Category: Legal

After GOP pressure, Texas Supreme Court takes gay marriage case

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Texas gay marriage

In a rare reversal, the all-Republican Texas Supreme Court accepted a gay marriage case Friday after pressure from state GOP leaders and grass-roots activists.

The state’s highest civil court had rejected the case 8-1 in September, prompting a concerted effort to revive a lawsuit that sought to abolish benefits the city of Houston provides to married same-sex couples. Opponents believe the Houston case provides an opportunity for a ruling that limits the impact of the 2015 U.S. Supreme Court ruling that legalized same-sex marriage.

Gay marriage opponents asked the court to reconsider by filing a rarely granted motion to rehear the case that the court accepted, without comment, on Friday.homophobia

Oral arguments will be heard March 1.

The motion to rehear urged the court to reject the “ideology of the sexual revolution” embraced by federal judges who found a constitutional right to gay marriage, overturned Texas abortion regulations and struck down a Mississippi law that would have allowed individuals and businesses to refuse service to same-sex couples based on religious objections to gay marriage.

A separate friend-of-the-court brief, signed by 70 Republican politicians, conservative leaders and Christian pastors, urged the court to stand up to “federal tyranny” and warned that failure to accept the appeal would deny voters “an opportunity to hear what their duly elected high court justices have to say on such an important issue.”

Ratcheting up the pressure, Gov. Greg Abbott, Lt. Gov. Dan Patrick and state Attorney General Ken Paxton, all Republicans, filed a brief telling the court that the Houston lawsuit provides an opportunity to limit the impact of the U.S. Supreme Court ruling that struck down the state’s ban on gay marriage.

Opponents of same-sex marriage, spurred by religious and social conservative leaders, also barraged the court with emails asking justices to strike down the Houston benefits or face a voter backlash in future Republican primaries.

by Chuck Lindell, statesman.com – January 20, 2017

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Under Trump, Approach to Civil Rights Law Is Likely to Change Definitively

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Washington — In the final weeks of the Obama administration, the Justice Department won the first hate-crime case involving a transgender victim and sued two cities for blocking mosques from opening.

Prosecutors settled lending-discrimination charges with two banks, then sued a third. They filed legal briefs on behalf of New York teenagers being held in solitary confinement, and accused Louisiana of forcing mentally ill patients into nursing homes.

And then, with days remaining, prosecutors announced a deal to overhaul Baltimore’s Police Department and accused Chicago of unconstitutional police abuses.gay hate

The moves capped a historic and sometimes controversial eight-year span in which the Justice Department pushed the frontiers of civil rights laws, inserting itself into private lawsuits and siding with transgender students, juvenile prisoners, the homeless, the blind, and people who videotape police officers. On issues of gay rights, policing, criminal justice, voting and more, government lawyers argued for a broad interpretation of civil rights laws, a view that they consistently said would put them on the right side of history.

Few areas of federal policy are likely to change so definitively. President-elect Donald Trump’s nominee to be attorney general, Senator Jeff Sessions of Alabama, opposes not only the Justice Department’s specific policies on civil rights but its entire approach. While liberal Democrats have criticized Mr. Sessions’s views on specific issues like gay marriage and voting, the larger difference is how differently the Trump administration will view the government’s role in those areas.

by Matt Apuzzo, New York Times, January 19, 2017

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Florida settles federal birth certificate suit, agrees to recognize same-sex married parents

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gay parents adopting, same sex paretners

Two years after gay marriage became legal in Florida, the state has agreed to settle a federal lawsuit over birth certificates issued to children born into same-sex marriages.

Two married lesbian couples and the advocacy group Equality Florida Institute sued the state in 2015 after health officials refused to include both parents’ names on the documents. The lawsuit came months after same-sex marriages became legal in Florida and two months after the U.S. Supreme Court struck down state bans on gay marriage as unconstitutional. 

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“Now more than ever, it’s imperative that our families have every protection available under the law,” Miami family law attorney Elizabeth Schwartz said in an Equality Florida news release. “As a Florida native, I’m grateful my home state has recognized the validity of our marriages and is willing to honor legal parents on this most essential of documents.”

State Department of Health officials had contended they lacked the authority to change birth-certificate forms without lawmakers taking action, a position that led to only birth mothers — and not their spouses — being listed on the documents. But the Republican-dominated Legislature, which last year met from January until mid-March, did not approve changes to the law to recognize that same-sex marriage is legal in Florida.

The Department of Health in May asked U.S. District Judge Robert Hinkle to dismiss the lawsuit, arguing that it was moot because the state had started listing both spouses on birth certificates of children born into same-sex marriages and had started a rule-making process to allow the designation of “parent” — in addition to “mother” and “father” — on the birth records.

But lawyers for the same-sex couples and Equality Florida objected, arguing that the health department’s “recent remedial measures are both substantively incomplete and procedurally lacking in finality” and that the issues are not moot.

Last week, lawyers for the plaintiffs and the state filed a document telling Hinkle they had reached a settlement in the case.

Under the settlement, the state agreed to issue corrected birth certificates free of charge to the plaintiffs and to all same-sex couples who received incorrect documents. The state also pledged to apply the statute regarding birth certificates “and any forms promulgated based on that statute to same-sex spouses in the same manner as they are applied to opposite-sex spouses.”

The state also agreed to pay $55,000 to in legal fees and costs to the plaintiffs.

By Dara Kam, The News Service of Florida – Miamiherald.com – January 11, 2017
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I Got Gay Married. I Got Gay Divorced. I Regret Both.

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In 2008, gay marriage was so new, my wife and I had a hard time finding a lawyer to help us legally join our lives together.

In 2013, gay divorce was so new, I had a hard time finding a lawyer to take our marriage apart.

We fell in love in the ’90s, when getting legally married wasn’t something two women could do. We danced in the streets on May 15, 2008, when the California Supreme Court ruled that “an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.”

And we decided to tie the knot ourselves the day before Election Day that year, when it suddenly seemed that California Proposition 8 was going to pass, banning same-sex marriage again.gay marriage

Beneath an arbor of grimy plastic ivy at the Alameda County Clerk-Recorder’s Office, we wept grateful tears as we swore to “love, honor, and keep each other, in sickness and in health, as long as we both shall live.”

Twenty-four hours later, Prop 8 did pass, changing the marital status of 18,000 same-sex California couples from “married” to “who knows?”

Also unknown: why the happiest day of our life together was one of our last happy days. Why nothing we tried — individual and marriage therapy, romantic vacations, trial separations — could fix us.

In 2013 I Googled “gay divorce lawyer” and found only “gay family law” attorneys. I called the one with the best Yelp reviews.

“I need to file for d — ” The word caught in my throat.

In many cities over many years, my wife and I had marched for marriage equality. We’d argued with the haters and we’d argued with the gay people who said that legal marriage would co-opt us, diminish us, turn us into a caricature of “normal” married people. We swore we could enjoy the rights only marriage conferred and still have our gender-fluid commitment ceremonies, our chosen-family configurations, our dexterity at turning friends into lovers and vice versa.

Divorce felt like more than a betrayal of my wedding vows. It was a betrayal of my people and our cause.

“Yours won’t be my first gay divorce,” the lawyer told me, “and I guarantee you, it won’t be my last.”

I asked how long it would take, and what it would cost. He couldn’t give me even a ballpark estimate. The laws were in such flux, he said, that both gay people who wanted to marry and gay people who wanted to divorce were twisting in the shifting winds.

When the lawyer and I had our first, $350-an-hour conversation, same-sex marriage was outlawed in 37 states and legal in 13 (and the District of Columbia). Change was the only constant, and each change increased the time (his) and money (mine) it cost to research its implications.

gay divorceMy case had a bonus complication. In 1999, before real marriage was available to us, my wife and I had registered as California domestic partners. Did we need a separate legal process to end that partnership? No one was sure.

I mailed the lawyer a big deposit. He emailed me a big stack of documents. On the first page, there it was: my wife’s name, right next to mine. The thrill of that triumph, of being a gay person with the legal recognition of a straight person, ran through me as it always had. Then I remembered that I was seeing it for the last time.

As the process unfolded over the next several months, I couldn’t help comparing my second divorce with my first, in 1983, from the father of my kids. That’s the one that should have been complicated. Like most straight married couples, my husband and I owned our stuff jointly — one bank account, two cars, one ranch house and everything in it. Most wrenchingly, we had two little boys whom neither of us could imagine living without for even a day. Yet our divorce, our property division and our custody agreement were all ironed out in a few meetings with a paralegal, whose services cost less than $1,000.

Like most early same-sex-marriage adopters, my wife and I had intermingled our hearts and lives but kept our finances and property separate. And yet I was in for a much longer, costlier contest.

On June 26, 2013, the Supreme Court nullified the Defense of Marriage Act, granting federal benefits to all current same-sex marriages. Six months, dozens of notarized documents and many thousands of dollars into the process of getting divorced, because we hadn’t yet officially filed, my soon-to-be ex-wife and I were more married than ever.

New York Times – January 7, 2017 – by Meredith Maran

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Arkansas Court Upholds Gay Marriage Birth Certificate Law – Blow to Same Sex Couples

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Arkansas‘ highest court on Thursday threw out a judge’s ruling that could have allowed all married same-sex couples to get the names of both spouses on their children’s birth certificates without a court order, saying it doesn’t violate equal protection “to acknowledge basic biological truths.”

The state Supreme Court also issued a rare admonishment to Pulaski County Circuit Judge Tim Fox, saying he made “inappropriate remarks” in his ruling that struck down the birth certificate law. Fox had cited the U.S. Supreme Court’s decision legalizing gay marriage in his ruling last year that said married same-sex couples should have both names listed on their children’s birth certificates, just as heterosexual married couples do, without requiring a court order.Family law

In the state Supreme Court’s decision Thursday, the justices sided with the state attorney general’s office, saying Arkansas has a vested interest in listing biological parents on birth certificates.

“What is before this court is a narrow issue of whether the birth-certificate statutes as written deny the appellees due process,” Justice Josephine Linker Hart wrote in the court’s majority opinion. “…In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths.”

Cheryl Maples, who sued on behalf of three same-sex couples, said she hasn’t decided yet whether to appeal to the U.S. Supreme Court. The three couples who sued were allowed to amend their children’s birth certificates last year under a ruling issued by Fox.

“There’s no requirement that DNA be given or that there be a biological relationship to a child to get on a birth certificate for a father, for the non-birth parent,” she said. “All you have to do is legitimize the child and you’re entitled, if you’re heterosexual. This is wrong.”

Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said the state is “gratified” by the court’s decision.

“If any changes are appropriate it is the job of legislators to do so, not the circuit court,” he said.

Associate Justice Paul Danielson dissented and Justice Rhonda Wood concurred in part and dissented in part.

by Jill Bleed, ABCNews.com, December 8, 2016

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Verizon’s Bar on Paid Leave for Surrogate Births Prompts Bias Suit

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A New Jersey woman who had twins by a gestational surrogate has filed a discrimination suit against Verizon Communications because she was not allowed to take time off under the company’s paid maternity leave policy.

Marybeth Walz of Red Bank said Verizon grants six to eight weeks of paid leave to women employees who become mothers through birth or adoption. Walz opted to use a surrogate because her uterus had been removed after she was diagnosed with cervical cancer in 2001. But the company refused to grant her paid leave, and instead required her to use vacation and sick days when the twins were born prematurely in November 2013, the suit said. As such, she suffers from a pregnancy-related disability because she is unable to become pregnant, her suit claims.gestational carrier

Granting paid leave to a woman who becomes a mother through surrogacy allows her to bond with her child, said Gaia Bernstein, a professor at Seton Hall University School of Law in Newark whose areas of study include reproductive technology and the law.

“There are more and more surrogate cases. I think the mothers [who use a surrogate] should get the same benefits as a mother who is adopting or an actual mother because they are the one taking care of the baby. The way they got the baby is irrelevant,” said Bernstein.

The suit, Walz v. Verizon Business Network Services, accuses Verizon of sex, pregnancy and disability discrimination as well as retaliation and violation of the Family and Medical Leave Act. It was filed in federal court in Boston in September 2015, but Verizon moved to transfer the case to the District of New Jersey.

One of the boys, Thad, suffered a pulmonary hemorrhage and died one day after birth. The other, Jude, was diagnosed with a rare form of cancer and died six months later. While she was coping with the death of Thad, the serious illness of Jude and her own grief-related mental disability, she received a new job assignment that she contended was a demotion. And shortly after Jude’s death, she was terminated from her job.

Walz’s eggs were fertilized with an anonymous donor’s sperm and transferred into the uterus of her sister-in-law in May 2013. Walz, her sister-in-law and her brother obtained a consent order from a North Carolina court, calling for Walz’s name to be listed as the mother on the twins’ birth certificates, with no name listed for the father. The order also severed the rights and responsibilities of Walz’s brother and sister-and-law to the twins.

Walz said a Verizon human resources representative suggested she adopt the twins, to which she replied that she saw no need to adopt her own children, and was instead securing her rights through a consent order The human resources representative said “shame on you for doing it that way,” and said the company would pay $10,000 in expenses if she adopted the children.

Verizon’s handling of the case caused Walz extreme emotional distress and anxiety, she claims.

Lawyers for Basking Ridge-based Verizon, from Morgan, Lewis & Bockius, have moved to transfer the venue to New Jersey, and the case has been stayed pending a ruling on venue. The company maintains that the plaintiff, defendant and most of the witnesses are located in New Jersey and the only reason for the case to be in Massachusetts is that the plaintiff’s lawyer is located there.

A Morgan Lewis attorney in Princeton, Michelle Silverman, did not respond to a request for comment.

Charles Toutant, New Jersey Law Journal

November 14, 2016

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LGBT Family Rights in a Trump Presidency

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LGBT family rights in a Trump presidency

Many are asking, “Will there be LGBT family rights in a Trump presidency?” While there certainly is cause for concern about the direction of our country, there are also certain realities that are reassuring.

I never thought I would be writing about LGBT family rights in a Trump presidency. But I also never received as many concerned calls from previous and prospective clients asking whether their marriages would be invalidated, or whether their second or step parent adoptions would be overturned.  These serious questions have led me to write about what I see as LGBT family rights in a Trump Presidency.

First, there is strong precedent holding that when a marriage is validly performed, it will be respected and honored under the law. This means that those LGBT Americans who are already married should not have to worry about a new Supreme Court taking their marriages away from them.LGBT family rights in a Trump presidency

For those who are not married but may wish to in the future, the question is a bit more nuanced. Shannon Minter, the legal director of NCLR, the National Center for Lesbian Rights, and one of the smartest legal minds in our community, said in a recent press release, “it is also highly unlikely that the fundamental right of same-sex couples to marry will be challenged or that the Supreme Court would revisit its 2015 holding that same-sex couples have that fundamental right.”  Mr. Minter is basing this belief on the long held tradition of the court to honor its previous decisions, a term called stare decisis.

The question many legal scholars are asking is whether a newly conservative Supreme Court will ultimately hear a case challenging the right of LGBT couples to marry and overturn the Obergefell marriage decision. While unlikely, it is possible. We can only wait to see who Trump appoints to the Supreme Court.

The most moving calls that I have received in the past days have been from people either in the process of having their families or plan to have families in the near future. They are deeply concerned about the security of their families.  I recently wrote about New York’s changing family law and how second and step parent adoption are now critical to create unassailable family protections, particularly for non-genetically related parents.  These specific forms of adoption are state based and largely shielded from Federal meddling.  That said, if you have a child and have not gone through the adoption process, it is strongly recommended that you do so now rather than later, when our Federal judicial system may be less friendly to LGBT families.

Among LGBT lawyers, one issue of great concern regards transgender Americans and obtaining accurate gender markers on federally issued identification, such as passports. While there is a transgender rights case which the Supreme Court has agreed to hear, we do not yet know whether a ninth more conservative justice will be appointed in time to hear it.

My husband reminded me that politics is cyclical. We have bounced between conservative and liberal presidents and congresses many time before, however, we have never before been faced with a president who based his entire campaign on dividing America by fearful and bigoted rhetoric.  We have never before had a President who, during his campaign, threatened to ban all Muslims from the country, or “lock up” his presidential opponent or degrade women as objects of his own control and pleasure.

Now more than ever it is time to be proactive. Many of us have experienced the shock and sadness associated with the loss of what we had hoped would be a liberal president in the White House.  We are entering uncharted territory.  LGBT family rights in a Trump Presidency will undoubtedly take some hits, but we are a strong, resilient and loving community.  And we have the tools to protect our families.   Don’t fail to use them!

By Anthony m. Brown, Esq.  November 11, 2016 – For more information, visit www.timeforfamilies.com or email Anthony at [email protected].

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Taiwan Set to Legalize Same-Sex Marriages, a First in Asia

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Taiwan

Su Shan and her partner are raising 5-month-old twins together, but only one of the women is their legal parent. That could soon change as Taiwan appears set to become the first place in Asia to legalize same-sex marriage.

“Now, if something happens to the child, the other partner is nothing but a stranger,” said Su, a 35-year-old software engineer in Taipei in Taiwan. By contrast, either partner in a legally recognized marriage could make legal, medical and educational decisions, she says.

Taiwanese lawmakers are currently working on three bills in support of marriage equality, one of which is already listed for review and could be passed within months. Same-sex marriage also has the prominent support of President Tsai Ing-wen, Taiwan’s first female head of state.marriage equality

About 80 percent of Taiwanese between ages 20 and 29 support same-sex marriage, said Tseng Yen-jung, spokeswoman for the group Taiwan LGBT Family Rights Advocacy , citing local university studies. Taiwan’s United Daily News found in a survey taken four years ago that 55 percent of the public supported same-sex marriage, with 37 percent opposed.

That’s seen as a reflection of Taiwan’s ready acceptance of multi-party democracy and other inclusive attitudes, as well as the fact that Taiwan’s 23 million people largely follow Buddhismand traditional Chinese religions that take no strong positions on sexual orientation or gay marriage.

Gay and lesbian relationships began to find wide acceptance in the 1990s, aided by the already well-established feminist movement, said Jens Damm, associate Professor in the Graduate Institute of Taiwan Studies at Chang Jung University in Taiwan.

“The elite became in favor of a kind of gender equality,” Damm said.

Still, same-sex marriage still had to overcome traditional perceptions of gender roles and the strong pressure on children to marry and have kids. The self-ruled island also lacks many openly gay and lesbian celebrities to lead the way; the writer and television talk show host Kevin Tsai is among the few exceptions.

By RALPH JENNINGS, ASSOCIATED PRESS

TAIPEI, Taiwan — Nov 10, 2016

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Arkansas court hears case over same-sex birth certificates

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Arkansas Supreme Court justices questioned Thursday whether it’s up to them or the Legislature to change the state’s birth certificate law after gay marriage was legalized nationwide, as they weighed a lawsuit brought by three same-sex couples who wanted both spouses listed as parents.

 LITTLE ROCK, Ark. — State Solicitor General Lee Rudofsky told justices that a Pulaski County judge went too far last year by striking down part of the state’s birth certificate law as unconstitutional, and said a narrower change to the state’s artificial insemination law would address most of the concerns. Judge Tim Fox’s ruling last year struck down portions of the birth certificate law that limits references to spouses as husband or wife.

Fox’s ruling, Rudofsky said, “upends centuries of family law and flies in the face of clear legislative intent.”lesbian family law

Justices in December agreed to temporarily halt Fox’s ruling regarding the birth certificate law while they considered the appeal. The court did not halt a separate order from Fox allowing the three same-sex couples who brought the lawsuit to amend their children’s birth certificates. Rudofsky said changing the state law regarding artificial insemination would allow both same-sex spouses to be listed as parents if they were married at the time of the child’s birth. Under that change, same-sex couples who weren’t married at the time of the child’s birth would still need a court order to both be listed.

Interim Chief Justice Howard Brill asked Cheryl Maples, the attorney for the couples, whether it was the court’s role to rewrite the birth certificate law.

“Shouldn’t we direct the Legislature to revise the statutes to comply with the Constitution in a gender neutral way instead of a trial judge or this court trying to rewrite major statutes with all the implications that are involved?,” Brill asked. “Isn’t this a question for the Legislature to correct constitutional flaws in this?”

“If we wait for the Legislature to take necessary steps to comply with the Obergefell decision, we may never see those changes,” Maples said, referring to the U.S. Supreme Court decision last year that legalized gay marriage.

Justice Rhonda Wood questioned the argument that lawmakers should have the first crack at making a change, noting that the Legislature hasn’t taken up the issue since gay marriage was legalized last year.

“I feel it’s a little disingenuous to say wait on the Legislature because the Legislature has had special sessions since the case came down and it hasn’t been a priority,” Wood said. Lawmakers have convened for three special sessions and an abbreviated session on the budget since that ruling.

Click here to read the entire article.  By  – The Daily Journal
11/3/16 5:34 PM

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