Archives: Same Sex Marriage

Up until about two years ago, a good portion of questions which came through this blog were questions about common-law marriage. Usually, it was someone asking whether or not they had a common law marriage and if so/if not, what they needed to do to dissolve it or enforce it.

I felt bad for many of those people who described facts in which a long-term relationship abruptly ended or the need to be designated as a spouse to receive medical benefits. Often, their facts simply did not describe the criteria for a common law marriage under Pennsylvania law before it was abolished in 2004. The one critical factor always seemed to be lack of any specific intent to be considered “married” by the parties.

An interesting case out of Bucks County, however, recently applied common law marriage to a same-sex couple even though one of the partners was dead. The Honorable Theodore Fritsch Jr. granted the request of Sabrina Mauer to have her twelve year relationship with Kimberly Underwood declared a common law marriage. Ms. Maurer cited their 2001 New Jersey commitment ceremony as indicia of their intent to be married.

Ms. Mauer brought the Bucks County action after Ms. Underwood passed away in November 2013.  Since then she’s been refused certain spousal benefits and is required to pay inheritance taxes on Underwood’s estate; issues which, ironically, are nearly identical to those raised by Edith Winsor in the seminal same-sex marriage case, United States v. Windsor.

Judge Fritsch found the marriage valid back to the date of their New Jersey commitment ceremony. An article by Gina Passarella of The Legal Intellgencier quotes the Order as stating, “[their] marriage is valid and enforceable, and they are entitled to all rights and privileges of validly licensed, married spouses in all respects under the laws of the commonwealth of Pennsylvania.” Ms. Passarella also identifies that of the several governmental agencies which were put on notice of the action, none appeared to contest the case; the Department of Revenue sought more time to respond before opting not to take a position which, in such cases, is very much a position.

Prior to civil unions, domestic partnerships, and, eventually, marriage, exchanging rings and having a commitment ceremony before friends and family was perhaps the only symbolic way a same-sex couple could celebrate a commitment to each other.  This case proves that what was once a symbol, without any legal import in 2001, can ironically fulfill in 2015 the elusive element of common law marriage by demonstrating a public or cognizable intent of the parties to be married.

Unaddressed in the judge’s order or the article is the consideration of whether or not the timing of the entire relationship factored into the decision. Ms. Mauer’s common law marriage began in 2001 before the 2004 abolition of common law marriage and ended upon Ms. Underwood’s death in November 2013 – four or five months after Windsor essentially legalized same-sex marriage. Any common law marriage must be deemed to have been entered into before January 1, 2005; less certain is whether the relationship had to continue through the Windsor decision to be a valid common law marriage. If Ms. Underwood had passed away in 2012, would it have changed the outcome? Perhaps, it would. It may take other same-sex couples or widow/ers to raise this issue, but Judge Fritsch’s decision undoubtedly opens the door for such questions to be considered.

(Photo credit: 123rf.com; Jens Tandler)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

Last month brought us the decision of the U.S. Supreme Court that same sex marriages need to be recognized. While this is a milestone in its own right, the devil is often in the details. Along the road to the Obergefell decision, states devised different legal mechanisms to permit same sex relationships. These included civil unions and domestic partnerships in addition to same sex marriage. While we now have the guidance that these relationships must be recognized, it is not clear how and when.  A Philadelphia case decided in June illustrates the point.

In June 2014, a couple joined by a civil union undertaken in Vermont in 2002 filed to dissolve that relationship by means of a divorce action. Both were residents of Philadelphia, They each filed consents to dissolution of what they properly termed their “civil union”.  Thereafter a praecipe to secure entry of the dissolution/divorce was filed.

On June 22, 2015, Philadelphia Judge Margaret T. Murphy signed an order dismissing the action citing Pa.R.C.P. 1920.1(a) which explicitly references divorce and annulment of marriage. The Order held that its jurisdiction was confined to the bonds of matrimony and did not extend to a civil union.

In a motion filed on July 17, the Plaintiff sought reconsideration. That motion noted the precedent of Morales v. Purcell  (June Term 2012 Case 3303), a December 2012 decision where the Judge Leon Tucker approved a settlement agreement between a same sex couple as part of the Court’s equity jurisdiction but declined to dissolve the civil union because Pennsylvania does not recognize civil unions. Judge Tucker based that ruling on Himmelberger v. Pa. Dept. of Revenue (In re Estate of Warnock) 2011 Pa. D & C. Dec LEXIS 565 (2011) aff’d 47 A.3d 160 (Pa. Cmwlth 2012).  Himmelberger involved a New Jersey civil union and a claim by the surviving party to be a spouse from whom no estate tax would be due at death. Citing the Marriage Act both the trial and Commonwealth Courts held that the statute required a couple to be of opposite sexes to claim a spousal tax benefit. That case was decided before  Whitewood v. Wolf knock out the heterosexual requirement of the Marriage Act in May 2014  (992 F.Supp. 2d 410, 424 (M.D. PA. 2014)

The reconsideration motion quotes from Obergefell’s holding that “there is no lawful basis for a state to refuse to recognize a lawful same sex marriage performed in another state on the ground of its same sex character. Slip at p. 28.  A subsidiary argument was that under the doctrine of comity, Pennsylvania should give effect to laws and judicial precedent of another state out of deference rather than duty. Smith v. Firemens Ins. Co. of Newark,  404 Pa. Super. 93, 99 (1991). (wherein Pennsylvania gave deference to New Jersey’s compulsory insurance law to afford protection to a Pennsylvania resident injured in New Jersey). The premise to comity is that the deference does not offend the law of the locality or its stated public policy. Comity has been applied in same sex custody cases to give standing in New York to a parent whose legal status as such arose through a Vermont civil union. Debra H. v. Janice R. 14 N.Y. 3d 576,601 (2010). It has also been cited to declare a marriage void in Massachusetts where there was a subsisting civil union formed in Vermont.  Elia-Warnken v. Warken  972 N.E. 2d 17, 36 (Mass. 2012). The Warken case expresses that a Vermont “civil union is the equivalent of marriage”

This will remain a challenging area, and one need recognize that couples the celebrated the ruling of last month may be trying to assert a different position if their relationship dissolves. But that is nothing new.  And does comity save the day? This is itself an interesting question in a world where the General Assembly has stated that marriage can only involve a man and woman but the federal court has ruled that this legal distinction is not legally permissible under the United State Constitution.

N.B.  I’m indebted to Helen Casale of Hangley Aronchick, LLP for securing a copy of the reconsideration motion.

I just finished reading my partner Aaron Weems’ analysis on last week’s ruling by the U.S. Supreme Court that gay marriage is an institution meriting the respect of all fifty American states and not merely those which had endorsed the concept through referendum, legislative action or judicial fiat.

I use the word “fiat” with some measure because this was the basis for the dissenting opinions of Justices Scalia, Roberts, Thomas and Alito.  Unfortunately, the focus in the press has been on some of the intemperate language used in the dissenting opinions to take on the majority for declaring itself a kind of super legislature empowered to decide what society should approve and what it should not.  I write to say I find merit in this view and thought it best summarized in Justice Roberts’ comment that while advocates of gay marriage had reason to celebrate the ruling, defenders of the right of the people to speak through majority rule are shortchanged whenever the Courts decide that the legislature is not the final “say”.

I like that view but I must confess I like it in the abstract.  As I read the dissents I kept thinking about the 1954 decision in Brown v. Board of Education of Topeka Kansas.  In that case a unanimous Supreme Court ruled that the doctrine of separate but equal education of black Americans violated the clause of the 14th amendment declaring that all citizens of the United States are entitled to equal protection of the laws.  The Plaintiff’s in Brown effectively demonstrated that after 58 years, separate rarely if ever produced equal in public education, a fact perhaps most convincingly chronicled in Richard Kluger’s definitive history published in 1977, Simple Justice.  In 1954 there was an outcry that the Supreme Court had hijacked not only states rights but legislative democracy.  This contention is echoed in the dissenting opinions of Obergefell.  As a student of history, I am convinced that had the Brown court not pushed this change, the civil rights movement would have been a 100 year odyssey, if it had occurred at all.

Having contradicted my own argument, I hasten to recall some of the great questions posed during the argument of the Obergefell case earlier this year.  The question during argument that still resonates for me is whether courts have the right to abrogate polygamous marriages.  If the right to marry who you wish is a civil right, is there a reason why that right can be limited to only one person?

In the end, the point of examining the dissenting opinions is to better understand our tolerance for permitting courts to legislate sensitive issues like the one decided last week.  We have all seen, in recent years, that as the legislative branch eschews any controversy, more and more pressure is being applied to the judicial branch to decide issues like abortion, gun rights and legislative apportionment.  In one sense it can seem easy to accept rulings that decide things for us.  As Jason Sokol argues in his 2006 book, There Goes My Everything; White Southerners in the Age of Civil Rights after a rush to create separate private schools in the wake of Brown southern whites just as quickly abandoned that system and began to accept that change was inevitable.  But even though we might consider that result “right” there are elements of it that are inherently antidemocratic.  Recall Elizabeth Willing Powell’s question to Franklin at the close of the Constitutional Convention of 1787.  Asked what form of government the convention had adopted Franklin replied: “A republic, if you can keep it.”

 

When the Supreme Court rendered their 5-4 ruling on June 26, 2015 in the same-sex marriage case Obergefell v. Hodges the Court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex which was lawfully entered into in another state. In doing so, the Court eliminated any ambiguity about the viability and legality of whether a marriage legally entered into in one state would be recognized in another. Closed was the loophole which caused some couples to have their valid marriage ignored in another state due to the state’s laws.

Obergefell bookends a volatile two years in the Federal Court system which began with the decision in United States v. Windsor which invalidated the federal definition of marriage in the Defense of Marriage Act and created, on the federal level, legal same-sex marriage for the purposes of taxes, benefits, and other federal-level issues. Less certain, at that time, was the effect it would have on the states’ own Defense of Marriage Acts since it was widely believed that marriage was a “state’s right” to define and carry out.

Pennsylvania had its own watershed moment in the decision of Whitewood v. Wolf in May 2014 when Pennsylvania’s state version of the Defense of Marriage Act was struck down. At that point, the same issues existed for Pennsylvanians as they did when the Windsor decision was issued: same-sex marriage was a right established within the state and Federally, to an extent, but beyond the confines of the Commonwealth and those other states who recognized same-sex marriages, questions remained as to their rights in the event of death, divorce, or child custody where one or both parties moved to a state which did not recognize same-sex marriage.  Even with the decision of Obergefell, Pennsylvania has not revised its statutory definition of marriage and, as highlighted by Gina Passarella of The Legal Intelligencier, other issues exist which require attention, such as legal custodial rights of people who use some forms of assisted reproduction.

The primary, practical take-away from the Obergefell case is that the Supreme Court has recognized an inalienable right of two consenting adults to marry, regardless of gender. The right to marry is a profound and important right and the Supreme Court now gives the power of the Equal Protection Clause of the Constitution to ensure that a legal marriage in one state is a legal marriage in another state. Couples no longer need to be concerned that they cannot, for instance, make medical decisions for their incapacitated spouse because the state does not recognize their marriage.
Obergefell is a profound civil rights decision in a court docket which saw several important decisions, including a decision preserving the viability of the Affordable Care Act (aka “Obamacare”). Though the Obergefell decision closes a chapter in American jurisprudence, there will be cases and more decisions which challenge and define the impact on Obergefell in other areas, namely areas of religious liberty. Those cases will likely never touch the decision establishing marriage as a right to all, regardless of gender or sexual orientation and, effective June 26, 2015, there is no need to add the clarifying adjective/noun combination to “marriage” anymore.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

One of the consequences of legalizing same-sex marriage in Pennsylvania and elsewhere is that all of the old methods for getting around a same-sex marriage ban or lack of recognition of civil unions or domestic partnerships became obsolete or actual impediments to other legal actions under the new laws.  In what is easily one of the best examples of this form of unintended consequence is the case of Bill Novak and Norman MacArthur, two men in their late 70’s who have been a couple for more than fifty years and who have been, for the past fourteen years, father and son.

When they moved to Pennsylvania in the 1990’s, Pennsylvania’s same-sex marriage ban precluded recognition of their New York domestic partnership. They lose the state protections New York affords domestic partnerships, but still would not have had any Federal protections. Rather than risk not having legal protections of any kind related to their estates, accounts, or access to the other’s medical information, they took the step of having Mr. Novak legally adopt Mr. MacArthur as his son. The rationale was that in doing so, they established a familial status which could affect, among other things, estate taxes in the event of a death and next-of-kin status in the event of medical issues. In the absence of having those rights as a spouse, having the more limited rights of next-of-kin or child was the next best option.

Ironically enough, the legalization of same-sex marriage was not immediately available to him; a father cannot marry his son. So having taken the unusual step of adoption, they took the equally unusual step of asking the court to dissolve their adoption. Recently, Gary B. Gilman of the Bucks County Orphans’ Court granted their request to dissolve their adoption and cleared the way for their marriage. There is some public policy justification for not dissolving an adoption, since adoptions involve assuming the legal rights and obligations of being a parent. Mr. Novak and Mr. MacArthur’s situation, however, clearly demonstrated to the Court that an alternative, better form of legal protection is now available to them and overrides any public policy concerns related to dissolving the adoption.

I am sure there are other examples where the legalization of same-sex marriage and Federal court rulings have caused people in other domestic situations around the state to reexamine the steps they took to ensure certain legal protections and decide whether need to or want to use the tools available to them under the present laws. Certainly, the era of undertaking extraordinary and creative efforts to gain legal protections, such as adopting your partner, has passed.

On April 29, the United States Supreme Court heard arguments in Obergefell v. Hodges.  This case addresses the question of whether there is a constitutional right to marry that transcends the historic power of states to regulate who can marry.  If you go to the website of the U.S. Supreme Court you can read and listen to the arguments including the questions posed by the justices.  It is an interesting argument once you get passed the first few minutes where there are a series of exchanges referencing older cases touching on the constitutional decisions.

But while we wait for a decision, the ground is already starting to shift in the world of employee benefits.  In recent years, many employers began to offer health care benefits to all “couples” regardless of whether their status had the title of marriage.  It creates problems because it requires the employer to define what is a “couple”.  For that reason most companies decided to restrict this benefit to gay couples only because they were ineligible to marry.

Obviously, much has changed.  Today 37 states have adopted some form of gay marriage or civil unions.  And complaints are being registered with human resource personnel along the lines of: “How is it that Samantha can cover her same sex significant other on her health benefits but I can’t cover my girlfriend of twenty years on our plan?”

Employers offered this coverage to same sex partners as a means of showing their progressive approach toward employee needs.  But now, what started as progressive has become divisive and employers don’t like it.  So, memos are starting to hit the desks of gay employees affording them a limited period of time to either marry their same sex partner or risk seeing the non-employees coverage terminated in states where same sex marriage and unions are now recognized.  As the Wall Street Journal reported on May 13, if the Supreme Court rules that there must be recognition of gay marriage or unions in all states, employers are going to be driven to insist that marriage or civil union is a condition for any form of spousal benefit.  Some concern has been expressed that this is forcing the gay employee to come “out” by making a public declaration of his relationship and therefore, his or her sexual orientation.

Another approach, as referenced above, is for the employer to attempt to define what constitutes a couple regardless of sexual orientation or marriage.  But needless to say, that is a slippery slope and ultimately leaves open questions such as when is a “relationship” formed, when is it over and how are these events defined as a matter of law.

 

PIC

The momentum of success experienced by marriage equality advocates experienced its first set back on Tuesday, November 4th when the Sixth Circuit U.S. Court of Appeals (Ohio, Michigan, Kentucky, and Tennessee) ruled 2-1 that the states had the right to set their own rules for marriage and that any changes to the definition of “marriage” should come through the political process and not the courts.

The majority’s decision was interesting, insofar as it minimizes the Court’s role in interpreting the Constitutionality of Kentucky’s same-sex marriage ban. Judge Sutton, writing for the majority, cites concepts of Federalism to justify his position; the dissenting justice, Judge Daughtrey, takes exception to that argument and basically views the majority’s opinion as an abdication of the Court’s role to interpret the constitutionality of the law. Not surprisingly, each justice comes from a different ideological branch of the political tree with Judge Sutton having been appointed by President George W. Bush (as well as being a former law clerk to Supreme Court Justice Antonin Scalia); while Judge Daughtrey was an appointment from President Bill Clinton.

The Sixth Circuit’s break with the Fourth, Seventh, Ninth, and Tenth circuits decisions to strike down same-sex marriage bans may result in the Supreme Court taking up the case soon. The Supreme Court declined to take up a same-sex marriage case in its most recent session on the basis that there were no inconsistencies among the four circuits who have considered the issue. The success of same-sex marriage proponents was actually preventing what some might hope would be the coup de grace of same-sex marriage bans.

In September, Supreme Court Justice Ruth Bader Ginsburg told an audience at the University of Minnesota School of Law that the Fourth, Seventh and Tenth Circuits’ similar decisions on the issue did not create the “urgency” needed for the Supreme Court to consider the legal issue. If the Sixth Circuit’s decision doesn’t create “urgency” then it at least gets the issue on the Court’s radar. In the interim, it is possible that the Sixth Circuit case, Bourke, et al. v. Steve Beshear, et al., will be heard by the entire Sixth Circuit bench. The recent decision was made by the Circuit’s three justice panel; the appellant can ask for a vote from the Sixth Circuit en banc before seeking certiorari to the U.S. Supreme Court.

While viewed as a set-back for marriage equality proponents, it may prove to be the trigger for a Supreme Court review of same-sex marriage bans.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

Mont Co Courthouse Douglas Muth

This week I obtained a Divorce Decree on behalf of a same-sex spouse in Montgomery County.  What makes this Decree interesting and worth noting is that I believe it to be one of the first examples of a Pennsylvania court exercising full faith and credit to dissolve an out-of-state civil union under the Divorce Code, rather than a marriage.

The parties in this case have been separated for over three years and neither sought any economic damages from the other. After their civil union in New Jersey (which they obtained prior to New Jersey legalizing same-sex marriage), the couple found themselves relocated to Pennsylvania where they separated shortly thereafter. In the media coverage surrounding the marriage equality issue, it is not uncommon to hear of same-sex couples finding themselves in legal limbo after having moved to a non-recognition state. Such was the case of my client who, while wanting to legally sever ties with his spouse, could not relocate to New Jersey or elsewhere for the requisite amount of time to establish residency and file to dissolve the civil union.

The U.S. District Court for the Middle District of Pennsylvania case of Whitewood v. Wolf changed that for him and other spouses in similar situations.

Since the Whitewood v. Wolf case established Pennsylvania’s Defense of Marriage Act as unconstitutional, Pennsylvania joined eighteen (18) other states recognizing same-sex marriage.  Not only did this ruling allow same-sex couples in Pennsylvania to marry, but it also opened up the recognition of same-sex marriages and civil unions legally entered into in other states.

Whenever a court ruling precedes statutory reform, there can be some ambiguity as to how the new law will practically operate. While I had every expectation that a same-sex marriage could receive a divorce, a civil union, while similar in substance, is different in form from marriages.

New Jersey’s “Civil Union Law” is the predecessor to the New Jersey Superior Court decision in Garden State Equality v. Dow, which legalized same-sex marriage. The Garden State Equality builds upon the New Jersey case, Lewis v. Harris, 188 N.J. 415 (2006), which unanimously held that “the New Jersey Constitution guarantees same-sex couples in committed relationships the same rights and benefits as married couples of the opposite sex.”

The Whitewood case established that Pennsylvania needs to extend full faith and credit to the New Jersey civil union and has an obligation to provide a legal remedy for the dissolution of the parties’ civil union. Access to the legal system to dissolve the civil union is what makes my client’s case and those like it so important. Even without a revised Divorce Code, parties can seek redress in Pennsylvania’s family courts to dissolve their out-of-state marriages and civil unions.

(Photo Credit – Douglas Muth)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

Last May, Susan Foreman Jordan in our Pittsburgh office issued a very informative alert on the impact of the United States Supreme Court’s decision in United States v. Windsor on the IRS and Department of Labor recognition of same-sex marriages.

Susan identifies and explains how the IRS and Department of Labor clarified, so as to avoid any ambiguity, that if the same-sex marriage was legally entered into, then they would consider it a valid marriage even if the parties were domiciled in a jurisdiction which does not recognize same-sex marriage.

More technically, the IRS issued a Notice (Notice 2014-19) confirming that for qualified retirement plans and other employee benefit programs must recognize same-sex marriages as of June 26, 2013 when the Windsor decision was made, but that they do not have to extend retroactive recognition to that marriage. Susan expands upon that point and amending plan language to confirm to the Windsor decision.

Susan’s alert is really aimed at plan sponsors and what they can do to confirm with the law. It is also informative to plan participants to understand how the Windsor decision has affected their retirement plan.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

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Copyright: webdata / 123RF Stock Photo

This afternoon,U.S. District Judge John Jones ruled that Pennsylvania’s version of the Defense of Marriage Act banning same-sex marriage is unconstitutional. This decision, out of the Middle District of Pennsylvania, paves the way for legal, same-sex marriage in Pennsylvania. The repercussions of this decision remain to be seen, however, since there are other pending cases in other courts in the state, namely the validity of same-sex marriage licenses in Montgomery County.

This decision is the recent result of both sides of the case asking the court to make a determination on the pleadings, rather than going through a trial.

Read the full memorandum opinion here.