I N S I D E T H E M I N D S Understanding the Legal Issues Surrounding Same-Sex Marriage Leading Lawyers on Adapting to Recent Supreme Court Decisions Impacting Family Law
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The Evolution of Law Surrounding Same-Sex Marriage in the United States Jennifer Lazor Partner Riker Danzig Scherer Hyland & Perretti LLP
By Jennifer Lazor Introduction This chapter will focus on the evolution of law addressing same-sex marriage with particular emphasis on the recent Supreme Court decisions. The chapter further underscores developing areas of law related to samesex relationships. State vs. Federal Law In appropriate proximity to the July 4 th holiday, the debate around same-sex marriage unfolded in the storied context of state sovereignty versus the reach of the federal government into the private lives of its citizens. This typically American tug-of-war has been the backstory for many of our nation s foundational legal debates including slavery, abortion, and now, same-sex marriage. More specifically, on June 26, 2013, two Supreme Court decisions offered, if not an all-encompassing resolution of the same-sex marriage issue in the United States, a very clear indicator of what is to come. Those decisions are: U.S. v. Windsor 1 and Hollingsworth v. Perry. 2 An overview of the relevant law leading up to those decisions illustrates the interplay between federal and state governments over the issue of same-sex marriage. The autonomy of individual states to regulate marriage and domestic relations occurring within their borders was unchallenged even by our founding fathers in adopting the Constitution. 3 Over the years, this autonomy has been tempered with the need to protect the constitutional rights of citizens, such as with interracial marriage in Loving v. Virginia. 4 In 1996, Congress enacted the since-controverted Defense of Marriage Act 1 U.S. V. Windsor, 133 S. Ct. 2675 (2013) (involving a same-sex marriage recognized in New York but not by the IRS for purposes of an estate tax exemption). 2 Hollingsworth v. Perry, 130 S. Ct. 705 (2013) (involving a constitutional challenge to California s Proposition 8 legislation, which banned same-sex marriage in that state). 3 Haddock v. Haddock, 201 U.S. 562, 575 (1906) (noting that the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce. ); see also In re Burrus, 136 U.S. 586, 593-594 (1890) ( The whole subject of domestic relations of husband and wife, parent and child, belongs to the law of the States and not the laws of the United States. ) Both of these precedents were cited in the majority opinion to U.S. v. Windsor, 133 S. Ct. 2675. 4 Loving v. Virginia, 388 U.S. 1 (1967).
The Evolution of Law Surrounding Same-Sex Marriage in the United States (DOMA). 5 In relevant part, DOMA essentially does two things. In Section 2 it recognizes the individual rights of the states to regulate same-sex marriages (it does so by asserting essentially that no state shall be forced to recognize such a marriage). In Section 3, DOMA declares that for purposes of federal legislation a marriage shall be defined exclusively as a legal union between one man and one woman. Accordingly, the scenario that began to emerge as certain states accepted same-sex marriage was one where the same-sex marriage was recognized for state law purposes but not federal. This was the issue central to U.S. v. Windsor, wherein the IRS s refusal to apply a federal inheritance tax exemption to a same-sex spouse in a marriage recognized by the state of New York resulted in a $363,053 tax liability for the surviving spouse. U.S. v. Windsor Prior to the recent Supreme Court decisions, twelve states and Washington, DC recognized same-sex marriages. Those twelve states are: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, Washington, Maine, Maryland, Delaware, Minnesota, Rhode Island, and New York. Although afforded the same rights as opposite-sex married couples for state purposes, parties to a same-sex marriage were not treated as married under federal law. As emphasized at several junctures within the majority opinion of US v. Windsor, this exclusion had far-reaching impact into over 1,000 areas of federal law. It meant that same-sex couples were treated differently than married heterosexuals in areas of the law, including but not limited to: tax, trusts and estates, immigration law, employee benefits, social security benefits including Medicare and Medicaid allocations, property law, and even federally funded education loans and grants. It bears mention as well that at present, six states recognize some form of domestic partnership and/or civil union status for same-sex couples: Colorado, Hawaii, Illinois, New Jersey, Nevada, and Oregon. 6 In these states, domestic partnerships and civil unions generally are marriage-like statuses conveyed to same-sex couples. Typically, participating states 5 28 U.S.C. 1738c (West). 6 National Congress of State Legislatures, Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws (Jun. 26, 2013); http://www.ncsl.org/issues-research/ human-services/same-sex-marriage-overview.aspx.
By Jennifer Lazor convey with this status certain or all of the same rights afforded to married couples (short of actually permitting marriage) as permitted within the state. However, the recognition extended to parties of a civil union or domestic partnership for purposes of state law did not (and does not today) carry over into federal law. As a practical matter, for the family law practitioners, this dichotomous treatment of same-sex couples for state versus federal purposes presents a thorny divide. Agreements and orders obtained on behalf of clients on the state level may have completely different and even unintended ramifications on the federal level. In addition, if a same-sex couple relocated to a different state that did not recognize same-sex marriage, domestic partnerships or civil unions, still another set of ramifications could await the couple. Given these variables, the practice of family law involving same-sex couples becomes a multi-disciplinary exercise (with the attendant financial toll of multifaceted legal representation). It is against this backdrop that the Windsor and Hollingsworth decisions came down. In U.S. v. Windsor, the Supreme Court found that application of DOMA to preclude the inheritance tax exemption was unconstitutional. In fact, the high court invalidated DOMA as for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. 7 However, the issue that the Court did not address was whether states could still ban marriage based on a same-sex relationship. In other words, even after U.S. v. Windsor, there remains the issue of whether it is constitutional for a state to enact law that prevents people of the same sex from being married. Accordingly, we appear to have now entered a phase in the evolution of law addressing same-sex marriage where residents of Washington, DC, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, Washington, Maine, Maryland, Delaware, Minnesota, Rhode Island, and New York (and now, as discussed below, California), who have entered into same-sex marriage, are afforded equal recognition as married under both state and federal law. However, what about the same-sex couples in the remaining states where same-sex marriage is not permitted under the law of that state? 7 See, supra n. 1.
The Evolution of Law Surrounding Same-Sex Marriage in the United States Hollingsworth v. Perry The ability of states to continue to exclude same-sex marriages was the subject of Hollingsworth v. Perry, which addressed constitutional challenges to California s Proposition 8, a law that excluded same-sex marriages. However, due to the facts and circumstances of the Hollingsworth matter, the ultimate constitutionality of a state law barring same-sex marriages was not decided. In barest terms the facts are as follows: The California State Supreme Court had determined Proposition 8 to be unconstitutional and the California legislature opted not to challenge that determination. The petitioner in the US Supreme Court case was the contingent of individuals who supported Proposition 8 and were the legislation s initial proponents. The Supreme Court determined that they did not have standing to challenge the California Supreme Court s and legislature s positions regarding the invalidation of Proposition 8. Accordingly, to date there is no restriction on the authority of individual states to enact or maintain laws that preclude same-sex marriages. Therefore, residents of the other states where same-sex marriages are not recognized still linger in the same statebut-not-federally-recognized status addressed above. Thus the charge of family law practitioners and other advocates is to ensure that their clients receive proper advice on the ramifications of their agreements and court orders, not only from a state perspective, but also from the often disparate perspective of federal law. It is foreseeable too that over the upcoming years, state and federal courts will continue to entertain lawsuits challenging the ultimate constitutionality of state prohibitions on same-sex marriages. Strategies for Successfully Representing Same-Sex Couples Assuming that right of same-sex couples to be deemed married throughout every state and by extension of the Windsor decision, federally, then the focus becomes: What does that marriage look like? It flows logically in many respects that upon marriage the identity of the couple evolves to include identification as a more extensive family, inclusive of children. For biological reasons alone, the issue of bringing children into a same-sex marriage is not the generally straightforward rite of passage enjoyed by heterosexual couples. As a result of these circumstances, there may be an increasing reliance on surrogacy and artificial insemination for same-sex couples to have children.
By Jennifer Lazor There are two types of surrogate relationships. In the traditional sense, surrogacy involves the fertilization of a female surrogate s own egg through artificial insemination using the sperm of a male donor. Accordingly, the surrogate bears a biological relationship to the child, as does the donor. The other type of surrogacy is gestational. There, a fertilized ovum is implanted into a carrier. The ovum is not that of the carrier so that the carrier has no biological relationship to the child. Gestational carriers, therefore, are actually a subset of surrogates. Although individuals may debate the appropriateness of these alternative methods of reproduction, such methods do appear to be on the rise. One study cites to 260 surrogate births in the United States in 2006, compared to an estimated 1,000 in 2009. 8 Some sources dismiss that rate of increase as conservative because it does not include all clinics, private surrogacy agreements made outside of an agency/clinic, or couples who do not provide their own egg, such as with gay male couples. 9 The challenge to family law practitioners in handling matters involving same-sex couples availing themselves to alternative means of reproduction is evident in the varying scenarios presented in such arrangements: Does the state even recognize the surrogacy relationship and resulting contract as legal? There is no uniformity on this issue among the states. For example, New Jersey permits surrogacy contracts but limits the compensation permitted to surrogates essentially to direct reimbursement of pregnancy and legal expenses. Furthermore, in New Jersey although surrogacy contracts are permitted within this context, New Jersey courts have not required strict performance of the contracts when a contest arises. This was most evident in the so-called Baby M case where a surrogate was given certain visitation rights to the child born of the surrogacy relationship. 10 Other states do not even permit surrogacy contracts whereas still other states not only recognize such contracts but also permit compensation to the surrogate above reimbursement costs. 8 Lorraine Ali & Raina Kelly, The Curious Lives of Surrogates, NEWSWEEK, Apr. 7, 2008, at 44-51. 9 Id. 10 Matter of Baby M, 537 A.2d. 1227 (1988).
The Evolution of Law Surrounding Same-Sex Marriage in the United States Is there going to be a biological relationship between one of the members of the couple to the child, whether as the surrogate or sperm donor? If so, what are the custodial rights to the child of the member of the couple without a biological relationship to the child? This question can (and should) be asked from perspectives that assume the couple remains intact and assume the relationship does not endure. Is it necessary for the couple to adopt a child born of alternative reproduction methods even if there is a biological relationship on the part of one member? If so, does the state in which the couple resides permit same-sex couples to adopt? Different states treat these issues differently. Moreover, these questions are really just threshold inquiries into deeper areas of investigation. Perhaps the next frontier beyond forming a same-sex marriage will be striving toward nationwide uniformity in establishing the manner in which same-sex couples will build a family. Conclusion Perhaps the best advice for lawyers in dealing with these complicated issues is simply to pay attention to the world around you and ask for help when you need it. In such an ever-changing arena, representing same-sex couples entails a dedication to keeping abreast of new developments in the law. Also, given the tax, estate, and other legal implications these couples face due to the continuing lack of parity between state and federal law, there has to be communication between attorneys in different areas of the law to ensure the client is well protected. Key Takeaways Stay updated on all developments in the issue of states and the federal government recognizing or not recognizing same-sex marriages. After the decision in Hollingsworth v. Perry, the constitutionality of state law barring same-sex marriages has not been overturned. At this point, there is no restriction on the authority of individual states to enact or maintain laws that
By Jennifer Lazor preclude same-sex marriages. This puts same-sex marriages in uncertain legal territory, and increases the responsibility of family law practitioners to make sure their clients are educated and advised on the ramifications of their agreements and court orders. They cannot concentrate on just the state perspective, but also the conflicting and disparate federal perspective. Beware of the federal implications to same-sex couples in areas including: tax, trusts and estates, immigration law, employee benefits, social security benefits including Medicare and Medicaid allocations, property law, and even federally funded education loans and grants. In states that do not recognize same-sex marriages there may be inconsistencies on how your client will be treated within the state and federally. Also, given the newness of the recent Supreme Court decisions, the task of affording uniformity to federal laws for samesex couples even within states that recognize same-sex marriage is still a work-in-progress. Therefore, attorneys must employ diligence in ensuring their client receives the protection of the law to which the client is now entitled. Prepare your clients considering surrogacy to face the possible challenges and scenarios. Establish threshold information such as: Is the surrogacy relationship and contract legal in your state? Will a biological relationship exist between one of the parents and the child, either as surrogate or sperm donor? What custodial rights does the parent without a biological relationship have to the child? What difficulties need to be prepared for if the couple separates? Will adoption be necessary even if one parent has a biological relationship to the child born of surrogacy? Does your state permit same-sex couples to adopt? Pay attention to developments in this practice area and do not be afraid to ask for help. Remember that issues relating to same-sex couples are constantly changing and it is incumbent on lawyers in this area to stay educated and aware of the latest cases and decisions. Keep communication with other lawyers in this area a top priority.
The Evolution of Law Surrounding Same-Sex Marriage in the United States Jennifer Lazor is a partner in Riker Danzig Scherer Hyland & Perretti LLP s Family Law Group. Prior to joining the firm, she clerked for the Honorable Edward J. Ryan, Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County. Following her clerkship, Ms. Lazor has devoted her practice exclusively to family law, including extensive experience in divorce/dissolution matters; family law appeals; custody and parenting time disputes; domestic violence matters; marital, premarital, separation, and cohabitation agreements; and other family law-related matters. Ms. Lazor is certified by the Supreme Court of New Jersey as a matrimonial law attorney, and is a qualified family law mediator pursuant to R. 1:40. She has been a member of the New Jersey Supreme Court Family Practice Committee since 2009, and she serves that committee further as co-chair of the Non-Dissolution/Domestic Violence Subcommittee. Ms. Lazor also serves as a member of the New Jersey Supreme Court District XA Ethics Committee. She is an associate managing editor of the New Jersey Family Lawyer, a publication of the New Jersey State Bar Association, of which Ms. Lazor is also a member. She also sits as an early settlement panelist in Morris, Essex and Hudson Counties, which is an in-court mediation program for family law matters. Ms. Lazor formerly was a co-director of Women's Leadership Subcommittee for the New Jersey Women Lawyers Association (2010-2011). Ms. Lazor graduated from Lafayette College with a BA in history with honors and obtained her JD from Rutgers School of Law Newark.
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