect themselves from discrimination at the hands of the majoritarian political process. The Court determined that analysis of these four factors supports the conclusion that homosexuals compose a class that is subject to heightened scrutiny. 4. Section 3 of DOMA does not withstand intermediate scrutiny and is unconstitutional. To withstand intermediate scrutiny, a classification must be "substantially related to an important government interest." The Court reviewed several of the opponent s arguments: 1) maintaining a " Uniform Definition" of Marriage ruling that to the extent that there has ever been " uniform" or " consistent" rule in federal law concerning marriage, it is that marriage is " a virtually exclusive province of the States." DOMA's sweep arguably creates more discord and anomaly than uniformity; 2) Protecting the Fisc, i.e., to save government resources by limiting the beneficiaries of government marital benefits. The court noted that the Supreme Court has held that the saving of welfare costs cannot justify an otherwise invidious classification" and that DOMA is so broad, touching more than a thousand federal laws, that it is not substantially related to fiscal matters. For these reasons, DOMA is not substantially related to the important government interest of protecting the fisc ; 3) Preserving a Traditional Understanding of Marriage, "[a]ncient lineage of a legal concept does not give [a law] immunity from attack for lacking a rational basis. A fortiori, tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important government interest. The Court added that even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it. As the district court found: because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, ' preserve' the institution of marriage as one between a man and a woman." Preservation of a

10 traditional understanding of marriage therefore is not an exceedingly persuasive justification for DOMA; 4) Encouraging Responsible Procreation, we agree that promotion of procreation can be an important government objective. But we do not see how DOMA is substantially related to it. All three proffered rationales have the same defect: they are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way. DOMA does not provide any incremental reason for opposite-sex couples to engage in "responsible procreation." DOMA is therefore not substantially related to the important government interest of encouraging procreation. DOMA's classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional. An interesting side issue was raised at the appellate level because during the district court case, the United States, initially named the sole defendant, later declined to defend DOMA after the Executive Branch announced the Department of Justice would no longer defend it. Thereafter, members of Congress took steps to support it. The Bipartisan Legal Advisory Group of the United States House of Representatives (" BLAG ) retained counsel and undertook the defense of DOMA. The United States remained active as a party, switching sides to advocate that the statute be ruled unconstitutional. BLAG attempted to strike the Notice of Appeal filed by the United States, which the Appellate Court denied because notwithstanding the withdrawal of its advocacy, the United States continues to enforce Section 3 of DOMA, which is indeed why Windsor does not have her money. The constitutionality of the statute will have a considerable impact on many operations of the United States. Quoting another case When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal... The agency's status as an aggrieved party... is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional." Thus, until Congress acts to repeal DOMA, the courts will assume because of the denial of rights to same-sex couples and enforcing such denials, the United States is defending DOMA. The US Supreme Courts has heard arguments in this case. An opinion is expected in the summer of 2013.

11 Continuing Viability of State Statutes and Constitutional Provisions Defining Marriage as One Man One Woman The US Supreme Court has heard oral arguments in Hollingsworth v. Perry, an appeal from the 9 th Circuit Court of Appeals addressing a federal equal protection challenge to the California constitutional amendment which banned same-sex marriages which is known as Proposition 8. After addressing all of the arguments of supporters of Prop 8 as to why there was a legitimate reason for passage of Prop 8, the 9 th Circuit Court of Appeals conducted an equal protection analysis, wrote and held: Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does. Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right the right to obtain and use the designation of marriage to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties. All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of marriage, which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in

12 California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort. Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). * * * By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground. We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts. For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. Perry v. Brown, 671 F.3d 1052 (C.A.9 (Cal.) 2012).