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.