April 23, 2019

J. Ryann Peyton Named Next Director of Colorado Attorney Mentoring Program

RyannPeytonOn Tuesday, March 1, 2016, the Colorado State Judicial Branch announced the selection of J. Ryann Peyton as director of the Colorado Attorney Mentoring Program (CAMP), effective July 1, 2016. Peyton will replace John Baker, who in February 2013 was named the first director of CAMP. Peyton will begin at CAMP on April 1, 2016 and will work with Baker through his June 30, 2016, departure.

Peyton is currently the Training and Legal Director at the GLBT Center of Colorado. She has been at The Center since March 2015. Prior to her work at The Center, Peyton was in private practice, focusing on domestic relations law for LGBT and non-traditional families. She has also served as an adjunct professor in the University of Denver’s externship program, serves on the board of the Colorado LGBT Bar Association and is the former president of that association, served on the board of the Twin Cities Quorum (LGBT Chamber of Commerce) in Minnesota, and has been a board member for the Center for Legal Inclusiveness. She received her law degree from the University of St. Thomas School of Law and her LL.M. in Taxation from the University of Denver.

The CAMP program was established in February 2013 to develop and administer mentoring programs in all of Colorado’s 22 judicial districts. CAMP programming occurs through bar associations, inns of court, law firms, agencies, and other legal organizations throughout the state. In locations where no organization-related programs are available, CAMP matches mentors with mentees in an individualized program.

For more information about Peyton’s directorship, click here.

 

Dignity to All Persons: CBA-CLE to Host LGBT Law Institute

LGBTOn June 26, 2015, the United States Supreme Court decided in the landmark case Obergefell v. Hodges that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In reaching this conclusion, the majority relied on four principles and traditions that demonstrate marriage is a fundamental right under the Constitution, and applies with equal force to same-sex couples.

The first premise is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. The second principle in the Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education. Finally, the U.S. Supreme Court’s cases and our Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. Writing for the majority, Justice Kennedy stated:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it disparages their choices and diminishes their personhood to deny them this right.

What is the case law, legislation and culture surrounding the Lesbian/Gay/Bisexual/Transgender journey to this holding? Attend the Colorado Bar Association CLE’s Lesbian/Gay/Bisexual/Transgender Law Institute on September 24-25, 2015, and hear not only from Colorado Supreme Court Justice Monica Marquez, but also from Colorado Senator Pat Steadman on the LGBT legal history and landscape in our State and our Nation. Learn about changes in government programs after the Windsor case, and about LGBT issues in both the employment law and immigration contexts. Also find out about how to reach out to the LGBT community and the logistics of navigating through such legal issues as changing one’s name and Social Security if you are a transgender person.

The Institute will showcase many points of view. On August 13, 2015, the Colorado Court of Appeals affirmed a finding from May 2014 from the Colorado Civil Rights Commission that the Masterpiece Cakeshop’s policy of turning away a same-sex couple’s request for a cake violates Colorado’s Anti-Discrimination Act. The speaker at the Institute will address the topic from the perspective of Masterpiece Cakeshop owner Jack Phillips, who refused to bake a wedding cake for a same-sex couple because of his religious beliefs. Learned legal scholars will also discuss the salient points from both the majority and dissenting opinions in the Obergefell case. Religious freedoms in connection with LGBT issues will also be discussed.

There are many more topics to be found when you register here. We’ll see you in the front row on September 24-25.

CLE Program: Lesbian/Gay/Bisexual/Transgender Law Institute

This CLE presentation will take place Thursday, September 24, and Friday, September 25, 2015 at the CLE offices. Click here to register for the live program or click here to register for the webcast.

Can’t make the live program? Order the homestudy here – CD • Video OnDemand • MP3

SB 15-016: Clarifying Changes to Civil Unions When Same-Sex Marriage Becomes Legal

On January 7, 2015, Sen. Pat Steadman introduced SB 15-016 — Concerning Marriages by Individuals who are Parties to a Civil Union, and, in Connection Therewith, Prohibiting Marriages in Circumstances in which One of the Parties is Already in a Civil Union with Another Individual, Addressing the Legal Effect of Parties to a Civil Union Marrying Each Other, Clarifying the Dissolution Process when Parties to a Civil Union Marry, and Amending the Bigamy Statute to Include Parties to a Civil Union. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who will enter into a civil union after recent court decisions have declared same-sex marriage bans, such as section 31 of article II of the state constitution, unconstitutional. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same 2 parties. The executive director of the department of public health and environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between 2 individuals who are the same sex. The construction statute for the act is amended to clarify that it must not be construed to create a marriage, including a common law marriage, between the parties to a civil union. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in this state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act”. Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act”. If a civil union is merged into marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2015, to include a person who, while married, marries, enters into a civil union, or cohabits in this state with another person and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in this state with another person.

The bill was assigned to the Senate State, Veterans, & Military Affairs Committee, where it was postponed indefinitely on January 21, 2015.

Tenth Circuit: Oklahoma’s Same-Sex Marriage Ban Ruled Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Bishop v. Smith on Friday, July 18, 2014.

Sally Smith, the County Clerk for Tulsa County, Oklahoma, appealed the district court’s decision that Oklahoma’s same-sex marriage ban is unconstitutional. Smith also challenged the standing of the plaintiffs to bring the action, and whether the Oklahoma court clerk is a proper defendant as to Oklahoma’s non-recognition provision concerning same-sex marriages performed in another state. The Tenth Circuit determined that the plaintiffs had standing, affirmed the district court’s decision, and determined that the Oklahoma court clerk was an improper party regarding the non-recognition provision. In affirming, the Tenth Circuit applied its ruling in Kitchen v. Herbert, the Utah same-sex marriage case, in which it held that plaintiffs who wish to marry a partner of the same sex seek to exercise a fundamental right and state justifications for banning such marriages that hinge on the procreative potential of opposite sex marriage do not satisfy a narrow tailoring test applicable to laws that impinge upon fundamental liberties.

Mary Bishop and Sharon Baldwin are Oklahomans who are in a long-term relationship and wish to marry. They sought a marriage license from the Tulsa County Court Clerk in 2009 but were denied because they are both women. They have suffered harms from the denial, including incurring legal fees to prepare estate planning documents to confer upon each other the same rights they would have in marriage. Susan Barton and Gay Phillips were married in Canada in 2005 and again in California in 2008. They have suffered adverse tax consequences as a result of Oklahoma’s refusal to recognize their marriage, and say that Oklahoma treats them as inferior to their opposite-sex counterparts.

In November 2004, Bishop, Baldwin, Barton, and Phillips filed suit against the Oklahoma governor and  attorney general, challenging Oklahoma’s state constitutional ban on same-sex marriage. The governor and attorney general filed a motion to dismiss in 2006, which was denied, and appealed that denial to the Tenth Circuit. A panel of the Tenth Circuit determined in 2009 that plaintiffs failed to name a defendant having a causal connection to their injury, such as a court clerk. On remand, the district court allowed plaintiffs to amend their complaint to add Smith in her official capacity as Tulsa County Court Clerk, and to add challenges to §§ 2 and 3 of DOMA against the United States ex rel. Eric Holder. In 2011, the United States notified the district court that it would no longer defend § 3 of DOMA on the merits, and the Bipartisan Legal Advisory Group was allowed to intervene to defend the law. The case proceeded to summary judgment, and Smith submitted an affidavit that she had no authority to recognize out-of-state marriages, be they of same-sex or opposite-sex couples.

After the U.S. Supreme Court’s decision in United States v. Windsor, the district court entered an opinion and order disposing of the defendants’ motion to dismiss and the cross-motions for summary judgment. The district court ordered that Phillips and Barton lacked standing to challenge DOMA because state law resulted in the non-recognition of their marriage; any challenge to DOMA was moot in light of the Windsor decision; Phillips and Barton lacked standing to challenge Oklahoma’s non-recognition provision because Smith is not involved in recognition; and Oklahoma’s ban on same-sex marriage (Part A of SQ 711) violates the Equal Protection Clause. Smith appealed the decision regarding Part A and Barton and Phillips cross-appealed the conclusion that they lacked standing. The DOMA issues were not challenged.

Smith first contends that plaintiffs lack standing to challenge Part A of SQ 711 because they do not simultaneously contest a state statute to the same effect. However, the Tenth Circuit determined that a constitutional amendment would have the effect of superseding all previous statutes. The statute is not enforceable independent of SQ 711.

In addressing the merits of Smith’s appeal regarding Part A, the Tenth Circuit applied its reasoning from the Kitchen case. The Tenth Circuit opined that the Supreme Court’s dismissal in Baker v. Nelson is not controlling, plaintiffs seek to exercise a fundamental right to marry, and state justifications against same-sex marriage based on procreation fail to satisfy a strict scrutiny test. The Tenth Circuit first rejected Smith’s Baker arguments that lower courts are not free to reject summary dismissals, stating that her argument is undermined by the explicit language of the case creating the rule. Next, the Tenth Circuit evaluated her contention that children have an interest in being raised by their biological parents. The Tenth Circuit ruled that this contention is contradicted by statutes allowing adoption, egg and sperm donation, and other non-biological means for child-rearing. The Tenth Circuit noted that the state failed to raise arguments why same-sex marriage proposes a greater threat than other non-biological child-raising scenarios. Further, the Tenth Circuit stated that Oklahoma’s ban sweeps too broadly, because not all opposite-sex couples are able to procreate or are interested in procreation, and they are not denied the ability to marry.

As to the challenge to the non-recognition provision, the Tenth Circuit determined that Phillips and Barton lacked standing in this area because Smith is not a proper party. Smith submitted an affidavit to the effect that she is not able to recognize any marriages in her official capacity, and the affidavit is sufficient to establish that Smith is not a proper party regarding non-recognition. The Tenth Circuit sympathized with the plaintiffs, who have been litigating the issue for ten years, but suggested instead that if they attempted to file a joint tax return and were denied, they would be able to sue the Tax Commission regarding the denial.

The judgment of the district court was affirmed.

Tenth Circuit: Utah’s Ban on Same-Sex Marriage and Refusal to Recognize Same Is Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Kitchen v. Herbert on Wednesday, June 25, 2014.

In 2004, Utah legislators and citizens amended their statutes and state constitution (collectively referred to in the opinion as Amendment 3) to ensure that Utah “‘will not recognize, enforce, or give legal effect to any law’ that provides ‘substantially equivalent’ benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex.” Three same-sex couples filed suit under 42 U.S.C. § 1983 against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County, challenging the constitutionality of the two statutes and the constitutional provision. The plaintiffs sought a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement.

The district court granted summary judgment for the plaintiffs, holding that the statutes and amendment violated the fundamental right to liberty and denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. The court permanently enjoined enforcement of the provisions. The U.S. Supreme Court stayed the district court’s decision pending appeal to the Tenth Circuit.

The Tenth Circuit first considered the issue of standing because the Salt Lake County Clerk had not appealed the district court’s decision. The court held that because the governor and attorney general have actual supervisory power to compel county clerks to comply with Amendment 3, they had standing to appeal.

Next, the court held that the Supreme Court’s 1972 summary dismissal of Baker v. Nelson was not controlling precedent, especially after United States v. Windsor. In Baker, the Court dismissed, for lack of a substantial federal question, the appeal of a decision affirming Minnesota’s ban on same-sex marriage. Judge Kelly dissented from the portions of this decision regarding Baker v. Nelson and holding that the Fourteenth Amendment requires Utah to permit same-sex marriage and to recognize same-sex marriages entered into in other states.

In holding that the right to marry is a fundamental liberty interest, the court rejected the arguments that only opposite-sex marriage is a fundamental right and marriage is only a fundamental right because of procreation. The court also rejected the argument that the definition of marriage by its nature excludes same-sex couples. In describing a liberty interest, “it is impermissible to focus on the identity or class-membership of the individual exercising the right.” Fundamental rights do not change based on who is seeking to exercise them.

After deciding that the right to marry is a fundamental liberty, the court applied strict scrutiny to Amendment 3. The appellants contended Amendment 3 “furthers the state’s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction”; and (4) “accommodating religious freedom and reducing the potential for civic strife.” The court found Amendment 3 was not narrowly tailored to further the first three interests as the state permitted marriage by many nonprocreative couples. It noted these same arguments were rejected in Windsor. As to the fourth alleged interest, the court pointed out that public opposition cannot provide cover for a violation of fundamental rights.

The Tenth Circuit held that “under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. . . . A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

The court affirmed the district court and stayed its mandate pending the disposition of any petition for writ of certiorari.