Property Law Developments—Joseph William Singer

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, — U.S. — (2015), that the Constitution’s due process clause protects liberty interests that include personal choices central to individual dignity and autonomy and that those include the right to marry, including someone of the same sex. The Court also held that it violates equal protection of the laws to allow male-female couples to marry but to deny that right to same-sex couples. For the same reasons, states must recognize same-sex marriages validly celebrated in other states.

The Cheyenne and Arapaho Tribes have allowed several same-sex couples to marry under tribal law. The tribal code is neutral with respect to the gender of persons who can get married and merely require one of the parties to be a tribal citizen. read article

The Supreme Court of New Mexico has held that the state public accommodations law applies to a photography business that offers its services to the public. Because that law prohibits discrimination based on sexual orientation, the business could not lawfully refuse to take pictures at a same-sex commitment ceremony because of the owner’s religious beliefs. Elane Photography v Willock, — P.3d — (N.M. 2013). The state public accommodations law does not violate the owner’s free speech rights since professions involving creativity or expression are not exempt from those laws. The court explained that “Elane Photography believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. Nor did the owner’s religious beliefs offer a reason to engage in discriminatory conduct. “Under established law, the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),” the court explained, citing Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) .

Section 3 of the federal Defense of Marriage Act (DOMA), 1 U.S.C. §7, Pub. L. No. 104-199, §3, 110 Stat. 2419, passed in 1996, denied federal recognition to same-sex marriages. This meant, for example, that for such purposes as calculating federal income tax, same-sex couples were not recognized as married and entitled to the tax advantages (and disadvantages) of marriage even if they were validly married under state law. A same-sex couple validly married in Massachusetts under Massachusetts law would file state tax returns as a married couple but would then have to file federal tax returns as two unrelated individuals. However, Section 3 was struck down as an unconstitutional violation of the due process and equal protection clauses on June 26, 2013 in the case of United States v. Windsor,  — U.S. —, 2013 WL 3196928 (2013). Windsor found that marriages have traditionally been governed by state, rather than federal law, and held that no legitimate government interest could justify treating same-sex married couples differently from those of opposite-sex married couples. Windsor does not answer the question of which state’s law should be used to determine whether a marriage is valid under federal law. The federal government could look to the law of the place of celebration or the domicile of the parties either at the time of marriage or at the time when recognition of the marriage is sought. For example, while the Veterans Administration looks to the place of celebration to determine if a marriage is valid, the Social Security Administration looks to the domicile of the parties. This issue will be worked out by future federal administrative action and possibly legislative reforms.

Maine, Maryland and WAshington states all passed referenda legalizing same-sex marriage on Nov. 6, 2012.

The Religious Land Use-Institutionalized Persons Act, 42 U.S.C. §2000cc, prohibits enforcing local zoning laws against religious institutions if those laws impose a “substantial burden” on the free exercise of religion and not justified by a compelling government interest that cannot be achieved in a less burdensome manner. The Ninth Circuit applied this statute to deny a city the power to exclude a church from moving to a larger building located in an area zoned for industrial use in the case of International Church of the Foursquare Gospel v. City of San Leandro, 2011 WL 1518980 (9th Cir. 2011). Read article. The church had become bigger over time and was looking for a new facility and hoped to move into an abandoned industrial building. The city hoped to attract a business to the site that would employ city residents and argued that its interest in promoting jobs was a compelling government interest justifying refusal to rezone the property for church uses even if this refusal imposed a substantial burden on religious freedom. The Ninth Circuit held both that job creation was not a compelling government interest that justified such a burden on religious freedom and that even if it was, there were less burdensome ways to achieve that result.