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Same-sex marriages resume in California

July 3rd, 2013 by Joseph William Singer

In 2008, by a 4-3 vote, the Supreme Court of California held that its state constitutional right to equal protection of the laws grants same-sex couples the same right to marry as is enjoyed by opposite-sex couples, using strict scrutiny to come to this conclusion. In re Marriage Cases, 183 P.2d 384 (Cal. 2008). The court held that the right to marry is a basic civil right whose denial impinges upon same-sex couples’ fundamental privacy interests in having official family relationships accorded equal respect and dignity and that no compelling state interest justified the differential treatment of same-sex and opposite-sex couples. It also ruled that existing statutory provisions recognizing civil union or domestic partnership arrangements for same-sex couples were not equivalent to laws recognizing opposite-sex civil marriages.

The California decision was overturned on November 4, 2008, when California voters approved Proposition 8 amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, §7.5 (added Nov. 4, 2008), held unconstitutional by Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010, aff’d, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), appeal dismissed by Hollingsworth v. Perry, 133 S.Ct. 786 (U.S. 2012). Subsequently, the California Supreme Court ruled that the constitutional amendment did not retroactively invalidate the 18,000 same-sex marriages that took place in California between the time when the marriage right was extended to same-sex couples and the date when the marriage right was revoked. Strauss v. Horton, 207 P.3d 48 (Cal. 2009). Proposition 8 was struck down in federal district court as a unconstitutional denial of equal protection of the laws and the court ordered the state of California not to enforce Proposition 8. Perry v. Schwarzenegger, 704 F.Supp. 2d 921 (N.D. Cal. 2010). When the state refused to appeal that adverse ruling, proponents of Proposition 8 stepped in to do so; the California Supreme Court answered a certified question by determining that they were entitled to do so and the trial court’s ruling was upheld on appeal to the Ninth Circuit. That ruling was overturned by the Supreme Court in Hollingsworth v. Perry, — U.S. —, 2013 WL 3196927 (2013), on the ground that the petitioners had no standing to intervene in the case to appeal the trial court’s ruling. That left the trial court’s ruling standing, opening the way to resume same-sex marriages in California.

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Section 3 of DOMA struck down

July 3rd, 2013 by Joseph William Singer

Section 3 of the federal Defense of Marriage Act (DOMA), 1 U.S.C. §7, Pub. L. No. 104-199, §3, 110 Stat. 2419, passed in 1996, denied federal recognition to same-sex marriages. This meant, for example, that for such purposes as calculating federal income tax, same-sex couples were not recognized as married and entitled to the tax advantages (and disadvantages) of marriage even if they were validly married under state law. A same-sex couple validly married in Massachusetts under Massachusetts law would file state tax returns as a married couple but would then have to file federal tax returns as two unrelated individuals. However, Section 3 was struck down as an unconstitutional violation of the due process and equal protection clauses on June 26, 2013 in the case of United States v. Windsor,  — U.S. —, 2013 WL 3196928 (2013). Windsor found that marriages have traditionally been governed by state, rather than federal law, and held that no legitimate government interest could justify treating same-sex married couples differently from those of opposite-sex married couples. Windsor does not answer the question of which state’s law should be used to determine whether a marriage is valid under federal law. The federal government could look to the law of the place of celebration or the domicile of the parties either at the time of marriage or at the time when recognition of the marriage is sought. For example, while the Veterans Administration looks to the place of celebration to determine if a marriage is valid, the Social Security Administration looks to the domicile of the parties. This issue will be worked out by future federal administrative action and possibly legislative reforms.

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More states recognize same-sex marriage

May 17th, 2013 by Joseph William Singer

Within the last month or so, new states have recognized same-sex marriage. They are Delaware, Rhode Island, and Minnesota. All did so legislatively. Del. Code, tit. 13, §§101 to 122, as amended by 2013 Del. HB 75 (May 8, 2013); R.I. Gen. Laws §§15-1-1 to 15-1-5, as amended by 2013 R.I. Pub. Laws 4 (2013 R.I. HB 5015); Minn. Stat. §§517.01 to 517.09, as amended by 2013 Minn. Sess. Law Serv., ch. 74 (H.F. 1054) (May 14, 2013). Internationally, recent additions to the list include France, New Zealand, and Uruguay.

As of May 17, 2013, there are now thirteen jurisdictions (12 states and the District of Columbia) that recognize same -sex marriage in the U.S. They include  Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

Three American Indian nations also recognize same-sex marriage, including the Coquille Indian Tribe, the Little Traverse Bay Bands of Odawa Indians, and the Suquamish Tribe. ee, e.g., Coquille Indian Tribal Code §§740.010, 740.100; Little Traverse Bay Bands of Odawa Indians Tribal Code of Law § 13.103; William Yardley, A Washington State Indian Tribe Approves Same-Sex Marriage, N.Y. Times, Aug. 11, 2011, at A-12 (Suquamish Tribe).

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HUD issues final regulations defining disparate impact claims under the Fair Housing Act

February 9th, 2013 by Joseph William Singer

The Department of Housing & Urban Development (HUD) has issued final regulations defining the standards to make a claim that a neutral policy has a disparate impact on a protected group in a manner that constitutes unlawful discrimination under the federal Fair Housing Act, 42 U.S.C. §3601 et seq. The regulations are at 24 C.F.R. 100.500 and can be found here. The rule affirms that disparate impact claims are available under the Fair Housing Act and identifies an approach to proving them to respond to the variation that exists among Circuits on what the legal test is for disparate impact in this area. Here is the test:

1. Plaintiff must show a discriminatory effect either because defendant’s policies or actions result in a disparate impact on a protected group or because those policies or actions promote segregation.
2. Defendant then has the burden to showthat  its practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest, and that that interest cannot be served by another practice that has a less discriminatory effect.
3. Plaintiff can rebut defendant’s argument by showing that the defendant’s interest is not substantial, legitimate, or nondiscriminatory or that defendant’s interest can be achieved by a practice that has a less discriminatory effect.

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Vermont civil union counts as a marriage in Massachusetts

August 29th, 2012 by Joseph William Singer

The Supreme Judicial Court of the Commonwealth of Massachusetts held that a man who entered into a civil union with another man in Vermont could not marry a different man in Massachusetts before dissolving the civil union. Elia-Warnken v. Elia, 463 Mass. 29, 2012 Mass. LEXIS 678 (Mass. 2012). The court dismissed divorce proceedings in Massachusetts on the ground that the marriage was void from the beginning since one of the men was still “married” (under a “civil union”) to another man in Vermont. The result denied the “spouse” in Massachusetts any remedies such as equitable distribution of property on the ground that otherwise one person would be married to two people at once with conflicting support obligations. The court cited an article of mine, Joseph William Singer, Same–Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 29, 36, 50 (2005). Presumably, an action to dissolve the Vermont civil union could still be made but that would not generate  any property remedy against the Massachusetts spouse because that spousal relation never legally existed under the Massachusetts bigamy statute. The court did not address whether there might be any equitable or common law remedies based on a claim of constructive trust or unjust enrichmnet or fraud for failure to reveal the prior relationship.

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Websites are public accommodations so Netflix must provide close captioning on web-streamed movies

June 23rd, 2012 by Joseph William Singer

A federal judge in Massachusetts ruled that websites are “places of public accommodation” regulated by the Americans with Disabilities Act (42 U.S.C. §12182(a)), and thus the online movie service Netflix was required to provide closed captioning for all it “Watch Instantly” content. Nat’l Ass’n of the Deaf v. Netflix, Inc., 2012 U.S. Dist. LEXIS 84518 (D. Mass. June 19, 2012). The court’s judgment rested on the First Circuit’s conclusion that “places of public accommodation” under the ADA were not limited to “actual physical structures.” Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994).

Posted in Antidiscrimination law, Consumer protection | Comments Off on Websites are public accommodations so Netflix must provide close captioning on web-streamed movies

Rhode Island passes Homeless Bill of Rights

June 17th, 2012 by Joseph William Singer

The Rhode Island legislature passed a statute likely to be signed by the Governor called the “Homeless Bill of Rights.” The act amends Rhode Island’s fair housing law by adding “housing status” to the list of prohibited kinds of discrimination and defines housing status to mean “the status of having or not having a fixed or regular residence, including the status of living on the streets or in a homeless shelter or similar temporary residence.” It guarantees access to public spaces (including sidewalks and public buildings) on the same terms as others and grants a certain amount of protection for the personal property of the homeless. The law also ensures that public services are available to homeless persons. The bill is S 2052 Substitute B (2012) and it will amend R.I. Gen. Laws ch. 34 by adding §§34-37.1-1 to 34-37.1-5 and amending §§34-37-1 and 34-37-3.

Posted in Antidiscrimination law, Fair Housing Act, Personal property, Trespass | Comments Off on Rhode Island passes Homeless Bill of Rights

$2 million settlement agreement by landlord & building superintendent for systematic sexual harassment of tenants

May 9th, 2012 by Joseph William Singer

On May 8, 2012, the U.S. Attorney’s office in Manhattan announced a $2 million settlement by a landlord, his building superintendent and the superintendent’s son to pay fines to tenants who were sexually harassed by the superintendent. The building superintendent was a convicted sex offender who served 14 years in prison for molesting or raping 3 girls and a woman before being hired by the landlord to run three buildings. The superintendent would enter women’s apartments while drunk and demand sex, retaliating when he did not get his way. Both the landlord and the superintendent are also barred by the agreement from owning or managing occupied properties. read article

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Maryland and Washington state pass same-sex marriage bills

February 26th, 2012 by Joseph William Singer

Governor Christine Gregoire of Washington State signed Senate Bill 6239 on Feb. 13, 2012 authorizing same-sex marriage in the state of Washington. Wash. Sess. Laws 2012 ch. 3. The bill is effective as of June 7, 2012. Governor Martin O’Malley will sign a similar bill in Maryland, called the Civil Marriage Protection Act, House Bill 438, on March 1, 2012. Both laws may be subject to repeal by referendum votes by the citizens of the respective states. New Hampshire’s legislature is talking about repealing its same-sex marriage legislation but Governor John Lynch has vowed to veto any such bill. read article

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Ninth Circuit holds that the Fair Housing Act does not regulate roommate choices or advertisements

February 9th, 2012 by Joseph William Singer

The Ninth Circuit ruled in Fair Housing Council of San Fernando Valley v. Roommate, LLC, 2012 U.S. App. LEXIS 1971 (9th Cir. 2012), that the Fair Housing does not regulate roommate choices or advertisements expressing preferences with respect to roommates, dismissing a claim against Roommate.com, a website that allowed individuals to place ads stating preferences based on sex, sexual orientation, religion, and familial status in connection with roommate searches. The opinion by Judge Alex Kozinski noted that the Fair Housing Act regulates “dwellings” which are defined to include “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.” 42 U.S.C. §3602(b)(emphasis added by this editor). Despite the “or portion thereof” language, the court noted that the constitution protects rights of intimate association and that it would be unconstitutional to restrict roommate choices so the statute should be read to preclude such regulation if possible. Since the statute could be interpreted to regulate only the transfer of an “independent living unit” rather than shared space, and doing so would avoid constitutional problems, that is how the court interpreted the “portion thereof” language. The court also held that advertisements that express preferences that would otherwise be discriminatory are lawful in the roommate context since §3604(c) prohibits ads that “indicate any [discriminatory] preference…with respect to the sale or rental of a dwelling” and “dwelling” does not include shared living space, there is no prohibition against discriminatory roommate ads. This suggests that it is lawful to place an ad that expresses racial preferences as well as preference with respect to sex, sexual orientation, religion or familial status as long as the space is shared rather than transferred. At the same time, that fact situation was not addressed by the court because Roommate.com does not seek such information.

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Court holds that an Alabama immigration law violates the Fair Housing Act

January 12th, 2012 by Joseph William Singer

A recent Alabama immigration statute was held preempted by the Fair Housing Act because it required many mobile home owners to pay for a government-issued decal while prohibiting undocumented residents from making payments to government officials. In Central Alabama Fair Housing Center v. Magee, 2011 U.S. Dist. LEXIS 142788 (D. Ala. 2011), the federal District Court judge found a violation of the federal fair housing law because there was sufficient evidence of discriminatory intent by legislators against Latino residents (including legal residents) and because the law had a disparate impact on the Latino population without any legitimate government justification. Because the law made it illegal to drive or possess a mobile home without a decal and registration and because it was illegal for undocumented residents to obtain the decal, the law effectively made such persons homeless. The court found the law preempted by federal immigration laws but also found a fair housing violation because the judge interpreted the FHA to protects any person without regard to immigration status. Because a greater percentage of Latinos would be affected by the statute than others, a disparate impact was present and because the Constitution gives the federal government (and not the states) the power to regulate immigration, the state could not demonstrate a legitimate government interest that could justify the disparate impact.

 

 

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Job creation held not a sufficiently compelling government interest to justify refusing to rezone industrial property for church use

November 16th, 2011 by Joseph William Singer

The Religious Land Use-Institutionalized Persons Act, 42 U.S.C. §2000cc, prohibits enforcing local zoning laws against religious institutions if those laws impose a “substantial burden” on the free exercise of religion and not justified by a compelling government interest that cannot be achieved in a less burdensome manner. The Ninth Circuit applied this statute to deny a city the power to exclude a church from moving to a larger building located in an area zoned for industrial use in the case of International Church of the Foursquare Gospel v. City of San Leandro, 2011 WL 1518980 (9th Cir. 2011). Read article. The church had become bigger over time and was looking for a new facility and hoped to move into an abandoned industrial building. The city hoped to attract a business to the site that would employ city residents and argued that its interest in promoting jobs was a compelling government interest justifying refusal to rezone the property for church uses even if this refusal imposed a substantial burden on religious freedom. The Ninth Circuit held both that job creation was not a compelling government interest that justified such a burden on religious freedom and that even if it was, there were less burdensome ways to achieve that result.

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Third Circuit finds prima facie evidence of disparate impact from municipal redevelopment plan

September 28th, 2011 by Joseph William Singer

The Third Circuit has ruled in Mount Holly Gardens Citizens in Action Inc. v. Mount Holly, N.J., 2011 U.S. App. LEXIS 18840 (3d Cir. 2011) that plaintiffs presented sufficient statistical evidence to constitute a prima facie case that displacement of low-income residents from an area slated for redevelopment would have a disparate impact on African American and Latino residents. The court clarified that no evidence of intent to discriminate was needed to bring a disparate impact claim, clarifying ambiguities on this score created by the Third Circuit’s earlier decision, Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977). The court accepted the town’s justification that its redevelopment plan was geared to remove blight but held that the town had a duty to show that no less discriminatory alternative could achieve that goal.

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Massachusetts Attorney General settles lawsuit with subprime mortgage lender, requiring $115 million of loan modifications

August 10th, 2011 by Joseph William Singer

Attorney General Martha Coakley announced that the Commonwealth of Massachusetts settled a lawsuit with a subprime mortgage lender that originated subprime mortgages it knew were likely to fail and which not only targeted African American and Latino borrowers but gave its employees discretion to charge higher fees to such borrowers. The company will pay a penalty of almost $10 million to the Commonwealth and will direct its mortgage servicer to modify $115 million in loans either by writing down the principal balance of lowering interest rates. read article The settlement is based on the legal ruling in the earlier case of Commonwealth v. Fremont Inv. & Loan, 897 N.E.2d 548 (Mass. 2008), which held that it might violate the state consumer protection act to market mortgages that were almost certain to end in foreclosure.

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New York authorizes same-sex marriages

June 25th, 2011 by Joseph William Singer

After long negotiations and 4 votes by Republican Senators, New York passed a same-sex marriage bill on June 24, 2011, signed by the Governor the same day. New York will be the seventh jurisdiction to allow such marriages. The others are Connecticut, District of Columbia, Iowa, Massachusetts, New Hampshire, Vermont. read article

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Eighth Circuit upholds finding that landlord sexually harassed a tenant in violation of the Fair Housing Act but affirms the trial court’s reduction of the jury’s punitive damages award

June 3rd, 2011 by Joseph William Singer

In Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010),the Eighth Circuit upheld a trial court ruling that landlord sexually harassed tenant in violation of the Fair Housing Act (FHA), but it affirmed the  trial court’s reduction of the jury’s punitive damages award. The jury awarded $13,685 in compensatory damages and $250,000 in punitive damages. The trial court reduced the punitive damages award to $20,527.50.

The landlord engaged in a variety of inappropriate behavior, rubbing tenant’s arm, standing close to her and rubbing his genital area, following tenant and her sister into the bedroom while conducting an inspection and they were in their pajamas and then refusing to leave until asked to do so three times, calling tenant while drunk at 2:30 or 3:00 am.  The Eighth Circuit held that a claim for hostile housing environment created by sexual harassment is actionable under the FHA, that there was sufficient evidence to find that landlord’s conduct in tenant’s home rose to that level, and that landlord had engaged in quid pro quo harassment by suggesting tenant undress for him to get her security deposit back. The court also found a violation of 42 U.S.C. §3617 when landlord engaged in coercion, intimidation, and interference with tenant’s enjoyment of her housing rights.

However, the court approved the trial judge’s reduction of the punitive damages award from $250,000 to $$20,527.50 on the basis of Supreme Court precedents holding it violates due process to award punitive damages claims that are out of proportion to actual damages. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003);  BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). While the court found landlord’s conduct “reprehensible,” it did not find the degree of reprehensibility to justify a punitive damages award eighteen times the compensatory damages. The Eighth Circuit agreed with the trial judge that an award one and a half times the compensatory damages sufficiently reflected the reprehensibility of landlord’s conduct.

 

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Illinois approves civil unions for same sex couples

February 8th, 2011 by Joseph William Singer

Illinois joins the states like California and New Jersey that have authorized civil unions for same sex couples. read article Monica Davey,Civil Unions Advance in Illinois, N.Y. Times (Dec. 1, 2010).

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Craigslist seeks to prevent discriminatory housing ads

March 10th, 2010 by Joseph William Singer

Craigslist.org now is seeking to prevent discriminatory housing ads (including roommate ads) on its website by posting the following message before one is allowed to fill out a classified housing advertisement:

“Stating a discriminatory preference in a housing post is illegal, is prohibited on craigslist, and can be expensive:  you can be fined more than $10,000 for each discriminatory ad, plus damages in court, plus loss of license if you are a professional. Avoid phrases which could be interpreted as discriminating by race/color/origin (e.g. ‘hispanic area’), religion (e.g. ‘christian home’), age / familial status (e.g. ‘no kids’), disability, sexual orientation, or source of income. The words you choose can cost you – get the facts and avoid being prosecuted under fair housing law.”

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Co-ops accused of racial bias

February 22nd, 2010 by Joseph William Singer

Two Bronx communities organized as co-ops require references from three co-op members in order to buy units. After using testers, the Fair Housing Justice Center has filed a lawsuit arguing that this requirement has a discriminatory effect when existing co-op members are overwhelmingly white and when the requirement was not consistently applied. Read article.

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Town faces Fair Housing Act lawsuit for moratorium on multi-family housing

November 15th, 2009 by Joseph William Singer

A nonprofit organization named Mano en Mano that sought to build multi-family housing affordable by farm workers was stymied by a change in the town’s zoning law placing a moratorium on all multi-family housing. That change in the law may have been motivated by racially discriminatory motives (by at least some townspeople) against the mostly Latino farm worker population and the nonprofit organization has sued the town of Milbridge, Maine claiming that the change in the law violates the Fair Housing Act. For background on the case see here.

Perhaps in response to both the lawsuit and the publicity generated by the moratorium, the town voted on Nov. 16, 2009 to rescind the moratorium, allowing the construction of the housing project to go forward. Read article.

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Circuit split over whether Fair Housing Act regulates post-acquisition discrimination

November 14th, 2009 by Joseph William Singer

The federal courts cannot agree on the question of whether the Fair Housing Act (FHA) applies only to discrimination in acquiring or renting property or also applies to post-acquisition discrimination in provision of services. The Fifth Circuit held, in Cox v. Dallas, 430 F.3d 734 (5th Circ. 2005), that African American residents of a neighborhood afflicted with an illegal dump had no remedy against the city that failed to clean it up. The court held that the dump merely made the housing less habitable but did not make it “unavailable” as required by 42 U.S.C. §3604(a) and that the prohibition against discriminatory terms in the sale or rental of a dwelling was inapplicable to city actions when the city was not the seller or renter of the property. For background on the case see here.

Similarly, the Seventh Circuit ruled in Halprin v. Prairie Single Family Homes of Dearborn Park Assoc., 388 F.3d 327 (7th Cir. 2004), that §3604(a) of the FHA gave no remedy to Jewish condo owners against the homeowners association or other members of the association for harassment that took place after they bought and moved into their home. Judge Posner’s opinion was similarly skeptical about whether §3617 provided a remedy; that section makes it unlawful to “coerce, intimidate, threaten, or interfere with any person in the exercise of or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the FHA].” The court found a potential violation of §3617 only because of a HUD regulation interpreting §3617 to encompass such activity; the court intimated, however, that the regulation exceeded the agency’s powers because it prohibited conduct not within the statutory language.

However, the full Seventh Circuit rejected the view expressed in Halprin when the court en banc reversed an earlier ruling of a three judge panel in the case of Bloch v. Frischholz, 2009 WL 3789996 (7th Cir. 2009).  In the earlier opinion, Judge Frank Easterbrook wrote for the majority that §3617  does not reach post-acquisition conduct. That ruling was reversed by the full court on November 13, 2009.

The Ninth Circuit has recently rejected the rulings in these cases, holding that the FHA does apply to post-acquisition discrimination in provision of services. In Committee Concerning Community Improvement v. Modesto, Cal., 583 F.3d 690 (9th Cir. 2009), the court ruled that residents of primarily Latino neighborhoods did have FHA claims against the city for discriminatory provision of municipal services. The court found that the language in §3604(b) prohibiting discrimination “in the terms, conditions, or privileges of sale or rental of a dwelling, or in provision of services or facilities in connection therewith” did not only apply at the moment of renting or purchasing but “implicated continuing rights, such as the privilege of quiet enjoyment of the dwelling.”

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Will provision disinheriting grandchildren who married non-Jews held not to violate public policy

October 8th, 2009 by Joseph William Singer

On September 24, 2009, the Illinois Supreme Court upheld the provisions of a will disinheriting the decedent’s grandchildren for marrying non-Jews. In re Estate of Max Feinberg, 2009 WL 3063395 (Ill. 2009).

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Does a same-sex couple have to move back to Massachusetts to get divorced?

October 3rd, 2009 by Joseph William Singer

A judge in Texas has allowed a couple married in Massachusetts to get divorced in Texas even though Texas law does not recognize the validity of same-sex marriages. The couple was married in Massachusetts but then moved to Texas when one of them was transferred by his company. They decided to divorce after moving to Texas. If the Texas courts cannot grant the divorce, then one of them would have to move back to Massachusetts and live there for a full year before a divorce could be granted. If they want a Massachusetts court to order equitable distribution of the property acquired during the marriage, both would have to move back to Massachusetts. To avoid this result, Texas judge Tena Callahan ruled that it violated the equal protection clause for Texas not to recognize the validity of the Massachusetts marriage. The Texas attorney general has vowed to appeal to overturn the ruling.  read article read 2d article

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Same sex marriage

September 20th, 2009 by Joseph William Singer


Hawai’i came close to recognizing same-sex marriages in a 1993 decision called Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993), in which the court held that denying individuals the freedom to marry others of the same sex presumptively constituted sex discrimination in violation of the equal protection clause of the Hawai’i Constitution. However, that route is now closed by a state constitutional amendment. Haw. Const. art. 1, §23. A similar decision in Alaska, Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct. 1998), was similarly preempted by constitutional amendment. S.J. Res. 42, 20th Leg., 2d Legis. Sess. (Alaska 1998) (passed Nov. 3, 1998).

The Supreme Court of Vermont held, in Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999), that the “common benefits” provision of the Vermont Constitution requires the state to grant same-sex couples the legal incidents of marriage, whether or not the state chooses to call such relationships “marriages.” Implementing this constitutional mandate, the Vermont legislature passed and the Governor signed a bill allowing “civil unions” but not “marriages” between same-sex partners. See Vt. Stat. tit. 15, §§1201-1206. Although there is no residency requirement to enter a civil union, there is a one-year residency requirement to bring a court action to dissolve a civil union. Connecticut also passed legislation authorizing civil unions for same sex couples. Conn. Pub. Act 05-10 (Jan. 2005), 2005 Ct. S.B. 963, 2005 Conn. Legis. Serv. P.A. 05-10 (S.S.B. 963) (WEST). California and New Jersey passed domestic partnership legislation that allow the creation of legal relationships that entail most but not all the rights and obligations associated with marriage. Cal. Fam. Code §§297–299.6; N.J. Stat. §26:8A–1 to –12. New Jersey subsequently passed a civil union statute after the New Jersey Supreme Court ruled in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), that same-sex partners are constitutionally entitled to the same rights as opposite-sex couples. N.J. Stat. §37:1-28 to 1-36. Civil unions or domestic partnerships in some form for same-sex couples are now recognized in some form in California, the District of Columbia, Hawaii, Maine, Maryland, Oregon, New Hampshire, New Jersey, Vermont and Washington.

On November 18, 2003, the Massachusetts Supreme Judicial Court held in the case of Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2004), that barring individuals from marrying each other solely because they were of the same sex violated the state constitutional guarantees of liberty and equality. Chief Justice Margaret Marshall wrote that the “Massachusetts Constitution affirms the dignity and equality of all individuals” and that “[i]t forbids the creation of second-class citizens.” Id. at 948. See also Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (confirming that granting same-sex couples the right to civil unions but not civil marriage would violate the state constitution because it would confer a kind of second-class status to such couples). The Commonwealth of Massachusetts had defended limiting marriage to male-female couples on the grounds that marriage provided a favorable setting for procreation, that it ensured the optimal setting for child rearing, and that it preserved scarce state resources. The court found none of these goals constitutionally adequate, given the fact that child rearing often occurs outside traditional marriages and that the ability to procreate was never a prerequisite to marriage. It gave the legislature six months to alter the marriage laws in a manner consistent with its opinion. When that did not happen, same-sex couples began marrying in Massachusetts on May 17, 2004.

In 2008, by closely divided 4-3 votes, the Supreme Courts of California and Connecticut held that their state constitutional rights to equal protection of the laws grant same-sex couples the same right to marry as is enjoyed by opposite-sex couples. In re Marriage Cases, 183 P.2d 384 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008). The Connecticut Supreme Court held that legal classifications based on sexual orientation are subject to intermediate scrutiny as a quasi-suspect classification while the California Supreme Court held that they are subject to strict scrutiny. The California court further held that the right to marry is a basic civil right whose denial impinges upon same-sex couples’ fundamental privacy interests in having official family relationships accorded equal respect and dignity and that no compelling state interest justified the differential treatment of same-sex and opposite-sex couples. Both courts ruled that that existing statutory provisions recognizing civil union or domestic partnership arrangements for same-sex couples were not equivalent to laws recognizing opposite-sex civil marriages. Accord, Opinions of the Justices, 802 N.E.2d 565 (Mass. 2004)(civil unions not equivalent to civil marriages). However, the California decision was overturned on November 4, 2008 when the voters approved Proposition 8 amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5 (added Nov. 4, 2008). Litigation is proceeding to determine whether this constitutional amendment retroactively invalidates the 18,000 same-sex marriages that took place in California between the time when the marriage right was extended to same-sex couples and the date when the marriage right was revoked. In contrast, same-sex couples began marrying in Connecticut on November 12, 2008.

As of May 14, 2009, in addition to Massachusetts and Connecticut, the states of Iowa, Maine, New Hampshire, and Vermont also now recognize same sex marriage. The Iowa Supreme Court ruled on April 3, 2009 that denial of the right to marry someone of the same sex violated the equal protection clause of the Iowa Constitution. Varnum v. Brien, 2009 WL 874044 (Iowa 2009). And on April, 7, 2009, without prompting by a court, the Vermont legislature passed a statute recognizing same-sex marriage, overriding the Governor’s veto. That law took effect on September 1, 2009. 2009 Vt. Act 3; 2009 Vt. S. 115. Maine Governor John Baldacci signed a same-sex marriage bill passed by the legislature on May 6, 2009,  2009 Me. Laws 82, and Governor John Lynch signed such a law for the state of New Hampshire on June 3, 2009, 2009 N.H. Laws ch. 59. The Maine statute was repudiated and overturned by the voters on Nov. 3, 2009, again making same-sex marriage unlawful in Maine.

Same-sex marriage is recognized in Belgium, Canada, The Netherlands, Norway, South Africa, Sweden, and Spain. Civil partnerships with nearly the same legal status as marriage are recognized in Iceland, and the United Kingdom.

Posted in Antidiscrimination law, Marital property, Sexual orientation | Comments Off on Same sex marriage

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