Until this month, the Family Medical Leave Act (FMLA) has entitled almost all eligible spouses to take job-protected, unpaid leave to care for family members, including a sick spouse or stepchild. But it has not covered spouses who are married to same-sex partners. That means that even though you might be legally married to your spouse, you could still be denied the rights that opposite-sex spouses have to job-protected FMLA leave to care for your sick spouse – simply because of who you are, who you love, and who you married.
But now, thanks to the Department of Labor, same-sex spouses will have the same leave rights under the FMLA as spouses in heterosexual marriages. This month, the Department of Labor issued a new rule that becomes final today, defining “spouse” under the FMLA as being determined by where the celebration of marriage occurred, rather than the employee’s current state of residence. In other words, under the “place of celebration” rule, an employee in a same-sex marriage will be deemed a spouse under the FMLA if her marriage took place in a state that recognizes same-sex marriage, even if she currently lives and works in a state that does not. Read more »
On Thursday, the National Women’s Law Center, along with several women’s organizations and legal scholars, filed an amicus brief in Obergefell v. Hodges and consolidated cases. The brief argues that laws discriminating on the basis of sexual orientation, such as the marriage bans at issue in these cases, must be subject to heightened scrutiny under the Constitution’s equal protection guarantee, like laws that discriminate on the basis of sex or race. Such laws rely on outdated, stereotyped gender roles and the Constitution provides strong protection against government efforts to perpetuate them. Read more »
Yesterday, the U.S. Court of Appeals for the Sixth Circuit handed down its decision in DeBoer v. Snyder, [PDF] becoming the first federal appellate court to state uphold bans on marriage between same-sex couples post-Windsor. Instead of addressing the constitutional issues, the majority focused largely on who should decide the issue, insisting that the democratic process, not the federal judiciary, was the appropriate forum through which same-sex couples should obtain their civil rights. In other words, those “laboratories of experimentation” that adopted the bans to begin with should be charged with removing them. This decision begs the question, what is the role of the courts, if not to “say what the law is”—especially when the legal questions involve individual constitutional rights of such grave importance? Nevertheless, according to the Sixth Circuit, the courts should “wait and see” what the fallout is in the states where same-sex marriage is now legal and respect the will of the voters. Sound familiar? That same argument was made, unsuccessfully, by Virginia in Loving v. Virginia, the case that overturned Virginia’s ban on interracial marriage. It was an outrageous proposition then and it is today: don’t we look to courts to be counter-majoritarian? To prevent majorities from oppressing minorities? Read more »
This morning, the Court denied review in all seven of the cases it had been asked to take up involving state bans on marriage between same-sex couples. This means that the lower-court decisions striking down marriage bans in Indiana, Oklahoma, Utah, Virginia, and Wisconsin are final and will go into effect immediately. These decisions also are good news for same-sex couples seeking to marry in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming, as district courts in these states are bound by the Fourth,Seventh and Tenth Circuit court decisions that were presented for Supreme Court review. As a result, same-sex couples will be able to get married in 30 states and the District of Columbia. Read more »
In a forceful decision for the unanimous panel written just nine days after the cases were argued, Judge Richard Posner concluded that the states’ marriage bans violate the Constitution’s equal protection guarantee. Judge Posner wrote that cases present a straightforward question: whether the states “are discriminating against homosexuals by denying them a right that these states grant heterosexuals, namely the right to marry an unmarried adult of their choice.” The court’s analysis, he wrote, “goes to the heart of equal protection doctrine” and “capture the essence of the Supreme Court’s approach in heightened scrutiny cases,” the approach courts use to evaluate whether laws that discriminate based on sex violate equal protection. Read more »
Yesterday, the U.S. Court of Appeals for the Fourth Circuit handed down its decision in Bostic v. Rainey, becoming the second federal appeals court to strike down bans on marriage between same-sex couples post-Windsor. Read more »
Protection of basic individual rights has had a tough time as of late in the courts. Marriage equality, however, is a happy exception, sweeping through the courts with extraordinary unanimity. The Supreme Court started the trend last June in United States v. Windsor. In Windsor, the Court overturned as unconstitutional Section 3 of the federal Defense of Marriage Act, which prohibited the federal government from recognizing marriages between same-sex couples. Since then, every federal court to decide the constitutionality of same-sex marriage bans has found the state laws unconstitutional. Next up are the rights of same-sex couples in Kentucky, Michigan, Ohio, and Tennessee—the four states over which the Sixth Circuit Court of Appeals has jurisdiction—with five district court cases under review by that court.
In Tennessee, married same-sex couples are looking to have their validly-performed, out-of-state marriages recognized in their home state. In Ohio, one case is seeking to have valid out-of-state marriages between same-sex couples recognized for the purposes of death certificates, and the other case is seeking the same recognition rights for birth certificates. In Michigan and Kentucky, same-sex couples are seeking the right to marry in their states. In all cases, the district courts found the challenged marriage bans and marriage recognition bans unconstitutional under the Fourteenth Amendment. Read more »
Last year, the decision in United States v. Windsor represented a huge victory for marriage equality, as the Supreme Court ruled that Section 3 of the Defense of Marriage Act, which defined marriage as between a man and a woman, was unconstitutional. While the Supreme Court ducked the question posed by a companion case of whether a state ban on marriage between same-sex couples violated the Fourteenth Amendment, since Windsor the trend in lower courts has been unanimous: so far, 18 decisions have found these bans on same-sex marriage to be unconstitutional. The Tenth Circuit Court of Appeals is now poised to address the question in Kitchen v. Herbert and Bishop v. Smith, two cases which arise out of bans on marriage between same-sex couples in Utah and Oklahoma, which lower courts struck down. Read more »
"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."
U.S. v. Windsor
“In light of the Windsor decision, the [Internal Revenue] Service . . .concludes that the terms “husband and wife,” “husband,” and “wife” should be interpreted to include same-sex spouses.”
IRS Rev. Rul. 2013-17
I know this might sound strange, but filing my taxes the year after my wedding made me feel more married. I remember it distinctly—around this time of year, the W-2s arrived. My husband and I worked on the tax return together, and filed using the Married Filing Jointly status. There was something about that tax form recognition that felt weighty and real. Official.
This Friday, November 30, the Supreme Court will decide whether to hear the so-called marriage equality cases: suits challenging the legality of Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as between one man and one woman at the federal level, and Proposition 8, the California provision banning same-sex marriage there. The Court will announce next Monday whether it will hear any of those cases.
Each of the laws has been struck down by lower courts. The First and Second Circuit as well as a federal district court in the Northern District of California invalidated Section 3 of the DOMA under the federal equal protection clause, while the Ninth Circuit ruled that Proposition 8 was constitutionally impermissible for the same reason. Read more »