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On April 28, 2015 the Supreme Court of the United States heard oral argument in the case of Obergefell v. Hodges. In Obergefell, the Justices were considering two questions concerning same-sex marriage: 1) does the fourteenth amendment to the U.S. Constitution require a state to license a marriage between two people of the same sex?; and 2) does the fourteenth amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Obergefell consolidated four cases in which plaintiffs from Kentucky, Michigan, Ohio and Tennessee challenged those states’ refusal to license same-sex marriages, and/or to recognize same-sex marriages from other jurisdictions. A divided lower federal court upheld the state actions.
I was fortunate to be involved in drafting an amicus brief on behalf of Legal Services NYC (LSNYC) in support of plaintiffs. LSNYC is the largest provider of free civil legal service to low-income people in the United States and has served the LGBT community for over 25 years. In the brief we argued that States have created a well-defined bundle of benefits, protections and presumptions that flow to those considered “married” under state law.
In particular we focused on thirteen legal areas that touch on (i) protecting the parent-child relationship, (ii) granting rights to economic benefits or property and (iii) providing access to justice. For example, in 43 states and the District of Columbia, a married couple can adopt a child jointly, which allows both partners to become the legal parents of the child simultaneously. This in turn establishes a legal relationship between the child and both parents. That relationship gives rise to a series of protections that maximize the resources available for the child while ensuring that the burdens of parenthood are spread evenly between the parents. Such benefits, protections and presumptions are unavailable to those who are denied the status of being married, as well as their children.
We argued that this denial imposes unique burdens on low-income LGBT couples and their families who cannot afford the cost of stitching together the legal protections denied to them.
In order to support this argument we conducted a 50-State survey for each of the thirteen variables discussed, and the advantage of working in a big firm was substantial. A large number of lawyers contributed by looking through the statutes and case law of one or two states in order to find the way in which those states treated each of our variables. With their help the team was able to gather the data for all 50 states and the District of Columbia in a week. We then worked with a graphics company to find a way to present our data that was digestible and easy to process. The Court received over 75 amicus briefs, and we hoped to make our point in a way that was as succinct as possible. Ultimately, the final brief included a very short summary of our argument, four fold-out diagrams showing the convergence of the states on the benefits, protections and presumptions attendant to marriage, and an appendix listing all the statutory data to support each variable in each state.
Although it was a small contribution, and one of many amicus briefs ultimately filed before the Court, getting the chance to participate in this historic case has been the highlight of my time in New York.