The Ohio Department of Health is refusing to issue new birth certificates for children adopted by same-sex couples. This is a troubling development and has not been widely publicized. This means that lesbian and gay couples that adopt an Ohio born child will be unable to obtain an accurate birth certificate reflecting their parental status. The letter that DoH is sending out is included below. Apparently, Governor Kasich issued the order to DoH instructing them to refuse to issue an amended birth certificate. There is no legal justification for the Department's action. A lawsuit is expected that will challenge this decision.
Many lawyers believe the Supreme Court's decision in Windsor v. United States will mean the death knell of the Defense of Marriage Act (DOMA). I do not agree. The issue before the Court involves Section 3 of DOMA. The case is not challenging DOMA in its entirety. I think this is being missed by many people talking about the case. I keep hearing media pundits, including the legal talking heads, discuss the end of DOMA. It seems they have not read the briefs or listened to the arguments.
Section 3 deals with the federal government's refusal to recognize same-sex marriage. Section 2 grants states the right to refuse to recognize these marriages. Section 1 is the title and definition part.
Edith Windsor challenged the federal government's decision to charge her $326,000 for estate taxes on her late spouse's estate. Had her spouse been a man there would be no estate tax due because spouses can transfer an unlimited amount of assets between themselves. Windsor's case argues that her marriage was legal in both Canada--where she and Thea were married--and in New York where they lived. Both jurisdictions recognized the marriage. Under DOMA, however, the IRS was prohibited from doing the same.
Windsor is not challenging DOMA as a whole. This is an incremental step in the process.
If Windsor is successful, the Supreme Court will declare Section 3 unconstitutional as it is applied in marriage equality jurisdictions. That includes 12 states (Massachussetts, Maine, Vermont, New Hampshire, Connecticut, Rhode Island, Delaware, Maryland New York, Minnesota, Iowa and Washington) and the District of Columbia.
It will NOT apply in the 28 remaining nonrecognition states. It MAY NOT apply in the states that permit some type of recognition like Civil Unions or Domestic Partnerships (California, New Jersey, Oregon, Colorado, Hawaii, Illinois and Wisconsin). California
But, no one knows exactly what will happen until the Court issues its decision--and that will come next week. The Court's session ends at the end of June.
The United States Supreme Court ended today's session without issuing a decision in Windsor v. United States or Hollingsworth v. Perry. The court will reconvene on Monday, June 17, 2013. The SCOTUS blog will start its live blogging at 930 a.m. on Monday. They will carry live coverage of the decisions being issued. SCOTUS blog is an excellent source of information on the U.S. Supreme Court.
FYI, SCOTUS is an acronym for Supreme Court of the United States.
As of now, the Court has listed Monday, June 17 as the last day to issue decisions. However, it may add additonal days next week. I think the Court will wait until the last possible moment to issue its decisions on affirmative action, the Voting Rights Act, DOMA and Prop 8 because all four cases will generate considerable response from the media and the public. The Justices may want to leave town before the decisions see the light of day.
In any event, it is an exciting time to be watching the court. These 4 decisions will have great impact on the lives of so many Americans.
Joan M. Burda is a lawyer with a solo practice in Lakewood, Ohio. She limits her practice to estate planning. She writes on a variety of topics and is an adjunct professor at Case Western Reserve School of Law. Joan is nationally recognized for her work in addressing legal issues affecting the LGBTQ+ community.
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