Lambda Legal Update

(From Lambda Legal.)

(New York, January 5, 2009) — A decision last week from the New York Appellate Division, Second Department affirmed dismissal of a case brought by antigay Arizona group the Alliance Defense Fund and confirmed that Westchester County Executive Spano lawfully recognized out-of-state marriages of same-sex couples.

The Court said in its decision: ..."The Executive Order at issue here requires that same-sex marriages be recognized to ‘the maximum extent allowed by law.’ By its terms, therefore, the Executive Order can never require recognition of such a marriage where it would be outside the law to do so. Since it is within the authority of the County Executive ‘[t]o see that the laws of the state, pertaining to the affairs and government of the county...are executed and enforced within the county’) the Executive Order is not illegal.”

“Yet another appellate court has ruled that government officials act lawfully when they respect out-of-state marriages of same-sex couples,” said Susan Sommer, Senior Counsel at Lambda Legal. “The Alliance Defense Fund has wasted the courts’ time and taxpayers’ money in their years of consistently unsuccessful cases attacking these marriages in New York and the government officials who refuse to discriminate against lesbian and gay New Yorkers.”

In February 2008, in Martinez v. County of Monroe, the Appellate Division, Fourth Department in Rochester, also upheld application of the marriage recognition rule to valid out-of-state marriages of same-sex couples. Today’s decision comes after four ADF losses at the trial court level and is the first New York Appellate Court ruling on their cases challenging marriage recognition. The ADF, on behalf of several Westchester County taxpayers, challenged County Executive Spano’s June 6, 2006 Executive Order No. 3, which directs, “each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law." In March 2007, the lower court ruled that Spano's order was legally issued and consistent with New York law. That ruling was appealed. In oral argument on June 23, 2008, Lambda Legal represented Westchester County couple Michael Sabatino and Robert Voorheis, who had married in Canada and were permitted to intervene as defendants in the case.

“Today the court has re-affirmed that our relationship will be honored in the community where we live and where we make our life together as a married couple,” said Sabatino. “It is a relief to know that we will continue to enjoy the rights and benefits of our marriage.”

In July, Attorney General Cuomo, on behalf of Governor Paterson, filed a motion to dismiss a similar case brought by the Alliance Defense Fund. The ADF, on behalf of a group of taxpayers, challenged Governor Paterson’s May 14, 2008 directive that state agencies respect out-of-state marriages of same-sex couples, consistent with long-standing

New York law. The court granted Lambda Legal’s motion to intervene in the case on behalf of Peri Rainbow and Tamela Sloan, long-time public employees who are raising a special needs child adopted from foster care. The couple depends on the protections that come from respect for their marriage. On September 2, 2008, the New York Supreme Court (Bronx trial court) dismissed the lawsuit, ensuring that couples will continue to be treated equally in New York State. ...

(Columbus, OH, January 5, 2009) --The Supreme Court of Ohio last week let stand an appeals court ruling affirming the enforceability of a court-approved child custody agreement in a case involving lesbian mothers.

"The Court has expressly shut down arguments that Ohio's antigay amendment impacts parenting and child custody relationships, rights, and responsibilities,"said Camilla Taylor, Senior Staff Attorney in Lambda Legal’s Midwest Regional Office in Chicago. "The Court correctly declined an invitation to treat gay and lesbian Ohio parents differently from other families, and to deprive the children of these families of the protections and support other children receive."

Lambda Legal represents Therese Leach in her fight to uphold a court-approved joint custody agreement signed by both her and her former partner, Denise Fairchild, in 2001. After their son was born in 1996, both women parented him. In order to ensure that Therese had a protected legal relationship with the child, the two women signed a joint custody agreement. Such agreements were approved by the Ohio Supreme Court in the 2001 In re Bonfield case in which Lambda Legal participated.

The Supreme Court decision comes after Fairchild argued, at a trial court, and the Ohio Court of Appeals for the Tenth District, that Ohio’s antigay constitutional amendment limiting marriage to a man and a woman invalidated the court approved custody agreement she originally sought with Leach. All three courts brushed aside Fairchild’s arguments, ruling that court-approved custody agreements cannot be ignored or unilaterally undone by one of the parents. In July 2008, Fairchild asked the Ohio Supreme Court to hear her case, and Lambda Legal urged the Court to refuse. Today’s order from the high court is the final word on the matter. ...

(San Francisco, California, January 5, 2009) — Today, the National Center for Lesbian Rights (NCLR), the American Civil Liberties Union (ACLU), and Lambda Legal filed a reply brief in the California Supreme Court, the next step in the lawsuit seeking to overturn Proposition 8, which passed by a mere 52 percent on November 4. Before its passage, some 18,000 same-sex couples married across California.

The brief argues that Proposition 8 is invalid because it seeks to eliminate a fundamental right only for a targeted minority, which cannot be done through the initiative process. The brief also agrees with California Attorney General Jerry Brown that certain fundamental rights, including the right to marry, are inalienable and can not be put up for a popular vote.

The brief also argues again in agreement with the Attorney General that Proposition 8 cannot be applied to invalidate existing marriages because new laws and amendments are presumed to apply only on a prospective basis.

“If Prop 8 is permitted to stand, it would be the first time an initiative has successfully been used to change the California Constitution to take way an existing right only from a historically targeted minority group,” said NCLR Legal Director Shannon Minter. “Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights.”

On November 19, 2008, the California Supreme Court granted review in the legal challenges to Proposition 8, and established an expedited briefing schedule, under which briefing will be completed in January 2009, with amicus curiae or “friend-of-the-court” briefs due on January 15. Oral argument potentially could be held as early as March 2009.

Elizabeth Gill, a staff attorney with the ACLU, added “Prop 8 is a radical and unprecedented change to the California Constitution that puts all Californians at risk. It actually mandates government discrimination against a minority.”

In May of 2008, the California Supreme Court held that laws that treat people differently based on their sexual orientation violate the equal protection clause of the California Constitution and that same-sex couples have the same fundamental right to marry as other Californians.

Proposition 8 would completely eliminate this fundamental right only for same-sex couples. No other initiative has ever successfully changed the California Constitution to take away a right only from a targeted minority group.

“Prop 8 is not valid and never has been,” said Jennifer Pizer, Lambda Legal National Marriage Project Director. “Even if it were, those 18,000 couples would still be married. California’s Equal Protection clause was not written in sand, to be erased by shifting political tides. It’s a solid guarantee that we all have the same rights and it’s the foundation of our government. Exceptions can’t be carved by simple majority vote or the equality guarantee becomes a discrimination guarantee. No initiative can cause such a profound change in our legal system.”

NCLR, Lambda Legal, and the ACLU filed this challenge on November 5, 2008, representing Equality California, whose members include many same-sex couples who married between June 16 and November 4, 2008, and six same-sex couples who want to marry in California. The California Supreme Court has also agreed to hear two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney. These three cases are jointly under review by the California Supreme Court.

Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick, Herrington & Sutcliffe LLP.

For more information on this case, go to: htpp://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm