Archive | Civil Unions

Two New Essays on Post-Windsor Choice-of-Law Questions

The Northwestern Law Review Colloquy is running an interesting-so-far series on United States v. Windsor. The first two parts of the series are up, and both discuss post-DOMA choice of law issues.

First is DOMA’s Ghost, an essay by Brad Greenberg on copyright reversionary interests. The Copyright Act is one of the few federal statutes that contains an explicit marital choice-of-law rule — one that looks to the author’s domicile at the time of his/her death.

Greenberg notes that this rule is inconsistent with the Obama Administration’s general approach to the post-DOMA choice-of-law problem, which is to use the state of celebration wherever possible. He also argues that it would be better to have a rule whose scope would be known at the time of authorship (like the place-of-celebration rule). He suggests statutory reform. While we’re at it, I’d suggest statutory reform of the social-security choice of law rule. Even better would be if Congress would just propose a uniform marital choice-of-law standard for federal law generally . . .

Second is The Moonscape of Tax Equality, by Anthony Infanti, a paper on post-DOMA tax issues. Tax marital law is complicated, and attentive readers will recall that I posted some (partly skeptical) thoughts about the IRS’s marital choice of law guidance, which says that marriages will be recognized “as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex,” regardless of where they move later. Infanti also has some criticisms, that overlap partly (but not entirely) with mine.

— For one thing, Infanti worries that the IRS guidance is vague about so-called “evasive” marriages — marriages where the couple lives in an anti-same-sex marriage state but travels to a permissive state to get married. He says “The [...]

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Could The New Jersey Civil Unions Case Go to the Supreme Court?

Michael Dorf has an interesting and careful post where he analyzes whether last Friday’s decision in Garden State Equality v. Dow (the New Jersey civil unions case discussed here) raises a question of federal law reviewable by the Supreme Court. While the opinion is ambiguous with respect to the key question, he concludes that the answer is “yes.”

This is yet another aspect of the decision that will hopefully be resolved with more clarity on appeal. (I should note, for those who aren’t closely attentive to the Supreme Court that the fact that the Court might have jurisdiction to take the case, does not mean that the Court would actually decide to do so. The Court has discretion over what cases it hears, and hears only a very small fraction of the cases presented to it.) [...]

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Understanding Today’s Ruling About New Jersey Civil Unions

A New Jersey trial court just invalidated New Jersey’s current civil union regime, holding that the state is required to let same-sex couples marry, not just get civil unions. I’ve blogged about this issue before, but let me quickly summarize the situation:

Both sides of the litigation agree that same-sex couples are entitled to access all of the same benefits as united heterosexual couples. That’s a consequence of the New Jersey Supreme Court’s interpretation of the state constitution in Lewis v. Harris. From 2006-2013, that obligation was satisfied by civil unions, which have the exact same effect under state law as marriage does.

At the same time, it is now evident that at the federal level, same-sex couples in civil unions are not receiving the same benefits as married same-sex couples. (This was a little less clear at the time New Jersey wrote its main brief, but the most recent agency actions pretty uniformly favor marriages over civil unions.)

So this is clearly a problem. The question is what to do about it. The plaintiffs want the state to let them get married. If same-sex couples can get married, they can get federal benefits. The state, by contrast, wants to blame the problem on the federal government. If the agencies would just recognize civil unions, the problem would go away.

This is actually a pretty interesting severability problem. If a constitutional problem arises because of the intersection of two different legal rules, how does a court decide which one to invalidate?

In this case, for example, you might say:

— The court should invalidate the state law; after all, one of the claims is brought under the state constitution, and under the Supremacy Clause, the state constitution can only be enforced against state law, not against federal law.

On [...]

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Murder Prosecution Raises Multiple Same-Sex Marriage Recognition Questions

A current murder prosecution in Kentucky happens to simultaneously raise two different same-sex-marriage recognition problems that I’ve previously blogged about. In Kentucky, as in many states, spouses don’t have to testify against one another about things they said while married. Ms. Bobby Jo Clary is on trial for murder, and the state wants her partner, Geneva Case, to testify about some things Clary apparently told her. Case doesn’t want to testify.

So far, however, the trial judge has ruled that Case has to testify for what seems to be a combination of two reasons — Kentucky doesn’t recognize same-sex marriages, and anyway Clary and Case aren’t married; they got a civil union in Vermont in 2004. (I’m going just by the description in the news reports here — I haven’t looked to see if there’s a written ruling from the court.) As readers might realize, this triggers two different questions I’ve been blogging about recently, and to win Case and Clary will have to prevail on both.

First, is there an obligation to recognition to recognize out-of-state same-sex marriages? The Kentucky Constitution says that same-sex marriage (and legal statuses “substantially similar to that of marriage”) shall not be “valid or recognized” in Kentucky. This triggers the question that I wrote about the for the NYU Journal of Law & Liberty. (My answer, recall, is that the logic of Windsor might reasonably be extended to require their marriage to be recognized if they were residents of Vermont at the time.)

Second, even if there is an obligation to recognize out-of-state same-sex marriages, does it apply to couples who have what is technically a civil union rather than a marriage? Vermont now has same-sex marriages, but Case and Clary got married when it was only a civil-union state. And when [...]

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Second Thoughts on Civil Unions and Federal Law

Last week, I had a post that was skeptical of the claim that current law requires the federal government to recognize state civil unions as marriages. Reading through this brief recently filed by the state of New Jersey, I am no longer so sure. (The brief is a defense of New Jersey’s civil union law — which allows same-sex couples to have civil unions with the same legal status as marriage, but not technically marriage itself — but the brief also argues that the federal government is required to recognize the civil unions.)

For one thing, state civil union laws sometimes contain language that defines the word “spouse” to include unioned couples in addition to married couples. (See, e.g., the Illinois civil union law I discussed here.) And some federal provisions use the word “spouse” rather than the word “marriage,” although it is not clear they intended for “spouses” to include people who are not in a “marriage.”

For another thing, it almost looks like New Jersey law already defines civil unions as a form of marriage, by stating that marriage includes civil unions. NJSA 37:1-33 says:

Whenever in any law, rule, regulation, judicial or administrative proceeding or otherwise, reference is made to “marriage,” “husband,” “wife,” “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” “widow,” “widower,” “widowed” or another word which in a specific context denotes a marital or spousal relationship, the same shall include a civil union pursuant to the provisions of this act.

Of course, everybody in New Jersey appears to assume that the state has not extended marriage to same-sex couples so there may be some reason that provision doesn’t mean what it seems to me to say.

Finally, it is at least possible that the logic of Windsor extends to those in civil unions [...]

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R.I. Legislature Passes Civil Unions Bill

And manages to do what nobody else has done: unite supporters and opponents of same-sex marriage.  Marriage Equality Rhode Island says it establishes “second-class citizenry.”  The National Organization for Marriage says it is “disappointing and dangerous.”  Caught in the middle were legislators, including the openly gay head of the state house, and Governor Lincoln Chafee (expected to sign the bill), who predicted this was the most they could do for at least a couple of years. 

The main issue for the major national gay-rights groups, expressed in a letter to the governor urging a veto, is the breadth of the religious-objector exemptions in the bill.  Every new state proposal to recognize same-sex relationships seems to raise the bar higher for these exemptions, and it appears the bar is now too high for these groups.  I haven’t seen the language yet so I won’t offer an opinion here on the weight of their concerns. [...]

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Civil Unions Begin in Illinois

They’re not quite registering June brides, but the joyous end of American civilization has legislatively spread to Cook County and the rest of the Land of Lincoln. Starting today, the state is granting all of the rights and privileges of marriage under state law to same-sex couples. 

With all the recent excitement in Minnesota over the effort to ban same-sex marriages in the state constitution, I neglected to mention that civil unions have also been legislatively approved in Delaware (effective January 1).  It’s the eighth state to provide comprehensive recognition to same-sex relationships under the title of civil union or domestic partnership. Five states recognize same-sex marriages. A few others provide a more limited set of legal protections. [...]

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