Tracing the impact of Whitewood

Tracing the impact of Whitewood

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The marriage-equality movement in Pennsylvania changed in an instant last week, but the trickle-down effect of the state legalizing same-sex marriage is continuing to emerge.

On May 20, U.S. District Judge John E. Jones 3d struck down Pennsylvania’s 1996 law banning marriage equality, after a challenge known as Whitewood v. Wolf. The following day Republican Gov. Tom Corbett declined to appeal the ruling.

Pennsylvania is now the 19th state in the nation, along with Washington, D.C., to sanction marriage equality.

While Philadelphia has seen a sea of celebratory same-sex unions, from City Hall to Love Park to the Philadelphia Museum of Art, in the past week, the full impact of the law change goes far beyond the ceremonies.

“It really is a whole new world,” said Equality Pennsylvania executive director Ted Martin.

Insurance companies will now have to treat married same-sex couples equal to heterosexual married couples for benefits purposes.

“Now, if a company offers benefits to heterosexual spouses, same-sex spouses will be treated exactly the same,” said attorney Tiffany Palmer. “I think domestic-partner benefits are going to either diminish in the future or just be available to people who are unmarried. The biggest issue is that domestic-partner benefits used to be considered taxable income for the employee, and that won’t be the case anymore.”

Palmer noted that married couples should notify their employers so the benefits can be properly assessed.

Northampton County announced it would immediately comply with the ruling and treat county employees with same-sex spouses equal to opposite-sex married couples, while Lehigh County initially planned a vote on the issue but this week agreed to comply.

Since 1998, Philadelphia has extended domestic-partner benefits to the same-sex partners of city employees. It is unclear if those employees will need to legally marry to maintain equal benefits.

A committee of city leaders — including representatives from human resources, pension, law and finance departments, the Commission on Human Relations and the Office of LGBT Affairs — met Tuesday to begin assessing how the ruling will impact city government.

Human Relations director Rue Landau — who, along with partner Kerry Smith, were the first same-sex couple to be issued a marriage license in Philadelphia — said there needs to be action by City Council if changes are made to the domestic-partner policy.

“We’re going to iron out the details but ultimately there will have to be some legislative changes since this was a law that was passed by Council,” she said.

The group will also be looking to update language on any city forms.

“There are hundreds of thousands of forms in city government, and we want to make sure we go through and catch anything that says ‘husband’ or ‘wife’ and change it appropriately,” said Albert D’Attilio, director of the Office of Human Resources. “We have to go through civil-service regulations to make the language clearer, and we’re well on the way of doing this. Rue and I were on the phone the next morning after this ruling to make sure we cover all the bases. The biggest challenge is going to be identifying any form that might have this language on it.”

Landau noted, however, that the city has made an effort since the 1998 domestic-partner law to keep as many city documents as possible gender-neutral, so the undertaking will be more about “finding the exception.”

Attorney Angela Giampolo said language updates will need to be made to couples’ estate plans and documents like wills and powers of attorney.

“I think there will be a lot of house-cleaning to do, going from turning your home into a married home. Everyone in the next two or three months should be reaching out to their lawyers, whether you have documents or not,” she said. “These marriages will still not be recognized in 31 states, so it’s very important to have an accurate estate plan because you could travel or wander into another state and you need proper documentation. The basic legal definitions in your documents — whether it says wife, husband, spouse, domestic partner — should reflect your legal relationship; that’s best practice to have the appropriate relationship in your documents.”

Giampolo suggested couples should also reach out to companies that handle areas like car or homeowner’s insurance to notify them of the marital-status change, as companies often offer incentives for married couples.

Palmer said one of the most immediate problems the ruling solves is access to divorce for same-sex couples who were legally wed in other states. Many states, she noted, require couples married in that state to live there for a certain amount of time before divorcing — causing Pennsylvania couples to effectively be “wedlocked.”

“People were really just stuck,” she said. “They got married in Massachusetts or New York but then they couldn’t get divorced there and they couldn’t get divorced here. We’ve had people literally waiting years. I had one client who has been waiting 12 years to dissolve her civil union and other clients waiting seven years. It’s been a long time coming for people, and some of them will now be able to marry their current partner.”

Palmer filed the first same-sex divorce case in Bucks County the day after Jones’ ruling, and her firm filed several more in Philadelphia this week.

Adoption by same-sex couples is also affected by the law. Unmarried couples will continue to be allowed to adopt jointly, but second-parent adoptions — in which one partner already has legal rights to the child — by same-sex married couples can now be treated as step-parent adoptions. This eliminates the often-costly and time-consuming home-study process.

There had been a handful of lawsuits challenging the state law, and each will be addressed and potentially terminated individually. One case involved a lesbian who was being asked to pay an inheritance tax on the estate of her late partner.

Until the Whitewood ruling, same-sex spouses were treated as strangers — and taxed as such — in terms of inheritance and real-estate transfers in the event of a partner’s passing, whereas heterosexual married couples were exempt from those taxes. Same-sex married couples will now be treated equally, and there is the potential that refunds could be issued for payments made.

“I think there will be people who are eligible to go back for a refund of that, but the question is how far back the statute of limitations can go,” Palmer said.

While there are financial benefits of marrying, Palmer cautioned couples not to rush into a wedding; now that marriage equality is legal, couples who divorce will have to face such issues as spousal support and alimony.

As opposed to the previous cohabitation agreements, same-sex couples, Palmer said, may want to now consider getting pre- or post-nuptial agreements when marrying.

“I think it’s easy for people to get caught up in the historic nature of this and the momentum and I hope everyone’s relationships last, but I don’t think anyone should rush into this just because this is exciting, if they’re not necessarily ready for the rights and responsibilities that come with marriage,” she said. “You have to make sure you understand what you’re signing up for. People say, ‘Marriage is just a piece of paper,’ but it’s much more than that.”

People also should be cognizant, Giampolo said, that, while the marriage-equality win was a huge victory, the state still lacks a basic nondiscrimination law.

Pennsylvania is now the only state in the country that has marriage equality but not a law protecting against discrimination based on sexual orientation; two other marriage-equality states do not protect based on gender identity.

“People think it’s not a real occurrence and it is. I get phone calls and emails all the time about discrimination. You can take a gay honeymoon left, right and sideways and get fired when you get back,” she said. “Because marginalized people gain rights, it doesn’t mean that everyone’s mentalities will automatically catch up. People in the LGBT community still need to protect ourselves and educate whoever we come across along the way.”

Martin agreed, noting that the marriage-equality victory should be used as a tool to educate people about the need for a nondiscrimination law.

“Through the joy and remarkable moments of it all, people have said to me, ‘Oh, we’ve won.’ Yeah, we won marriage equality, but we haven’t won the war totally,” he said. “A lot of people want to get married and they should have that right and now they do, but everyone wants to be protected from discrimination. And I think that’s a conversation people are going to be very seriously talking about now, in the context of marriage. In Pennsylvania, you can get married now, but in most of the state, you can get fired for putting your wedding picture on your desk at work. It’s a weird victory.”

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