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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0308%3A018

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

preemie .

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
e

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

i
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?

33

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

Iv

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
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STATE CODES AND STATUTES
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Ala. Code

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TABLE OF AUTHORITIES — Continued

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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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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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Mich. Comp. Laws
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ix

TABLE OF AUTHORITIES — Continued

Page
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Mo. Rev. Stat.

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Mont. Code Ann.
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N.C. Gen. Stat.

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TABLE OF AUTHORITIES — Continued

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Neb. Rev. Stat.

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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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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

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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.

EF Sparta i nenissisisisnebnianiekeincnnseitetnmeteniimsicmaia saan 7a

§ 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

1

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).

2

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)

3

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.

4

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.

6

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

7

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).

8

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.

9

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”;

10

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)

ll

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.

12

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

13

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

14

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

15

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

16

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).

17

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

18

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

19

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

20

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.

21

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

22

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

23

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,

24

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

25

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

26

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)

27

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.

28

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.”).

29

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”).

30

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

31

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.

la

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).

2a

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).

3a

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).

4a

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).

5a

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).

6a

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).

7a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0308%3A018. Public record. Not legal advice.