Articles for June 2013

Supreme Court Rules that DOMA Does Not Actually Defend Marriage

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The United States Supreme Court’s decision this week in U.S. v. Windsor (related to the Defense of Marriage Act, referred to as “DOMA”) essentially prevents the Federal Government from treating same-sex married couples differently than “traditional” married couples, at least in states where same-sex marriages are recognized and protected by that State’s law. As such, the “benefits” applicable to married couples must be afforded to legally married same-sex couples in those states.

What this decision does not do is force States which do not recognize same-sex marriage to do so. The reason why the latter was not addressed by the Court is because that section of DOMA was not challenged in the underlying case by Edith Windsor, the widow of her same-sex deceased spouse, whose own claim related to the federal estate tax exemption for surviving spouses. Because the Court usually only addresses the narrow questions raised in a given case, it did not, in the Windsor case, address that section of DOMA that deals with State (as opposed to Federal) recognition of same-sex marriages. DOMA was not, therefore, completely invalidated, but it was substantially eviscerated.

What federal benefits are protected? According to the Supreme Court’s written opinion, there are more than 1,000 benefits that inure to married couples (in fact, according to the Government Accounting Office (“GAO”), there are specifically 1,138 federal rights associated with marriage), which now inure to all married couples regardless of whether they have a “traditional” marriage of two members of the opposite sex or a same-sex marriage. Prior to this ruling, DOMA effectively served to deny persons in same-sex marriages, even where recognized by their state’s own laws, these 1000+ benefits, while simultaneously making them available or applicable to opposite-sex married partners.

The impact of the ruling is that Mrs. Windsor, the Petitioner in the case itself, will be entitled to a refund of the $360,000 of estate taxes that she paid upon her spouse’s death, as she is now entitled to claim the “estate tax exemption” applicable to spouses under federal law.
Additionally, a list of the benefits now available to same-sex couples, in small part, includes:

• Social Security and Railroad Retirement benefits
• Veterans’ benefits
• Military service benefits
• Employment benefits
• Immigration benefits, including the right to have an alien spouse remain in the U.S. after marriage.
• Intellectual property benefits
• Medicare benefits
• A host of additional tax benefits.

The additional point to take away from this ruling by the Supreme Court, which is applicable to all Americans, regardless of their opinion on this issue, is that the Federal Government’s use of the state-defined class for the purpose of imposing restrictions and disabilities was inconsistent with Constitutional protections. In essence, the Court effectively said that the Federal government’s application of its law (DOMA) injured a class of persons which the State sought to protect.

We all have differing opinions on this, and many other issues. Regardless of one’s personal opinion, it is interesting to observe our judicial process balance the often competing interests of Federal government, State government, and individuals. In essence, the Supreme Court in Windsor effectively establishes only one type of marriage, at least with regard to applying Federal laws, by deciding that if a marriage is sanctioned by the sovereignty of the State that created it, the Federal Government must concede its validity.

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

How NOT to Utilize Social Media In Business

              Over the past few years, there has been a growth in the number of websites that allow customers, clients and patients to critique companies, services, and professionals, as well as an increased ability for people to use social media to express opinions, even anonymously. Since those with “gripes” tend to be more likely to get up on the internet soapbox, and reviews, therefore, may lean more negatively than supportive, at least one individual has gone on the offensive. A New York dentist, Stacey Makhnevich, required all of her patients, including Robert Lee, to sign an agreement preventing them from making public comment about her services. Interestingly, in “return” for this restraint of speech, Dr. Makhnevich promised not to do something that the law actually already requires of her, that being, not to exploit certain loopholes in the Health Insurance Portability and Accountability Act (“HIPAA”) with regard to patient privacy. How NOT to Utilize Social Media In Business

               Mr. Lee had a toothache and sought treatment from Dr. Makhnevich. Before treatment, however, she required that he sign this privacy agreement.  He did.  He was then personally billed almost $5,000 for dental services when the doctor’s office neglected to bill the insurance company for reimbursement. This put Mr. Lee on the hook for the entire bill, much to his surprise.  When Lee sought copies of his dental records, Dr. Makhnevich referred him to a third-party company which demanded $200 for a copy of his records. Not surprisingly, Mr. Lee was unhappy about this incident, and recounted his experiences on several websites where such reviews are accepted from the public.  He criticized Makhnevich for overcharging him, refusing to submit billing to his insurer, and told about the issue with the medical records, all of which were apparently true statements of fact.  In response, Dr. Makhnevich sent Lee a demand letter threatening to sue and seeking $100,000 in damages.  She then began issuing invoices to Lee charging $100 per day for “copyright infringement” which stated that a 1.5% late charge and a service charge of $20 would be imposed if not paid within 7 days. 

               Lee filed a pre-emptive suit in federal court.  Dr. Makhnevich responded with a motion to dismiss, taking the position that there was no controversy.  The court rejected this argument and denied the dentist’s motion to dismiss, citing the dentist’s aggressive attempts to enforce the agreement, using choice words and phrases such as “ridiculous, and “specious,” and one not often seen in judicial opinions…“wishful thinking.”  Mr. Lee’s case therefore remains pending before the court. 

               Although it may be tempting to try to use the force of law to fend off public criticisms of a business, profession, or service, it is certainly not clear that such a heavy-handed approach would be effective in that regard.  In fact, such efforts will invariably become public themselves, and are likely to be viewed as bad faith attempts to suppress one’s “freedom of speech” and hide honest opinions about poor service or conduct.  Dollar-for-dollar, it would seem that a business or professional would likely get a better return from an investment into efforts designed to improve customer service, rather than suppression of customer speech. After all, clients or customers who are unhappy are going to ultimately have their say, and clearly have a right to their opinions and to publicize them, whether via the internet, the water cooler, a social gathering or up on a real soapbox in the public square. Better that they should have a very simple and limited issue of general dissatisfaction than to be able to say that the business is trying to shut them up.

We will follow Mr. Lee’s case as it develops to see if the Judge makes good on his prophetic statement that this dentist’s arguments may be wishful thinking.  Lee v. Makhnevich, No. 11 Civ. 8665 (PAC), (S.D. New York, March 27, 2013).

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.