‘DOMA is dead’

SupremeCourtFlash

Marriage equality supporters gather outside the U.S. Supreme Court building Wednesday as the high court hears oral arguments in a case challenging the constitutionality of the anti-gay Defense of Marriage Act. (Courtesy of GLAAD)

LGBT legal experts believe majority on Supreme Court will find law unconstitutional

LISA KEEN | Keen News Service

Today’s argument in the U.S. Supreme Court over the Defense of Marriage Act sounded at times as if President Barack Obama was on trial for enforcing the law even though he considers it unconstitutional. At other times, it sounded like Congress was on trial, for attempting to cloak its moral disapproval of gay people under the guise of seeking “uniformity.” And at the end of two hours, LGBT legal activists seemed cautious but optimistic that there are five votes to find DOMA unconstitutional.

It was the second and final day of two historic sessions at the nation’s high court to hear oral arguments in cases challenging the federal law denying recognition of marriage licenses granted to same-sex couples — and challenging a state law banning same-sex couples from obtaining marriage licenses.

Wednesday’s case, U.S. v. Windsor, posed the question of whether Section 3 of DOMA violates the equal protection clause of the 14th Amendment. New York lesbian Edith Windsor filed the lawsuit with the help of the ACLU when the federal government demanded she pay more than $360,000 in estate taxes after her same-sex spouse died. Surviving spouses in male-female marriages do not have to pay estate taxes.

LGBT legal experts said after Wednesday’s arguments in the DOMA case that it’s likely the Supreme Court will strike down the law when it issues its ruling, expected sometime in late June.

“I think we’re going to win,” said Shannon Minter of the National Center for Lesbian Rights. “I think the court is going to reach the merits on this case and I think they’re going to say that DOMA violates the federal constitution, probably for equal protection reasons. … I do think DOMA is dead.”

The first 50 minutes of the two-hour argument was given to a discussion of whether the case was properly before the court, given procedural questions. On the issue of DOMA’s constitutionality, former George W. Bush Solicitor General Paul Clement, an attorney hired by the Republican-led Bipartisan Legal Advisory Group (BLAG), said the Congress, in passing the law in 1996, did not discriminate against gays but simply decided to define the term “marriage” “solely for federal law” in order to ensure “uniformity” in the deliverance of benefits.

“It’s rational for Congress to say it’s treating same-sex couples in New York the same as same-sex couples in Nebraska,” said Clement.

That assertion did not go unchallenged.

Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, and Ruth Bader Ginsburg all questioned Clement on it.

“What gives the federal government the right to be concerned at all about the definition of marriage?” asked Sotomayor, noting that marriage has always been considered an area of state law. She suggested members of Congress appeared to create a law to disfavor a “class they don’t like.”

When Clement suggested Congress was helping the states by putting the issue on “pause” and letting the states work through the democratic process in deciding the law in each state, Kennedy noted that DOMA seemed instead to be “helping states if they do what [members of Congress] want them to do.”

Justice Ginsburg said DOMA appears to affect same-sex couples by turning their marriages into a sort of “skim milk,” in comparison to whole milk version enjoyed by male-female couples.

Justice Kagan perhaps hit the hardest note when she said the record of House proceedings around DOMA in 1996 seemed to indicate Congress “had something else in mind than uniformity … something that’s never been done before.” She quoted a passage of the House report that said that DOMA was intended to express “moral disapproval” of marriage for same-sex couples.

“That’s a pretty good red flag,” said Kagan.

Clement seemed to be caught off guard by the excerpt. “Does the House Report say that?” he asked.

The challengers of DOMA appeared off guard at times, too.

Chief Justice John Roberts asked both Solicitor General Donald Verilli and plaintiff’s attorney Roberta Kaplan whether it would be permissible for Congress to adopt a definition for federal purposes that included gay couples, rather than excluded them.

Verilli said the House Report excerpt “makes glaringly clear” that DOMA was intended to exclude lawfully married same-sex couples.

“Are you saying that 84 senators were motivated by animus?” asked Chief Justice Roberts in follow-up to both Verilli and Kaplan.

Both Verilli and Kaplan clearly avoided saying that think DOMA was motivated by animus.

“It could have been a lack of reflection or an instinctive response,” said Verilli. But, he added emphatically, “Section 3 discriminates and it’s time for this court to recognize that discrimination cannot be reconciled with our fundamental commitment to equal protection of the law.”

But it was during questioning about the procedural matters that Roberts and other conservative justices hammered on what came across as much as a political jousting as it was a legal matter.

Roberts wondered why President Obama didn’t have “the courage of his convictions” that DOMA was unconstitutional and “instead, wait until the Supreme Court” rules it so.
Justice Samuel Alito said he thought it odd that President Obama would continue to enforce DOMA “until the court tells him to stop.”

Justice Breyer commented that the president has an “obligation” to faithfully execute the laws, whether he likes them or not.

Jon Davidson, legal director for Lambda Legal, said he was “very encouraged” by the argument.

“When it comes to the merits, I think there are at least five justices who are prepared to strike down Section 3 of DOMA,” he said. “One of the things that Justice Ginsburg said at the end, about the beginning of the sex discrimination cases, the court did strike down laws that discriminated based on sex based on rational basis, and saw it as discrimination.”

Mary Bonauto, head of civil rights for Gay & Lesbian Advocates & Defenders, said she thought the questioning was “vigorous” on the procedural issue of standing. On the issue of DOMA’s constitutionality, she said she thought Justice Kagan “called out” the discriminatory statement in the House report.

“Overall, they were asking the right questions and the right themes were in play,” said Bonauto.

Jenny Pizer, a Lambda Legal attorney who followed the case at the three-week trial in San Francisco, said she thought it was clear that the argument of “uniformity” made “no sense at all.”

“It was surprising to me the suggestion from some of the conservative justices that the administration should not enforce laws when they have questions about constitutionality or have a view of constitutionality different from previous administrations have said. That seems immensely impractical,” said Pizer.

“One thing that did seem clear yesterday and today,” said Pizer, “is that we’re witnessing a moment of recognition of anti-gay discrimination and the government trying to come to terms with how it should change. Perhaps we shouldn’t be that surprised that some justices are resistant to addressing the merits of question, but the justices are particularly well situated to address them.”

Yesterday’s argument was over the constitutionality of Proposition 8, California’s voter-approved ban on marriage licenses for same-sex couples. The court heard 80 minutes of argument in Hollingsworth v. Perry over whether it should find California’s ban on same-sex marriage unconstitutional.

In both cases, both sides see Justice Anthony Kennedy as the most likely justice to provide a fifth vote for the winning side. But Tuesday’s argument in the Proposition 8 case left many speculating that the court may decide that opponents of marriage quality did not have proper legal standing to appeal the case.

Legal standing was an issue in the Windsor case, too, because the Obama administration appealed the Second Circuit U.S. Court of Appeals ruling that DOMA violates the equal protection clause of the constitution. A party bringing an appeal must show it is injured by the lower court holding.

© Copyright 2013 by Keen News Service. All rights reserved.

—  John Wright

U.S. prisons officials OK hormone treatments for trans inmates

Jennifer Levi

Memo says ‘current, accepted standards of care’ must be applied

LISA LEFF | Associated Press
editor@dallasvoice.com

SAN FRANCISCO — Transgender inmates who did not begin treatment prior to entering federal custody can now receive hormones, specialized mental health counseling and possibly gender reassignment surgery while they are in prison, according to new rules adopted by the U.S. Bureau of Prisons as part of a court settlement.

A May 31 memo issued to wardens at the nation’s 116 federal prisons and made public by gay rights groups in announcing the settlement on Sept. 30 states, “current, accepted standards of care” will be applied to inmates who believe they are the wrong gender.

Under the bureau’s previous policy, issued in 2005, only federal inmates with a pre-existing diagnosis were eligible for transgender-related care, which was limited to treatments that would maintain them “only at the level of change which existed when they were incarcerated.”

The new guidelines mean prisoners who were previously disqualified from treatment because they had not received any on the outside will now be eligible to begin hormone therapy to feminize or masculinize their features and to dress and live accordingly as part of individualized treatment plans.

“The treatment plan may include elements or services that were, or were not, provided prior to incarceration, including, but not limited to: those elements of real life experience consistent with the prison environment, hormone therapy and counseling,” the memo from bureau medical director Newton Kendig states.

The policy memo does not mention surgical intervention, but National Center for Lesbian Rights Legal Director Shannon Minter said the agreement would permit surgery as a treatment option if prison doctors agree it is necessary for individual inmates.

The May guidance specifically advises wardens that “treatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration.”

That language, as well as the reference to accepted standards of care is significant since the World Professional Association for Transgender Health, the professional organization that issues guidelines for treating gender identity disorders, considers genital reconstruction surgery “essential and medically necessary” for some patients suffering from “gender dysphoria.”

Jennifer Levi, director of the Transgender Rights Project at Gay & Lesbian Advocates and Defenders, said that because the memo does not prohibit surgery, “It leaves open the possibility that the full range of appropriate medical care must be considered in adopting an individual treatment plan.”

“There is no reason why an incarcerated person should be excluded from receiving surgery if it turned out to be medically necessary for that individual,” Levi said.

Bureau spokesman Ed Ross said there are currently 48 federal inmates who have been diagnosed with gender identity disorders. Ross did not respond to attempts by The Associated Press on Friday and Monday to clarify other aspects of the policy, including confirmation that inmates could be eligible for sex reassignment surgery that would necessitate their move to a new prison. All state and federal prisons in the United States assign inmates to men’s or women’s prisons based on their genitalia.

The policy shift resulted from a two-and-a-half-year-old lawsuit seeking hormone therapy for Vanessa Adams, who began serving a 20-year sentence as Nicholas Adams and was diagnosed with gender identity disorder in 2005 by doctors at the U.S. Medical Center for Federal Prisoners in Springfield, Mo.

After she was denied treatment because of the rule requiring previous care for gender identity disorder, Adams, 41, tried to castrate herself with a razor and attempted to and ultimately succeeded in amputating her penis, according to court papers.

Prison officials agreed to put Adams on a course of hormones in August 2009 after a federal judge in Massachusetts, where Adams briefly was imprisoned and her lawsuit was filed, agreed that her lawyers could retain an independent expert to evaluate her. The same judge refused almost a year later to dismiss Adams’ claim that the Bureau of Prisons’ policy on transgender health care constituted cruel and unusual punishment, a decision that paved the way for the settlement.

The agreement also calls for transgender inmates to be notified of the new policies and for prison doctors to be trained to identify and treat gender identity disorders.

Levi said prison officials have typically been hostile to transgender inmates and that she anticipates more legal action to ensure the bureau’s policy is put into practice.

“This should have a very significant effect on the lives of trans inmates. It means people will be receiving appropriate medical care,” Levi said.

Online: http://bit.ly/pAnaog

—  John Wright

Testing a new era: Who defines spouse?

IN DOUBT BECAUSE OF DOMA | NCLR attorney Shannon Minter, third from left, stands with other marriage equality supporters outside the California State Supreme Court during a March, 2008 press conference. Minter says that confusion caused by DOMA could lead to NCLR client Jennifer Tobits losing benefits due her from the estate of her late wife, Ellyn Farley. (Marcio Jose Sanchez/AP)

Dispute over woman’s estate between her partner, parents highlights the problems of DOMA

CHUCK COLBERT | Keen News Service
lisakeen@me.com

One obituary described Ellyn Farley as a happy, studious, pet-loving attorney married to her spouse Jennifer Tobits and only “reluctantly” wearing dresses to attend Mass.

The other described her as a fierce litigator and champion to the underdog, survived by her parents, her brother, various aunts and uncles, a godmother, and “good friends for life who will be in her heart forever, Jennifer and Nancy, of Chicago; and numerous cousins and other devoted friends.”

The first was published in the Chicago Tribune, in the city where Farley lived with her spouse Jennifer Tobits. The latter was published in the Roanoke Times, in Virginia, where Farley grew up.

The first was drafted by one of the lesbian couple’s friends and was reviewed and edited by Tobits.

The latter was coordinated by Farley’s parents who, according to Tobits, did not consult her about its contents.

The first makes clear that Farley was married to a woman; the latter scrubs that reality out of her life story.

Now, Farley’s surviving spouse, Jennifer Tobits, and her parents, Joan and David Farley, are squaring off in two different courts over their different portrayals of Farley.

In probate court in Illinois, they are fighting over Farley’s will. In a federal court in Pennsylvania, where Farley’s law firm is headquartered, they are trying to influence a judge’s determination of who should properly receive the benefits of Farley’s profit-sharing plan.

“This is the new era,” said Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights. “We are all familiar with hearing stories about parents stepping in and not honoring their children’s relationships and trying to take all the assets. Now that so many couples are in marriages or civil unions or domestic partnerships, it’s still happening; but we have a degree … of legal protections that we didn’t have before.”

But in this new era of litigation, Minter said, “there is a lot of confusion” caused by the federal Defense of Marriage Act.

DOMA

DOMA is the federal law that prohibits the federal government from recognizing marriages between same-sex couples. It has two sections.

One states, “No state … shall be required to give effect to any public act, record, or judicial proceeding of any other state … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession or tribe, or a right or claim arising from such relationship.”

The second section reads, “In determining the meaning of any act of Congress, or of any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Farley’s parents, represented by the right-wing Thomas More Society, a pro-life law firm, say DOMA precludes the courts from awarding any of Farley’s death benefits to Tobits.

Minter of NCLR, which is representing Tobits, says DOMA does not apply to private employers, such as Farley’s law firm.

“[P]rivate employers cannot use that as an excuse for not honoring our marriages,” said Minter.

Nevertheless, Farley’s law firm, Cozen O’Connor, has asked a federal court to settle the dispute for them.

The Tobits/Farley case

Jennifer Tobits and Ellyn Farley were married in Toronto on Feb. 17, 2006, and made their home in Chicago. Just a few weeks after their marriage,

Farley was diagnosed with an aggressive form of cancer, which she battled for four years.

She died on Sept. 13, 2010.

Shortly after Farley’s death, her parents, Joan and David Farley of Roanoke, Va., petitioned an Illinois probate court for the right to take over administration of their daughter’s estate. They also sought the assets of a profit-sharing plan Farley had, as partner of the Cozen O’Connor law firm.

The firm filed a motion on Jan. 24, 2011, asking the U.S. District Court for the Eastern District of Pennsylvania to determine who gets the benefits payment.

“In the last week of her life,” said Minter, “Ellyn wrote a will because she feared her parents would try to take everything from Jennifer.

“Ellyn appointed her close friend Nancy [Tuohy] to be the executor of the estate,” he explained. “Initially, Nancy accepted that position and acted as the executor but declined the responsibility later after she realized that she would need to hire an attorney in order to resolve the Farleys’ various claims to Ellyn’s estate.

“The Farleys knew that Jennifer and Ellyn married,” explained Minter. “But they take the position that the marriage is not valid and are arguing that it should not be legally recognized because of DOMA.”

What will Illinois do?

The underlying issue in this case is whether Illinois will recognize the marriage, said Minter.

A civil unions law took effect in Illinois on June 1 this year, and, according to James L. Bennett, Midwest regional director of Lambda Legal, “Illinois recognizes marriages performed in other states or countries, even Canada, as civil unions in Illinois.”

Under that law, said Minter, Tobits would be preferred over Farley’s parents to be administrator of Farley’s estate.

The law firm states, in its document to the federal court, that the firm “had not received a valid designation of beneficiary form from Ms. Farley prior to her death.”

Following Farley’s death, said the firm, Farley’s parents presented them with a beneficiary form “purporting to show that Ms. Farley had designated them as her beneficiaries … and had represented her present marital status as ‘single.’”

The form was dated Sept. 12, 2010, the day before Farley died.

But Cozen also notes that, “inconsistent with the declaration” that Farley was “single,” the beneficiary form submitted by the Farleys “also purports” to have the notarized signature of “Ms. Farley’s spouse.”

The firm says the form “is not signed by [Farley’s] spouse.”

“Accordingly, Cozen O’Connor cannot determine the validity of this designation of beneficiary form,” states the firm’s document to the court.

Tobits, in documents she filed with the federal court, denies ever signing the beneficiary form, but she also acknowledges obtaining a “blank designation of beneficiary form” for Farley’s father the day before Farley died.

Tobits said she did this because the father had instructed hospital staff that the parents — and not Tobits — would make medical decisions for

Farley and because she “feared” the father “would refuse her access to Ms. Farley’s hospital room unless she complied.”

“Wanting to see her dying wife and to avoid a dispute in the hospital with her wife’s parents,” said the documents filed by NCLR, “Ms. Tobits went home to retrieve the form.”

Tobits said she was not present when Farley purportedly signed the form and that the form “was signed” about 30 minutes after Farley had begun vomiting blood.

Farley “fell asleep that night” and died the following morning.

Tobits claims that Farley “suffered from weakened intellect,” that Farley’s parents exercised “undue influence” over Farley, and that Farley did not sign the form of her own free will.

“Ellyn did not have to fill out a form for her spouse to get the benefits,” Minter said. “Under the plan, the benefits go to an employee’s spouse unless the employee designates someone else and the spouse gives written consent, which must be notarized,” he explained.

“The Farleys filled out the form and pressured Ellyn to sign, but Jennifer did not” give her written consent, said Minter.

Cozen O’Connor court documents confirms, “Ms. Tobits’ signature does not appear on the designation of beneficiary form in the space reserved for spouse consent to beneficiary designation.”

Marriage discrimination

Evan Wolfson, founder and president of the National Freedom to Marry organization, said the dispute “highlights how unfair marriage discrimination is, adding to tensions and bad actions even within families.”

And DOMA, he says, “gives those who would tear families apart an extra weapon to use even if the weapon itself is not appropriate.”

The Farley parents’ attorneys say DOMA is implicated because the benefits they seek to acquire from Farley’s law firm are part of an ERISA plan.
ERISA — the Employee Retirement Income Security Act — is a federal law that sets minimum standards for pension plans in private industry.
NCLR’s Minter acknowledges that ERISA “governs many aspects of how benefits must be structured.

“But the plan here,” he said, “defines spouse for itself, which is perfectly acceptable under ERISA.”

And DOMA “does not apply,” said Minter, “because [the law firm’s beneficiary plan] is private.”

“Jennifer meets [the law firm’s plan] definition,” said Minter. “ERISA does not dictate how private employers define spouse or prevent them from treating married LGBT employees equally. Likewise, because there is no need to look beyond the plan’s clear definition of ‘spouse,’ it is irrelevant whether Pennsylvania law would define it differently in some other setting.”

© 2011 Keen News Service. All rights reserved.

—  John Wright