Same-sex marriage is back in the Supreme Court. Here’s what a ruling will mean.

The Supreme Court on Tuesday, April 28, will hear oral arguments over whether states’  same-sex marriage bans are constitutional, setting the stage for a final decision on marriage equality by the end of June.

Federal appeals courts have disagreed on whether states’ bans violate the US Constitution’s 14th Amendment, leaving it to the Supreme Court to decide the issue.

Same-sex marriages are already allowed in 37 states and Washington, DC, but many hinge on lower courts’ decisions in favor of marriage equality.

For the full story, click on the link below:


New DOL Policy Extends FMLA Spouse Coverage to Legally Married Same-Sex Couples


Mariah L. Passarelli

The Secretary of the U.S. Department of Labor (“DOL”), Thomas E. Perez, sent an email on August 9, 2013 notifying his staff of a policy change that expands “spouse” coverage under the Family Medical Leave Act (“FMLA”) to a legally married same sex partner as a result of the Supreme Court’s decision in United States v. Windsor, 133 S.Ct. 2675 (2013).

 In Windsor, the Supreme Court struck down portions of the federal Defense of Marriage Act (“DOMA”), thereby legitimizing the marriages of thousands of same-sex couples who had been legally married in one of the twelve states[1] or Washington D.C., where same-sex marriage is permitted by law.  In the aftermath of Windsor, individuals married in one of the legalized states or D.C. are considered to be married from a federal benefits perspective. However, because many federal laws depend upon the individual’s state of domicile, it has not been entirely clear what effect the case will have on individuals who were married in one of the legalized states, but reside in a state where same-sex marriage continues to be unrecognized. 

 In one of the first clarifying directives to come from the federal government describing the Windsor decision’s impact on specific federal laws, the recent email from DOL Secretary Perez states that, effective immediately, legally married same-sex partners are now considered to be “spouses” under the FMLA. This change means that qualifying individuals may take FMLA leave to care for a legally married same-sex partner who has a serious health condition, regardless of whether the state in which that couple lives recognizes same-sex marriage.  This expansion also applies to the spouse provisions of the Qualified Exigency Leave and Military Caregiver Leave sections of the FMLA. Significantly, however, same-sex partners who are not legally married continue to be unprotected by the FMLA.

 Given the DOL’s directive, Employers should consider revising their FMLA policies to treat a legally married same-sex partner as a spouse.”


[1] As of the date of this writing, same-sex marriage is recognized in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington D.C.

Mariah L. Passarelli is an associate who focuses her practice on a variety of labor and employment law matters, from employment contracts to complex litigation.  In addition to her work in the Labor & Employment Section, Mariah is a member of the firm’s Nontraditional Couples and Families practice group.

The Aftermath of DOMA: Sales Boon, HR Burden?

by Kristi Davidson

Kristi Davidson’s featured column in the August 2013 issue of HFN Magazine, a publication for the home furnishings, housewares, rugs, furniture, textiles, tabletop and retail industries, discusses both the benefits and the burdens facing those industries in the wake of the Supreme Court’s rulings in Hollingsworth v. Perry and United States v. Windsor. 

The full article, entitled “The Aftermath of DOMA:  Sales Boon, HR Burden?” can be read here:

Pennsylvania Leads the Fight After DOMA for Whole-Milk Marriages

by Kate Paine

We are excited to announce that Equal Magazine’s August 2013 issue features another article by attorney Kate Paine.  Her article, “Pennsylvania Leads the Fight After DOMA for Whole-Milk Marriages,” briefly describes the Supreme Court’s June decisions in the Proposition 8 and DOMA cases, and then discusses the merits and potential outcome of the recently-filed Pennsylvania lawsuit challenging the state’s law prohibiting same-sex marriage.

Read the full article at the link below (begins on page 36).


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 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.


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!

President Obama’s Statement on the Supreme Court Ruling

Here’s President Obama’s statement on the Supreme Court ruling on the Defense of Marriage Act 

President Obama released the statement below after the Supreme Court mades its ruling this morning on the Defense of Marriage Act. Check it out, then forward this message to share it with your friends. 

I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well. 

 This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.  

 So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly. 

 On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.   

 The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.