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.

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.

 

Earlier this month Delaware became the eleventh state to legalize same sex marriage when they passed Marriage Equity Act in the state Senate.  Passage was fairly close with 12 voting for the Act and 9 voting against it in the Senate, while the House had earlier passed it 23 in favor to 18 against.  Leslie Spoltore has provided the synopsis of the Act on our Delaware Trial Practice Blog as well as a link to the complete Act.

 

The immediate prompt for this brief article is the report on February 23, 2013 that Tiger Woods and his ex -wife Elin Nordegren were spotted at an event where they spoke together not for 30 seconds but 30 minutes.  In one sense this is not newsworthy at all but during the week, I had a spate of cases where I know the parents or friends and family of recently separated couples and where the parents/friends/family always knew that this marriage could not last and/or the couple never belonged together or he/she changed and is now unworthy of the friend or family member. This happens every day but when it happens to friends and family we want to rush to support the person we are closest to with words of support.

Express those views with caution or at your peril. Yes, you never did like his wife or her husband.  Yes, you saw all of the failings and frailties that your friend or loved one could not see; blinded by good looks or charm or in too many case: “none of the above”.  But when your friend finally screws up the courage to end the relationship or move in that direction, be aware that today, the rules are different.

Separation and divorce are never easy.  As folks who see this everyday, we recognize that a failed relationship is a difficult thing to face.  But in many cases, “history” or “children” or whatever mean that there is a wide gulf between separation and divorce. Friends and family who step into that breach with their views do so at their peril as couples often second guess themselves today and decide to reconcile.  If that occurs, your candor in expressing your views about the spouse is the only things that is left and sometimes that means loss of a friendship or relationship that you treasure.

If your friend or family member comes to confide in you that he or she needs to end their relationship with a spouse, be supportive.  But do so knowing that many marriages irretrievably broken on Monday are back together in some bizarre way by Thursday and that too much vocal support at your end could end up costing you an important friendship.

As we all know sometimes statistics tell a story.  And as we look at the evolving American family the data coming out of Pennsylvania tell an interesting story as the family has evolved over 50 years.  The chart will tell most of the story:

Year

PA Population

No. of Marriages

No. of Divorces

No. of Births

         

1960

11,319,000

71,835

14,429

241,100

1970

11,794,000

94,516

22,622

192,154

1980

11,864,000

93,673

34,922

158,670

1990

11,882,000

84,925

39,971

171,532

2000

12,281,000

74,311*

38,479*

145,874

2010

12,702,000

67,950

34,899

142,000

* This data comes from 2002 as the Pa. Dept of Health states it did not preserve data from 1999-2001 on these topics.

 

Some points we find interesting.  First the state’s population has actually started to experience some growth in the past 20 years after a generation of stagnation. But while the population had grown 11% over half a century the number of marriages has remained fairly static after peaking in 1970.  The number of divorces rose precipitously from 11-14,000 per annum in the 1950s to 22,622 in 1970.  By 1979 it almost doubled again to 39,808.  But since, 2002 it appears to have actually declined by a few percentage points.  The birth rate has plummeted 40% since 1960. In 1960 there was a child born for every 47 residents.  Today one child is born for every 89 residents.  So families are smaller and fewer folks are choosing the formalities of marriage.  But while the population has grown 3.4% in the first decade of the 21st century, the number of divorces actually declined by almost 10%. It does give one pause to ask: what is the future of marriage where over 40 years the population grew by 7% but the number of marriages performed fell during the same time frame by 28%?

There has been quite a bit of litigation and court decisions related to the Defense of Marriage Act and how it impacts state laws and the ability of states to enact federal laws due to different definitions of what constitutes “marriage;” traditionally, states have been left to decide how to handle domestic issues and the DOMA has been viewed as infringing on that area.

I examined some of those recent federal court decisions involving the DOMA and how they could impact a pending Pennsylvania case for this month’s issue of the Pennsylvania Bar Association’s “Pennsylvania Family Lawyer."

 

http://www.pabar.org/public/sections/famco/pubs/newsletters/pfl%20oct12.pdf

The Defense of Marriage Act continues to be found unconstitutional in various jurisdictions across the country. Most recently, the Southern District of New York held it to be unconstitutional for discriminating against married same-sex couples. In Windsor v. USA, the issue was the assessment of $363,000.00 in estate taxes to Ms. Windsor from the estate of her spouse whom she legally married in May 2007. Because the DOMA would not recognize the marriage, the transfer of property was not viewed as between spouses and thus exempt wholly or in part from Federal estate taxes. An excellent summary of the case written by New York Law Journal report Mark Hamblett was published in the June 7th edition of the Legal Intelligencer.

This decision comes on the heels of last month’s First Circuit Court of Appeals in Massachusetts ruling on Section 3 of the DOMA and continues the successful attacks on the constitutionality of the 1996 law.

Leslie Spoltore, a family law attorney in our Wilmington, Delaware office, recently posted a summary of Delaware Senate Bill 30 which was signed into law by Governor Jack Markell on May 11, 2011. This law effectively legalizes same-sex civil unions in Delaware and affords them the same rights and protections afforded to heterosexual married couples, including the dissolution of those unions. As we referenced in an earlier post, many Pennsylvania municipalities are taking the lead recognizing same-sex unions for the purpose of employment benefits; with the signing of this law, Delaware added itself to the growing list of states recognizing same-sex marriages and civil unions, while also providing such couples with access to the legal mechanism for getting divorced.

When I posted about the role of videoconferencing in custody matters it had not occurred to me that videoconferencing might also play a role in marriages as well. Yet, people all over the world have been utilizing services such as Skype to get married.

The trend is called “Marriage by Proxy” and is legal in only four states in the country: California, Colorado, Texas and Montana. A double proxy wedding, where neither party is present, is only legal in Montana. Generally, in a state where Marriage by Proxy is legal, only one party will be at the wedding and someone else will either stand-in for the absent party or the absent party will appear via video conference.

 

Members of the armed forces have taken advantage of videoconferencing when they can not be present in the same place on the date of their wedding. In 2010, an Air Force Captain deployed to Afghanistan wed his fiancée who lived in Texas. The couple had met on the internet and spent countless hours communicating through e-mail and videoconference, but had never actually met in-person when they were married. For them, getting married on Skype made perfect sense.

Same sex couples have tried to use videoconferencing to conduct their wedding ceremonies in states that allows same sex unions when their state of residence does not. Mark Reed and Dante Walkup tried to marry while in Texas using an officiant who was in the District of Columbia. The ceremony, which was attended by family and friends and included all the usual wedding pomp, was conducted over Skype. The couple traveled to Washington D.C. prior to the ceremony and obtained a valid marriage license. Yet following the ceremony, the couple was contacted by the Superior Court of the District of Columbia and told that the marriage was invalid. In order to validate their marriage, the couple and the officiant must be present within the District at the time of the ceremony.

 

While it might seem easier to have your groom appear on a television screen via Skype than to patiently await his return from abroad, be careful that you meet all the legal requirements (including who officiates) attendant to a Marriage By Proxy. The last thing you want is to find out, decades later, that you were never legally married.