Domestic Partnerships in Virginia
After Perry & Windsor
Lawrence P. Vance, Esq.
Buchbauer & McGuire, P.C.
Introduction
First Hour - The Decisions
from here?

!
WILLIAM T. PAEKER DEAD.
Became Suddenly Ixutdne at the Har vard Law School Examinations.
. Spccitt{ to The New York Time*.
CAMBRIDGE,. Mass., June 7.-William
Thornton Parker, Jr., of the Harvard Law
School'died this afternoon at 3 o'clock at the; Cambridge Hospital of an abscess on the brain caused-by overstudy.
Thornton was one of the hardest working students in the Law School, and as this was his last year he had been applying himself with unusual vigor.
- A few days ago he was taking the exam ination in Constitutional law when sud denly in the midst of the examination he became insane, and waving his hands wild ly, cried out a number of unintelligible sentences.
His condition became rapidly worse, and he died this afternoon.
He came from Springfield, Mass..
and wa3 about twencyrfour years of age. He was also a graduate of the Massachusetts Institute of Technology, where he obtained the high est honors.
SljrjN'rtuljorkEiraes
Published: June 8,1900
Copyright© The New YorkTimes
No liability for Brain Abscesses or other illnesses cause by discussion of Constitutional Law
Is marriage a:
Fundamental Right
Substantive Due Process Right
"Right to marry" vs. "Right to marry a person of the same sex"
Right to Marry is fundamental right: Lovinfi

Heart of issue is Judicial Scrutiny
There is no clear standard to apply to the constitutionality of sexual orientation impacting statutes
Strict Scrutiny - Narrowly tailored to fulfill a compelling
Government function powerless minority group, historically persecuted, without political power
Intermediate Scrutiny - Substantially related to an important Government Function
Rational Basis - must uphold if any rational basis

Ninia Baer and five (5) other sued John
Lewin, Hawaii's Director of Health because the Department was withholding issuing marriage licenses to same sex couples...
Suit sought injunctive relief
Trial Court granted summary judgment to
Lewin

Baehr v. Lewin
Hawaii Supreme Court returned the case to the trial court to determine if the traditional definition of marriage could survive a constitutional "strict scrutiny" test.
The trial court determined that under strict scrutiny Hawaii must issue same sex marriage licenses.
Hawaii court refused to find that same sex couples had fundamental right to marry, because
-Not rooted in our tradition or collective conscience
-not implicit in our concept of ordered liberty
-i.e. does not violate substantive due process
Court needed to have evidence to rule.

the Rescue
"DOMA"
The Defense of Marriage
Act was enacted on
September 21,1996
Passed with a veto proof majority
Was signed into law by President Clinton
3 sections - 1st is definitional

D0MA
• Section 2
No State, territory, or possession of the United States, or
Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe 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.
No Comity - by federal statute
No full faith and credit required by federa statute
Still valid law

DOMA
• Section 3
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.
1,138 statues, benefits, or programs were impacted by the statute based on the definition of Spouse.
DOMA affected statute list is provided in the written materials
According to the last census there are
168,000 same sex couples in the US

The Mini-
DOMA Effect
Many States likewise amended their statutes and/or constitutions to define marriage under the traditional meaning of a heterosexual union between one man and one woman p
DOMA crowd.

RESULT:
California issued valid marriages licenses from
June 16, 2008 to
November 5,
2008 to same sex couples
California
In 1978 enacted statute defining marriage under the traditional definition. In 2000 the statute was strengthened by voter referendum
In 2008 the California Supreme Court in a series of cases, In re Marriage Cases, ruled that the traditional definition of marriage violated California's Constitutional guarantee of equal protection
Later in 2008 California voters passed Proposition 8 amending the California Constitution restoring a traditional marriage definition
Result is two classes of same-sex
Constitutional Amendment
10

Hollingsworth v. Perry
Kristen Perry and
Sandra Stier, Paul
Katami and Jeffrey
Zarrillo, two same-sex couples sued in Federal
District Court to be allowed to marry. They named California government officers as the Defendants.
11

Hollingsworth v. Perry
In the District Court Governor Schwarzeneggar and
Attorney General Edmund Brown determined that they will not defend the suit, but would continue to enforce the Constitutional Amendment
The District Court permitted the intervention of
Hollingsworth and the other proponents of the
Proposition 8 Ballot initiative to defend the suit and the amendment
Hollingsworth was one of the organizers of the petition drive to have the constitutional amendment on the California ballot.
12

Hollingsworth v. Perry
The District Court held that the California constitutional prohibition violated the Plaintiff's rights to equal protection and due process
The proponents of Proposition 8, not the government officials, took appeal to the 9th Circuit
Court of Appeals.
13

Hollingsworth v. Perry
The 9th Circuit questioned the standing of the non government officials to defend a state law when the officials charged with enforcement of the law would not continue to defend the suit.
The 9th Circuit certified the standing question to the California Supreme Court which ruled the
Proponents have standing to defend the suit.
14

Hollingsworth v. Perry
The 9th Circuit determines California's
Constitutional Amendment fails strict scrutiny and upholds the District Court.
The proponents of Proposition 8, not the government officials, take appeal to the Supreme
Court.
15

Hollingsworth v. Perry
Certiorari was granted on the whether the traditional definition of marriage violates the United States
Constitution guarantee of equal protection and due process right.
BUT WAIT...
Certiorari was also granted on the whether the
Proponents of Proposition 8 had standing to take the appeal from the District Court.
Both the District Court and 9th Circuit applied strict scrutiny
16

Hollingsworth v. Perry
Majority
Dissent
Held: No standing for the Proponents of Proposition 8
17

Hollingsworth v. Perry
The Petitioners for all the appeals were interveners in the
District Court. The District Court decision did not order them to do, or refrain from doing, anything. The State officials chose not to appeal from the District Court.
The Proponents have no concrete or particularized injury traceable to the challenged conduct which can be redressed by judicial decision, only a "generalized grievance" about governance.
Despite the California Supreme Court's determination that the
Proponents can enforce the state's rights, there is no accountability of the Proponents to anyone but themselves. Without some form of agency responsibility, they are seeking only to enforce their own concept of what the law should be.
In essence the case and controversy doctrine is designed to prevent judicial veto
State determination of standing only applies in their Courts.
The Federal Courts determine what the standing rules for Federal Courts
18

Hollingsworth v. Perry
The Proponents had the authority to appear in Courts according to the unanimous opinion of the Supreme
Court of California. That status and right should end the inquiry. Formal delegation of authority and agency should not be required.
"The Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is short sighted to misconstrue principles of justiciability to avoid that subject."
19

Hollingsworth v. Perry
Does not extend to the rest of
20

United States v. Windsor
Edith Windsor and Thea Spyer were married in 2007 in Canada after registered as a same-sex couple under New York law in
1993.
When Thea died, Edith sought to use the federal estate tax exemption for surviving spouses. The exemption was denied as a result of the application of Section 3 of the
DOMA.
York at the time of Edith's death
21

United States v. Windsor
Windsor paid the taxes and filed suit challenging the constitutionality of section 3 of DOMA.
During the pendency of the District Court case, President
Obama decided that a higher level of scrutiny should be applied to laws involving sexual orientation.
The President indicated that he would continue to enforce the law, but not defend the suit.
22

United States v. Windsor
Pursuant to the Federal Rules of Civil Procedure, Attorney
General Holder notified Congress that the Administration did not intend to defend the constitutionality of Section 3 of
DOMA.
As authorized by the Rules, the Bipartisan Legal Advisory
Group intervened in the suit to defend the constitutionality of the statute.
23

United States v. Windsor
Both the District Court and the 2nd Circuit Court of Appeals held that Section 3 of the Defense of Marriage Act violates the guarantee of equal protection under the Fifth
Amendment to the United States Constitution.
Both the District and Appeal Court applied strict scrutiny to the distinction based on sexual orientation.
The decisions at both levels were appealed by both the Justice
Department and the Bipartisan Legal Advisory Group.
24

United States v. Windsor
Certiorari was granted on the whether Section 3 of DOMA violated the United States Constitution guarantee of equal protection
BUT WAIT, ONCE AGAIN...
Certiorari was also granted on the whether the President's agreement with Windsor mooted the case, and if the
Bipartisan Legal Advisory Group had standing.
25

United States v. Windsor
Majority
Dissent
Held: Not moot, the Appellant had standing, and affirming the lower decision on different reasoning
Thomas
26

27

United States v. Windsor
Even though the President agreed with the position of Windsor, the determination by the
President to continue to enforce the Act left a judiciable case for the District Court to adjudicate.
But didn't the Governor of California continue to enforce the
California Amendment?
28

•••I
United States v. Windsor
The United States had yet to abide by the
District Court's judgment so there remained judiciable controversy on appeal.
But didn't California refuse to issue marriage licenses to ov same sex couples until after the Perry Decision?
29

United States v. Windsor
The Dissent's View on Standing and Mootness
There is no case or controversy since both parties in this case seek the same relief.
"The Court is hungry to tell everyone its view of the legal question at the heart of this case."
Both the
Proposition 8
Proponents and the
Bipartisan Legal
Advisory Group should have standing.
Alito writes separately from the other dissenters both on standing and on the merits.
CJ Roberts joined with Scalia and Thomas only on standing.
Thomas joined with Scalia both on standing and merits.
30

United States v. Windsor
It is the traditional right of the States to determine issues of family law.
The historic ability to define marriage within their own borders has remained with the States, so long as those definitions respect the constitutional rights of individuals.
31

United States v. Windsor
Congress has the sole power to determine how to administer its own laws and programs.
DOMA abuses this power by denying rights to a class of persons that certain States have now sought to protect.
DOMA further prevents the uniform application of responsibilities and benefits for married persons within those States.
So the statute violates states rights and is a federalism violation?
32

United States v. Windsor
^Qb%.*5 i^^J
But the decision is not about
Federalism!
mf'S*- JS+
"Federal Balance" is violated
DOMAs basic principles manifest a bare desire to do harm a politically unpopular group.
overreached?
33

United States v. Windsor
Some States have used their sovereign power and granted the right to marry to same sex couples.
The Federal Government, though DOMA, takes away those rights from citizens as a result of "improper animus or purpose" and therefore violates the
Constitution.
out of raw hatred of same sex
34

United States v. Windsor
Windsor and the United States seek to have the Court resolve two competing views of marriage
"Conjugal" view - sees marriage as intrinsically opposite-sex institution
"Consent-Based" view - sees marriage as solemnization of mutual commitment, emotional attachment, and sexual attraction
Neither view is in the Constitution and should be left to the people's representatives to decide
the Court to rule that two members of
35

United States v. Windsor
Writes separately to say that in his opinion while the majorities' arguments are wrong, those arguments can go no further than the overturning of Section 3 of Act.
The underlying definition of marriage itself is not in question because the decision is based on federalism principals.
CJ. Roberts
"What the State of New York treats as
36

United States v. Windsor
This is not a Federalism case, because the Majority tells us so.
This is not an equal protection case, because the Majority never answers what level of scrutiny should be applied, the very answer the litigants seek.
Is it a return to disgraced substantive due process?
No, because same sex marriage is not "deeply rooted in the
Nation's history and tradition" and world is not bereft of
"Ordered Liberty" as a result of DOMA.
Also commented that the Court should
branches of Government
37

United States v. Windsor
The Federal Government has many rational basis for enactment of DOMA and has acted in the past to regulate a
State's definition of marriage. Such as in prohibiting polygamy.
"My guess is that the majority, while reluctant to suggest that defining the meaning of "marriage" in federal statutes is unsupported by any of the Federal Government's enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today's prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term)."
He invites the District Courts to
38

D M
United States v. Windsor
Section 3 of DOMA is unconstitutiona
39

United States v. Windsor
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There still has been no determination that sexual orientation is entitled to "Strict Scrutiny"
Homosexuals not saddled with disabilities, no history of purposeful unequal treatment, or relegated to a position of political powerlessness.
What are the "obvious, immutable, or distinguishing characteristics" that define homosexuals as a discrete group?
40

^ ^ ^ i * ^ ^ H
What is the law now?
41

What is the law now?
urn-.
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.iliTiVSinw <**„>*.; u. f . \ .^.fiM.iA, .T»ibucJ lo LoUI_PnJll
14 States + DC
Same sex marriage states are dark blue.
Civil union states are medium blue.
Limited same sex partner civil rights state is light blue.
Constitutional ban on same sex marriage and civil unions states are dark red.
Constitutional ban on same sex marriage light red.
Statutory ban on same sex marriage are pink.
42

What is the law now?
5 States have same-sex marriage by Court decision:
California, Connecticut, Iowa, Massachusetts and New jersey.
New Jersey had given legal status to same-sex civil unions.
2006 New Jersey Supreme Court required that same sex couples be afforded equal rights as married couples.
<NJ was a successful Montana style equal protection suit that we'll discuss in a moment>
Civil union statute was passed.
In the last week of September, using the Windsor distinction between marriage and civil union, and the subsequent loss of Federal benefits, a trial court held the distinction as un-constitutional under NJ
constitution. On October 18 NJ Supreme Court refused to stay the lower court ruling. Final hearing is set for January. Governor Christie has elected not to
43

defend the suit any further but the Speaker of the
House is going to defend the suit. New Jersey is issuing same sex marriage licenses.
43

What is the law now?
9 State Legislatures and the District of
Columbia have adopted changes to their laws to permit same-sex marriage:
Delaware, New Hampshire, New York,
Vermont, Minnesota, Rhode Island, Maine,
Maryland, and Washington.
44

What is the law now?
Same-sex marriage prohibited by state constitution only in 3 States:
Nebraska, Nevada, and Oregon.
All three give legal status to same-sex civil unions.
Windsor division, even at the federa
Ieve
One sentence at the end of the opinion:
45

What is the law now?
Same-sex marriage prohibited by state statute only in 5 States:
Illinois, Indiana, Pennsylvania, West
Virginia, and Wyoming.
Illinois gives legal status to same-sex civil unions.
ndiana has a constitutional amendment creating prohibition of same sex marriage and recognition pending a second approva in legislature
46

What is the law now?
Same-sex marriage prohibited by both state constitution and statute in 27 States:
Alabama, Alaska, Arizona, Arkansas, Colorado, Florida,
Georgia, Hawaii, Idaho, Kansas, Kentucky, Louisiana,
Michigan, Mississippi, Missouri, Montana, North Carolina,
North Dakota, Ohio, Oklahoma, South Carolina, South
Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.
Wisconsin grants same-sex couples some limited rights.
Hawaii and Colorado give legal status to same-sex civil unions.
Donaldson et. al. v. Montana, 2012 MT 288 (Mont.,
2012)
Plaintiffs sued the State of Montana complaining that the statutes of Montana denied them equal protection, due process, and the right to dignity, privacy and life's necessities under the Montana
Constitution. Plaintiffs did not challenge the specific statutes but sought a declaratory judgment and order directing the Montana legislature to enact a statutory structure to insure equal treatment under the law. The Montana Supreme Court agreed with the lower court's judgment that the Plaintiffs' relieves sought violates the separation of powers but returned the case to the District Court with instructions to allow the Plaintiffs to amend their Complaint. [December 17, 2012]
47

What Is the law now?
New Mexico has no expressed statutory, constitutional position, or legal decision on same sex marriage.
New Mexico will recognize out of state same-sex marriages.
Same sex marriage licenses issued at the discretion of the local clerks.
Clerks asked the NM Supreme Court to clarify the law.
Arguments scheduled for 10-23-2013.
48

What is the law now?
Under Windsor Federal benefits must be awarded to all marriages that are approved by the state.
BUT...
49

50

•••KMMHBH
What is the law now?
"Warning: offer voidInsome states."
The validity of same sex marriages today,
51

What is the law now?
In determining same sex "spousal benefits it is now a question of...
Agency Discretion
Rules and Regulations
Statutory Limitations
52

What is the law now?
and where...
State of Celebration Based on Status
State of Domicile Based on State Law
53

What is the law now?
•Homeland Security
(Immigration)
♦Federal
Election
Commission
•Department of Defense
•Veterans Affairs
•Social Security
Administration
•Internal Revenue
Service
•Department of Labor
MASS
NFUSION
AHEAD
All have issued various guidance.
What about mixed state same-sex couples?
54

What is the law now?
Citizenship & Immigration Service
• Secretary Napolitano directive of July 1, 2013
• Visas for fiance for same sex couple
• Visas for citizen or legal permanent resident spouses as a result of a foreign same-sex marriage
USCIS will follow a "State of Celebration Rule"
55

What is the law now?
Federal Election Commission
• Advisory Opinion 2013-06
• The term "spouse" is not defined under FECA or Commission rules but was previously limited by DOMA
"Legally Married" same-sex spouses are married for FECA or
Commission Rules
State of Domicile Rule?
56

What is the law now?
Office of Personnel Management
• Benefits Administration Letter 13-203
• Employee Health Insurance and Federal Employment
Benefits
• Legally married spouses shall have certain benefits regardless of the employee's state of residency - State of Celebration Rule
• Applies to FERS, CSRS, Railroad Employees, COBRA, HIPPA
57

What is the law now?
Department of Labor
Fact Sheet 28F
Family Medical Leave Act
Military Family Leave Provisions
The term "spouse" is defined as a husband or wife as defined under state law where the employee resides
State of Domicile Rule
Windsor
58

What is the law now?
Department of Labor
• But see Labor Technical Release No. 2013-04 (Sept. 18, 2013)
• Authority of Secretary to issue regulations and exemptions underTitlelofERISA
• The term "spouse" is defined as any lawfully married person under the law of any state
State of Celebration Rule
Cites ease of administration and
Flies in the face of the conflict of laws rationale of 28F
59

What is the law now?
Social Security Administration
• Program Operations Manual Change, 08/2013
• Payment of benefits if same-sex couple is lawfully married
AND
• Applicant, at the time of application, resides in a state that recognizes same-sex marriage
allow benefits even if the state does
union partners in some states
60

What is the law now?
Health and Human Services
• August 29, 2013 Secretary Sebelius Memorandum
• Purpose is to first implement the Windsor decision and secondly to maximize federal recognition of same-sex marriage in HITS programs
• Same-sex couples enrolled in Medicare Advantage will have equal access to coverage in the same nursing home where their spouse lives
• "Legally recognized same-sex marriage, regardless of where they live"
State of Celebration Rule
61

What is the law now?
Department of Defense
• February 11, 2013 Memorandum of Acting Under Secretary of Defense for Personnel and Readiness
1 Directed that in the event that DOMA is invalidated, Military will recognize same-sex spouses for all benefits and will extend benefits to same-sex domestic partnerships
' State of Celebration Rule, except where prohibited by federal statute or overseas forces agreements
Military same-sex spouses are protected under the Service
Members Relief Act
Military using a broader definition of allowable persons than does Windsor.
Previously extended benefits to unmarried heterosexual couples. All unmarried have to register.
Effect on Virginia created Veterans Benefits?
-child of disabled/deceased military veteran who are entitled tuition assistance
-Conflict over national guard benefits for same sex partners.
62

What is the law now?
Veterans Affairs
Cooper-Harris v. U.S., rec. # 2:i2-oo887-CBM (CD.
Cal. 8/29/2013)
Title38 USC § 101 defines spouse as a member of the opposite sex who is a husband or wife
> Plaintiff sued claiming Title 38 violated equal protection
> Department for Justice agreed with Plaintiffs
> Bi-partisan Legal Advisory Group withdrew as intervener
63

What is the law now?
Veterans Affairs
Cooper-Harris v. U.S., rec. # 2:i2-oo887-CBM
(CD. Cal. 8/29/2013)
>Court held that there was no rational basis for the definition of spouse as
"opposite sex" for gender equality basis, military basis, and was not related to providing services for veteran families
>VA cannot deny benefit of a marriage recognized by California
September 4, 2013 Attorney General Holder wrote Congress that the Executive Branch would no longer defend or enforce the statutory definition
benefits on a state of celebration rule
64

What is the law now?
Internal Revenue Service
• Revenue Ruling 2013-17
• IRS will follow the "state of celebration rule" for all marriages
• But "Registered Domestic Partnerships" and "Civil Unions" are not marriages for tax purposes regardless of whether the parties are the same or opposite sex.
65

What is the law now?
Internal Revenue Service
• Retroactive application for statute of limitations period
• Qualified Domestic Relations Orders (QDRO) and IRA
Transfers are now authorized
• Property can be divided under a §1041 transfer
• Deductable alimony
66

TRENDING
TOWARD A
STATE OF
CELEBRATION
RULE
♦Uniformity
♦Administrative
Ease
♦Reduced
Enforcement Cost
67

The Virginia Impact
68

Virginia Impact
Virginia Marriage Amendment
Article i. Section 15 A of the Virginia Constitution
"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shallthis Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, oreffects of marriage."
69

Virginia Impact
$20-45.2 Marriage between persons of same-sex.
A marriage between persons of the same-sex is prohibited. Any marriage entered into by persons of the same-sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable.
§ 20-45.3. C\v\\ unions between persons of same-sex.
A civil union, partnership contract or other arrangement between persons of the same-sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same-sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall De void and unenforceable.
The first statute to ban same sex marriage was enacted in Virginia 1975:
"A marriage between persons of the same sex is prohibited"
Current marriage ban was enacted in 1997
The civil union ban was enacted in 2004
70

Virginia Impact
Choice of Law - Comity
The general rule is that the law of the place of a marriage celebration governs as to the form.
"Thus arises the often cited rule that a marriage valid where celebrated is valid everywhere."
Tolerv. Oakwood Smokeless Coal, Corp.
173 Va. 425 (1939)
71

Virginia Impact
Choice of Law - Comity
But for two exceptions:
(1) Marriages deemed contrary to the laws of nature
(2) Marriages expressly forbidden by statute because they are contrary to local public policy
Underage marriage and relative marriage vs.
bigamy, polygamy, and incest vs. common law
In Obergefellv. Kasich, No. 1:13-CV-501 (S.D. Ohio,
July 22, 2013) Court granted injunctive relief to same sex couple after Ohio's failure to recognize a
Maryland marriage. Ohio follows same rule as
Virginia. Court used Windsor's prejudice against same sex marriage rationale as the basis for enactment as a violation of equal protection.
Further went on to test statute on a rational basis test, and found no rational basis.
72

Virginia Impact
Couples Now?
73

Virginia Impact
Cohabitation Contracts
According to Attorney General Opinion, neither the
MMA nor the Marriage Amendment prohibit samesex couples from entering into contractual relationships...
...so long as the basic elements of offer, acceptance, and consideration exist in the agreement.
...but of course, such contracts are also subject to normal contract defenses.
written materials.
74

Virginia Impact
BUT, a cohabitation contract that tries to create the design, qualities, significance, or effects of marriage would be void as against public policy.
Consideration:
-illegal = sexual activities
-legal = companionship & homemaking
75

Virginia Impact
"Analogous" to marriage
In Stroud v. Stroud. 49 Va. App. 359, 641 S.E.2d 142 (2007), held that in interpreting the language of a Settlement Agreement adopted by a Divorce
Decree, it is possible for a same-sex relationship to be "analogous" to marriage.
The four non-exclusive factors in considering a relationship to be analogous to marriage:
1)
2)
3)
4)
Common residence
Intimate or romantic involvement
Provision of financial support
Duration, continuity and other indicia of permanency.
Issues:
76

Virginia Impact
Wills and Advanced
Medical Directives
Same sex couples can make wills and create medical directives
The ability to create a will
According to the Attorney General, neither the MMA nor the Marriage Amendment prohibit same-sex couples from dispose of their property as they see fit without inquiry into the motivation of the testator Such contracts are also subject to normal contract defenses.
Advance Medical Directives
According to the Attorney General, neither the MMA nor the Marriage Amendment prohibits same-sex couples from naming their partner under the Health Care
Decisions Act. Under the Health Care Decisions Act, the agent does not need to be related to the declarant, so the relationship between the two is not related to marriage.
77

Virginia Impact
Out of State Orders
Parental Kidnapping and Prevention Act ("PKPA")
Uniform Custody Jurisdiction and Enforcement Act ("UCCJEA")
PKPA - Federa
78

Virginia Impact
Out of State Order Cases:
Miller-Jenkins v. Miller-Jenkins. 49
Va. App. 88, 637 S.E.2d 330 (2006)
> Vermont Order
Prashad v. Copeland, 55 Va. App. 247,
685 S.E.2d 199 (2009)
> North Carolina Order
Both attempts to use Virginia's prohibition on same sex marriage as a way to eliminate custody and visitation of a same sex partner. In both cases the
Court found that it was not giving effect to the prohibited marriage but simply enforcing the order of another state pursuant to statute and recognizing the Federal Supremacy of PKPA.
Miller - Vermont order initiated by Plaintiff here
Prashad - Consent agreement entered into North
Carolina order
79

Virginia Impact
Same Sex Virginia Cases
Necessarily = Third Party Rights
In both custody and visitation cases, first the non-parent party must be a person with a
"legitimate interest"
So what constitutes a legitimate interest?
80

Virginia Impact
Damon v. York, et, al.. 54 Va. App. 544, 680 S.E.2d 354
(2009)
To prove a legitimate interest the person must be a grandparent, stepparent, former stepparent, blood relative, and family members or the functional equivalent of those persons.
So by necessity, a non-biological same sex partner can only be a "functional equivalent"
Extra layer of proof in case by non-biological same sex parent
81

Virginia Impact
Custody
Bailes v. Sours. 231 Va. 96, 340 S.E.2d 824 (1986)
Five reasons state intrusion by the ordering of non-parent custody:
1.
Parental Unfitness 3. Voluntary Relinquishment
2. Previous Divestiture 4. Abandonment
5. Special Facts and Circumstances Constituting an
Extraordinary Reason
Third party consistently addressing day-to day needs of child to exclusion of parent
Emotional harm if placed with biologica parent
Some bad action on the part of the biological parent
82

Virginia Impact
Visitation
Williams v. Williams. 256 Va. 19, 501 S.E.2d 41, (1998); see e.g. Troxel v. Granville. 530 U.S. 57,120 S.Ct. 2054 (2000)
• A court may only constitutionally order non-parent visitation upon a showing by clear and convincing evidence that the best interests of the child would be served by such visitation only after it finds harm if visitation is not ordered.
Stadter v. Stadter, 52 Va. App. 81 (Va. App., 2008) Denial of same sex non-biological partner visitation
De facto parent doctrine alone does not meet this standard. Support and contact do not constitute sufficient proof.
Failure of non-biological parent largely due to evidentiary failure of the expert.
83

Virginia Impact
In State Order Case:
Morgan v. Kifus and Chowaniec,
Rec. No. 0399-10-4 Va. App.
(April 12, 2011)
Argued that Virginia's mini-
DOMA voided an initial order on custody. Court upheld dismissal on basis of res judicata.
Same sex lesbian couple (Morgan/Kifus) use
Chowanic to father child. Couple splits. Consent order entered granting joint custody. Biological
Mom brings new action to void the order
Unlike the two earlier custody/visitation cases, no cross-jurisdictional issues existed.
These parties already had an order establishing rights in the non-parent partner, BY CONSENT.
84

Virginia Impact
Spousal Support
Uniform Interstate Family Support Act ("UIFSA")
Under §20-88.43.2 Virginia may not modify another
State's spousal support order but can be a responding
Court to enforce the order.
Under §20-88.68 (C) Virginia shall recognize and enforce another State's registered order.
must enforce another State's same sex
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Virginia Impact
Spousal Support
Uniform Interstate Family Support Act ("UIFSA")
Under §20-88.72 Defenses to Registration
§20-88.72 (A)(5)
"There is a defense under the law of the
Commonwealth to the remedy sought"
Is "Illegal" order of another state valid within Virginia?
"The United States Constitution and federal and Virginia statutes require the courts of this state to give full faith and credit to the judicial proceedings of another state. The constitutional mandate for full faith and credit, as implemented by Congress, requires every state to give a foreign judgment at least the res judicata effect which the judgment would be accorded in the state which entered it. Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 11
L.Ed.2d 186 (1963); Osborne v. Osborne, 215 Va. 205, 208, 207
S.E.2d 875, 879 (1974). As the New York separation judgment makes the issue of the validity of the marriage res judicata in New
York, it bars re-litigation of that issue in this state." Romeo v.
Romeo, 218 Va. 290 (1977)
Could not come to Virginia and claim marriage invalid for bigamy
DOES THIS EXTEND TO A VALID SAME SEX DECREE?
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Virginia Impact
Child Support
Child Support from Non-Parents:
Russell v. Russell 35 Va. App. 360, 545
S.E.2d 548 (2001)
Non-parents are not parties from whom support can be sought under §20-107.2
non-parent partner
state?
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Virginia Impact
Child Support
Uniform Interstate Family Support Act ("UIFSA")
Virginia may modify another State's child support order under certain circumstances:
Everybody is in Virginia o r
Nobody is in the issuing state and the obligor is here
Virginia has to enforce under UIFSA and under Social Security Act - Federa
Preemption like the PKPA
But modifying the support obligation?
88

Virginia Impact
Child Support
Uniform Interstate Family Support Act ("UIFSA")
Everybody is in Virginia Modify using Virginia Law
Nobody is in the issuing state and the obligor is here
Virginia MAY NOT modify the duration of the obligation
So, does this mean if the same sex former couple and the child all now reside in
Virginia, Virginia can terminate child support?
Is the obligation res judicata of the obligation? How is child support ever modifiable then?
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Child Support
What about the donor?
Kansas Case
♦Mother and same-sex partner advertise on Craig's list for donor
♦Artificial insemination done without a Doctor
♦Agreement with provider provides for no obligation of support
Kansas is seeking support from donor since not in conformity with the assisted conception statute
90

Virginia Impact
Assisted Conception Parentage
Virginia Code §20-156 defines "Intended Parents" as, "a man and a woman, married to each other, who enter into an agreement with a surrogate under the terms of which they will be the parents of any child born to the surrogate through assisted conception..."
§20-157 Virginia Courts must use this definition in any action brought to enforce or adjudicate any rights or responsibilities arising from assisted conception.
91

Virginia Impact
Assisted Conception Parentage
Mason v. Breit, et. al, 285 Va. 163, 736 S.E.2d 711 (2013)
The exclusivity clause and donor clause violate
Fourteenth Amendment Due Process Right of parentage due to based solely on marital status
Unmarried heterosexual couple William Breit and Beverly Mason, a heterosexual couple, were never married and had a child as a result of in vitro fertilization.
Breit was listed on the child's birth certificate and also executed an acknowledgement of paternity on the state form. After the parties split, Breit filed for a determination of paternity, custody, and visitation.
Breit filed a motion for summary judgment based on the acknowledgement under §20-49.1(B) and Mason filed a plea in bar based on the fact that the child was conceived through assisted conception under §20-158(A)(3). The Circuit
Court granted the pleas in bar. On appeal to the Court of Appeals, the Circuit
Court was reversed. Both Mason and Breit appealed to the Supreme Court.
The key statue in question was §20-158(A)(3) "[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother" and the definition of intended parent. Breit claimed that the definition of intended parent, the exclusivity clause in §20-157 and donor clause in §20-158(A)(3) violated his Fourteenth Amendment Due Process
Right of parentage since he was unmarried. Our Supreme Court agreed under these facts. The Court, in a footnote, clarified however that constitutionally protected paternity in assisted conception cannot be established solely as the result of only genetic parentage.
92

Virginia Impact
Adoption
Virginia Code § 63.2-1201.1 (D) Nothing in this section shall be construed to permit any child to have more than two living parents by birth or adoption, who have legal rights and obligations in respect to the child, in the form of one father and one mother.
93

Virginia Impact
Out of State Adoption
Davenport, et.al. v. Little-Bowser.
et.ai, 269 Va. 546, 611 S.E.2d
366(2005)
Held that it is a case about issuing birth certificates and not about same-sex marriage, same-sex relationships, or adoption policy in
Virginia.
Under the statute and regulations in question, the only requirement is that the names of the prospective parents be entered on the new birth certificate.
Set of same sex couples attempted to have new, post adoption, birth certificates issued with both partners names. Bureau of vital statistics refused.
Court held that statute required the State Registrar to issue the certificates and the agency interpretation was incorrect.
It is an "established principle of constitutional law that a court will not rule upon the constitutionality of a statute unless such determination is absolutely necessary/'
94

"The Other Shoe"
Scalias next step.
95

State of Residence Statutes
Administration's Position
Bi-partisan Legal Advisory Group
Legislative action
96

Cleaning up Federal DOMA
Domestic Partnership and
Civil Unions
• IRS regulation extends only to legal marriages
• Windsor spoke only to marriages
• Leaves out the state recognized civil unions and domestic partnerships •• M. #
97

Political
Challenge
Legislative actions underway to enact same sex marriage in Hawaii,
Arizona,
Nevada,
Illinois, and
Oregon
Senates in both Hawaii and Illinois both have passed legislation allowing same-sex marriage.
Illinois house defeated in regular session. Hawaii has been in special session since Oct 28 to determine issue.
Referendum re-amend state constitution in Oregon (54% support) and Arizona (77% support) is expected to be on Nov
2014 ballot.
Nevada effort to re-amend constitution passed 1st legislature.
Efforts in Colorado on ballot initiative being blocked by the speaker of their house (openly gay) to allow more time for acceptance.
98

Suits challenging statutes and state constitutions directly on Federal
Constitutional Grounds
Federal suits have been filed in Nevada, Hawaii, Pennsylvania,
Virginia, Kentucky, Ohio, North Carolina, West Virginia, and
South Carolina. State suits have been filed in New Jersey, Illinois, and New Mexico.
23 lawsuits filed in 21 states
ACLU and Lambda Legal have a legal campaign mapped out to overturn all the bans on same sex marriage.
In Pennsylvania, the Attorney General has declined to defend the amendment
In Virginia there are two suits pending=>
- in the Eastern District the suit has been brought by a Virginia Couple trying to marry.
-- in the Western District the suit is brought as a class action with a foreign married same sex couple seeking same rights and a couple seeking the right to be married. The law firm that handled the Hollingsworth case have entered the
Western District suit.
All of these suit focus on the stigma to the children of same sex couples and
"improper animus and purpose'7
"The differentiation demeans the couple, whose moral and sexual choices the
Constitution protects and whose relationship the State has sought to dignify.
And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord
99

with other families in their community and in their daily lives."
99

Stare decisis...
unless Courts ignore
Bakerv. Nelson, 291 Minn. 310,
191 N.W.2d 185 (1971); 409 U.S.
810, 93 S.Ct. 37 (1972)
State same sex marriage ban does not violate ist, 5th, 8th, 9th, or 14th
Amendments to the U.S.
Constitution. No federal question.
In Windsor the 2nd Circuit dealt with this by observing that stare decisis will not apply if not specifically same issue.
Said the issue in Baker was "Whether the states may constitutionally restrict same sex marriage.
The other exception is if there is a substantive doctrinal changes to the Court's Jurisprudence
--Court points to the addition of "intermediate level" scrutiny as a change.
Citizens for Equal Protection v. Bruning, 455 F3d 859 (2006)
District Court struck Nebraska Mini-DOMA Constitutional amendment. 8th Circuit appeal held that under rational basis test, prohibition was constitutionally valid. Standing held, no fundamental right or suspect class, no 1st amendment association violation
100

And faced with Executive
Branch resistance to marriage equality... no suit
A State must elect to waive 11th
Amendment sovereign immunity
Jackson v. Abercrombe, 884 F.
Supp. 2d 1065 (D. Haw, 2012)
But the Federal Court can direct an individual state officer, as an individual, to follow Federal
Constitutional Law.
Ex Parte Young
Romerv. Evans, 517 U.S. 620 (1996) Colorado passes very broad constitutional amendment prohibiting localities from providing any protection to homosexuals. Court struck as unconstitutional because it severed other protections for protected classes just because they were also gay.
101

v i a
Adoption
Challenging the prohibition against same sex parents adopting
This is the subject of the constitutiona challenge in Illinois
102

The Indirect Challenges
Via
Taxation
Definitions
Challenging the disconnect between Federal definitions and
Virginias
Constitution
Taxes: §58.1-301 Any term used in this chapter shall have the same meaning as the aws of the United States
Someone will file as a married same sex couple, get a negative determination from
Virginia, pay the taxes and sue, just like
Windsor
103

via a military j— ± retirement order
Challenging denial of forum for pension determination
Military: Jurisdiction to have military pension determined in Virginia. Divorce in foreign state but ED of divorce only where service member is.
Given the challenge in PA, who unlike
Virginia allows an opt out of divorce over military benefits, this could happen here.
104

Via a retirement order
Can VRS give effect to a same sex beneficiary designation?
Can VRS allow entry of an ADRO from a same sex foreign dovorce?
Non-ERISA based plan
105

The Indirect Challenges
Current Court Order:
"Both parties are prohibited from openly cohabiting with any person to whom he or she is not lawfully married, in the presence of the child."
Can a parent who marries their same sex partner out-of-state be held in contempt?
106

Divorce Jurisdiction Gambit
Domestic Partnership
• Allow dissolution if
1) Entered in the state AND
2) Neither party resides in a state that allows dissolution
Same Sex Marriage
• Allow divorce if
1) Married in the jurisdiction AND
2) Neither party resides in a state that allows divorce
California, Colorado,
Delaware, Illinois, Oregon &
Vermont
• California, Delaware,
Minnesota, Vermont & D.C.
Subject matter jurisdiction but what about in personam jurisdiction?
107

Divorce Jurisdiction Gambit
Divorce Jurisdiction in Virginia
Annulment of an invalid marriage
In Re Marriage of JB and HB, 325 S.W.3d 654 (Tx.
App., 2010)
Mass. Same sex marriage, both now in Texas. State intervened in divorce. Held no jurisdiction for divorce, no comity, no 14th amendment right to access to Court.
108

Why is everyone so worked up over same sex marriage?
married knows it's
-Robin Williams, 2006
T*f*
!fr
BS Man f n
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