Though the point of this blog is to talk about recent developments in the area of family law, we would be bereft if we didn’t take a moment to recognize the life of U.S. District Judge Joseph L. Tauro of the District of Massachusetts. He passed away on Friday at 87 years old.

Judge Tauro presided over two cases attacking the federal Defense of Marriage Act. After finding that DOMA compelled Massachusetts to discriminate against its citizens in order to receive federal funding, and that it was the state’s right to recognize same-sex marriages and afford such couples any rights and benefits derived from that marital status. Judge Tauro’s decision was affirmed by the First Circuit Court of Appeals. The Supreme Court declined to take the case after the decision of U.S. v. Windsor struck down Section 3 of the Defense of Marriage Act defining marriage as between a man and a woman. Judge Tauro’s decision in 2010 could be seen as the first of what became a wave of successful legal challenges to DOMA and, ultimately, legalized same-sex marriage.

The attack on DOMA was not his only major case over his 41 year career beginning with his appointment by President Richard Nixon. Other notable cases include his handling of a class action law suit leading to major reforms in Massachusetts institutional case for developmentally disabled people, as well as his facilitating a settlement involving systemic discrimination in Boston’s public housing system. He had a significant influence on the law through his decisions and the impact those who worked for him and with him.


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.


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.

Pennsylvania Attorney General Kathleen Kane’s decision not to have the Attorney General’s Office defend the state’s version of the Defense of Marriage of Act justifies its own analysis, but in the mean time, it appears that Montgomery County’s Register of Wills was prepared to issue a marriage license to a same-sex couple today.  Though the couple backed out for unknown reasons, the willingness of D. Bruce Hanes to issue the marriage license in the face of countervailing Pennsylvania law indicates that it is a matter of time before a license is issued – and subsequently challenged – by a county in Pennsylvania.  A challenge to such a license is not a bad thing to proponents of same-sex marriage.

Unlike the ACLU-sponsored challenge to Pennsylvania’s DOMA (“PA.DOMA”) which seeks declaratory relief recognizing that PA.DOMA violates the 14th Amendment of the Constitution, an action to invalidate a marriage license from Montgomery County would likely be brought by an opponent to same-sex marriage. Standing to bring an action would be a major question – who has the legal standing to contest the validity of the license? It would seem that Pennsylvania Attorney General’s Office, as the chief law enforcement office of the state, would typically be called to invalidate the license, but having already articulated a refusal to defend PA.DOMA at the Federal level they clearly would not. If not the AG”s office, who? There has been speculation that the Office of General Counsel – the Governor and exective branch’s lawyers – could step in and defend the law in the ACLU case, so it is similarly possible they could act on the orders of the Governor to deal with a same-sex marriage license.

Mr. Hanes decision to issue a same-sex marriage license is a bold step and potentially opens another avenue to attack PA.DOMA besides the ACLU’s challenge in the Middle District of Pennsylvania. If today’s couple or another same-sex couple steps up to have a marriage license issued in Montgomery County, it will undoubtedly create another opportunity to address PA.DOMA at the state level.

June 27, 2013.  Yesterday was a landmark day in America.  The United States Supreme Court ruled that a statute passed by a large majority of both houses of Congress (by 5:1 margins) and approved as law by President Clinton on subjects related directly to the operation of the national government was unconstitutional because it encroached upon the rights of the individual states to regulate matters of family law.  It is a fascinating decision and it features some fascinating dissenting opinions that merit careful thought.

The case involved a homosexual or lesbian couple who married lawfully in Canada.  They lived and one of them died in New York state, a state that does give recognition to a marriage formed by two people of the same sex.  One of the pair died and left a substantial inheritance to her married partner.  As most of us know, the United States taxes the estates of those who die possessed of wealth of a certain size and that tax is substantial.  If you are married at the time of your death, you may leave an unlimited amount of wealth to your spouse without paying any estate tax.  If you leave it to someone not your spouse, the estate tax is imposed.

In 1996 Congress enacted and the executive branch signed the Defense of Marriage Act.  In substance it provided that all of the benefit’s the federal government conferred upon married couples were not to be made available unless the couple consisted of a man and a woman.  When Thea Speyer died and left her estate to her spouse Edith Windsor the United States imposed $360,000 in estate taxes because, under DOMA, the government of the United States did not recognize their marriage even though Canada had sanctioned it and New York (their home state) had, by judicial decision and state executive order given recognition to these relationships.

Ms, Windsor paid the tax but sued for a refund claiming that DOMA deprived her of equal protection under the fifth amendment to the United States Constitution.  Put simply, Ms. Windsor contended that the government of the United States had no justifiable basis to discriminate between married persons of the same sex and married persons of opposite sex.  The trial court, which is to say the United States District Court in Manhattan agreed with Ms. Windsor and directed the Internal Revenue Service to refund the tax on the basis that the 1996 DOMA did discriminate based on sexual orientation without a sound basis to do so.  Even though the Obama administration announced that it actually agreed with the District Court, it filed an appeal nonetheless so that the case could be reviewed by the United States Circuit Court of Appeals.  The clear purpose was to secure appellate review of the case even though the government agreed with the taxpayer.  On October 18, 2012 a three judge panel of the Second Circuit Court of Appeals held that persons of the same sex who were married under state law were a “quasi suspect” class for whom heightened scrutiny would be employed in evaluating any statute that treated them differently than others.  This was the first cases in which a United States appellate court had defined people of the same sex as quasi suspect and that statutes subjecting them to differing treatment were subject to intermediate scrutiny.

The United State Supreme Court decided to hear the case in December, 2012 although their order granting review directed the parties to brief whether this was a true “case or controversy” since the executive branch had taken the legal position on appeal that Ms. Windsor was wrongfully discriminated against and entitled to her tax refund.

A side note.  On June 6 of this year the Pew Research Center for the People and the Press reported that for the first time, a majority of Americans favor same sex marriage while 42% continue to oppose it.  The study noted how quickly attitudes toward this change in a fundamental institution of life had changed in the past decade.

Nonetheless, despite what the public may think, the Congress has never repealed or modified this law.  In its decision on June 26, the Supreme Court affirmed the Second Circuit decision and held that DOMA effectively created contradictory legal approaches to the same relationship within one state and thus diminished the predictability and therefore, the stability of relationships that the State of New York had, decided to endorse.  The decision was 5 justice voted to affirm and 4 dissented.

For this writer, what we see in the Windsor case is a sound public principal erected upon a very suspect constitutional base.  Were I King, (an aspiration which has thus far been thwarted) I would get government out of the business of deciding who could be married and who could not. Anyone of any sexual orientation could register to be married and thus voluntarily subject themselves to state laws governing marriage and divorce based upon their own decision.  Moreover, I don’t think it can be lost on any thinking individual that while we pretend to celebrate marriage through legislation like DOMA, we have concurrently made divorce more easily available than ever before (at least during what we term the “Christian era”).

But the dissenting opinions of Justices Roberts, Alito and Scalia note that there are profound procedural and substantive defects with the reasoning of the majority opinion.  The procedural one has to do with what Constitutional scholars call the real case or controversy doctrine.  The original of the principle dates to the administration of President Washington when the administration asked Chief Justice John Jay for advice concerning a federal law.  Jay wrote in response that the Supreme Court was not an advisory arm of government but an adjudicative one where only real cases involving adverse parties would be heard.  In this case, the United States took an appeal from a decision which it said it agreed with (DOMA is unconstitutional) in the hope that appellate courts would sustain their view of the law even though the view of the administration was directly opposite that enacted by the people through their representatives in Congress.  In 1911 a unanimous Supreme Court ruled that it would not hear a case involving Indian affairs where the court found the two parties before the court were not adverse but merely seeking an advisory opinion.  Muskrat v. United States 219 U.S. 346.

On the substantive side the Court did not find this to be a case commanding strict scrutiny as in race and sex based bias. There, the discrimination has been positively legislated against. Ironically, whether one sees it for better or worse, Congress legislated for this kind of discrimination, just as it has in the past approved laws discriminating in favor of veterans, first time home buyers or a panoply of other classes.  In this case the Court majority has said this is an encroachment of states rights to regulate family relations.

Certainly, there is a long history of the United States government abstaining from involvement in cases involving child custody, divorce, support and adoption. * But, here, the United States was not attempting to pre-empt state law or otherwise undermine its effect.  In the case of Ms. Speyer’s estate, the government said only that because of the nature of their relationship, the Speyer-Windsor family was not eligible for a federal exemption from a federal estate tax.  If Ms. Speyer and Ms. Windsor had lived for fifty years together in a state of complete harmony but without the benefit of a Canadian marriage license, the tax would have been due and collectible.  If one wishes to argue that this form of discrimination is stupid, this author would wholeheartedly agree.  But can we really say that the federal government has wrongfully encroached upon a state’s rights to regulate the family relationship of its citizens by adopting legislation that imposes a federal tax on a state’s citizens.  Had DOMA held that New York could not recognize marriage by persons of the same sexual orientation, I join with a majority.  But in this case, while I “concur” with the result espoused by the majority, a constitutional subterfuge was employed that leaves me uneasy.

In the end, neither side really got what they wanted.  As the Wall Street Journal noted in its editorial this morning, what will become of the couple that marries in Hawaii while working for the United States government, only to be re-assigned by the government to a state that does not recognize marriages between same sex individuals?  Is it an act of discrimination for the government to make such an assignment because it will affect how the couple would be treated?

DOMA was an ill-conceived statute that merely pretended to “preserve marriage.”  It has now bred a decision that pretends to celebrate federalism and the rights of states to experiment this experiment will be one marked by continued confusion.

*     The Congress has successfully entered this area before with statutes like the Parental Kidnap Prevention Act 28 U.S.C. 1728; The Child Support Recovery Act 18 U.SC. 228; Adam Walsh Child Protection and Safety Act.

**. Another curiosity. Ms. Speyer and Ms. Windsor married in 2007 and Ms. Speyer died in 2009.  Ms. Windsor asserted her spousal exemption rights not under a state statute (that was not passed until June, 2011) but what amounted to an executive order issued by then Gov. David Patterson in May, 2008 following a case decided by a New York Appeals Court.  See Martinez v. County of Monroe 850 NYS 2d 740 (2008).

The United States Supreme Court issued their decision on gay marriage earlier today.  The Court ruled on California’s Proposition 8 ban on gay marriage and the 1996 federal Defense of Marriage Act (“DOMA”), which denied federal benefits to lawfully married same-sex couples, finding that DOMA is unconstitutional and sending Proposition 8 back to California.

The ramifications of these decisions are immense.  By striking down Section 3 of DOMA, the Court has cleared the way for reconciling conflicting state laws on same-sex marriage with federal benefits and tax regulations.  In a 5-4 decision, Justice Anthony Kennedy wrote that DOMA violated gay couples right to liberty and equal protection, “[by] seeking to displace this protection and treating those persons as living in marriages less respected than others…”  From a fiscal perspective, this decision also paves the way for same-sex couples to file joint taxes and claim a spousal share of Social Security benefits, as well as avoid estate taxes related to real estate transfers (one of the issues which brought DOMA’s Constitutionality before the Court).

Worth noting is that DOMA is not entirely off the books; Section 3 of DOMA, which defined marriage, was found unconstitutional, however, Second 2 which recognized that states do not have to recognize same-sex marriages from other states remains in effect.  This aspect of the law was not subject to Constitutional challenge.  The consequence of this section remaining in effect is that it is up to the individual states to decide whether to recognize the same-sex marriage or civil unions permitted in twelve states (plus Washington, D.C.); the states do not have to grant “full faith and credit” to the same-sex marriages of another state.

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.


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."

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.