A New York appeals court ruled that the survivor of a gay marriage could receive the inheritance from his male spouse on Thursday, even though New York does not yet allow legal gay marriages to be performed in the state.
J. Craig Leiby and H. Kenneth Rantfle were legally married in Canada in 2008. Three years ago, Rantfle died of lung cancer and left the majority of his estate to Leiby. But Rantfle’s brother contested the will, saying that Leiby’s inheritance would violate New York law, according to CBS New York.
Gay marriages are illegal in New York, but the state recognizes legal out of state and out of country marriages; therefore the court ruled that Leiby is legally entitled to the inheritance as a surviving spouse.
Lambada Legal said the decision was the first of its kind at an appellate level in New York, according to the Huffington Post.
Lambada’s senior counsel member Susan Somer said the decision,
“puts to rest the idea that out-of-state marriages of same-sex couples could be vulnerable to attack.”
Since the Obama Administration instructed the Justice Department to stop defending the Defense of Marriage Act (DOMA) in court last week, we have been contacted by many same-sex binational couples who have sought to bring cases, file I-130 petitions or otherwise take up a DOMA-related challenge in the immigration context.
First Seek Expert Legal Advice
It is extremely important that no couple make any move without obtaining expert legal advice. There are significant, negative consequences, some potential and some assured, for any couple that starts down this path. There is a reason most of the couples in our Stop the Deportations, the DOMA Project were already in deportation proceedings when we filed I-130 petitions on their behalf (i.e., those who were already facing deportation had no risk of endangering their status further by making these arguments). Making a wrong move now could cause irreversible legal problems for a binational couple even if DOMA is struck down or repealed, and even if the Uniting American Families Act (UAFA) is passed into law. Every couple considering their next move should be aware of the negative consequences that will result if they press forward and should be strongly discouraged by competent attorneys from taking any cavalier or risky steps at this time.
While many couples have sat on the sidelines and decided not to marry out of an abundance of caution (often those couples could have married without fear of negative consequences, but again should be consulting attorneys for individualized legal analysis on the issue), the same cannot be said for filing petitions with immigration. Once petitions are filed, a legal process will have begun that in many cases will have permanent consequences. For that reason, we urge all members of the binational couple community to look at the new landscape, assess opportunities and the strategic advantages it presents and obtain individualized legal advice.
One of the most important things we can do now is support the repeal of DOMA in the House and Senate. When those bills are introduced by Sen. Feinstein and Rep. Nadler we should energetically support their passage.
Some More Explanation on What Is to Come
One point that is often overlooked regardless of whether a same-sex binational couple is married or unmarried, is that the demise of the Defense of Marriage Act (DOMA) will be of spectacular importance the next day because it will open up the door to fiancée visa petitions for those who are separated or exiled. (Stop the Deportations, the DOMA Project currently has one fiancée visa petition pending).
The day DOMA is no longer law, a lesbian American citizen living in Florida will be able to file a K-1 fiancée visa petition for her same-sex Kenyan partner as long as they note in the petition their intention to marry in a US jurisdiction that recognizes and performs same-sex marriages. It will not be particularly relevant where the parties live (except as a practical matter that it may require some logistical planning and travel expense).
Also, if DOMA is struck down by the US Supreme Court as violative of the US Constitution, laws and state constitutional amendments (the so-called mini-DOMAs) excluding same-sex couples from marriage in 45 states will also likely become a thing of the past. When DOMA is relegated to the dustbin of history, there will be an immediate and overwhelming victory for all binational couples. That doesn’t mean we will not still have our work cut out for us, but we will forever change the landscape of this issue and effectively end the deportations, separations and exile of binational couples in almost all cases overnight.
Stop the Deportations, The DOMA Project is a pro bono project of our law firm (Masliah & Soloway). Our firm is run by two gay immigration lawyers with a combined 50+ years of experience in immigration law, specifically LGBT-focused immigration law. We are founders of Immigration Equality, we helped write Permanent Partners Immigration Act/Uniting American Families Act. Our involvement in the Marriage Equality movement is similarly of long duration reaching back to the early 1990s when Noemi Masliah was the Chair of the Board of Lambda Legal Defense and I worked with Lambda’s attorney, Evan Wolfson, to campaign against DOMA during the period that the Hawaii marriage case was in full swing.
Our project is challenging DOMA in the immigration context with about 12 couples so far; these challenges are mostly in immigration court, though two cases are from outside the US (one married couple exiled in Canada, the second fiancée visa petition for a couple exiled in the UK).
This is what happens when you hand the keys to overgrown malcontent children who never intended to actually govern in the first place:
The House of Representatives will likely issue its own defense of a federal law abandoned by the White House that defines marriage as being between a man and a woman, House Speaker John Boehner said on Monday.
President Barack Obama decided his administration would no longer defend the 15-year-old Defense of Marriage Act in U.S. court, dropping its challenge to a federal judge’s ruling in Boston that the statute was unconstitutional.
The decision last week angered Republicans in Congress who oppose same-sex marriage and opened Obama to charges that he was using the case to cater to gay rights activists and their supporters, who praised the reversal.
“I’d be very surprised if the House didn’t decide that they were going to defend the law,” Boehner said in an interview posted on the website of the Christian Broadcasting Network, a U.S. cable TV channel.
Until the next thing makes him cry salty, orange tears…
Now that the White House won’t defend the 1996 law that bars recognition of same-sex marriages, Ojeda and Alcota hope the petition will be approved one day.
“Finally, the light of hope! Of being able to be together and live in peace,” said Alcota, 35, an antique furniture restorer.
“I filed the petition because I love her, and she’s my wife,” said Ojeda, 25. “I should have the right to live my life with the person that I love. Those are my rights as a citizen. In a way they’re being sort of violated.”
Alcota - who overstayed a tourist visa and is fighting deportation - plans to appeal if she’s turned down for a green card.
Their lawyer is planning to file petitions on behalf of other couples after Obama’s announcement.
“It forces the government to take a position - to write a letter to an American citizen and say, ‘We’re denying this petition because you’re gay,’” said the lawyer, Lavi Soloway.
Soloway and law partner Noemi Masliah have filed petitions for a dozen couples as part of a pro bono project.
They are bracing for a flood of new clients because of the White House’s position change.
If the petitions are denied, they will take them to the Board of Immigration Appeals. The board is part of the Justice Department, which has been ordered to stop defending the Defense of Marriage Act.
Soloway hopes the board will put the petitions on hold - keeping undocumented partners from being deported until the courts make a final decision on same-sex marriage.
“Dynamic change in this area of law is currently underway,” he said. “Pretty soon we all think they will be approved.”
Until then, he and other experts say gay couples should not file without legal advice because of the risk of alerting the feds to an undocumented partner.
“It is increasingly easy for the government to remove you from the country,” said Rachel Tiven, executive director of Immigration Equality.
“There are terrific set of potential new options on the horizon. Unfortunately, it doesn’t change the game today.”
Hear that, New York? The Obama administration says the federal law that banned recognition of same-sex marriage — and with it, denied health and pension benefits to countless Americans — is unconstitutional.
Unusual, if long overdue, clarity came Wednesday with the concession that a law passed 15 years ago, in a very different climate for sexual politics, couldn’t pass constitutional muster. It’s legally indefensible, to be quite blunt about it.
Politically difficult, too. The President, who says his personal position on same-sex marriage is an “evolving” matter, has given further momentum to the push for equal rights for gays.
In Albany, not even the most socially conservative or politically tone deaf state lawmakers can deny that continuing to prevent gays from legally marrying just got noticeably harder. So much so that its advocates — from Governor Cuomo, in his position of resounding popularity, to Thomas Duane, in the trenches of the state Senate — should push for another vote on gay marriage.
The 38-24 vote against same-sex marriage in the state Senate two years ago just might represent politics as obsolete as the Justice Department’s vow last month to keep fighting in court against the very forces it’s now joined in opposition to the Defense of Marriage Act. Even a closer, albeit losing vote, could upend the political dynamics.
It’s a different Senate, remember, than the one that voted down gay marriage in 2009. The Republicans who voted unanimously against it have seven new members.
As for the Democrats, there’s little reason to think that eight of their members would oppose gay marriage, as was the case in 2009. Five of the 30 Democrats now in the Senate hadn’t been elected then.
Keep in mind, too, the 50,000 or so gay couples who would be able to legally marry in New York if the Senate rewrote the law to reflect a more tolerant era. They have the public on their side. A Quinnipiac University poll last week showed that New Yorkers favor same-sex marriage, 54 percent to 39 percent.
Among them is Edith Windsor, an 81-year-old widow who filed a federal lawsuit seeking reimbursement of $360,000 she had to pay in estate taxes because the federal government did not recognize her marriage.
“I think it removes a great deal of the stigma,” she said of the Obama administration’s abandonment of a misguided law. “It’s just great.”
Imagine, New York, what Ms. Windsor might say when justice prevails here.
THE ISSUE: The Obama administration’s change in its position on gay marriage creates an opening.
THE STAKES: It will be harder to resist equal rights here.
Apparently the Justice Department is none-to-pleased with the way the constitutional challenge to Don’t Ask, Don’t Tell in the Log Cabin Republican v USA case is going. Sure, President Obama advocated for repeal of DADT and Attorney General Eric Holder attended the joyous repeal bill signing ceremony - second row, right behind Palm Center Director Aaron Belkin and in front of longtime DADT foe David Mixner - but that doesn’t mean the DOJ legal team, lead at trial by original attorney Paul Freeborne who has been fighting Dan Woods and his legal eagles from White & Case since 2004, is happyabout or even resigned to changing strategy or - gasp – losing.
In fact, the DOJ is looking like an obsessed spurned lover who just can’t let go. Consider this little tidbit: it is customary for the winning attorney in a pro bono case to try to recover court costs - for which Woods petitioned after Riverside District Court Judge Virginia Phillips ruled that DADT is unconstitutional. A court clerk awarded Woods just over $20,000 after the government challenged about $5,000 of the total $25,000 to which Woods is entitled.
Click the link above to read the full article.
Delaware Legislative Hall
Delaware’s newly formed gay rights group has hit the ground running, launching a public push to legalize civil unions for the state’s gay and lesbian couples.
Equality Delaware’s first meeting, attended by about 120 people, resulted in the unveiling Thursday of the campaign to get civil unions. State Rep. Melanie George and Sen. David Sokola have signed on to be the lead sponsors of the bill, which they said will likely be filed in mid-March, according to the News Journal (Wilmington, Del.).
According to the group, about 700 Delaware couples would enter a civil union within the first few years the law takes effect.
In addition to granting gay and lesbian couples the same rights as married couples have in the state, the civil union law would also rescind current policies that fine and imprison same-sex couples who fraudulently present themselves as married couples. It would also establish religious freedom protections for clergy, and ensure that same-sex marriages from other states be recognized in Delaware.
Equality Delaware president Lisa Goodman told the News Journal that there is enough support to legalize civil unions, but full-on marriage equality would probably be an unsuccessful battle.
In a press call earlier today, Ted Olson, who is seeking, with David Boies, to overturn Proposition 8, gave this statement. Prop 8 limits marriage in California to heterosexual couples. Last August, a federal court ruled that Prop 8 is unconstitutional - but the court of appeals put a stay on gay marriages until there is a decision regarding who can appeal.
Olson and Boies today filed a motion to lift that stay.
The Ninth Circuit Court of Appeals has asked the California Supreme Court for advice concerning a question of California law bearing on the standing of Proposition 8’s proponents to appeal last August’s federal court judgment striking Proposition 8 as an unconstitutional infringement of the right of gays and lesbians to marry.
The California Supreme Court has agreed to consider the issue and has promised oral argument on the matter “as early as” next September.
Last Thursday, we filed a request with the California Supreme Court to expedite that schedule substantially. Today we have filed with the Ninth Circuit a request that its previous order staying the effect of last August’s decision striking down Proposition 8 be lifted.
We must not forget that this case involves a daily deprivation of the constitutional rights of tens of thousands of Californians including the children of gay and lesbian couples.
The “right to marry” is not an abstract principle, any more than that might be said about the “right to vote,” the “right to speak,” or the “right to practice one’s religion.”
Click the link above to read the rest of the article.
A gay four-term member of the Virginia State House last week declared his intention to pursue a seat in the General Assembly’s upper chamber.
Del. Adam Ebbin (D-Alexandria), who’s served as a state House member since 2004, announced he would pursue the state Senate seat that Patsy Ticer (D-Alexandria) will vacate upon her retirement this year.
Ebbin said he’s interested in moving from the Republican-controlled House to the Democratic-controlled Senate to have a greater voice in speaking out for LGBT people and other minorities.
“I’ve tried to be a voice for the voiceless in the House,” Ebbin said. “I think I can be a loader voice in the Senate for GLBT people or religious minorities, for workers and others who are often left out.”
In the House, Ebbin has championed many LGBT bills, although many, such as a non-discrimination measure for state workers and anti-bullying legislation, were blocked in the Republican-controlled House and haven’t made it to the governor’s desk.
Ebbin noted that the Democratic-controlled Senate has succeeded in passing pro-LGBT measures and said he thinks he would have better success in moving forward on LGBT issues in the chamber.
“We’ve found the Senate to be more receptive, and I feel like if I can get things passed in the Senate and then bring them to the House, that they would get more weighed consideration,” Ebbin said.
Having planned the run for several months, Ebbin said he’s already hired a campaign manager and has rented out a campaign headquarters.
But other Democrats are also seeking the state Senate seat. Alexandria City Council member Rob Krupicka and Arlington School Board Chair Libby Garvey have also announced their intent to pursue the Democratic nomination.
Ebbin said he thinks his experience in the General Assembly puts him in a good position to win a Democratic primary, which would take place on Aug. 23.
“I’m the only one who’s served in the General Assembly and I think I’ve proven to be effective and the voters will find that appealing – to have experience at the state level and a proven record of effectiveness,” Ebbin said.
In the predominantly Democratic 30th district, the Democratic nominee would be favored to win against any other candidate in the general election. Still, a Republican, Alexandria businessman Michael Maibach, has reportedly expressed interest in the seat.
Attorneys who brought the federal case against Proposition 8 asked the U.S. court of appeals for the ninth circuit to lift the court-imposed stay on marriage equality in California.
A three-judge panel of the ninth circuit had imposed that stay last year without comment after U.S. district judge Vaughn Walker ruled the 2008 voter initiative unconstitutional. Gay couples are still unable to wed in California as a result.
“There there can be no justification for prolonging the suffering of plaintiffs and the tens of thousands of couples like them for an additional year,” attorney Ted Olson wrote in a court filing.
“Having prevailed at trial, having demonstrated that they had a fundamental right to marry, and having shown beyond dispute that Proposition 8 works irreparable harm upon gay and lesbian Californians by denying them that right,” Olson wrote, “it is simply intolerable for this Court to continue to deny them that right and to perpetuate their pain for such a length of time — especially given that this Court itself has recognized that Proponents may well have no right to appeal at all.”
The move comes on the same day the Department of Justice announced it will not defend section 3 of the 15-year-old Defense of Marriage Act in federal court after a directive from President Barack Obama.
Click the link above to fill out the form to let your legislators know that you oppose SB 5.
Far right-wing California Senator Tom Harman, a cohort of the Yes on 8 campaign, has introduced a bill that would compel the Attorney General to defend all ballot measures that get challenged in court, including Proposition 8. SB 5 would also authorize the groups that place measures on the ballot to defend their measures in court, a right that has been reserved for the state once a measure becomes a law. Help us stop them. Let’s say ‘NO’ to Yes on 8.
In a rare and extraordinary step, today the Obama Administration announced that it will not defend the discriminatory federal “Defense of Marriage Act” (DOMA) in court.
HRC supporters have written tens of thousands of letters to President Obama, shared thousands of personal stories of how DOMA has hurt their families, and helped HRC engage in years of advocacy on this issue with the administration. Now it’s time to thank the president for what he’s done.
Send a message to President Obama thanking him for standing up for same-sex couples and their families.