Since the striking down of the Defense of Marriage Act by the United States Supreme Court, many state courts have been trying to fill in the legal vacuum created between the legality of same-sex marriage and the lack of codified law through legislation.

Though many Courts of Common Pleas have taken on issues, it really requires good appellate decisions to establish precedential authority on an issue. This can take time since it requires the confluence of good facts applied to the right law (or lack thereof) to bring an issue in dispute and litigants prepared to take it to the appellate level. Consequently, it has taken time for cases dealing with nuanced same-sex marriage and other issues to make their way into the appellate system for determination, but with two years removed from the Obergefell case, we are starting to see these cases decided by the Superior and Supreme courts. In fact, just last December we saw the Superior Court reverse a Philadelphia County decision and establish that a civil union will be afforded the same access to the Family Courts as a marriage.

Recently, the issue of whether there can be a valid common law same-sex marriage was addressed by the Superior Court in In Re: Estate of Carter, S., Appeal of: Hunter, M. This is an issue which some county courts have addressed, but no further guidance from the appellate courts.  The Carter case involves the widower of a spouse killed in motorcycle accident.  In an action supported by the families of the couple, Michael Hunter sought exclusion from paying the 15% inheritance tax on the basis that he was Mr. Carter’s spouse and they had a valid common law marriage going back to 1997.  It should be noted that common law marriage was abolished in Pennsylvania is 2005, but common law marriages established prior to that time are valid, while same-sex marriage was not legalized in Pennsylvania until 2014.

The trial court, relying on the illegality of same-sex marriage until 2014 and abolishment of common-law marriage in 2005 held that Mr. Hunter proved neither the basis for a common-law marriage and, if he had, he was precluded from being grandfathered into common-law marriage because of the 2014 effective date of the legality of same-sex marriage.  Essentially, he barred Mr. Hunter’s claim by law and fact.

On appeal, the Superior Court found that the trial court erred and that Hunter and Carter did, in fact, establish a common law marriage. They considered the couple’s 1997 exchange of rings and words of intention to be married, as well their attempt to utilize every available legal means to protect their rights and mutually rely on each other (i.e. serving as medical and financial powers of attorney; being beneficiaries to each other’s policies; having joint financial accounts; owning property together).

More pointedly, the Superior Court held that due to judicial precedent, same-sex couples have the same right to marriage as opposite-sex couples and the court cannot rely on an invalidated provision of the Marriage Law to deny Mr. Carter’s rights through common-law marriage. In other words, once same-sex marriage was legalized in 2014, the courts cannot retroactively bar couples similarly situated as Hunter and Carter from demonstrating a common-law marriage prior to 2005. Same-sex couples should have always had the right to marriage; therefore, you cannot bar a common law marriage claim on the basis that the right was “established” in 2014.

In what some may construe as an effort by the Pennsylvania Superior Court to salvage something positive out of 2016, an Opinion was issued today which effectively opens Pennsylvania’s family courts to dissolve out-of-state civil unions

The matter of Neyman v. Buckley (No. 2203 EDA 2015) arose out of Philadelphia County.  The parties were attempting to have their 2002 Vermont civil union dissolved in the Philadelphia Family Court.  The trial court, however, dismissed the divorce complaint related to the civil union on the basis that it did not have jurisdiction over the action.  The trial court based its decision on statutory language which established the court’s jurisdiction to divorce parties from the “bonds of matrimony” and, therefore, could not issue a decree or order dissolving the out-of-state civil union.

The other problem in this case, was that Pennsylvania County examined the Vermont code and saw the procedural separation between dissolving civil unions and marriages. In short, Vermont retained a legal distinction between marriages and civil unions, though they gave them the same rights and access to the family courts. It was on this basis that the Philadelphia court dismissed the complaint to dissolve the civil union and noted that the action sounded more specifically in the civil trial division (i.e. address the civil union as a contract).

Neither party was contesting the dissolution of their civil union. They entered into the union in July 2002 before same-sex marriage was legal and began living separate and apart five months later in December. Since then, they have been living in legal limbo without having residency in a state to dissolve their union or access to the court’s due to Pennsylvania’s Defense of Marriage Act (DOMA).

Many family law practitioners, myself included, have successfully dissolved civil unions in some counties, but those courts which did so in some ways hindered the clarification of this issue. Despite the decisions legalizing same-sex marriage and invalidating Pennsylvania’s DOMA, the state legislature has not updated the marriage and divorce codes to account for the new law of the land. Without legislative action, it would be the appellate courts which would shape the law and offer some precedence to clarify the question as to what types of unions can be addressed by the family courts.

Within this context, the Philadelphia court, in denying the dissolution of an uncontested, no economic issue case, did Pennsylvania law a tremendous favor: it created a test case for which the Superior Court could weigh the argument offered by the trial court and conclude that, “the legal properties of a Vermont civil union weigh in favor of recognizing such unions as the legal equivalent of marriage for purposes of dissolution under the [Pennsylvania] Divorce Code.” Citing prior case law (Himmelberger), the civil union has a distinct “odor of marriage” and that the only substantive difference between a civil union and a marriage are “sexual orientation and semantics.”

The strong Pennsylvania public policy in favor of granting comity to another state’s laws so long as they do not contradict those of the Commonwealth was also cited by the Superior Court.  Pennsylvania family courts “must recognize their Vermont civil union as the legal equivalent of a marriage for the purpose of dissolution.”

Accordingly, the Superior Court reversed the Philadelphia County dismissal of the complaint and remanded it back to the Family Court to be addressed under Pennsylvania Divorce law. Practically speaking, this decision means issuing a Decree dissolving their civil union upon application by the parties and unambiguously establishing the Family Courts as a venue for dissolving civil unions.

 

 

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.