Pa. Lawsuit Could Make DOMA Applicable to Private Companies

A Pennsylvania lawsuit could substantially increase the reach of the Defense of Marriage Act, potentially prohibiting private companies from recognizing same-sex spouses.

The case, which went before a judge in Philadelphia on Monday, seeks to determine whether the death benefits accrued by the late Sarah Ellyn Farley should be paid to her parents or her wife from a legal Canadian same-sex marriage, Jennifer Tobits.

Farley's employer, the Cozen O'Connor law firm, was unable to determine which party had the appropriate claim to Farley's benefits, so the case was put before a judge.

In their response to the suit, however, Cozen O'Connor purports that it is not able to grant Tobits spousal benefits because of DOMA, which could change how same-sex spouses receive insurance benefits.

The act, passed in 1996 by large majorities of both houses of Congress, sought to ensure that marriages remain defined as between a man and a woman after the Hawaii Supreme Court's ruling in Baehr v. Miike caused many to fear that states would be compelled to accept same-sex marriages under the Full Faith and Credit Clause of the Constitution.

Section 3 of DOMA states that same-sex marriages will not be recognized for federal purposes, including insurance benefits for government employees.

While DOMA has not been used in the past to prevent private companies from recognizing same-sex marriages, Farley's parents claim that since the act and a similar Pennsylvania state statute both define marriage in traditional terms as between a man and a woman, Tobits' claim to the benefits is invalid.

"DOMA does not require private employers to discriminate when they set the terms of their own benefits," said National Center for Lesbian Rights Legal Director Shannon Minter. "Federal law requires employers to give certain protections to different-sex spouses, but it doesn't prohibit employers from offering those protections to same-sex spouses as well."

The issue is further complicated by Tobits' Illinois residency. Under Illinois law, same-sex unions are recognized with the same rights as marriage, but Pennsylvania has no such statute.

"Just because Illinois has recognized this relationship in one form or another, whether they call it a civil union or a marriage, doesn't mean Pennsylvania has to recognize it as such," Pennsylvanian lawyer Helen Casale told the Pittsburgh Post-Gazette.

If the court decides in favor of Farley's parents, it will then have to make a secondary consideration as to whether or not DOMA's definition of marriage is constitutional, a debate that has already entered the courts through other high-profile cases.

Although the Justice Department under President Barack Obama initially defended DOMA as part of its policy to defend all federal laws, Attorney General Eric Holder released a memo in February of 2011 saying that the department would no longer defend DOMA.

Although the Justice Department is not directly involved in the Cozen O'Connor case, it did release a brief in January of 2012 asking the court to find Section 3 of DOMA unconstitutional.

According to the brief, "Section 3 treats same-sex couples who are legally married under their states' laws differently than similarly situated opposite-sex couples, denying them the status, recognition and significant federal benefits otherwise available to married persons."