EVOLVING LAW AFFECTING SAME-SEX COUPLES AND THE RIGHT TO MARRY

EVOLVING LAW AFFECTING SAME-SEX COUPLES AND THE RIGHT TO MARRY Sponsor: Young Lawyers Division and Family Law Section CLE Credit: 1.0 Thursday, June 18, 2015 9:40 a.m. - 10:40 a.m. Thoroughbred 5-7 Lexington Convention Center Lexington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association

TABLE OF CONTENTS The Presenters... i Same-sex Marriage in Kentucky, Sooner or Later?... 1 A Basic Timeline for Same-sex Marriage... 5 Case Summaries... 11

THE PRESENTERS Dawn R. Elliott Fauver Law Office 1752 Frankfort Avenue Louisville, Kentucky 40206 (502) 569-7710 dawn@fauverlaw.com DAWN R. ELLIOTT is an attorney with Fauver Law Office in Louisville and practices in the area of criminal law. She received her B.S. from Hamilton University and her J.D. from the Louis D. Brandeis School of Law at the University of Louisville. Prior to joining the practice of law, Ms. Elliott worked as a paralegal with the Office of the Commonwealth Attorney. She is a member of the Louisville, Kentucky, and American Bar Associations. Shannon R. Fauver Fauver Law Office 1752 Frankfort Avenue Louisville, Kentucky 40206 (502) 569-7710 shannon@fauverlaw.com SHANNON R. FAUVER maintains a general practice in Louisville. She is a graduate of Morehead State University and received her J.D. from the Louis D. Brandeis School of Law at the University of Louisville. Prior to going to law school, Ms. Fauver served overseas with the Peace Corps. She is a member of the Louisville, Kentucky, and American Bar Associations, Women Lawyers Association, Louis D. Brandeis American Inns of Court, Kentucky Justice Association, and National Association of Social Security Representatives. i

Abby R. Rubenfeld Rubenfeld Law Office, PC 2409 Hillsboro Road, Suite 200 Nashville, Tennessee 37212 (615) 386-9077 arubenfeld@rubenfeldlaw.com ABBY R. RUBENFELD maintains a general law practice in Nashville, with an emphasis on family law, sexual orientation and AIDS-related issues. She is also a professor at Vanderbilt Law School teaching Sexual Orientation and the Law. Ms. Rubenfeld received her J.D. from Boston University School of Law and her A.B., with honors, from Princeton University. While at Princeton, she was the first woman elected as class president in more than 225 years of Princeton history. Ms. Rubenfeld currently serves on the board of directors of the ACLU of Tennessee. She has served on the board of directors of the Human Rights Campaign and as Legal Director of Lambda Legal Defense and Education Fund, Inc. Ms. Rubenfeld is a past recipient of the Bill of Rights Award from the ACLU of Tennessee and the Dan Bradley Award from the National Lesbian and Gay Law Association. ii

SAME-SEX MARRIAGE IN KENTUCKY, SOONER OR LATER? Sharon R. Fauver and Dawn R. Elliott The question isn't whether or not same-sex marriage will be legal in Kentucky; the question is when it will be legal in Kentucky. At this point, Kentucky has the opportunity to be a trailblazer with regard to the legalization of same-sex marriage. To date, fifty-five percent of the citizens of Kentucky are covered by Fairness Ordinances, which means they can't be discriminated against for housing or work, amongst other things, based on their sexual orientation, but Kentucky will not allow same-sex marriages for those same citizens. Since the U.S. v. Windsor, 133 S.Ct. 2675 (2013) ruling, things have changed dramatically in regards to same-sex marriage in the United States. Edie Windsor filed her original case when she was given a $363,000 federal estate tax bill after her partner of forty-four years died. Ms. Windsor and her wife were legally wed in Canada in 2007, as they could not marry in this country at that time due to the Defense of Marriage Act (DOMA). After the case worked its way up to the United States Supreme Court, it was ruled on in June 2013. As a basic background, the United States Supreme Court ruled on June 26, 2013, that Section 3 of DOMA was unconstitutional. That section defined a marriage as a union between a man and a woman. The Supreme Court did not rule that same-sex marriage was allowed, as they did not specifically tackle that issue. So, from the date DOMA was signed in 1996 until June 26, 2013, same-sex marriage was specifically not allowed by the Federal government. Between the ruling on DOMA on June 26, 2013, and now, April 12, 2015, thirty-seven states recognize same-sex marriage. (Washington D.C. legalized same-sex marriage on March 3, 2010.) There have been different ways the states have legalized same-sex marriage; some states legalized same-sex marriage by popular vote. After the ruling on Windsor, the Federal government has stated that they will recognize same-sex marriages for Federal purposes, ranging from veterans' benefits to taxes. Over the last two years since the Windsor ruling, there continues to be litigation across the country to try and determine exactly what the implications are for the citizens of each state. For example, in Kentucky a same-sex couple who was married in another state may receive veterans' benefits for their spouse, but cannot file state taxes as a married couple. There are numerous issues and inequities that result from the treatment of same-sex and opposite-sex married couples, some of which can be found in Bourke v. Beshear, 996 F.Supp.2d 542 (W.D. Ky. 2013). That case asks that Kentucky recognize same-sex marriages from other jurisdictions, just as Kentucky recognizes opposite-sex marriages from other jurisdictions. While the Bourke case has received national coverage, it is not the first same-sex marriage case in Kentucky. There may have been others, but the first one that I am aware of is a bankruptcy case filed last year. In that case, a married same-sex couple filed as such in the Bankruptcy Court in Louisville. The ruling in the case was stayed until after the Supreme Court ruling in the Windsor case, as the Supreme Court had granted cert on that case right before the bankruptcy case was filed. In October of this year, the 1

bankruptcy court allowed that bankruptcy case to go forward as a joint filing. The joint filing would not be allowed if the Federal government did not state that they would recognize same-sex marriages for Federal purposes. In a 2013 murder trial, the topic of spousal privilege came up, but the judge ruled that the couple was not legally married in a state that allowed it, but instead had a civil union. So, the decision didn't end up directly addressing spousal privilege in same-sex marriage cases in Kentucky. A state court case was filed in Frankfort by a male couple who were previously married in another state. They asked for clarification as to whether or not the county clerks in Kentucky recognize their marriage and when they were informed that they did not, they asked for and were denied a marriage license. Upon that denial of a marriage license, they filed suit. That case is currently pending in Franklin Circuit Court. In Jefferson County Circuit Court a divorce proceeding has been filed for a same-sex couple. That case was ruled on in December 2014. As far as we know, it is the only same-sex divorce that has been finalized in Kentucky to date. One of the flukes about the same-sex marriage ban is that the state doesn't recognize same-sex marriages, but it may preclude a same-sex divorce. As of today, the only jurisdiction that allows samesex divorce for non-residents is Washington D.C., but the marriage must have been performed there. In January 2013, two men were arrested for criminal trespassing as they were peacefully resisting instructions to leave when they could not obtain a marriage license. In their trial, they were found guilty, but only fined one cent apiece, which was conditionally discharged. These gentlemen would become two of the Plaintiffs in Love v. Beshear, 89 F.Supp.2d 536 (W.D. Ky. 2014). Along with the Bourke case, a similar case was filed in Frankfort's Federal District Court, Franklin v. Beshear, Case No. 3:13-CV-00051. This case was later merged with the Bourke case so that the cases did not run the risk of receiving two inconsistent rulings in the two federal jurisdictions of Kentucky. On February 12, 2014, Judge Heyburn ruled on Bourke. He ruled that the Commonwealth of Kentucky had to recognize valid same-sex marriages performed outside of Kentucky. There was a brief stay issued in that ruling. On February 14, 2014, while the stay was in effect the Love case was filed along with a motion to intervene in the Bourke case. The Love case asked that the state's ban on issuing same-sex marriage licenses be invalidated. The Commonwealth of Kentucky appealed the Bourke case and then once Heyburn ruled on behalf of the Plaintiffs, in the Love case, the State also appealed that ruling. Stays were issued in both cases pending a resolution by the Sixth Circuit. On August 6, 2014, the Bourke and Love cases were heard by the Sixth Circuit Court of Appeals, along with cases from Ohio, Tennessee and Michigan. In November 2014, all four of those cases were ruled on creating a split in the Circuits as every other Circuit had ruled in favor of same-sex marriage up until that time. 2

Cert was requested and these cases are presently set to be heard on April 28, 2015, by the United States Supreme Court with a ruling expected in June 2015. 3

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A BASIC TIMELINE FOR SAME-SEX MARRIAGE I. 1920s 1924 The Society for Human Rights in Chicago becomes the country's earliest known gay rights organization. II. 1950s A. 1951 The Mattachine Society, the first national gay rights organization, is formed by Harry Hay, considered by many to be the founder of the gay rights movement. B. 1955 The first lesbian-rights organization in the United States, the Daughters of Bilitis, was established in San Francisco in 1955. III. 1960s A. 1962 Illinois becomes the first state in the United States to decriminalize homosexual acts between consenting adults in private. B. 1967 the Loving v. Virginia, 388 U.S. 1 (1967), case was decided, in which the court said that the government can't regulate whom you marry (in that case in relation to race) as marriage is a fundamental right. C. 1969 The Stonewall riots transform the gay rights movement from one limited to a small number of activists into a widespread protest for equal rights and acceptance. Patrons of a gay bar in New York's Greenwich Village, the Stonewall Inn, fight back during a police raid on June 27, sparking three days of riots. IV. 1970s V. 1980s A. 1975 Boulder, Colorado issued six same-sex marriage licenses, before they were halted. One of those married couples, Richard Adams and Tony Sullivan, were the first couple to ask the U.S. Government to recognize their same-sex marriage as Tony is an Australian citizen. Their petition was denied, and Tony is still fighting to stay in the United States legally as a now surviving spouse of a U.S. citizen. B. 1979 About 75,000 people participated in the National March on Washington for Lesbian and Gay Rights in Washington, D.C., in October. A. 1980 At the 1980 Democratic National Convention held at New York City's Madison Square Garden, Democrats took a stance supporting gay 5

rights, adding the following to their plank: "All groups must be protected from discrimination based on race, color, religion, national origin, language, age, sex or sexual orientation." B. 1982 Wisconsin becomes the first state to outlaw discrimination on the basis of sexual orientation. C. 1984 The city of Berkeley, California, becomes the first city to offer its employees domestic-partnership benefits. VI. 1990s A. 1993 The "Don't Ask, Don't Tell" policy is instituted for the U.S. military, permitting gays to serve in the military but banning homosexual activity. B. 1996 In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court strikes down Colorado's Amendment 2, which denied gays and lesbians protections against discrimination, calling them "special rights." According to Justice Anthony Kennedy, "We find nothing special in the protections Amendment 2 withholds. These protections... constitute ordinary civil life in a free society." VII. 2000s A. 2000 Vermont becomes the first state in the country to legally recognize civil unions between gay or lesbian couples. The law states that these "couples would be entitled to the same benefits, privileges, and responsibilities as spouses." B. 2003 The Court ruled in Lawrence v. Texas, 539 U.S. 558 (2003), that the private consensual acts in one's bedroom could not be criminalized (in relation to a sodomy law). C. 2004 Kentucky passed an amendment that limited marriage to a man and a woman. On May 17, same-sex marriages become legal in Massachusetts. D. 2005 Civil unions become legal in Connecticut in October. E. 2006 Civil unions become legal in New Jersey in December. F. 2007 In November, the House of Representatives approves a bill ensuring equal rights in the workplace for gay men, lesbians, and bisexuals. G. 2008 1. In February, a New York State appeals court unanimously votes that valid same-sex marriages performed in other states must be 6

H. 2009 recognized by employers in New York, granting same-sex couples the same rights as other couples. 2. In February, the state of Oregon passes a law that allows samesex couples to register as domestic partners allowing them some spousal rights of married couples. 3. On May 15, the California Supreme Court rules that same-sex couples have a constitutional right to marry. By November 3rd, more than 18,000 same-sex couples have married. On November 4, California voters approved a ban on same-sex marriage called Proposition 8. The Attorney General of California, Jerry Brown, asked the state's Supreme Court to review the constitutionality of Proposition 8. The ban throws into question the validity of the more than 18,000 marriages already performed, but Attorney General Brown reiterated in a news release that he believed the same-sex marriages performed in California before November 4 should remain valid, and the California Supreme Court, which upheld the ban in May 2009, agreed, allowing those couples married under the old law to remain that way. 4. On October 10, the Supreme Court of Connecticut rules that same-sex couples have the right to marry. This makes Connecticut the second state, after Massachusetts, to legalize civil marriage for same-sex couples. The court rules that the state cannot deny gay and lesbian couples the freedom to marry under Connecticut's constitution, and that the state's civil union law does not provide same-sex couples with the same rights as heterosexual couples. 5. November 4, voters in California, Arizona, and Florida approved the passage of measures that ban same-sex marriage. Arkansas passed a measure intended to bar gay men and lesbians from adopting children. 6. On November 12, same-sex marriages begin to be officially performed in Connecticut. 1. On April 3, the Iowa Supreme Court unanimously rejects the state law banning same-sex marriage. Twenty-one days later, county recorders are required to issue marriage licenses to same-sex couples. 2. On April 7, the Vermont Legislature votes to override Governor Jim Douglas's veto of a bill allowing gays and lesbians to marry, legalizing same-sex marriage. It is the first state to legalize gay marriage through the legislature; the courts of the other states in which the marriage is legal Massachusetts, Connecticut, and Iowa gave approval. 7

3. On May 6, the governor of Maine legalized same-sex marriage in that state in Maine; however, citizens voted to overturn that law when they went to the polls in November, and Maine became the thirty-first state to ban the practice. 4. On June 3, New Hampshire Governor John Lynch signs legislation allowing same-sex marriage. The law stipulates that religious organizations and their employees will not be required to participate in the ceremonies. New Hampshire is the sixth state in the nation to allow same-sex marriage. VIII. 2010 5. On June 17, President Obama signs a referendum allowing the same-sex partners of federal employees to receive benefits. They will not be allowed full health coverage, however. This is Obama's first major initiative in his campaign promise to improve gay rights. IX. 2011 X. 2012 A. March 3, Congress approves a law signed in December 2009 that legalizes same-sex marriage in the District of Columbia. B. August 4, Chief U.S. District Judge Vaughn Walker rules that Proposition 8, the 2008 referendum that banned same-sex marriage in California, violates the Fourteenth Amendment's Equal Protection Clause. "Proposition 8 singles out gays and lesbians and legitimates their unequal treatment," Vaughn writes. "Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents." (Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010)). C. December 18, the U.S. Senate votes sixty-five to thirty-one in favor of repealing "Don't Ask, Don't Tell," the Clinton-era military policy that forbids openly gay men and women from serving in the military. Eight Republicans side with the Democrats to strike down the ban. The ban will not be lifted officially until President Obama, Defense Secretary Robert Gates, and Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, agree that the military is ready to enact the change and that it won't affect military readiness. On Dec. 18, President Obama officially repeals the "Don't Ask, Don't Tell" military policy. June 24, New York passes a law to allow same-sex marriage. New York is now the largest state that allows gay and lesbian couples to marry. A. February 7, the Ninth Circuit Court of Appeals in California rules two to one (Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)) that Proposition 8, the 2008 referendum that banned same-sex marriage in the state, is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment. In the ruling, the court says, the law "operates 8

XI. 2013 XII. 2014 with no apparent purpose but to impose on gays and lesbians, through the public law, a majority's private disapproval of them and their relationships." B. February 13, Washington becomes the seventh state to legalize gay marriage. C. March 1, Maryland passes legislation to legalize gay marriage, becoming the eighth state to do so. D. May 9, President Barack Obama endorses same-sex marriage. A. June 26, 2013, the U.S. Supreme Court ruled that part of the Defense of Marriage Act (DOMA) was unconstitutional in that it restricts marriage to one man and one woman. (United States v. Windsor, 133 S.Ct. 2675 (2013)). Shortly thereafter, lawsuits started being filed across the country to allow and/or recognize same same-sex marriage. B. July 26, 2013, the first case, Bourke v. Beshear, 996 F.Supp.2d 542 (W.D. Ky. 2013), was filed in Kentucky asking to recognize four marriages for same-sex couples which had been performed in other states or countries. A. On February 12, 2014, Judge Heyburn ruled that Kentucky has to recognize marriages that were performed in other jurisdictions for samesex couples. (Bourke vs. Beshear, 996 F.Supp.2d 542 (W.D. Ky. 2013)). B. On February 14, 2014, Love v. Beshear, 989 F.Supp.2d 536 (W.D. Ky. 2014), was filed in order to allow same-sex couples in Kentucky to be married. Judge Heyburn also ruled to allow same-sex marriages to be performed in Kentucky. Both the Bourke and Love cases were appealed to the Sixth Circuit, which hears cases from Kentucky, Ohio, Michigan and Tennessee. The cases were heard on August 6, 2014. C. October 6, 2014, the U.S. Supreme Court declines to hear appeals of rulings in Indiana, Oklahoma, Utah, Virginia, and Wisconsin that allowed same-sex marriage. The move paves the way for same-sex marriages in the five states. In fact, Virginia announced that unions would begin that day. 9

XIII. 2015 D. On November 6, 2014, the Sixth Circuit overturned Judge Heyburn's rulings and those of the other three states in the Sixth Circuit, Michigan, Ohio and Tennessee. (DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)). A. January 16, the Supreme Court decided to hear the four cases from the Sixth Circuit, before the end of April, which means there should be a decision in June 2015. B. As of April 7, 2015, thirty-seven states and D.C. allow same-sex marriages. C. On April 28, 2015, the Supreme Court will hear the cases from the Sixth Circuit, with a ruling expected in June 2015. 10

CASE SUMMARIES Laurel B. Hostetter I. BOURKE V. BESHEAR, 996 F.SUPP.2D 542 (W.D. KY. 2014) A. The Complaint On July 26, 2013, Dawn Elliott and Shannon Fauver, serving as counsel for the plaintiffs (Gregory Bourke and Michael Deleon), filed a complaint with the United States District Court in the Western District of Kentucky, challenging the constitutionality of Kentucky's laws excluding same-sex couples from marriage and voiding within the Commonwealth of Kentucky marriages of same-sex couples entered in other states or countries. Plaintiffs Gregory Bourke and Michael Deleon married in Ontario, Canada in 2004. The couple has two children, both of whom were adopted by Michael. They could not legally be adopted by both parents as their marriage was not recognized by the Commonwealth. The complaint states, "by preventing same-sex couples from marrying and refusing to recognize their marriages from other states, the Commonwealth's law deprives them of numerous legal protections that are available to opposite-sex couples in Kentucky by virtue of their marriages." These protections include those surrounding inheritance tax, financial support, and eligibility for numerous federal protections afforded other married couples, including in the areas of immigration and citizenship, taxes, and social security. Specifically, Plaintiffs were seeking: a) a declaration that the Commonwealth's prohibition of marriage for same-sex couples and its refusal to recognize marriages of samesex couples validly entered into outside of the Commonwealth violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and, b) a permanent injunction i) preventing Defendants from denying the Plaintiff couple and all other same-sex couples otherwise eligible to marry, the right to marry in the Commonwealth of Kentucky; and ii) directing Defendants to recognize the marriages of the Plaintiff couple and other same-sex couples validly entered into outside of Kentucky. B. Order from Judge John G. Heyburn, United States District Court, Western District of Louisville On February 11, 2014, Judge Heyburn ordered that to the extent that KRS 402.005,.020,.040, and.045 and Section 233A of the Kentucky 11

Constitution denied validly married same-sex couples equal recognition and benefits under Kentucky and federal law, they violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. C. Motion to Intervene On February 14, 2014, Timothy Love and Lawrence Ysunza, along with Maurice Blanchard and Dominique James, moved the court (United States District Court, Western District of Kentucky) to intervene as coplaintiffs in the Bourke v. Beshear action "on the basis that their claim shares with the main action a common question of law or fact." On February 26, 2014, Judge Heyburn ruled that the couples were allowed to join the Bourke suit. II. DEBOER V. SNYDER, 772 F.3D 388 (6TH CIR. 2014) Bourke v. Beshear, along with Tanco v. Haslam, 7 F.Supp.3d 759 (M.D. Tenn. 2014), and Obergefell v. Hodges, 962 F.Supp.2d 968 (S.D. Ohio 2013), were merged into DeBoer v. Snyder (originally DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D. Mich. 2014)), for review by the Sixth Circuit, United States Court of Appeals. On November 6, 2014, the Sixth Circuit ruled 2-1 that Michigan's ban on samesex marriage did not violate the Constitution. The court claimed it was bound by Baker v. Nelson, 409 U.S. 810 (1972), in which Minnesota refused to issue a marriage license to a same-sex couple. The United States Supreme Court denied review "for want of a substantial federal question." The court further held: In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way. DeBoer v. Snyder, 772 F.3d 388, 421 (6th Cir. 2014) In Judge Martha Daughtrey's dissent, she rejects the majority's "reverence for 'proceeding with caution.'" She further states that: Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary 12

position to create the circuit split regarding the legality of samesex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. DeBoer v. Snyder, 772 F.3d 388, 430 (6th Cir. 2014) (Daughtrey, J., dissenting). III. BOURKE V. BESHEAR, CERT. GRANTED, 135 S.CT. 1041 (JAN. 16, 2015) In their brief for a writ of certiorari from the United States Supreme Court, filed on November 18, 2014, attorneys for the petitioners, now condensed to Gregory Bourke, et al., and Timothy Love, et al. ask for an appeal of the ruling in DeBoer v. Snyder, 772 F.3d 388 (6th. Cir. 2014). Petitioners believe there are two questions presented by this case: 1. Does the Fourteenth Amendment require a state to license a marriage of two people of the same sex?; and 2. Does the Fourteenth Amendment require a state to recognize a marriage of two people of the same sex when their marriage was lawfully licensed and performed out-of-state? Petitioners "ask merely to be treated like everyone else that is, free to enter into society's most revered form of mutual association and support, and worthy of the stature and crucial protections that marriage affords." Petitioners further argue that the same-sex marriage ban: impinges upon the liberty of same-sex couples to participate in one of the most vital relationships in life, codifies inequality for petitioners and their children, discriminates on the basis of sexual orientation, and discriminates on the basis of sex. The same-sex marriage ban, according to petitioners, is also not supported by any legitimate state interest. For all the foregoing reasons, the petitioners ask that the judgment of the court of appeals be reversed. Oral arguments were held April 28, 2015. 13

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