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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.

 

Mexico Institute
(Photo Credit: Mexico Institute)

The battle over same-sex marriage rights in Pennsylvania has been simmering since last summer when concurrent litigation was initiated in a few different judicial venues. One case was filed in the Middle District of Pennsylvania and involves as plaintiffs eleven couples, two minor children, and a widow to a long-term partner. Having had the winter to conduct discovery, marshal together their legal arguments, and prepare for the final phase of litigation, both sides are coming out aggressively in search of a determination by the court before the June 2014 trial date.

Recently, the plaintiffs filed a motion for summary judgment which prompted a reply and cross-motion for judgment from the Commonwealth. In essence, the Commonwealth is asking the judge to rule in their favor on the basis that legislature has the constitutional right to define marriage as it is articulated in Pennsylvania’s version of the Defense of Marriage Act.

While the plaintiffs seek to invalidate Pa.DOMA on the basis that it violates their due process and equal protection rights under the 14th Amendment of the U.S. Constitution, the Commonwealth points to the legislative intent as demonstrating a legitimate state interest. The plaintiffs hope to use the momentum created by the U.S. Supreme Court’s decision in United States v. Windsor, et al. which upheld the invalidation of the operative portion of the federal Defense of Marriage Act; the Commonwealth is actually citing that case as proof that states have the right to legislatively define marriage as they deem fit.

To mix metaphors, each side’s attempt to win through summary judgment is analogous to throwing an early knock-out punch rather than go through the siege warfare of trial. If the judge decides to rule on the motions, a decision can be made after May 12th. Based on the article written by Dan Packel for Law360.com, the motions seem to make it likely the June trial date will be moved to accommodate the briefing and argument schedule for summary judgment.  

A determination adverse to the plaintiffs in this case would not eliminate the chance for marriage equality in Pennsylvania; the other cases filed would keep that opportunity open. However, it would be a serious set-back and carefully considered by pending litigation in Pennsylvania and nationally. Based on the outcomes of similar litigation in other states, upholding Pennsylvania’s DOMA and continuing to ban same-sex marriage would be appear be run contrary to prevailing national decisions.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of 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

A South Carolina attorney was recently disciplined for failing to have an active email address.

Despite characterizing herself as “retired” and not having a client in thirty years, the South Carolina Disciplinary Board still found that she “poses a substantial threat of serious harm to the public and to the administration of justice” for repeatedly failing to comply with the Court’s rule about having an active email address.

This case got me thinking about my practice, particularly my frustration with the tiny but hardcore group of attorneys who refuse to use email. One more than one occasion, I have had to take extra measures to hand deliver, courier, or Federal Express a document or correspondence to an attorney who does not use email. This has cost my client extra money to accommodate someone who is a rare exception in an industry that has accepted email, faxes, and smartphones (albeit, begrudgingly at times).

In one situation, I hand delivered a copy of a sizable responsive pleading to an attorney’s office. Faxing wasn’t an option and mailing would not work due to the forthcoming weekend. Though I could have served the document on the attorney at our hearing and been in complete conformity with the rules, I wanted to give the attorney the courtesy of having the pleading in advance. Had he used email, he would have had the PDF Friday afternoon to peruse at his convenience over the weekend. No good deed goes unpunished, however, and though his practice methods made service before the end of business on Friday virtually impossible (or, alternatively, cost prohibitive to the client), he nevertheless wrote a letter to tell me my hand delivery on Monday morning, in advance of the hearing, was “offensive.”

I scanned the letter into the system for future reference and dropped it in the recycle bin.

I recognize that some attorneys feel email is the scourge of the 21st century. The incorporation of email into smartphones makes us tethered to work around the clock. But in an industry that is essentially about customer service, it seems irresponsible – and in South Carolina, a breach of professional responsibility – not to have an active email account to communicate with clients, counsel, and the Court. To the best of my knowledge, no attorney in Pennsylvania has been disciplined for not having an email address or, even minimally, a fax machine. I can only speculate that it is a matter of time before a client – having become frustrated by being limited to either in person visits, phone calls, or “snail mail” letters – finds a new attorney or worse, files a disciplinary complaint against them.

 

IRS

On September 12th, the Pennsylvania Commonwealth Court issued a ruling which barred the Montgomery County Orphan’s Court Clerk, D. Bruce Hanes, from issuing any more same-sex marriage licenses.  As an example of the near constant local and national machinations of the same-sex marriage and the aftermath of the Supreme Court’s Windsor decision, a few days after the Commonwealth entered the injunction, the IRS issued a statement that legally married same-sex couples may use the “married” federal tax filing status.  The IRS will look to the validity of the marriage based on where the marriage took place, rather than the current residence of the couple.  In other words, if the couple were legally married in a state, they will be allowed to file as a married couple even if they live in a state like Pennsylvania which does not recognize that marriage.

It is a telling statement by Treasury Secretary Jacob J. Lew that “[same-sex] couples…can move freely throughout the country knowing that their federal filing status will not change.”  This is essentially applying the IRS’s applying full faith and credit to same-sex marriage.

Income taxes are only a sliver of the overall picture of how Windsor has impacted the federal government. Worth noting is that in a state like Pennsylvania, same-sex couples will have to file under a different designation for their state return. This will likely require the filing of “dummy” Federal returns which can be attached to the State filing, but that are not filed with the IRS. Taxes are already complicated and it is imperative that same-sex couples in Pennsylvania consult with an accountant if they plan to file Federal taxes as a married couple.

In a ruling issued on September 12, 2013, after considering over 500 pages of briefs filed by many “interested” parties the Pennsylvania Commonwealth Court issued an injunction proscribing the issuance of marriage licenses to same sex couples in violation of a 1996 statute limiting marriage to persons of the opposite sex.

While it appears that this is not the final word in a debate that began earlier this summer when Montgomery County’s Register of Wills/Orphan’s Court Clerk began to issue same-sex marriage licenses for the time being the appellate court has held, as stated in President Judge Dan Pellegrini’s opinion:

“A clerk of courts has not been given the discretion to decide … whether the statute he or she is charged to enforce is a good idea or bad one, constitutional or not. Only courts have the power to make that decision…”

Read more at http://www.philly.com/philly/news/politics/20130913_PA_Court_orders_Montco_to_halt_licenses_for_gay_marriages.html#sBj8TVx8oy0PSgKV.99

In a revenue ruling issued on August 29, the US Department of Treasury has announced that it will treat legally married same sex couples as qualified to file joint federal income tax returns without regard to whether their state of residence gives legal recognition to that status.  The key element is that the couple must have married in a state which gives legal recognition to same sex marriage.  States that merely recognize civil unions or other forms of domestic partnership do not appear to meet the test.

The government also announced that couples who have a legal marriage formed in a state that authorizes same sex marriage will also qualify for the unlimited federal estate tax exemption for estate provisions favoring that spouse. Thus, where a legally married same sex partner dies and leaves his or her estate to someone to whom they were validly married in a state recognizing these marriages, there is no estate tax due upon the death of the spouse.

No matter what your views on same sex marriage these changes in federal policy are huge.  If two women marry in Maryland and resume living in Pennsylvania, the federal government has announced that they may file jointly and may claim unlimited spousal exemption from federal estate tax should one of them die, even though domiciled and resident in this state, which has a statute forbidding recognition to same sex couples.

Last but not least, it appears that same sex couples who were married on the last day of Tax Years 2010, 2011 and 2012 are eligible to amend their returns from single to joint.  In many cases this will trigger significant tax refunds.

In similar news but in a different vein, the Commonwealth of Pennsylvania announced that Pennsylvania couples who marry here using licenses issues by the Register of Wills in Montgomery County will be treated as unmarried for all purposes involving state regulation.  They may, be treated as married by employers or even certain municipalities. But the state has declared these marriages have no consequence to state matters including income or estate tax due to Pennsylvania, worker’s compensation, unemployment and the like.  While lawsuits are pending to challenge the statute, the law remains valid although the Pennsylvania Attorney General has indicated that she does not intend to defend challenges to the statute.

 

register of wills

The legal filings have continued in the legal battle over D. Bruce Hanes’ decision to issue marriage licenses in Montgomery County, Pennsylvania to same sex couples.  The Corbett administration filed a brief on Monday, August 12, 2013 in support of their position that Hanes cannot issue marriage licenses to same sex couples.   It appears, from the docket, that Hanes and Montgomery County have until Monday, August 19, 2013 to file a responsive brief, after which the Commonwealth Court will entertain legal argument on the issue.

 

It didn’t take long for the marriage licenses issued by Montgomery County Register of Wills, D. Bruce Hanes, to come under fire.  Questions as to who might have standing to challenge the licenses and who might prosecute the case were answered on Tuesday when the Pennsylvania Department of Health filed an injunction in the Commonwealth Court asking the Court to enter an order barring Mr. Hanes from issuing any more same-sex marriage licenses or accepting completed marriage certificates after the marriages have been solemnized.  There is debate as to whether the Department of Health has standing to challenge the licenses and that argument may be raised in defense to the Department of Health’s lawsuit.  Montgomery County’s solicitor, Ray McGarry, has already articulated an intent to defend Mr. Hanes decision to issue the licenses.

The Department of Health’s injunction will be argued by the Office of General Counsel. After the state Attorney General’s stated refusal to defend Pennsylvania’s Defense of Marriage Act on the basis that it unconstitutional, the Office of General Counsel was expected to step in on any litigation related to same-sex marriage and Pennsylvania’s DOMA. They will be defending Pa.DOMA in the Middle District against the ACLU’s challenge and prosecuting the action against the Register of Wills and Montgomery County Orphans Court on behalf of the Department of Health.

These two lawsuits could radically reshape Pennsylvania’s law on same-sex marriage. Crafting the “right” case to challenge an issue like same-sex marriage carries with it a lot of risks; there are few opportunities to attack a law and a loss in either case does not mean that another challenge is readily available.  A set back on either or both cases could temporarily stop the momentum in Pennsylvania created by the Supreme Court’s “Windsor” decision.  However, by taking two very different approaches to attacking the issue resulting in two distinct courts, proponents of same-sex marriage have avoided putting all their eggs in one basket.

 

 

The case of  Cozen O’Connor v. Tobits was on administrative hold by U.S. District Judge C. Darnell Jones II pending the recent U.S. Supreme Court’s decision regarding the Defense of Marriage Act. The Cozen O’Connor case involves the distribution of retirement benefits from a deceased attorney’s profit-sharing plan to her spouse, Jennifer Tobits. The case really deals with ERISA language which controls certain retirement accounts; as a Federal statute, it was uncertain that ERISA law allowed a distribution to a same-sex spouse so long as DOMA defined marriage as between a man and a woman.

When the Supreme Court struck down the definition of marriage in the United States v. Windsor decision, the Eastern District was able to employ what amounts to a gender neutral definition of the spouse; since Ms. Tobits and her spouse, Sarah Ellyn Farley, were legally married in Canada Judge Jones was able to rule that she was the default beneficiary of the profit-sharing plan.  This case has been in litigation for a while and in January 2011 we discussed the issues brought before the Court – issues which really were focused on ERISA law, rather than same-sex marriage since both sides believed that this issue could be avoided altogether.

Nevertheless, Judge Jones’ decision to suspend the case pending the Supreme Court’s decision in Windsor gave the Eastern District the advantage of pointing to direct guidence as to whether a Federal definition of marriage existed; finding no such definition, Judge Jones was able to address the case before him without having to address current Pennsylvania law banning same-sex marriage. 

As recent events have demonstrated, the issue of same-sex marriage in Pennsylvania is evolving. Though the Cozen O’Connor case has little impact on internal Pennsylvania politics, it is probably one of the earliest decisions to use the precedence set by the Supreme Court in the Windsor case to decide a case.

Given the decisions regarding Same Sex Marriage handed down by the Supreme Court of the United States in Hollingsworth v. Perry and United States v. Windsor, the issue of Same Sex Marriage at the state level has become increasingly important.

Two recent developments have taken place in Pennsylvania which will bring the issue to a head.

First, the ACLU filed suit in Pennsylvania on behalf of twenty one plaintiffs, who want to marry in Pennsylvania or who want to have their out of state marriages recognized within the Commonwealth.

Additionally, D. Bruce Hanes, the Register of Wills in Montgomery County, Pennsylvania, announced that Montgomery County will begin issuing marriage licenses to same sex couples in Pennsylvania.  This, despite that Pennsylvania has a state law that limits marriage to one man and one woman.  And, as of the morning of July 24, 2013, one license had been issued to a same sex couple.