Federal Court in Pennsylvania to Decide Death Benefits Dispute Involving a Surviving Same-Sex Spouse

A death benefits dispute between a surviving same-sex spouse and the decedent’s parents took center stage on Monday, March 12^th, when U.S. District Court Judge C. Darnell Jones II of the Eastern District of Pennsylvania heard oral arguments from the attorneys for the parties.  This case is being closely watched across the nation because it is the first case in which a private employer has claimed that the Defense of Marriage Act (“DOMA”) prohibits it from providing equal benefits to same-sex spouses.  While the principal parties in the case – the surviving spouse, Jennifer Tobits, and the decedents’ parents, David and Joan Farley – both argued that the Court need not address the constitutionality of DOMA to resolve their dispute and instead, only analyze and interpret the language of the pension plan, the potential implications of the Court’s decision are momentous.  If the Court concludes that DOMA applies to the pension plan at issue, the ruling would result in a unprecedented extension of DOMA to private, non-governmental actors and jeopardize the rights of numerous private employees who are married to same-sex spouses and currently entitled to benefits under the private pension plans of countless employers, including small businesses, Fortune 500 companies, and law firms.  Teresa S. Renaker, one of Ms. Tobits’ attorneys, pointed out to the Court that any such application would be a “radical expansion of DOMA’s reach far beyond its intended public-sector scope and into private-sector employment.”

Ms. Tobits legally married Sarah Ellyn Farley in Canada in 2006, a mere two weeks before Ms. Farley was diagnosed with a rare form of cancer.  After battling the disease together for four years, Ms. Farley died in 2010 at the age of 37.  After Ms. Farley’s death, Ms. Farley’s parents, who never approved of their daughter’s sexual orientation or her marriage to Ms. Tobits, attempted to collect Ms. Farley’s pension plan proceeds from her employer, Cozen O’Connor, a national law firm where Ms. Farley worked for six years as an attorney in its Chicago, Illinois, office.  Under Cozen O’Connor’s pension plan, a surviving spouse receives a deceased employee’s death benefit and “spouse” is defined in the plan as the person to whom an employee has been married for at least one year.  Nothing in the plan states that same-sex spouses are excluded.  Rather than paying the benefit to Ms. Tobits, Cozen O’Connor instead initiated this lawsuit, claimed that DOMA prevents it from paying the benefit to Ms. Tobits, and asked the Court to decide who is entitled to the benefit.  Because the Court asked the parties to address the constitutionality of DOMA in the context of resolving this dispute, two governmental entities intervened in the case – the United States Department of Justice (“DOJ”) and the Bipartisan Legal Advisory Group (“BLAG”) of the United States House of Representatives.  The DOJ contends that DOMA is unconstitutional and should be stricken, while BLAG defends DOMA.

Notably, during the pendency of this federal action, an Illinois state court ruled that Ms. Farley and Ms. Tobits were legally married in Canada and that Ms. Tobits is entitled to all of the rights and protections afforded to spouses under Illinois law.  This ruling resulted from a probate action filed by the Farleys after their daughter died in which the Farleys falsely claimed that their daughter was single and asked the court to appoint Ms. Farley’s father as the administrator of his daughter’s estate.  In reaching its decision, the Illinois court rejected the Farleys’ claims and appointed Ms. Tobits, the surviving spouse, as the administrator of Ms. Farley’s estate.

What We’re Reading: 2011 was a Banner Year for LGBT Rights

Many online publications have been calling attention to the huge gains advocates have made towards equality for LGBT people this year. While we must recognize that we still have awhile to go to reach equality for all United States citizens, it is important to also celebrate our victories. Below we have compiled a list of some of our favorite stories. Please add your own favorite LGBT victory from 2011 in comments.

• New York became the largest state to legalize same-sex marriage
• Secretary of State Hillary Clinton made a historic speech, insisting that the protection of LGBT individuals from discrimination is an essential part of the international effort to further human rights
• For the first time, two women shared the traditional “first kiss,” a Navy homecoming tradition
• Don’t Ask, Don’t Tell, the policy that barred gay servicepeople from serving openly in the military, was repealed
• President Obama and Attorney General Holder issued a letter to Speaker Boehner stating that the Administration will no longer defend the Defense of Marriage Act, which states that opposite-sex marriage is the only marriage allowed under federal law
• President Obama’s administration extended benefits to federal employees in same-sex domestic partnerships through executive order

Lesbian and Gay Parenting Most Prevalent in the South; Couples and their Children Need Legal Protection

For the first time in 2010, the U.S. Census Bureau released the numbers of same-sex marriages reported in the United States and data about their relationships. The decision to release this information reversed a Bush-era policy that prohibited the release of this information. The information released about same-sex relationships revealed that more same-sex couples are participating in child rearing.

In 1976, there were an estimated 300,000 to 500,000 biological gay and lesbian parents in the United States. In the 1990s, it was estimated that  6 to 14 million children were being raised by same-sex parents. The latest statistics reveal that an estimated 2 million members of the LGBT community are interested in adoption and currently an estimated 65,500 children are adopted by same-sex couples each year. More than 16,000 children are being raised in households run by same-sex couples, amounting to 4% of all adopted children being raised in the United States.

The New York Times recently published an article highlighting the prevalence and commonality of gay parenting as revealed from the Census statistics. However, the article also highlights the difficulties of being a same-sex parent.

An important difficulty to address is the process for a same-sex couple to become parents. Adoption laws vary from state to state. In some states, same-sex couples are allowed to adopt a child as joint parents, in which case they can go about an adoption the same way a heterosexual couple would. Unfortunately, in many states adoption is not an option for same-sex couples. In states that allow same-sex couples to marry, same-sex couples are automatically considered parents. A legal parent is defined as “the person who has the right to live with a child and make decisions about the child’s education, well-being and health.” Even if the couple divorces, both parents are still considered the legal parents of the child. These children are guaranteed the same protection of heterosexual parents.

In May of 2004 the Human Rights Campaign Foundation released a report illustrating the difficulties of same-sex parents. Health Insurance is far less likely to be provided to same-sex couples with children through their employer, and those who do receive coverage pay inflated prices for coverage compared to their married, heterosexual co-workers.  Social Security benefits are also denied to same-sex couples: if one parent in a same-sex relationship dies, the Social Security benefits that would be left to the surviving parent and child are inadequate compared to heterosexual couples in the same situation. Income tax is higher for same-sex couples that have one stay at home parent, compared to heterosexual couples with the same family dynamic. However, if both parents are working in a same-sex relationship, the income tax is less than what married heterosexual couples pay.

The ultimate solution to these issues facing LGBT families is legalizing same-sex marriage nationwide.  We have seen this work in those states that allow same sex couples to marry  Formal marriage status provides the child with Social Security benefits, consent to provide emergency treatment and medicine from both parents, and support from both parents in the case that they divorce.  However, even though most states issue domestic partnerships and civil unions, these bonds are not portable over state lines and do not provide the 1,138 federal rights given by marriage.

What We’re Reading

• The anniversary of the enactment of Title IX was June 23^rd
• Doctors debate how to screen for a particularly deadly form of breast cancer
• According to a Department of Justice report published in February, “roughly one in five women who attend college will become the victim of a rape or an attempted rape by the time she graduates.”
• The Texas GOP platform would make it a felony to perform same-sex marriages and would ban anal and oral sex
• Ms. Magazine blog wonders why “fewer than one percent of women in North America (and northwestern Europe) use the diaphragm”
• Forty-nine percent of pregnancies in the U.S. are unintended
• Women in the U.S. still die during childbirth. African-American and immigrant women are disproportionally affected.
• Womensenews.org contemplates why women are leaving the growing technology field
• *Pittsburgh Area News* Penelope Bauer, 13, of Bloomfield won the girls’ national championship at the 87th National Marbles Tournament in Wildwood, N.J.
• Jezebel argues for “why shameless objectification can be a good thing.”

What Does Ellen and Portia’s Marriage Mean for Same-sex Marriage in the U.S.?

Saturday’s New York Times features an article about comedian Ellen DeGeneres discussing on Oprah Winfrey’s daytime talk show her recent marriage to actress Portia de Rossi. The wedding, filled with what the article suggests “may have been the most public display of gushingly romantic affection between two gay or lesbian celebrities,” came less than a week after Maine voters rejected same-sex marriage, making America’s widespread adoration of DeGeneres all the more interesting in terms of figuring out where exactly Americans stand on the issue of gay marriage.

In the handful of states where same-sex marriage is legal, legislatures and courts — not voters — have made it so. A few polls in recent months have suggested that while a majority of Americans believe that gay couples should be able to enter into unions with some of the legal protections of marriage, a minority believe that gays and lesbians should be permitted to “marry,” per se. Same-sex marriage doesn’t fit into the kind of family that many Americans believe should be idealized; it offends many others’ deeply felt religious principles.

And yet Ms. DeGeneres, who exchanged vows with Ms. de Rossi during a span last year when same-sex marriage was legal in California, seems more popular than ever — and among audiences squarely in the mainstream.

There are various explanations for the seemingly contradictory nature of Americans rejecting same sex marriage in several states, yet fully embracing Ms. DeGeneres. Some LGBT leaders suggest that the movement’s success will soon reflect Ellen’s. Toni Broaddus, the executive director of the Equality Federation, for example, says that “The story of Ellen is, in a way, a sort of metaphor for the story of the movement.” Others, like journalist Rachel Maddow, maintain that Ellen’s status as a comedian who “danc[es] in her sneakers and mak[es] everybody else get up and dance too” makes her unthreatening by nature.

However, the article purports that she is perceived as less threatening by virtue of her gender as well. The article suggests that this may be the case because demeaning stereotypes about gay men typically don’t extend to lesbian women. The article’s author, Frank Bruni, names a whole slew of lesbian entertainers on primetime TV, but gay men are not yet as accepted in the mainstream.

The article concludes by elucidating the radical nature of DeGeneres and de Rossi’s marriage—whilst also emphasizing that they are simply two people in love. This attitude is perfectly encapsulated in this simple phrase describing the image of the couple feeding cake to each other: “They look like countless other newlyweds. Then again, not.” We would like to congratulate Ms. DeGeneres and Ms. DeRossi for their recent nuptials, and furthermore state that we are hopeful that the public’s love of Ms. DeGeneres is a sign that opinions on same-sex marriage are evolving.

Maine Legislature Passes Same-sex Marriage Bill

ETA: Governor Baldacci has signed the bill, making Maine the fifth state in the U.S. to legalize same-sex marriage. We are incredibly heartened by this step forward.

The Maine State House has approved a bill that would allow same-sex couples to marry in that state by a vote of 89-58. The State Senate passed the same bill last week, 20-15. The bill has to be approved in both houses of the legislature once more before going to Governor John Baldacci, a Democrat.

According to the Associated Press, 47.3% of Maine residents support the same-sex marriage bill and 49.5 oppose it. Governor Baldacci has not indicated yet whether he will sign it, if it passes the legislature again.

Maine has joined New York and New Hampshire in potentially legalizing same-sex marriage. Four states – Massachusetts, Vermont, Connecticut and Iowa – currently permit same-sex marriage.

Via Feminist Majority

Same-sex Marriage in New York

Civil rights activists are hopeful as New York Governor David Paterson introduced a piece of legislation last week to legalize same-sex marriage in New York. Former Governor Eliot Spitzer introduced the same legislation in 2007, which passed in the state House but died in the state Senate. Widespread support throughout the state makes supporters hopeful.

According to the New York Times, in introducing the legislation, Gov. Paterson “invoked the abolitionist movement of the 1800s, the writings of Harriet Beecher Stowe and the Supreme Court’s Dred Scott decision to argue that New York had neglected civil rights for gays and lesbians for too long. “I’m putting a stop to it,” he said. “We have a duty to make sure equality exists for everyone.”"

Prominent state lawmakers are backing Governor Patterson in support, such as New York City Mayor Michael Bloomberg and state Senator Thomas Duane. The legislation does face some opposition, however, particularly from the Roman Catholic Church.

The law would grant same-sex couples the 1300 to 1400 rights that don’t exist unless a couple is married. If the legislation passes, New York will become the fifth state in the United States to legalize same-sex marriage, with Vermont, Connecticut, Massachusetts and Iowa. We are encouraged by the support this bill has received throughout New York and hope that it moves through the state legislature quickly.