Leaders of the Connecticut Bar Association were on the winning side of the legal fight for federal benefits for same-sex couples last week, when a divided U.S. Court of Appeals for the Second Circuit held that a federal law defining marriage as solely between a man and a woman is unconstitutional.
CBA President Barry Hawkins was pleased that an amicus brief in which his and other Connecticut bar groups requested “heightened equal protection scrutiny for gay and lesbian couples” was mentioned in the Windsor v. United States decision. In August, Hawkins raised some eyebrows among bar members who did not think the CBA should step into the fray when he urged the Board of Governors sign onto the amicus.
“Naturally, I’m thrilled,” said Hawkins, a partner at Shipman & Goodwin in Stamford. “The fact that the court seized upon the heightened scrutiny standard was very significant, because that was the main part of the brief that the CBA participated in.”
Groups that receive “heightened scrutiny” are those that receive enhanced legal protection from discrimination. These groups include racial minorities, women, handicapped people and members of religious groups.
The Second Circuit was the second federal appellate court to rule sections of the Defense of Marriage Act unconstitutional. Last year, the Boston-based First Circuit also struck down a section of the act that denied same-sex partners a range of federal benefits, including those afforded under the tax code.
Tim Fisher, a partner at McCarter & English in Hartford who signed the amicus brief as the attorney of record for the CBA, said the Second Circuit decision is important, because “we’re seeing a trend.”
The case is expected to be sent to the U.S. Supreme Court for review, along with the First Circuit ruling in Gill v. Office of Personnel Management. “We have little doubt that there will be a comparable petition to appeal the Windsor case,” said Fisher. “And both are ripe for the Supreme Court to weigh in on.”
The Second Circuit case, which stemmed from a Manhattan federal court decision, was also being closely followed by Connecticut lawyers because of its similarities to a July decision by U.S. District Judge Vanessa Bryant in Connecticut. That case, too, was appealed to the Second Circuit. The CBA has approved a similar amicus brief for the Connecticut case, though no hearing date has been set. There’s widespread speculation the case will simply become part of the Supreme Court challenge.
In the Oct. 18 ruling, a majority of the three-judge Second Circuit panel, led by Chief Judge Dennis Jacobs, concluded that the definition of marriage as only existing between a man and woman violated the Equal Protection Clause.
The Second Circuit looked at the history of discrimination against gays and lesbians, their relative lack of political power and other factors in finding that a form of heightened scrutiny —”intermediate scrutiny” — applies. In dissent, Judge Chester Straub argued that if the historical understanding of marriage in the United States is to be changed, “I believe it is for the American people to do so.”
Thea Spyer and Edith Schlain Windsor, now 83, were married in Canada in 2007 in a union that was later recognized by New York. When Spyer died in 2009, she left everything to Windsor, who was forced to pay $353,000 in estate taxes.
When Windsor sued in New York, hers became one of many cases that challenged DOMA, a list that includes Pederson v. Office of Personnel Management, which was filed in Connecticut by six same-sex couples and a widower from Connecticut, Vermont and New Hampshire. The cases all challenged DOMA because plaintiffs were denied federal tax, Social Security and family medical leave benefits.
In the middle of the lawsuits, the Obama administration last year notified Congress that it would no longer defend the DOMA cases. So the Republican caucus in the U.S. House of Representatives hired its own legal counsel to defend DOMA challenges across the country. According to the National Law Journal, an affiliate of the Connecticut Law Tribune, House Republicans have paid the Washington law firm Bancroft nearly $1.5 million in the past two years to have former solicitor general Paul Clement defend DOMA in federal courts. So far, they have lost all six decisions in district or circuit cases.
In arguing the Second Circuit case in late September, Clement stressed that DOMA was enacted with strong majorities in both houses of Congress and was signed into law in 1996 by President Bill Clinton. In court briefs, Clement wrote that DOMA was not meant to invalidate any marriages, but “simply asserts the federal government’s right as separate sovereign to provide its own definition which governs only federal programs and funding.”
Back in July, Judge Bryant of Connecticut ruled that DOMA violated the 14th Amendment’s equal protection clause. While that case is still pending, Hawkins said the New York ruling now extends federal benefits to same-sex couples in New York, Vermont and Connecticut. “The law of our circuit is established by this case until and unless the Supreme Court takes another position,” Hawkins said.
Connecticut Attorney General George Jepsen, who also joined the amicus brief against DOMA, called the ruling in the New York case an important step toward winning equal-rights for same sex couples. “As I’ve said before, discrimination based on sexual orientation has no place in our society or under our laws,” Jepsen said. “Today’s ruling is another important step toward affirming the rights of all married couples in the state of Connecticut.”
Jepsen joined many bar groups and attorney generals from neighboring states in the amicus brief which supported the idea that same sex couples should be afforded heightened scrutiny.
“I appreciated the opportunity to partner with our fellow states — New York and Vermont — which Connecticut joined in expressing the shared belief of our states that same-sex couples should be treated as equals under our law,” Jepsen said. “I applaud the court for this important decision.”
Brian Rice, an associate with McCarter & English and member of the CBA Board of Governors which supported joining the amicus in the New York case, said he was pleased to see the CBA was “on the right side of the issue.”
“It’s a very important step toward having marriage equality for same-sex couples,” Rice said.•