Friday, May 2, 2014

Marriage Law Digest (April 2014)
1)      CRAIG V. MASTERPIECE CAKESHOP, CR2013-0008, Colorado Administrative Court, December 6, 2013 (public accommodations discrimination in wedding).
2)      COMMONWEALTH OF AUSTRALIA V. AUSTRALIAN CAPITAL TERRITORY, [2013] HCA 55, Australia High Court, December 12, 2013 (conflict of state and federal marriage laws).
3)      R V. REGISTRAR GENERAL, [2013] UKSC 77, U.K. Supreme Court, December 11, 2013 (Scientologist’s ability to solemnize marriage).
4)      BN0. 04-CV-ROWN V. BUHMAN, Case No. 2:11-cv-0652-CW, U.S. District Court, District of Utah, December 13, 2013 (legality of polygamy).
5)      GRIEGO V. OLIVER, Docket No. 34,30, New Mexico Supreme Court, December 19, 2013 (same-sex marriage).
6)      IN RE MARRIAGE OF DAVIS, No. 53A01-1305-DR-221, Indiana Court of Appeals, December 20, 2013 (marriage and gender change).
7)      OBERGEFELL V. WYMSLO, Case No. 1:13-cv-501, U.S. District Court, Southern District of Ohio, December 23, 2013 (same-sex marriage).
8)      KITCHEN V. HERBERT, Case No. 2:13-cv-217, U.S. District Court, District of Utah, December 20, 2013 (same-sex marriage).
9)    BISHOP V. UNITED STATES, No. 04-CV-848-TCK-TLW, U.S. District Court, Northern District of Oklahoma, January 14, 2014 (same-sex marriage).
10)  IN THE MATTER OF THE ADOPTION OF JOHN DOE & JOHN DOE I, Docket No. 41463, Idaho Supreme Court, February 10, 2014 (adoption by unmarried couples).
11)    BOURKE V. BESHEAR, Civil Action No. 3:13-CV-750-H, U.S. District Court, Western District of Kentucky, February 12, 2014 (same-sex marriage).   
12)    BOSTIC V. RAINEY, Civil No. 2:13cv395, U.S. District Court, Eastern District of Virginia, February 13, 2014 (same-sex marriage).
13)    LEE V. ORR, Case No. 13-cv-8719, U.S. District Court, Northern District of Illinois, February 21, 2014 (same-sex marriage).
14)    TANCO V. HASLAM, Case No. 3:13-cv-01159, U.S. District Court, Middle District of Tennessee, March 14, 2014 (same-sex marriage).
15)    DEBOER V. SNYDER, Civil Action No. 12-CV-10285, U.S. District Court, Eastern District of Michigan, March 21, 2014 (same-sex marriage).
16)    HENRY V. HIMES, Case No. 1:14-cv-129, U.S. District Court, Southern District of Ohio, April 14, 2014 (same-sex marriage).
17)    BASKIN V. ROGAN, 1:14-cv-00355-RLY-TAB, U.S. District Court, Southern District of Indiana, April 18, 2014 (same-sex marriage).
18)    A.L.F.L. V. K.L.L., No. 2014-CI-02421, Texas District Court, Bexar County, April 22, 2014 (same-sex divorce).
19)    ALASKA V. SCHMIDT, Supreme Court No. S-14521, Alaska Supreme Court, April 25, 2014 (property tax exemption for same-sex couples).
20)    Recent Law Review Articles (topics: marriage & liberty, religious exemptions, reasoning of marriage cases, animus).
21)   News Stories (topics: unmarried couple adoption).
Colorado Administrative Court
December 6, 2013

Bakery owner declined to make a wedding cake for a same-wedding. The couple seeking the cake filed a complaint with the Colorado Civil Rights Commission which referred it to an Administrative Law Judge.

The judge said it is “a distinction without a difference” that the owner objects to same-sex weddings rather than the complainants’ sexual orientation. The court said: “The salient feature distinguishing same-sex weddings from heterosexual ones is the sexual orientation of its participants. Only same-sex couples engage in same-sex weddings. Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not ‘because of’ their sexual orientation.” The court said there was no free speech violation because the owner “was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage” and the “act of preparing a cake is simply not ‘speech.’” For the court, “compelling a bakery that sells wedding cakes to heterosexual couples to also sell wedding cakes to same-sex couples is incidental to the state’s right to prohibit discrimination on the basis of sexual orientation.” In regards to free exercise, “refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the [U.S.] Supreme Court has repeatedly found subject to legitimate regulation” because it “is against the law,” “adversely affects the right of Complainants to be free from discrimination in the marketplace,” and “the impact upon Respondents is incidental to the state’s legitimate regulation of commercial activity” so there was “no valid claim” for free exercise. The court ordered the baker to cease and desist” for “refusing to sell them wedding cakes or any other product Respondents would provide to heterosexual couples.”

[2013] HCA 55
Australia High Court
December 12, 2013

Australian national law provides “that a marriage can be solemnized in Australia only between a man and a woman.” The Australian Capital Territory enacted a law defining marriage as “the union of 2 people of the same-sex to the exclusion of all others, voluntarily entered into for life.” The national government challenged the state law.

The court held the federal Parliament has power to define marriage to include same-sex couples and that federal law “regulates the creation and recognition of the legal status of marriage throughout Australia” and current national law contains “the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognized in Australia” so the state law is “inoperative.”

[2013] UKSC 77
U.K. Supreme Court
December 11, 2013

A couple wanted to be married in a Church of Scientology but the law did not recognize the church as a “’place of religious worship.’”

The court noted that UK law allows marriages in non-religious settings but these can “not incorporate any form of religious service” so unless Scientology buildings could be used for religious weddings, Scientologists would “be under a double disability, not shared by atheists, agnostics, or most religious groups” because “they could have a service in their chapel, but it would not be a legal marriage, and they could have a civil marriage on other ‘approved premises’” but could not use religious forms. Thus, the court ordered the church be allowed to be used for religious wedding ceremonies.

Case No. 2:11-cv-0652-CW
U.S. District Court, District of Utah
December 13, 2013

A man and four polygamous wives challenged a Utah statute defining bigamy as “’when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.’” The Utah Supreme Court has interpreted this to provide that “’the bigamy statute does not require a party to enter into a second marriage (however defined) to run afoul of the statute; cohabitation alone would constitute bigamy pursuant to the statute’s terms.’”

The court first held that “no ‘fundamental right’ exists to have official State recognition or legitimation of individuals ‘purported’ polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State.” The court, though went on to hold that the U.S. Supreme Court’s 19th Century decision upholding a ban on polygamy, Reynolds v. United States, “is not controlling for the cohabitation” element of the Utah law and applied “strict scrutiny to the prohibition of religious cohabitation that this simple phrase effects in the State of Utah.” Though “the cohabitation prong” is facially neutral, it “is not operationally neutral.” To the court, a law prohibiting “fraudulently obtaining a second marriage license in order to enter into a purportedly legal second marriage while still married to someone else (bigamy)” would be constitutional. Here, however, “virtually all prosecutions under the” Utah law “have been of individuals engaging in religious cohabitation.” The court said the state had to show the law is “a narrowly tailored means of advancing a compelling state interest.” The court concluded that “the incongruity between criminalizing religious cohabitation but not adulterous cohabitation, or rather selectively prosecuting the former while not prosecuting the latter at all, demonstrates that the cohabitation prong is not narrowly tailored to advance a compelling state interest.” The court specifically rejected the state’s asserted interest in “strengthening or protecting the institution of marriage” since the court believed current law “encourag[es] adulterous cohabitation over religious cohabitation that resembles marriage in all but State recognition.” It rejected the interest in preventing fraudulent marriages since the parties to this case are not seeking legal recognition. Finally, the court discounted the state’s interest in preventing ancillary crimes (i.e. underage marriages) since without the law, “investigators and prosecutors can focus directly on the independent crimes that are being committed.” The court found the “neutral applicability” test for free exercise violations was not relevant here because the cause combined free exercise concerns with “Freedom of Association,” “Substantive Due Process,” “Equal Protection,” “Free Speech” and “Establishment Clause” claims. The court said the anti-polygamous cohabitation law was “void for vagueness” and was without a rational basis.

Docket No. 34,306
New Mexico Supreme Court
December 19, 2013

Same-sex couples challenged New Mexico’s marriage law on state constitutional grounds.

The court first held that the mere fact that the state’s marriage statutes used both “gender-neutral and gender-specific terminology” did not mean the legislature intended to recognize same-sex marriages. The court said same and opposite sex couples are similarly situated because marriage and procreation are not linked in New Mexico law since the statutes do not require “applicants for a marriage license to attest to their ability or intention to conceive children through sexual relationships” and fertility “has never been a condition of marriage, nor has infertility ever been a specific ground for divorce.” The court said that rather than procreation, the “purpose of New Mexico marriage laws is to bring stability and order to the legal relationships of committed couples by defining their rights and responsibilities as to one another, their property, and their children, if they choose to have children.” The court said the law did not constitute sex discrimination because the law “does not result in the unequal treatment of men and women.” The court pointed to discrimination laws including “sexual orientation” as proof that “the LGBT community was . . . a discrete group which has experienced a history of purposeful unequal treatment and acts of violence.” The court also said “members of the LGBT community do not have sufficient political strength to protect themselves from purposeful discrimination.” The court applied intermediate scrutiny to the law and said the law did not survive this analysis. The court rejected concerns with “promoting responsible procreation and “responsible child-rearing” since “opponents admitted that they lacked evidence to show that allowing same-gender marriages would result in married couples divorcing at an increased rate.” The court also said “moral disapprobation of homosexual activity and tradition” are not valid justifications. Children are not important, the court said, to New Mexico’s marriage laws which only require “partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship.” The court also suggested “same-gender couples are as capable of responsible procreation as are opposite-gender couples.” The court said same-sex couples are harmed by the inability of their parents to divorce. The court decided not to strike down laws but instead construed “civil marriage” to “mean the voluntary union of two persons to the exclusion of all others.”

No. 53A01-1305-DR-221
Indiana Court of Appeals
December 20, 2013

A man legally changed his sex designation on his birth certificate and subsequently sought a divorce but the trial court said “the marriage was voided when both parties became female.”

The court of appeals said Indiana law “does not automatically void a marriage that was initially valid in Indiana simply because one of the parties to the marriage has changed his or her gender” and to “conclude that the parties’ marriage somehow became void when the gender was changed on [plaintiff’s] birth certificate would permit [the husband] to effectively abandon her own child, even though the parties were validly married at the time of the child’s birth and even though [he] is the child’s father.”

Case No. 1:13-cv-501
U.S. District Court, Southern District of Ohio
December 23, 2013

A same-sex couple who had gone from Ohio to Maryland to marry sought to have Ohio recognize the marriage for purposes of designating one of the men as the surviving spouse in the event the other were to die.

The court said “the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections” is a fundamental right. The court decided to apply “intermediate scrutiny” because “Ohio is intruding into—and in fact erasing—Plaintiffs’ already-established marital and family relations” and Ohio’s law treating “same-sex couples married in other jurisdictions as a disfavored and disadvantaged subset of people has a destabilizing and stigmatizing impact on them.” The court said that under intermediate scrutiny, the state’s “vague, speculative, and unsubstantiated state interests do not rise anywhere near the level necessary to counterbalance the specific, quantifiable, and particularized injuries evidenced here and suffered by same-sex couples when their existing legal marriages and the attendant protections and benefits are taken from them by the state.” The court said the state “has the exclusive power to create marriages” but not to “nullify already-established marriages.” The court said the state had “unjustifiably created two tiers of couples”—those whose out-of-state marriages would be recognized and those whose out-of-state marriages would not. The court said this distinction classified on the basis of sexual orientation. Orientation, the court concluded, required heightened scrutiny because gays and lesbians had experienced a “history of discrimination,” are not “distinctively different from other groups in a way that” affects society, “[a]s political power has been defined by the Supreme Court for purposes of heightened scrutiny analysis gay people do not have it,” and sexual orientation us immutable because “[t]here is now broad medical and scientific consensus” in favor of that position and “sexual orientation is so fundamental to a person’s identity that one ought not be forced to choose between one’s sexual orientation and one’s rights as an individual—even if such a choice could be made.” The court rejected any possible justification for the law, saying “the fact that a form of discrimination has been ‘traditional’ is a reason to be more skeptical of its rationality.” It also said: “Even if it were rational for legislators to speculate that children raised by heterosexual couples are better off than children raised by gay or lesbian couples, which it is not, there is simply no rational connection between the Ohio marriage recognition bans and the asserted goal, as Ohio’s marriage recognition bans do not prevent gay couples from having children.” The court said this conclusion means the law was “passed because of, not in spite of, its burden on same-sex couples.”

Case No. 2:13-cv-217
U.S. District Court, District of Utah
December 20, 2013

Same-sex couples challenged Utah’s marriage laws.

The court first concludes that the due process right to marry protects “a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” Thus, the court said Utah was depriving same-sex couples of the right to marry. The court also concluded the marriage laws were sex discrimination because the sex of the parties was taken into consideration in the legal definition of marriage. Although that finding would require heightened scrutiny, the court said the laws lacked even a rational basis since the purposes of the law are not connected to the law’s effect. The court says that the only reason the state might want to link marriage and procreation is to make all opposite-sex couples have children. Since, he notes, some married opposite-sex couples don’t have children, recognizing only husband-wife unions as marriages is irrational. The court concluded the law was unconstitutional.

No. 04-CV-848-TCK-TLW
U.S. District Court, Northern District of Oklahoma
January 14, 2014

Same-sex couples challenged the constitutionality of Oklahoma’s marriage laws.

The court first said that the Baker v. Nelson dismissal of a same-sex marriage claim by the Supreme Court was not controlling because “there have been significant doctrinal developments in Supreme Court jurisprudence since 1972” like creation of “a new form of heightened scrutiny” and the decisions in Romer v. Evans, Lawrence v. Texas and Windsor v. United States. In regards to the latter, the court said it “interprets Windsor as an equal protection case holding that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples.” The court said the law discriminated against the “relevant class” of “same-sex couples desiring an Oklahoma marriage license” because “the timing” of the marriage amendment “in relation to certain court rulings and the statements in the public domain before passage . . . raise the inference that it was adopted, at least in part, for the purpose of excluding the class from marriage.” The court did reject the claim of sex discrimination saying: “Common sense dictates that the intentional discrimination in this case has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened scrutiny on that basis.” Rather, the court said the discrimination was based on orientation because “same-sex marriage [] is so closely correlated with being homosexual that sexual orientation provides the best descriptor for the class-based distinction being drawn.” The court said that “upholding one particular moral definition of marriage . . . is not a permissible justification.” It also said there was “no rational link between excluding same-sex couples from marriage and the goals of encouraging ‘responsible procreation’ among the ‘naturally procreative’ and/or steering the ‘naturally procreative’ toward marriage” since “[c]ivil marriage in Oklahoma does not have any procreative prerequisites” and when a same-sex couple is raising a child, not allowing them to marry would hinder the goal of reducing “children born outside of a marital relationship.” As the court put it, “the ‘carrot’ of marriage is equally attractive to procreative and non-procreative couples, is extended to most non-procreative couples, but is withheld from just one type of non-procreative couple.” The court also said the law is not likely to cause same-sex couples to seek opposite-sex spouses and some opposite sex couples are bad parents. The court said arguments that same-sex marriage would have a negative impact is “impermissibly tied to moral disapproval of same-sex couples” and are only threats “to one view of the marriage institution—a view that is bound up in procreation, one morally ‘ideal’ parenting model, and sexual fidelity.”

Docket No. 41463
Idaho Supreme Court
February 10, 2014

A “long-time domestic partner” sought to adopt the children of the other partner without terminating the parent’s rights. A magistrate judge denied the petition to adopt because the two were not married.

The supreme court said that the phrase “’any adult person’” in the state’s adoption statute means “a human being over the age of 18” and that marital status of that person is not relevant. The court also said there was nothing in Idaho law that requires that an adoptive parent be married.

Civil Action No. 3:13-CV-750-H
U.S. District Court, Western District of Kentucky
February 12, 2014

Same-sex couples in Kentucky sued to challenge state law that prevents the recognition of out-of-state same-sex marriages.
The court said the Supreme Court’s decision in United States v. Windsor “establishes certain principles that strongly suggest the result here.” The principles the court identifies are that “the actual purpose of Kentucky’s laws is relevant to this analysis to the extent that their purpose and principal effect was to treat two groups differently” and “such an amendment demeans one group by depriving them of rights provided for others.” The court said the Kentucky law could not be justified by being “rooted in tradition.” The court said other proposed interests in marriage have “failed rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor.” The court says the laws are “not rationally related” to any child-centered purposes because “Kentucky does not require proof of procreative ability” and “no one has offered evidence that same-sex couples would be any less capable of raising children or any less faithful in their marriage vows.”

Civil No. 2:13cv395
U.S. District Court, Eastern District of Virginia
February 13, 2014

Same-sex couples challenged Virginia’s marriage law.

The court said the couples had standing to challenge the law because they “suffer humiliation and discriminatory treatment on the basis of their sexual orientation.” The court first rejected the claim that Baker v. Nelson was controlling because “doctrinal developments since 1971 compel the conclusion.” In regards to the due process claim, the court said Virginia’s marriage laws “limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse.” Thus, the court said strict scrutiny should apply. The court said “tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.” The court said it “must perform its constitutional duty in deciding the issues currently presented before it. Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations, judicial vigilance is a steady beacon searching for an ever-more perfect justice and truer freedoms for our country’s citizens.” Although the court said “the welfare of our children is a legitimate state interest” it said “needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.” It also rejected the fit between the state’s child-centered interest and the marriage laws “because recognizing a gay individuals will marry, or how other individuals will raise families.” The laws are unconstitutional, the court says, because they “they target a subset (gay and lesbian individuals) who are similarly situated to Virginia’s heterosexual individuals and deprive that subset of the opportunity to marry.”

Case No. 13-cv-8719
U.S. District Court, Northern District of Illinois
February 21, 2014

Same-sex couples sought a court order that they be issued marriage licenses before the effective date of a state statute redefining marriage. Their petition was unopposed by the county clerk being sued and the attorney general.

The court said “[t]here is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry” because “the defendant and intervenor have joined in plaintiffs’ motion. Since the parties agree that marriage is a fundamental right available to all individuals and should not be denied, the focus in this case shifts from the ‘we can’t wait’ for terminally ill individuals to ‘why should we wait’ for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right.” Even though the court found the current marriage law facially unconstitutional its ruling only applied to Cook County.

Case No. 3:13-cv-01159
U.S. District Court, Middle District of Tennessee
March 14, 2014

Three same-sex couples challenged Tennessee law declining to recognize same-sex marriages contracted in other jurisdictions. The couples sought a preliminary injunction.

The court said “plaintiffs here are likely to succeed in their challenge to Tennessee’s Anti-Recognition Laws” because “defendants offer arguments that other federal courts have already considered and have consistently rejected,” i.e. federalism, that Windsor only applied to the national government and the “state’s interest in procreation.” The court said the injunction was necessary because the “state’s refusal to recognize the plaintiffs’ marriages de-legitimizes their relationships degrades them in their interactions with the state, causes them to suffer public indignity, and invites public and private discrimination and stigmatization.”

Civil Action No. 12-CV-10285
U.S. District Court, Eastern District of Michigan
March 21, 2014

Same-sex couples challenged Michigan’s marriage law. The court held a trial on the state interests in marriage.

The court said the defense witnesses “clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.” The court said the law “does not advance any conceivable legitimate state interest” because the testimony at trial “disproved [the] premise” that marriage between a man and a woman “provides the optimal environment for raising children.” The court also said “Michigan law does not similarly exclude certain classes of heterosexual couples from marrying whose children persistently have had ‘sub-optimal’ developmental outcomes.” The court said that it was not a valid justification for the law that the state was “proceeding with caution” in making social change because such a purpose is not valid “when constitutional rights are implicated.” The court said “tradition and morality” are not rational bases and that neither is federalism since “the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence.”

Case No. 1:14-cv-129
U.S. District Court, Southern District of Ohio
April 14, 2014

After the decision in Obergefell v. Wymslo which applied only to one couple, more same-sex couples challenged the law preventing recognition of out-of-state same-sex marriages.

The court, relying on its earlier decision held the law was “facially unconstitutional and unenforceable under any circumstances.” The court said the law created a “classification, relegating lesbian and gay married couples to a second-class status in which only their marriages are deemed void in Ohio.” Specifically, the court held: “There can be no circumstance under which this discriminatory classification is constitutional as it was intended to, and on its face does, stigmatize and disadvantage same-sex couples and their families, denying only to them protected rights to recognition of their marriages and violating the guarantee of equal protection.” In addition to repeating the legal analysis in Obergefell, the court said the “marriage recognition bans also implicate the parenting rights of same-sex married couples with children,” by “refusing to recognize [same-sex marriages, the] state unlawfully intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court,” “Disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause,” and the plaintiffs have an individual “right to full faith and credit for their New York adoption decree.” The court also added additional reasons for rejecting the interests the state said were served by the law. First, “given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious.” In regards to child-centered interests, the court said that in Windsor, “the Supreme Court found those arguments so insubstantial that it did not deign to acknowledge them.”

U.S. District Court, Southern District of Indiana
April 18, 2014

A same-sex couple challenged Indiana’s law declining to recognize same-sex marriages contracted in other jurisdictions and sought a preliminary injunction.

The court said that “as a general rule, Indiana recognizes valid marriages performed in other states.” The court said “if the state wishes to differentiate between people and make them unequal, then it must have at least a legitimate purpose.” The court said the state cannot have as its rationale encouraging those who create children to care for them because “Indiana generally recognizes marriages of individuals who cannot procreate.” The court said an injunction was appropriate because “the state experiences no harm when it is prevented from enforcing an unconstitutional statute.”

A.L.F.L. V. K.L.L.
No. 2014-CI-02421
Texas District Court, Bexar County
April 22, 2014

A same-sex couple married in Washington, D.C. sought a divorce in Texas.

The court said it had jurisdiction because the state constitutional provision specifying that same-sex marriages have no legal effect was found unconstitutional by a federal district court. Also, one of the spouses has a child the parties were raising. The court said that in D.C. where the marriage was contracted the non-parent spouse would be recognized as a second legal parent and “failure in Texas to afford the same presumption of parenthood to the wife of a child’s birth mother as it does to the husband of the birth mother violates the Equal Protection Clause.” The court also said: “By denying their parents the right to marry, Texas has created a suspect classification of children who are denied Equal Protection of the law under the Fourteenth Amendment. Immutable protections for the children born of same-sex marriages require the same protections as those born from mother marital and intimate relationships.” Finally, the court held the “marriage certificate . . . is an order to which Texas must give full faith and credit.”

Supreme Court No. S-14521
Alaska Supreme Court
April 25, 2014

Same-sex couples challenged a law granting a property tax exemption for “the assessed value of the residence of an owner who is a senior citizen or disabled veteran” but which denies “the exemption for that portion of the property occupied by a person other than the spouse of an eligible applicant.” So, “the full value of the exemption will not be granted to [an] unmarried couple.” The trial court found the discrepancy unconstitutional.

The state supreme court said the state’s marriage amendment should not “be interpreted as denying benefits to same-sex couples” and that it “does not explicitly or implicitly prohibit the State from offering the same property tax exemption to an eligible applicant who has a same-sex domestic partner that the State offers to an eligible applicant who has a spouse.” The court said that since, “(1) Same-sex couples cannot marry or have their marriages recognized in Alaska, and (2) because they cannot marry, same-sex couples cannot obtain the benefits of the tax exemption to the same extent as married couples,” the trial court was correct to say that “’[i]n Alaska, a marital classification facially discriminates based on an individual’s sexual orientation.’” The court also said that “for purposes of this appeal, there is essentially no difference between married couples and opposite-sex couples who want to marry.” Here “the law treats same-sex couples differently from opposite-sex couples if it prevents same-sex couples from becoming eligible for the benefits at issue.” The court held the asserted “governmental interests ‘in cost control, administrative efficiency, and promotion of marriage’” are legitimate but the law here “is not sufficiently related to those interests” because the “government cannot adequately protect its tax base and minimize cost without discriminating between similarly situated classes” and “giving the full benefit only to married couples will not encourage same-sex domestic couples to leave their partnerships and enter into heterosexual relationships with an intention to marry.”


Richard Stith, On the Legal Validation of Sexual Relationships in The Jurisprudence of Marriage and Other Intimate Relationships 143 (2010). Describing the tension between liberty and validation of same-sex marriages.

James M. Oleske, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses 50 Harvard Civil Rights-Civil Liberties Law Review __ (forthcoming 2014). Argues that law “authorizing [religious exemptions from facilitating same-sex marriages] threaten the constitutional right of same-sex couples to equal protection.”

Courtney M. Cahill & Geoffrey Christopher Rapp, Does the Public Care How the Supreme Court Reasons? Empirical Evidence from a National Experiment and Normative Concerns in the Case of Same-Sex Marriage 93 North Carolina Law Review __ (forthcoming 2014). Argues that the thesis that Supreme Court’s reasoning in marriage cases affects public opinion is not supported by empirical evidence.

Dale Carpenter, Windsor Products: Equal Protection from Animus __ Supreme Court Review __ (forthcoming 2014). Describes a “constitutional anti-animus principle” that the author argues springs from a footnote in a 1938 case.

Dareh Gregorian, “Couple Who Are Just Friends Allowed to Adopt, Judge Says in Landmark Ruling” New York Daily News, January 3, 2014 at Reporting trial court decision allowing a joint adoption by two friends who live in separate households.