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LGBT groups respond to police shooting

Ferguson, Missouri, gay news, Washington Blade

Ferguson, Mo. (Photo by Paul Sableman; courtesy Creative Commons)

FERGUSON, Mo. — A group of LGBT advocacy organizations on Aug. 12 expressed their support for the family of a black Missouri teenager who was fatally shot by a white police officer.

The National Black Justice Coalition, the National Gay and Lesbian Task Force, the American Civil Liberties Union and the National Center for Transgender Equality are among the groups that signed onto the letter in response to Michael Brown’s death in a predominantly black St. Louis suburb on Aug. 8.

“The lesbian, gay, bisexual and transgender (LGBT) community cannot be silent at this moment, because LGBT people come from all races, creeds, faiths and backgrounds and because all movements of equality are deeply connected,” the letter reads. “We are all part of the fabric of this nation and the promise of liberty and justice for all is yet to be fulfilled.”

Reports indicate Brown was unarmed when an officer with the Ferguson Police Department fatally shot him.

The shooting has sparked widespread protests in the city.

Local authorities have arrested dozens of people in connection with setting stores on fire, vandalism and even assaulting reporters as the Associated Press reported.

The AP reported the officer, whose identity has not been released, has been placed on paid administrative leave.

The FBI and the St. Louis County Police Department continue to investigate the incident.

“The LGBT community stands with the family of Michael Brown, who was gunned down in Ferguson, Missouri,” reads the statement from the LGBT advocacy groups. “We stand with the mothers and fathers of young black men and women who fear for the safety of their children each time they leave their homes.”

13
Aug
2014

Virginia same-sex marriage lawsuit certified as class action

Victoria Kidd, Christy Berghoff, Winchester, Virginia, ACLU, same-sex marriage, gay marriage, marriage equality, gay news, Washington Blade

Victoria Kidd and Christy Berghoff of Winchester, Va. (Photo courtesy of the ACLU)

A federal judge on Friday certified a lawsuit that two lesbian couples from the Shenandoah Valley filed against Virginia’s same-sex marriage ban as a class action.

Judge Michael F. Urbanski of the U.S. District Court for the Western District of Virginia in Harrisonburg ruled any same-sex couple in the commonwealth who is not married or legally exchanged vows in another jurisdiction can join the women’s lawsuit.

The American Civil Liberties Union, Lambda Legal and the ACLU of Virginia last August challenged the state’s constitutional amendment that defines marriage as between a man and a woman on behalf of Christy Berghoff and Victoria Kidd of Winchester and Joanne Harris and Jessica Duff in Staunton.

Berghoff and Kidd, who have been together for more than nine years and are raising their young daughter, married in D.C. in 2011. Harris and Duff, who have also been together for nearly a decade and are raising a 4-year-old son, tried to apply for a marriage license in Staunton Circuit Court last July.

“It’s about protecting our family,” said Kidd during a meeting she and other LGBT Virginians attended with state Sen. Jill Holtzman Vogel (R-Fauquier County)’s staffers in Richmond on Jan. 28 that coincided with Equality Virginia’s annual lobby day. “Right now we are separated from so many protections that are enjoyed by other families and we fundamentally don’t feel that the state should be defining family for us.”

Oral arguments in a second lawsuit that two same-sex couples – Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Richmond – filed against the commonwealth’s marriage amendment last year will take place in the U.S. District Court for the Eastern District of Virginia in Norfolk on Tuesday.

Urbanski excluded the plaintiffs in the Bostic case from the class action lawsuit.

“We want to be clear that we’re fighting for families across the state,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. “This marriage ban affects families in a number of different ways by denying them the many protections that come with marriage. It’s important that our case address the many ways that families are hurt by our discriminatory laws.”

Attorney General Mark Herring last week announced he will not defend the marriage amendment that Virginia voters in 2006 approved by a 57-43 percent margin.

A Virginia House of Delegates committee on Jan. 24 approved a bill state Dels. Bob Marshall (R-Prince William County) and Todd Gilbert (R-Shenandoah County) introduced that would allow any state lawmaker to defend a law if the governor and attorney general decline to do so. Pat Mullins, chair of the Republican Party of Virginia, is among those who have said Herring should resign if he refuses to defend the state’s gay nuptials ban.

Gov. Terry McAuliffe on Jan. 27 said he would not appoint a special counsel to defend the marriage amendment after Marshall and 29 other state lawmakers asked him to do so.

Herring’s spokesperson, Michael Kelly, referred the Washington Blade to the attorney general’s previous comments on the state’s same-sex marriage ban when asked about Urbanski’s order.

“This is a key issue that the [U.S.] Supreme Court is going to have to decide,” Herring told the Blade during a Jan. 23 interview. “If the facts were presented to the Supreme Court, they would strike it down. And it’s important that Virginia be on the right side of history and on the right side of the law.”

01
Feb
2014

Ted Olson: Va. gay marriage ban ‘flatly unconstitutional’

David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

Ted Olson and David Boies (Washington Blade photo by Michael Key)

Former U.S. Solicitor General Ted Olson on Friday described Virginia’s same-sex marriage ban as “blatant discrimination” that is “unjustified, un-American and flatly unconstitutional.”

“The unmistakable purpose and effect of Virginia’s marriage prohibition is to stigmatize gay men and lesbians – and them alone – and enshrine in Virginia’s constitution and statutory code that they are ‘unequal to everyone else,’” he said in a brief filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., that urges it to uphold a federal judge’s ruling that struck down the commonwealth’s gay nuptials ban.

Olson said the commonwealth’s marriage amendment “actually harms children” because it prevents gay men and lesbians from tying the knot. Three of the four leading plaintiff couples who are challenging the state’s same-sex marriage ban – Mary Townley and Carol Schall of Chesterfield, Joanne Harris and Jessica Duff of Staunton and Victoria Kidd and Christy Berghoff of Winchester – are raising children.

Timothy Bostic and Tony London of Norfolk, who filed a lawsuit against the state’s gay nuptials ban last July, have been together for 25 years.

“If the commonwealth’s interest truly were ensuring that children received the benefits of parents’ remaining together to rear the children they conceive, that professed objective would be advanced only by allowing same-sex couples to marry,” says Olson.

Olson also notes in the brief filed on behalf of Townley and Schall and Bostic and London that Virginia’s interracial marriage ban dated back to the colonial period. The aforementioned prohibition remained in place until 1967 when the U.S. Supreme Court struck it down in its landmark Loving v. Virginia decision.

“The history of Virginia’s marriage prohibition demonstrates that the laws were intended to oppress,” says Olson. “They were designed to exclude gay men and lesbians from marriage in Virginia on the baseless supposition that gay men and lesbians were launching an ‘attack’ on traditional families that would ‘weaken’ the institution of marriage.”

Olson filed his brief in the Bostic case on the same day Virginia Attorney General Mark Herring defended U.S. District Judge Arenda L. Wright Allen’s February ruling that struck down the commonwealth’s same-sex marriage ban.

Herring announced shortly after he took office in January he will not defend the marriage amendment that voters in 2006 approved by a 57-43 percent margin. Norfolk Circuit Court Clerk George Schaefer, III, and Prince William County Circuit Court Clerk Michèle McQuigg defended the gay nuptials ban in briefs their lawyers filed with the 4th Circuit on March 28.

“The clerks’ narrow vision of marriage and expansive vision of state power to intrude on personal freedoms demean the institution of marriage and the dignity of gay people as free and equal human beings,” wrote Luke C. Platzer of Jenner and Block LLP, a D.C. law firm, in a brief he filed with the 4th Circuit on Friday on behalf of Harris and Duff and Kidd and Berghoff.

The American Civil Liberties Union and Lambda Legal last August filed a lawsuit against the state’s marriage amendment on behalf of the women.

U.S. District Judge Michael F. Urbanski in January certified the ACLU and Lambda Legal lawsuit as a class action. The 4th Circuit last month allowed the groups to intervene in the Bostic case.

Lawyer: Defendants’ claims are ‘bizarre’

Platzer dismissed claims the marriage amendment is necessary for the procreation of children.

“The clerks’ assertion that allowing same-sex couples to marry would sever the association between marriage and raising children is bizarre,” he says.

OurServe-SLDN and the American Military Partner Association and a group of constitutional law scholars that include Deborah Hellman and John C. Jeffries, Jr., of the University of Virginia School of Law on Friday filed amicus briefs with the 4th Circuit.

“Gay and lesbian individuals have limited ability to protect themselves through the political process against continued public and private discrimination,” writes Lori Alvino McGill of the D.C. law firm Latham and Watkins LLP on behalf of the scholars, referring to the defendants in the Bostic case who argue gays and lesbians have gained political influence in recent years. “The barriers to gay and lesbian persons achieving equal respect, equal dignity, and equal rights through the political process remain daunting, and private discrimination and hostility are still often both widespread and fierce.”

Neighboring Maryland is among the 18 states and D.C. that have extended marriage rights for same-sex couples.

Gays and lesbians in North Carolina, West Virginia, Pennsylvania, Florida, Alabama and other states have filed marriage lawsuits since the U.S. Supreme Court last June struck down a portion of the Defense of Marriage Act. A three-judge panel with the 10th U.S. Circuit Court of Appeals on Thursday heard oral arguments in an appeal of a federal judge’s ruling late last year that found Utah’s same-sex marriage ban unconstitutional.

The 4th Circuit is scheduled to hear oral arguments in the Bostic case on May 13.

12
Apr
2014

Supreme Court again petitioned to hear Va. marriage case

Tim Bostic, Tony London, Virginia, same-sex marriage, gay marriage, marriage equality, Equality Virginia Commonwealth Dinner, gay news, Washington Blade

On left, Timothy Bostic with partner Tony London (Washington Blade photo by Michael Key)

A Norfolk Circuit Court clerk who is a defendant in a lawsuit challenging Virginia’s same-sex marriage ban on Friday petitioned the U.S. Supreme Court to consider the case.

Lawyers for Norfolk Circuit Court Clerk George Schaefer filed a 231-page motion that notes, among other things, Virginia voters in 2006 approved a state constitutional amendment that defines marriage as between a man and a woman.

“Virginia’s citizens, like those of most states, have chosen to keep the man-woman definition,” reads the motion. “Virginia has always defined marriage this way.”

The filing comes two days after the U.S. Supreme Court declined to stay a ruling from the 4th U.S. Circuit Court of Appeals that would have allowed gays and lesbians to begin marrying in Virginia on Thursday.

Timothy Bostic and Tony London of Norfolk filed a lawsuit against the commonwealth’s same-sex marriage ban in July 2013 after Schaefer’s office refused to issue them a marriage license. Carol Schall and Mary Townley of Chesterfield joined the case last fall.

The American Civil Liberties Union and Lambda Legal last August filed a separate lawsuit against Virginia’s gay nuptials ban on behalf of two lesbian couples from the Shenandoah Valley that a federal judge earlier this year certified as a class action.

Virginia Attorney General Mark Herring in January announced he would not defend the commonwealth’s same-sex marriage ban. He has subsequently argued against its constitutionality before the two federal courts that have considered the case.

Herring earlier this month petitioned the justices to consider the case. Prince William County Court Clerk Michèle McQuigg, a second defendant in the lawsuit whom the anti-gay Alliance Defending Freedom represents, has announced she plans to do the same.

“This only reinforces what is now abundantly clear: the Supreme Court must decide this issue, and soon,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights, which represents Bostic and London and Schall and Townley, in a statement after Schaefer’s lawyers petitioned the justices to hear the lawsuit. “Every day that gay and lesbian Americans are denied the freedom to marry is one day too many.”

22
Aug
2014

Wisconsin latest state to face marriage lawsuit

Charvonne Kemp, Marie Carlson, American Civil Liberties Union, ACLU, gay news, Washington Blade, Wisconsin, gay marriage, same-sex marriage, marriage equality

Charvonne Kemp (left) and Marie Carlson filed a lawsuit in Wisconsin seeking marriage rights. (Photo courtesy of the American Civil Liberties Union)

Same-sex couples in Wisconsin joined others throughout the country on Monday in filing a lawsuit seeking same-sex marriage, but efforts there are unique because of the penalties for marrying in another jurisdiction.

The litigation seeks not only to overturn the state’s 2006 constitutional amendment barring same-sex marriage, but also to enjoin state official from enforcing a “marriage evasion law” prohibiting couples — gay and straight — from going elsewhere to marry if the marriage would be prohibited in the state.

The penalties of violating the marriage evasion law in Wisconsin, which is the only state to have such a statute, include up to $10,000 in fines and nine months in prison.

For Marie Carlson, one-half of one of the couples participating in the lawsuit, the marriage evasion law is of concern as she seeks recognition of her relationship with Charvonne Kemp.

“It’s illegal in the state Wisconsin to go another state and get married if you live here,” Carlson said. “I know that it’s not really all that enforced; it’s still something that hangs over your head.”

The marriage evasion law is particularly problematic for same-sex couples in Wisconsin because the Obama administration in most cases has elected to recognize same-sex marriages even if the state doesn’t recognize them — provided these couples are able to marry in a jurisdiction that allows it.

John Knight, a staff attorney with the American Civil Liberties Union’s LGBT project, called the marriage evasion law a “Catch-22″ for same-sex couples living in Wisconsin who want to marry.

“Wisconsin is unique in that sense, and so we think that argument particularly exemplifies the harm or the animus toward same-sex couples in some parts of the country,” Knight said.

But for Kemp, it’s not the fear of prosecution for marrying elsewhere that compels her to seek the right marry in Wisconsin, but the ability to wed in the state where she’s lived with her partner for seven years and raised two sons.

“We’re completely in love, and we’d like to be married in the state that we live in,” Kemp said. “We do have options where we could obviously leave the state and go to other states and get married, but we want to be legally recognized where we live.”

The lawsuit, Wolf and Schumacher v. Walker, was filed by the ACLU, the ACLU of Wisconsin and Mayer Brown LLP and is pending before the U.S. District Court for the Western District of Wisconsin.

Like other lawsuits filed throughout the country, the 29-page complaint filed by the groups in Wisconsin alleges the state’s ban on same-sex marriage violates equal protection and due process under the Fourteenth Amendment to the U.S. Constitution.

“Although Wisconsin and this country have taken some steps to reduce discrimination against lesbians and gays, Wisconsin’s ban on marriage for same-sex couples is a striking and continuing vestige of the long history of discrimination toward lesbians and gay men,” the complaint says.

The lawsuit was filed on behalf of four same-sex couples seeking to marry in Wisconsin. Along with Kemp and Carlson, who reside in Milwaukee, they are: Virginia Wolf and Carol Schumacher, who reside in Eau Claire, Wis.; Roy Badger and Garth Wangemann, who live in Milwaukee; and Judith “Judi” Trampf and Katharina “Katy” Heyning, who live in Madison.

Although Wisconsin offers same-sex couples the ability to join in a domestic partnership, enacted in the state in 2009, they don’t offer same the legal rights as marriages.

Carlson said the union isn’t enough because that union provides little assistance beyond certain health insurance benefits — and that’s only if the insurance company recognizes the partnership.

“It also goes along with the fact that last like year, Charvonne’s mother passed away, and we all had to go to New Jersey for a week,” Carlson said. “I had to use vacation time because…the company I work for didn’t recognize she was legally my partner, so I didn’t get bereavement to be able to go. So, I had to use a week of my vacation.”

The office of Wisconsin Gov. Scott Walker (R) didn’t immediately respond to the Washington Blade’s request to comment on the lawsuit.

Wisconsin Attorney General J.B. Van Hollen, however, pledged in a statement to the Blade that he would the defend the marriage amendment.

“This constitutional amendment was approved by a large majority of Wisconsin residents,” Van Hollen said. “I believe the amendment is constitutional, and I will vigorously defend it.”

The Wisconsin litigation is among 40 pending lawsuits in 22 states throughout the country seeking marriage rights for gay couples.

Amid expectations that one will soon reach the U.S. Supreme Court for a final ruling on marriage equality, Knight said it’s possible, but he wouldn’t bet on it.

“It’s one of the possibilities it might go to the Supreme Court, but the chance of that in light of all the other cases out there is probably fairly small,” Knight said. “But it could be.”

Nonetheless, if Walker continues to fight the lawsuit and a high court ruling doesn’t happen before the case is resolved, Kemp said she’s willing to take her case to the Supreme Court to fight for marriage rights across the country if necessary.

“I’m willing to go to the Supreme Court to fight for the right for everyone to be able to get married if that’s what they choose to do,” Kemp said. “It’s about marriage equality for all, not marriage equality for some, or for just us.”

For Kemp, the ability to marry in Wisconsin is not just about the legal rights that marriage would afford, but the dignity of having the access to the same union as other couples.

“However, I want to be married just like everyone else. I want it to be legal, not just for if one of us should get sick and having rights where we’re in the hospital with the other one, but also taxes, all the things that come with marriage, good and bad,” Kemp said.

03
Feb
2014

Groups support trans woman in lawsuit

gavel, law, court, gay news, Washington Blade

Several groups have asked the U.S. District Court for permission to file a “friend of the court” brief to support Finkle.

Last fall a lawsuit was filed against Howard County in federal court by Tomi B. Finkle, 59, a retired police sergeant, claiming discrimination based on her gender identity after she was rejected for a volunteer police mounted patrol position. According to the Baltimore Sun, six advocacy organizations have filed arguments in federal court on behalf of Finkle.

The American Civil Liberties Union, its Maryland chapter, the Free State Legal Project, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center have asked the U.S. District Court for permission to file a “friend of the court” brief to support Finkle.

The groups argue against the county’s motion to dismiss the suit stating case law supports Finkle’s claim of discrimination and she does not have to prove the county knew her transgender status, as county lawyers have argued. The county stated in court filings that Finkle cannot sue for job discrimination because a voluntary position is not employment.

Finkle expressed appreciation for the support of the groups but neither she nor her lawyer had requested it. No hearing date has been set in the case.

16
Apr
2014

Cruz introduces bill to limit fed’l recognition of marriage

government, Ted Cruz, Texas, Republican Party, United States Senate, Values Voters Summit, gay news, Washington Blade

Sen. Ted Cruz (R-Texas) has introduced the State Marriage Defense Act. (Washington Blade file photo by Lee Whitman)

Tea Party favorite Sen. Ted Cruz (R-Texas) introduced legislation on Thursday in the U.S. Senate to prohibit the federal government from recognizing same-sex marriages in states without marriage equality.

The Texas Republican said he introduced the bill, called the State Defense Marriage Act, in response to the Obama administration’s recognition of same-sex marriage in federal programs — even for gay couples living in non-marriage equality states — following the Supreme Court decision against the Defense of Marriage Act.

“I support traditional marriage,” Cruz said in a statement. “Under President Obama, the federal government has tried to re-define marriage, and to undermine the constitutional authority of each state to define marriage consistent with the values of its citizens. The Obama Administration should not be trying to force gay marriage on all 50 states.”

Known for his filibuster of health care reform legislation, Cruz is a freshman senator and hasn’t been in the Senate long enough to establish an anti-LGBT record while in Congress. However, he voted last year against an LGBT-inclusive version of the a bill to reauthorize the Violence Against Women Act.

Among the co-sponsors of the legislation is Sen. Mike Lee (R-Utah), another Tea Party favorite known for his opposition to same-sex marriage. Cruz and Lee are currently the only sponsors of the bill.

Lee is also chief sponsor of the Marriage and Religious Freedom Act, which would prohibit the federal government from discriminating against organizations that exercise “religious conscience” against same-sex marriage.

Cruz introduced the legislation on the heels of complaints from conservatives over U.S. Attorney General Eric Holder’s announcement that the Justice Department would recognize same-sex marriages in courtrooms and federal programs — even in jurisdictions without marriage equality.

Tony Perkins, president of the anti-gay Family Research Council, praised Cruz for introducing the legislation in the wake of policy developments along the lines of Holder’s announcement.

“The Department of Justice (DOJ) is the latest agency to announce a policy of recognizing same sex couples as ‘married’ – even if they live in a state that does not,” Perkins said. “These announcements not only contradict other agency guidance, but also undermine state laws on marriage, a result directly condemned by the Windsor Court’s ruling.”

Companion legislation already exists in the House, where a bill was introduced Rep. Randy Forbes (R-Texas). Counting Forbes, the legislation has 58 sponsors.

Ian Thompson, legislative representative of the American Civil Liberties Union, called the legislation an effort “to reincarnate DOMA under a new name.”

“The bill would force the federal government to disrespect the legal marriages of same-sex couples in (currently) more than half the country,” Thompson said. “Rather than wasting time trying to, once again, enshrine anti-gay discrimination in federal law, Congress should pass the Respect for Marriage Act to provide married same-sex couples with certainty that the federal government will recognize their marriages regardless of where in the country they live in or move to.”

13
Feb
2014

Second N.C. marriage lawsuit filed

wedding, marriage, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade, spousal benefits, marriage lawsuit

(Washington Blade file photo by Michael Key)

GREENSBORO, N.C. – The American Civil Liberties Union of North Carolina on April 9 filed a second same-sex marriage lawsuit in the Tar Heel State.

The group filed the lawsuit in federal court on behalf of three married same-sex couples who are seeking recognition of their marriages in North Carolina. They have asked the court to expedite the case because three of the six plaintiffs have serious medical conditions.

“Without the legal security that only marriage affords, these families are left vulnerable,” said Jennifer Rudinger, executive director of the ACLU of North Carolina. “If they could marry or have their marriages recognized in North Carolina, the law would protect their families in countless ways.”

The ACLU in 2012 filed a federal lawsuit against North Carolina’s second-parent adoption ban on behalf of six gay families. The group last year amended the case to directly challenge the state’s constitutional amendment that defines marriage as between a man and a woman.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., will hear oral arguments in a case that challenges Virginia’s same-sex marriage ban.

North Carolina, South Carolina and West Virginia also fall under the 4th Circuit’s jurisdiction.

16
Apr
2014

Months after court ruling, DOMA issues remain unresolved

Eric Holder, United States Justice Department, Barack Obama Administration, Lincoln Memorial, the 50th Anniversary of the March on Washington, civil rights, gay news, Washington Blade

U.S. Attorney General Eric Holder has pledged to extend federal benefits to married gay couples to the furthest extent possible under the law. (Washington Blade file photo by Michael Key)

Ever since the Supreme Court ruled against the Defense of Marriage Act last year, the Obama administration has been rolling out on a continual basis new federal benefits for married same-sex couples — but access to some benefits remains uncertain months after the decision.

While the administration has afforded a preponderance of the 1,138 federal benefits of marriage to same-sex couples, other benefits — including Social Security, veterans and family leave benefits — are still in limbo for those living in non-marriage equality states. For these benefits, federal policy looks to the place of residence, not the place of celebration, in determining whether a person is married.

The policy of the Obama administration has been to expand benefits to married same-sex couples to the furthest extend possible under the law following the court decision against DOMA. That position was formalized last week in a memo from U.S. Attorney General Eric Holder extending certain federal benefits under the purview of the Justice Department to married gay couples.

“It is the Department’s policy, to the extent federal law permits, to recognize lawful same-sex marriages as broadly as possible, and to recognize valid in the jurisdiction where the marriage was celebrated,” Holder writes.

Thus far, the administration has extended numerous benefits to married same-sex couples related to taxes, immigration, federal employee benefits, employer-provided pensions and, most recently, the ability to refuse to testify against a spouse in federal court — even if these couples live in non-marriage equality states. The Justice Department has also ceased enforcement of a provision in Title 38, which governs veterans benefits, that independently defines marriage in opposite-sex terms.

But things get dicier when it comes to other benefits where the law governing them looks to the state law where a couple resides, rather than the state law where the couple was married in determining whether a marriage is legitimate. Does the spirit of the Supreme Court ruling against DOMA mean that these portions of these laws should also not be enforced, or are they so far removed from the ruling they require a legislative fix?

One such issue is with Social Security benefits. Although the Social Security Administration is processing retirement and survivor benefits for same-sex couples living in marriage-equality states, for the time being, it’s placing applications on hold for married same-sex couples living in places that don’t their recognize their union.

Kia Anderson, a Social Security spokesperson, said work coordinated with the Justice Department is still underway to determine whether her agency can recognize these same-sex marriages for benefits purposes.

“We are working with the Department of Justice to develop and implement policy and processing instructions on this issue,” Anderson said. “However, we encourage people to apply right away for benefits, even if they aren’t sure they are eligible. Applying now will protect against the loss of any potential benefits.”

Yet another benefit on hold for married same-sex couples living in non-marriage equality states is veterans benefits, which include disability benefits, survivor benefits and joint burial at a veteran’s cemetery for the spouses of former service members. As with Social Security law, a portion of veterans’ law, 103(c) of Title 38, looks to state of residence, not the state of celebration, to determine whether a couple is married.

Genevieve Billia, a spokesperson for the Department of Veterans Affairs, said her department is still reviewing the issue of these benefits with the Justice Department.

“VA is working closely with the Department of Justice to develop guidance to process cases involving same-sex spousal benefits, and to implement necessary changes swiftly and smoothly in order to deliver the best services to all our nation’s veterans,” Billia said. “Our commitment to provide all veterans and their families with their earned care and benefits will continue to be our focus as VA implements the Supreme Court’s decision in Windsor, and the president’s direction on Title 38.”

The continued enforcement of 103(c) of Title 38 to discriminate against gay couples has been a cause for concern for U.S. senators. Last month, seven senators — led by Sen. Mark Udall (D-Colo.) — called on the Obama administration to stop enforcing the law in a way that blocks gay veterans in same-sex marriages from receiving spousal benefits.

Stephen Peters, president of the American Military Partner Association, called the issue “a top concern” among veterans belonging to the LGBT military group.

“While we understand it takes time to review existing policies and laws in light of the Windsor decision, for the sake of our veterans and their families, our hope is that the administration will take swift action in extending full and equal VA benefits no matter what state the veteran and their family live in,” Peters said. “These veterans have earned these benefits and there is no valid reason why they should continue to be denied them.”

The American Military Partner Association has launched an online petition calling on Holder to stop enforcing U.S. code governing veterans benefits in a way that discriminates against same-sex couples. According to the organization, a little more than 1,000 people had signed the petition as of Wednesday.

Ian Thompson, legislative representative for the American Civil Liberties Union, expressed confidence the administration would be able to come to a conclusion on these issues as it has done with other benefits in the aftermath of the DOMA ruling.

“Federal agencies have moved with commendable speed to extend recognition to married same-sex couples, and to do so in a way that recognizes that these marriages don’t dissolve when a couple crosses state lines,” Thompson said. “While more work remains, including with SSA and the VA, we are confident that these issues can be properly addressed.”

The Justice Department didn’t respond to the Blade’s request for comment on the pace with which these benefits are being rolled out or when these outstanding issues will be resolved.

Shin Inouye, a White House spokesperson, touted the administration’s work so far in implementing benefits as he acknowledged “some work remains.”

“Following the Supreme Court’s ruling in Windsor, the president directed the attorney general to work with the Cabinet to review federal law to ensure the decision and its implications for federal benefits and obligations are implemented swiftly and smoothly,” Inouye said. “That process is ongoing, and while some work remains, the administration has worked to affirm the principle that all couples who are legally married receive full and equal recognition, to the greatest extent possible under the law.”

Should the administration determine it must continue enforcing these laws, a legislative fix from Congress would be necessary to ensure these benefits can flow to gay couples. For the Social Security benefits, that would mean passage of the Social Security Equality Act, sponsored by Rep. Linda Sanchez in the House. For the veterans benefits, that would mean passage of the Charlie Morgan Act, sponsored by Sen. Jeanne Shaheen (D-N.H.) in the Senate.

The federal benefits of marriage across the board would be assured for married gay couples regardless of where they live after passage of the Respect for Marriage Act, which is sponsored by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate.

A Senate Judiciary Committee aide told the Blade last year that a Senate hearing was in the works for fall 2013 on the legislation. Although the hearing never took place, a Senate aide told the Blade plans are still underway for a hearing.

“Chairman Leahy continues to push for timely and comprehensive implementation of the Windsor decision, including last week’s landmark announcement that the Justice Department will treat all lawfully married couples equally in federal legal matters,” the Leahy aide said. “Chairman Leahy is committed to taking discrimination out of our laws, and he is working to schedule a hearing and build support for the Respect for Marriage Act.”

Not all the outstanding issues in the aftermath of the DOMA ruling are related to law. Benefits are blocked from flowing to married same-sex couples in non-marriage equality states under the Family & Medical Leave Act not because of statute, but by regulation, which the administration could change at any time without action from Congress.

And that change is already taking place. Last last year, the Department of Labor announced it was changing the regulations for the Family & Medical Leave Act — along with regulations for a slew of other laws — to ensure those benefits flow to married same-sex couples living in non-marriage equality states. According to Thompson’s HR Compliance Expert, the change will be implemented in March.

Laura Fortman, principal deputy administrator of the Labor Department’s Wage & Hour Division, wrote about the proposed change in a little-noticed blog post at the time.

“No one should have to choose between succeeding at work and being a loving family caregiver,” Fortman said. “The FMLA’s protections help ensure that people have the opportunity to be both and our proposed rulemaking is an important step in ensuring the law keeps up with the needs of all families in this country.”

Rea Carey, executive director of the National Gay & Lesbian Task Force, said her organization looks forward to the day when the DOMA decision is “fully implemented” by the federal government.

“Steady progress is being made and more is to come,” Carey said. “For example, we are working with the Department of Health and Human Services to ensure that health insurance plans offer coverage for same-sex spouses regardless of where they live. Big picture, we fully expect this landmark decision to continue to positively impact the lives of LGBT people and their families for years to come and in ways that we haven’t even imagined.”

19
Feb
2014

Alaska high court rules state tax law is anti-gay

Gayle Schuh, Julie Schmidt, gay news, Washington Blade

Gayle Schuh and Julie Schmidt won their case before the Alaska Supreme Court. (Photo courtesy ACLU)

The Alaska Supreme Court ruled on Friday the state acted unconstitutionally by refusing to grant same-sex couples a special property tax exemption afforded to senior citizens and disabled veterans who live with their spouse in their home.

In the 45-page decision, the court determined that the State of Alaska and the Municipality of Anchorage’s decision to withhold the $150,000 tax exemption from same-sex couples violates equal protection rights under the Alaska State Constitution.

“Same-sex couples, who may not marry or have their marriages recognized in Alaska, cannot benefit or become eligible to benefit from the exemption program to the same extent as heterosexual couples, who are married or may marry,” the ruling states. “The exemption program therefore potentially treats same-sex couples less favorably than it treats opposite-sex couples even though the two classes are similarly situated.”

Because same-sex couples cannot legally marry in Alaska, the state prior to the ruling only allowed them an exemption for half the value of their homes.

The case, Schmidt and Schuh v. Alaska, was filed by Davis Wright Tremaine LLP and the American Civil Liberties Union of Alaska on behalf of three same-sex couples. According to the ACLU, the decision applies to all same-sex couples in the state.

One couple — Julie Vollick and Susan Bernard — jointly purchased their Eagle River home in 2004. Vollick, who retired after 20 years in the United States Air Force and has service-related disabilities, was seeking the exemption based on her veteran status.

The other couples — Julie Schmidt and Gayle Schuh, who have been together 33 years, and Fred Traber and Larry Snider, who have been together 28 years — were seeking to qualify for the benefit as senior citizens.

Schmidt, who moved with Schuh to Alaska from Illinois after they both retired from careers in education, said in a statement the court ruling validates their relationship.

“Gayle and I built a home and a life here because we loved what Alaska had to offer,” Schmidt said. “It hurt that the state that we loved so much treated us like strangers. It is gratifying to have our relationship recognized.”

In ruling in favor of the couples, the court affirms a decision by a lower court in Alaska granting summary judgment to all three same-sex couples who filed the lawsuit.

But the Supreme Court excludes from the decision one same-sex couple, Traber and Snider. Traber was the sole owner of the home, but 62 so not yet a senior citizen, and Snider was found not to have an ownership interest in the home.

Although attorneys for the couples argued they should be able to receive the exemption because laws based on sexual orientation should be subject to heightened scrutiny, the court didn’t get that far in its ruling because justices were able to determine the state’s practices were unfair based on minimum scrutiny.

“Because the tax exemption program affects the couples’ economic interests, it is subject to at least minimum scrutiny,” the ruling states. “Because minimum scrutiny resolves this case, we do not need to consider the couples’ contention that we should apply heightened scrutiny.”

Although there was no dissent in the ruling, Justice Daniel Winfree wrote a concurring decision in favor of the same-sex couples, saying he would have decided the case on non-constitutional grounds.

Joshua Decker, executive director of the ACLU of Alaska, said the ruling affirms no one is second-class under the law — whether they be gay or straight.

“Families in Alaska deserve better than a second-class system of laws for same-sex couples who are just as committed to each other as heterosexual couples,” Decker said. “Our senior citizens and veterans should not have to pay more taxes just because they happen to be gay or lesbian.”

Gay couples in Alaska don’t have access to marriage in the state because Alaska voters made a ban on same-sex marriage part of its state constitution in 1998. The state is one of four in the country that doesn’t have marriage equality or pending litigation seeking marriage rights for same-sex couples.

25
Apr
2014