What Same Sex Marriage Means for Pennsylvania Now
By now most of us who have followed the news know that the U.S. Supreme Court in two recent cases changed the trajectory of same sex marriage, finding in one, United States v. Windsor, that the Defense of Marriage Act, otherwise known as DOMA, is unconstitutional and in the other, Hollingsworth v. Perry, that appeal from a lower California court decision overturning Proposition 8, an anti-gay rights measure, would be affirmed on procedural grounds.
For residents of the twelve jurisdictions that recognize gay marriage, those now being California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, this means adding federal rights and responsibilities to the rights and responsibilities of married couples already enjoyed on a state level.
Delaware just yesterday began issuing marriage licenses to same sex couples. Another neighboring state, New Jersey, allows civil unions but not gay marriage. Pennsylvania in 2006 passed a law sometimes referred to as a “mini-DOMA” and will not recognize gay marriage or civil union at all.
What this means is that, at least for now, a confusing hodge podge of laws and regulations both federal and state to be interpreted in States like Pennsylvania that do not recognize gay marriage but have within their jurisdictions couples who have married in other jurisdictions.
If presented with a form that asks in a check box, “<a>re you married or single?” this should not be a complicated question. As matters now stand, the answer would be “for what purpose? is it federal or state? what is my place of residence? and before what agency?” Although my predictions have not always been successful, it is for this reason, the complexity of the response, that I believe some matters are going to be resolved in relatively short order.
What the DOMA decision does and does not mean. The approval by the U.S. Supreme Court of rights for gay and lesbian married couples for federal purposes does not mean that same sex couples may be married in Pennsylvania. Pennsylvania law continues to control marriage and no same sex marriages may be validly performed in Pennsylvania. Importantly, the decision has also been interpreted to not necessarily mean that same sex couples married in other states may have federal rights in Pennsylvania.
It would appear that, at least for now, some federal agencies in Pennsylvania would accept marriages performed in one of the twelve jurisdictions named above and others would not. Some federal agencies follow the “state of celebration” rule meaning that the marriage is considered valid if it was validly perfomed in the state where the marriage was celebrated. Other agencies follow the “state of residence” rule meaning that the marriage must be valid in the jurisdiction where the couple resides.
To add to the confusion it might be noted that, for benefits such as Medicaid in a nursing home, the nursing home resident may be applying for benefits while receiving services in Pennsylvania, a state that does not accept same sex marriage, but actually be a resident with her or his spouse in Delaware, a state that now accepts same sex marriage. A caseworker deciding the Medicaid application might need to study conflict of laws to decide whether such provisions as Community Spousal Resource Allowances or Minimum Monthly Maintenance Needs Allowances apply or whether each party’s resources are his or her own.
In an excellent article on his blog, Jeffrey Marshall, one of the foremost elder law attorneys and authorities in Pennsylvania, explained “Supreme Court strikes down Defense of Marriage Act – What does this mean for same-sex couples in Pennsylvania?” on June 27, 2013. See marshallelder.blogspot.com/2013/06/supreme-court-strikes-down-defense-of.html.
It appears that the Internal Revenue Service, the Social Security Administration and the Department of Veteran’s Affairs follow the “place of residence” rule and would not consider same sex Pennsylvania residents married elsewhere to be married. Immigration apparently follows the “place of celebration” rule and should therefore consider them married.
Some of this may change if the Obama administration determines that the “place of celebration” rule should be followed by other federal agencies. However, it does not change Pennsylvania’s rule. Note that not all advantages flow to those married. Insulation of assets for Medicaid, for instance, will usually flow to the benefit of singles. The crucial lesson for same sex couples for this and for health decision related issues is to plan.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.