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Friday, August 14, 2015

Why marriage licenses?

A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:

What is so special about issuing marriage licenses?

All of the action has been around clerks and clerks offices having to issue licenses to same-sex couples and demanding opt-outs from that ministerial task based on deeply held religious beliefs. But it seems to me that public officials and employees are required to process and handle all sorts of forms, requests, and documents that require them to recognize and treat as married same-sex couples. And this would seem to be just as much in violation of their deeply held religious beliefs. To name just a few:

• Granting a second-parent adoption to a same-sex couple (which requires a finding that the adopting parent is the spouse of the biological parent)

• Processing a death certificate listing a same-sex spouse (this was the claim at issue in Obergefell itself)

• Processing the paperwork for a person to receive health insurance and benefits from her state-employee same-sex spouse

• Processing a name change on a drivers' license for a same-sex couple who married and want to combine names or where one person wants to take the other's name

• Processing a joint tax return for a same-sex couple

I am sure there are others that I am not thinking of. And that is before we get into private actors and public-accommodation laws. Or less misiterial issues, such as police officers responding to domestic-violence calls or hospital staff allowing a person to make medical decisions (without a written advance directive) from a same-sex spouse. Yet we do not hear about similar opt-out requests in any of these contexts. And when state officials, such as Texas AG Ken Paxton, endorse these accommodations, they only spoke about protecting against having to issue licenses and never these or similar duties.

Wouldn't the religious-objection logic apply equally to each of these situations? And if not, why not?

Posted by Howard Wasserman on August 14, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


Here is an excerpt from the complaint in Aaron-Brush v. Bentley, No. 2:14-cv-01091 (ND Ala), in which I am one of the counsel.

30. Alabama’s refusal to recognize the marriages of same-sex couples denies those couples numerous protections afforded to different-sex married couples. For example, among married couples, only married same-sex couples are denied the benefits and protections of the following Alabama statutes:

a. “A husband or a wife ... may insure the life of his or her spouse for the benefit of himself or herself, or for the benefit of himself or herself and any child or children of the marriage; or a husband or a wife may insure his or her own life for the benefit of his or her spouse, or for the benefit of his or her spouse and children, or for the benefit of their children ... ; and such insurance and the proceeds and avails thereof ... is exempt from liability for the debts or engagements of the insured, or for the torts of the insured, or for any penalty or damages recoverable of the insured.” Ala. Code § 6-10-8.

b. Various provisions of Alabama law provide for survivors’ benefits to be paid to the surviving spouse. E.g., Ala. Code §§ 11-40-17, -18, -18.1.

c. A spouse is in the line of priority to act as surrogate for deciding matters relating to life-sustaining treatment (where no advance directive for health care has been made). Ala. Code § 22-8A-11. Alabama allows banks to turn over small accounts (up to $5,000) to a surviving spouse. Ala. Code § 5-5A-38.

d. There is a right of action for damages for injuries or death of employee “for the exclusive benefit of the surviving spouse and next of kin.” Ala. Code § 25-5-31.

e. A surviving spouse has a right to the balance of payments for the deceased spouse’s disability, under certain circumstances. Ala. Code § 25-5-57.

f. “[A]ny person may adopt his or her spouse’s child according to the provisions of this chapter …” Ala. Code § 26-10A-27.

g. State employees or retirees may cover a spouse under their health insurance plan, Ala. Code § 36-29-7.

h. Alabama provides compensation for the death or disability of peace officers and firemen to such person’s dependents, including spouse. Ala. Code, Sec. 36-30-1.

i. Any income earned by the spouse of a member of the Armed Forces of the United States killed in action in a United States Department of Defense designated combat zone shall be exempt from Alabama income tax during the taxable year in which the individual is declared deceased by the Armed Forces. Ala. Code § 40-9-37.

j. In the event one dies without a will, the surviving spouse may receive all, or a portion, of the estate as set out in Ala. Code § 43-8-41.

k. If real estate is sold in a foreclosure, Alabama law allows the spouse of the debtor and the spouse of the mortgagor (among others) to redeem the property. Ala. Code § 6-5-248.

l. Damages against a health care provider for lost future earnings (to be paid in periodic payments) are payable to the surviving spouse or both. Ala. Code 6-5-543.

m. After death of an employee, compensation for exposures to hazards of occupational disease are payable to a surviving spouse (and personal representative, parents, dependents, next of kin). Ala. Code §§ 25-5-118, 25-5-194.

n. A spouse of a married incapacitated person may appoint by will a guardian of the incapacitated person. Ala. Code § 26-2A-100(b).

o. Notice must be given to a spouse in a proceeding to appoint a guardian of an incapacitated person. Ala. Code § 26-2A-103.

p. A spouse is first in line to be appointed guardian of an incapacitated person. Ala. Code § 26-2A-104.

q. A spouse has a right to obtain life or disability insurance upon the other spouse. Ala. Code § 27-14-6.

r. Same-sex spouses are excluded from all of Alabama’s provisions for divorce and alimony, Ala. Code Title 30, Chapter 2, and all matters of Child Custody and Support, Title 30, Chapter 3.

s. A spouse may receive educational benefits for a deceased or totally disabled veteran or prisoner of war (Ala. Code § 31-6-5) or a partially disabled veteran (§ 31-6-6).

t. A spouse may retain certain license plates after the death of the other spouse: medal of honor recipient or prisoner of war (§ 32-6-254), “retired military” (§ 32-6-292), “retired educator” (§ 32-6-302), and “Alabama Gold Star Family” for the spouse of a person who died while on active military duty (§ 32-6-630).

u. Alabama provides health insurance for the spouse of an officer or employee of Alabama state docks, Ala. Code § 33-1-5.2.

v. The surviving spouse of a licensed funeral director may make application for examination to become a funeral director, Ala. Code § 34-13-74.

w. The spouse of a law enforcement officer or firefighter killed or totally disabled in the line of duty is entitled to educational benefits, Ala. Code § 36-21-102.

x. Alabama allows a spouse and dependents of a person covered under the State Employees Insurance Board (SEIB) health insurance plan killed in the line of duty or who dies because of any injury received in the line of duty to continue to be covered under the SEIB plan, with the cost to be paid from the State Treasury. Ala. Code Section 36-29-19.9.

y. Alabama allows local unit participants (e.g., any county, city, town or quasi-public organization of the state) to extend their Employee Retirement System (or State Retirement System) health insurance plan to their retirees and to the surviving spouses of active employees of the local units receiving benefits from the retirement system insurance coverage. Ala. Code §§ 36-34-1 and 2.

z. Alabama law provides for a monthly payment to the surviving spouse of any official who died before reaching 60 years of age, but who otherwise qualified to be appointed a supernumerary official. Under Ala. Code § 40-6-3, the official must be “survived by a spouse lawfully married to the official at the time of his or her death.”

aa. The surviving spouse of a tax collector, tax assessor, revenue commissioner, license commissioner, or other elected official charged with the assessment or collection, or both, of any ad valorem taxes of the county receives a payments due to the deceased under Ala. Code § 40-6-4.

bb. To form a family limited liability entity, eighty percent or more of the profits and capital interests must be directly or constructively owned by an individual and the members of the individual’s family, with family being defined as including a spouse. Ala. Code § 40-14A-1. A family including same-sex spouses would not qualify for this benefit because Alabama law refuses to recognize such a marriage.

cc. Normally, the basis of property for tax purposes is the cost of the property, but if the property was acquired from a spouse or former spouse in a transaction in which a gain or loss was determined, then the basis shall be determined under 26 U.S.C. § 1041, which provides favorable treatment for a spouse to, or for the benefit of, a spouse. Ala. Code § 40-18-6.

dd. Although generally, upon the sale or exchange of property, the entire gain or loss determined under Section 40-18-7 must be recognized, the gain or loss on transferring property to a spouse or former spouse is determined more favorably under 26 U.S.C. § 1041. Ala. Code § 40-18-8.

ee. The threshold for filing an Alabama tax return is more if a person is married and lives with his or her spouse than if the person is single and living with someone else. Ala. Code § 40-18-25.1.

ff. Alabama law allows favorable tax treatment to the surviving spouse of a taxpayer who at the time of his or her death owned a catastrophic savings account. Ala. Code § 40-18-312.

gg. Under 41-9-902, the Alabama Insurance Board may negotiate for and establish a health insurance plan for residents of the State of Alabama. Any insured electing this coverage may include his or her spouse and dependent children in the coverage if the insured pays for dependent coverage. Ala. Code § 41-9-904.

hh. The devolution of a decedent’s estate is subject to the elective share of a surviving spouse. Ala. Code § 43-2-830(c).

ii. A surviving spouse, whether provided for in a will or not, can take an elective share of the decedent’s estate as set out in Ala. Code § 43-8-70.

jj. Regardless of whether he or she elects to take an elective share, a surviving spouse is entitled to a homestead allowance (§ 43-8-110), exempt property (§ 43-8-111), and family allowance (§ 43-8-112). Ala. Code § 43-8-74.

kk. If a testator fails to provide by will for his or her surviving spouse who married the testator after the execution of the will, with certain exceptions, the omitted spouse shall receive the same share of the estate he or she would have received if the decedent left no will. Ala. Code § 43-8-90.

ll. The surviving spouse may retain possession of the dwelling house where the surviving spouse resided with the decedent, with the offices and buildings appurtenant thereto and the plantation connected therewith until homestead is assigned, free from the payment of rent. Ala. Code § 43-8-114.

mm. Whenever an employee dies intestate and is owed wages or salary, the employer may pay the amount due to the surviving spouse, and the money received will be treated as part of the exempt property, and, if the amount exceeds $3,500.00 the excess shall be part of the family allowance. Ala. Code § 43-8-115.

We left out some of the more complicated exemptions, preferences, etc.

Posted by: Ed Still | Aug 17, 2015 4:26:30 PM

I am not sure how much"denying fact" works, because the person is using a moral objection to avoid recognizing a fact in either case--the "fact" that the couple is already married or the "fact" that the couple is entitled to be married.

Posted by: Howard Wasserman | Aug 16, 2015 7:23:24 PM

My take is very similar to Benjamin's. As a practical matter, I doubt that there is a single person who objects to issuing marriage licenses who wouldn't also object to all the other things Howard enumerates. But I think, as a logical matter, one could feel more strongly about facilitating the creation of a marriage versus recognizing one that had already taken place. Before Obergefell a possible outcome was that states would not be compelled to enact SSM but would have to give recognition to marriages from other states. That was not illogical.

Posted by: TJ | Aug 15, 2015 2:47:42 AM

The "extent" argument has some force but it religion is at stake here, not mere logical analysis.

Perhaps, e.g., a person thinks it is particularly troublesome (as compared to two elderly people getting married) to be "involved" with same sex couples adopting. Or, something else. Particularly when a state allows that without marriage itself being in place.

Posted by: Joe | Aug 14, 2015 11:58:29 AM

I think those who want to differentiate between these cases would say that there is a difference in the extent to which one is morally implicated by being involved in creating/recognizing a marriage on behalf of the state, and merely acknowledging that the state /has recognized/ this marriage. If I think two people shouldn't get married (just because I don't think they're a good couple), then I might not want to be involved in their wedding. Once they are married, denying that they are married is denying fact, which is different.

Posted by: Benjamin Lehman | Aug 14, 2015 11:30:58 AM

Yes. This shows up in the contraceptive mandate area too. There are a range of things here, a range of beliefs. For some, yes, marriage licenses for same sex couples are particularly upsetting. But, there is to me no by definition special nature to this as a matter of constitutional principle.

Simply put, there is some special pleading going on (see also, Hyde Amendment), that to me itself has troublesome First Amendment implications.

Posted by: Joe | Aug 14, 2015 11:25:41 AM

Yes. And that is why, if these opt-out demands succeed, they threaten widespread chaos. Put differently, the organized anti-gay interests prodding the opt-outs won't be satisfied with the licensing question; instead, they will push on to all the items on your list, and more. (Or so, at least, it seems to me.)

Posted by: Joe Miller | Aug 14, 2015 10:00:35 AM

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