Frontiers in LGBT Family Law: Marriage and Beyond

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I am pleased to announce my attendance today at the continuing education class “Frontiers in LGBT Family Law: Marriage and Beyond” organized by the Pennsylvania Bar Institute in Philadelphia. Topics of the class include changes in federal rights and benefits post-Windsor, detailed analysis of all the state and federal cases currently pending involving gay marriage in Pennsylvania, assisted reproductive technology and adoption for same-sex couples, custody issues, and other pertinent topics. The presenters also include Bruce Hanes, the Register of Wills and Clerk of the Orphans Court for Montgomery County, who is issued almost 200 marriage licenses to same-sex couples in Montgomery County.

Please check back over the coming weeks for articles on LGBT rights and legal issues. If you have any questions or concerns (legal or otherwise), please contact me at mhovey@wolfbaldwin.com.

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Reblog: What Do the DOMA and Prop 8 Decisions Mean for Gay Marriage in Pennsylvania?

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Moments ago, the Supreme Court of the United States issued two historic rulings concerning gay marriage.  In the first ruling, United States v. Windsor, the Supreme Court ruled that DOMA (Defense of Marriage Act) is unconstitutional.  Federally, the result is that valid same-sex marriages must now be recognized.  This will entitle same-sex couples to the same benefits as heterosexual marriages, including the right to file joint federal income taxes and share federally provided medical benefits.

The second decision, Hollingsworth v. Perry, dismissed the appeal in the Prop 8 case.  Some background is needed to understand this decision.  When Prop 8 was challenged a trial was held on its constitutionality.  At the conclusion of the trial, the court held that Prop 8 was unconstitutional and unenforceable.  At that point, the government for California conceded and accepted the ruling.  The supporters of Prop 8, however, filed an appeal pursuant to a unique California law.  That appeal reached the Supreme Court.  Today, the Supreme Court said that private individuals (e.g., the supporters of Prop 8) cannot take an appeal when the government (the party actually involved in the case) declines to appeal.  The ruling, therefore, is more procedural than substantive, meaning it did not directly address gay marriage.  The result, however, is that the trial court’s ruling will stand and Prop 8, which prohibited same-sex marriage in California, is unconstitutional, invalid, and unenforceable, thereby opening the path for same-sex marriages in the state.

The question many here at home are now asking is: what does this mean for gay marriage in Pennsylvania?  Immediately, there will be no impact because Pennsylvania has its own version of DOMA (23 Pa.C.S. § 1704).  The Pennsylvania law prohibits the Commonwealth from recognizing other states’ same sex marriages. As a result, same-sex marriages from the 12 states that grant them are still prohibited in Pennsylvania.  A same-sex couple married in another state will still be denied the right to share medical benefits provided by the Commonwealth, denied the right to file a joint tax return, denied the right to inherit from the other automatically and at the lower tax rate, and denied the right to divorce here in Pennsylvania.

Long-term, however, it puts the Commonwealth’s version of DOMA is significant peril.  What I predict will happen next is that a validly married same-sex couple will challenge Pennsylvania’s DOMA as unconstitutional, either because they were denied a divorce or inherited at a higher tax rate.  Even if the Supreme Court of Pennsylvania ultimately upholds the statute on appeal, we know now that if the matter is appealed to the Supreme Court of the United States, the state’s statute will almost certainly be ruled unconstitutional by the same rationale as the federal DOMA.  The constitutionality of the statute pursuant to the Full Faith and Credit Clause will also be in question, providing alternative grounds for its invalidity.  The result is pressure on both the legislature and the judiciary to strike down DOMA.  I predict that within five years, DOMA will either be repealed by the legislature or deemed unconstitutional and thereby unenforceable by the judiciary.  This will result in same-sex couples being entitled to the same rights as heterosexual couples in Pennsylvania.

If you are a same-sex couple in Pennsylvania and wish to further discuss the impact of these two rulings on your marriage, please contact me at mhovey@gmail.com.  Please check back on our blog for more analysis of these two historic decisions.  Thank you.