Online extra: Friends of the Court: DPs fall short on privacy
written by Pamela Brown; edited by Molly McKay
"What is your marital status? What is the occupation of your spouse?" a Los Angeles judge asked prospective jurors. As Laura Brill, a potential juror in this case described in a Sacramento Bee op-ed piece "These defied easy answers. Why? I have shared my life with the same person for 20 years. We have two children. We are definitely not single, separated, or divorced. But we are not married either. As a same-sex couple, we cannot marry in California and if we married elsewhere, California would refuse to recognize that marriage."
Under oath, how would you answer those questions? Brill stated, "I considered 'I am single,' since I know I am not married. But that would be a betrayal." The only accurate response for Brill was to indicate that she was in a domestic partnership. But any question regarding relationship status for domestic partners also requires them to disclose their sexual orientation and for some, the potential of being "outed" may dissuade them from even registering at all.
The Anti-Defamation League and 10 LGBT community centers filed an amicus brief to highlight privacy concerns associated with domestic partnerships. In partnership with the Bay Area Reporter, Marriage Equality USA is featuring each of the 30 amicus "friend of the court" briefs submitted by hundreds of supportive organizations, professional associations, and religious institutions filed before the California Supreme Court in favor of same-sex couples' freedom to marry. In today's column, MEUSA will examine the Anti-Defamation League and LGBT Community Center amicus brief, along with the Santa Clara County Bar Association amicus brief that highlights the unnecessary and sometimes costly confusion that surrounds domestic partnerships.
"Uniformly applying the status 'marriage' to committed relationships would restore to members of (domestic partnerships) control over the contexts in which those individuals must disclose their sexual orientation." â€“ ADL/LGBT community centers amicus brief
The ADL/LGBT community centers amicus brief contends "because a person's sexual orientation is personal information that should be up to the individual to disclose and that has absolutely no relevance in the vast majority of circumstances, and because disclosure may lead to harassment, violence, and indignity, the state must have a compelling reason to require compulsory disclosure of that information about a person's sexual orientation. But rather than protect individual control of the dissemination and use of private information ... domestic partners quickly lose control of the dissemination of information about their sexual orientation. The neutral title 'marriage' would help restore such control."
"When we heard that gays and lesbians who take advantage of domestic partnership laws might have to notify their employers that they are gay, we found that invasion of privacy disturbing and unnecessary," said Desiree Holden, Stanislaus Pride Center coordinator. "Our pride center believes it is important to stand up for members of our community and this amicus brief gave us an opportunity to do so."
The ADL/LGBT community centers amicus brief states that "forced disclosure is objectionable not because there is anything wrong about being an a same-sex relationship ... what is objectionable ... is the requirement that domestic partners disclose their sexual orientation every time they identify or describe their relationship's legal status â€“ just as it would be objectionable to require persons in interracial or interfaith marriage to refer to their relationships by a distinct legal term."
"Because the domestic partnership registry contains a list of all registered same-sex couples in California and is readily available to anyone who requests it, the very act of registering as a domestic partner can place members of domestic partnership at a significantly increased risk of discrimination and violence." â€“ ADL/LGBT community centers amicus brief
As described in the ADL/LGBT community centers amicus brief, "the attorney general, an appellant in this action, has recognized anti-gay bias crimes as the second most prevalent form of hate crime in California." Despite that fact, the public can easily obtain the statewide registry of domestic partners that includes place of residence, while marriage licenses are registered county by county and disclosure of residence is not required.
"It is inconsistent for the state to express concern over hate crimes, including those perpetuated against LGBT Californians, and then provide a public registry of where these couples live," said Michelle Duetchman, western states counsel of the ADL. "Because of our concern over discrimination, and the violence associated with it, ADL has drafted a model hate crime legislation. Legislation identical or similar to this model has been adopted in 45 states. This privacy issue and the potential risk associated with it is yet another reason why the state should end the exclusion of same-sex couples from civil marriage."
"A person shouldn't have to choose between their personal privacy and protecting their relationship," said Holden. "But with domestic partnerships, gay and lesbian couples are forced to make that choice and that isn't fair."
The ADL and LGBT community centers, in filing this amicus brief, sought the pro bono services of Proskauer Rose, which has a very active privacy law practice group with a specialty in California's strict privacy laws. Referencing one of their publications, Proskauer on Privacy, the ADL/LGBT community centers amicus brief cites "the required disclosure of one's sexual orientation, through the state's system of 'parallel' schemes for same-sex and opposite-sex couples, is a marked departure from California's proud tradition of leading the nation in protection of private information. ... Of the fifty states, California has been far and away the most active in its efforts to enact laws protecting the privacy of its citizens."
"Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains." â€“ Perez v. Sharp
In Perez, the California Supreme Court ruled that state law banning interracial marriages was unconstitutional because it denied individuals the ability to marry the person of their own choice because that person might be irreplaceable. The ADL/LGBT community centers amicus brief asserts the ban on marriage for same-sex couples violates the privacy clause of the California Constitution because "it penalizes Californians for exercising their privacy right to form consensual familial relations with persons of the same sex" and that this restriction of choice is just as dehumanizing as it was with the ban on interracial marriage.
To further support their point, the ADL/LGBT community centers amicus brief cites a case, Committee to Defend Reproductive Rights v. Myers, to illustrate that this court has already ruled the state cannot condition a right or benefit upon an individual surrendering their right to autonomy, or freedom of choice, without substantial justification and asserts that in this marriage case, the court faces the same question as it did in Myers, whether "the state, having chosen to establish civil marriage, and all of the tangible and intangible benefits provided through marriage, may selectively withhold marriage from persons otherwise qualified ... solely because such persons seek to exercise their constitutional right to autonomy in a manner the state does not favor." The ADL/LGTB community centers amicus brief states "the remedy in this case must be the same as that in Perez: Respondents must be permitted to marry."
"The status of marriage cannot be replicated through California's domestic partnership scheme ... the practical application of the state's separate system has burdened same-sex couples with an unreasonable degree of legal uncertainty that threatens to affect every aspect of their lives." â€“ Santa Clara County Bar Association amicus brief
"The Santa Clara County Bar Association and our members are well aware of the legal and practical uncertainties surrounding domestic partnerships and the confusion same-sex couples and those that advise them face by the state's denying these couples access to marriage," said Tom Kuhnle, SCCBA president. "The SCCBA board adopted a resolution in favor of marriage equality and this amicus brief provided us with an opportunity to stand in support of that resolution."
The SCCBA amicus brief contends that, "the state's failure to grant full equality is not just symbolic. The confusion and uncertainty resulting from the state's separate system imposes tangible costs upon gay and lesbian individuals and the judicial system."
"We wanted our amicus brief to expose the uncertainties that are imposed by the state's construction of a separate system for same-sex couples," said Kuhnle.
Christine Peek, an attorney at McManis Faulkner & Morgan, the firm selected to write this brief, commented, "That was one of the challenging aspects of drafting this amicus brief. There is so much uncertainty surrounding domestic partnerships; the law is constantly evolving. Lawyers are used to dealing with uncertainty, but the state's separate system imposes too much uncertainty on same-sex couples. Given how difficult it is for lawyers to figure these things out, imagine how difficult it must be for a lay person to do so."
To illustrate this uncertainty, the SCCBA amicus brief highlights the July 2007 decision in Garber v. Garber where an Orange County judge court ruled an ex-husband had to continue to pay alimony payments even though his ex-wife was now registered in a domestic partnership. The judge stated, "A registered domestic partnership is not the equivalent of marriage. It is the functional equivalent of cohabitation."
Peek stated, "Although the state has argued domestic partnerships are comparable to marriage, decisions like these illustrate that the status of marriage matters. Domestic partnerships do not provide the same status and they never will."
The SCCBA amicus brief contends not only does the court have difficulty "applying the rules governing marriage to something that is not marriage ... courts do not treat domestic partnership as seriously as they do marriage."
Furthermore, the SCCBA amicus brief contends that, "Unlike marriage, domestic partnership is not universally understood." It can be confusing to individuals, health care providers, hospital staff, businesses, and the courts and "this basic lack of understanding creates difficulties for same-sex couples, who constantly must explain their relationships to others."
The SCCBA amicus brief continues; "Requiring same-sex couples to litigate their rights on a case-by-case basis doubly burdens them with the costs of constantly having to adjudicate their rights in court, and the inability to plan effectively for the future."
The SCCBA amicus brief concludes, "Same-sex couples should not be burdened with the need to set Supreme Court precedent in order to ensure they have access to substantive protections afforded to married persons under California law." The court has an opportunity to end the confusion and uncertainty that surround domestic partnerships by extending these couples the right to marry.
The complete amicus brief for the Anti-Defamation League/LGBT community centers can be found online at lambdalegal.org/pdf
In addition to the Stanislaus Pride Centers, other LGBT community centers that signed onto this amicus brief include the San Francisco LGBT Community Center, Los Angeles Gay and Lesbian Center, Sacramento Gay and Lesbian Center, San Diego Lesbian, Gay, Bisexual and Transgender Community Center, Billy DeFrank LGBT Community Center, Gay and Lesbian Center of Greater Long Beach, Desert Pride Center, the Lighthouse Community Center, and the Pacific Center.
The complete Santa Clara County Bar Association amicus brief can be found online at: lambdalegal.org/pdf
The Anti-Defamation League was founded in 1913 "to stop the defamation of the Jewish people and to secure justice and fair treatment to all." Now the nation's premier civil rights/human relations agency, ADL fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects civil rights for all. For more information, go to www.adl.org
For more information on the LGBT community centers that signed onto this amicus brief, go to Stanislaus Pride Center (www.stanislauspridecenter.com), San Francisco LGBT Community Center (www.sfcenter.org), Los Angeles Gay and Lesbian Center (www.lagaycenter.org), Sacramento Gay and Lesbian Center (www.saccenter.org), San Diego Lesbian, Gay, Bisexual and Transgender Community Center (www.thecentersd.org), Billy DeFrank LGBT Community Center (www.defrank.org), Gay and Lesbian Center of Greater Long Beach (www.centerlb.org), Desert Pride Center (www.desertpridecenter.org), Lighthouse Community Center (www.lgbtlighthouse.com), and the Pacific Center (www.pacificcenter.org).
For more information on the Santa Clara County Board Association, go to www.sccba.com
Marriage Equality USA is a national, nonprofit organization created to secure legally recognized civil marriage equality without regard to gender identity or sexual orientation at the federal and state level. For more information, go to www.marriageequality.org