Post-DOMA: Litigation abounds to secure details and free states that still have bans, including in the south
“The lay of the land is getting a bit complicated,” says James Esseks, director of the ACLU’s National LGBT and AIDS Project. Esseks, who was one of the attorneys involved in pressing the case of Edith Windsor –the case which ultimately struck down the core provision of DOMA June 26—was assessing the deluge of litigation that has ensued in the one month since the U.S. Supreme Court issued that ruling and the ruling that let stand a federal district court ruling that California’s Proposition 8 was unconstitutional.
“It’s hard to keep count.”
In the past month, at least a dozen new lawsuits have been launched all over the country as a result of the Supreme Court decisions. Some seek to end bans like Proposition 8 in other states. Others seek to secure for specific couples in specific circumstances the benefits of marriage that DOMA once barred.
Rulings in other lawsuits –those filed before the DOMA decision—have advanced the reach of marriage equality in numerous places in the past month.
And, with relatively little publicity, the lawyers hired by House Republican leaders to defend DOMA indicated that, because of the Supreme Court’s ruling in U.S. v. Windsor, “the House has determined…that it will no longer defend that statute.”
These are all important developments, coloring in the lines that the Supreme Court has drawn with its rulings, and many are happening in states where civil rights for LGBT people almost never advance in a positive direction.
The ACLU and its affiliates have active cases underway in Pennsylvania and North Carolina. They also have a case with the National Center for Lesbian Rights filed in New Mexico.
Jon Davidson, legal director for the Lambda Legal group, has litigation pending in New Jersey and Nevada, the latter of which is already at the federal appeals level. Lambda also has a case in Arizona seeking to preserve health coverage for the same-sex domestic partners of state employees.
And Lambda and the ACLU each have separate cases pending (and now consolidated) in Illinois, lawsuits filed before DOMA was struck down. They have announced a joint lawsuit to be filed soon in Virginia.
In addition to these, Davidson says he knows of lawsuits filed by attorneys working alone in Arkansas, Hawaii, Louisiana, Michigan, New Mexico, Oklahoma, Texas, and Utah. And news reports have identified an additional private lawsuit in Kentucky.
Two of the big newsmakers during the past month have involved cases in two of the bigger states –Ohio and Pennsylvania.
In Cincinnati, U.S. District Court Judge Timothy Black ruled July 19 that Ohio, which has a state constitutional amendment banning recognition of marriages between same-sex partners, must recognize the valid marriage license an Ohio gay couple obtained this month in Maryland.
In Obergefell v. Kasich, Judge Black, an appointee of President Obama, said there was “insufficient evidence of a legitimate state interest to justify this singling out of same sex married couples given the severe and irreparable harm it imposes.”
The case of John Arthur and James Obergefell garnered considerable attention from the national media, in part because the couple had to rent a charter airplane to transport the men to Maryland because Arthur is in the late stages of a terminal illness. According to the Freedom to Marry group, the men, who have been together for 20 years, were married on July 11 on the tarmac at a Baltimore airport and then flew back to Ohio. They filed their lawsuit July 19 and Judge Black granted their motion for a temporary restraining order against Ohio July 22.
“Throughout Ohio’s history,” wrote Judge Black. “Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized….How then can Ohio, especially given the historical status of Ohio law, single out same sex marriges as ones it will not recognize? The short answer is that Ohio cannot…at least not under the circumstances here.”
Some judicial and political figures came to a similar conclusion in Pennsylvania.
There, in Montgomery County, the Register of Wills, Bruce Hanes, said he and other county officials had studied the Supreme Court’s ruling in the U.S. v. Windsor DOMA case and determined it required them to issue marriage licenses to same-sex couples. The county began issuing licenses to same-sex couples July 24 and, as of this week, a local news blog reports the county has issued 26 such licenses thus far.
On the Rachel Maddow Show on MSNBC July 24, Hanes said his conclusion was prompted when two women contacted his office following the DOMA ruling to ask whether they might be able to obtain a license. In studying the matter, he said, the county officials felt that the state constitution’s guarantees of equality and non-discrimination trumped the state Definition of Marriage Act.
“I swore to uphold the constitution of the commonwealth,” said Hanes.
Even before this happened, the ACLU had filed a lawsuit in the federal district court of the state capital July 9, seeking to overturn the state ban on allowing same-sex couples to marry. And Pennsylvania’s Attorney General Kathleen Kane startled some when she responded by saying, “I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA where I believe it to be wholly unconstitutional.”
And just this week (July 29), a federal judge in a Pennsylvania district court ruled that the Supreme Court’s decision in the Windsor DOMA case requires a private employer of the late Sarah Ellyn Farley to pay death benefits to her spouse Jennifer Tobits under the federal ERISA plan. NCLR represented Tobits in the lawsuit filed in March 2012, two years after Farley died of cancer and four years after the women married in Canada.
Another important case resolved this month by the Windsor DOMA decision was Golinski v. U.S. A Ninth Circuit U.S. Court of Appeals panel issued a four-page order July 23, stating that the parties to the case agree that the Supreme Court’s decision in the DOMA case, striking the law as unconstitutional, means DOMA no longer stands in the way of allowing an employee of the federal circuit, Karen Golinski, to obtain health coverage for her same-sex spouse. Golinski had been represented by Lambda Legal.
Not every DOMA-related marriage lawsuit has Lambda, the ACLU, or any of the other big LGBT advocacy groups behind it. And not every one is meeting with success.
Domenico Nuckols of Galveston filed his own lawsuit in federal court in Galveston, Texas, July 2, seeking to overturn that state’s ban on marriage for same-sex couples. But two weeks later, a federal judge dismissed the lawsuit at Nuckols’ request. Nuckols, who is an engineer, was attempting to represent himself in court. He told the Dallas Voice that he hasn’t tried to marry in Texas and has no plans to do so. He said LGBT legal activists had persuaded him to drop his litigation.
But legal challenges are underway in other southern states. With the consent this month of the North Carolina Attorney General Roy Cooper, the ACLU has amended an existing lawsuit, Fisher-Borne v. Smith –one that seeks the right for co-parent adoption— to now seek the right for same-sex couples to marry. And the ACLU and Lambda announced this month they would file a joint lawsuit in Virginia.
Meanwhile, a gay couple in Norfolk, Virginia, filed their own lawsuit in federal district court July 18, challenging the state’s ban on issuing marriage licenses to same-sex couples. In Bostic v. McDonnell, Timothy Bostic and Tony London, who have been together for 23 years, say the state ban violates their rights to equal protection.
And three gay couples filed a lawsuit in an Arkansas federal court July 15 seeking to overturn that state’s ban on allowing same-sex couples to marry. The lawsuit is Jernigan v. Crane and the judge initially assigned the case, Leon Holmes, recused himself, saying he has close, long-standing personal and professional relationships with the leaders who campaigned for the ban.
In Kentucky, a gay male couple that has been together for 31 years and was married in 2004 filed a lawsuit July 26 in the federal district court for Louisville. In Bourke v. Beshear, Gregory Bourke and Michael Deleon and their two children are suing Democratic Governor Steve Beshear, seeking to require the state to recognize marriage licenses issued to same-sex couples in other jurisdictions.
The lawsuit, filed with private counsel, is a narrow one. It does not seek to strike down Kentucky’s constitutional ban on allowing same-sex couples to marry. It only seeks to require the state recognize marriage licenses same-sex couples obtain in other states or jurisdictions. Attorney Dawn Elliott, who, along with attorney Shannon Fauver, is representing the couple, said the legal team feels “it would be easier for the court to rule on this specific issue and we feel that we would get a more favorable ruling if the suit was specific couples, rather than trying to challenge the Kentucky amendment.”
“We are planning on filing another lawsuit to address the as yet to be performed same-sex marriages,” said Elliott.
In a web video interview with Louisville’s Courier-Journal, Bourke explained that the couple, who married in Canada, decided to file the lawsuit because both men are Kentucky natives who love “where we live.”
“So, when the Supreme Court rulings came out,” said Deleon, “that was probably the most hopeful day we’ve had in our 31 years that some day we might actually achieve marriage equality.”
During the interview, the Courier reporter noted that they were facing “obviously a tough legal road here in Kentucky” and asked why they would put their family, including their two adopted teen children, through the such tough “scrutiny.”
“Well, we would gladly not do it if someone else was doing it instead,” said Deleon. But, he added, “we felt like this is just something we needed to do” and “…the fact that we do have children, we can actually cite how we have been harmed and disadvantaged….”