Michelle O’Neil:
We are back for our fourth installment in our LGBT Texas Family Law webinar brought to you by O’Neil Wysocki. I am Michelle O’Neil, senior shareholder at O’Neil Wysocki. I am joined here by Karri Bertrand and Nick Rodriguez who are both associates at our firm. This section is going to talk about recent case law development in same sex issues. We have about one or eleven cases we’re gunna cover so hopefully we can swoosh through those pretty quickly and be done within our little 30-minute window. This section is approval for 30 minutes of CLE credit in Texas and the whole thing is approved for two hours of CLE credit with a half hour of ethics. So if you are out there and want the CLE credit, go pay the registration fee to get the credit and send us your Bar number and comment in the comments so we can get you that credit with the Bar.
All right. Starting out. Whenever I started thinking about where do you
start? Where do you start? And talking about LGBT rights and same-sex
rights and obviously we're in Texas, so we want to kind of have a Texas
perspective on those. And to me, we start with Baker v. Nelson because
that's the case that Obergefell technically overruled. So starting with
Baker v. Nelson, that was a case in the 70’s. In 1970, two gentlemen
from the university of Minnesota, they were gay activists at the university
of Minnesota. They decided one day to go down and apply for a marriage
license. They wanted to get married in the clerk in the court in Minneapolis,
denied them the right to get a marriage license on the sole ground that
they were of the same sex. So the couple then filed suit in the district
court, there in Minneapolis to force the district clerk to give them a
license. And they had to contend obviously, that they were individually
harmed by the laws that were prohibiting them from getting the marriage
license, which they did. And when they got to the trial court, the trial
court dismissed their claims and the trial court ordered the clerk not
to issue the license. So they appealed that to the Minnesota Supreme Court.
And keep in mind, this was in the early seventies. And one of the things
that I found very interesting was that in the Minnesota Supreme Court,
whenever they were presenting argument, when the lawyer representing these
two guys got up to present argument, one of the justices actually physically
turned his chair around, turned his back to the lawyer presenting the
case on behalf of the gay guys, and did not ask a single question during
the argument of the lawyer. And so to me, that was kind of like the ultimate
sign of disrespect, right? That he did that. I don't know that I've ever
seen a judge in all of my years of practice do something quite as disrespectful
as that was. So the Minnesota Supreme Court issued its opinion in 1971
and affirmed the trial court's dismissal of the case and in order not
to issue the license. So the couple appealed that to the United States
Supreme Court. And it's interesting, this is the only case that I've seen.
I'm sure there's others, but the only one that I've seen where the U.S.
Supreme Court denied cert on the case, but it was done in such a way where
the denial of cert is actually binding authority. It's actually an approval
of the Minnesota Supreme Court's decision making the Baker v. Nelson case
binding authority as it applies across the land and actually up until
the Obergefell case. So the Supreme Court's denial of cert basically adopted
the Minnesota Supreme Court's ruling that the statutes prohibited marriage
between persons of the same sex and that it did not offend due process.
Let me read this to you. The restriction, the court reason did not offend
the due process clause because procreation and child rearing are central
to the constitutional protections given to marriage. So back in the 70s,
that was a rationalization that was given for denial of same sex marriage.
Now coming forward, I found, because I, and I know Karri and many of you
out there are fans of Justice Ruth Bader Ginsburg, I found a quote by
Justice Ginsburg in her view of her view of the Baker case. So during
the 2013 oral argument in Hollingsworth v. Perry, which is the case out
of California, about section eight in California, Justice Ginsburg summarized
her view of the Baker case. She said, quote, the Supreme Court hadn't
even decided that gender based classifications get any kind of heightened
security or heightened scrutiny and the same sex intimate conduct was
considered criminal in many States in 1971, so I don't think we can extract
much in Baker v. Nelson.
So I love that quote from Justice Ginsburg. So Baker v. Nelson to me is
kind of the starting point. I mean, we could talk about Lawrence v. Texas
or some of the other statutes that talk about the criminality of same
sex activities. But for me, Baker v. Nelson is kind of the starting point
because you start obviously, where do you start everybody? Where do you
always start? At the very beginning. So for me, Baker v. Nelson was the
very beginning of the denial of the right to marry to a same sex couple.
So then the next thing to me that's the, one of the important things on
the timeline is the passage of the defensive marriage act. So Nick, talk
briefly about the defensive marriage act and how that plays into our discussion.
Nick Rodriguez:
Well the defense marriage act, as I think we mentioned in the first segment,
let me get closer to the mic, was initially introduced in 1996 under the
Bill Clinton administration and so he signed that into law.
Michelle O’Neil:
I just want to underscore this just for a second. Bill Clinton was a Democrat
and the House and Senate passed this federal legislation by such a large
margin that it would have been not vetoable, and in fact he did not even
try to veto it. Bill Clinton, the hero of many Democrats, signed it into
law. Correct. Continue, Nick. I just wanted to draw a little underscore
into that.
Nick Rodriguez:
So, as Michelle mentioned, it had an overwhelming approval and it was not
vetoable. So we signed into law in 1996 and so for our purposes, at least
in the marriage context, section three is what was applicable to us under
DOMA. So section three codified the non-recognition of same sex marriages.
So defined marriage between one man, one woman. And so how that applies
to a person who the same sex marriage is that you're not entitled to all
the federal benefits that flow from DOMA, which is insurance benefits,
government employee benefits, tax status, filing joint returns and the
list goes on. So I think that as we will find out and probably speaking
about Windsor how that played a role in that case.
Michelle O’Neil:
So in 1996, the federal government passes DOMA and then all the States
started passing their own versions of the defense of marriage act, including
Texas. And even some cities as we talk about when we get to the pigeon
case, even some cities had a version of their own defensive marriage act
that defined marriage as one man and one woman. Alright. So then after
DOMA, to me, the next thing on the important timeline is the Windsor case.
So Nick, tell us about the Windsor case. It was decided on June 26th of
2013. It was authored by Justice Kennedy. I find that to be important
in the history lesson of the thing. And it was a five four decision in
2013, which is also important. So talk about Windsor.
Nick Rodriguez:
So let me give you a overview of the facts. Edith Windsor and Thea Spire,
they got engaged in 1967, I think I mentioned that earlier. So the couple
actually resided in New York, but they went to Ontario, Canada to get
married and so in 1967, they had gotten engaged. So their marriage had
been ongoing for five decades at this point and so New York in 2008 legalized
same sex marriage. Unfortunately, Thea died in 77 leaving her entire estate
to Edith and so when Edith sought to claim a federal tax exemption under
the IRS code, she was unable to because DOMA, section three of DOMA, as
we spoke about earlier, defined a spouse as marriage is between a man
and a woman. So that was the question before the court was whether the
federal government is allowed to govern or make law on claims between
same sex spouses or define that for them.
Michelle O’Neil:
Okay. And so what did this US Supreme Court decide in Windsor?
Nick Rodriguez:
Well, like I said earlier, there was a procedural issue, which was did
she have standing? The Supreme Court said she did. The second major issue
was, did the third section of DOMA violate the fifth Amendment's guarantee
of equal protection of the laws as applied to same sex partners who are
married under the laws of their States. So on the merits, the court ruled
that it did violate the fifth amendment.
Michelle O’Neil:
So Windsor was the first case then that started recognizing same sex relationships
or even just gay orientation as being something that's covered by the
equal protection clause that deserves heightened scrutiny. And Windsor
then struck down this section three that limited marriage to one man,
one woman, and said basically that for federal law purposes that marriage
between same sex couples had to be recognized. Which then created quite
a problem for a couple of years because the federal government was recognizing
same sex marriages, but most of the many of the states were not, right?
Some States had passed some marriage laws in some states had not. And
so there was a lot of disharmony in the application of Windsor.
Nick Rodriguez:
Absolutely, I think you'll see that in the following case, the pigeon case….
Michelle O’Neil:
I was going to talk about Obergefell next. Let’s talk about a Obergefell
then we'll get to pigeon in a minute. So Obergefell was decided June 26th
of 2015, the two years to the day after Windsor. It also was a five four
decision. It also was authored by Justice Kennedy, which I find interesting.
Karri Bertrand:
Similar desent authors as well.
Michelle O’Neil:
Yeah. And obviously similar desent authors. So Obergefell is actually a
conglomeration of cases. It wasn't just one guy who sued the government.
It was actually several cases that had been put together, I think six
is that right? Six cases that were kind of put together from Michigan,
Ohio, Kentucky and Tennessee. And they all came together. It was interesting
when, if you are around, whenever the arguments were happening during
Obergefell cause I watched him live, like all the different lawyers and
kind of everybody kind of having their little opportunity. And so they
put all these cases together because there were some splits in the Court
of Appeals as to how the Windsor rulings were being applied. And so what
was the holding in Obergefell?
Nick Rodriguez:
So the whole thing in Obergefell was that same sex couples did have a fundamental
right to marry. Justice Kennedy cited Loving v. Virginia as a basis for
that. And he wrote beautifully and talked about the traditions and principles
of marriage and how they apply both equally to
Michelle O’Neil:
Aren’t just for procreation like they said in Baker v. Nelson.
Nick Rodriguez:
And I actually wrote this down because I thought it was worth jotting down.
So Justice Kennedy wrote that the four traditional principles behind the
right to marry include and they apply equally to both heterosexual couples
and same sex couples are the right to choose whether or with whom to marry
is inherent and it's an individual autonomy. The right protects the intimate
relationship between two people, that the right protects children families
by giving legal protection to homebuilding and child rearing. And then
that marriage is the keystone to social order and a foundation to the
family unit. And I thought that was great that he outlined how they applied
to both same sex couples and heterosexual couples. And I thought it was
worth mentioning.
Michelle O’Neil:
Yeah, I liked that. I liked that. So Obergefell found, the US Supreme Court
found that there was a fundamental right to marry guaranteed to same sex
couples by the due process clause and the equal protection clause of the
14th amendment and it required that all 50 States, including the District
of Columbia and any other insular areas perform and recognize the marriages
of same sex couples if they were performed in other states that allowed
for those. And that was real important because I think after Windsor,
Texas for example, did not allow gay marriage and was not recognizing
marriages that were lawfully performed in other states. And actually,
the defensive marriage act and one of the other sections says that states
don't have to give comedy to those marriages performed in other states
and to other states laws. So the Obergefell decision says, basically,
yes you do, you have to those marriages lawfully presumed performed in
other jurisdictions and you have to allow marriages to happen in your
own jurisdiction.
So that pretty much changed the state of same sex marriage across the country.
And then we've proceeded since 2015 with basically interpreting and figuring
out what exactly the parameters of Obergefell are. How broad are they,
how narrow are they? And as you were kind of talking about the constellation
of benefits that come with marriage and where did those things fall within
the Obergefell opinion. So let's talk the next one on my list that of
importance Karri, not necessarily, we're not doing this in a timeline
analysis, but the next one in importance then that I had on my list was
the Pavon case. So Karri, do you want to talk about Pavon?
Karri Bertrand:
I've been calling it Pavan but Pavon. I don't know. And I've heard it said 15 different ways.
Michelle O’Neil:
We'll have to call him and ask him.
Karri Bertrand:
So yes, this case is said to be by Judge Denise Garcia of 303rd in Dallas, to do what Obergefell did for a marriage, this case did for
parentage.
Michelle O’Neil:
And so Pavon or Pavan is a U.S. Supreme Court case. And so what was the
situation in it?
Karri Bertrand:
So you had to married couples, same sex married couples. Both were female
couples. One was married in Iowa, the other was married in New Hampshire.
They both moved at some point to Arkansas. They conceived with an anonymous
donor and one of them gave birth to the child. They all applied for birth
certificates and put all their names and all the spaces. And when they
went to pick up the birth certificate, only the biological mother was
on the birth certificate. So they sued and basically the Supreme Court
said that not allowing the constellation of benefits under marriage to
apply to this particular right as far as being listed on your child's
birth certificate was unconstitutional because it was blocking them from
having access to enrolling their children in school. And anything else
that you would need to have a birth certificate for like pediatrician,
whoever needs this birth certificate. You’re married to this person,
but you can't be on the birth certificate as this child's parent. So,
like Michelle mentioned, that constellation of benefits that the state
had linked to marriage under Obergefell could now be extended as a parentage
right as well.
Michelle O’Neil:
So, Pavon or Pavan held that a state law that precludes same sex couples
from having both spouses name on a birth certificate violates due process
and equal protection under Obergefell. So Pavan or Pavon case extended
Obergefell into this new territory and extended that due process and equal
protection argument. And so that was I think 2017. So as of 2017, all
of the Bureau of vital statistics across the state had to then change
their forms instead of saying mother and father to say parent one parent
two or something like that. So then moving to the next one that I have
on the list, the Dalian v. Perry case. So this case is interesting because
it's not a U.S. Supreme Court case. It's actually an intermediate court
in Texas, a federal court in Texas. But it was the first case that really
talked about the retroactivity question.
And so with Obergefell, the question arose, and we did talk about it in
one of the earlier sections, but I'll give a brief overview here. So in
Obergefell, because it came out in 2015, the question of its applicability
to marriages prior to 2015 was raised. And most of the constitutional
scholars believe that whenever a law is struck down as being unconstitutional,
that it is void abinitio, which means in non-lawyer talk that it is as
if the law never existed. So there's not really a retroactivity question
because the law never existed, but a lot of courts and a lot of judges
have raised this issue of is Obergefell retroactive to marriages that
were performed before that date. So in Dalion on it is dealing with the
same sex couples and whether the marriage before Obergefell was valid.
And in Dalion it decided that in fact the marriage was valid and that
it was recognized. And so that's the trial court opinion in the federal
district court. And then that opinion was appealed to the fifth circuit.
But then Obergefell came out. And so the fifth circuit dismissed it and
upheld the trial court's finding that it was a valid marriage even though
it was prior to the date of Obergefell.
So then let's move on to the pigeon case as Nick referenced earlier. So
pigeon is the next one on my list. And pigeon is a very interesting case.
Pigeon is a case that is out of the Supreme Court of Texas. Pigeon deals
with this constellation of benefits question and the applicability of
Windsor and Obergefell to the constellation of benefits that comes with
marriage. So in 2013, before Obergefell, the Houston mayor decided that
the city was going to provide employment benefits to spouses in same sex
marriages, the same as spouses in heterosexual marriages. These two conservative
activists filed suit against the city arguing that the expenditures violated
the city's version of the defense of marriage act and argued that the
city could not expend public funds on quote unquote illegal activities.
So, it went to the trial court and at the time in Houston, the trial judge
was a Republican.
As an interesting side note, it was filed in family court even though it
wasn't a family court case. And I've tried to research how that happened.
Apparently in Houston they don't have filings like we do in other counties.
So I guess maybe they got to pick the court they filed in. Anyway, for
one reason or another, they filed this case in the family district court
where a Republican judge was sitting. And that Republican judge found
that it denied the city's plated the jurisdiction. So the city filed a
pleaded the jurisdiction saying that these two conservative activists
didn't have standing to follow the suit. And it granted the conservative
activists in request for an injunction to prohibit the city from continuing
to provide these benefits. So whenever the trial court denied the plead
of the jurisdiction, that's actually an issue that is appealable by interlocutory appeal.
So the city appealed to the Court of Appeals, and while that appeal was
pending, the US Supreme Court came out with the Obergefell decision, which
invalidated the defensive marriage acts across the country. So there was
a lot of argument to the Court of Appeals about the applicability of Obergefell
and how it believed the plaintiffs. The conservative plaintiffs believed
that Obergefell only applied to the recognition of marriages, but not
to the constellation of benefits. So the Court of Appeals held that the
injunction against the city for prohibiting them from providing these
benefits was illegal as of Obergefell, and then remanded the case back
to the trial court to determine how Obergefell applied to the rest of
the case for any actions that occurred prior to the Obergefell opinion.
So that went up to the Texas Supreme Court. And in 2017, the Texas Supreme
Court issued an opinion and there was a lot of press about the pigeon
opinion being anti-gay rights.
And I've read the pigeon opinion and I can understand how you might view
it that way, but it actually was an opinion that was very specific as
to the points in front of it. It was not, there was some language in the
opinion where some of the justices kind of went outside and did some opining.
But the decision in pigeon was actually very, very narrow. So the Texas
Supreme Court actually held that the Court of Appeals ruling to reverse
the injunction should be vacated in light of the change of the law. I'm
sorry, I've said that backwards. They actually agreed that the injunction
should be vacated in light of the change of the law and they sent it back
to the trial court basically and said that it's all premature. So they
sent it back to the trial court and said, we don't think you should have
an injunction, but we don't necessarily agree with the breadth of the
Court of Appeals opinion.
So they reversed the Court of Appeals opinion as to this determination
of the applicability of Obergefell to the constellation of benefits and
sent it back to the trial court for the trial court to hold further hearings
on it. So what that did was it put back into the trial court, the question
of standing, the question of the date of Obergefell and this what happened
before Obergefell, what happened after? And the question of this injunction.
Interestingly, just recently, in fact in the last what month, two months
Karri? It was in January, so it's been two months. So interestingly that
went back to the trial court in Harris County, but we've since had a change
of politics in Harris County. So now there is a Democrat sitting on the
bench in this court in Harris County. She undertook to hear summary judgment
motions from both sides.
So when both sides file final summary judgment motions, that basically
means that the court can make the decision based on the law and can rule
on the summary judgments and decide the whole case. So the judge in the
pigeon case, the trial judge has now granted summary judgment finding
that the conservative activists did not have standing to sue and that
judge has dismissed that case and therefore it's left it to the plaintiffs
to appeal it and go back up on him. So, he's telling me that we're almost
out of time. We wanted to talk about the A.E.E. case, which Karri talked
about earlier in one of the presentations. We wanted to also talk about
the P.S. case, which Nick talked about earlier in one of the presentations.
So kind of moving forward, we talked just briefly about the H.S. case,
but I wanted to give you specifically that case name because I think when
we talked about it before, I didn't say the case name.
So in June of 2018, just not even a year ago, the Texas Supreme Court delivered
a five four opinion in the case of enrey H.S. and we will put the site
in the comments whenever it's time. And that case is the one that talks
about the actual care control and possession of a non-parent. So in that
case, the Texas Supreme Court defined control for the purposes of that
standing statute that we talked about earlier and they said if the non-parent
operated in a parent like role for at least six months as required by
the statute, by the examples they gave, sharing a principal residence
with the child, supporting the child's regular physical and psychological
needs and showing guidance, governance and direction similar to that characteristically
exerted on an everyday basis by a parent with their offspring, then that
would be control sufficient to satisfy the standing statute to allow somebody
who is not legally a parent to actually sue for conservatorship of a child.
They said the statute does not require the non-parent to have ultimate
legal authority to control the child, nor does it require the parent to
have holy seated or relinquish their own parent rights or responsibilities.
So it really kind of gave a much more broad interpretation of that care
control and possession statute than what had been put in place by some
of the Courts of Appeals. So then let's just touch real briefly on the
McReynolds case. That's a case out of the Dallas Court of Appeals on the
name change and gender change. So that's one of the issues that we're
seeing more common in some of the courts, where people are asking for
a gender change in the law. And so this Dallas case, McReynolds and then
there's another one that I'll put the site in the comments. There's two
cases actually, but one out of Dallas called McReynolds and then there's
one out of Houston.
And so what they've actually held on gender changes is that at least in
the Houston court and the Dallas Court of Appeals districts, that there's
no statutory provision in the law for a gender change. So with a name
change, there's actually a statute in our family code here that actually
talks about how to procedurally go about a name change. But with a gender
change, there's no statute that actually tells us in the law how to go
about doing that. So the Dallas Court of Appeals has basically taken the
obvious road and said, because there's no statute that says it, we don't
think we can do it. And so you can't do a gender change. There are other
courts, especially District Courts in Texas that are taking a much different
viewpoint and actually allowing gender changes. This is an area of the
law, if you have a client come in and ask you about doing a gender change,
you really need to consider where you're at and what the status is of
the Courts, the District Courts, and the Courts of Appeals that you're
practicing in front of.
Because it's very possible that you could be in a district that is not
allowing those and you really need to send that client to a lawyer in
one of the places and one of the District Courts that is allowing them.
Interestingly with a gender change, there's no real rule about where a
person would have to file them. If they're a Texas resident, they could
pretty much fall that in any court in the state of Texas, even if it's
in an area that they don't live in. So that's a place where you file is
very, very, very important. So then the last case I want to talk about
is that Marouf vs Aczar case. And this was actually a trial court case
still is a trial court case, I think, and has not gone up on appeal. But
it is, I think, going to be something that could be instructive. So that
case, Karri, jump in if you want to talk about this one, but that case
involved a denial of adoption.
Karri Bertrand:
Correct, by a federally funded adoption agency at Catholic Charities of
Fort Worth denied Ms. Marouf and Ms. Esplan who are both attorneys, both
professors, I believe one's a professor at the law school at Texas A &
M and the other one's a professor at Texas A & M University. The ability
to adopt from Catholic charities. This was a couple, they're very well
educated, obviously. They're aware of 300,000 homeless refugees in this
area. They wanted to adopt a refugee child and they were told that because
their family did not mirror the holy family, they were going to be a disqualified.
So Lambda Legal has filed suit on behalf of the couple. I did try to look
up the status online today. It hadn't been updated on Lambda site that
I could tell.
Michelle O’Neil:
So this is a case that's basically where they're Catholic Charities decided on religious grounds that they didn't want to serve this couple. And so the couple is suing Catholic Charities saying basically because you accept federal funding, you're bound by the Windsor Obergefell line of cases and you cannot deny me an adoption based on your religious beliefs because you accept federal funding. So I would imagine the Hobby Lobby case is going to be important to this question because of the religious rights questions. Probably the Masterpiece Cake case is going to be important to the decision in this case as well, because it was another religious rights. So what we're dealing with in kind of one of the issues that circulating in LGBT rights right now is this kind of tug and pull of an individual's own beliefs and the right that that individual has to believe or not believe in LGBT rights versus the Obergefell Windsor, heightened protections that are given to sexual orientation that allow them to exist in the world and have rights under the laws just like everybody else. So that tug and pull of the individual beliefs versus the rights of a person to be who they are is where kind of a lot of litigation is happening right now with the Hobby Lobby case and the Masterpiece Cake case and then this case that may be coming up along behind it.
Karri Bertrand:
Yeah, you brought up an interesting point. Sorry, I know we're out of time,
but I think part of the problem is the level of scrutiny. We've gone above
rational basis, but we're still below strict scrutiny. We don't have a
protected class there.
Michelle O’Neil:
And I think that actually is exactly where we're at for people that aren't
constitutional scholars, when you have the heightened scrutiny where you're
in that strict scrutiny analysis, then that's like the race issue is a
strict scrutiny. Gender is a strict scrutiny and so even private individuals
do not have the ability to discriminate against somebody who is in one
of those heightened classes that subject to the strict scrutiny where
Obergefell and Windsor raised the equal protection status of same sex
couples to the heightened scrutiny, but it's not to the level of strict
scrutiny yet. So we're still kind of in that gray area of a little bit
lesser than gender or race, but given the elevated status so that there's
some protections. Alright, so that concludes our webinar on LGBT Texas
family law for this round.
I appreciate everybody being here. Like I said, if you want CLE credit,
we are approved for two hours of Texas Bar CLE credit. If you register
in the link and pay the $20 registration fee, send me your bar number
and we will get you the credit with the state bar. We'll put you on the
list whenever I submit it to get that credit. Otherwise, the course is
free for everybody who's been watching. I hope you've enjoyed it. Give
us feedback, we love comments. We love feedback. If there's some area
of LGBT law, family law that you'd like for us to talk about, maybe we'll
do another one. So give us your feedback. We appreciate it. Thank you
for joining us. Keep in mind that this is a webinar that's aimed at attorneys.
This is for continuing legal education. If you're out there watching this
webinar and you're not an attorney, we welcome you to watch it, but remember
that we are not giving you any specific legal advice. We cannot comment
on any specific case or situation without knowing all the facts. So if
you need legal advice, this webinar is not a for legal advice. Please,
please seek the advice of a lawyer as to your specific situation and get
specific advice to that. Because if you rely on just what we're talking
about here, we're being general, we're talking about general legal principles
that may not actually apply to your situation. This is for continuing
legal education only and we cannot create an attorney client relationship
just through the video camera. Okay. Thanks.