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Same Sex Marriage is "Marriage"

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The implications of the Whitewood/Obergefell decisions have been widespread, yet some issues still remain unresolved.

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By Attorney Jeffrey B. Engle, Same Sex Marriage Divorce Lawyer, Harrisburg, PA

In Whitewood, the U.S. Middle District Court ruled that the statutory ban on recognizing same sex marriages was unconstitutional. Pennsylvania was the last Northeastern state to overturn the ban. U.S. District Judge John E. Jones cited the constitutional touchstones of due process and equal protection in striking down the prohibition.  (See link to prior blog article).

"In future generations, the label same-sex marriage will be abandoned, to be replaced simply by marriage," Jones wrote. "We are a better people than what these laws represent, and it is time to discard them into the ash heap of history."

In the case of Obergefell, the U.S. Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty, overruling Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65, and abrogating Citizens for Equal Protection v. Bruning, 455 F.3d 859, Adams v. Howerton, 673 F.2d 1036, and other cases, and States must recognize lawful same-sex marriages performed in other States.  Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015) 


Adoption of children allowed for same sex couples to allow for "second parent" adoption as a result of 2002 U.S. Supreme Court case of In Re: Harvey F..  Since Whitewood, the issue turns to whether there is such a "second parent" adoption. Adoptions to occur, the adoption should be as a legal adoption should be based upon marriage and not as a "second parent" adoption.  Therefore, do same sex couples still need to go through the same adoption process?  Likely the answer is affirmative.

Parentage- defined by custody act.  However, "parent" is not defined by the PA Custody Act.

Adult Adoption

This was an "end around" the marriage requirement prior to Whitewood.  One adult would adopt the other as a way to procure the rights of inheritance.  Now, some adults want to annul their adoption to allow them now to marry.  Some counties have allowed these annulments to occur.  However, other judges have determined that there is no such mechanism in the adoption or custody act.

Common Law Marriage

Abolished in 2003.  Can same sex couples assert common law marriage was in existence after the Whitewood decision in 2014?  Seems almost easier to show common law for same sex because there was an exchange of words of intent, expression of marriage to third parties, and maintaining the appearances of marriage (living together, joint accounts, joint credit). 

In re Estate of Kimberly M. Underwood, the Pennsylvania Court of Common Pleas, Orphans' Court Division, Bucks County July 29, 2015 No. 2014-E0681-29; held that Sabrina L. Maurer and Kimberly M. Underwood entered into a valid and enforceable marriage, under Pennsylvania common law, on September 2, 2001 and remained married under the laws of the Commonwealth of Pennsylvania until the time of Kimberly M. Underwood's death on November 20, 2013.

Other marital recognitions:

Civil Unions.  Cannot divorce if never married.  But some courts are facing this issue as to whether civil unions can be considered as marriage.  What date is used as the date of marriage.  The coverture is the date of marriage to the date of separation for purposes of computing separation of retirement benefits.

Recognition in work place- "The Kim Davis" debacle in Kentucky.

Same sex couples have a right to marry.  However, many states, including PA, the confer rights to "religious freedom" on all citizens.  In North Carolina, one has a right to not grant an application based upon religious beliefs.  This is known as the Religious Freedom Restoration Act ("RFRA").  This leaves the waters muddy for now with regard to the fight between "religious freedoms" and one's right to "life, liberty, and the pursuit of happineness...." the inherent rights of mankind under our Constitutional Bill of Rights.

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