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A lawyer for the city of Philadelphia told the Pennsylvania Supreme Court Tuesday that the purpose of the city’s domestic partnership ordinances was not to create the equivalence of marriage for same-sex couples but to protect them from discrimination and provide benefits to registered “life partners” of city employees. “There is no conflict between what the ordinance does and what the domestic code of Pennsylvania does,” the attorney, Barbara W. Mather, told the justices. The benefits and protections bestowed by the ordinances at issue are not provided uniquely to married people, “so we’re not about equating life partnership to marriage,” explained Mather, a partner at Pepper Hamilton. “The reason you can be certain of that is you can take notice of the events of the last six months where people in San Francisco were lined up out the door for marriage licenses,” said Mather, referring to 4,160 marriage licenses issued to gay couples in San Francisco before the California Supreme Court ordered the city to stop last month. “There were not similar lines here in Philadelphia.” Oral arguments in Devlin v. City of Philadelphia lasted for more than an hour. Six justices listened, and five of them vigorously questioned Mather and the appellees’ attorney, Dennis M. Abrams. The seventh justice, Sandra Schultz Newman, did not attend arguments Tuesday because of a broken arm and is not expected to participate in the decision of the case, according to her assistant. The ordinances at issue were enacted in 1998 while Edward G. Rendell was mayor. They extend the equivalent of spousal benefits to the partners of lesbian and gay city employees who have registered as life partners with the Philadelphia Commission on Human Relations. To register, couples present documentation that they’ve lived together for at least six months and agree to be responsible for each other’s “common welfare.” The city also said life partners would be exempt from the city tax on real estate transfers, and specifically protected “life partners” from discrimination by adding such a category under the provision of the Fair Practices Ordinance that protects individuals from discrimination based on “marital status.” In 1999, William Devlin, head of a socially conservative group called the Urban Family Council, led a group of taxpayers who filed suit in opposition to the ordinances. The Philadelphia trial court upheld the ordinances, but the Commonwealth Court struck them down in 2002, saying the city had overstepped its authority in creating a “new relationship between same-sex persons that it categorized as being part and parcel of the marital state.” Tuesday, Mather told the justices that employee benefits and anti-discrimination were two areas “long considered appropriate for city legislation.” Under Pennsylvania’s domestic code, married people are entrusted with a slew of benefits and obligations — alimony, joint tax returns, family tax exemptions — that are not affected by the Philadelphia ordinances, Mather said. Justice Ronald D. Castille suggested that the city’s inclusion of “life partner” as a marital status category protected from discrimination was improper. The “marital status” provision already protected married, divorced, widowed and single people from discrimination, so why did the city see the need to add “life partner?” Castille asked. “The city might have had a different argument if you hadn’t added ‘life partners’ in the end there,” Castille told Mather. “That’s why I have a problem with this ordinance as opposed to the others.” Abrams, arguing for Devlin, emphasized how Philadelphia’s ordinance differs from municipal ordinances in Denver, Chicago and other cities because life partnership status under the Philadelphia ordinance is not connected to a city employee’s job. “Nobody does it like the city of Philadelphia does it,” argued Abrams, an attorney at Lowenthal & Abrams in Bala Cynwyd, Pa. “The benefits are contingent on employment, but the status of life partnership is not.” If a city employee loses his or her job, that employee’s registered life partner would lose the benefits, but the couple will still be life partners in the eyes of the city, Abrams explained. “The totality of the program goes beyond a simple employee-based program. You’re going out into the city and saying other people who aren’t employed by the city can be protected from discrimination and exempt from the tax on real estate transfers,” Abrams said. Justice J. Michael Eakin asked Abrams what the life partners could do with that status after one was no longer a city employee. Abrams said that, under the nondiscrimination ordinance, they would be protected from discrimination. In response to several of the justices’ questions, Abrams repeated that only the state has the power to define a familial relationship under the domestic relations code. “The city of Philadelphia can’t take two people and say you have to pledge to be totally responsible for each other before you can get these benefits,” Abrams said. “The city does not have the authority to do that.” Cappy demanded to know why an employer, such as the city, shouldn’t be able to define what benefits it chooses to bestow upon its employees. “Say you’re going to give benefits to couples with monkeys,” Cappy supposed. “Why can’t you give benefits to homosexual couples?” “The city’s not saying you can give benefits to anybody you want,” Abrams replied. “It’s saying first you have to pledge your support to your life partner and then they’ll give benefits to your life partner. It’s the way the benefits get to the employee that gets us here today.” Abrams suggested that the process of registering as life partners in Philadelphia is too similar to the process of taking a marriage vow because it includes a “commitment oath” that one partner must look out for the welfare of the other, Abrams said, and this creates obligations. “It requires them to present an affirmation that they agree to become more interdependent than they were before,” Abrams said. Abrams echoed the Commonwealth Court’s finding that the ordinances were a “thinly veiled attempt by the city to duplicate the institution of marriage for couples of the same sex.” At one point, Eakin leaned forward to ask Abrams what the justice’s options would be if he wanted to enter into a contract to support the chief justice — or more appropriately, he said, to have the chief support him. Onlookers giggled at this, and Cappy smiled. Abrams said that the contract could not be executed under the Domestic Relations Act but would have to be a private contractual matter between Eakin and Cappy. Abrams and Mather addressed the issue of the real estate tax exemptions lastly. Each noted that there are 26 categories of exemptions to the city tax on real estate transfers, including exemptions for familial transfers. Abrams contended that the exemption for life partners violates the Uniformity Clause of the state constitution. “You’re taking two unmarried people — who aren’t qualified to be married — and putting them in the same category as married people,” Abrams said. Mather said the exemption was meant to attract workers to the city and to entice them to invest there. Noting that the court treats the tax base “gingerly” in questions of exemption, Cappy asked Mather, “Are we not obligated, for that facet of the case, to consider how it implicates unmarried heterosexual couples not being able to obtain exemptions?” Mather analogized the judgment to the one the city makes when it decides to exempt transfers between uncle and nephew but not between cousins. “It’s a rational decision to draw the line somewhere,” Mather said. “And wherever you draw the line, you going to find people close to it on either side.” At the start of the Devlin arguments, Cappy made it clear that he did not want the attorneys to argue whether the ordinances violated the Equal Protection Clause. For the most part the attorneys stayed away from the issue. Cappy, however, did seem to get frustrated with Abrams when justices asked a question relating specifically to the benefits ordinance, and Abrams in response mentioned an issue relating to another ordinance. “You’re jumping,” Cappy said, sitting up very straight in his seat. “If you want to start switching, I’ll switch, too. And I’ll win because I’m sitting here.” Justice Thomas G. Saylor did not ask questions of Abrams or Mather. Carol Holbrook, assistant to Newman, said the justice broke her upper arm last month and said Newman’s orthopedist does not want her to leave her chair while she recuperates at home. Newman will not participate in the decision of cases in which she missed arguments, Holbrook said. An exception would be if the parties decide not to argue and rely on their written briefs only, Holbrook said.

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