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 state's residency requirement must be considered. Once a same-sex couple gets married and moves back to Pennsylvania or another non-recognition state, Palmer described them as "wedlocked" because they cannot get divorced where they reside. Some recognition states are making it easier for same sex-spouses to get divorced. California, Delaware, Minnesota, Vermont and D.C. waive the residency requirement for same-sex spouses to file for divorce. But given the novelty of these circumstances, each of these five recognition states' statutes must be closely reviewed as various limitations apply and the procedures are still being developed.
Levin next discussed the effect of Windsor on prenuptial agreements. There are two main considerations for same-sex couples. One is in which state to get married. Levin recommended selecting one of the five states that allow non-resident same-sex spouses to return and get divorced without meeting the residency requirement. Each of the states' divorce laws should be closely reviewed to ensure that the prenuptial agreement meets all necessary requirements. Engaging local counsel for this purpose was highly encouraged by Levin. The second consideration is the choice of law applicable to the prenuptial agreement terms. Levin suggested selecting Pennsylvania law, in case the commonwealth recognizes same sex marriage in the future. As a fallback, Levin suggested choosing the law of the state in which the couple may move to in the future if that state recognizes same-sex marriage.
Challenge of Pennsylvania's mini DOMA came swiftly after Windsor. The recently filed cases of Whitewood, et al v. Corbett et al and Department of Health v. Hanes are both receiving much attention, particularly in light of the announcement by Pennsylvania Attorney General Kathleen Kane that she will not defend the mini DOMA.
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