Two years ago today, on May
20, 2014, the Supreme Court of Pennsylvania ruled
in the case of in Whitewood, et al., and
determined that same sex marriage would now be recognized in the courts of
Pennsylvania. As of that date, despite the fact that it was not yet
nationally recognized, the state of Pennsylvania determined that they would extend
the right of marriage to same sex couples throughout the Commonwealth of
Pennsylvania.
The opinion issued by the
court, which is linked below, (http://www.pamd.uscourts.gov/sites/default/files/opinions/13-1861.pdf) went
on to state that Pennsylvania, in addition to recognizing same sex marriages
performed within our state, would also recognize same sex marriages from other
states. This would mean that any same sex couples would have all of the
rights, and also the responsibilities, that came with traditional marriage,
including, though not specifically enumerated in the opinion, the right to
divorce.
It would be more than a year later, specifically on June 26, 2015, until the
Federal Courts, by way of the Supreme Court opinion in the case of Obergefell v. Hodges, would determine in that these rights should be
extended nationwide. It seemed that this
very emotional, complicated issue of same sex marriage had been rather
succinctly resolved by the courts.
However, neither the Supreme
Court’s opinion nor the State of Pennsylvania’s opinion spoke much about same
sex divorce. The fact of the matter is that most people do not
generally enjoy discussing divorce. Thus, it is probably not a
great surprise that when issuing this ground changing legal precedent, that the issue of what
happens when a same sex marriage ends never made its way into the courts’
opinions. Same sex divorce, however,
has made its way into our courts, and with it comes a host of novel issues
which have yet to be resolved through either legislation or through court
precedent.
In the case of a same sex
marriage, one of the most difficult questions to determine is what is the
actual date of marriage? The actual date that the same sex couple became a legally recognized
couple has been subject to a fair amount of argument in this burgeoning
area of law.
Let’s look at a hypothetical
situation:
Let’s say we have same sex
couple who met in Pennsylvania in the early 1990’s, dated for a period of time,
and began living together in 1994. Then, in 2005, the couple traveled out
of state to New Jersey to obtain a civil union and then returned to
Pennsylvania.
On exactly May 25, 2014, just
a few days after the Pennsylvania court’s May 20, 2014 decision, the couple
decided to become legally married in Pennsylvania. And on June 26, 2015,
the Supreme Court said they were married in all 50 states now.
Then, in May of
2016, the couple separated.
So When Did They Get
Married??
The federal government has only
recognized same sex marriage for a period of eleven months, but Pennsylvania’s
May 20, 2014 ruling allowed this couple’s marriage vows to take place in
Pennsylvania on May 25, 2014, and be legally recognized and recorded like any
other marriage.
However, the hypothetical
couple’s civil union in New Jersey began ten years prior to their legal marriage in Pennsylvania.
Further, the date they began to reside
together as a couple, in 1994, predates their legal marriage by another decade.
There is no real answer to
this question yet; because there is no prevailing case law, the question
remains to be answered.
Did the couple marry on June
26, 2015, when the Supreme Court recognized same sex marriage? Probably
not.
The states have the right to
afford greater protections and rights to their population than those afforded
by the federal government. Basically, the federal government’s rules and
rights, etc., are your baseline. The states have a fair amount of
latitude to expand upon those federal laws, and considerably less latitude to
infringe upon them. As such, June 26,
2015 would not be the couple’s date of marriage, given that Pennsylvania’s
right to issue an earlier ruling on same sex marriage occurred on May 20,
2014.
Did the couple marry on May
25, 2014, after the Pennsylvania Courts ruled in the case of Whitewood?
This date was when the
Pennsylvania Court recognized same sex marriage and
permitted the issuing and recording of same sex marriage licenses.
However, in the case of our hypothetical couple, they were together for more
than twenty years prior to the state’s ruling. Does that count for
anything? The case of Whitewood also gave full faith and credit to marriages
occurring in other states stating “and already married same sex couples shall
be treated as such.”
So did this couple’s marriage
begin in 2005, since they obtained a civil union in
New Jersey?
This date may not be right
either because in Whitewood, it states that there will be full faith and credit
to “already married” same sex couples. It does not say civil unions, and it does not say
domestic partnerships. If one looks to the laws of New Jersey, they have,
at various points in time, recognized domestic partnerships, civil unions, and
same sex marriages. Each of these is a separate legal animal, and none of
them automatically converts to the other.
So…can Pennsylvania give full
faith and credit to a New Jersey civil union, and treat that as the date of
marriage? Maybe. Some courts have done this, though I think a
technical reading of Whitewood does not extend that far, which leaves this
issue unresolved.
Finally, did the hypothetical
couple potentially marry back in 1995, when they began living together?
Again, this is a maybe.
Historically, Pennsylvania recognized
common law marriage, i.e. people are married if they held themselves out to the
world as “husband and wife.” Obviously in this case we are talking about
“husband and husband,” or “wife and wife,” so is it possible that it should
still hold true?
While the divorce code
amendments of 2005 directed that common law marriage would no longer be
recognized going forward, there was no prohibition on looking back on common
law marriages that came into effect prior to the 2005
amendments.
Is this perhaps what should
be happening with same sex marriages? Maybe. But again, the
fundamental issue is this: Is it even
possible for two people to hold themselves out in a husband and wife like
manner, when the right to be husband and husband, or wife and wife, did not
exist for them? Heterosexual couples who decided to act as husband and
wife, but not solemnize their marriage, had this other option. With same
sex couples, this option did not exist. Again, this would only be
applicable in a situation where the parties’ relationship predated the 2005
divorce code amendments, and the relationship existed for a duration of more
than ten years.
What happens with
relationships that existed for less than ten years? This is an excellent
question, because nobody knows for sure at this point. Many arguments
have been made that the courts (in their efforts to effectuate economic justice),
should look to the period of time that the parties were in a relationship, but
not yet in a legally recognized marriage. Of course, this opens the can
of worms for heterosexual couples who had resided together for long periods of
time prior to actually getting legally married to argue the same thing.
However, there is a factual and a legal argument to be made that the two are
not analogous, since the heterosexual couples would have had the right to get
legally married had they so chosen.
So when did they get
married?
Over the years, I am sure
this area of law will continue to develop and ebb and flow, but for now, there
are a lot of unanswered questions. We will keep you posted as new case
law begins to develop, which hopefully will not take very much longer.
If you have found this post
to be interesting, please feel free to share it, and to like my page. I would love to hear your thoughts in the
comments section below.
Thank you.
www.uncouplingpittsburgh.com
No comments:
Post a Comment