Because gays and lesbians do not have equality under federal or state law, it’s important to know what legal protections you do have and what precautions you can take to protect you and your loved ones. Here are some of the more frequently asked LGBT legal questions.
If I get married to my partner in a state where gay marriage is legal, will Pennsylvania recognize it?
The short answer is no. Typically, the law of the state in which it is contracted determines the validity of the marriage. If the marriage was valid where it was contracted, then it will be recognized by another state, unless this recognition goes against a strong public policy.
Pennsylvania is among the 41 states that expressly refuse to recognize same-sex marriages. In 1996, the Pennsylvania legislature enacted its Defense of Marriage Act, which provides that a “marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.” In 2008, an attempt to amend the Pennsylvania Constitution to prohibit same-sex marriage — as well as any same-sex union that is the functional equivalent of marriage — failed in the state legislature. Similar legislation was again introduced in January and tabled by the Judiciary Committee in March.
How does Pennsylvania define a hate crime?
Pennsylvania’s “hate crime” law is called the “Ethnic Intimidation and Institutional Vandalism Act,” and was enacted in 1982. Pennsylvania considers certain crimes to be more serious when motivated by hatred toward the victims’ actual or perceived race, color, religion and national origin. When certain crimes are committed (often these are called “underlying offenses”) and it can be shown that a motive for the crime was hatred of the victims’ actual or perceived race, color, religion or national origin, the additional offense of ethnic intimidation can be charged, subjecting the perpetrator to more severe penalties.
The underlying criminal offenses that are designated in Pennsylvania’s law include, but are not limited to, crimes against persons such as harassment, terroristic threats, and assault and crimes against property such as criminal trespass, criminal mischief and arson. You can find a complete listing of the underlying offenses designated in Pennsylvania’s hate-crime law and definitions for some of these offenses.
Civil remedies are also available to victims of hate crimes in Pennsylvania. Any person who is injured or whose property is damaged by such actions can sue for damages, including damages for emotional distress, punitive damages and reasonable attorney fees and costs. This section of Pennsylvania’s hate-crime law is called the Civil Right of Action.
The Pennsylvania legislature had previously passed an amendment that included sexual orientation, gender, gender identity, ancestry and mental and/or physical disability as protected classes under the hate-crime law, but the state Supreme Court struck down the amendment in 2008 in Marcavage v. Rendell on procedural grounds. The amendment began as an agricultural vandalism act and was amended to a hate-crime law that covered sexual orientation and gender identity. Thus, the court found the law itself was not substantively unconstitutional, but the way the legislature passed it violated constitutionally required procedures. As such, if proposed in the correct manner, the issue can come before the state legislature again.
What happens to our joint property if my partner dies?
If a member of a same-sex couple dies without a will, the laws of intestate succession will apply. In Pennsylvania, a surviving opposite-sex spouse inherits the entire estate if the decedent dies intestate and has no surviving parent or issue.
As such, any portion of the decedent’s estate not passing to a surviving opposite-sex spouse passes, in the following order, to: (1) issue, (2) parents, (3) siblings and their issue, (4) grandparents and their issue, (5) uncles and aunts and their issue, or (6) the Commonwealth of Pennsylvania. Obviously, no provision is made in the laws governing intestate succession for inheritance by same-sex partners or by the decedent’s non-biological, non-adopted children. As such, to fully protect your family, if you want to provide for your partner and any non-biological, non-adopted children upon his/her death, it is necessary to execute an estate plan that expresses those intentions.
If I’m forced to quit my job in order to move with my partner, can I still qualify for unemployment benefits?
An individual is not entitled to unemployment benefits if she voluntarily leaves work without cause of a necessitous and compelling nature. Under the “following the spouse doctrine,” a married individual (but not an unmarried cohabitant) can show necessitous and compelling cause to leave a job to follow a spouse if (1) the spouse moved for reasons beyond her control and “the decision to move was reasonable and made in good faith,” and (2) “the couple would face an economic hardship in maintaining two residences or the move has resulted in an insurmountable commuting problem.”
In Procito v. Unemployment Compensation Board of Review, the court faced the question of whether the “following the spouse doctrine” applies to same-sex couples, who do not have the option to marry in Pennsylvania. The majority sidestepped the issue by holding that, even if the doctrine applied, Procito’s partner did not leave her job for reasons beyond her control. A dissenting judge disagreed and concluded that excluding same-sex couples from the benefit of the doctrine violates the guarantee of equal protection of the law. As it stands, the law is questionable when it comes to same-sex couples, however, Procito indicates that the current holding could change should the issue come before the Supreme Court again.