Pennsylvania lawmakers don't want my girlfriend and me to ever get married. But once we're married out of state, those same officials seem equally intent that we never, ever part. At least not without a lengthy court battle.
Thanks to Pennsylvania's "Defense of Marriage Act," which defines marriage solely as being between a man and a woman, same-sex couples have a murky legal status — even if their union has been ratified in another state.
For the few days we're in New York after our wedding later this year, my wife and I will have many of the rights and protections of other married couples. We could make medical decisions for one another, transfer property or assets, and — if we moved there permanently — file joint state tax returns. The same would be true in Washington, D.C., and the other six states that recognize same-sex marriage.
But it's a different story back home in Pennsylvania.
"It's a bit of an open question to what happens when you cross state lines," says Anthony Infanti, associate dean for academic affairs and a professor of law at the University of Pittsburgh. From a legal standpoint, "your relationship appears and disappears."
What that also means for my fiancée and me is that getting married will cost us much more than the $40 New York state marriage license. We'll also likely incur thousands of dollars in legal fees if we want the protections that are automatically afforded to heterosexual couples, like having power of attorney should one of us become critically ill. And even that may not amount to a hill of beans "if you encounter someone hostile" — like a health professional or judge — Infanti says.
"It's a measure of vulnerability," he says.
For couples like Squirrel Hill residents Kari and Julie Tremeryn, attorneys can give some of what the state tries to taketh away or not giveth at all. Since tying the knot at Phipps Conservatory, in Oakland, and then legally at a Vermont bed-and-breakfast, nearly a year ago, they've undergone a name change — using a new name for both of them — and estate planning with wills and powers of attorney. "It's certainly felt like a long process — going on seven months now," says Kari. "And, of course, it was hard to sit down two weeks after our wedding and go over what will happen if either one of us dies, or if we divorce."
There's more involved than just signing a paper or two. While changing a name "is the least traumatic thing to do," says Maureen Cohon, chair of Buchanan, Ingersoll and Rooney's nontraditional couples and families group, it does require fingerprinting, notices to creditors and legal notices in the newspaper. Among the laundry-list of other decisions are titling property titles, health-care proxies and wills. Second-parent adoptions, while legal, require extensive documentation, references and — if a previous partner is the child's parent — consent from that partner.
The Tremeryns are looking on the bright side. "Of course, it's frustrating to have to spend this kind of money for protections that opposite-sex couples are able to take for granted," Julie Tremeryn says. "On the other hand, having to be intentional about seeking these protections has definitely strengthened our relationship by forcing us to talk through all kinds of worst-case scenarios."
Still, "It does take a good deal of time to get everything together," Cohon says. And time is money: The Tremeryns have already spent $2,500 on their affairs.
But in the end, the expense may well be worth it.
Because gay marriage has had a toehold in the United States only since 2004, Infanti says, legal issues arising from the state-by-state patchwork of legal rights "will take some time to play out." But already, cases pending in Pennsylvania courts highlight the complications of trying to have a legal union in a state that forbids it.
Pittsburgh attorneys already have dealt with worst-case scenarios, like the widower forced from his home within a week of his spouse's death, or the partner who was unable to get into a hospital room for a visit.
One particularly thorny case, pending in federal court in Pennsylvania, has pitted Jennifer Tobits against the parents of her late partner, Sarah Ellyn Farley, in a dispute over who is entitled to Farley's pension benefits. Farley's employer, law firm Cozen O'Connor, initiated the lawsuit because Farley hadn't filed a designated beneficiary form prior to her death and because both her parents and wife made claim to the benefit. The law firm asked the court to decide who was entitled to nearly $42,000 in Farley's account.
According to the lawsuit, Farley's parents presented a "designated beneficiary form" — dated the day prior to Farley's death — that made the parents the beneficiaries of the plan and has Farley marked as "single," but is unsigned by her or Tobits, though it is notarized to have a spousal signature. O'Connor, meanwhile, says in court filings that it "cannot determine the validity" of the form. What's more, the Farleys argue that only spouses are entitled to pension benefits ... and that state and federal Defense of Marriage laws preclude the court from regarding Tobits that way.
Gay-rights advocates are sounding the alarm. If the courts rule that DOMA applies to a private pension plan, it "would result in an unprecedented extension of DOMA to non-governmental actors and jeopardize the rights of countless private employees who are married to same-sex spouses," the National Center for Lesbian Rights argued in a March press release. Meanwhile, the U.S. Department of Justice and the Bipartisan Legal Advisory Group have intervened to argue the constitutionality of DOMA.
But so far, among the thorniest legal issues for same-sex couples has been this: What do you do when something other than death does us part?
It may sound strange, but one advantage opposite-sex couples have is the ease of splitting up. When a divorce happens, there are well-established rules for judges and attorneys to rely on when it comes to things like child custody, division of marital assets and alimony.
Same-sex couples in Pennsylvania don't have that luxury. In 2010, a Berks County judge refused to grant Carole A. Kern's petition for divorce from Robin L. Taney, whom she had wed in Massachusetts. "Without a legally recognizable marriage, relief under the divorce code is simply not available," Judge Scott E. Lash concluded, according to accounts in The Reading Eagle. Lash dismissed Kern's petition.
Couples outside Pennsylvania have been more fortunate. On May 18, for example, a Maryland court ruled that the marriage of two women could be dissolved under the state's divorce laws ... even though Maryland itself won't formally recognize same-sex marriages until 2013. (A referendum vote on gay marriage is expected for the November elections.)
But don't expect such rulings to carry across state lines.
"At best, decisions from courts in other states are persuasive [but] not binding authority," says Infanti. "In addition, the same-sex marriage prohibition in Pennsylvania [unlike the one in Maryland] clearly and unequivocally denies recognition to out-of-state same-sex marriages."
Same-sex couples can get a divorce in the state where they got married. Ironically, though, the requirements for splitting up can be stricter than those for getting hitched: In New York, where my fiancée and I will marry later this year, one of us would need a year of residency there before starting divorce proceedings.
Optionally, same-sex couples in Pennsylvania can consult a lawyer — again — and draft a cohabitation or domestic-partner agreement. Much like "prenups" that heterosexual couples sometimes draft to protect assets, these agreements can spell out how assets will be divided, among other things.
Such an agreement "gives you rights that you would not have under law because there are no laws to go by," says Cohon.
There's an obvious irony in this legal double standard. Opponents of same-sex marriage often argue that letting us marry will devalue marriage for everyone else. But because the law grants us only the protections we can provide ourselves, we're the ones who must think marriage through the most carefully. And we're the ones who may pay the heaviest burden if it goes awry.