Leonard Link

Westchester County Judge Agrees to Waive Publication of Trans Name Change

Finding that transsexuals are at risk of being victimized by hate crimes, New York Supreme Court Justice William J. Giacomo (Supreme Court, Westchester County) has granted a request by a transsexual man that the usual requirement that a name-change notice be published in a local newspaper be waived in his case, and that the court files on the proceeding be sealed. The November 10 ruling, consistent with the court’s findings, identifies the name-change applicant only by his initials, E.P.L..  In the Matter of the Application of E.P.L., 2009 Westlaw 3764453 (N.Y.Sup.Ct., Westchester Co., Nov. 10, 2009).

"This is an application by Petitioner, a transgender individual, for a name change to correspond with his male gender identity," wrote the judge. "An adult does not need permission of the court to change one’s name, however, ‘public policy favors a court’s review and granting of name change applications because this makes the change of name a matter of public record.’" Court-ordered name-changes are especially useful for transsexuals, as the resulting court order can be helpful in getting the appropriate changes made on documents such as passports, drivers licenses, social security cards, and other identifying documents, as well as business forms, credit cards, and the various other ways our name is significant as we go through life.

One possible down-side of a court-ordered name change in New York, however, is that a statute, Civil Rights Law section 63, requires that a court ordered name change be published in "a designated newspaper in the county in which the order is entered within sixty days after the making of the order." The publication requirement serves an important public policy of giving notice about the name-change to the local community, but the statute provides that the court may decide to waive the publication requirement.

In this case, E.P.L., age 20 and about to start life afresh with his new name, requested that his name change not be published in Westchester County and that the court records of the case not be made accessible to the public. Under the waiver provision, Civil Rights Law section 64-a, the court can waive publication if it finds that publication would jeopardize the safety of the person whose name is being changed. The usual case in which this is done is where somebody who has been the victim of domestic violence seeks a name change as part of a process of avoiding further victimization by the perpetrator of the violence.

In this case, E.P.L. did not allege that he had been the victim of violence in the past due to his transsexuality, but rather sought to show that publishing his name change would "out" him as transsexual in the community and increase the risk of violence to him, as transsexuals are well-documented victims of hate violence.

Justice Giacomo described numerous studies showing the vulnerability of transsexuals to hate violence, and noted particularly the recent enactment of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act by the federal government, expanding the definition of federal hate crimes to include those perpetrated because of the gender identity of the victim. The judge found that E.P.L.’s request was well-grounded, concluding, "In short, while petitioner did not, and hopefully could not, cite a personal experience of violence or crime against him based on his gender identity, he has made a compelling argument as to why, at the age of twenty, he has a right to feel threatened for his personal safety in the event his transgender status is made public."

In addition to waiving publication, Justice Giacomo ordered that the court files on this case be sealed, "and shall be hereinafter opened only by order of the court for good cause shown or at the request of the applicant."

The court’s opinion was published in the New York Law Journal on Monday, November 16, complying with the court’s order by not identifying E.P.L. by name.

Judge Refuses to Stay Discovery in Prop 8 Case

The San Francisco Chronicle reported yesterday that Judge Vaughn Walker of US District Court in San Francisco has denied a motion by the Proposition 8 Proponents, Intervenor-Defendants in Perry v. Schwarzenegger, to stay discovery pending their appeal of Walker's prior order that rejected their First Amendment challenge to the discovery request. Walker's decision to deny a stay was announced on Oct. 23.

The Prop 8 people are claiming that it would violate the First Amendment to require them to disclose internal communications from last year's Prop 8 initiative campaign, which resulted in the enactment of a California constitutional provision that provides only the union of one man and one woman will be "valid or recognized" as a marriage in California.  In the lawsuit, same-sex couples represented by former Solicitor General Ted Olson and star appellate litigator David Boies are claiming that the enactment of Prop 8 violated the federal constitutional rights of LGBT Californians.  They seek the internal communications from the campaign in order to uncover evidence in support of their argument that Prop 8 was intended to discriminate against sexual minorities.  Its passage overturned the result of a California Supreme Court decision from the spring of 2008, holding that same-sex couples had a right to marry in California.

In their motion, they argued that they needed a stay pending appeal of Walker's order because once the information was "disclosed" it could never be "un-disclosed," so they should not be required to disclose it until an appellate court had rejected their arguments.  Walker disagreed with this reasoning, evidently.  (I've not seen a written opinion, just the newspaper report.)  One of the tests for such a stay would be that the party appealing the decision is likely to prevail on the merits.  Walker expressed doubt as to this, writing that "it simply does not appear likely that the proponents will prevail on the merits of their appeal."  They are arguing that exposing the inner workings of the Prop 8 campaign will chill future political speech, and they also argued that the plaintiffs are trying to uncover strategic information at a time when a new initiative to overturn Prop 8 is about to progress to the signature-gathering phase, looking towards the Nov. 2010 ballot.  The Prop 8 folks are saying that the losers from last year should not be able to use civil litigation discovery to learn the strategies of the winners at a time when they are gunning for a rematch.  Evidently that argument didn't move Judge Walker, either. 

According to a lengthy report about the case published in the New York Times today, Walker is looking into the idea of live televising of the trial he has scheduled to begin in January, so the public can hear the expert witnesses arrayed on both sides of the question.  That would be a (time-consuming) treat!

Trans Dad Wins Right to Contest Custody Due to "Extraordinary Circumstances"

A Brooklyn, New York, trial judge has ruled that due to "extraordinary circumstances" a mother may not object to the standing of her transgender spouse in a custody dispute pending in Kings County Supreme Court. K.B. v. J.R., 2009 Westlaw 3337592 (Oct. 14, 2009). As a result of this ruling on a motion by the mother, J.R., to disqualify the father, K.B., from seeking custody, Justice Esther M. Morgenstern will proceed to determine whether the father’s petition for custody should be granted in the best interests of their son, K.B. Jr.

K.B., born female but identifying since his teen years as male, began living with J.R. early in 1998. J.R. knew from the beginning that K.B. had been born female but had determined his gender identity to be male. K.B. obtained a legal change of name on June 8, 1998, leaving behind his birth name of Cassandra. Although K.B. has been taking hormones to masculinize his body, he has not undergone gender reassignment surgery, although he plans to do so in the future. After K.B. obtained the name change, K.B. and J.R. filled out a marriage license application, which was granted, and they were married.

Four years after marrying, they decided they wanted to raise a child together, and J.R. became pregnant through donor insemination. K.B. signed a consent form for J.R. to be inseminated, as is required when a married woman uses assisted reproductive technology. Three attempts were required before J.R. became pregnant, and their son, named after K.B., was born on June 13, 2002. K.B. was named as father on the birth certificate. K.B. Jr. was born prematurely and had to stay in the hospital for almost two weeks after birth. Hospital records confirm that K.B., identified as the child’s father, came to the hospital on June 25 to bring the child home. J.R. took time off from work to remain home with the child for the first six months, during which K.B. was sole support for the family, but after J.R. returned to work, K.B. became the primary care-giver.

The relationship between K.B. and J.R. broke up in mid-2006 and J.R. moved out, leaving the child with K.B. J.R. later claimed that she had to leave due to domestic violence perpetrated against her by K.B., but K.B. claims J.R. moved out to take up residence with another man. As Justice Morgenstern notes, J.R. "never explained why she left the child with [K.B.] when she did not intend to return to the marital residence."

Both parties filed petitions for legal custody of K.B. Jr. in 2007. J.R. alleged in her petition that it would be in the best interest of the child to be in her custody because K.B. was actually a woman, and she claimed that K.B. had committed acts of domestic violence that made her fear for the child’s safety. J.R. alleged that their marriage was "invalid." She also filed a petition in Family Court seeking an order of protection against K.B., but the Family Court judge actually ordered that the child remain in K.B.’s custody with visitation rights for J.R. The Family Court refused to entertain her petition for an order that custody be change to her, the court concluding that Supreme Court, where the custody petitions were pending, was the place to determine the proper validity of the marriage and the issue of custody.

The Administration for Children’s Services investigated the situation at the request of the court, and found that the child considered K.B. to be his father and was bonded to him, and further found, as K.B. had alleged in his custody petition, that the parties married and then planned to have the child and raise him together as a family, with K.B. in the role of father.

The case finally came to Justice Morgenstern when J.R. filed a matrimonial proceeding in Supreme Court, the court continuing a temporary order of custody in favor of K.B. pending the outcome. Evidence then surfaced of charges that while exercising her visitation rights J.R. had given the child food that aggravated his asthma condition, neglected to give him his medication, and had him share a bed with J.R. and her boyfriend. In addition, when speaking of K.B. in front of the child, J.R. allegedly used terms such as "bitch," "fucking bitch," and "fucking idiot." The child told the attorney appointed for him that J.R. subjected him to excessive corporal punishment, including striking him on the genitals and buttocks with a belt. These allegations led to a temporary suspension of J.R’s. visitation rights.

In the course of the proceedings, the parties agreed that their marriage was void, as same-sex couples could not marry in New York at the relevant time and, despite the name change, K.B. would not be considered male as matter of law. This led to the main legal problem in the case, as far as K.B.’s custody petition was concerned, in that under New York Law an "unrelated" person does not have standing as a "parent" to seek custody of a child in preference to the child’s natural parent. This principle, articulated by the state’s highest court, the Court of Appeals, in the Alison D. v. Virginia M. case in 1991, is up for argument before the court in another case recently granted review and soon to be argued.

Meanwhil, J.R., as the birth mother, argued that K.B.’s petition should be rejected on standing grounds, relying on Alison D.

There is, however, an exception to this rule recognized by the New York courts, and most of Justice Morgenstern’s lengthy opinion is devoted to justifying the court’s decision to apply this exception, under which a doctrine called "equitable estoppel" can be used to prevent the natural parent from raising this argument due to the "extraordinary circumstances" of a particular case. The courts have been quite sparing in applying this exception, because the natural parent’s rights are grounded in the federal constitution’s Due Process Clause, but New York courts have recognized that there may be circumstances in which it is appropriate to bar the natural parent from raising the standing argument against another adult who has no recognized legal relationship to the child but who has a strong parental relationship.

"The burden of establishing the existence of extraordinary circumstances is on the Petitioner," wrote the judge. "A prolonged separation between the biological parent and the child wherein a ‘psychological parent’ has bonded to the child would satisfy the threshold of extraordinary circumstances and afford standing to a petitioner seeking custody of a child. Psychological bonding between a non-biological parent and a child has resulted in a court finding that extraordinary circumstances do exist which allowed the non-biological party to petition a court for custody of a child. Extraordinary circumstances may be found even in the absence of a finding of unfitness by the biological parent," the judge continued. "If removal from the custody of a non-parent would cause ‘significant emotional injury’ since a strong bond developed between a child and the non-biological parent the possibility of that injury would justify a finding of extraordinary circumstances."

Justice Morgenstern found that these requirements had been met. K.B. and his son have "a strong emotional and psychological bond," she pointed out, and K.B. is "the only father that the child has known," a situation created with the active cooperation of J.R. during the child’s early years. The court noted that the parties had lived as husband and wife for eight years, and had acted in every way during the child’s early years as a family, leaving the documentary trail of a family, including the marriage certificate, the consent form for donor insemination of the wife, and the birth certificate, and they had "encouraged K.B. Jr. to accurately and without qualification address and consider the Petitioner as his father for more than six years," until in the wake of this litigation J.R. suddenly challenged that status.

The court noted that there had been a real interruption of physical custody on the part of J.R., who had moved out of the marital home leaving her son in the care of K.B., and whose own actions had led to suspension of the temporary visitation order in the case, which supported the finding of extraordinary circumstances allowing K.B. to seek custody. The court emphasized that this was not based only on the psychological bond of father and son, noting that K.B. had participated in the creation of the child and acted as his father in the role of J.R.’s spouse following a marriage ceremony, all with the "active cooperation" of J.R.

"The Respondent now seeks to prevent the Petitioner from having any relationship with the subject child who has only known one person, the Petitioner, as his father for more than six years," she wrote. "It is more than likely that if the relationship is terminated it would have a devastating psychological and emotional effect on the child." While J.R. was contending that K.B. had committed a fraud by applying as a man for a license to marry K.B., the court noted that J.R. was fully complicit in that and should not now be able to rely on it in the pending custody dispute. Indeed, the court noted, J.R. was making no substantive argument about why K.B. should be denied custody, relying entirely on the legal doctrine that the right to seek custody is limited under New York law to a natural or adoptive parent, and nothing J.R. had presented would undermine the finding that K.B. qualified for the "extraordinary circumstances" exception to that rule, which the courts have recognized in several cases.

J.R. tried to discredit the various allegations about her mistreatment of the boy, pointing out that they all emanated from the child. "The subject child may be the most reliable source of information considering the current animosity between the parties," Morgenstern responded. "A fact finding will be held to determine the veracity of the allegations," signifying that this ruling was focused narrowly on the subject of standing, and is merely a prelude to the necessary fact-finding for a final determination on the merits of the best interest of the child.

"In the case at bar," wrote Morgenstern, "the fact that the Petitioner is biologically a woman is irrelevant to the question of whether there are exceptional circumstances to grant Petitioner standing to petition for custody," and she described the facts of other "extraordinary circumstances" cases showing that they did not turn on the gender of the petitioner, but rather on the quality of the relationship between the petitioner and the child and the circumstances under which that relationship had developed.

Having found "extraordinary circumstances," Morgenstern ruled that J.R. "should be equitably estopped from challenging the standing of the Petitioner to seek custody since Respondent perpetuated the fraud and derived benefits from it until she raised it in the matrimonial action. The Respondent admitted that she entered the relationship with full knowledge that the Petitioner was biologically a woman. The Respondent agreed and married the Petitioner. The Respondent received benefits as the wife of the Petitioner. The Respondent agreed and collaborated freely with the Petitioner in the decision to have a child by artificial insemination. The Petitioner signed the consent form as the husband to the Respondent which was needed to commence the procedure. The Respondent freely divided parenting responsibilities with her ‘husband’ for almost six years and fostered a close father-son relationship between the child and Petitioner."

The court found that J.R. had "abdicated her parenting authority" to K.B., fostered his relationship with the child, and could not dispute the existence of close father-son bonds. Thus, it would not be equitable to allow her now to disavow all of that and bar him from seeking custody of the boy. "The finding of extraordinary circumstances is based on the credible allegations made by the Petitioner which are supported by the record, the reports from ACS," as well as the court’s hearing on the issue, statements made by the parties and "the observation of the demeanor of the parties."

Attorney Fred A. Werthheimer represents K.B., and attorney Rebecca M .Brisch of the Children’s Law Center is serving as counsel for the child. Attorney Jamie Burke of Brooklyn Defender Services is representing J.R. If in appeal does not intervene, one expects Justice Morgenstern would move quickly to a merits determination on K.B.’s custody petition, given the undesirability of leaving the child’s status unsettled for a further prolonged period of time. The custody petition and cross-petition have been pending in court for more than two years out of the child’s seven years of life.

N.Y. Appellate Term Panel Rejects Medical Substantiation Requirement for Trans Name Change

A panel of the Appellate Term of the New York Supreme Court in New York County has unanimously reversed a decision from February 2009 by Civil Court Judge Manuel J. Mendez that sought to impose a medical substantiation requirement before granting a name-change sought by a transsexual applicant. At the same time, the court cautioned in its October 21 ruling in Matter of the Application of Winn-Ritzenberg, No. 09-227, that the name change did not signify a determination as to legal change of gender

Leah Yuri Winn-Ritzenberg, having concluded that his gender identity was male, wanted to change his first name to Olin, and sought assistance from the Name Change Project of the Transgender Legal Defense & Education Fund, which filed a petition on Winn-Ritzenberg’s behalf in the New York City Civil Court, where it was assigned to Judge Mendez. Volunteer attorneys Brenna DeVaney, Benjamin Edwards, Daniel Gonen and Janson Mao worked on the case. In an opinion that stirred outrage and consternation in the transgender community, Judge Mendez denied the petition, opinion that the court could not allow somebody born female to take up a male name without medical proof. The petition had been filed without such proof, on the understanding that New York Law freely allows people to change their names.

Decisions by the Civil Court are appealed to the Appellate Term of the Supreme Court, an intermediate appellate bench made up of designated trial court judges, whose decisions can be appealed in turn to the Appellate Division of the Supreme Court. TLDEF appealed on behalf of Winn-Ritzenberg, with amicus assistance from Lambda Legal and cooperating attorneys at Debevoise & Plimpton. Daniel Gonen argued the appeal.

The Appellate Term panel consisted of Justices Douglas E. McKeon, presiding, Martin Schoenfeld and Martin Shulman. They unanimously reversed Judge Mendez. "We exercise our discretion under CPLR 5704(b) and grant the transgendered petitioner’s application for a name change corresponding with petitioner’s male gender identity," wrote the panel in a per curiam opinion. "In the absence of evidence of fraud, misrepresentation, or interference with the rights of others, the name change petition should have been granted."

"There is no sound basis in law or policy to engraft upon the statutory provisions an additional requirement that a transgendered petitioner present medical substantiation for the desired name change," the court continued. "‘Apart from the prevention of fraud or interference with the rights of others, there is no reason - and no legal basis - for courts to appoint themselves the guardians of orthodoxy in such matters,’" the court commented, citing a prior ruling, Matter of Guido, 1 Misc. 3d 825, 828 [2003].

However, "in granting petitioner’s application," the court concluded, "we do not address the separate issue of whether petitioner has changed gender for legal purposes." This parting shot signals an unfinished debate among the courts about what would be necessary to recognize an individual’s change of identity as having legal significance in those instances where the law takes account of gender, such as the right to marry in most states, including at the time of writing New York. Many courts insist that only after a full gender transition including surgical alteration can an individual change his or her legal sex, which is a matter of considerable controversy among legal scholars and transgender rights advocates.

Postscript:  The opinion was belatedly published in the New York Law Journal on October 27, which may presage a Westlaw citation.

Supreme Court Keeps Washington Petition Names Secret Without Ruling on Odd Constitutional Theory

In a non-explanatory order issued on October 20, the United States Supreme Court decreed that the names of those who signed petitions to put a Washington State referendum on the ballot to repeal the state’s recently-enacted law expanding benefits for registered domestic partners must be kept secret until a final ruling on the merits of the claim that revealing the names would violate the First Amendment. John Doe #1 et al. v. Reed, Washington Secretary of State, No. 09A356 (Oct. 20, 2009).

Washington enacted a domestic partnership statute a few years ago, which afforded a list of rights and responsibilities to same-sex domestic partners that fell short of full state law equality with marital partners. Earlier this year, the legislature approved and the governor signed a law that was intended to give domestic partners substantial equivalence under state law to marital partners. Opponents of the law, led by a group calling itself Protect Marriage Washington, collected sufficient signatures to put a repeal referendum on the ballot, which stayed implementation of the law pending the vote on November 3.

Under Washington State’s Public Records Act, state officials were prepared to release the names of those who signed the petitions at the request of several groups, but Protect Marriage Washington went to court on behalf of some "John Doe" petition signers, seeking to keep the names confidential. They argued that revealing the names could subject the signers to persecution by same-sex marriage advocates, and persuaded a federal district judge that this would violate the First Amendment by "chilling" political speech. The district judge bought the argument, at least to the extent of ordering preliminary injunctive relief, an action that requires the court to find that the plaintiffs are likely to succeed on the merits and that failing to issue the preliminary injunction will cause irreparable injury to the plaintiffs. The plaintiffs argued that a release of the names can’t be undone, so they had to be kept secret until the case was ultimately decided.

The state appealed to the U.S. Court of Appeals for the 9^th Circuit, which issued a brief order on October 15 reversing the district judge and ordering release of the names. The 9^th Circuit panel did not explain its reasoning, indicating it would issue a full opinion later. The Protect Marriage group immediately petitioned the Supreme Court to have the 9^th Circuit’s order stayed, and the Supreme Court voted 8-1, Justice John Paul Stevens dissenting, to stay the 9^th Circuit’s order and keep the District Court’s preliminary injunction in effect "pending the timely filing and disposition of a petition for a writ of certiorari." The Court indicated that if it did not ultimately grant review in the case, the 9^th Circuit’s order could go into effect, but that if it granted review, the preliminary injunction would continue until the Supreme Court could decide the case.

Either way, of course, this means the names will not be released before the election on November 3, so Protect Marriage Washington has at least an interim victory and will avert the distractiom from the campaign of having the names of petition signers publicized.

Protect Marriage’s theory of the case proposes that democracy can only function if people are free to express their views anonymously through non-disclosed petitions and secret ballot votes. This theory should disturb "originalists," since the idea of secret balloting was not widely accepted in the late 18^th century when the First Amendment was adopted. During the early period of our country’s history, before the invention of voting machines, elections were very public affairs. People would gather at polling places to observe the proceedings, voters would publicly declare their preferences, and everyone was taking notes and keeping score. It was only later in our history that the idea of secret ballot voting caught on.

Protect Marriage’s case would take that one step further, finding First Amendment protection for voter identity to an extent that would override the contrary trend towards transparency evidenced by the adoption of Public Record Laws such as Washington State’s. Perhaps taking it even one step further, they would argue the unconstitutionality of federal and state laws that make the names of donors readily available on state and federal web sites. Since their main argument is based on the reported harassment suffered by some prominent financial donors to California Proposition 8 last year – continuing in the form of organized boycott efforts against the Manchester hotels in San Diego, for example – its logic would extend to ending such donor disclosures, which would severely undermine attempts to let the public know who is behind public policy referenda.

This one bears close watching.

Prop 8 suit advances; Washington signatures to be released

There have been press reports about two courts decisions on the West Coast.  We haven't seen actual written court opinions on these, just news reports, but they are worth noting briefly here since they relate to stories we've covered recently.

First, California newspapers and the AP have reported that at a hearing the other day, U.S. District Judge Vaughn Walker, who is hearing the challenge to California Prop 8 filed by David Boies and Ted Olson, has rejected a motion by the Proposition 8 Proponents, intervenor defendants in the case, to grant summary judgment against the plaintiffs. 

Intervenors have argued that under Baker v. Nelson, a 1972 Minnesota Supreme Court decision denying a same-sex marriage claim that the Supreme Court refused to review on the ground that it presented no substantial federal question, a federal trial court is precedent-bound to reject any federal constitutional claim for same-sex marriage.  Further, they have argued that a claim for same-sex marriage under the 14th Amendment is subject to rational basis review, under which the court should reject the challenge if there is any rational or reasonable purpose for the state to extend marriage to different-sex couples but not to same-sex couples, and that encouraging procreation by heterosexual couples serves as such as purpose.

Judge Walker rejected the motion, according to various press reports, because he found that this case presents issues not necessarily decided in Baker, and because he does not agree with Intervenors that rational basis review is necessarily the correct constitutional standard to apply.  Walker wants a trial for fact-finding on some of the factors underlying the choice of which level of judicial review to use, and also to evaluate the weight and correctness of the purposes being articulated by the Intervenors.  (The Intervenors are the only parties defending Prop 8, as the named government defendants have refused to do so.)

So this sounds like good news.  It appears that Judge Walker is receptive an argument that heightened scrutiny should apply, which raises the odds of a trial-court success for the plaintiffs, and from his comments it also appears that he is very dubious about the procreation rationale.  He asked Charles Cooper, attorney for the Intervenors, to explain how permitting same-sex couples to marry would adversely affect heterosexual procreation, and Cooper said "The answer is, I don't know.  I don't know." 

There was also some discussion about the pending discovery controversy, previously reported ont his blog.  Walker seems eager to go ahead with his scheduled January trial date on this case, and Olson, for plaintiffs, said he might seek an injunction against the operation of Prop 8 if Intervenors persist in delaying the case by stringing out an appeal of Walker's discovery ruling.  Walker also appeared receptive to receiving such an application, and Cooper promised to expedite the discovery issue.

Newspapers on the West Coast also reported that a panel of the U.S. Court of Appeals for the 9th Circuit has reversed a district court ruling (about which we previously reported) and held that the names of those who signed petitions to put R-71 on the ballot were subject to disclosure under state law and should not be barred on constitutional grounds.  R-71 is a proposal to rescind a state law expanding the rights of registered domestic partners.  The trial court said that the first amendment rights of the petition signers would be violated by requiring their release to the public; the 9th Circuit panel disagreed, and R-71 proponents announced they would seek en banc review to try to delay release of the names.  Their immediate political aims would be met by keeping the names sealed up until election day...  Given the proximity of that event, they might succeed despite losing.

NY Court of Appeals May Duck Same-Sex Marriage Recognition Issue

The New York Court of Appeals heard oral arguments on Tuesday, October 13, in two cases that might provide a vehicle for the court to weigh in on the question whether same-sex couples who marry elsewhere are entitled to have their marriages recognized in New York. But judging by the questioning from the bench, it appeared that many members of the court were looking for a way to give a narrow ruling that would not necessarily settle that question, pressingly aware that the State Senate might obviate their need to make a controversial ruling by voting for the marriage equality bill before the end of the year.

The two cases before the court were Godfrey v. Spano, in which the Appellate Division for the 2^nd Department rejected a constitutional challenge to an executive order by the Westchester County Executive, commanding agencies under his direction to afford same-sex marriages the maximum recognition available under the law, and Lewis v. Department of Civil Service, in which the Appellate Division for the 3^rd Department rejected a constitutional challenge to a decision by the Department to recognize same-sex marriages for purposes of public employee benefits programs in the state.

The 2^nd Department ruling was unanimous in finding that because the Spano EO had merely instructed county officials to follow the law, it was not subject to challenge. The 3^rd Department ruling was expressed in divergent opinions, three judges holding that same-sex marriages are entitled to recognition as a matter of the state’s well-established marriage recognition principles, while two judges held that it was within the discretion of the Department to decide that same-sex couples who had married outside the state met the qualifications to be treated like dependents for purposes of interpreting the employee benefits rules. The minority opinion said it was not necessary or desirable for the court to take on the broader question of marriage recognition in this case. The 3^rd Department majority adopted the reasoning of the Appellate Divison for the 4^th Department in a 2008 case requiring Monroe Community College to recognize the Canadian same-sex marriage of one of its employees.

Both cases had been brought by the Alliance Defense Fund, an Arizona-based Christian advocacy outfit that specializes in attacking any laws or government actions that actualize the human rights of gay people. ADF found New York tax-payers willing to be named plaintiffs in the lawsuit, claiming that Spano and the Civil Service Department had exceeded their constitutional powers by taking these actions that could result in the expenditure of tax-payer funds. A New York statute authorizes tax-payers to file legal challenges to unconstitutional expenditures by the government.

ADF attorney Brian Raum argued to overturn both Appellate Division rulings. His main line of argument was to contend that same-sex marriages should be treated the same as polygamous and incestuous marriages, the two categories of foreign marriages that are treated by New York courts as exceptions to the general rule that marriages lawful where celebrated will be recognized in New York. He conceded that if the Civil Service Department had extended benefits without formally recognizing the same-sex marriages as "marriages" for purposes of New York law, his clients would have no objection, which led Chief Justice Jonathan Lippman to suggest that the challenge in that case was just about semantics. As to the Spano order, Raum worked hard to try to convince the court that it was not just a symbolic statement of support for same-sex couples by the county executive, but he could not come up with any example of where it had actually resulted in any taxpayer funds being expended.

Three attorneys argued to uphold the Appellate Division rulings. Assistant Solicitor General Sasha Samberg-Champion from the Attorney General’s Office appeared to defend the Civil Service Department, Westchester County Attorney Mary Lynn Nicolas- Brewster argued in support of Spano’s EO, and Lambda Legal’s Susan Sommer appeared on behalf of some same-sex married couples who had intervened in the case to protect their employee benefits entitlements.

Samberg-Champion led off and quickly conceded that his client could "live with" the result if the court decided the case based on the concurring opinion, thus avoiding having to decide the marriage recognition issue. He was pushed on this by more than one of the judges, as they probed to determine whether there was a way they could resolve this case without having to decide that ultimate, politically-charged question. (The easiest way, of course, would have been to deny leave to appeal, given the lack of dissonance between the Appellate Divisions on marriage recognition up to this point, and the possibility that pending legislation would render the controversy moot.) Judge Victoria Graffeo expressed concern that a broad marriage recognition ruling would go beyond public employees and also affect private businesses throughout the state.

The most active questioners, Chief Judge Lippman, Judge Robert Smith (who wrote the court’s plurality opinion in the Hernandez case in 2006, rejecting the constitutional claim for same-sex marriage), and Judge Eugene Pigott, Governor George Pataki’s last appointee to the court, all pushed on the question of whether affirming the 3^rd Department based on its majority opinion on marriage recognition would mean that the court was deciding that question in all its applications, and not just for purposes of public employee benefits. Judge Pigott harped on the odd contention that recognizing out-of-state same-sex marriages at a time when same-sex couples can’t marry within the state would be like placing a higher value on the residents of other states than on New Yorkers, characterizing it as "discriminatory."

Samberg-Champion tried to keep coming back to the argument that the court would only be deciding the issue with respect to the situation before it of public employee benefits, and that the lower courts would be left to decide recognition issues on a case by case basis depending on the circumstances. Lippman was persistent in raising the question through the various arguments of whether it was more appropriate to settle the recognition issue broadly or let it play out agency by agency, county by county, decision by decision.

Nicolas-Brewster was in the position of trying to defend an executive order that, upon close scrutiny, appears circular and more symbolic than meaningful. Judge Smith in particular pushed hard on whether the order had any substantive effect, and whether affirming the 2^nd Department required the court to decide the broader marriage recognition issue, again signaling the court’s eagerness to avoid a broad ruling.

Finally, Sommer was peppered with questions about the scope of the ruling, and whether the court might refrain from taking a position on the marriage recognition issue in general. By the time the argument came around to her, it was increasingly clear that many members of the court were loath to take on the broader issue, knowing that the legislature could quickly render any decision by the court irrelevant.

Raum had saved some time for rebuttal, and argued that Spano’s order was not merely symbolic, contending that it could have an impact on Medicaid eligibility in the county, but he could not come up with a concrete example where somebody had received medicaid benefits as a result of the order rather than as a result of Governor Paterson’s directive from spring 2008 to executive branch agencies to comply with the Martinez decision by recognizing same-sex marriages contracted out of state. (ADF also filed a lawsuit challenging Paterson’s directive, but suffered a defeat in the trial court. That case has not yet been heard at an appellate level and was not before the Court of Appeals, although a broad ruling on the marriage question might render that lawsuit moot as well.)

Predicting an outcome after viewing an appellate argument is always dangerous. For one thing, Judge Theodore Jones sat absolutely mute during the entire argument, and Judge Carmen Ciparick said very little. Jones, the lone Spitzer appointee, was not on the court yet for Hernandez, and Ciparick, a Cuomo appointee, joined former Chief Judge Judith Kay’s dissent in that case. Judges Victoria Graffeo and Susan Phillips Read, both Pataki appointees, asked plenty of questions without necessarily signaling their view on the merits. Graffeo authored a concurring opinion in Hernandez, rejecting the constitutional marriage claim, but her questioning did not seem to signal overt hostility toward marriage recognition. She and Read seemed most concerned with the potential scope of a marriage recognition ruling.

The most active questioners, Lippman, Smith and Pigott, all seemed very concerned about limiting the scope of the ruling. Lippman, a protégé of Chief Judge Kay, might well share the strong views in favor of same-sex marriage that she articulated in her Hernandez dissent, but the question before the court in this case is different, and there’s no telling how he might vote. Pigott was not on the court for Hernandez, and his questioning seemed to signal a very practical approach to the problem facing the court, which would argue for a narrow ruling. Smith was very open about this, suggesting more than once the court’s general preference for finding a narrow basis to rule rather than to issue a broad ruling that might have unforeseen ramifications.

The New York Court of Appeals is a "hot bench" that prides itself on issuing decisions quickly after oral argument, which means the judges take time to study the briefs and have already begun formulating their views before the argument takes place. Smith, in particular, seemed to be intimately conversant with the details of old marriage recognition cases during his questioning of the attorneys. There could be a ruling in this case well before the end of the year, although if the State Senate takes up the marriage equality bill and passes it before the court can rule, it might decide to hold up and ask the parties for briefing on whether that would moot the case and obviate the need for a ruling.

The oral argument is available for viewing on the court’s website. Go to http://www.nycourts.gov/ctapps/, then click on the box where it says "Click here for Webcasts of Selected Oral Arguments."

Discovery Dispute May Delay Trial in Prop 8 Case

A dispute about a discovery demand in the pending federal lawsuit challenging the constitutionality of California Proposition 8 may delay the trial in the case, which has been scheduled to begin in January. The attorneys for the Proposition 8 Official Proponents are asking U.S. District Judge Vaughn R. Walker to stay discovery while they ask the U.S. Court of Appeals for the 9^th Circuit to reverse Walker’s October 1 ruling that they have no First Amendment right to refuse to turn over internal communications from the Proposition 8 referendum campaign.

The lawsuit, Perry v. Schwarzenegger, was filed last spring by star appellate attorneys Ted Olson and David Boies on behalf of two California same-sex couples who want to marry in their state of residence but cannot do so as a result of the passage of Proposition 8 in November 2008. Proposition 8 placed into the California Constitution a new section stating that only a marriage between one man and one woman will be "valid or recognized in California." Its enactment put an end to new same-sex marriages in California, although the state Supreme Court ruled that marriages contracted prior to that enactment remained valid. Gay political groups in California are divided over whether to seek repeal of Prop 8 by initiative in 2010 or 2012, but one group has filed papers seeking a 2010 initiative.

The original named defendants in the lawsuit include Governor Arnold Schwarzenegger and Attorney General Gerry Brown in their official capacities as state officers, but since both of those officials declined to defend the constitutionality of the measure (and Brown actually argued before the California Supreme Court that it was unconstitutional), Judge Walker allowed the Proposition 8 Official Proponents to intervene as parties in the case to defend Proposition 8.

The theory of the lawsuit is that Proposition 8 violates the Equal Protection Clause of the 14^th Amendment of the U.S. Constitution because it was intended to and did adopt a discriminatory policy about access to marriage in California. During the discovery phase of the case, the plaintiffs are seeking to uncover evidence supporting their argument that Proposition 8 had a discriminatory purpose. Among their discovery requests to the Proposition 8 Proponents is a demand for "all versions of any documents that constitute communicating relating to Proposition 8, between you and any third party, including, without limitation, members of the public or the media."

The Proponents objected to this demand, claiming that the information sought is privileged from discovery under the First Amendment and that the discovery demand is overbroad and burdensome. They point to instances where supporters of Proposition 8 were subjected to harassment and business boycotts, and claim that turning over the requested information would lead to more of the same. They argue that exposing all these internal communications to the light of day may have a deterrent effect in the future, chilling political speech and activity. In their new motion, filed with the court on October 8, they also suggest that it is inappropriate to force them to reveal their internal deliberations on a winning strategy in light of current political developments, stating that the concerns they have expressed "are especially salient where, as here, the losing side of a hard-fought referendum campaign seeks complete disclosure of the successful campaign strategy of the winning side, and it does so while preparing for a political ‘rematch.’"

Responding to these arguments, the plaintiffs pointed out that the names of all financial donors to the Proposition 8 campaign were required to be reported to state authorities and were subsequently posted on an open government website, so they were not demanding donor lists or information. Furthermore, politicals consultants to the Prop 8 proponents had actually published an article detailing their winning campaign strategy, so that was hardly a confidential secret. The communications the plaintiffs are now seeking are documents that would shed light on the motivations of those who proposed and sought to pass the measure, which could be useful in trying to prove that Prop 8 was proposed and pushed for discriminatory reasons.

Judge Walker decided the First Amendment issue against the Proponents, finding that what the Plaintiffs were seeking was potentially relevant to the lawsuit, but he agreed with the Proponents that the discovery request was too broad and burdensome. He ordered that the plaintiffs quickly refine their request to focus on the types of material that are likely to lead to relevant evidence in the case.

Walker described as "general areas of appropriate inquiry" such things as "(1) communications by and among proponents and their agents (at a minimum, Schubert Flint Public Affairs [the outfit that handled the advertising campaign for Prop 8]) concerning campaign strategy and (2) communications by and among proponents and their agents concerning messages to be conveyed to voters, without regard to whether the voters or voter groups were viewed as likely supporters or opponents or undecided about Prop 8 and without regard to whether the messages were actually disseminated or merely contemplated. In addition, communications by and among proponents with those who assumed a directorial or managerial role in the Prop 8 campaign, like political consultants or ProtectMarriage.com’s treasurer and executive committee, among others, would appear likely to lead to discovery of admissible evidence."

The plaintiffs quickly redrafted their discovery request to meet the court’s guidelines, prompting the Proponents to file their appeal to the 9^th Circuit and their motion before Judge Walker to "stay" his discovery order pending the appeal. They pointed out that once something has been disclosed, and can’t be "undisclosed," so they would suffer irreparable injury to their First Amendment rights if the 9^th Circuit accepted their argument after they had been forced to comply with Walker’s order. They reiterated their view that being forced to disclose the type of material being sought "will cause future initiative proponents to censor their speech with campaign volunteers, donors, supports, and agents, for fear that their communications will be publicly disclosed in future litigation" and that "it will silence initiative supporters who want to remain anonymous." This last point picks up on a winning argument in a recent lawsuit in Washington State concerning whether the names of petition signers for the initiative to repeal the latest amendments to Washington’s domestic partnership law should be made public.

Another Example of Why We Need the Employment Non-Discrimination Act (ENDA)

See Ayala-Sepulveda v. Municipality of San German, 2009 Westlaw 3199861 (D.P.R., Sept. 30, 2009).  So this gay guy was working for the city in the Municipal Office for Emergency Management, and when he went for rescue training he was "mocked by co-workers" due to his sexual orientation, and told that a homosexual could not be a rescue worker.  Then, when a romantic interlude he was having with a co-worker came to an end unhappily, the co-worker began a campaign of vilification against him.  Things got so bad that he complained - and the response was to ask him to accept a transfer to work at the municipal cemetery.  (That's right, guys, literally bury the problem....)  It got to where the Mayor of the city was denouncing this guy to the guy's family because of his "sexual definition." 

At any rate, his hostile environment sexual harassment case just got slammed by District Judge Gustavo A. Gelpi because, guess what, Title VII's ban on sex discrimination in employment does not protect gay people from anti-gay harassment.  Do we need ENDA or don't we need ENDA?  Do the hypocritical opponents who say ENDA is not needed because there is no evidence that gays are still discriminated against need yet another item of proof?

Montana Supreme Court Affirms Parental Rights and Property Settlement for Lesbian Co-Parent

The Supreme Court of Montana ruled 6-1 in Kulstad v. Maniaci, 2009 WL 3179441 (Oct. 6, 2009), that a lesbian co-parent who had formed a parent-child relationship with the two children who had been adopted by her former partner was entitled to a parental interest (decision-making authority and visitation) after the termination of the relationship. The court also affirmed the trial court’s decision to apply equitable principles to compensate the co-parent for her financial contribution during the ten-year relationship, awarding a lump sum payment as well as ownership of one of the couples’ two motor vehicles.

The Alliance Defense Fund, a right-wing anti-gay litigation group, joined in representing the legal mother, and having made the argument that the statute under which the court determined Kulstad’s parenting rights was unconstitutional, one can anticipate that they will attempt to get the U.S. Supreme Court to review the constitutional question. Representing the co-parent, successfully defending her trial court victory, was the ACLU of Montana.  The key issue is whether a court can require a fit legal parent to yield parental rights to a "third party" who is not legally related to a child. ADF convinced at least one of the seven members of the court, as Justice Jim Rice filed a lengthy dissent, vigorously contesting the constitutionality of the statute, which was enacted in 1999.

The case drew five amicus briefs, likely an unusual show of interest for an appeal pending in Montana’s high court. The Montana Family Foundation and the Pacific Justice Institute weighed in on behalf of the legal mother. A professional associations brief representing the National Association of Social Workers and the American Academy of Pediatrics, together with briefs from a group of Montana law professors and from the Northwest Women’s Law Center, were submitted on behalf of the co-parent.

Writing for the court, Justice Brian Morris began with an unusual introductory statement. "Far too often this Court faces a situation in which minor children have no adult fit to parent them. This case presents the increasingly unusual situation of two adults fit to parent minor children, L.M. and A.M." The trial court had awarded "a parental interest in the minor children to Appellee Michelle Kulstad over the objection of the Appellant Barbara L. Maniaci. The court also awarded Kulstad an interest in personal and real property." Maniaci had appealed the trial court’s rulings, except for its ruling that it could not grant a divorce because the alleged "common law marriage" of the parties was not recognized in Montana.

Justice Morris relates that the women met in late 1995, at a time when Maniaci was living in a trailer on her sister’s property and working part-time as a chiropractor out of her sister’s house. Kulstad, then living in Seattle, Washington, was supporting herself on savings while undertaking various business ventures. As the relationship deepened, Kulstad moved to Montana to live with Maniaci, and the women exchanged rings in a ceremony on March 18, 1996 - rings which they wore until the relationship fell apart in the fall of 2006, more than ten years later.

During the intervening years, Maniaci bought property to construct a house, but ran out of funds and Kulstad ended up paying for much of the balance, also lending a personal hand in construction projects. One of Maniaci’s chiropractic patients asked if the women would like to adopt her great-grandson, whose mother was not doing a capable job. The women agreed, although due to limitations of Montana adoption law only one could be the legal adoptive parent, and Maniaci took that role. Later, Maniaci adopted a second child, a girl from South America. In both cases, Maniaci told the professional doing the home study leading to the adoption that she and Kulstad were partners and would raise the children together. And so they did, sharing parenting responsibilities and making various legal arrangements tending to document a joint parenting venture.

However, as these things sometime happening, the relationship of the women turned sour, Kulstad was barred from the house and contact with the kids, and filed her divorce action in January 2007, seeking a parenting interest and a property settlement. The Missoula county District Judge Edward P. McLean appointed a guardian ad litem for the children, appointed a court expert (whose testimony was supplemented by experts presented by both sides in the litigation), and conducted hearings to determine how to proceed. Having determined that there was no legally-recognized marriage to dissolve, he rejected the divorce petition, but concluded that Kulstad was entitled to a declaration of "parental interest" under the Montana statute concerning third party parenting rights, and that under the court’s equitable powers she was also entitled to a property settlement upon the dissolution of the relationship.

The court accepted the view of its expert and Kulstad’s expert that Kulstad did have a parent-child relationship with both children sufficient to meet the statutory requirement, and that Maniaci’s conduct was inconsistent with her assertion that she was the sole parent of these children. It also found the contrary view of Maniaci’s expert, a geriatrician with no background dealing with children, to be not supported.

The main legal issue on appeal was an attack on the constitutionality of the statute. Maniaci argued that awarding parental rights to Kulstad violated Maniaci’s due process liberty interest as a parent. In cases dating back to the 1920's, the U.S. Supreme Court has ruled that the natural or legal parents of children have constitutional rights concerning the care and raising of their children. Maniaci relied heavily on the 2000 decision in Troxel v. Granville, where the Supreme Court held unconstitutional a Washington state statute that authorized awarding visitation rights to grandparents over the objection of a child’s parent. Indeed, the Washington statute broadly authorized courts to grant visitation rights to third parties if the court that it was in the child’s best interest, with little guidance or constraint.

The Montana court found that the Troxel precedent did not mandate a finding of unconstitutionality in this case, pointing out that the statute is more narrowly focused on preserving existing parent-child relationships. In so holding, the court refused to read into the statute a requirement that the legal parent be found to be unfit to exercise parental rights before a third party could be accorded such rights.

The court also found that the trial judge had correctly exercised equitable powers to award a financial settlement to Kulstad, finding that the trial record indicated she had made substantial financial contributions to finishing construction of the house for the benefit of the family, and had also played the main role in maintaining their automobiles.

Justice James C. Nelson wrote a brief, emphatic concurring opinion, venturing onto the topic that was barely alluded to by the Supreme Court: that this case involve "homosexuals in an intimate domestic relationship," a fact that Nelson called "the elephant in the room." Nelson, who had written a stirring pro-gay declaration in an early Montana Supreme Court case, offered a repeat performance here. "Sadly," he noted, "this case represents yet another instance in which fellow Montanans, who happen to be lesbian or gay, are forced to battle for their fundmantal rights to love who they want, to form intimate associations, to form family relationships, and to have and raise children – all elemental, natural rights that are accorded, presumptively and without thought or hesitation, to heterosexuals."

He argued that the court’s ruling was "grounded in the statutory scheme," and asserted, "I remain absolutely convinced, nonetheless, that homosexuals are entitled to enjoy precisely the same civil and natural rights as heterosexuals as a matter of constitutional law," and recalled his "special concurrence" in the earlier case, which involved partner benefits at the state university.

"I stand by my concurring opinion," he wrote. "Unfortunately, though, nothing has changed. I am convinced that until our courts, as a matter of law, accept homosexuals as equal participants with heterosexuals in our society, each person with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and political popular. Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. And, whether rationalized on the basis of majoritarian morality, partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot be justified; it cannot be legalized; it cannot be constitutionalized."

One suspects that this concurrence was as much a response to the Alliance Defense Fund’s participation on the side of Maniaci as it was to Justice Jim Rice’s dissenting opinion, which accused the court of retreating from "its clear declaration of the fundamental constitutional rights of parents" in prior cases. He accused the court of opening up a "Pandora’s box" of potential attempts by unrelated third parties to attack the rights of parents "to raise their own children." This caricatures the court’s opinion, which insisted upon a firm showing of an existing parental relationship prior to the filing of a parenting interest petition.

The likelihood that the Alliance Defense Fund, armed with this dissent, will try to obtain U.S. Supreme Court review, seems high. An interesting sidelight of the case is that Justice Morris, author of the court’s opinion, clerked for the late U.S. Supreme Court Chief Justice William Rehnquist and conservative Judge John Noonan on the U.S. Court of Appeals for the 9^th Circuit, neither of whom, one suspects, would have been particularly enamoured of his opinion in this case.