Property Law Developments—Joseph William Singer

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, — U.S. — (2015), that the Constitution’s due process clause protects liberty interests that include personal choices central to individual dignity and autonomy and that those include the right to marry, including someone of the same sex. The Court also held that it violates equal protection of the laws to allow male-female couples to marry but to deny that right to same-sex couples. For the same reasons, states must recognize same-sex marriages validly celebrated in other states.

The Supreme Court’s refusal to take certiorari in a number of cases means that same-sex marriage will become legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, and soon afterwards in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming bringing the total number of jurisdictions to 31 (including the District of Columbia) plus at least 5 Indian nations. In addition a ruling by a three judge panel in the 9th Circuit on Oct 7, 2014 will likely open up Nevada and Idaho as well, making a total of 33 jurisdictions. States that still ban same-sex marriages include Alaska, Montana, Arizona, North Dakota, South Dakota, Nebraska, Texas, Missouri, Arkansas, Louisiana, Michigan, Ohio, Kentucky, Tennessee, Mississippi, Alabama, Georgia and Florida. Jessica Meyers, Appeals rejected, way cleared for wider same-sex marriage: court action likely to affect 11 more states, Boston Globe, Oc. 6, 2014.

For the first time, federal court rulings seem to have brought same-sex marriage the states. Most of the states that have recognized such marriages have done so through state court rulings or legislation. However, federal court rulings have increasingly found same-sex marriage bans to violate the equal protection clause of the federal constitution. Most such rulings of federal district courts are on appeal and most were stayed during that appeal. However, the governors of both Oregon and Pennsylvania declined to appeal the rulings and no other parties appear to have been given standing to do so. Geiger v. Kitzhaber, 2014 U.S. Dist. LEXIS 68171 (D. Ore. 2014); Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. 2014); That seems to place those states in the same-sex marriage column bringing the total number of jurisdictions with same-sex marriage to twenty (19 states plus the District of Columbia). The list includes California, Connecticut, Delaware, District of Columbia, Hawai`i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington.

The Scottish Parliament passed the Marriage and Civil Partnership Bill allowing and recognizing same-sex marriage. It is the 17th country to do so. read article The vote was an astonishing 105-18.

A federal district court judge in Utah struck down the state’s marriage laws to the extent they disallowed same-sex couples to marry. Kitchen v. Herbert, (D. Utah 2013). Holding the right to marry to be a fundamental constitutional right and denial of that right to same-sex couples a violation of the equal protection clause in the U.S. Constitution, the judge refused to stay his opinion. As a result hundreds of couples began applying for and receiving marriage licenses. The decision is being appealed by the state of Utah and may be overturned by the Tenth Circuit. In a related ruling, a federal district court judge in Ohio ruled it unconstitutional for Ohio to deny marriage status to same-sex couples married out of state when one dies in-state. Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio 2013).  the judge ordered that the death certificates record the fact that the decedent was married. read article

The Supreme Court of New Mexico opened the state to same-sex marriages in the case of Griego v. Oliver,  2013 WL 6670704 (N.M. 2013). It interpreted New Mexico statutes as denying the right of same-sex couples to marry and then held those statutes unconstitutional under the equal protection clause in Article 18 of Section II of the New Mexico Constitution. The court unanimously held that the statutes created a classification based on sexual orientation and that such statutes should be subject to intermediate scrutiny because the class of gay and lesbian persons has a history of being subject to discrimination and “deep-rooted prejudice against their integration into society.”

Applying that standard of review, the court found the classification unconstitutional. The state justified denying same-sex couples the right to marry on the ground that male-female marriages promoted “responsible procreation and child-rearing.” Although this is a legitimate government interest, the court found no relation between it and the decision to deny marriage to same-sex couples, partly because “fertility has never been a condition of marriage” and even if it was, same-sex couples can procreate and raise children responsibly. The court found that the “purpose of the 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.” Given that purpose, the state could show no legitimate government interest in denying the civil status of marriage to same-sex couples.

After passage of same-sex marriage laws in both Hawai`i and Illinois and constitutional litigation in New Jersey, seventeen (17) jurisdictions in the US recognize and allow same-sex marriage. The list includes: California, Connecticut, Delaware, District of Columbia, Hawai`i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Washington.

The Illinois House has passed a marriage equality bill that is virtually certain to become law in some form in the near future given the support in the Senate and by the Governor. Once that happens, 15 states will have same-sex marriage along with the District of Columbia. The outcome is more uncertain in Hawai`i but the legislature may vote in favor of a same-sex marriage bill in the next days.

The Cheyenne and Arapaho Tribes have allowed several same-sex couples to marry under tribal law. The tribal code is neutral with respect to the gender of persons who can get married and merely require one of the parties to be a tribal citizen. read article

Given the clear statement by the Supreme Court of New Jersey on how it was likely to rule in the pending marriage equality case, (see Garden State Equality v. Dow (N.J. 2013). Governor Chris Christie decided to drop the appeal. read article. That leaves the lower court ruling (read opinion here) in place with its conclusion that civil unions are not equal to marriages now that the federal government provides same-sex married couples the same federal rights as male-female married couples but does not confer such rights on partners to a civil union. The New Jersey Supreme Court’s prior ruling in Lewis v. Harris, 908 A.2d 196 (N.J. 2005), had found it to be a violation of the state constitution not to grant same-sex couples the same rights as married couples but left it to the legislature whether to call the resulting unions “marriages” or “civil unions” or something else. While New Jersey conferred equal rights under state law to “civil union” couples, they could not grant them the federal benefits of married couples; that would have been true even if they had allowed “marriages.” But after United States v. Windsor, married same sex couples do have the same federal benefits and married male-female couples so that created an inequality between married New Jersey couples and civil union New Jersey couples that could not stand under the state constitution.

The Supreme Court of New Jersey unanimously upheld the decision of a trial judge to allow same-sex marriage to proceed pending appeal of the trial judge’s ruling that the New Jersey civil union law violates equal protection by denying same-sex couples the same rights as granted to married couples under federal law. Garden State Equality v. Dow, (N.J. 2013). The court had previously held that same-sex couples were entitled under the state constitution to the same rights and privileges as married male-female couples but allowed the legislature to determine whether to accomplish this end by extending marriage rights to same-sex couples or adopting a civil union law. Because the legislature adopted a civil union law, such couples had the same rights under state law as did male-female couples; they had different rights under federal law but that was because federal law refused to recognize any same-sex couples as married for any federal purposes and the state could not change that situation.

However, after the Supreme Court decision in United States v. Windsor, 133 S.Ct. 2675 (2013), required the federal government to treat couples as married for federal purposes if they were married under state law, an inequality has now been introduced into New Jersey law. Before Windsor, civil union couples had the same rights as married male-female couples under state law but unequal rights with regard to federal law; that was something state law could not fix. But now that federal law gives married same-sex couples the same rights under state and federal law, it has been true that civil union couples in New Jersey are denied federal rights they would have if they were married under state law. The court determined that this likely violated the equal protection clause and that the state had no legitimate state interest to violate the constitution while the appeal proceeded. Same sex marriages will begin on Monday Oct 21 while the appeal in the NJ Supreme Court will take place in January 2014.

In 2008, by a 4-3 vote, the Supreme Court of California held that its state constitutional right to equal protection of the laws grants same-sex couples the same right to marry as is enjoyed by opposite-sex couples, using strict scrutiny to come to this conclusion. In re Marriage Cases, 183 P.2d 384 (Cal. 2008). The court held that the right to marry is a basic civil right whose denial impinges upon same-sex couples’ fundamental privacy interests in having official family relationships accorded equal respect and dignity and that no compelling state interest justified the differential treatment of same-sex and opposite-sex couples. It also ruled that existing statutory provisions recognizing civil union or domestic partnership arrangements for same-sex couples were not equivalent to laws recognizing opposite-sex civil marriages.

The California decision was overturned on November 4, 2008, when California voters approved Proposition 8 amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, §7.5 (added Nov. 4, 2008), held unconstitutional by Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010, aff’d, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), appeal dismissed by Hollingsworth v. Perry, 133 S.Ct. 786 (U.S. 2012). Subsequently, the California Supreme Court ruled that the constitutional amendment did not retroactively invalidate the 18,000 same-sex marriages that took place in California between the time when the marriage right was extended to same-sex couples and the date when the marriage right was revoked. Strauss v. Horton, 207 P.3d 48 (Cal. 2009). Proposition 8 was struck down in federal district court as a unconstitutional denial of equal protection of the laws and the court ordered the state of California not to enforce Proposition 8. Perry v. Schwarzenegger, 704 F.Supp. 2d 921 (N.D. Cal. 2010). When the state refused to appeal that adverse ruling, proponents of Proposition 8 stepped in to do so; the California Supreme Court answered a certified question by determining that they were entitled to do so and the trial court’s ruling was upheld on appeal to the Ninth Circuit. That ruling was overturned by the Supreme Court in Hollingsworth v. Perry, — U.S. —, 2013 WL 3196927 (2013), on the ground that the petitioners had no standing to intervene in the case to appeal the trial court’s ruling. That left the trial court’s ruling standing, opening the way to resume same-sex marriages in California.

Section 3 of the federal Defense of Marriage Act (DOMA), 1 U.S.C. §7, Pub. L. No. 104-199, §3, 110 Stat. 2419, passed in 1996, denied federal recognition to same-sex marriages. This meant, for example, that for such purposes as calculating federal income tax, same-sex couples were not recognized as married and entitled to the tax advantages (and disadvantages) of marriage even if they were validly married under state law. A same-sex couple validly married in Massachusetts under Massachusetts law would file state tax returns as a married couple but would then have to file federal tax returns as two unrelated individuals. However, Section 3 was struck down as an unconstitutional violation of the due process and equal protection clauses on June 26, 2013 in the case of United States v. Windsor,  — U.S. —, 2013 WL 3196928 (2013). Windsor found that marriages have traditionally been governed by state, rather than federal law, and held that no legitimate government interest could justify treating same-sex married couples differently from those of opposite-sex married couples. Windsor does not answer the question of which state’s law should be used to determine whether a marriage is valid under federal law. The federal government could look to the law of the place of celebration or the domicile of the parties either at the time of marriage or at the time when recognition of the marriage is sought. For example, while the Veterans Administration looks to the place of celebration to determine if a marriage is valid, the Social Security Administration looks to the domicile of the parties. This issue will be worked out by future federal administrative action and possibly legislative reforms.

Within the last month or so, new states have recognized same-sex marriage. They are Delaware, Rhode Island, and Minnesota. All did so legislatively. Del. Code, tit. 13, §§101 to 122, as amended by 2013 Del. HB 75 (May 8, 2013); R.I. Gen. Laws §§15-1-1 to 15-1-5, as amended by 2013 R.I. Pub. Laws 4 (2013 R.I. HB 5015); Minn. Stat. §§517.01 to 517.09, as amended by 2013 Minn. Sess. Law Serv., ch. 74 (H.F. 1054) (May 14, 2013). Internationally, recent additions to the list include France, New Zealand, and Uruguay.

As of May 17, 2013, there are now thirteen jurisdictions (12 states and the District of Columbia) that recognize same -sex marriage in the U.S. They include  Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

Three American Indian nations also recognize same-sex marriage, including the Coquille Indian Tribe, the Little Traverse Bay Bands of Odawa Indians, and the Suquamish Tribe. ee, e.g., Coquille Indian Tribal Code §§740.010, 740.100; Little Traverse Bay Bands of Odawa Indians Tribal Code of Law § 13.103; William Yardley, A Washington State Indian Tribe Approves Same-Sex Marriage, N.Y. Times, Aug. 11, 2011, at A-12 (Suquamish Tribe).

Maine, Maryland and WAshington states all passed referenda legalizing same-sex marriage on Nov. 6, 2012.

An evenly-divided Supreme Court of New Jersey affirmed a lower court’s opinion that protected the potential parental rights of a surrogate mother who had been implanted with the sperm of a man and the egg of an anonymous donor and denying the right of the man’s wife to have her name placed on the birth certificate with her husband’s at the time of birth of the child even though it was contingent on the surrogate mother’s right to change her mind up to 72 hours after the birth of the child. In re T.J.S., 2012 WL 5233616 (N.J. 2012), aff’g In re T.J.S., 16 A.3d 386 (N.J. Super. Ct. App. Div. 2011). The state statute affirms the potential parental rights of the sperm donor and the biological mother who gives birth to the child, as well as the egg donor. The statute protects the rights of the biological mother to retain parental rights (even if the egg is donated by someone else) unless she relinquishes those rights in an approved manner; the statute requires adoption by the mother who is not biologically related to the child while recognizing the sperm donor’s rights as father because of his biological connection to the child.

Although the state statute allows the husband’s name to be placed on the birth certificate of a child born by his wife even if she is impregnated with the sperm of a third-party donor, the court did not find a constitutional equal protection violation when it denied that right to the infertile wife in this case. In effect, the court thought there was a rational reason to make it easier for sperm donors to relinquish parental rights than for surrogate mothers to do so; conversely, it saw reason to place parental obligations on husbands regardless of a biological connection to a child born by their wives while denying parental rights and obligations for wives who have children through a surrogate mother.

The three dissenters found such a distinction to violate the equal protection clause of the constitution by granting the husband the right to immediate parental status despite lacking any biological connection to the child while denying that right to the wife over a child biologically connected to her husband, especially when the birth certificate explicitly made the wife’s parental status contingent on the waiting period that allowed the biological (surrogate) mother to change her mind.

The case implicates property issues because the parental/child relationship not only confers rights on the child but obligations on the parent so who the parent is defines who has obligations to support the child, thus encumbering the parent’s property to comply with those obligations.

The Supreme Judicial Court of the Commonwealth of Massachusetts held that a man who entered into a civil union with another man in Vermont could not marry a different man in Massachusetts before dissolving the civil union. Elia-Warnken v. Elia, 463 Mass. 29, 2012 Mass. LEXIS 678 (Mass. 2012). The court dismissed divorce proceedings in Massachusetts on the ground that the marriage was void from the beginning since one of the men was still “married” (under a “civil union”) to another man in Vermont. The result denied the “spouse” in Massachusetts any remedies such as equitable distribution of property on the ground that otherwise one person would be married to two people at once with conflicting support obligations. The court cited an article of mine, Joseph William Singer, Same–Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 29, 36, 50 (2005). Presumably, an action to dissolve the Vermont civil union could still be made but that would not generate  any property remedy against the Massachusetts spouse because that spousal relation never legally existed under the Massachusetts bigamy statute. The court did not address whether there might be any equitable or common law remedies based on a claim of constructive trust or unjust enrichmnet or fraud for failure to reveal the prior relationship.

The Vermont Supreme Court held, in RBS Citizens v. Ouhrabka, 30 A.3d 1266 2011 VT 86 (Vt. 2011), that creditors cannot attach tenancy by the entirety property unless both spouses agreed to the debt. This appears to be the majority rule in the country although some states disagree.

Governor Christine Gregoire of Washington State signed Senate Bill 6239 on Feb. 13, 2012 authorizing same-sex marriage in the state of Washington. Wash. Sess. Laws 2012 ch. 3. The bill is effective as of June 7, 2012. Governor Martin O’Malley will sign a similar bill in Maryland, called the Civil Marriage Protection Act, House Bill 438, on March 1, 2012. Both laws may be subject to repeal by referendum votes by the citizens of the respective states. New Hampshire’s legislature is talking about repealing its same-sex marriage legislation but Governor John Lynch has vowed to veto any such bill. read article

The Connecticut Supreme Court ruled in Bedrick v. Bedrick, 17 A.3d 17 (Conn. 2011) that post-nuptial agreements may be enforceable but that they are subject to stricter standards than premartial agreements. Moreover, in this case, the court found the contract unconscionable at the time of trial and thus void and unenforceable. Such agreements must be examined to ensure that they are fair and equitable at the time of divorce and whether enforcement would “work an injustice.”

After long negotiations and 4 votes by Republican Senators, New York passed a same-sex marriage bill on June 24, 2011, signed by the Governor the same day. New York will be the seventh jurisdiction to allow such marriages. The others are Connecticut, District of Columbia, Iowa, Massachusetts, New Hampshire, Vermont. read article

Governor Jack Markell has signed a bill adding Delaware to the list of states that authorize the creation of civil unions for same-sex couples that have the same rights as married couples under state law. read article The list of states that recognizes civil unions now includes California, Delaware, Hawai`i, Illinois, Nevada,New Jersey, Oregon, and Washington. States that recognize domestic partnership arrangements that have more limited rights include Colorado, Maine, Maryland, and Wisconsin. read article

Jurisdictions that authorize same-sex marriage are Connecticut, District of Columbia, Iowa, Massachusetts, New Hampshire, Vermont. In California, 18,000 couples were married before the constitutional amendment was approved abolishing same-sex marriage. New York and Maryland recognize marriages celebrated in states that recognize them. Rhode Island recognizes out-of-state same-sex marriages for some purposes, while California, Illinois, New Jersey, and New Mexico recognizes such marriages as civil unions. read article

Judge Joseph L. Tauro of the District Court of Massachusetts ruled that the federal Defense of Marriage Act (DOMA) violates the constitution by prohibiting the federal government from recognizing same-sex marriages that are valid under state law. In one opinion, he ruled that the law violates the Tenth Amendment by intruding on areas reserved to the states, noting that family law (including the law of marriage) has traditionally been regulated by state law and not federal law. Commonwealth v. U.S. Dept. of Health and Human Services, 2010 WL 2695668 (D. Mass. 2010).  In a separate opinion, he ruled that DOMA violates the equal protection clause because the government could not provide any rational basis for failing to recognize same-sex marriages. Gill v. Office of Personnel Management, 2010 WL 2695652 (D. Mass. 2010). read article