Law Student's Article "Same-Sex Marriage Legal in Pa... Now What?" Published in The Legal Intelligencer

Third-year Rutgers Law–Camden student Laura Segal recently conducted a research project, directed by Assistant Professor of Law Katie Eyer. As part of that research, Segal, who plans on practicing family law, wrote the following article titled, " Same-Sex Marriage Legal in Pa...Now What?"  which has been published in The Legal Intelligencer. With permission by the publication, the Rutgers Law–Camden student's article is posted below:

This past January, the U.S. Supreme Court announced it will decide whether the state has the power to prohibit the issuance and/or recognition of same-sex marriage. Drastic advances have been made for marriage equality in the past year. Specifically, at this time last year, 33 states prohibited same-sex marriage. Pennsylvania joined the states to allow same-sex marriage in May 2014, when the Middle District of Pennsylvania decided Whitewood v. Wolf, 992 F. Supp. 2d 410, 420 (M.D. Pa. 2014), and the Corbett administration elected not to appeal. Today, as a result of judicial decisions and legislative advances, only 13 states refuse to issue marriage licenses to same-sex couples, meaning nearly 72 percent of the population is living in states where same-sex couples can obtain marriage licenses statewide.

A Supreme Court ruling in favor of marriage equality nationwide would undoubtedly be a major victory for marriage equality. But this order by the Supreme Court does not mark an end to issues surrounding same-sex relationships. In many states, including Pennsylvania, there are still unanswered questions yet to be determined that same-sex partners must be aware of.

First, it has long been a problem for same-sex couples that a child is only biologically related to one of the parents. Pennsylvania's presumption of paternity is governed by case law holding that married couples are both assumed as parents under the presumption of paternity. Although this presumption should arguably apply to same-sex couples, as the law currently stands it is not clear that this will result because the case law all presumes the child was born of opposite-sex parents.

Even if the presumption of paternity applies in Pennsylvania and both parents are listed on the child's birth certificate, there is no way to ensure that parental relationship will be recognized, especially if the family decides to travel to another state. If the couple travels to a state that does not have any laws governing parentage through assisted reproduction, or has a sex-differentiated presumption of paternity law, then it is likely the non-biological parent will have limited parental rights, even if their name is listed on the birth certificate. On the other hand, adoptions are judgments, and under the full faith and credit clause of the U.S. Constitution, all states are required to recognize another state's judgment. Thus, a final adoption should be recognized in all states, even if the state's own laws would prevent that adoption.

If a couple does not obtain a second parent adoption and the presumption of paternity does not apply, a non-biological parent is placed in the same legally tenuous position he or she was pre-marriage: trying to prove parentage under equitable doctrines, with the uncertainties and lesser legal rights that those statuses entail. Litigating cases where a non-biological parent is trying to prove paternity results in large legal fees, a longer litigation life, and the possibility of not being able to see the child until the dispute is resolved.

To conclude, non-biological parents that want full legal rights over a child of the marriage should be strongly encouraged to obtain a second-parent adoption of a child, even if both spouses are named on a child's birth certificate. Although the adoption process might be costly, it remains, and is likely to remain for the near future—the only legally secure way of safeguarding a second parent's legal relationship to their child.

Next, in many states, civil unions and domestic partnerships were available to same-sex couples prior to marriage. Some states still have these options in place, while others converted them into marriages. This draws questions as to how they should be treated, and what impact they may have. In the Whitewood opinion, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania issued an order permanently enjoining the enforcement of Pennsylvania marriage laws barring the recognition of same-sex marriage. One thing the opinion does not mention is how the courts should deal with out-of-state civil unions and domestic partnerships, both of which are not specifically provided for in Pennsylvania law, and which were generally not recognized by the courts pre-Whitewood.

The civil union was first created in Vermont to provide same-sex couples the common benefits and protections of marriage under Vermont law. The concept of the civil union expanded and was enacted in a number of states as a legal right that grants same-sex couples all of the rights of marriage that a state can bestow. However, a civil union is not marriage because the rights a civil union grants does not necessarily extend to other states, and a civil union does not give federal protections to the couple.

Today, all states that have or in the past have had civil unions now also have same-sex marriage. Five states—Connecticut, Delaware, New Hampshire, Rhode Island and Vermont—have converted civil unions into marriages. Colorado, Hawaii, Illinois and New Jersey still allow for civil unions, but also give same-sex couples the opportunity to marry.

In the states that now recognize same-sex marriage, the question of how to treat civil unions entered into in a different state remains. One thing is certain, that if a person is in a civil union but wishes to marry someone else that civil union should be dissolved before entering into the marriage. Massachusetts citizen Todd Warnken did not realize this and married Richard Elia before dissolving a civil union he entered into in Vermont with a different man. The Massachusetts Supreme Court in Elia-Warnken v. Elia, 463 Mass. 29, 31, 972 N.E.2d 17, 19 (2012), held that a Vermont civil union was the equivalent of marriage in Massachusetts, and therefore Warnken's marriage to Elia constituted polygamy, making it invalid.

But what if a partner to a civil union wishes to dissolve that relationship in a state that does not recognize civil unions? Aaron Weems, a family law attorney at Fox Rothschild in Blue Bell, successfully dissolved an out-of-state civil union in a Montgomery County court under the Pennsylvania divorce code. Although this action by a Pennsylvania court is promising, absent a statute or decision by a higher court, there is no guarantee that all county judges will do the same. Courts may be skeptical to do this because it would be unsure if venue is proper, and whether or not it is able to apply Pennsylvania divorce law.

There is also a distinct but related question of how civil unions and domestic partnerships should be treated in the context of divorce proceedings for couples that subsequently married the same partner. In many dissolution disputes the date the couple entered into the relationship is crucial for financial purposes (how long the couple acquired assets and debt together). Many couples entered into a civil union and/or domestic partnership when the benefits provided were more limited than they are today. The question in that situation becomes, "What is the date of the marriage"? It is obvious that the couple intended to enter into a legally recognized relationship when entering into the civil union. But, even if the Supreme Court rules in favor of marriage equality, there is a possibility courts may find that civil unions and domestic partnerships are not a marriage because they are not the same as marriage per se.

It will take some time for the courts in Pennsylvania and nationwide to catch up to these issues resulting in the widespread recognition of same-sex marriage. Although same-sex couples are now able to marry in the majority of states, and potentially soon nationwide, there is no uniform law dictating how marriage equivalents will be treated from state to state.

Reprinted with permission from the April 14, 2015 edition of THE LEGAL INTELLIGENCER © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 - reprints@alm.com or visit www.almreprints.com.