Amicus Curiae Brief — Deboer v. Snyder, 135 S. Ct. 1040 (2015) (No. 14-571)

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Supreme Coun, US.

FILED

MAR 4- 2015

gu The OFFICE OF THE CLERK _

Supreme Court of the Anited States

APRIL DEBOER, et al.,

Petitioners,

Nos. 14-571 & 14-574

Vv.

RICHARD SNYDER, in his official capacity

as Governor of the State of Michigan, et al.,

Respondents.

GREGORY BOURKE, et al.,

Petitioners,

Vv.

STEVE BESHEAR, in his official capacity

as Governor of the Commonwealth of Kentucky,

Respondent.

On Writs Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF OF AMICUS CURIAE

AMERICAN BAR ASSOCIATION

IN SUPPORT OF PETITIONERS

Of Counsel: WILLIAM C. HUBBARD

DAVID A. O’NEIL Counsel of Record

STEVEN S. MICHAELS President

DaviIp SARRATT AMERICAN BAR ASSOCIATION

HARRIET M. ANTCZAK 321 North Clark Street

RYAN M. KUSMIN Chicago, IL 60654

BENJAMIN D. MARGO (312) 988-5000

abapresident@americanbar.org

Counsel for Amicus Curiae American Bar Association

QUESTION PRESENTED

In this brief amicus curiae, American Bar

Association responds to only the first Question

Presented:

Does the Fourteenth Amendment require a state

to license a marriage between two people of the same

sex?

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ..........................++. 1

SUMMARY OF ARGUMENT .........................0.05. 5

IIT sciindssesinsiietiiiienrinisiianiaitiniasiintintdiapitipiainainbitiusliniies 7

LAWS THAT DENY SAME-SEX COUPLES

THE RIGHTS AND OBLIGATIONS OF

MARRIAGE VIOLATE THE FOURTEENTH

AMENDMENT’S GUARANTEE OF EQUAL

PROTECTION .............. nalidndiguniiianionitindinmnmennntnte 7

A. ABA Members’ Experience Demonstrates

That Legal Substitutes for Marriage

Rights and Obligations Are Costly,

Complex, and Unequal .............................. 8

Ba: Ee IR iisnccinisqnunccesnensmnsetemneen 11

2. Death and Inheritance ........................ 14

3. Health and Well-being......................... 18

4. Economic Protections .......................... 21

Bs Eaten cttbainisenescsnnsitniienusinnianaiediaindacs 25

6. Ethical Obligations.............................. 28

B. Legal Substitutes Cannot Cure the

Discriminatory Effects of the Marriage

SIE aasnshntuninteratcnignenintentaesiesnisiameiaiesaionveneliene 29

ili

TABLE OF AUTHORITIES

Page

CASES

Adar v. Smith, 639 F.3d 146 (5th Cir. 2011) (en

Ian TIT csicinic dell ieelehlceeacienecicigabaacinitnitiiae te lneatiaa mealies 13

Boddie v. Connecticut, 401 U.S. 371 (1971).............0... 7

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)........... 4

Brown v. Bd. of Educ., 347 U.S. 483 (1954)............... 30

Carey v. Population Servs. Int'l, 431 U.S. 678

, , GERETS PRCT te erst RN er ton ere ae ee Re 7

Carter v. Hill, 45 N.W. 988 (Mich. 1890) ................... 25

Cleveland Bd. of Educ. v. LaFleur, 414 U.S.

SET See eRe 2! eke WMD Ns AY ene 7

Commonwealth v. Clary, No. 11-CR-3329 (Ky.

Ee is IS He SED iccicscinethadcncinnioniensinesmigncenenetdan 26

DeBoer v. Snvder, 772 F.3d 388 (6th Cir. 2014) ..... 13, 30

Glossip v. Mo. Deptt of Transp. & Highway

Patrol Emps. Ret. Svs., 411 S.W.3d 796 (Mo.

Ee re ee Sern eae Se Ee 18

Griswold v. Connecticut, 381 U.S. 479 (1965) ............. 7

Harmon v. Davis, No. 297968 (Mich. Ct. App.

July 8, 2010), leave to appeal denied, 800

RR ree 12.13

In re K.H., 677 N.W.2d 800 (Mich. 2004)................... 12

Lawrence v. Texas, 539 U.S. 558 (2008)................... 4,7

Loving v. Virginia, 388 U.S. 1 (1967)....................00000.. 7

M.L.B. v. S.L.J., 519 U.S. 102 (1996)................ccscccceees 7

TABLE OF AUTHORITIES — Continued

Page

Maynard v. Hill, 125 U.S. 190 (1888).......................... 7

Meyer v. Nebraska, 262 U.S. 390 (1923) ..................022. 7

Michael H. v. Gerald D., 491 U.S. 110 (1989)............ 12

Moore v. City of E. Cleveland, 431 U.S. 494

EE ae ee Ae ree ee ae ener eee eR 7

People v. Case, 137 N.W. 55 (Mich. 1912) .................. 12

Planned Parenthood of Se. Pa. v. Casey, 505

iii deen cea eni ilar neaeitieeecinnieiimininnies 7

Romer v. Evans, 517 U.S. 620 (1996)........0.0......00000000.. 4

Skinner v. Oklahoma ex rel. Williamson, 316

es Se acorn cciccrsinisdiiinctiainieinsiietieipiinaipanegrianimeamenadiimning 7

Stein v. Bowman, 38 U.S. 209 (1839)...................-...5. 25

Trammel v. United States, 445 U.S. 40 (1980) .......... 26

Truman v. Lillard, 404 S.W.3d 863 (Ky. Ct.

BI SED ditirsecmnscinsennnidinatinedastianetinaiieenmeinetinn 13

Turner v. Safley, 482 U.S. 78 (1987) ..................0+5. 7,15

United States v. Windsor, 133 S. Ct. 2675

EE ene ener en ue o a eee e NOE 4, 28, 29, 30

W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

Ss TTIUTITITTTEiciesceenddeme nila 8

Zablocki v. Redhail, 434 U.S. 374 (1978)................000.. 7

CONSTITUTIONAL PROVISIONS

ls MI, CII, BEI cccncccniencncentncesesoioonsnnes 1, 7, 8, 31

EE ee a NE 29

RE es ae Ce. 29

TABLE OF AUTHORITIES — Continued

Page

UNITED STATES CODE

5 U.S.C.

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26 U.S.C.

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29 U.S.C.

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42 U.S.C.

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STATE CODES AND STATUTES

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Ala. Code

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BP IEEE Pace ctnccewcccscccecesccscotetcces ilialenaipiidinbaiadiinda 2a

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Alaska Stat.

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§ 13.52.030(c)(1) ..........0.... iicdlantnekteitiinn Snauubiiiaiaiaiiiass lai 2a

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TABLE OF AUTHORITIES — Continued

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Ariz. Rev. Stat. Ann.

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Ark. Code Ann.

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Fla. Stat.

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Ga. Code Ann.

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Idaho Code Ann.

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TABLE OF AUTHORITIES — Continued

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Ind. Code

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Ky. Rev. Stat. Ann.

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TABLE OF AUTHORITIES — Continued

Page

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I a 29

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Rae or eae eee ea L Se Tee 17, 18

La. Civ. Code Ann.

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La. Rev. Stat. Ann.

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TABLE OF AUTHORITIES — Continued

Page

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a eh 4a

ELE ARES SCRE CLO NO n ee EE Ee 16, 4a

SS RES eC ene eee RCPS eee Oe 15, 4a

Miss. Code Ann.

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eae nea oe ae Te eae ee a 4a

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Mo. Rev. Stat.

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Mont. Code Ann.

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RSE R nar eeeneeNE he ERNE 5a

N.C. Gen. Stat.

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N.D. Cent. Code

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TABLE OF AUTHORITIES — Continued

Page

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Neb. Rev. Stat.

EE ER na en ne emer an tn aT aE eTT 5a

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Ohio Rev. Code Ann.

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Okla. Stat.

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S.C. Code Ann.

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al 6a

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S.D. Codified Laws

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Tenn. Code Ann.

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TABLE OF AUTHORITIES — Continued

Page

BP Ge eet ceneccsdscesersssesencssnpiitcnndaiisiaaniiaiaiaiaaneee 6a

ENED vcccccesvnsensssadonsuiensedieiiadeiaiaanssian 6a

Tex. Estates Code

SF aL csnccsicesencsincnnaveensesiubeeeensnenatenilaneaae 7a

Tex. Health & Safety Code

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Sp FID ccecievudvescadecseunnienesiedmiiaatienadiamiianananan 7a

Utah Code Ann.

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5 | |__| Ee nreE jeidaiidone vighiiiiiaindebammanmali 7a

i IE III concisareucsencnsescsmmésieedasdedbessaaeianne 7a

§ 75-2a-110(2)(b)......0..02.. eee pincapidndiiniatelamane 7a

Va. Code Ann.

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OE eiivcciusccdsnevcenmndpisiaadiaas ssdieniindiiisiitimaal mata 7a

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Bp TENE .cincicsntescsdinnccnsusteaeeesnecesadiimammnaamaaaiaaaee 7a

Wis. Stat.

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§ 154.30(2Ma)(2) ........ seinichetianiesseanaibddemadiiediaaadaaeameenn 7a

Op GENE BUND vcccesccctccccneveseesontiieitecetmaumaianaee 7a

xli

TABLE OF AUTHORITIES — Continued

Page

RULES AND REGULATIONS

Ee 1

rnd crsemnermnngeatensunnsooies 21

Definition of Spouse Under the Family and

Medical Leave Act, 80 Fed. Reg. 9989 (Feb.

25, 2015) (to be codified at 29 C.F.R. pt. 825) ........ 11

Ky. R. Evid. 504(a) ..00...0....---eeccecceceeceeceeceeceeeereeceeeesee 26

Te 25

I ceeemnnmneeile 27

Mich. Rules of Prof’] Conduct R. 1.7(a)..................... 27

Model Rules of Prof’] Conduct R. 1.7(b)(4)................ 27

Books, ARTICLES, AND REPORTS

James Angelini, The Federal and State Taxation

of Domestic Partner Benefits, Tax Analysts

EE ee 21

Susan Frelich Appleton, Presuming Women:

Revisiting the Presumption of Legitimacy in

the Same-Sex Couples Era, 86 B.U. L. Rev.

EEL EET Te ED 12

Blue Ribbon Comm’‘n on Tax Reform, Report by

the Blue Ribbon Commission on Tax Reform

to Governor Steve Beshear (2012) ............ccccccccceeeeee 24

Joan Burda, ABA, Gay, Lesbian and Trans-

gender Clients: A Lawyer’s Guide (2008) ...16, 22, 27

xill

TABLE OF AUTHORITIES ~— Continued

Page

Ross T. Ewing, Gay and Lesbian Parents in

Kentucky, Ky. Bench & B. Mag., Jan. 2014,

tr inieadceinabinnipaecnaetantnnenimsasnitbditihindadmeidaeaiaisidiats 13, 14

Samuel H. Grier & Tad D. Ransopher, Tax

Compliance & Estate Planning for Same-Sex

Couples, 5 Est. Plan. & Community Prop.

Desde GREP Gb cnernenecnnnsvatnnanintecinimesennentnininteit 19, 21

Ky. Dep’t of Revenue, 2014 Individual Income

Tax Updates & Tips, Ky. Tax Alert, Jan.

SEEN: IUD Ut ticconsncscbtencndntnsitionsenendtnnmmnedndeniiasnetauidaueinaines 24

Arthur S. Leonard, Lesbian and Gay Families

and the Law: A Progress Report, 21 Fordham

ne Sl eeidiaiaiaanneadiien 23

Office of Mgmt. & Budget, Exec. Office of the

President, Budget of the United States Gov-

ernment, Fiscal Year 2016 (2015)...................2....... 11

Tara Parker-Pope, Kept from a Dying Partner’s

Bedside, N.Y. Times, May 19, 2009, at D5............. 20

Camille M. Quinn & Shawna S. Baker, Essen-

tial Estate Planning for the Constitutionally

Unrecognized Families in Oklahoma, 40 Tulsa

EEE We ON N ena e nen 17

Katherine T. Schaffzin, Beyond Bobby Jo Clary:

The Unavailability of Same-Sex Marital

Privileges Infringes the Rights of So Many

More Than Criminal Defendants, 63 U. Kan.

enn 27

Xi1V

TABLE OF AUTHORITIES — Continued

Tara Siegel Bernard & Ron Lieber, The High

Price of Being a Gay Couple, N.Y. Times, Oct.

EERE TEPER eee ee ee

U.S. Gen. Accounting Office, GAO/OGC-97-16,

Defense of Marriage Act (1997).........................

U.S. Office of Gov’t Ethics, LA-13-10, Effect of

the Supreme Court’s Decision in United

States v. Windsor on the Executive Branch

Gry GID cevenccsnsssnsspsccnscevascentenssnnees

OTHER SOURCES AND AUTHORITIES

House of Delegates — General Information,

A.B.A., http://www.abanet.org/leadership/

delegates.htm! (last visited Mar. 2, 2015).........

Letter from Barry R. Bedrick, U.S. Gen.

Accounting Office, to Rep. Henry J. Hyde

eis See ienrenscnmnscnntensnsccnssansnisnnenerscmenensians

Letter from Dayna K. Shah, U.S. Gen.

Accounting Office, to Sen. Bill Frist (Jan. 23,

SE cenesccossmisctnsenesreeasanetinnasnenngnssunesesenneenesnnans

Nominations of William H. Rehnquist and

Lewis F. Powell, Jr.: Hearings Before the

S. Comm. on the Judiciary, 92d Cong. (1971) ..

Restatement (Second) of Torts § 925 & cmts.

Se ee octecencsnscnnssnsetsannnsectareesennesnenesnsnnneens

U.S. Dep’t of Labor, Wage & Hour Div., Fact

Se I, SE GD, Ce cesincnceniccscesnncesdinteocnecs

STATEMENT OF INTEREST"

The American Bar Association (“ABA”) as amicus

curiae respectfully submits this brief in support of

petitioners with respect to the first Question Pre-

sented. ABA members who represent same-sex

couples know firsthand the discriminatory effects of

state laws barring such couples from marrying.

Although lawyers can sometimes counsel their

clients on ways to avoid or limit the effects of these

laws, they know from experience that no legal “work-

around” can cure the discriminatory effects that

necessarily result when a state denies formal recog-

nition of a same-sex couple’s commitment through

marriage. Based upon this experience, and as a

longtime advocate of equal treatment for all before

the law, the ABA urges this Court to hold that the

Fourteenth Amendment requires a state to license a

marriage between two people of the same sex.

The ABA is the leading association of legal

professionals and one of the largest voluntary pro-

fessional membership organizations in the United

‘ Pursuant to Supreme Court Rule 37.6. counsel for amicus

certifies that no counsel for a party authored this brief in whole

or in part, and no person other than amicus, its members, or its

counsel made a monetary contribution intended to fund the

preparation or submission of this brief. A letter on behalf of all

petitioners consenting to the filing of this brief accompanies this

brief; all respondents have also consented to the filing of amicus

curiae briefs in support of either party or neither party. See

Dockets in DeBoer v. Snyder, No. 14-571 (U.S. Jan. 26, 2015):

Bourke v. Beshear, No. 14-574 (U.S. Jan. 26, 2015).

States. Its membership comprises nearly 400,000

attorneys in all fifty states, the District of Columbia,

and the U.S. territories, and includes attorneys in

private firms, corporations, non-profit organizations,

and government agencies. Membership also includes

judges,’ legislators, law professors, law students, and

non-lawyer associates in related fields.

Since its founding in 1878, the ABA has taken

special responsibility for protecting the rights guar-

anteed by the Constitution, including the elimination

of discrimination. The ABA’s mission is to serve the

legal profession and the public “by defending liberty

and delivering justice.” Over the past forty years, the

ABA has repeatedly advocated against discrimination

based on sexual orientation. In 1973, the ABA adopted

a policy urging the repeal of laws that criminalized

private sexual relations between consenting adults.”

* Neither this brief nor the decision to file it should be inter-

preted to reflect the views of any judicial member of the ABA.

No inference should be drawn that any member of the Judicial

Division Council participated in the adoption or endorsement of

the positions in this brief. This brief was not circulated to any

member of the Judicial Division Council prior to filing.

* Only recommendations that are presented to and adopted

by the ABA’s House of Delegates (“HOD”) become ABA policy.

The HOD is comprised of 560 delegates representing states and

territories, state and local bar associations, affiliated organizations,

sections and divisions, ABA members, and the Attorney General

of the United States, among others. See House of Delegates -

General Information, A.B.A., http://www.abanet.org/leadership/

delegates.htm! (last visited Mar. 2, 2015). The ABA policies

dating from 1988 onward that are discussed in this brief are

(Continued on following page)

Since that time, the ABA has adopted numerous other

policies, including, in 1987, a policy that condemned

bias-motivated crimes and urged prosecution of

perpetrators thereof; in 1989, that advocated against

discrimination based on sexual orientation in em-

ployment, housing, and public accommodations; in

1991, that supported federal legislation requiring a

study of bias in the judicial system; and in 1992, that

supported university policies opposing discrimination

based on sexual orientation.

In addition, the ABA has adopted policies advo-

cating equal rights in family law issues, including a

1995 policy that addressed child-custody matters and

visitation rights, and a 1999 policy that called for

adoption to be based on the best interest of the child,

and not on the sexual orientation of a prospective

parent. Similarly, the ABA adopted a 2002 policy

urging that surviving partners of victims of terrorism

be eligible for governmental compensation available

to eligible spouses.

The ABA also has worked to eliminate discrimi-

nation against gay men and lesbians who are, or wish

to become, lawyers. In 1992, the ABA amended its

constitution to make the National Lesbian and

Gay Law Association (now the National LGBT Bar

Association) an affiliated organization with a vote

in the ABA House of Delegates. In 1994, the ABA

available online at http-://www.americanbar.org/directories/policy.

html. Policies dated prior to 1988 are available from the ABA.

incorporated into its Standards for the Approval of

Law Schools a requirement that accredited law

schools not discriminate on the basis of sexual orien-

tation. In 1996, the ABA adopted a policy urging state

and local bar associations to study bias based on

sexual orientation within the legal profession and the

criminal justice system. And in 2002, the ABA

amended its constitution to prohibit state and local

bar associations that discriminate on the basis of

sexual orientation from having representation in the

House of Delegates.

In furtherance of these policies, the ABA partici-

pated as amicus curiae before this Court by filing

briefs in Romer v. Evans, 517 U.S. 620 (1996),

Boy Scouts of America v. Dale, 530 U.S. 640 (2000),

Lawrence v. Texas, 539 U.S. 558 (2003), and United

States v. Windsor, 133 S. Ct. 2675 (2013).

Finally, and of special relevance to the question

now before the Court, the ABA in 2010 adopted a

policy urging states, territories, and tribal govern-

ments to eliminate all legal barriers to civil marriage

between two persons of the same sex who are other-

wise eligible to marry. The resolution was based on

the ABA’s commitment to eliminating discrimination

against same-sex couples and their families and its

position that exclusion of same-sex couples from

marriage offends our constitutional commitment to

liberty and equality.

ABA members who represent same-sex couples

know from experience the numerous obstacles

same-sex couples face in ordering their affairs and

providing security for themselves and their children

in the most basic aspects of life: parenting, dealing

with sickness and old age, paying taxes, passing on a

legacy to their heirs, and the myriad other legal and

practical issues — several of which are discussed in

this brief, and some of which are set forth in Table 1:

Select Default Rights Conferred via Marriage and

State Law References to Spousal Status, which

appears in the Appendix to this brief (hereinafter,

“Table 1”). The ABA accordingly has a strong interest

in seeing that the question presented here is resolved

in a manner that recognizes the dignity and equality

of same-sex couples and that is consistent with the

fundamental principles that undergird the rule of

law: fairness, equality and liberty. For these reasons,

the ABA urges this Court to reverse the judgments

below.

SUMMARY OF ARGUMENT

The first question before the Court raises issues

that affect the daily lives of petitioners, their families,

and other same-sex couples and their families across

the country. Its answer will have an impact just as

wide, and in a very practical way, on the practice of

many attorneys.

ABA members have long struggled to help

clients avoid the discriminatory effects of state laws

that single out same-sex couples for exclusion from

marriage and its civil incidents. These include the

inability to adopt children jointly, resulting in a class

of children denied the legal protections afforded to the

children of married couples; the lack of an automatic

right to determine how to dispose of a deceased

partner’s remains or to receive property under the

law of intestacy; limits on a same-sex partner's ability

to direct medical decisions in the event of a partner's

incapacity; the denial of tax benefits such as the

ability to file joint income tax returns or to transfer

real property without transfer taxes; and lack of the

protection against legal compulsion to reveal a

spouse’s confidences. Table 1 in the Appendix high-

lights some of the ways in which different-sex mar-

ried couples are granted automatic spousal rights

and, conversely, the broad discrimination that occurs

when those rights are denied to same-sex couples

through exclusion from marriage.

ABA lawyers often advise their clients who are in

same-sex relationships on ways to mitigate and — to

the extent feasible — work around some of these

consequences. As described in this brief, however, the

array of legal work-arounds is imperfect, costly, and

complex — and as a result the rights of marmage

remain unavailable to many. Ultimately, these

mitigating measures cannot eliminate the concrete

legal and economic harms that flow from the laws

under review, which denigrate the dignity of same-sex

couples and their families and impose on them

an inferior status that violates the Constitution’s

guarantee of equal protection.

ARGUMENT

LAWS THAT DENY SAME-SEX COUPLES THE

RIGHTS AND OBLIGATIONS OF MARRIAGE

VIOLATE THE FOURTEENTH AMENDMENT’S

GUARANTEE OF EQUAL PROTECTION.

This case is about the “freedom to marry,”

which this Court has consistently described as “one of

the vital personal rights essential to the orderly

pursuit of happiness by free men.” Loving v. Virginia,

388 U.S. 1, 12 (1967); see also Lawrence, 539 U.S.

at 574 (“[Ojur laws and tradition afford constitutional

protection to personal decisions relating to mar-

riage ") M.L.B. v. S.L.J., 519 U.S. 102, 116

(1996) (choices about marriage are “sheltered by

the Fourteenth Amendment against the State’s

unwarranted usurpation, disregard, or disrespect”).

* See also Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 851 (1992); Turner v. Saflev, 482 U.S. 78, 95 (1987):

Zablocki v. Redhail, 434 U.S. 374, 384 (1978): Carev v. Popula-

tion Servs. Intl, 431 U.S. 678. 684-85 (1977); Moore v. City of E.

Cleveland, 431 U.S. 494, 499 (1977); Cleveland Bd. of Educ. v.

LaFieur, 414 U.S. 632, 639-40 (1974): Boddie v. Connecticut, 401

U.S. 371, 376, 383 (1971); Griswold v. Connecticut, 381 U.S. 479,

486 (1965); Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 541 (1942); Mever v. Nebraska. 262 U.S. 390, 399 (1923):

Maynard v. Hill, 125 U.S. 190, 205, 211 (1888).

As this Court has recognized, “fundamental rights

may not be submitted to vote; they depend on the

outcome of no elections.” W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 638 (1943). The Michigan

and Kentucky laws under review, and all similar

laws that deny same-sex couples the ability to enjoy

the rights, benefits, protections and obligations of

marriage, violate the “equal protection of the laws”

guaranteed by the Fourteenth Amendment.

A. ABA Members’ Experience Demonstrates

That Legal Substitutes for Marriage Rights

and Obligations Are Costly, Complex, and

Unequal.

The Michigan and Kentucky laws under review

are just two of the thirteen state constitutional

and statutory schemes currently in force that deny

marriage equality to same-sex couples (“marmnage

bans”). Fourteen more state marriage bans have

been enjoined over the objections of state officials.”

‘ In addition to Michigan and Kentucky, as of this filing

eleven other states (Arkansas, Georgia, Louisiana, Mississippi,

Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee,

and Texas) deny marriage to same-sex couples. An additional nine

states (Alabama, Alaska, Arizona, Florida, Idaho, Kansas, Mon-

tana, North Carolina, South Carolina) are actively defending their

marriage bans in federal district court or on appeal, but enforcement

of the laws has been enjoined. Another five states (Indiana. Okla-

homa, Utah, Virginia, Wisconsin) unsuccessfully sought to reverse

a final federal judgment finding their marriage bans unconstitu-

tional and were denied review by this Court. In a recent decision,

the District Court for the District of Nebraska preliminarily

enjoined that state’s marriage ban, effective March 9, 2015.

ABA lawyers have seen for decades the costs, in time,

money, and suffering that such marriage bans inflict

on same-sex couples, their children, and larger family

and social circles. ABA members have counseled

many thousands of clients in ways legally to re-create

the rights and obligations that accrue automatically

from marriage. But these efforts are at best incom-

plete solutions and only highlight the pervasive

difficulties imposed by exclusionary laws like those in

Michigan and Kentucky.

This brief addresses some of the daily harms

experienced by same-sex couples and highlights the

legal difficulty, and sometimes impossibility, of work-

ing around those harms. In Table 1 of the Appendix,

three of the issues presented by marriage bans are

highlighted for the twenty-seven states in which

marriage bans (A) are being contested in litigatiun or

(B) had been contested through final judgment in the

relevant federal court of appeals and where certiorari

was denied. These issues are: (1) rights of inher-

itance; (2) rights to direct the burial of a partner’s

remains; and (3) rights to make medical decisions.

The table also identifies the number of statutory and

constitutional provisions in each state that reference

terms such as “spouse,” “husband,” or “wife,” demon-

strating the importance of marriage and the status of

being married in each of these states. For example,

the Michigan statutory code and constitution contain

778 provisions that reference marriage or spouse

or use similar marriage-related terms. Of those

provisions, 453 contain a form of the word “spouse”;

138 contain the word “husband”; and 122 contain the

word “wife.” In Kentucky, the total number is 508.°

As shown in Table 1, the total across all twenty-seven

states is more than 17,000.

Legal work-arounds and substitutes for the

rights and benefits that are automatically granted

through marriage, to the extent they are available,

are potentially costly and require a same-sex couple

proactively to recognize the issue and consult a

lawyer. Some of these harms derive from federal law’s

reliance on state-law marital status,’ yet many are

* These numbers, and those for the other states studied,

were obtained by performing an electronic database (Westlaw)

search of the respective state’s statutes and constitutions for any

of the following keywords: marriage, married, marry, marrying,

marries, husband, wife, spouse, spouses, spousal, widow, widower,

widowed. Regulations and court rules were excluded. This meth-

odology is necessarily imperfect and may capture provisions that

are definitional, that mention the above terms in passing, or

that do not actually affect an individual’s rights or obligations.

Cf. Letter from Barry R. Bedrick, U.S. Gen. Accounting Office, to

Rep. Henry J. Hyde (Jan. 31, 1997) (explaining statute-counting

methodology in U.S. Gen. Accounting Office, GAO/OGC-97-16,

Defense of Marriage Act (1997)); Letter from Dayna K. Shah,

U.S. Gen. Accounting Office, to Sen. Bill Frist (Jan. 23, 2004)

(updating prior report).

* Among federal law benefits affected by state law marital

status are the Social Security spousal and survivorship benefits,

see 42 U.S.C. § 402 (2012) (offering spousal benefits during a

spouse’s life, as well as survivor benefits, and lump-sum death

benefits), and the right to leave under the Family Medical Leave

Act (“FMLA”), see 5 U.S.C. § 6382(aX1XC), (aX3) (2012); 29 U.S.C.

§ 2612(aX1KC), (aX3) (2012) (granting eligible employees leave

to care for a spouse who has a serious healthcare condition, or

(Continued on following page)

unique to state law or rest on state law’s incorpora-

tion of or coordination (particularly in the tax arena)

with federal law.

1. Parental Rights

Attorneys who advise same-sex couples with

children face profound obstacles in assisting those

couples in establishing legal bonds with their chil-

dren when those couples live in states that deny them

the protections of marriage. Indeed, the most basic

injury from military service). The Social Security Act limits

spousal benefits to persons who are found to be “validly married”

by a court of the state where they were “domiciled” at the time of

application or death. 42 U.S.C. §416(hxX1). Similarly, FMLA

benefits for same-sex spouses are limited to states that recognize

their marriages. See U.S. Dep’t of Labor, Wage & Hour Div., Fact

Sheet No. 28F (Aug. 2013). Same-sex couples who cannot marry

in their state are excluded from these benefits.

The executive branch has recently sought to extend benefits

to same-sex married couples. See Office of Mgmt. & Budget, Exec.

Office of the President, Budget of the United States Government.

Fiscal Year 2016, at 38 (2015), http://www.whitehouse.gov/

sites/default/files/omb/budget/fy2016/assets/budget. pdf (President's

proposed budget for 2016 would extend Social Security spousal

benefits to same-sex married couples whose state does not recog-

nize their marriage); Definition of Spouse Under the Family and

Medical Leave Act, 80 Fed. Reg. 9989, 9989-10,001 (Feb. 25.

2015) (to be codified at 29 C.F.R. pt. 825 and effective starting

March 27, 2015) (revising for FMLA purposes the definition of

spouse to recognize marriages based on “place of celebration”

instead of “state of residence”). Yet such measures would not

extend benefits to same-sex couples barred from marrying in

their own states and who cannot leave their states to be married

due to financial burdens or illness.

aspects of family life, such as being legally recognized

as the parent of one’s child, are beyond the reach of

many same-sex couples in such states, even those

who can afford legal counsel. For example, in many

states, the presumption that a child born to a married

couple is the child of both spouses is considered to

be “one of the strongest presumptions in the law.”

In re K.H., 677 N.W.2d 800, 806 (Mich. 2004) (quoting

People v. Case, 137 N.W. 55, 56 (Mich. 1912)); see

also Michael H. v. Gerald D., 491 U.S. 110 (1989)

(allowing presumption of legitimacy even where

husband was not the biological father); Susan Frelich

Appleton, Presuming Women: Revisiting the Presump-

tion of Legitimacy in the Same-Sex Couples Era, 86

B.U. L. Rev. 227, 232 (2006) (discussing history of the

presumption). By contrast, lawyers advising same-sex

couples who cannot marry must provide counsel that

takes into account the fact that the couple cannot

invoke the benefit of this marital presumption of

parenthood.

The inability to rely on the marital presumption

can have acute legal consequences for parents and

their children. If one partner is a biological parent of

a child, the other partner may be treated as a legal

stranger with no parental rights if the relationship

ends or the biological-parent partner dies. See, e.g.,

Harmon v. Davis, No. 297968 (Mich. Ct. App. July 8,

2010), available at http://publicdocs.courts.mi.gov:8 l/

COA/PUBLIC/ORDERS/2010/297968(22) order.PDF

(holding that an adult who is neither a biological

parent nor related through marriage or adoption is

not a parent for purposes of Michigan Child Custody

Act), leave to appeal denied, 800 N.W.2d 63 (Mich.

2011); see also 800 N.W.2d at 64 (Kelly, J., dissenting)

(observing how lower appellate court’s decision effec-

tively barred plaintiff from having child visitation

rights after end of a nineteen-year same-sex relation-

ship).

Such inequities cannot be fully remedied through

the assistance of legal counsel, particularly where, as

in Michigan, joint or second-parent adoption by same-

sex couples is not available or fully recognized by the

state. See, e.g., DeBoer v. Snyder, 772 F.3d 388, 424

(6th Cir. 2014) (Daughtrey, J., dissenting); Adar uv.

Smith, 639 F.3d 146 (5th Cir. 2011) (en banc) (uphold-

ing state practice excluding same-sex couple from

listing both parents’ names on adopted child’s birth

certificate because they are unmarried under the

law of the child’s birth state). In such states, non-

biological parents’ connection to their children remains

at the discretion of their former partners or a family

court judge. See, e.g., Truman v. Lillard, 404 S.W.3d

863, 869-70 (Ky. Ct. App. 2013) (affirming decision

that former same-sex partner lacked legal basis for

custody or visitation as she did not qualify as a “de

facto custodian”); Ross T. Ewing, Gay and Lesbian

Parents in Kentucky, Ky. Bench & B. Mag., Jan. 2014,

at 8, 9, available at http://www.kybar.org/documents/

benchbar_searchable/benchbar_0114.pdf (Kentucky’s

“marriage prohibitions|,] . lack of second-parent

adoption, and the out-moded provisions of [the] 1964

Uniform Paternity Act ensure that one partner will

legally be a non-parent to any children raised by [a

same-sex couple)”) (footnotes omitted).

Likewise, the unavailability of marriage to same-

sex couples punishes their children by depriving them

not only of access to a parent but also the benefit of

child-support and alimony payments. Whereas a

married different-sex spouse may not simply walk

away from his or her financial obligations to a family,

a non-biological parent from a same-sex relationship

who has been denied marriage and adoption rights

has no such legal obligation. See, e.g., Ewing, supra,

at 10 (in Kentucky, “[njo statutory or common-law

authority requires a non-parent to financially support

the legal children of another, absent perhaps an

enforceable contract to do so”). Such policies cannot

further the best interests of the children involved.

2. Death and Inheritance

In most matters of death and inheritance, the

law typically grants surviving spouses automatic

rights. For instance, all states grant surviving

spouses rights in inheritance, see infra app. Table 1,

following the policy that the deceased would have

wanted rights and property to pass to the surviving

spouse. Same-sex couples who cannot marry are

denied these automatic rights and must seek legal

counsel to craft substitute arrangements.

Another of these rights is the right to determine

the disposition of the physical remains of a deceased

partner. Under Michigan law, for example, the right

to make decisions about funeral arrangements and

the disposition of a decedent’s body presumptively

belongs to the decedent’s spouse. If there is no sur-

viving spouse, the right belongs to persons “related to

the decedent in the closest degree of consanguinity.”

Mich. Comp. Laws § 700.3206 (2014); cf Ky. Rev.

Stat. Ann. § 367.97501 (West 2014) (right to make

decisions regarding remains goes to the surviving

spouse, then adult children, then parents); see also

infra app. Table 1 (showing automatic spousal right

in all twenty-seven states).

The default rules in these statutory schemes

recognize a deep emotional investment in the disposi-

tion of a spouse’s remains. This Court has recognized

marriage to have “spiritual significance” to many

people, Turner v. Safley, 482 U.S. 78, 96 (1987), and

spiritual choices affect not only ceremonial aspects of

the marriage but the fundamental framework in

which a married couple chooses to live their lives,

raise children, and be laid to rest. The same consider-

ations hold true for committed same-sex partners

who cannot marry. Petitioner Love, for example, holds

a commonly shared fear that in the event of his or his

partner’s death, the surviving partner could be ex-

cluded entirely from planning or attending a funeral.

Affidavit of Timothy Love and Lawrence Ysunza in

Support of Plaintiffs’ Motion for Summary Judgment

para. 13, Love v. Beshear, No. 3:13-CV-750-JGH (W.D.

Ky. Apr. 18, 2014).

Same-sex couples are also denied automatic

inheritance rights granted to surviving spouses when

their spouse dies intestate. Michigan law, for exam-

ple, provides that a spouse inherits the entire estate

if no descendant or parent survives; where there are

additiona) surviving relations, the spouse inherits the

first $100,000 of an intestate estate plus one-half of

the remaining balance. Mich. Comp. Laws § 700.2102;

cf. Ky. Rev. Stat. Ann. § 391.030 (exempting first

$15,000 of estate for surviving spouse whether or not

will in place). Under intestacy regimes such as Michi-

gan’s, a committed same-sex partner and sometimes

the couple’s children (absent a biological relationship

or a valid adoption) will receive nothing.

Because intestacy rules apply as a default if a

decedent lacks a will, it is possible through careful

estate planning to navigate some of the legal risks

surrounding the death of one member of an un-

married same-sex couple.” However, even if an estate

plan is put in place successfully, the process is likely

to be a greater burden on the finances and time of

same-sex couples than for different-sex spouses.

Lawyers must be careful to account for the fact that

laws, rules, and forms may assume the ability to

marry, and develop a nuanced understanding of the

* For property intended to be jointly owned, unmarried

same-sex couples may be able to establish joint trusts and

include pour-over provisions to fund the trust in a will. However,

these must account for scenarios in which the relationship ends,

may incur gift taxes, and may subject the parties to one another’s

creditors’ claims and malpractice claims. See Joan Burda, ABA,

Gay, Lesbian and Transgender Clients: A Lawyer’s Guide 226-27

(2008).

differences in state regimes and complex family

arrangements that same-sex couples must negotiate.

In addition, wills of individuals in same-sex relation-

ships are particularly vulnerable to challenge, both

because of the lack of certainty concerning the legal

status of the couple’s relationship and because of the

risk of hostility toward same-sex partners from

family members and the judiciary. See, e.g., Camille

M. Quinn & Shawna S. Baker, Essential Estate

Planning for the Constitutionally Unrecognized Fami-

lies in Oklahoma, 40 Tulsa L. Rev. 479, 502-04 (2004)

(collecting examples of will challenges over property

shared by same-sex couples).

Same-sex partners may also be precluded from

filing wrongful death actions. Such suits account for

probable loss of financial support caused by a wrong-

ful death, and may compensate for the loss of advice,

assistance, and companionship. Restatement (Second)

of Torts § 925 & cmts. (a)-(b) (1979). The right to file

and benefit from such a suit is usually granted auto-

matically to spouses. See, e.g., Mich. Comp. Laws

§ 600.2922(3 (a) (surviving spouse entitled to damages

under a wrongful death action); Ky. Rev. Stat. Ann.

§ 411.130 (surviving spouse entitled to at least one-

half of damages). The same option, however, is gener-

ally not provided to unmarried, same-sex partners,

who face the same concerns following the wrongful

death of a partner. Some states provide limited

allowances for nonrelatives. See Mich. Comp. Laws

§ 600.2922 (allowing beneficiaries of an enforceable

will to benefit from a wrongful death suit). Others do

not. Cf. Ky. Rev. Stat. Ann. § 411.130 (allowing only

“kindred” to benefit from a suit).

Same-sex partners are also frequently ineligible

to receive survivorship benefits for spouses of public

safety officers. Kentucky provides a lump-sum pay-

ment of $80,000 to a spouse of any police officer,

corrections officer or member of the National Guard

who dies as a direct result of an act in the line of duty.

Ky. Rev. Stat. Ann. § 61.315. Kentucky law also

provides free tuition at a state-supported school for

children and spouses of firefighters or police officers

who die from duty-related injuries. Ky. Rev. Stat.

Ann. § 164.2841; cf. Mich. Comp. Laws §§ 390.1241-

.1243 (providing state college grants under the same

circumstances). These benefits provide comfort for

individuals with dangerous jobs serving their com-

munities, by extending financial security to their

families in case of their death. However, the surviving

same-sex partner of a public safety officer may be

excluded from these employment-based death benefits.

See, e.g., Glossip v. Mo. Dep't of Transp. & Highway

Patrol Emps. Ret. Sys., 411 S.W.3d 796 (Mo. 2013) (en

banc) (upholding denial of survivor benefits to same-

sex partner of highway patrol employee killed in the

line of duty).

3. Health and Well-being

By excluding same-sex couples from marriage,

Michigan and Kentucky also deny them the legal

means readily available to different-sex couples to

ensure their families’ health and well-being. For

example, same-sex couples face obstacles at times

when critical healthcare decisions are needed — when

one member of a couple unexpectedly falls ill or is

injured in an accident and is unable to communicate.

All states provide for an orderly determination of

persons authorized to make medical decisions for

such an individual in the event that they have not

completed legal documentation designating someone

to do so. The default order generally prefers a spouse

over other family members. See Samuel H. Grier &

Tad D. Ransopher, Tax Compliance & Estate Plan-

ning for Same-Sex Couples, 5 Est. Plan. & Communi-

ty Prop. L.J. 323, 365-66 (2013); see also, e.g., Ky. Rev.

Stat. Ann. § 311.631 (absent judicially appointed

guardian or attorney-in-fact, spouse has priority to

make healthcare decisions on behalf of patient,

followed by other relatives); infra app. Table 1

(twenty-five of twenty-seven states with challenged

marriage bans grant spouse some form of medical

decision-making power automatically). Because they

are not legal spouses, same-sex partners may be

excluded from medical decision-making for a partner.

While lawyers can assist individuals in drafting

powers-of-attorney and other legal designations to

work around the default order, clients who are mem-

bers of same-sex couples often have trouble exercising

the rights granted to them by such instruments.

Same-sex partners are sometimes prevented by hos-

pital staff from even seeing their partners, despite

having the legal designations granting them the right

to make healthcare decisions. For example, when Bill

Flanigan’s partner Robert Daniel fell ill and was

admitted to a trauma center in Maryland — prior to

Maryland’s adoption of marriage equality in 2013 —

Flanigan had power of attorney for healthcare deci-

sions but was not permitted to consult with doctors or

to see Daniel until biological family members arrived.

See Complaint, Flanigan v. Univ. of Md. Med. Sys.

Corp.. No. 24-c-02-001289 (Md. Cir. Ct. Balt. Feb. 27,

2002). By then Daniel was on life support — against

his wishes previously articulated to Flanigan — and

unconscious; he died three days later.”

Same-sex couples also face obstacles in obtaining

the health insurance coverage that different-sex

married couples often receive through an employer's

healthcare plan. An employee’s spouse and children

may often be enrolled in the employer’s plan and are

thus given the peace of mind that comes with such

coverage. Unmarried same-sex partners, on the other

hand, often do not qualify as spouses for such cover-

age, preventing them from accessing benefits avail-

able to their different-sex married co-workers. Thus,

same-sex couples are forced to turn to other, usually

* The case of Janice Langbehn and her partner, Lisa Pond,

brought this issue to national attention in 2007. Pond collapsed

while on a trip to Florida and was sent to the hospital, where

Langbehn, despite having faxed a power-of-attorney to the

hospital, was not permitted to be by Pond’s side until after she

had died. See Tara Parker-Pope, Kept from a Dying Partner's

Bedside, N.Y. Times, May 19, 2009, at D5, available at

http://www.nytimes.com/2009/05/19/ health/19well.html.

more costly, health insurance alternatives. See Tara

Siegel Bernard & Ren Lieber, The High Price of

Being a Gay Couple, N.Y. Times, Oct. 3, 2009, at Al,

available at http://www.nytimes.com/2009/10/03/your-

money/03 money.htm]l?pagewanted=all&_r=0. Or they

have to go without health insurance at all. Some

private employers, recognizing the inequity, extend

benefits to same-sex couples. While providing some

relief, these extensions are not treated like the cover-

age available to different-sex spouses for federal tax

purposes. This is because the federal tax code exempts

employer contributions to a spouse's health plan. See

26 U.S.C. § 106(a) (2012); Treas. Reg. § 1.106-1. But

for same-sex couples prohibited from marrying, the

value of the insurance coverage is treated as federally

taxable income. See Grier & Ransopher, Tax Compii-

ance, supra, at 333. In states that follow this result,

lawyers have no means of avoiding this unequal

consequence. See James Angelini, The Federal and

State Taxation of Domestic Partner Benefits, Tax

Analysts (Nov. 8, 2011), http://www.taxanalysts.com/

www/features.nsf/Articles/O3CEC7C26C62E94A85 257

9420059DC81?0penDocument.

4. Economic Protections

Providing tax advice for same-sex couples is

particularly complex, as the simple example of buying

and selling a home illustrates. Among other issues

arising in this context, same-sex couples may be

unable to transfer property without application of

real estate transfer taxes. For example, Michigan law

entirely exempts transfers of real estate between

spouses. Mich. Comp. Laws § 207.526(i). A home or

property can be jointly owned, and that arrangement

can be ended, without a tax penalty. Similarly, trans-

fers of title between spouses, and between former

spouses as part of a divorce, are exempted from real

estate transfer taxes in Kentucky. Ky. Rev. Stat. Ann.

§ 142.050(7 Xe).

Unmarried same-sex couples, however, are de-

prived of these tax exemptions. Jointly owned property

or property held with survivorship rights, unlike

property transferred under the marital deduction,

will incur a standard estate tax upon the death of

each partner. For example, Plaintiff Love and his

partner face the prospect of inheritance taxes upon

either of their deaths. Affidavit of Timothy Love and

Lawrence Ysunza in Support of Plaintiffs’ Motion for

Summary Judgment para. 11, Love v. Beshear, No.

3:13-CV-750-JGH (W.D. Ky. Apr. 18, 2014). Without

careful estate planning by a lawyer — often requiring

collaboration with a tax attorney — an estate tax on

jointly held property may render a surviving partner

solely responsible for the tax, often resulting in

financial difficulties and sometimes the forced sale of

a home. See, e.g., Burda, supra, at 242 (describing

difficulties caused by inability to take advantage of

the federal unified estate and gift tax credit).

The legal work-arounds available for this and

other estate planning challenges — just to achieve the

protections granted married different-sex couples by

default — are complex. Some same-sex couples resort

to establishing tenancies-in-common or “Transfer

on Death” deeds for their home. See, e.g., Affidavit

of Timothy Love and Lawrence Ysunza in Support

of Plaintiffs’ Motion for Summary Judgment paras.

9-10, Love v. Beshear, No. 3:13-CV-750-JGH (W.D. Ky.

Apr. 18, 2014). Other alternatives require same-sex

couples to apply the law in ways it was never intend-

ed to function. For example, some same-sex couples

have turned to adult adoption, in which one member

of the couple adopts the other, in order to secure

inheritance rights for the other. See Arthur S. Leonard,

Lesbian and Gay Families and the Law: A Progress

Report, 21 Fordham Urb. L.J. 927, 948-51 (1994). The

awkwardness of this solution demonstrates the harm-

fulness of the current de jure discrimination against

same-sex couples inflicted by the marriage bans.

Moreover, these options often require the repeated

(and costly) attention of attorneys, who must have a

specialized understanding of how the law affects

same-sex couples in ways that the couples themselves

may not fully appreciate, which many same-sex cou-

ples cannot afford. Oftentimes same-sex couples do

not understand the obscure negative tax consequences

of the legal treatment of their relationship until too

late, when lawyers can offer no assistance.

Income taxes are similarly difficult for same-sex

couples. Unmarried same-sex couples may not file

joint state tax returns in Kentucky or Michigan and

are therefore excluded from beneficial tax treatment

granted to similarly situated married couples. These

benefits often reduce tax burdens on married couples,

who share incomes and certain expenses relating to

child care and a joint household. Filing jointly as a

married couple in Kentucky, for example, allows a

couple to use their joint income as the basis for calcu-

lating the “Family Size Tax Credit,” which offers a

100% tax credit if their combined modified gross

income is at or below federal poverty level for their

family size. In 2014, for instance, an individual filer

could receive the credit only if his or her income was

under $11,670, regardless of whether he or she was

supporting a partner. A married couple in the same

situation would be eligible if their combined income

was $15,730. Ky. Rev. Stat. Ann. § 141.066(4); Ky.

Dep’t of Revenue, 2014 Individual Income Tax Up-

dates & Tips, Ky. Tax Alert, Jan. 2015, at 1, 1. This

credit provides married couples with greater flexibil-

ity to juggle responsibilities, and is largely responsible

for the low tax burden on the lowest-income house-

holds in Kentucky. Blue Ribbon Comm’n on Tax

Reform, Report by the Blue Ribbon Commission on

Tax Reform to Governor Steve Beshear app. L, at 76

(2012).

In addition, under state and federal law, families

are ineligible for certain benefits if the parents

cannot marry or establish a legal relationship to one

another’s children. Michigan’s Earned Income Tax

Credit, for example, is calculated based on a family’s

eligibility under the federal Earned Income Tax

Credit (“EITC”). Mich. Comp. Laws § 206.272

(amended pending conditions by 2014 Mich. Pub. Acts

469). The amount of the EITC increases for families

with lower incomes and a higher number of children.

However, the calculation accounts only for a “qualify-

ing child,” a definition that does not encompass

children of an unmarried partner who do not share a

legal relationship with the filer. See 26 U.S.C. §§ 32,

152(c) (2012 & Supp. I 2013). The effect of these

rules, together with the laws under review, is to

reduce the eligibility of same-sex partners and their

families for tax credits that are routinely relied upon

by different-sex married couples and their children.

5. Privilege

The laws under review also interfere with the

“confidence which should subsist between those who

are connected by the nearest and dearest relations of

life.” Stein v. Bowman, 38 U.S. 209, 223 (1839). In all

states, including in Michigan and Kentucky, rules of

evidence protect spousal communications from disclo-

sure because courts and legislators have recognized

the “wise public policy . to preserve with sacred-

ness the confidences of the marriage state.” Carter v.

Hill, 45 N.W. 988, 989 (Mich. 1890). See, e.g., Mich.

Comp. Laws § 600.2162(4) (“[A] married person or a

person who has been married previously shall not be

examined in a civil action or administrative proceed-

ing as to any communication made between that

person and his or her spouse or former spouse during

the marriage.”); Ky. R. Evid. 504(b) (“An individual

has a privilege to refuse to testify and to prevent

another from testifying to any confidential communi-

cation made by the individual to his or her spouse

during their marriage.”). In addition, many states

prevent spouses from being forced to testify against

the other. For example, under Kentucky’s Rules of

Evidence, a spouse “has a privilege to refuse to testify

against [his or her spouse] as to events occurring

after the date of their marriage.” Jd. R. 504(a); cf.

Mich. Comp. Laws § 600.2162(7) (“[A) married person

shall not be examined in a criminal prosecution as

to any communication made between that person and

his or her spouse without the consent of the

person to be examined.”). This privilege “furthers the

important public interest in marital harmony.”

Trammel v. United States, 445 U.S. 40, 53 (1980).

Same-sex couples in Michigan and Kentucky are

not entitled to invoke these privileges. As a result,

individuals in same-sex relationships may be com-

pelled to testify against their partners in cases impli-

cating profound liberty interests. Cf Commonwealth

v. Clary, No. 11-CR-3329 (Ky. Cir. Ct. Sept. 23, 2013),

available at http-//ftpcontent.worldnow.com/wdrb/news/

bobbijo.pdf (ordering same-sex partner of defendant

charged with murder to testify against her partner

because the couple, although having entered into a

civil union in Vermont in 2004, was not married

and therefore not entitled to spousal privilege). No

amount of legal counseling can create a substitute for

this protection.”

" Relatedly, same-sex couples often come to a lawyer

seeking advice together, but this can present ethical concerns

(Continued on following page)

Notably, if permitted to stand, the current

state-by-state patchwork of laws related to marriage,

with some states allowing same-sex couples to marry

and other states prohibiting them from doing so, also

means the judiciary will likely face vexing choice-of-

law applications in cases involving couples from a

state that recognizes marriages of same-sex couples

and activities in a state where the marriage is not

recognized but the privilege is. See Katherine T.

Schaffzin, Beyond Bobby Jo Clary: The Unavailability

of Same-Sex Marital Privileges Infringes the Rights of

So Many More Than Criminal Defendants, 63 U. Kan.

L. Rev. 103, 127-28 (2014) (discussing complexities

inherent in competing legal regimes where marriages

of same-sex couples are recognized only in certain

states).

related to potential conflicts. See Burda, supra, at 6-7 (noting

that, among other challenges, an attorney may not be able to

keep one partner’s confidences when adverse to the other's

interest). Because the laws of Kentucky and Michigan treat

same-sex couples as “legal strangers,” lawyers must “take extra

steps to ensure that clients understand they are entitled to

separate counsel. the advantages of individual counsel, and the

disadvantages of both using the same lawyer.” Id.:; see also

Model Rules of Prof’1] Conduct R. 1.7(bX4) (2013) (allowing joint

representation with informed consent); Mich. Rules of Prof’

Conduct R. 1.7(a) (same); Ky. Sup. Ct. R. 1.7(b) (same). If the

lawyer concludes that joint representation is not ethically

permissible or otherwise advisable, same-sex couples must bear

the additional cost of engaging a second lawyer.

6. Ethical Obligations

The laws under review also have the unintended

effect of withdrawing certain obligations from same-

sex couples that are crucial to government integrity,

as the Court recognized in Windsor. See 133 S. Ct. at

2695. State legislators in Kentucky, for example,

must file a statement disclosing certain financial

information for themselves and their spouses. Ky.

Rev. Stat. Ann. § 6.787; see also id. § 114.050 (requir-

ing similar for certain executive officers, candidates,

public servants, and their spouses). In addition, a

legislator or his or her spouse can be criminally liable

for soliciting or accepting “anything of value” from a

lobbyist. Jd. § 6.751; see also id. § 114.045 (“No public

servant, his spouse, or dependent child knowingly

shall accept any gifts or gratuities, including travel

expenses, meals, alcoholic beverages, and honoraria,

totaling a value greater than twenty-five dollars

($25) in a single calendar year from any person or

business. .”).

Similarly, Michigan’s Regulatory Boards and

Commissions Ethics Act requires members of state

regulatory boards to disclose any association or

interest — including their own and those of a spouse —

in matters that appear before their board and refrain

from voting on the matter. Mich. Comp. Laws

§ 15.483(1\a) (“Disclosure is also required if a spouse,

child, or stepchild of a board member is a director,

officer, direct or indirect shareholder, or employee of

an entity under consideration before the board.”).

Such strictures do not apply to same-sex couples

under Kentucky or Michigan law. See Ky. Const.

§ 233A; Ky. Rev. Stat. Ann. §§ 402.005, .020(1)(d),

.040(2), .045; cf. Mich. Const. art. I, § 25; Mich. Comp.

Laws §§ 551.1-.4. In addition to undermining the

dignity of same-sex couples, this undermines the

good-governance purposes of these laws.”

B. Legal Substitutes Cannot Cure the Dis-

criminatory Effects of the Marriage Bans.

As the discussion above illustrates, attorneys can

sometimes help same-sex couples create through legal

means an approximation of the particular rights and

benefits that flow automatically from marriage. But

even when these work-arounds are not complex or

costly, and even where they can usually obtain the

desired result, they are necessary only because mar-

riage bans create obstacles that different-sex couples,

through marriage, do not have to navigate. And,

regardless of their effectiveness, these partial solu-

tions cannot cure the discriminatory effects of the

marriage bans on same-sex couples and their families

" Federal ethics statutes. enforceable against same-sex

married couples in light of Windsor, have no effect on same-sex

couples who cannot marry. See U.S. Office of Gov't Ethics, LA-

13-10, Effect of the Supreme Court’s Decision in United States v.

Windsor on the Executive Branch Ethics Program 2 (2013) (the

terms “marriage,” “spouse,” and “relative” will not incorporate “a

federal employee in a civil union, domestic partnership, or other

legally recognized relationship other than a marriage”).

that result from society’s denial of its formal recogni-

tion of a couple’s commitment.

Civil marriage is more than a gateway to a vast

array of benefits and obligations. As this Court stated

in Windsor, civil marriage fundamentally alters an

individual’s relationship to society. 133 S. Ct. at 2692-

93. The interests asserted by the states as supporting

marriage bans, t.e., in promoting responsible procrea-

tion and in democratic decision-making, DeBoer, 772

F.3d at 404-08, are insufficient to justify excluding

same-sex couples from civil marriage and the societal

recognition of their relationship that it brings. This

exclusion results in the creation of two classes of

citizens: those who can avail themselves of the right

to marry and receive its attendant rights and respon-

sibilities, and those who are deemed unfit because of

their sexual orientation and therefore are denied the

equal protection of the iaw.

As ABA attorneys have experienced, and as the

Court observed in Windsor, this unequal treatment of

same-sex couples “demeans the couple, [a}nd it

humiliates tens of thousands of children now being

raised by same-sex couples.” 133 S. Ct. 2675, 2694

(2013). Cf. Brown v. Bd. of Educ., 347 U.S. 483, 494

(1954) (noting separation of students by race “gener-

ates a feeling of inferiority as to their status in the

community”).

Former ABA President and soon-to-be Associate

Justice Lewis F. Powell, Jr., stated at his confirma-

tion hearings nearly forty-five years ago that the

Equal Protection Clause is one of the great “freedom

clauses” of the Constitution, and this Court, “as the

final authority, has the greatest responsibility to

uphold the rule of law and to protect and safeguard

the liberties guaranteed all of our people by the Bill of

Rights and the Fourteenth Amendment.” Nominations

of William H. Rehnquist and Lewis F. Powell, Jr.:

Hearings Before the S. Comm. on the Judiciary, 92d

Cong. 219, 223 (1971) (statement of Lewis F. Powell,

Jr.). The cases presented here call upon this Court

once again to exercise this important and historic

responsibility.

CONCLUSION

Amicus curiae American Bar Association respect-

fully urges that the judgments of the Sixth Circuit be

reversed.

Of Counsel: WILLIAM C. HUBBARD

Davip A. O’NEIL Counsel of Record

STEVEN S. MICHAELS President

DAVID SARRATT AMERICAN BAR ASSOCIATION

HARRIET M. ANTCZAK 321 North Clark Street

RYAN M. KUSMIN Chicago, IL 60654

BENJAMIN D. MARGO (312) 988-5000

abapresident@americanbar.org

APPENDIX

Table 1

Select Default Rights Conferred via Marriage

and State Law References to Spousal Status

The following table identifies three issues as

to which laws in the listed states provide default

rights to spouses.' The table also provides the

statutory reference for each of these rights. The

fourth column identifies the number of provisions in

the respective state’s constitution or statutes that

contain any of the following keywords: marriage,

married, marry, marrying, marries, husband, wife.

spouse, spouses, spousal, widow, widower, widowed.’

1 With regard to the third column, state statutes pertaining to

medical decision-making for incapacitated persons vary. Some

provide for a designee or spouse to consent to general medical

treatment; others are limited to withdrawing life-sustaining

treatment or other specific situations, such as consenting to

experimental treatments in life-threatening emergencies. The

third column indicates where a state statute gives spouses

default medical decision-making power in any of these

circumstances.

2 These numbers were obtained by performing an electronic

database (Westlaw) search of the relevant statutes and state

constitutions for any of these keywords. Regulations and court

rules were excluded. As stated in footnote 6 of the Brief, supra,

this methodology is necessarily imperfect and may capture

provisions that are definitional, that mention the above terms

in passing, or that do not actually affect an individual's rights

or obligations.

Spousal Statutory

right to Spousal | Spousal | references

inherit right to | medical | to spouse,

under dispose | decision- | marriage,

intestate of making related

State | succession | remains power terms

AL Yes' Yes‘ Yess 701

AK Yes* Yes’ Yes* 440

AZ Yes* Yes! Yes! 581

AR Yes'? Yes'3 Yes" 617

FL Yes" Yes'6 Yes’ 648

3 Ala. Code § 43-8-41 (2014).

4 Jd. § 34-13-11(a)(3).

* Id. § 22-8A-11(d)(2).

® Alaska Stat. § 13.12.102 (2014).

7 Id. § 13.75.020(a)(3).

8 Id. § 13.52.030(c)(1).

* Ariz. Rev. Stat. Ann. §§ 14-2102, -2301 (2014).

1” Jd. § 36-831(A)(1).

1! Td. § 36-3231(A)(1).

12 See Ark. Code Ann. § 28-9-214(2). (2014) (surviving spouse

is entitled to a share by dower and curtesy, but descendants

otherwise have priority).

13 Td. § 20-17-102(d)(1(C).

14 Jd. §§ 20-9-602(10), 20-17-214(a)(3).

15 Fla. Stat. §§ 732.101, .102 (2014).

Spousal Statutory

right to | Spousal | Spousal | references

inherit right to | medical | to spouse,

under dispose | decision- | marriage,

intestate of making related

State | succession | remains | power terms

GA Yes'8 Yes'* Yes 600

ID Yes?! Yes”? Yes23 492

IN Yes™ Yes* Yes 802

KS Yes?’ Yes?" Yes” 532

KY Yes* Yes! Yes” 508

16 Id. § 497.005(39)(c).

17 Id. § 765.401(1)(b).

18 Ga. Code Ann. § 53-2-1(c)(1) (2014).

19 Td. § 31-21-7(b)(3).

20 Jd. § 31-9-2(a){2).

21 Idaho Code Ann. § 15-2-102 (2014).

22 Jd. § 54-1142(1)(d).

28 Td. §§ 39-4504(1)(c), -4514(3).

24 Ind. Code § 29-1-2-1(b) to (c) (2014).

25 Id. § 29-2-19-17(3).

26 Jd. § 16-36-1-5(a)(2).

27 Kan. Stat. Ann. § 59-504 (2014).

28 Id. § 65-1734(a)(2).

29 Id. § 65-4974(b)(1).

Spousal Statutory

right to | Spousal | Spousal | references

inherit right to | medical | to spouse,

under dispose | decision- | marriage,

intestate of making related

State | succession | remains power terms

LA Yes™ Yes* Yes* 1,073

MI Yes* Yes” Yes* 778

MS Yes™ Yes Yes" 479

MO | Yes* Yes*3 Yes 739

30 See Ky. Rev. Stat. Ann. §§ 391.010(4), .030 (West 2014)

(spouse is entitled to dower share. but other relatives otherwise

have priority).

%) Id. § 367.97501(1)b).

42 Id. § 311.629. .631(1)(c).

33 La. Civ. Code Ann. arts. 880. 889-90, 894 (2014).

% La. Rev. Stat. Ann. § 8:655(A)(1) (2014).

% Td. §§ 40:1299.53(A)(4), .58.5.

3% Mich. Comp. Laws §§ 700.2101-.2102 (2014).

87 Id. § 700.3206(2).

3® See id. §§ 333.5653(g), .5655(b)-(d) (identifying “member[s]

of the immediate family” as surrogates).

*4 Miss. Code Ann. § 91-1-7 (2014).

40 Jd. § 73-11-58(1)(b).

#1 Id. § 41-41-211(2)(a).

42 Mo. Rev. Stat. § 474.010(1) (2014).

$3 Id. § 194.119.2(3).

Spousal Statutory

right to | Spousal | Spousal | references

inherit right to | medical | to spouse.

under dispose | decision- | marriage,

intestate of making related

State | succession | remains power terms

MT Yes* Yes** Yes 547

NE Yes** Yes*9 No 586

NC Yes" Yes** Yes*s 688

ND Yess Yess Yes* 564

OH Yes‘? Yes5* Yes** 933

“4 Id. § 431.064.

45 Mont. Code Ann. § 72-2-112 (2014).

46 Id. § 37-19-904(2)(c).

47 Td. § 50-9-106(2)(a).

«8 Neb. Rev. Stat. § 30-2302 (2014).

49 Td. § 30-2223(2(b).

50 Designated decision-maker required. See id. § 30-3401(1)

to (2).

51 N.C. Gen. Stat. § 29-14 (2014).

82 Jd. § 130A-420(b)(1).

53 Id. § 90-21.13(c)(4).

54 N.D. Cent. Code § 30.1-04-02 (2014).

55 Td. § 23-06-03(1) (duty of burial falls to husband or wife).

5 Jd. § 23-12-13(1Xc).

57 Ohio Rev. Code Ann. § 2105.06 (West 2014).

Spousal Statutory

right to Spousal | Spousal | references

inherit right to | medical | to spouse,

under dispose | decision- | marriage,

intestate of making related

State | succession | remains | power terms

OK Yes Yes®! Yes® 610

SC Yes® Yes* Yes® 481

SD Yes* Yes* Yes*® 506

TN Yes Yes No! 613

58 Jd. § 2108.81(B)(1).

59 Id. § 2133.08(B)(2).

® Okla. Stat. tit. 84, § 213 (2014).

61 Jd. tit. 21, § 1158(3).

6° Jd. tit. 63. § 3102A(A)(1).

68 S.C. Code Ann. § 62-2-102 (2014).

64 Td. § 32-8-320(A)(2).

® Id. § 44-66-30(A)(4).

66 §.D. Codified Laws § 29A4-2-102 (2014).

&7 Jd. § 34-26-16(1) (duty of burial falls to husband or wife).

68 Td. § 34-12C-3.

** Tenn. Code Ann. § 31-2-104(a) (2014).

70 Id. § 62-5-703(2).

7! Tennessee does not grant a spouse a default right in this

setting. See id. § 68-11-1806(c)(3)(A) (physician must identify a

surrogate based on enumerated factors, including a general

preference for spouses).

Spousal Statutory

right to Spousal | Spousal | references

inherit right to | medical | to spouse,

under dispose | decision- | marriage,

intestate of making related

State | succession | remains | power terms

TX Yes” Yes Yes” 1,236

UT Yes* Yes7 Yes”? 535

VA Yes™ Yes’® Yeste 623

WI Yess! Yes® Yes*3 724

72 Tex. Estates Code §§ 201.002-.003 (2014).

73 Tex. Health & Safety Code § 711.002(a)(2) (2014).

74 Id. § 166.039(b)(1).

75 Utah Code Ann. § 75-2-102(1) (West 2014).

76 Jd. § 58-9-602(2).

77 Jd. §§ 75-2a-108(1)(b)(i), -110(2)(b).

7® Va. Code Ann. §§ 64.2-200(A)(1), 64.2-201 (2014).

7 See id. § 54.1-2807(B) (authority and directions of next of

including spouse, shall govern disposition): id. § 54.1-

2807.01 (next of kin may petition court in the event of

kin,

disagreement).

80 Id. § 54.1-2986(A\2).

81 Wis.

Stat.

partners).

82 Id. § 154.30(2)(a)(2).

83 Id. § 50.06(3a), (5) (including domestic partners).

§ 852.01(1)(a) (2014) (including domestic

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