Marriage Ruling Does Not End Equality Issues in PA

By | June 28, 2015

In the midst of an impromptu rally June 26 on Philadelphia’s Independence Mall, attorney Angela Giampolo watched two of her clients with tears of joy streaming down their faces.

It was just a few Valentine’s Days ago that Giampolo, known to many as Philly Gay Lawyer, gave clients Charlie and Joe the closest thing they could get to a marriage—a will.

Fast-forward a couple years later and Charlie and Joe stood on the grounds of the National Constitution Center, where there currently happens to be an exhibit running on LGBT rights and the Supreme Court—celebrating the fact that not only was same-sex marriage legal in their home state of Pennsylvania, but in every state in the union.

“I have chills even thinking about talking about it,” Giampolo said June 26 of the U.S. Supreme Court’s decision in Obergefell v. Hodges, which legalized same-sex marriage in all 50 states.

Giampolo, who was in-between celebrations of the court’s ruling June 26, said marriage equality “is making us more normalized in everyday life” and “moving our LGBT agenda forward.”

But as much as there was to celebrate, Giampolo warned against complacency. There were governors who spoke out shortly after the ruling about how they would continue to protect religious liberty in their states. Giampolo said she may be able to get a marriage certificate, but in states like Pennsylvania with no anti-discrimination statutes, she could be fired from her job or be denied service when she goes to buy a wedding dress.

“The next wave is going to be where does my 14th Amendment right begin or end and where does [another’s] First Amendment right to religious freedom end or begin,” Giampolo said.

Philadelphia law firm Jerner & Palmer, which has represented LGBT families for years, celebrated the June 26 ruling but also issued a word of caution.

“This doesn’t mean that marriage solves all legal questions affecting same-sex couples,” partner Tiffany Palmer said in a statement, adding that “Pennsylvania is one of many states without any statutory laws governing the legal parental rights of parents who conceive children through assisted reproduction.”

John Culhane, a law professor at Widener University, agreed that, while the legal challenges to same-sex marriage are effectively dead without a two-thirds majority of U.S. Congress passing a constitutional amendment to ban same-sex marriage, states may now start passing laws in an effort to resist the ruling.

Culhane gave the example of a recent North Carolina law that allows magistrates and registers of deeds to refuse to participate in marriages that violate his or her religious beliefs.

“It shows that winning marriage equality doesn’t solve all the questions about equal treatment and making sure people are protected,” Culhane said. “Even in Pennsylvania you’re going to find skirmishes,” over things like whether to serve wedding cakes to a same-sex couple, or whether an employee can be fired after displaying a photo of his or her same-sex wedding at work.

Marriage is a choice, but almost everybody has to work, Giampolo said, pointing to the importance of workplace protections. Those in the transgender community, she said, sometimes view marriage equality as a “white, middle-class issue,” because members of the transgender community are trying to keep a job or stay alive.

Although Culhane said the Obergefell ruling will give some fodder to the argument that gay, lesbian and transgender people should be a protected class nationwide, it will also give ammo to the opposition argument, which could point to the decision as an example of the courts infringing on their religious rights.

“Both sides will use it as fuel for whatever arguments they’re going to make,” Culhane said. “It will certainly reanimate the argument.”

Marriage in Pennsylvania

Daniel J. Clifford, a Weber Gallagher Simpson Stapleton Fires & Newby family law attorney in Montgomery County, has done more than advise his clients on LGBT issues in Pennsylvania—he has lived it. He and his partner of 22 years married last October, a few months after U.S. District Judge John E. Jones III of the Middle District of Pennsylvania issued a ruling placing Pennsylvania’s ban on same-sex marriage into the “ash heap of history.”

Clifford said the June 26 ruling in Obergefell was a “giant leap forward” for LGBT rights. His son, Matt, who was the best man at his fathers’ wedding, had asked why this case was such a big deal. Clifford said that for the younger generation, same-sex marriage is viewed as the norm.

“But for many of us that had already gone that further step, we could have been caught in a legal quagmire,” Clifford said of what could have happened had the Supreme Court ruled differently June 26.

And beyond the marriage certificate, Jones’ ruling along with the June 26 decision brings other benefits, Clifford said. He and his husband filed their first joint tax return this year. And perhaps they won’t run into the situation they did a few years ago when returning from St. Thomas to the Philadelphia airport, where they were told they weren’t a family and couldn’t stand in the same customs line.

Clifford considers Montgomery County as the birthplace of marriage equality in Pennsylvania because it was the county’s register of wills who first began issuing marriage licenses after the U.S. Supreme Court struck down the federal ban on same-sex marriage but before Pennsylvania’s similar law was struck.

There’s still a lot of work to do, Clifford said June 26.

“But today is a day to celebrate,” he said.

Because same-sex marriage has been legal in Pennsylvania for a little more than a year, in a practical sense, the ruling maintains the status quo, attorneys said. However, Pennsylvania was one of the states where marriage equality could have been overturned by the Obergefell decision, and that could have “led to some chaos,” Culhane said.

According to Culhane, the ruling will make life easier for same-sex couples in Pennsylvania whose activities cross state lines. He cited examples of a same-sex couple in Pennsylvania trying to adopt a child from a state that did not recognize their union, or a same-sex couple getting into a car accident while driving through Ohio, where their marriage was not recognized until June 26.

“All of those issues are gone,” Culhane said.

Ballard Spahr partner Dee Spagnuolo and her wife were the first couple to get a marriage license from that register of wills. For them, Jones’ ruling in Whitewood v. Wolf was the key ruling in upholding their nuptials.

Spagnuolo said the June 26 ruling elicited an emotional reaction.

“Even though we had been living as a married couple and Pennsylvania had already been through this process, this is still our country,” Spagnuolo said. “And it’s exciting to know that other couples across the country will have the same rights and benefits and protections and respect as we have been enjoying here in Pennsylvania.”

And the Obergefell ruling provided additional safeguards beyond what Pennsylvania’s legalization of same-sex marriage ensured, Spagnuolo said. She said a good portion of Obergefell dealt with children being raised by same-sex couples.

She and her wife, Sasha, have children who they have cross-adopted, and when they all traveled to a state that didn’t recognize same-sex marriage, the couple would bring a flash drive with the adoption order on it.

“To know that our highest court is recognizing my family, and my relationship and my personal dignity obviously means a lot to me as a lawyer,” Spagnuolo said.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.

Max Mitchellcan be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

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