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Time for a new employee manual

manual, gay news, Washington Blade

A review of existing employment manuals is especially important when there are significant changes in the laws governing the employer/employee relationship.

By JOHN J. MATTEO

The beginning of the New Year is always a good time for companies and employers to review their existing employee manuals or employment policies to insure they are compliant with current law and with their own practices.  An old adage states that the only thing worse than not having an employment manual or written policies is to have them but not follow them. This adage reflects the need to insure that your policies comport with your company’s actual practices and that such practices are consistent with applicable law.

A review of existing employment manuals is especially important when there are significant changes in the laws governing the employer/employee relationship, as we have seen in 2013. These include the Windsor decision issued by the Supreme Court that struck down the Defense of Marriage Act, the implementation of some portions of the Affordable Care Act (“ACA”), the push for mandatory sick leave by some jurisdictions, the IRS’s continued focus on properly classifying employees v. independent contractors, and the EEOC’s stated strategic goal of focusing on workplace discrimination. Any one of these issues would require a revision to most employer’s policies and manuals, but together they call for a complete revamping and review of the way policies are formed and enforced by most employers.

D.C. employers have been used to protecting gay employees from discrimination given the D.C. Human Rights Act; however, employers in Maryland and Virginia have not had a state law with the same level of protections, although Maryland has moved in that direction. Given the Windsor decision and subsequent IRS guidance, gay couples that are lawfully married in a state or jurisdiction recognizing such unions may avail themselves of the same rights as heterosexual couples when filing their tax returns. The effect on employers in the region (where two of the three major jurisdictions recognize gay marriage) is that they cannot deny certain benefits to gay employees who are legally married. Employers should be sure that these protections are clearly set forth in their employment manuals.

Much has and will continue to be written about the ACA as its provisions are implemented but employers – especially smaller employers/companies need to be prepared. The most important lesson at this juncture is that employers with fewer than 100 employees need to begin to prepare their workers for the changes that have now been delayed until 2015. This will include mandatory participation in the local health care exchanges, as well as mandatory minimum benefits that must be provided by almost all employers.

The Equal Employment Opportunity Commission (EEOC) has issued public statements that are clear — elimination of workplace discrimination will be one of the major focuses of the commission. Accordingly, employers need to be well trained on the EEOC standards so that business owners and managers can insure adherence to EEOC rules and regulations. These standards should also be well described in the company’s employment manual and procedures so that the company has guidance, employees know their rights and if a complaint is made both parties will know the process to follow.

Another important feature that should be clearly set forth in employment manuals or procedure policies given the EEOC’s stated goals, are the rights afforded to those seeking maternity, paternity and other family leave benefits. Depending on which local jurisdiction a company is situated in and how many employees are employed, the laws will differ. It is important for the employer to know these rules, to clearly state the company policy in the manual and most importantly to consistently apply them to all employees.

These are just a few highlights of provisions that employers should make sure are part of their employment manuals or policies and are some of the most important given recent EEOC statements. Other provisions that also should be clearly defined are policies related to full time/part time distinctions, Internet use and privacy, confidentiality, termination procedures and severance benefits.

In sum, the lessons are simple — employers should be educated by a professional on the myriad laws governing the employer/employee relationship and should seek out qualified advisers to assist them in drafting consistent policy manuals to avoid the risk of employment claims.

 

John J. Matteo is president and chair, Business & Employment Practice Groups, Jackson & Campbell, P.C.

This is part of a series of articles by Jackson & Campbell on legal issues of interest to the LBGT and greater business community.  Jackson & Campbell is a full service law firm based in Washington with offices in Maryland and Virginia. If you have any questions regarding this article, contact John J. Matteo at 202-457-1678 or jmatteo@jackscamp.com. If you have any questions regarding our firm, please contact Don Uttrich, who chairs our Diversity Committee, at 202-457-4266 or duttrich@jackscamp.com.

28
Feb
2014

DOMA decision offers immediate benefits

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Following last week’s landmark Supreme Court decision in U.S. v. Windsor family-immigration benefits afforded to heterosexual couples finally have become a reality for all married couples. (Washington Blade photo by Michael Key)

By METODY A. TILEV & JENNIFER L. GAWRONSKI

For years, proposed legislation and initiatives circulated with the goal of giving same-sex couples the same family-immigration benefits afforded heterosexual couples.  Following last week’s landmark Supreme Court decision in U.S. v. Windsor, which struck down Section 3 of the Defense of Marriage Act, these benefits finally have become a reality.

While Windsor’s effect on the complex federal bureaucracy continues to unfold, concrete policy has been established in immigration. Heeding President Obama’s directive for the swift and smooth implementation of the Windsor decision and its implication for federal benefits, Secretary of Homeland Security Janet Napolitano announced that she “has directed the U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The practical implications of this policy shift are numerous.

U.S. citizens may now file a family immigration petition (Form 1-130) on behalf of their same-sex spouse. It is immaterial whether the couple currently resides in a state that recognizes their same-sex marriage because USCIS looks to the law of the jurisdiction where the marriage took place to determine its validity for immigration purposes.  Furthermore, civil unions and domestic partnerships will be treated as marriages.

The new USCIS policy also affects how immigration petitions filed by same-sex spouses are processed. Same-sex spouses of U.S. citizens now will be considered immediate relatives for immigration purposes. As a result, they will be able to file an application to adjust their status (Form I-485) to permanent resident (“green card”) simultaneously with their immigration petition. Same-sex spouses also can now file a petition for a labor authorization (Form I-765) simultaneously with their immigration petition. Labor authorization petitions usually are approved quickly, which will allow the sponsored spouse to work legally in the country.

Same-sex spouses could be the beneficiary of an immigration petition even if they are out of legal status. They could also simultaneously petition to adjust their status to a permanent residency while remaining in the United States.

The new USCIS policy also benefits couples that are not yet legally married. As with heterosexual couples, an LGBT citizen should now be able to sponsor a person living abroad to come to the United States on a fiancée visa for the purposes of getting married to the U.S. citizen, then subsequently file for a permanent residency.

The children of same-sex couples will be treated in the same manner as children of heterosexual couples for the purposes of obtaining immigration benefits through their parents and being listed as dependant beneficiaries on immigration petitions.

USCIS began issuing green cards to the same-sex spouses of U.S. citizens days after the Windsor decision and will process same-sex couples at the same speed as heterosexual couples. Furthermore, in anticipation of a potential ruling from the Supreme Court on DOMA, USCIS has kept a list for the past two years of same-sex couples whose green card petitions were denied. Those previous denials will be reversed and applicants will not have to reapply so long as no other issues arise, which will save those couples both time and filing fees. This is a good indication that USCIS is determined to follow its policy and quickly bring a resolution to all those same-sex couples that struggled for years to stay together under DOMA.

11
Jul
2013

10 years later, another Supreme wait

The U.S. Supreme Court (Washington Blade file photo by Michael Key)

The U.S. Supreme Court (Washington Blade file photo by Michael Key)

Expectations are high as the wait continues for two decisions expected in June on marriage cases before the U.S. Supreme Court, just as they were 10 years ago when gay rights supporters awaited what amounted to landmark rulings in two other cases.

In 2003, two cases reshaped the landscape for gay rights: the U.S. Supreme Court decision in Lawrence v. Texas, which struck down state sodomy laws throughout the country, and the Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, which for the first time led to the legalization of marriage equality in a U.S. jurisdiction.

The two cases currently before the court — Hollingsworth v. Perry, which aims to strike down California’s Proposition 8, and United States v. Windsor, which is challenging the Defense of Marriage Act — are different in many respects from the cases 10 years ago. Lawrence was related to sodomy laws and Goodridge was a state lawsuit that resulted in a change only in Massachusetts. Still, they’re similar in terms of their potential significance.

The two attorneys who made arguments before the courts in the decades-old lawsuits — in the Goodridge case, Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, and, in the Lawrence case, Paul Smith, a partner at Jenner & Block — acknowledged the magnitude of the cases both then and now, but said it’s hard to compare the significance of the older ones to the newer ones.

Smith said we won’t know the significance of the DOMA and Prop 8 cases until the Supreme Court rules on them, but touted the Lawrence decision striking down sodomy bans across the country as significant in any event.

“It provided the foundation for all the progress that has been made on marriage and other forms of discrimination over the past 10 years,” Smith said. “It did that by establishing that our relationships are just as important and valuable as different-sex relationships and by saying that the government can’t use morality as a justification for interfering with individual choices about who to love and how. With those principles in place it’s very hard for anyone to come up with a legitimate and persuasive justification for discrimination based on sexual orientation.”

Similarly, Bonauto said “it’s not really easy” to compare the significance of the Goodridge case to the Perry and Windsor lawsuits, recalling the different cultural climate 10 years ago in which the Massachusetts case was argued.

“In 2003, these waters were largely uncharted,” Bonauto said. “There were zero marriage states, a civil union system in Vermont, and 36 states with discriminatory statutes and four states with amendments. But then, as now, we were right; right on the constitutional principles and the utter absence of legal justifications for this discrimination.”

Those court rulings — in particular the Goodridge decision because it was the first successful case for full marriage equality in the United States — paved the way for 11 more states to approve same-sex marriage over the course of 10 years, including the legalization of marriage equality in Minnesota just this week.

Just as observers are parsing statements from justices now in an attempt to determine what the court may rule on Prop 8 and DOMA, followers of the court cases a decade ago were also trying to predict the future based on what was said during oral arguments.

In Lawrence, Smith said moderate justices at the time — Associate Justice Anthony Kennedy and then-Associate Justice Sandra Day O’Connor — were “uncharacteristically quiet,” making it difficult to predict how the court would rule.

“But we took hope from the fact that they didn’t say anything negative,” Smith added. “We were relatively optimistic that the court would strike down the sodomy laws once the court decided to take the case.”

For Goodridge, Bonauto said the wait was different from now in two regards: first because same-sex marriage wasn’t legalized anywhere in the country at the time, and second because there was no set timeline for when the Massachusetts Supreme Court had to make a decision.

“We thought and hoped we were right on the timing,” Bonauto said. “There were a lot of nerves and uncertainty while we waited. The fact that we didn’t know when the decision would come — no clue at all — added to the nerves and fueled the rumor factory. In the end, the decision turned out to be beautifully written and world-changing.”

In the present, many observers believe that the Supreme Court will issue a decision that will strike down DOMA on its merits — either based on equal protection or federalism grounds — although issues of standing were examined.

For Prop 8, much attention has been given to justices’ interest in the standing of Prop 8 proponents to defend the measure in court. A determination that they lack standing would leave in place a lower court ruling and likely invalidate the ban on same-sex marriage in California.

The standing issues before the Supreme Court, as Bonauto noted, also means the wait for Goodrige was different because the Massachusetts Supreme Court couldn’t rule on this basis.

“There were no outs,” Bonauto said. “They had to decide whether denying marriage to gay couples violates the Constitution of the Commonwealth or not. And I was asked very specifically in oral arguments about Vermont civil unions and a remedy that would provide those protections, and I said, ‘That was not what the plaintiffs were seeking; they were seeking access to marriage itself.’”

Notably, the oral arguments in Lawrence v. Texas took place on March 26, 2003, which is exactly 10 years to the day that oral arguments took place in the Prop 8 case on March 26, 2013. A ruling was issued in the Lawrence case on June 26, 2003 just as a ruling is expected in the Prop 8 and DOMA cases in June 2013.

In the Goodridge case, oral arguments took place before the Massachusetts Supreme Court on March 3, 2003, but a decision wasn’t rendered until Nov. 18, 2003.

Mary Bonauto, gay news, Washington Blade

Mary Bonauto (Washington Blade photo by Michael Key)

It remains to be seen whether the wording of rulings from the Supreme Court will have the same power as the language that justices handed down a decade ago. The 4-3 ruling in the Goodridge case affirmed that same-sex couples had the right to marry with never before seen language.

“The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry,” the decision states. “We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals.”

In the Lawrence case, the 6-3 opinion written by Associate Justice Anthony Kennedy determined that the framers intended language in the U.S. Constitution to be reinterpreted by later generations in accordance with their vision of liberty.

“They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy wrote “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Also unknown is how the public might react if the Supreme Court issues affirmative rulings for marriage equality in the Prop 8 and DOMA cases.

In 2003, the court ruling in Massachusetts — combined with then-San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses to gay couples — sparked a national backlash that led in the next year to 11 states passing constitutional amendments banning same-sex marriage. Former President George W. Bush ran a successful re-election campaign in which he advocated for passage of a Federal Marriage Amendment.

But Bonauto was skeptical that the legalization of same-sex marriage led to the passage of state constitutional amendments and Bush’s re-election — saying the religious right wanted to enact the amendments anyway and analysis shows the marriage issue wasn’t as much a boon to Bush as it may seem on its face.

“By the time we had filed Goodridge, there were already 36 state statutes and four amendments,” Bonauto said. “So, for a lot of these states, they didn’t have anything else to do but to pass an amendment because they already had statutes barring marriage.  So I really view this as political opportunism both with elected officials and also the organized right-wing. It was trying to cut us off and change the facts on the ground, so that they could isolate this debate and isolate this issue in certain states.”

Given the growing acceptance of marriage equality — one widely noted recent poll shows it enjoys support from 58 percent of the American public, compared to 30 percent support in 2003 — the negative reaction to any pro-gay rulings will likely be more restrained.

In the event the Supreme Court in June renders similarly favorable decisions in support of rights for gay couples, Bonauto predicted some would speak out in opposition, but the reaction generally would be favorable.

“There are going to be people who are going to say things, and some of them have echo chambers and bully pulpits and their blogs,” Bonauto said. “I don’t think we should equate that to a backlash. I just think that is what public discourse is like in 2013. I really believe that the overwhelming majority of Americans are at a point where they accept and embrace the freedom to marry for same-sex couples.”

15
May
2013

BREAKING: SUPREME COURT STRIKES DOWN DOMA, PROP 8

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Activists held signs and a flag in front of the Supreme Court in hopes of a decision on the Proposition 8 and Defense of Marriage Act cases. (Washington Blade photo by Michael Key)

On Tuesday the Supreme Court struck down two key anti-gay laws: a provision of the Defense of Marriage Act preventing the Federal Government from recognizing legal same-sex marriages performed in states where they are legal, and California’s voter-approved Proposition 8, which ended same-sex marriage rights in that state.

In a 5-4 decision, Justice Anthony Kennedy was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, writing the opinion striking down a key provision in DOMA in the case of Windsor v. the United States, calling the law a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment,” According to SCOTUSblog.com.

“DOMA singles out a class of persons deemed by a State entitled ot recognition and protection to enhance their own liberty,” the decision reads.

The move could open the door to federal recognition of legally married same-sex couples who have wed in states where such nuptials are legal. Immigration rights experts hope the decision also means that American citizens will be able to sponsor their same-sex spouses for citizenship, something currently against the law.

The second gay marriage decision of the day struck down California’s Proposition 8 based on standing, vacating the 9th Circuit Court’s opinion, and upholding the U.S. District Court of California’s ruling, authored by Vaughn Walker.

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” read the majority opinion in Hollingsworth v. Perry authored by Chief Justice John Roberts. “We decline to do so for the first time here.”

In the Hollingsworth opinion, Roberts was joined by Justices Scalia, Ginsberg, Breyer and Kagan.

Justices Scalia was joined by Justice Thomas in his dissent to the Windsor decision, with Chief Justice Roberts and Justice Alito both writing his own dissent, agreeing with Thomas in part.

In his dissent in Windsor, Scalia questions the level of scrutiny the majority applied to the law, where Alito’s dissent revolves around the question of standing, according to legal experts.

This story is developing, come back to the Blade for more throughout the day.

26
Jun
2013

HISTORIC: Supreme Court strikes down DOMA, Prop 8

Supreme Court, gay marriage, same sex marriage, marriage equality, Proposition 8, Hollingsworth vs. Perry, gay news, Washington Blade

Gay marriage advocates rallying at the Supreme Court earlier this year during oral arguments for two major cases. The court struck down two anti-gay laws today, opening the door for expanded rights for same-sex couples in many jurisdictions. (Washington Blade photo by Michael Key)

In a historic development, the U.S. Supreme Court handed down two decisions on Wednesday that advanced marriage rights for gay couples and will almost certainly reshape the national debate on the issue.

In one 5-4 ruling, the court determined that the 1996 Defense of Marriage Act is unconstitutional because it violates due process and equal protection for same-sex couples under the Fifth Amendment to the U.S. Constitution. That decision means the U.S. government must begin recognizing same-sex marriages for a broad range of benefits, including those related to federal taxes and immigration law.

Associate Justice Anthony Kennedy wrote the opinion and was joined by Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

“The federal statute is invalid, 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,” Kennedy said. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The dissenting justices were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito. In his opinion, Roberts says Congress acted constitutionally in passing DOMA and took issue with the authority the court granted itself in overturning the anti-gay statute.

In another 5-4 decision, the court determined anti-gay forces don’t have standing to defend California’s Proposition 8. That decision leaves in place a district court injunction that prohibits the state of California from enforcing its ban on same-sex marriage. Gay couples will be able to marry in the state once the U.S. Ninth Circuit Court of Appeals lift its stay.

Roberts wrote the majority opinion for the court and was joined by Scalia, Ginsburg, Breyer and Kagan. Kennedy wrote the dissenting opinion and was joined by Thomas, Alito and Sotomayor.

“The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers,” Roberts writes. “States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.”

The court’s ruling in the case against Prop 8, known as Hollingsworth v. Perry, is specific only to California — meaning the justices didn’t grant the expansive ruling that supporters of marriage equality had sought to bring marriage equality to all 50 states.

Shortly after HRC President Chad Griffin walked out of the court with plaintiffs in the marriage cases, he received a call from President Obama who was aboard Air Force One. Obama congratulated Griffin for the victories as reporters and onlookers watched.

The decisions were handed down 10 years to the day that the Supreme Court announced its landmark decision in the 2003 case of Lawrence v. Texas, which struck down state sodomy laws throughout the country.

The challenge to DOMA, known as United States v. Windsor, was filed by the American Civil Liberties Union and others in 2011 on behalf of lesbian New York widow Edith Windsor. Upon the death of her spouse Thea Spyer in 2009, Windsor had to pay the U.S. government $363,000 in estate taxes because of DOMA — a penalty that she wouldn’t have faced if she were married to a woman.

The decision striking down DOMA affirms the initial rulings against the federal anti-gay law last year by U.S. District Judge Barbara Jones and the U.S. Second Circuit Court of Appeals.

The Obama administration helped in securing the ruling against DOMA. After it stopped defending DOMA in 2011, the U.S. Justice Department began filing briefs against the law and sent attorneys to litigate against it during oral arguments. U.S. Solicitor General Donald Verrilli argued against DOMA before the Supreme Court, saying the law doesn’t hold up under the standard heightened scrutiny, or a greater assumption it’s unconstitutional.

But the Supreme Court didn’t get to the issue of heightened scrutiny in the DOMA case because it found the law was unconstitutional under the less stringent standard of rational basis review.

The case against Prop 8 was filed by the California-based American Foundation for Equal Rights in 2009 on behalf of two plaintiff couples — a lesbian couple, Kristin Perry and Sandra Stier, and a gay male couple, Paul Katami and Jeffrey Zarrillo — who were unable to marry because of the state’s constitutional ban on same-sex marriage.

The attorneys representing them were Theodore Olson, a former U.S. solicitor general during the Bush administration, and David Boies, a so-called “dream team” of attorneys who represented opposite sides in the 2000 case Bush v. Gore.

Because the state officials — California Gov. Jerry Brown and Attorney General Kamala Harris — refused to defend Prop 8 in court, anti-gay groups that put Prop 8 on the ballot in 2008 such as ProtectMarriage.com took up the responsibility of defending the measure. The California Supreme Court certified the groups had standing under state law and the U.S. Ninth Circuit Court of Appeals affirmed they had standing.

But the high court determined that these groups — even though attorney Charles Cooper spoke on behalf on them in oral arguments — don’t have standing because they lack any legal injury in the wake of the lower court’s determination that Prop 8 is unconstitutional.

The Obama administration had also assisted in efforts to secure a ruling against California’s Proposition 8. The Justice Department filed a friend-of-the-court brief in February saying the ban was unconstitutional and Verrilli argued in court against Prop 8, suggesting all eight states with domestic partnerships should be required to grant marriage rights to gay couples.

The issue of standing also came up in the DOMA case for two reasons. One, the court had questioned whether the U.S. Justice Department could have appealed the district court ruling to the Second Circuit because the initial ruling against DOMA was what the Obama administration wanted. Two, the court questioned whether the Bipartisan Legal Advisory Group, a five-member Republican-majority panel within the U.S. House, had standing to take up defense of DOMA in the administration’s stead.

But the court determined an active controversy remains in the case because the U.S. government still hasn’t refunded Windsor the $363,000 she paid in estate taxes. Once the court determined it has jurisdiction based on the Obama administration’s appeal of the lawsuit, it didn’t get to the issue of whether BLAG has standing.

In his ruling, Kennedy writes the continuation of litigation in the absence of a federal ruling on DOMA would cause uncertainty.

“[T]he costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved,” Kennedy writes in the ruling. “In these unusual and urgent circumstances, the very term ‘prudential’ counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction.”

26
Jun
2013

Supreme Court sets oral arguments for marriage cases

Supreme Court, gay news, Washington Blade

State groups welcomed the U.S. Supreme Court’s decision to consider the constitutionality of DOMA, Proposition 8. (Washington Blade file photo by Michael Key)

The Supreme Court announced on Monday that it would hear oral arguments in the legal challenges against California’s Proposition 8 and the Defense of Marriage Act on two separate dates in March.

According to the calendar, arguments for the challenge against Prop 8, known as Hollingsworth v. Perry, is set for March 26, while the arguments for the challenge against DOMA, known as Windsor v. United States, is set for March 27.

The Supreme Court announced it would take up the lawsuits on Dec. 7. Justices must render a decision before their term ends in June.

08
Jan
2013

Senate GOP urges Supreme Court to uphold DOMA

United States Senate, Republican Party, Utah, Kentucky, Iowa, Orrin Hatch, Mitch McConnell, Chuck Grassley, gay news, Washington Blade

(from left) Sen. Orrin Hatch (R-Utah), Sen. Mitch McConnell (R-Ky.) and Sen. Chuck Grassley (R-Iowa) are among the Republicans urging the Supreme Court to uphold DOMA (Photos public domain)

Senate Republicans are arguing the Defense of Marriage Act should be upheld as constitutional because withholding federal benefits from gay couples discourages states from legalizing same-sex marriage.

The 30-page friend-of-the-court brief, filed before the U.S. Supreme Court on Jan. 29, argues that Section 3 of DOMA promotes the restriction of marriage to one man, one man while by “removing an incentive” to change state law.

“The prospect of obtaining numerous federal benefits for same-sex couples could be a tremendous weapon in the arsenal of those who would seek to gain recognition of same-sex marriage at the state level,” the brief states. “It would be particularly tempting for courts to recognize same-sex marriage in order to award federal benefits to sympathetic plaintiffs.”

The brief was filed in the case of Windsor v. United States on behalf of 10 Senate Republicans: Orrin Hatch (R-Utah), Saxby Chambliss (R-Ga.), Dan Coats (R-Ind.), Thad Cochran (R-Miss.), Mike Crapo (R-Idaho), Charles Grassley (R-Iowa), Lindsey Graham (R-S.C.), Mitch McConnell (R-Ky.), Richard Shelby (R-Ala.), and Roger Wicker (R-Miss.).

Grassley’s participation in the brief is notable because the state he represents in the U.S. Senate, Iowa, is among the nine where same-sex marriage is legal. Also of note are the scant 10 signatures on the brief, which falls short of even one-fourth of the 45 members of the Senate GOP caucus.

Fred Sainz, vice president of communications for the Human Rights Campaign, said the brief’s argument that DOMA should be upheld to discourage efforts to legalize same-sex marriage at the state level demonstrates how “arguments made by our opponents get more tortured with every passing day.”

“This is a great example of how far down the rabbit hole they have to go to find justifications for discrimination,” Sainz said. “In essence, the senators are arguing that committed and loving gay and lesbian couples want to get married just for the benefits. Not only is it a ridiculous argument, it’s an affront to our humanity and any reasonable American would see it as such.”

The brief has three main arguments for why DOMA should be upheld: 1) DOMA didn’t change federal law, but reaffirmed the existing definition of marriage; 2) DOMA promotes a government interest in ensuring uniformity in existing law on marriage; and 3) DOMA ensures federal benefits won’t be used to “undermine traditional marriage” at the state level.

Additionally, the brief notes that one of the friends of the court, Hatch, was chair of the Senate Judiciary Committee at the time DOMA was signed into law and received assurances from the Justice Department the measure would be constitutional. The Obama administration has since said the law violates the U.S. Constitution, and won’t defend the law in court.

“If the Department believed that there was an inadequate federal interest to justify DOMA, the time to speak was in 1996, when Congress gave careful consideration to the need for DOMA,” the brief states. “Rather than urging the courts to give appropriate deference to an Act of Congress, as befits its proper role in our system of government, the Department now groundlessly impugns the motives of the overwhelming bipartisan majority that supported DOMA.”

The brief also disputes the notion that Congress passed DOMA in 1996 out of animus of the basis of the bipartisan support the measure enjoyed at the time, including from then-President Bill Clinton, who signed the measure into law. Clinton has since called for repeal of DOMA.

“The fact that DOMA passed both houses of Congress with overwhelming support across the political spectrum, and was signed by into law by President Clinton, further undercuts any attempt to characterize it as the result of unconstitutional ‘animus,’” the brief states. “Many DOMA supporters were on record as opposing discrimination against gays and lesbians.”

The attorney who signed the brief is Michael Stern, an attorney based in Fairfax, Va., who’s contributed to Republican political campaigns.

[h/t] Equality on Trial

08
Feb
2013

Update on LGBT family law

gay family, LGBT family law, gay news, Washington Blade

(Washington Blade file photo by Michael Key)

The last several years have seen an incredible change in laws affecting LGBT families in the Washington metropolitan area, and we may see more changes on the federal level in the next several months. Here is a synopsis of laws affecting same-sex headed families in the D.C. area.

Federal level

The Supreme Court will hear arguments on two marriage equality cases, Hollingsworth v. Perry and Windsor v. United States on March 26 and 27, and we expect decisions from the court by June 30 of this year. Those decisions could be anything from the court saying that it won’t make substantive decisions in either of these cases, to establishing marriage equality as a constitutional right in the entire United States. Most court observers expect that the court will invalidate Section 3 of the Defense of Marriage Act (DOMA), which would mean that marriage equality for federal purposes would be determined on a state by state (or jurisdiction) basis.  Section 3 defines “marriage” for all federal purposes as between one man and one woman. So, for us in the D.C. metro area, if Section 3 is invalidated, residents of Maryland and the District of Columbia would be considered married for federal purposes, but residents of Virginia would not. There are more than 1,000 rights and responsibilities associated with marriage on the federal level, so federal recognition of our marriages would be huge. Stay tuned!

District of Columbia

The District has had marriage equality since March 9, 2010. There are more than 400 rights and responsibilities associated with marriage for District residents. D.C. residents can still register as domestic partners instead of getting married, but the domestic partnership has little, if any, effect outside the District. There is no residency requirement to marry in the District or register as domestic partners.

D.C. recently enacted a new law that allows couples who married in D.C. and live in a jurisdiction where neither can divorce, to come back to D.C. to get divorced. Of course, the couple should attempt to resolve all issues pertaining to their marriage so they can go forward with an uncontested divorce in the Superior Court of the District of Columbia. This law is meant to help with the new meaning of “wedlock.”

The District enacted the Domestic Partnership Judicial Determination of Parentage Amendment Act on July 1, 2009. It provides that if a couple is married, registered as domestic partners in D.C., or signs a Consent to Parent, both members of the couple will be presumed to be legal parents of their child under D.C. law if the child is born in D.C. Both parents will be on the birth certificate at birth. Unfortunately, the law may not apply to gay male couples as surrogacy is illegal in the District. The Parentage Act has been amended to allow adoptions in the District based on the birth of the child in D.C., and the amendments are retroactive to July 1, 2009. The law means that a lesbian couple does not have to live in the District in order to obtain a second-parent adoption of their child that will be recognized outside the District of Columbia and on the federal level. This is a big step forward, especially for residents of Virginia who can give birth in D.C. Even with marriage equality, it is essential for couples to obtain second-parent adoptions as birth certificates alone do not confer parental rights, and legal rights to children flowing from marriage may not be recognized in many states, and currently, not by the federal government.

Maryland

Beginning Jan. 1, 2013, same-sex couples have been able to marry in Maryland. Marriages between same-sex couples from outside Maryland have been recognized in Maryland since May 18, 2012, after the decision in Port v. Cowan. Port required Maryland to allow a same-sex couple to divorce in Maryland. Married couples have more than 400 state-based rights and responsibilities. However, there are some issues relating to marriage equality in Maryland that still must be addressed. For example, the Maryland comptroller takes the position that Maryland imports the federal definition of marriage for income and estate tax purposes.

For families in Maryland headed by same-sex couples, a child born into the marriage will be considered the legal child of both parents. For married lesbian couples, both parents will be on the child’s birth certificate at birth. However, we are still working through issues for gay male couples who have children through gestational surrogacy.

Virginia

There has not been much change in Virginia in laws impacting our families, except to go backward. Virginia now allows adoption agencies to explicitly discriminate against LGBT families in placements for children to be adopted.

Second-parent adoptions are not available in Virginia, not because they are specifically outlawed, but because of concerns that the Virginia Legislature may forbid these adoptions if they are attempted. However, in some Virginia counties same-sex couples may obtain a joint custody order of their children. Joint custody orders have been upheld by the Virginia courts.  These orders can be problematic though as they allow both parents to have custody, but only one parent to have responsibility for child support if the couple separates. In addition, the Commonwealth of Virginia may have a say in whether the couple is fit and proper to have their child.

General

Before or after getting married, couples should seriously consider executing pre- or postnuptial agreements which specify their rights and responsibilities during their marriage and if they divorce.  These are particularly important for our families because of the many and varied laws governing marriage for same-sex couples. And, as always, couples and individuals should complete estate planning documents. These are vital in order to make our own decisions about who should inherit our property, make our health care decisions,  manage our finances, and, if we have children, who should take care of them if we can’t.

Michele Zavos is a principal in Zavos Juncker Law Group, PLLC, which practices LGBT family law in all three local jurisdictions. She is a long-time lesbian activist attorney and was the driving force behind the passage of the new D.C. divorce statute and amendments to the D.C. Parentage law.

15
Mar
2013

Year in review: DOMA, Prop 8 challenges advance in the courts

Supreme Court, gay marriage, same sex marriage, marriage equality, Proposition 8, Defense of Marriage Act,

The Supreme Court (Washington Blade photo by Michael Key)

The Supreme Court set the stage this year for what might be the demise of California’s Proposition 8 and the Defense of Marriage Act when it agreed to take up litigation challenging the anti-gay measures.

On Dec. 7, justices agreed to take up Hollingsworth v. Perry, the lawsuit seeking to overturn Prop 8, and Windsor v. United States, a lawsuit filed by 83-year-old New York lesbian Edith Windsor seeking to overturn DOMA.

Ted Olson, one of the co-counsels representing plaintiffs, expressed optimism following the announcement that justices would rule against the California’s constitutional ban on same-sex marriage, which was approved by voters in 2008.

“We have an exhaustive record on which to build this case, and it will be an education for the American people,” Olson said. “We are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.”

The case comes to the Supreme Court after the U.S. Ninth Circuit Court of Appeals in February ruled against Prop 8. Had the Supreme Court declined to accept the case, the ruling would have stood and marriage equality would have been restored to California.

The DOMA case comes to the Supreme Court after numerous lower courts determined the anti-gay law was unconstitutional. The U.S. First Circuit Court of Appeals became the first appellate court ever to strike down the law and was followed by the U.S. Second Circuit Court of Appeals. This year alone, four federal district courts also ruled against DOMA.

27
Dec
2012