PA At Forefront Of Marriage Equality Fight

Pennsylvania has become a battleground state for marriage equality in the wake of the Windsor decision issued by the U.S. Supreme Court. The impact of Windsor and developments in Pennsylvania were presented jointly by the Family Law Section and LGBT Rights Committee on Aug. 5. Richard Bost, Michael Viola, Tiffany Palmer and Rebecca Levin served as panelists. Viola highlighted that Windsor struck down Section 3 of the federal DOMA, which defined marriage as being between one man and one woman, as unconstitutional. Windsor did not, however, strike Section 2 that allows states not to recognize same-sex marriages from other states. As such, Windsor did not provide nationwide approval of same-sex marriage. Pennsylvania still has a mini DOMA defining marriage as between one man and one woman. The commonwealth does not recognize same-sex marriages from other states.

Although Pennsylvania same-sex couples must go elsewhere to marry, they may still be entitled to some forms of spousal benefits. Benefits available to same-sex spouses are now being scrutinized at the agency level. Levin explained that two distinct tracks have developed that agencies are following in determining whether or not to grant spousal benefits. First is the place of celebration rule, under which benefits are granted if the state where the marriage was performed is a same-sex marriage state. Second is the domicile rule, under which benefits are granted if the state of residence of the same-sex spouses recognizes same-sex marriage.

Agencies that follow the celebration rule include immigration, financial aid (FASA), military spousal benefits, and federal employee benefits (health insurance and FMLA). Agencies that follow the residence rule include Medicaid, Medicare, veterans benefits, private employment benefits, Social Security and the IRS.

Palmer discussed the effect of Windsor on divorce practice in Pennsylvania. Same-sex couples who are residents of Pennsylvania must consider if and where to get married. Currently, 14 jurisdictions permit same-sex marriage. They are California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington. In selecting a jurisdiction in which to marry, each...