Frontiers in LGBT Family Law: Marriage and Beyond

Leave a comment

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.

Advertisements

Analysis of NJ Same-Sex Marriage/Civil Union Decision: Garden State Equality, et al v. Dow, et al

Leave a comment

Moments ago, the Superior Court of New Jersey issued a ruling in Garden State Equality, et al v. Dow, et al in favor of same-sex marriages.  The decision can be viewed by clicking here.  The goal of this article is to explain the decision and provide some analysis of its impact.

To understand the decision, you need to also understand the context of the decision.  In 2006 in Lewis v. Harris, the Supreme Court of New Jersey issued a holding that equal protection required that the same benefits extended to heterosexual couples must be extended to homosexual couples.  New Jersey, however, included a caveat.  In the court’s opinion, equal protection permits different labels as long as the rights available to each set of couples are equal.  As a result, New Jersey passed a law allowing for civil unions for same-sex couples which were identical to heterosexual marriages despite the different titles.  The utilization of civil unions by the legislature was then challenged , but a divided court upheld the use of civil unions.

Then, earlier this year, the US Supreme Court in Windsor invalidated the Defense of Marriage Act (DOMA) which resulted in the demand that the federal government recognize same-sex marriages.  This extended a plethora of rights and benefits to same-sex married couples to which they were previously denied.  The relevant intersection with the Garden State case is that the extension of benefits following Windsor has been consistently limited to married couples and NOT civil unions.

The basis of the challenge in Garden State then, which was ultimately validated by the court in New Jersey, is that Windsor is a game changer and, as a result, civil unions are no longer equal to heterosexual marriages because the designation of “civil union” denies same-sex couples all of the federal rights and benefits available to heterosexual marriages.  The court provides a full list of examples of the type of benefits denied to same-sex couples in civil unions.  The court, therefore, found that the “ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy.”  As a result, the court deemed that the distinction between marriages and civil unions was no longer superficial and therefore in violation of the requirements of Lewis.  It concluded that “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”

Analysis for Pennsylvania: While a significant victory for same-sex marriage, the effect will be limited to New Jersey.  New Jersey’s situation is unique in that its court system previously required that same-sex couples be afforded the same benefits as heterosexual couples.  This is wholly distinct from Pennsylvania, which has yet to require equal treatment either superficially or substantively of same-sex and heterosexual couples.  That does not change my long-term projection for same-sex marriage in Pennsylvania, but the impact of the decision stops at the Commonwealth’s borders, in my opinion.

Please feel free to email at mhovey@wolfbaldwin.com with any questions or concerns.  Thank you.