By: Rob Tyler

            Just weeks after the U.S. Supreme Court’s landmark decision overturning Section 3 of DOMA, there has been a drastic increase in the number of lawsuits filed throughout the country challenging state laws and constitutional amendments that prohibit same-sex marriage.  At the forefront are lawsuits filed in Pennsylvania, Arkansas and Illinois.

            The reason for this sudden influx appear two-fold.  First, the U.S. Supreme Court did not address how a couple who marries in a state that recognizes same-sex marriage is treated for federal purposes if the couples actually resides in a state that does not permit same-sex marriage.  Second, the U.S. Supreme Court failed to decide the fate of same-sex marriage in the states that do not currently recognize such marriages.

            The Pennsylvania suit, Whitewood v. Corbett, addresses both of these issues.  Of the 10 couples who initiated the suit, half have legally married in other states, but, of course, those marriages are not recognized in Pennsylvania.  The other couples are Pennsylvania residents who are unable to get married under current Pennsylvania law. 

              Interestingly, the complaint filed in Whitewood includes a sex discrimination claim, which may appeal to Justice Kennedy, who raised the sex discrimination issue during oral argument for Hollingsworth v. Perry.   However, the Supreme Court never actually addressed the sex discrimination issue in either the Perry or Windsor opinion.  As such, if Whitewood is appealed to the Supreme Court, the sex discrimination issue may be one of “first impression” for the Court.

             In the Illinois case, Darby v. Orr, the ACLU has filed a motion for summary judgment, requesting a swift end to the harm and indignity that same-sex couples without the freedom to marry face, which may include the continued inability to access federal marriage benefits.  The motion includes the testimony of a number of experts who believe that now is the appropriate time to legalize same-sex marriage across the country.     

            The Arkansas case, Wright v. Arkansas, contains claims that Arkansas’ constitutional ban on same-sex marriage violates the equal protection clause of the U.S. Constitution and the due process clause of the Arkansas Constitution.  Furthermore, the case seeks a ruling that the ban violates the Full Faith and Credit Clause of the U.S. Constitution by not extending to Arkansas citizens the same marriage rights that are available in other states, and by refusing to recognize same-sex marriages that have been entered into lawfully in other states.  A second lawsuit in Arkansas is rumored to be filed soon, and there have also been two proposals to amend the Arkansas Constitution to allow for same-sex marriage.

            According to the ACLU, its campaign for equal rights for same-sex couples has only just begun.  The ACLU plans on filing similar suits in North Carolina and Virginia.  With this kind of a push, and with Section 3 of DOMA overturned, state laws/amendments that prohibit same-sex couples from marrying are beginning to appear quite vulnerable.  As always, we will continue to keep you updated as these, and other, lawsuits develop.

Rob Tyler is an associate in the firm’s Pittsburgh office and focuses his practice on a variety of litigation matters.  He is also a member of the Nontraditional Couples and Families Group.

DOMA – Tax Treatment of Domestic Partner Health Benefits


By John E. McGrady, III

One question that employers have been exploring recently is whether you can stop taxing health benefits in light of the U.S. Supreme Court’s recent decision declaring the Defense of Marriage Act’s definition of marriage unconstitutional.  The complete answer is still somewhat unclear, and there are several basic tax principles to consider.

For individuals who receive domestic partner health benefits, but who are not legally married, the tax treatment will remain the same.  However, with respect to same-sex individuals who were legally married in one of the states that recognize same-sex marriage (or the District of Columbia) and who continue to reside therein, the health benefits provided to the non-employee spouse will no longer be taxable.  Currently 12 States (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Rhode Island, Delaware, Minnesota, Maine, Maryland and Washington) and the District of Columbia recognize same-sex marriage.  Also, in light of the Supreme Court’s decision to not rule on the Proposition 8 case, California will now start issuing same-sex marriage licenses.

With respect to individuals who were legally married in one of these states but who now reside in a state that does not recognize same sex-marriage, the taxation of health benefits is currently unclear.  The reason for this uncertainty is due to the fact that, for federal income tax purposes, the IRS traditionally looks to the state of residence to determine marital status.  Additionally, the Supreme Court’s ruling left in place the provisions of DOMA which provide that states need not recognize same-sex marriages occurring in another state.  While it is anticipated that the IRS is going to issue some form of new guidance in the near future to override this result for Federal income tax purposes (i.e., so that individuals covered by this situation are also treated as married for federal income tax purposes), the extent and effect of such guidance is not yet known.  Interestingly, a United States District Court recently ruled that, under Ohio law, the marriage of a same-sex couple who were validly married in another state must be recognized in Ohio.

While the Supreme Court’s decision does not specifically address retroactive application, in light of the fact that the relevant provisions of DOMA addressed by the Supreme Court were held to be unconstitutional, it may be possible to file refund claims for the employer’s and employees’ payroll taxes that were paid on imputed income from health benefits.  This would potentially cover any open tax years (i.e., 2010 forward).

For more information on this subject, please contact John McGrady at john.mcgrady@bipc.com or 412-562-1388.

John E. McGrady, III, concentrates his practice on employee benefits and executive compensation matters.  He is also a member of the Nontraditional Couples and Families Group.


Federal Judge Places Ohio On Path Toward Marriage Equality

 A federal judge in Ohio ordered state officials Monday to recognize the marriage of two men that was performed in Maryland on the death certificate of an Ohio resident in hospice care who the judge says “is certain to die soon.”

See the full BuzzFeed story by clicking on the link below:


Politics, History and Kathleen Kane’s Decision Not to Defend PA’s DOMA

by:  Mariah L. Passarelli

It has been a landmark year for same sex marriage rights in the United States, culminating in last month’s historic Supreme Court decision  in United States v. Windsor, 133 S.Ct. 2675 (2013), overturning Section 3 of the federal Defense of Marriage Act (“DOMA”).  A few days after the Windsor verdict was announced, both proponents and opponents of same sex marriage began sifting through the legal implications of the ruling.  Does Windsor mean that all same sex couples can file joint federal tax returns?  What if the couple got married in a state where same sex marriage is legal, but lives in a state where it is not?  What about social security benefits?  What about federal inheritance tax?  At this point, there are still more questions than answers. 

What we do know is that, as significant as Windsor is, it does not automatically confer additional rights to legally married same sex couples who live in a state, like Pennsylvania, where same sex marriage is not permitted.  Here, and in the other 36 states like us, same sex marriage remains a matter of state law. 

Less than two weeks after the Windsor verdict was announced, a group of 23 people (10 couples, a widow, and a lesbian couple’s two children), represented by the American Civil Liberties Union, filed the first post-Windsor lawsuit challenging a state’s gay marriage ban.  The case, Whitewood v. Corbett, was filed in federal court in Harrisburg, Pennsylvania, where it is expected to take several years to wind through the judicial system.  The lawsuit names, among other state officials, Pennsylvania Governor Tom Corbett and Pennsylvania Attorney General Kathleen Kane as defendants.

Tracing the political paths of Attorney General Kane and Governor Corbett leads you to an interesting crossroads.  Corbett was first appointed as Pennsylvania Attorney General in 1995, by then Governor Tom Ridge, to fill the remainder of the term when Attorney General Ernie Preate was criminally convicted of racketeering and corruption.  A condition on Corbett’s appointment, placed on him by PA Senate Democrats, was that he could not run for re-election as an incumbent the following year.  After two terms out of office, Corbett ran for Attorney General and was elected in 2004 and again in 2008.  Corbett served as AG for six years before being elected Governor of Pennsylvania in 2010. 

Upon Corbett’s departure, he appointed his own interim successor, Attorney General Linda Kelly, to fill the remaining two years of his term.  In 2012, Kathleen Kane became the first woman – and first Democrat – elected Pennsylvania Attorney General.  By garnering more than three million votes, Attorney General Kane outperformed both President Obama and PA Democratic Senator Bob Casey on the 2012 ballot.  In the short time since her election, Kane has often used this mandate to lobby against the Governor’s conservative initiatives. 

Perhaps, then, it is no surprise that three days after the Whitewood lawsuit was filed, Attorney General Kane announced that her office will not defend the Pennsylvania DOMA statute.  While Kane’s move is by no means the final word on the issue, it is a blow to the ban’s supporters.  To understand how much so, one must examine the important and unique role of Pennsylvania’s Attorney General. 

In 1980, with passage of the Commonwealth Attorneys Act, the PA Attorney General became an elected (as opposed to appointed) position.  The Attorney General is the chief law enforcement officer in the state and is completely independent from the Governor.  The AG’s office is responsible for state criminal prosecution and consumer protection.  It is also tasked with defending the Commonwealth and its various state agencies (including the Governor’s office) against civil lawsuits, like Whitewood

Indeed, since her announcement not to defend PA DOMA, state Republicans have argued that Kane’s decision is a dereliction of her duties as Attorney General.  Thus far, there appears to be no teeth to this argument, since the Commonwealth Attorneys Act contains conflicting provisions.  One provision states that the AG shall defend all state statutes absent an appropriate court ruling overturning them, another section states that the AG may refer defense of statutes to the Governor’s office if such a move is in the best interests of the Commonwealth.  One thing is certain, however: Attorney General Kane’s decision is identical to that made by United States Attorney General Eric Holder and the Obama administration, which decided that the Department of Justice would not defend federal DOMA in the Windsor case.

In announcing her decision not to defend the PA gay marriage ban, Kane stated “I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA as I believe it to be wholly unconstitutional.”  At this point, defense of the PA DOMA statute falls to the Governor’s Office who must delegate the case to one of its own attorneys or hire counsel from the private sector.  Because the Governor and the Attorney General are completely independent from one another, Governor Corbett cannot force Attorney General Kane to defend the statute.  Thus far, there has been no comment from the Governor’s office regarding whether or how he will defend the ban, although Governor Corbett’s spokesman has said the Governor supports PA DOMA.  With the Governor’s run for re-election just a year away, his handling of the case will have both personal political and public implications. To say the least, stay tuned!

Same-Sex Couples Sue for Right to Wed in Pa

The Corbett Administration is being sued for the right to wed as a result of the U.S. Supreme Court’s decision on gay marriage.  See the story below.

Same-Sex Couples Sue for Right to Wed in Pa

by Saranac Hale Spencer

2013-07-09 12:00:00 AM

In the wake of the U.S. Supreme Court’s recent decisions on gay marriage, 10 Pennsylvania couples and a widow are suing the Corbett administration for the right to wed.

The plaintiffs, joined by the children of one couple, have the backing of the American Civil Liberties Union and pro bono legal services from the Philadelphia law firm of Hangley Aronchick Segal Pudlin & Schiller.

About half of the couples were married in other states, but those relationships aren’t legally recognized in Pennsylvania. The other half have been unable to get married in their home state. They live in towns across Pennsylvania and the suit will be filed in the Middle District of Pennsylvania, which has a courthouse in the state capitol of Harrisburg.

“Pennsylvania’s exclusion of same-sex couples from marriage infringes on the due process clause and the equal protection clause of the Fourteenth Amendment to the United States Constitution,” the plaintiffs argued in their complaint.

They are seeking a declaration that Pennsylvania’s ban on gay marriage and refusal to recognize marriages from other states violates the Fourteenth Amendment. They are also seeking a permanent injunction of the ban.

The plaintiffs are announcing the suit in a press conference in Harrisburg this morning.

Please check back to our Blog for more information on this new issue.