Transcript DOMA - LAPERS

FIDUCIARY DUTY
AND DOMA
2014 LAPERS CONFERENCE
ROBERT E. TARCZA
TARCZA & ASSOCIATES, LLC
The Defense of Marriage Act (DOMA)
Act of Congress, signed into law by Bill Clinton on on September 21, 1996.
Section 1. Short title
This Act may be cited as the "Defense of Marriage Act".
Section 2. Powers reserved to the states
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.
*Section 3. Definition of marriage
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.
* Struck down by the U.S. Supreme Court in United States v. Windsor, 133 S.Ct. 2675 (2013)
Tarcza & Associates, LLC
United States v. Windsor:
Decided June 26, 2013, finding DOMA’s § 3 Unconstitutional
Background:
Edith Windsor and Thea Spyer married in Ontario, Canada in 2007.
Their marriage was recognized as valid by the State of New York.
Spyer died in 2009.
Windsor asserted and was denied the federal estate tax exemption for
surviving spouses because of the Treasury’s application of Section 3 of
DOMA.
Windsor paid $363,053 in estate taxes, and the IRS refused to give her a
refund.
Both lower courts ruled in favor of Windsor and against the U.S. Treasury.
Tarcza & Associates, LLC
U.S. v. Windsor:
Significance of DOMA’s § 3: The Definitions of “Marriage” and “Spouse”
What did DOMA § 3 do?
Amended the Dictionary Act, Title 1, § 7 of the United States Code.
Affected the application of over 1,000 federal statutes in which marital or spousal
status is addressed as a matter of federal law, i.e., Social Security, housing, taxes,
criminal sanctions, copyright, and veterans’ benefits.
The Dictionary Act affects the application of federal laws only. States are free to
recognize same-sex marriage, but § 3 had provided that same-sex marriage would
not be recognized in federal law.
Because of DOMA, Windsor was not considered a “surviving spouse” for federal
tax purposes, which affected her payment of estate taxes.
Tarcza & Associates, LLC
U.S. v. Windsor:
The Supreme Court’s Ruling:
Ruling of the Court: § 3 is unconstitutional.
The dual regime whereby a couple is recognized as married for purposes of state law but not for
purposes of federal law is unconstitutional as violative of Due Process and Equal Protection provided by
the Fifth Amendment.
The domain of marriage has been the realm and sole jurisdiction of the states since the time of the
adoption of the U.S. Constitution, and it was not one of the powers given to the federal government
through the Constitution. (At. pp. 16-18.)
“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due
process and equal protection principles applicable to the Federal Government.” At p. 20, citing U.S. Const.
Amend. 5.
Effect: The federal government must recognize and give full benefits to all marriages that the
various states recognize to be legitimate marriages.
Tarcza & Associates, LLC
Absent from the Ruling: Mention of § 2
Case and Controversy/ Standing:
●
●
●
Section 3, the modification to the Dictionary Act, was the only issue before the Supreme Court.
The State of New York recognized Windsor’s marriage directly, not merely acknowledging the
authority of another jurisdiction; therefore, the only question before the court was the
interplay between New York’s recognition of the marriage and the federal government’s
prohibition of it.
The validity of § 2, the provision permitting states not to recognize same-sex marriages
performed in other states, was not before the Court.
The right of a state to prohibit same-sex marriage was not before the Court.
The Supreme Court did not rule that § 2 is unconstitutional
●
●
The constitutionality of § 2 is currently being litigated in the Circuit Courts, along with state
prohibitions of same-sex marriage.
The question of whether the Full Faith and Credit Clause of the Fourth Amendment (which
requires each state to recognize the laws of each other state) applies to same-sex marriage
was not before by the Supreme Court in Windsor.
Tarcza & Associates, LLC
First Circuit: No decisions
Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico
Legal by statute in:
Maine
Massachusetts
New Hampshire
Rhode Island
Illegal by statute in:
Puerto Rico
Puerto Rico’s ban is currently being challenged in Conde v. Rius: 3:14-cv-01253, Dist.
Puerto Rico.
- Filed March 25, 2014, in Puerto Rico Federal District Court.
- Puerto Rico has a statutory prohibition to same-sex marriage.
- Couple was legally married in Massachusetts, moved to Puerto Rico.
- Currently at District Court level.
- Four additional couples joined the litigation in June 2014: two seeking recognition of
marriages performed in other states, two seeking to marry in Puerto Rico.
Tarcza & Associates, LLC
Second Circuit: No decisions
Vermont, New York, Connecticut
Legal by statute in:
Vermont
New York
Connecticut
Tarcza & Associates, LLC
Third Circuit: No decisions
Delaware, New Jersey, Pennsylvania, Virgin Islands
Legal by statute in:
Delaware
New Jersey
Illegal by statute in:
Virgin Islands
Pennsylvania*
*Pennsylvania’s statutory ban was struck down by court decision. Same-sex marriages may be
performed in and are recognized by Pennsylvania although such marriages are not specifically
allowed by statute.
Whitewood v. Wolf: M.D. Pennsylvania (May 20, 2014)
- Pennsylvania’s statutory ban was found unconstitutional by application
of the Due Process and Equal Protection clauses of the Fourteenth Amendment.
- The case was not appealed to the Third Circuit.
- A stay was requested and denied; rehearing was denied.
Tarcza & Associates, LLC
Fourth Circuit: Found ban unconstitutional
Virginia, Maryland, North Carolina, South Carolina
Legal by statute in:
Maryland
Illegal by statute in:
North Carolina
South Carolina
Virginia*
*Ban has been overturned by a court decision, which has been stayed.
Bostic v. Schaefer, Fourth Circuit, July 28, 2014:
- Case was filed in the Eastern District of Virginia on July 1, 2013, five days after the
Windsor decision came down.
- A gay couple challenged Virginia’s statutory and constitutional ban on same-sex marriage
after being denied a marriage license.
- The district court ruled in favor of the plaintiffs.
- The Fourth Circuit upheld the decision of the district court, and found the ban on samesex marriage to violate the Equal Protection and Due Process provisions of the
Fourteenth Amendment.
- August 13, 2014, the Court ruled that it would not stay its decision; however, the
U.S. Supreme Court issued a stay on August 20, 2014.
- The decision is likely binding on North and South Carolina as well.
Tarcza & Associates, LLC
Fifth Circuit: Issue under review
Louisiana, Texas, Mississippi
Legal by statute in:
n/a
Illegal by statute in:
Louisiana
Mississippi
Texas*
*A district court in Texas has struck down the state’s ban. The decision has been stayed, so no same-sex
marriages may be performed currently
Robicheaux v. Caldwell, Eastern District of Louisiana:
- Challenged DOMA § 2, Louisiana’s refusal to acknowledge same-sex marriages performed in other
states, and Louisiana’s own constitutional provision prohibiting same-sex marriage.
- Initial plaintiffs were lawfully married in Iowa, later joined by another couple married in Iowa and a
gay couple wishing to be married in Louisiana.
- The district court upheld Louisiana’s ban.
DeLeon v. Perry, Western District of Texas:
- Filed October 28, 2013, challenging Texas constitutional and statutory laws banning same-sex
marriage, joined by a challenge to DOMA, § 2.
- The plaintiffs are two couples, one wishing to be married in Texas, another validly married in
Massachusetts and wanting their marriage recognized in Texas.
- The district court ruled in favor of the plaintiffs, and stayed the judgment pending the Fifth Circuit’s
review.
Tarcza & Associates, LLC
Robicheaux v. Caldwell, 13-5090, (La. E.D. 9/3/14).
Both Louisiana’s ban on same-sex marriage and Louisiana’s refusal to acknowledge same-sex marriages performed in other
states have been upheld by the district court.
Judge Feldman of the Eastern District of Louisiana found that “Louisiana has a legitimate interest under a rational basis
standard of review for addressing the meaning of marriage through the democratic process.” Id. at 1.
“’[I]f a law neither burdens a fundamental right nor targets a suspect class,” the Supreme Court has held, “the legislative
classification [will survive] so long as it bears a rational relation to some legitimate end.’” Id. at 6, quoting Romer v. Evans,
517 U.S. 432, 440 (1985).
Fundamental rights include “the rights to marry, to have children, to direct the education and upbringing of one’s children,
to marital privacy, to use contraception, to bodily integrity, and to abortion.” Id. at 19. Such rights must be analyzed under a
“careful description,” which, in this case, means “same-sex marriage” not simply “marriage,” and same-sex marriage is not
rooted in the history and traditions of this country. Id. at 20-22.
“[N]either the Supreme Court nor the Fifth Circuit has ever before defined sexual orientation as a protected class, despite
opportunities to do so.” Id. at 12, citing Windsor, Romer, supra.
The “legitimate end” cited by the decision is “linking children to an intact family formed by their two biological parents.”
Citing Justice Kennedy’s dissent in Windsor.” Id. at 15, 23.
Sixth Circuit: Issue under review
Kentucky, Michigan, Ohio, Tennessee
Legal by statute in:
n/a
Illegal by statute in:
Kentucky*
Michigan*
Ohio*
Tennessee**
*District court decisions have overturned state bans. The decisions have been stayed by the Sixth Circuit.
**District court ordered the recognition of the marriages of the three plaintiffs only. The decision has been
stayed by the Sixth Circuit.
Currently Pending Cases in the Sixth Circuit
- Oral arguments in all cases were August 6, 2014:
- All of the following same-sex marriage cases currently pending found DOMA § 2
unconstitutional on Equal Protection Clause grounds :
DeBoer v. Snyder, E.D. Michigan;
Henry v. Himes S.D. Ohio;
Obergefell v. Himes, S.D. Ohio;
Bourke v. Beshear, Love v. Beshear, W.D. Kentucky (consolidated for appeal);
Tanco v. Haslam, M.D. Tennessee
Tarcza & Associates, LLC
Seventh Circuit: Issue under review
Illinois, Indiana, Wisconsin
Legal by statute in:
Illinois
Illegal by statute in:
Indiana*
Wisconsin*
*Bans have been struck down by district court decisions. Effect of those decisions has been stayed.
Four cases currently pending, oral argument August 13-26, 2014.
- All four district court decisions found that bans on same-sex marriage unconstitutionally violate
due process and equal protection. The rulings were stayed pending appeal to the Seventh
Circuit.
- Indiana’s ban on same-sex marriage was struck down by the district court in:
Baskin v. Bogan (S.D. Indiana)
Lee v. Abbott (S.D. Indiana)
Fujii v. Comm’r of the Indiana State Dept. of Revenue. (S.D. Indiana)
- Wisconsin’s constitutional and statutory ban on same-sex marriage was struck down by:
Wolf v. Walker. (W.D. Wisconsin).
Tarcza & Associates, LLC
Eighth Circuit: Found Ban Constitutional
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
Legal by statute in:
Iowa
Minnesota
Illegal by statute in:
Arkansas
Missouri
Nebraska
North Dakota
South Dakota
Citizens for Equal Protection v. Bruning, Eighth Circuit (2006)
- Originated in Federal District Court of Nebraska, which found the state’s ban
unconstitutional. The Eighth Circuit reversed the district court and reinstated the ban.
- Decision creates a split in the Circuit Courts, giving the United States Supreme
Court a reason to rule on the issue.
- Challenged a 2000 ballot initiative to ban same-sex marriage through statute and
constitutional amendment.
- Decision was handed down before Windsor, so the Eighth Circuit could revisit the issue,
but no case is pending before the Eighth Circuit at present.
Tarcza & Associates, LLC
Ninth Circuit: Issue under review
California, Washington, Oregon, Alaska, Arizona, Hawaii, Idaho, Montana,
Nevada, Guam, Northern Mariana Islands
Legal by statute in:
California
Hawaii
Washington
Illegal by statute in:
Alaska
Arizona
Idaho*
Montana
Nevada
Oregon**
Guam
N. Mariana Islands
*District court decisions have overturned the ban and are pending in the Ninth Circuit. The rulings have been stayed.
**Marriages may presently be performed in Oregon. A permanent injunction has been issued prohibiting the enforcement of
laws that prohibit same-sex marriages. Geiger v. Kitzhaber; Rummell v. Kitzhaber. All stays have been denied.
Cases currently pending. Oral arguments set for September 8, 2014:
- Sevcik v. Sandoval, Dist. Nevada; Jackson v. Fuddy, Dist Hawaii, both decided before the Windsor decision and
are no longer being defended by Nevada and Hawaii.
- Sevcik is no longer defended by the state because the Ninth Circuit ruled that discrimination based
on sexual orientation must receive heightened scrutiny.
- Jackson is not defended because Hawaii has since legalized same-sex marriage by amending its
statute.
- Latta v. Otter, 1:13–cv–00482, Dist. Idaho (2014)
- Idaho’s ban was found to be unconstitutional as violative of the Due Process and Equal Protection
provisions of the Fourteenth Amendment
Tarcza & Associates, LLC
Tenth Circuit: Found ban unconstitutional
Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming
Legal by statute in:
New Mexico
Illegal by statute in:
Colorado* Utah*
Kansas
Wyoming
Oklahoma*
*District court decisions overturning bans have been stayed. Colorado’s case is pending, Utah’s and Oklahoma’s have been
affirmed by the Tenth Circuit.
Kitchen v. Herbert, Tenth Circuit (2013)
- The U.S. District Court for Utah found Utah’s constitutional ban on same-sex marriage to be unconstitutional.
- Ruling went into effect immediately, and the United States Supreme Court stayed the decision 17 days later.
●
Over 1300 marriages were performed between the December 20, 2013 ruling and the January 6, 2014
stay.
●
This action of the United States Supreme Court set a precedent for issuing stays in same-sex marriage
cases.
Bishop v. United States, Tenth Circuit (2014)
- Originated in N.D. Oklahoma. The district court found the ban on same-sex marriage is unconstitutional
because it violates Due Process and Equal Protection; the Tenth Circuit upheld the district court’s judgment
finding DOMA § 2 and the state’s own ban unconstitutional.
Burns v. Hickenlooper, Colorado District Court
- Currently pending appeal in the Tenth Circuit after Colorado District Court found Colorado’s ban
unconstitutional.
Tarcza & Associates, LLC
- Bound by precedent set by Kitchen and Bishop.
Eleventh Circuit: No Decisions
Alabama, Florida, Georgia
Legal by statute in:
n/a
Illegal by statute in:
Alabama
Florida*
Georgia
*District court found ban unconstitutional in Brenner v. Scott, because the law violates Equal Protection and Due Process of the
Fourteenth Amendment. The district court issued a stay.
Brenner v. Scott, N.D. Florida (8/21/14)
- The district court found Florida’s ban unconstitutional and issued a stay of the decision.
- The stay will remain in effect until 91 days after the stays are lifted in Bostic v. Schaefer, (CA 4 2014);
Bishop v. Smith, (CA 10 2014); and Kitchen v. Herbert, (CA 10 2014).
- The decision allowing one of the plaintiffs to be recognized on her deceased spouse’s death certificate
was not stayed.
- The State of Florida has not yet appealed the ruling.
Pending district court cases:
Aaron-Brush v. Bentley, N.D. Alabama
- Couple seeks recognition of out-of-state marriage.
Inniss v. Aderhold, N.D. Georgia
- Class action suit challenging the state ban on same-sex marriage and the non-recognition of same-sex marriages
performed in other states.
Tarcza & Associates, LLC
District of Columbia: No Decisions
Legal by statute in:
District of Columbia
Tarcza & Associates, LLC
Louisiana’s Constitutional Provision on Same-sex Marriage
Article XII. General Provisions, § 15. Defense of Marriage:
Marriage in the state of Louisiana shall consist only of the union of one man and one woman.
No official or court of the state of Louisiana shall construe this constitution or any state law to
require that marriage or the legal incidents thereof be conferred upon any member of a union
other than the union of one man and one woman. A legal status identical or substantially similar to
that of marriage for unmarried individuals shall not be valid or recognized. No official or court of
the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is
not the union of one man and one woman.
Added by Acts 2004, No. 926, §1, approved Sept. 18, 2004, eff. Oct. 19, 2004.
Tarcza & Associates, LLC
Louisiana Civil Code Article 3520: Marriage
A. A marriage that is valid in the state where contracted, or in the state where the parties
were first domiciled as husband and wife, shall be treated as a valid marriage unless to
do so would violate a strong public policy of the state whose law is applicable to the
particular issue under Article 3519.
B. A purported marriage between persons of the same sex violates a strong public policy of
the state of Louisiana and such a marriage contracted in another state shall not be
recognized in this state for any purpose, including the assertion of any right or claim as a
result of the purported marriage.
Acts 1991, No. 923, §1, eff. Jan. 1, 1992; Acts 1999, No. 890, §1.
Fiduciary Duty of Trustees:
La. Const. Art. I. Declaration of Rights, § 3. Right to Individual Dignity:
Section 3. No person shall be denied the equal protection of the laws. No law shall discriminate against a
person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or
unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or
political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as
punishment for crime.
“The general rule is that legislation is presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne, Tex. v. Cleburne
Living Center, 473 U.S. 432, 440 (1985).
“Whenever a person disadvantaged by a legislative classification not enumerated in Article I, Section 3
seeks to have the classification declared unconstitutional, that person has the stringent burden of
demonstrating that the classification does not suitably further any appropriate governmental interest.”
State v. Granger, 07-2285 (La. 5/21/08), 982 So.2d 779, 789.
Unless a plaintiff meets the stringent burden of showing that there is no appropriate governmental
interest, a statute is presumed to be constitutional. Granger, at 795.
Fiduciary Duty of Trustees:
Funds must follow the laws of the state and cannot challenge a state law under the
United States Constitution
The Louisiana Legislature is the “plan sponsor” of the pension funds. 29 U.S.C. § 1002
(16)(B).
As creatures of the Louisiana Legislature, Pension Funds do not have standing to challenge
the constitutionality of a statute.
“[A] political subdivision, ’created by the state for the better ordering of government, has no
privileges or immunities under the federal constitution which it may invoke in opposition to
the will of its creator.’” Ysursa v. Pocatello Educ. Ass’n., 555 U.S. 353, 365 (2009),
citing Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933).
Fiduciary Duty of Trustees:
Funds must follow the laws of the state and cannot challenge a state law under the
Louisiana Constitution
Louisiana Assessors’ Retirement Fund v. City of New Orleans, 02-1435, (La. 2/7/03), 849
So.2d 1227:
“The power of the state and its agencies over municipal corporations within its
territory is not restrained by the provisions of the Fourteenth Amendment.” at
1229, citing Warren County, Miss. v. Hester, 219 La. 763, 54 So.2d 12, 18 (La.
1951).
“Correspondingly, Article I of the Louisiana Constitution protects only the rights of
“persons” and does not protect government entities against unjust government
action.” at 1229, citing Morial v. Smith & Wessen Corp., 00-1132 (La. 4/3/01), 785
So.2d 1, 13.