Windsor v. United States: A Death Knell for Federal DOMA, but Pennsylvania Couples Still Face Discrimination
Tiffany L. Palmer, Esq. on 07/16/2013
About The Author
Ms. Palmer is a partner at Jerner & Palmer, P.C.
Justice Kennedy´s opinion striking down this central part of DOMA centered on an equal protection analysis; however, the precise constitutional basis for striking down the law was not entirely clear, as it included elements of federalism, equal protection and due process. The Court stated: "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment." Because the Windsor holding is restricted to federal rights and benefits, its implications for couples living in states that do not recognize same-sex marriages remains limited. This is because the determination of "legally married" for federal purposes varies from agency to agency. Some agencies define marital status by a "place of celebration" rule, meaning that if a couple has a legal marriage license from any state, their union is valid regardless of the law where they live. For example, the U.S. Citizenship and Immigration Services has a "place of celebration" rule, which means that bi-national same-sex married couples will now be able to sponsor a spouse for a family-based immigrant visa. However, most federal agencies apply a "place of residence" rule, which considers a marriage valid-and thus, spousal benefits valid-only if the marriage is recognized in the state where a couple resides. For example, the Social Security Administration applies a "place of residence" rule, which means that a spouse living in state that does not recognize a same-sex marriage cannot collect Social Security spousal disability, retirement and death benefits on the basis of the marriage. The Executive Branch has the authority to change agency rules, and after Windsor, President Obama has directed the Justice Department to "ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly." However, other statutory benefits will require an act of Congress to amend, which is unlikely to change any time soon since the House of Representatives is controlled by Republicans, who defended federal DOMA in the Windsor suit. Therefore, while the Windsor case is a landmark decision, its impact upon same-sex couples living in Pennsylvania is limited since it does not require that states either perform same-sex marriages or recognize same-sex marriages performed elsewhere. Pennsylvania´s Defense of Marriage Act (PA DOMA) governs the definition of marriage in Pennsylvania and states: "It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth." 23 Pa.C.S. § 1704 (1996). Therefore, if an agency applies a "place of residence" rule for allocation of federal rights and benefits for same-sex married couples, the federal government will defer to Pennsylvania´s definition of marriage for couples residing within the Commonwealth. In addition, for access to rights and benefits under state law, such as divorce, intestacy rights, exemption from inheritance tax and real estate transfer taxes, among hundreds of others, Pennsylvania couples will still face non-recognition of their marriages due to the Pennsylvania DOMA. Even though the benefits of marriage may remain elusive to Pennsylvania same-sex couples, it is likely that they will marry in other states in increasing numbers. As of August 2013, 14 jurisdictions will grant marriage licenses to same-sex couples. Pennsylvania borders three states that grant marriages to same-sex couples- New York, Maryland and Delaware. States that grant marriage licenses to same-sex couples do not have residency requirements in order to get married. Therefore, many Pennsylvania residents will travel to nearby states to obtain marriages, if they haven´t already. Same-sex couples who are contemplating an out-of-state marriage should be counseled as to risks of marrying in another jurisdiction, the most significant being the inability to obtain a divorce in the future. Most jurisdictions permitting same-sex marriage or its equivalent require residency prior to filing for divorce in their courts. As a result, many Pennsylvania couples who marry in other jurisdictions may find themselves "wedlocked" – married, but unable to obtain a desired divorce. Two Pennsylvania trial courts (Berks and Philadelphia counties) have considered the issue of same-sex divorce actions and both dismissed the divorce complaints on the basis of the PA DOMA and no Pennsylvania appellate court has considered the issue.
Only five of the 14 jurisdictions that grant marriage licenses will permit the couple to return to that jurisdiction for a divorce. These currently include: California (Cal. Fam. Code § 2320(b)); Delaware (Del. Code Ann. tit. 13, § 216); Minnesota (2013 Minn. Laws. ch. 74, § 8 (to be codified at Minn. Stat. § 518.07)); Vermont (Vt. Stat. Ann. tit. 15, § 592(b)-(c)); and Washington, D.C. (D.C. Code § 16-902(b)). Challenges to Pennsylvania´s DOMA are already well underway. Whitewood v. Corbett, was filed on July 9, 2013, by the American Civil Liberties Union on behalf of 23 plaintiffs in the U.S. Middle District. The case challenges Pennsylvania´s DOMA and its refusal grant marriage licenses and to recognize same-sex marriages performed in other states. As more same-sex couples in Pennsylvania seek access to federal and state benefits on the basis of their marital status, other suits will follow. Until Pennsylvania DOMA´s is struck down, the law governing same-sex couples who are married and residing in Pennsylvania remains complex and in flux.
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