So Like, What Is It with Using Children? AKA Snakes Pt. 2
Continuing our examination of challenges to marriage equality, let’s consider the D.C. case, Marouf v. Azar, where the issue is whether the federal government, on the basis of religious freedom, violated the Constitution by using taxpayer dollars to fund services that discriminated against lawfully married persons. Two lesbian, married couples, and federal taxpayers have challenged the federal government because part of their tax payments (actually part of all U.S. taxpayers\’ dollars) is used to fund programs that discriminate against them with respect to adoption and foster parenting. Most readers probably know by now, because of recent events, that the federal government provides care to refugee children who reach the U.S. without a parent or legal guardian; the care is provided via the Unaccompanied Refugee Minor Program. The government further provides assistance to children who arrive without a parent or legal guardian and have no legal status through the Unaccompanied Children program. Homeland Security initially seizes children in both programs and transfers them to the Office of Refugee Resettlement program (ORR), which is governed by the U.S. Health and Human Services Department (HHS). ORR then places the children in foster homes or with adoptive parents and provides other care through religious organizations such as the organization at issue in this case, the United States Conference of Catholic Bishops (USCCB). The USCCB openly denounces LGBTQ persons and families because of the organization’s religious doctrine and clearly provides this denunciation in its application for funding from the federal government. Yet, ORR provides grants comprised of taxpayer dollars to the USCCB despite the organization\’s discriminatory policy and, in so doing, violates its parent agency’s – HHS’s – grantmaking rules because HHS follows the law settled by Windsor and Obergefell. One couple, Fatma Marouf and Bryn Esplin, and filed a lawsuit based on these facts after they tried to apply for adoption through USCCB and, during a telephone interview, were denied the opportunity to continue the application process. Fatma and Bryn were told that they were unsuitable because their family did not “mirror the holy family” and thus, were unqualified to foster parent or adopt. In response to this clear discrimination by an organization funded by the federal government, as of February 2018, Fatma and Bryn are seeking redress alleged violations of their rights under the Establishment Clause, the Equal Protection Clause of the Fifth Amendment, and the Substantive Due Process Clause under the Fifth Amendment. Really…what is it with keeping children from being loved by lawfully, married couples?
The Snakes Surrounding Marriage Equality, Pt. 1
We would usually post a rainbow or something uplifting for PRIDE, but this month, we\’ll leave rainbows for the parade… Because, ironically, as we celebrate PRIDE 2018, the LGBTQ community is facing an erosion of rights established by long and hard-won battles. So, as I join the community in celebration, I also underscore the “not quite” response I gave to colleagues, who, when Obergefell v. Hodges was decided, quipped that the LGBTQ community\’s issues with respect to discrimination were primarily over. Like so many groups that continue fighting discrimination – explicit and implicit, the LGBTQ community will score one victory against the venomous discrimination snake just to see the head of another emerging from its hole. Furthermore, because several respected institutions that once stood for “justice for all” are now politicized and fractured, I recently shared analyses of the marriage equality jurisprudence post Obergefell to emphasize that discrimination against LGBTQ families and individuals is still rampant: Post Obergefell Challenges: First Amendment Constitutional Claims When I first read the Masterpiece Cakeshop pleadings, the short hairs on the back of my neck stood up. And as I presented this case the morning of June 4, lightning struck those hairs as my concerns, unfortunately were shown to be well-founded. The issue in Masterpiece Cakeshop, Inc. v. Craig and Mullins was whether an exception in Colorado law prohibiting sexual orientation discrimination could be made because of a business owner’s religious beliefs. That discrimination against customers should be illegal is a no-brainer, right? Well… Jack Phillips, owner of Masterpiece Cakeshop, refused to make cakes for LGBT couples because of his religious beliefs. LGBTQ couples filed a complaint against Phillips with the Colorado Civil Rights Commission, arguing that Phillips’s refusal to bake cakes for the LGBTQ community violated Colorado’s state law that prohibits discriminatory action based on sexual orientation. Phillips’s response was audacious: Instead of denying his actions were discriminatory, he asked that his behavior as a business owner in the marketplace be excused because his business was small and too inconsequential for the State to be concerned with. Phillips’ overall contention amounted to a legal, ‘so what?’ The couples disagreed with Phillips’s minimalist argument, responding that (1) the discriminatory action has been illegal since the 1960s; and (2) Phillips’s religious beliefs could not be allowed as a basis to create an exception because the history of intolerance based on religion illuminates the horror such unfettered intolerance has wrought. The Commission found in favor of the couples. Score one for the good guys. Phillips, of course, appealed. On appeal, the couples’ brief explained how debate has continued regarding religious beliefs and discriminatory action but the law was clear: Action such as Phillips’s was illegal in the marketplace. Also, Phillips’s contention the State’s interest was marginal was bunk because Colorado has thousands of LGBTQ residents and families, despite the fact that Colorado has a storied history with respect to its discrimination against the LGBTQ community. Yet, even setting that fact aside for the sake of argument, the additional fact that the commercial marketplace must be open to all, free of discrimination, still remains. Business owners’ religious beliefs should not determine the sales strategy of a for profit, commercial enterprise. To allow such discriminatory action would undo more than 50 years of precedence. The Colorado Appellate Court agreed. Score two for the good guys. However, one could already see the snake tracks of discrimination heading toward LGBTQ rights after the Hobby Lobby decision was announced in light of Windsor. In Burwell v. Hobby Lobby Stores Inc., the U.S. Supreme Court examined 2 for-profit, closely-held corporations’ claims that the Religious Freedom Reformation Act’s mandate to provide healthcare, including access to contraceptives, violated the corporations’ First Amendment and statutory rights to freedom of religion by forcing them to provide health insurance coverage for abortion-inducing drugs and devices, and related education and counseling. The Court, taking a bite at women’s reproductive rights – or more broadly, individual rights – ruled in favor of the corporations. The Roberts Court is becoming known for its narrowly drawn Opinions, such as the Hobby Lobby decision, addressing one part of a case, while ignoring another. So, when deliberating Masterpiece Cakeshop, the Court’s majority, as I feared, slid in discrimination, couched in religious freedom, by focusing not on the Appellate Court\’s review but on the Colorado Commission’s hearing. During the Commission’s hearing, hearing officers deliberated aloud, indicating they held a bias in favor of business persons keeping their religious feelings to themselves when serving the public in commercial settings, comments that the Court reasoned undermined Phillips’s Due Process rights. Remarkable! Phillips admitted he discriminated and so what; hearing officers rebuke this lack of respect for equality that is – or was – the law; and the U.S. Supreme Court glides past the fact that the Appellate Court’s decision was reviewed according to all the facts and law notwithstanding the Commission’s hearing, used the hearing officers’ vocal comments made in a public hearing, comments steeped in a half-century of law, to actually weaken that half-century jurisprudence. The day Masterpiece Cakeshop’s ruling was announced, legal analysts shouted over the airwaves that the decision was not very meaningful because it was decided narrowly. However, Plessy v. Ferguson was also decided on narrow grounds and has yet to be expressly overturned. Also, as Justice Harlan explained in his dissent in Plessy, the U.S. Supreme Court is the final arbiter of American law and its rulings, broad or narrow, affect laws and public policies for decades if not centuries. The majority Opinion also slipped in a state’s rights argument allowing for “outcomes for cases like this” to be decided by other courts, thereby creating a vein through which discriminatory, poisonous actions can run through our country with little impediment or cure. And so marches for equality must continue until celebrations can be fully enjoyed, without fear of snakes paralyzing equality jurisprudence. Snakes, Pt. 2 – About the Children…
Revisiting We ALL Do…
June is PRIDE month and to celebrate…all month long, we\’re revisiting the one of the most important decisions for our friends, family, and clients in the LGBTQ community: Obergefell v. Hodges, which gave the community marriage equality. To start things off, let\’s consider the 4 \”principles and traditions\” the Supreme Court of the United States used to justify its Opinion and, thus, marriage equality: \”Individual autonomy\” encompasses the right to decide who one will marry. See Loving v. Virginia. And in case you\’re wondering, \”individual autonomy\” is legalese that underpins the Declaration of Independence, the instrument that declares individuals free to pursue happiness. The union of marriage is a fundamental right because the intimacy of the marital union is unique and depriving same-sex couples from the recognition and protection of that intimacy is wrong. Marriage equality helps protect the emotional stability of children borne or adopted into same-sex marriages, by equalizing their families with heteronormative families. Marriage is one of the bases of America\’s social and legal order. Depriving same-sex couples from enjoying the benefits of marriage, which includes social stability, would be \”demeaning. Individuals must be free to pursue happiness. That happiness can be found in the remarkable closeness of the marital union. Generally, children are the fruit of marriages and children must be protected because they represent the future. Thus, marriage is a societal bedrock in which most adult individuals must be able to participate. Sounds simple, but it took us almost 50 years to get here.
5 Years and 5+ Lessons!
It\’s true; \”time flies when you\’re having fun!\” So The Law Offices of Max Elliott is looking forward to 5 more years of \”fun\” or, more precisely, taking great satisfaction from servicing our clients as diligently as possible, protecting them, their interests, and future generations. To prepare this \”Anniversary\” piece, I reviewed our inaugural article to determine if 5 years\’ experience would cause me to change any of the positions I held at the beginning of this sojourn. One: A young married couple with a home, moderate income, and no dependents AND no wonky family dynamics could likely have a will prepared online. However, I would still recommend that an experienced attorney in their jurisdiction review it. With that exception – and the fact that I need a new photo, I agree with me on everything else. Okay, now what? What are additional takeaways from 5 years as an attorney providing wills, trusts, advanced directives, guardianship assistance, adoptions, negotiations between beneficiaries and fiduciaries, winding up estates, and wealth preservation guidance? Families need to talk more and talk sooner, reaching across the generations to gather history, empathy, and love. Today\’s world is too unpredictable and many of the squabbles are based on a lack of understanding because we haven\’t taken the time to actively listen to our loved ones. AND tolerance goes a long way. Most lawyers need to listen way more, talk way less, and be willing to educate and collaborate with our clients. Just because we\’re in the 21st century doesn\’t mean that 20th century values involving civility, integrity, and reasonableness should be not applicable in all of our professional relationships. Technology cannot send you a referral and cannot sooth the emotions of a disillusioned client. If I cannot bring my integrity into your sandbox, I can be happy playing in another sandbox, regardless of the plastic toys offered. Life is precious. Breathe, laugh, and yes, smell some flowers. The Plus: It is awesome being in on amazing, wonderful, legal change. When our office launched during Pride month in 2011, we were in the battle for marriage equality and 5 years later – it is the law of the land! \”NO MO DOMA!\” is a reality and, while the fight for rights in the LGBTQ community along other very important lines still goes on, the LGBTQ community and its allies, such as our firm, can rest a tad easier now on the marriage equality front. What an awesome 5th Anniversary Gift – Happy Pride Month! I don\’t want to name names but let it be sufficient to say that our firm has had amazing supporters from all walks of life during these last few years. It is our hope that we continue to learn and grow and provide the services that make our supporters proud and clients happy. Thank you all and here\’s to the next 5!
The Wait Is Over: All Americans Are Free to Wed
In a plurality Opinion authored by Justice Anthony Kennedy, today, June 26, 2015, the United States Supreme Court ruled in favor of marriage equality for the country. Removing any doubt that states that did not support same-sex marriage would be able to continue to discriminate against LGBTQ couples, in Obergefell v. Hodges, the Court provided that states must (1) recognize same-sex marriages that were lawfully performed, even if outside of their states and (2) states must issue marriage licenses to same-sex couples. Accordingly, if a state did not recognize or did not provide for same-sex marriages before, it must do so now. The Court’s rationale for its ruling considered 4 principles: (1) personal choice; (2) the status of marriage; (3) the protection of children; and (4) the stability of America’s social order. This 27-page Decision downloaded here, followed by 76 pages of dissent, is based on the fundamental right to marry, which is undergirded by the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. The holding is as eloquent as it is just: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The 62 pages of dissent begins with Chief Justice Roberts, who argues that the acceptance of marriage equality will be much more difficult to achieve because of those who were and are against marriage equality will be chaffed by the fact that their opinions are now irrelevant in the eyes of the law. He analogizes the coming “cloud” over marriage equality to that of the cloud over racial equality. It is a point well taken but, respectfully, the Chief Justice is ignoring the fact that a long-standing responsibility of the Court is to provide equality in the law where inequality exists for those who have been marginalized. The fight for social recognition, of course, is not over. However, being equal with respect to the law does not require social acceptance. Justice Scalia argues that America’s democracy is now in jeopardy. His dissent is not unusual in that he disagrees with the Opinion on the grounds of Constitutional literalism and states’ rights. It is unusual in that he equates the Court with God but then states that the Court, or the 5 activist judges comprising the majority in this Decision, is acting out of hubris. His opinion that 135 years of precedent has been overturned is quite remarkable, itself. Justice Thomas is also in his usual form, reiterating Justice Scalia’s remarks but offering for good measure a nod to the Magna Carta that just celebrated its 800th anniversary and the philosopher John Locke. The final and most brief dissent, authored by Justice Alito, is a rejection of the new norm or “orthodoxy” as J. Alito terms it. Notwithstanding the dissents, as C.J. Roberts stated, the argument – at least legally – is over; and to quote J. Kenned, “It is so ordered.” We do.
What If I\’m Neither: The Dual-Track Agency Dance
In our first article in this series, unlike Illinois law, we alluded to how Windsor created tricky issues for the LGBTQ community to navigate with respect to marriage. The Illinois Marriage Fairness Act embraces the entire LGBTQ community, whereas Windsor does not. Okay, but what does this mean? Part of the Windsor decision required action by the IRS, which resulted in the IRS passing Revenue Rule 2013-17 (“Rev. Rule 2013-17” or “Rev. Rule-17”). The rule stated that the agency never gave much, if any, meaningful consideration to gender; so, since the Court in Windsor required IRS action, the agency the IRS mandated that, post-Windsor, its rules and regulations governing all taxation applicable to heteronormative (“straight”) married couples would also apply to lawfully same-sex married couples. Additionally, the IRS announced that it would use the “place of celebration” standard when reviewing its matters with respect to married couples. Finally, the agency strongly suggested that other federal agencies, especially those whose benefits were governed by IRS rules and regulations, to follow suit. However, many federal agencies that used male and female descriptors in definitions involving marriage didn’t recognize same-sex marriages before Windsor. So, post-Windsor, a number of federal agencies decided that, like the IRS, they were required to abide by the Supreme Court decision for lawfully married same-sex couples, the agencies were not required to use the same standard of review for determining benefits as the IRS and the Court would not disagree, per another seminal Supreme Court case, Chevron. Therefore, many agencies decided to use the “place of domicile” standard instead. Explaining the \”standards\” Place of Celebration: Same-gender marriages are recognized as legal as long as the place where the couple was married provides legal same-gender marriages. An agency that uses this standard will recognize your marriage even if you live in an unfriendly state. Place of Domicile: The same-gender marriage must be legal where the married couple resides. Ergo, if the couple was married in Illinois, which provides same-gender marriages, but lives in Florida, an unfriendly state that does not recognize same-gender marriages, then an agency using this standard will not recognize the marriage as legal. The dual-standard usage by federal agencies resulted in a dual-track federal benefit system for legally married same-sex couples. So, while Windsor was a great milestone for the LGBTQ community, the federal agency guidance that followed created an interesting path for planners to navigate, depending on the benefits the plan needed to consider. For example, if estate planning attorneys consider the dual-track federal benefit system strictly from a same-sex paradigm, i.e., lesbian, gay, and bigender, the decision matrix would resemble the chart to the left. Also, if attorneys consider the dual-track benefit system when planning for a transgender person who is in transition and cannot check a gender box or a queer person who will not check a box, then we\’re left with the question marks below. All of the question marks are appropriate for transgender married couples who even reside in friendly states, such as Illinois, because lawyers must consider a plethora of benefits from agencies that a potential surviving spouse should receive were that spouse in a heteronormative marriage. Still, as the chart below illustrates, agencies following Windsor and using the place of domicile standard can inadvertently preclude transgender or queer surviving spouses from enjoying benefits that surviving spouses who are in lawful same-sex marriages enjoy. Considering a transgender person who has completed their sexual reconstruction and resides in an unfriendly state or who would like to leave benefits to their spouse, results in several questions about the definition of ‘spouse’ as derived from a particular statute or regulation governing a particular benefit: If the state defines spouse in terms of Windsor and the couple consists of a transgender man and a non-transgender woman, then is the couple a same-sex couple? If a state benefit did not follow Windsor, should the couple argue that the transgender man’s identity should apply and, therefore, they are a heteronormative couple able to receive the benefit? If the transgender man could transfer benefits to his spouse but a same-sex married couple living in the same state could not, is that fair? If the transgender man began his transition before Windsor and completed his transition after Windsor, would a federal benefit even apply? These and many questions are what transgender and queer couples must contend with in Windsor’s wake. Stay tuned for a few solutions and, of course, more questions. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4
What if I\’m Neither: Opposite Does Not Equal Different
Welcome to the second article in our series on \”Estate Planning for the T&Q of the LGBTQ Community.\” Click here to read the first article. The role of pronouns and how important that role is to transgender and queer persons is illustrated by the language in marriage equality case law and our statutes, especially when combined with certain adjectives. Consider Illinois’ first “marriage equality statute,” the Illinois Religious Freedom Protection and Civil Union Act (“Civil Union Act”). Section 5 of the Civil Union Act provides that one of its fundamental purposes is to “provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.” Section 5 contains no language involving gender or biological markers. However, when reviewing Section 10, Definitions, we see that “‘Civil Union’ means a legal relationship between 2 persons of either the same or opposite sex…” So, according to the Illinois Civil Union Act, persons who entered into civil unions had to be either male or female. What if one or both of the parties was neither? Section 5 requires the Civil Union Act to be liberally interpreted. Arguably, the liberal interpretation is to be applied to the parties and actions satisfying the definitions of Section 10. So anyone living in some of Illinois’ more conservative counties who didn’t satisfy the definitions is SOL, right? Setting aside the question the Civil Union Act left open for transgender and queer couples, the conundrum still emerges when considering the language in U.S. v. Windsor. The last paragraph in Windsor states, “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.” Windsor patently applies to same-sex couples; it is not gender neutral. Therefore, while Windsor was a watershed moment for same-sex couples desiring or intending to marry, it left in the wings, however, transgender and queer couples. Now, you could say that this is being too technical or that this interpretation of Windsor is too narrow; but au contraire. The grant or denial of benefits or rights in this country often hinges on a single word or definition. Even in friendly states, if a person identifies as neither – because they are in the process of sexual reconstruction or because they simply do not identify as male or female – that person may experience legal difficulties because they are asked to check a box that does not comply with their identity. If this issue causes problems in friendly states, imagine the results in unfriendly states. Returning to Illinois statutory law, we see that the language in Illinois’ new marriage equality statute embraces the entire LGBTQ community. Carefully considering our Marriage Fairness Act’s Section 5 language, we see that the Act’s underlying purpose is to “provide same-sex and different-sex couples and their children equal access to the status, benefits, protections, rights, and responsibilities of civil marriage.” Note that the term “different-sex” replaces the term “opposite-sex” that was in the Civil Union Act. This was not an oversight. Thus, the Illinois Marriage Fairness Act embraces transgender and queer couples, in addition to lesbian and gay couples. Perhaps our state\’s legislators should make a trip to the U.S. Supreme Court. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4
Will Marriage Equality Be Recognized Nationally?
The marriage equality march is returning the U.S. Supreme Court again this April and this time, the Court may just determine to end the continued discrimination against same-gender couples in the 14 states that refuse to allow loving, committed couples of the same gender to marry. The plaintiffs who caused the straw on the camel\’s back to break are a lesbian couple from Michigan whose case created yet another division between the 36 who get it and the 14 who don\’t. If you\’re familiar with our marriage equality work, you know we\’ve been watching and participating in the marriage equality march from our firm\’s inception. So, we are pleased that some sources report that Chief Justice Roberts may side with the plaintiffs in this case. Note, C. J. Roberts did not decide on the constitutionality of state bans in Windsor, and left himself room to join or, even pen, the appropriate decision in this case. Why? Because of Loving v. Virginia, which we and other colleagues have long argued is the fundamental legal basis for providing national marriage equality. Other legal analysts also wonder if the Court will revisit the term \”animus\” because the seminal cases involving recognizing individual rights for the LGBTQ community involve a determination of animus on the part of opponents to LGBTQ rights. The Court has allowed extra time for arguments. The decision is likely to be reached at the end of June. We are confident where the socially conservative 3 justices – Thomas, Scalia, and Alito – will stand. We are also confident where the socially liberal justices – Ginsberg, Breyer, and Kagan – will stand. Many also think that Kennedy will side with the liberal 3 but we\’re not so sure given his recent decisions on individual rights involving minorities. Additionally, Sotomayor was the intervenor for Kansas, providing opponents of marriage equality to at least temporarily prevail in upholding Kansas\’s marriage equality ban. Thus, we\’ve got a number of interesting scenarios confronting the question: Roberts votes with Ginsberg, Breyer, and Kagan and Kennedy, who sided with them in Windsor, will create a plurality allowing for marriage equality in America and thus, creating the United States of America once again, at least with this issue; Roberts votes with the liberal 3 but Kennedy and Sotomayor do not, leaving the patchwork and discrimination in place; Roberts votes with the conservative 3 but Kennedy and Sotomayor side with the liberal 3 (see plurality cited in #1); Roberts sides with the conservatives and Kennedy or Sotomayor also side with the conservatives (see patchwork and discrimination in #2). June will be a very interesting month indeed – for the LGBTQ community, for America, and for the Roberts Court legacy.