Pennsylvania Treasurer Rob McCord submitted the amicus curiae brief March 24 in the U.S. District Court for the Eastern District of Pennsylvania in Palladino v. Corbett. The case was filed last summer by Philadelphia residents Cara Palladino and Isabelle Barker, who are seeking to have their legal Massachusetts marriage recognized in the Keystone State.
McCord’s 25-page brief outlines the myriad effects the state’s discriminatory law has on his department, which is tasked with managing a number of programs and benefits extending to married couples. The brief urges the court to grant the plaintiffs’ request for summary judgment and find that the ban on same-sex marriage is unconstitutional.
“There can be no doubt that Pennsylvania’s marriage law acts to disadvantage, as a separate class, same-sex couples by purposefully refusing them state recognition of their relationship and thus the derivative rights, presumptions and protections normally associated with the legal status of marriage,” the brief states.
McCord is the first elected state official in Pennsylvania to formally challenge the discriminatory law in court. This is also believed to be the first time that a state treasurer has filed an amicus curiae in support of plaintiffs challenging a state’s ban on same-sex marriage.
While McCord is not seeking to be a party in the case, the friend-of-the-court brief offers a uniquely informed position on the issues at play for the court to consider.
Oral arguments are scheduled on the plaintiffs’ request for summary judgment May 28.
In the document, McCord argues that he has a special interest in the issue — a prerequisite for a court accepting an amicus curiae — as he is “able to identify, with specificity, instances in the administration of state-sponsored benefits and programs that” discriminate against same-sex couples who are legally married outside of Pennsylvania, yet who are denied the rights and benefits provided for heterosexual couples.
McCord’s argument centers on two issues: the state ban creates two distinct classes of marriage — opposite-sex marriage, in which couples are afforded all legal rights, and same-sex marriage in which couples are denied both marriage licenses in Pennsylvania and the rights afforded to couples married outside of Pennsylvania — and that the law compels unequal treatment of same-sex couples in accessing state-sponsored programs and benefits administered by the treasurer.
“We were asking ourselves the question, How does the lack of marriage equality affect what we do?” McCord told PGN in a sit-down interview this week. “Fairly quickly we said that, in several areas of our expertise, we are operating in a way that is failing people in terms of their civil rights because of this law.”
For instance, a person seeking unclaimed or abandoned property from a late same-sex partner is treated as a stranger, with no rights or presumptions that are automatically given to married heterosexual partners.
Same-sex partners are also on unequal footing in the Tuition Account Program, which offers opportunities for saving for a beneficiary’s education. If the owner dies, and the beneficiary is still a minor, the heterosexual spouse inherits the investment — not the case with same-sex couples.
A similar issue arises for retirement-benefits programs for public employees: Death benefits automatically are given to a surviving heterosexual spouse if no beneficiary is designated, while same-sex spouses are not given the same consideration.
McCord’s argument also extends to tax issues. The state treasurer sits as chairman of the Board of Finance and Revenue, which considers appeals to tax decisions made by the Department of Revenue — which, because of the marriage ban, treats same-sex married couples differently from heterosexual couples when it comes to such issues as the real-estate transfer tax, vehicle-registration transfer tax and inheritance tax.
McCord also noted in the brief that he is prevented from issuing the same benefits and protections to same-sex spouses of any of his 376 Treasury Department employees as would be given to opposite-sex spouses, such as wages, salary or other benefits, in the event of an employee’s death. Additionally, as a participant in the Pennsylvania Employees Benefit Trust Fund, the Treasury Department offers domestic-partner health-care benefits for both same- and opposite-sex partners of employees, yet those benefits are taxable — creating an added burden and expense on both employer and employee.
Treating all employees, regardless of sexual orientation or gender identity, as equal in both policy and practice, fosters better recruitment and retention and enhances workplace morale, McCord wrote.
Raising the practical implications of marriage inequality, McCord said, is one way to refocus the public discourse on why state recognition of same-sex marriage is truly needed.
“I think a lot of what happens when there’s progress in civil rights is when there’s an increase in empathy. When people stop dehumanizing those they’re discriminating against, it’s easier to have empathy,” he said. “They realize, ‘They’re trying to do something I’m trying to do.’ We’re talking about a spouse inheriting a house they live in. We’re talking about a spouse inheriting an account they contribute to. That feels like something familiar for most people, something people can empathize with, something less tribal and less ‘them and us.’”
While McCord’s brief focuses on reasoned legal arguments, it does acknowledge his personal connection to the issue.
McCord and his wife, Leigh, are an interracial couple, and they do not forget the not-so-distant past laws banning their marriage.
“When I was born, the marriage in which I am engaged was illegal in a broad variety of states across our country. I’m leading a life that reminds me how wrong it is to not have marriage equality,” he said.
Leigh added that a member of McCord’s staff is a distant relative to the plaintiff in Loving v. Virginia — the case that overturned prohibitions on interracial marriage.
“She has talked about her association with that case and it’s very moving. It’s a reminder that not too long ago we weren’t allowed to be married. Really not too long ago,” Leigh said, adding that she sees the modern marriage-equality fight in a similar light. “If two people love each other, let them love each other and have it be sanctioned by the state. It’s just right.”
McCord added that his wife’s grandfather died after being denied entry into a whites-only hospital, and his stepmother, an American of Japanese ancestry, was incarcerated in an interment camp at age 11.
“There are some families where the reminders of the importance of fighting for civil rights are constantly around you,” he said.
The fight for marriage equality in the Keystone State may not be an easy one.
Although Pennsylvania was the first state in the nation to legalize interracial marriage, the state is lagging far behind its neighbors on LGBT equality.
“It’s sort of sad now that we’re the only state in the Mid-Atlantic and the Northeast — from D.C. to Maine — that isn’t recognizing same-sex marriages,” McCord said.
The Palladino case is one of several seeking to change that. Each suit looks at a different aspect of the marriage-equality law, with this arguing the unconstitutionality of denying recognition to legal out-of-state marriages.
While McCord said he hopes the entire law is ultimately overturned, recognizing legal marriages from other jurisdictions would be a first step.
“At the very least, we have to have marriages from other states recognized here. We recognize all other contracts in other states, why in the world are we not recognizing marriage contracts?” he posed. “Over time, I hope we can embrace a marriage-equality law.”
Marriage-equality legislation has gained little traction in the current Republican-controlled state government.
McCord, a candidate in the Democratic gubernatorial race, said his office has challenged Gov. Tom Corbett on issues such as liquor privatization and adultBasic health care — and marriage equality is now shaping up to be the next issue.
“Other than obviously and overtly disagreeing with Tom Corbett — he calls himself a pro-life Republican and I call myself a pro-choice Democrat and he says he’s absolutely against ‘gay marriage’ and I say I’m absolutely in favor of marriage equality — we haven’t run into each other on this matter yet in state government,” he said. “So yet again I’m sort of entering the arena and calling them out.”
McCord said he expects some will question if there is political motivation behind his amicus curaie motion, but he emphasized it is wholly disconnected from his gubernatorial campaign.
“It’s predictable as sunrise that your opponents will put whatever they can into a negative light. But I think there’s two ultimate acid tests on issues like this from my point of view,” he said. “First, you have to be certain that what you do at all times is in the public interest. If you’re doing something that isn’t in the public interest, just don’t do it. So I’m certain this is the right thing to do. And second, would I be bothering to do this if I weren’t running for office? You would have to ask yourself, Well, it’s in the public interest but is it kind of trivial? Well, this is far from trivial. And absolutely I would be doing this even if I wasn’t running for governor.”