Oklahoma Same-Sex Marriage Opinion Summarized

abomination   In a landmark ruling, a federal judge in Oklahoma strikes down the Oklahoma Constitution’s ban on same-sex marriage.  Judge Terence C. Kern found on Tuesday that denying same-sex couples the right to a marriage license to be an “arbitrary, irrational exclusion. . . from a governmental benefit” which denies them equal protection under the law.  The Tulsa County Court Clerk defended the constitutional ban on several grounds, but the court found no rational basis for any of the clerk’s claims.

In 2004, Oklahoma citizens voted in favor of an amendment to the Oklahoma Constitution banning same-sex marriage.  Article 2, Section 35 provides in part:

“A. Marriage in this state shall consist only of the union of one man and one woman.  Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The constitutional amendment passed by a three-to-one margin.

Plaintiffs Mary Bishop and Sharon Baldwin sought a marriage license from Tulsa County Court Clerk Sally Howe Smith. Smith refused them a marriage license based upon their status as a same-sex couple. Bishop and Baldwin  challenged Part A of Article 2, Section 35, of the Oklahoma Constitution as violating their equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.

The Court used a “rational basis” test for determining whether Bishop and Baldwin were denied equal protection under the law.  The Court noted that “classifications against homosexuals and/or classifications based on a person’s sexual orientation are not subject to any form of heightened review in the Tenth Circuit.”  The Court then analyzed the various bases suggested by defendant Smith for discrimination against same-sex couples, and found none of them rationally related to a legitimate government purpose.

Promoting Morality – Promoting or upholding morality was one justification offered by the state to the public before passage of the constitutional amendment. The law requires that state officials demonstrate goals other than promoting one view of morality to justify discrimination against certain citizens.  Citing several Supreme Court cases striking down laws criminalizing homosexual conduct or discriminating against homosexuals, the Court noted, “moral disapproval, without any other asserted state interest, is not a “sufficient rationale . . . to justify a law that discriminates among groups of persons.” (Opinion, p. 55)

Encouraging responsible procreation and child-rearing – The Court accepted that Oklahoma has a legitimate interest in promoting procreation within marriage, to reduce out-of-wedlock births and the resulting economic burden on the state.  The state failed to show that discriminating against same-sex couples somehow furthers that goal.  Just because discrimination is historical does not make it constitutional when challenged at a given moment.  The court found no rational basis for discriminating against same-sex couples when opposite sex couples who cannot or choose not to have children can marry, stating,

marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.”  (Opinion, p. 58)

Same-sex couples are being subjected to a ‘naturally procreative’ requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it.”  (Opinion, p. 61)

Steering naturally procreative relationships into stable unions – Defendant Smith argued that opposite-sex, married biological parents are the “ideal” environment for child-rearing, and the state has a legitimate state interest in promoting the ideal environment. Without challenging the state’s premise, the Court determined that denying same-sex couples the benefit of marriage does nothing to promote that interest.  Opposite-sex couples who procreate and stay married can still have unstable, high-conflict, violent family relationships.  The Court found no evidence that denying same-sex couples the right to marry will help keep opposite-sex marriages intact and healthy, noting that “excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country.” (Opinion, p. 63)

Negative impact on marriage – Defendant Smith argued the State has an interest in avoiding redefinition of marriage that would necessarily change the institution and could have serious unintended consequences.  The Court dismissed this argument as “impermissibly tied” to the moral disapproval of same-sex couples as a class.

With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. . . ‘Preserving the traditional institution of marriage,’ which is the gist of Smith’s final asserted justification, ‘is just a kinder way of describing the State’s moral disapproval of same-sex couples.’” (Opinion, p. 65)

Judge Kern concluded that Oklahoma’s ban on same-sex marriage violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.  He noted the clear “rhetorical shift” taking place at the federal level.

Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently.” (Opinion, p. 66)

Rather than buck the shift, Judge Kern followed it.

Noting the U. S. Supreme Court stay of a similar decision out of Utah, the Court stayed the effect of its Order pending review by the 10th Circuit Court of Appeals.  There will be no rush to the courthouse for same-sex marriage licenses in Oklahoma as occurred in Utah.

You will find a link to the opinion here.  Please share your thoughts on this case, and its relation to other same-sex marriage cases, in the comments section below.

by David A. Tracy

Obamacare And Divorce – It’s Still Complicated

Senate Passes Insurance Industry Aid Bill

(Photo credit: Mike Licht, NotionsCapital.com)

The U S Supreme Court largely upheld the Patient Protection and Affordable Care Act of 2010 (ACA) last week.  The ACA provides more options in coming years for divorcing families who face health care choices.  However, many of the means to the end of making health care more  available and affordable remain to be set. The major goals of the ACA, and its promise for the divorced population, still hang in the balance.

Over the course of ten years, nearly half of the non-elderly population will go without health insurance for some time (U.S. Dept. of Treasury 2009).  Many of these people lose coverage due to a divorce. A lack of cost-effective alternatives often leads to gaps in health insurance.

The traditional method of continuing coverage for the last generation is COBRA (named for the Consolidated Omnibus Budget Reconciliation Act which created it).  COBRA allows someone no longer eligible for group coverage to continue on the policy as an individual for up to 36 months after a divorce.  The employer contributes nothing to the coverage cost, making it cost-prohibitive for many.

If COBRA coverage is not practical, one historically had to explore other alternatives.

  • Find a job with a group health benefit.
  • Buy coverage in the individual health insurance market.
  • Qualify for a public program such as Medicaid or the Children’s Health Insurance Program (SoonerCare in Oklahoma).
  • Go without insurance, cross your fingers and hope for good health.

Those with pre-existing conditions faced added challenges, as they are thrown into high-risk pools with high costs and coverage exclusions.   Many private insurers will decline coverage, make it unaffordable, or make it ineffective with exclusions.  This will change quite a bit under the ACA.

Some changes under the ACA are already in effect.

  • Health plans cannot drop your coverage when you develop an illness or medical condition.
  • You may cover your children on your group health policy up to age 26.
  • Your children will not be denied coverage based on a pre-existing condition.
  • Your plan cannot impose annual or lifetime dollar limits for essential health benefits.
  • The Oklahoma Temporary High Risk Pool provides a bridge program to temporarily cover people who cannot get coverage elsewhere due to pre-existing conditions.  You have to go uninsured for 6 months to qualify for temporary high-risk coverage.

Some changes easing the challenge of post-divorce insurance planning do not take effect until January of 2014.

  • If not covered by an employer plan, people must either get health insurance on their own, pay a penalty on their income tax, or qualify for an exemption.
  • States, or the federal government by default, will set up health insurance exchanges.  These exchanges will outline the competing health insurance plans available to you, and the premium for coverage.
  • The exchange will also offer calculators to figure cost-sharing reductions and premium tax credits available depending on your income and coverage.
  • The amount of the subsidy you’re eligible for will depend on your income. Those with incomes of up to 400 percent of the federal poverty level ($43,560 for an individual and $89,400 for a family of four in 2011, according to the Kaiser Family Foundation) are eligible for premium assistance credits.

The exchanges hold promise for an added cost-effective alternative for divorcing spouses and families.  the U. S. Secretary of Health and Human Services must develop rules for making premium tax credit eligibility determinations based on changes in circumstance, such as a divorce.  We should all stay alert to the when and how of the exchanges, and the premium subsidies.  They will become part of divorce planning very soon.

by David Tracy

Link to Text of the Affordable Care Act

How the Affordable Care Act Affects You, CBS News Money Watch, June 29, 2012

The Promise of the Affordable Care Act, the Practical Realities of Implementation: Maintaining Health Coverage During Life Transitions, O’Leary, Capell, Jacobs, and Lucia, Center for Labor Research and Education, University of California, Berkeley; Chief Justice Earl Warren Institute on Law and Social Policy, UC Berkeley School of Law (2011)

Health Reform Subsidy Calculator, Kaiser Family Foundation

Supreme Court Ruling Making Medicaid Expansion Optional Gives Fallin A Big Decision, Tulsa World, July 3, 2012

Time to Check Your Will After Supreme Court Denies Survivor Benefit for Twins Conceived After Father’s Death

A U. S. Supreme Court decision this week serves as a wake-up call for careful drafting or amending of your Last Will and Testament.  It is also a call to action for state legislatures.  The Court denied a Florida mother survivor benefits for twins conceived by in-vitro fertilization (IVF) after her husband died.  The court held unanimously that Karen Capato could not collect survivor benefits for the twins from the Social Security Administration (SSA).  She had the twins 18 months after her husband died, using his frozen sperm.

SSA turned the application down because Capato’s twins, who were conceived posthumously, did not qualify to inherit from their late father under Florida law.  The court states that SSA properly looked to state law to determine the children’s eligibility for the federal entitlement.

The effect of this U. S. Supreme Court decision in Oklahoma is unclear.  There is no state statute or case law discussing the inheritance rights of children conceived by mothers using the frozen sperm of a deceased father.  According to this article from National Public Radio, thirteen states have laws that specifically allow posthumously conceived children to inherit in cases where there is no will. Four states, including Florida, specifically do not allow it.  In the rest of the country, as in Oklahoma, the law is unclear.

It is a growing phenomenon for persons with life-threatening illnesses or hazardous job duties (like soldiers headed into combat) to store sperm for later use.  If you have stored sperm, there is a lesson for you in this weeks’ Supreme Court case.  Please contact an attorney promptly to draft or amend your Last Will and Testament. You need to include a clause that children conceived by IVF after your death should (or should not) be treated as your other surviving children.

For those who don’t have a Last Will and Testament, this issue needs to be addressed by the Oklahoma Legislature.  I think children conceived through IVF, even after the father has passed away, should be treated the same as children born while both parents were alive.  Oklahoma lawmakers can, and should, make this happen.

Please share your thoughts on the case of Astrue v. Capato in the Comments section below.

by David Tracy