First Published June 27, 2013

The question of whether Cozen O’Connor’s federally-regulated pension plan benefits can be given to the wife of a deceased female partner would appear to be answered in part by the U.S. Supreme Court’s decision Wednesday ruling DOMA unconstitutional.

But the court’s decision to pass on the merits of a second case regarding whether individual states can allow for same-sex marriage could mean questions still pervade in a suit that pits the parents and former wife of the partner against each other in a battle for the partner’s $41,000 in pension benefits.

Under the ruling in United States v. Windsor, the federal Defense of Marriage Act defining marriage as between one man and one woman was deemed unconstitutional as a deprivation of equal liberty. That means federal benefits can no longer be denied to legally married same-sex couples. The issue, however, is the “legally married” caveat. The Supreme Court declined to rule Wednesday on the merits of the so-called Prop 8 case, Hollingsworth v. Perry, regarding whether California’s law banning same-sex marriage was constitutional.

A ruling that a same-sex marriage ban is unconstitutional could have forced all states to recognize same-sex marriage. The DOMA decision bars the federal government from discriminating against same-sex couples legally married in states that recognize same-sex marriage.

In Cozen O’Connor v. Tobits, former Cozen O’Connor Chicago-based partner Sarah Ellyn Farley married Jennifer Tobits in Canada in 2006. The couple lived in Illinois, where civil unions were adopted after Farley’s death in 2010. The retirement plan at issue “resides” in Pennsylvania. While attorneys involved in the case as well as observers agree the Windsor decision removes the DOMA question from the Tobits case, there is some debate as to whether the couple can be considered legally married for the purpose of Tobits receiving the benefits.

“My interpretation of what the Supreme Court just did is, basically, [it] said the federal DOMA is unconstitutional as it relates to those states that recognize same-sex marriage,” said Hangley Aronchick Segal Pudlin & Schiller family law attorney Helen Casale. “If I live in Pennsylvania with my partner but got married in New York, the Windsor case isn’t going to necessarily impact the validity of my marriage. Pennsylvania still doesn’t have to recognize my marriage.”

Casale said Windsor would have an immediate impact on a dispute in a state that allows for same-sex marriage. But, given Pennsylvania and Illinois don’t allow for same-sex marriage, or didn’t at the time of Farley’s death, Casale said she isn’t sure this case would be impacted by the ruling.

U.S. District Judge C. Darnell Jones II of the Eastern District of Pennsylvania placed the Tobits matter on the suspense docket until the Supreme Court issued the rulings Wednesday. Casale said the judge could recognize the Canadian marriage between Farley and Tobits considering they never lived in Pennsylvania and aren’t looking for a remedy that violates the public policy of the state.

Windsor certainly doesn’t hurt her position at all,” Casale said. “I think it may help in some regard. I’m just not sure how much given the facts of that case.”

Temple University’s Beasley School of Law professor Leonore F. Carpenter, the former legal director for Equality Advocates Pennsylvania, said Wednesday it would appear the Farleys’ argument that Employee Retirement Income Security Act-governed plans are bound by DOMA’s definition of marriage is “not workable anymore.” But the Farleys also argued that Pennsylvania’s own version of DOMA defining marriage between a man and a woman would prevent recognition of the marriage because the plan was administered in the state.

“That argument seems intact,” Carpenter said in an emailed statement.

Teresa S. Renaker of Lewis Feinberg Lee Renaker & Jackson in Oakland, Calif., represents Tobits in the matter.

Renaker said one of the big questions in Tobits is whether DOMA “reached down through ERISA to control the terms of a private employer pension plan.”

Under the pension plan, if there was not a beneficiary, the order of potential payouts would be first the spouse, then children and then the parents. Renaker said the question was whether DOMA controlled the definition of spouse in the plan. Farley’s parents argued DOMA barred Tobits from being considered Farley’s spouse.

“I think what the Windsor case does is dispense with that argument,” Renaker said. “It disposes of it completely.”

Renaker did recognize there were interjurisdictional issues present in this case regarding the fact that the marriage was in Canada, the couple lived in Illinois and the plan was administered in Pennsylvania. But she said there is nothing in the pension plan that requires the marriage to be recognized by a particular state. She said opposite-sex couples get married wherever they feel like it. People have destination weddings and don’t necessarily reside where they were married, Renaker said.

“So I think that certainly from the point of view of administering a pension plan, the most sensible rule is what we would call a ‘place of celebration’ rule, meaning if the marriage is recognized where it was entered, it’s a marriage,” Renaker said.

That is how plans are run for opposite-sex couples with respect to other types of marriage facing a patchwork of laws from state to state, Renaker said, pointing to, as an example, marriages between first cousins. In some states that is allowed, in other states it is not. Pension plans apply equally, she said.

“The most sensible approach to patchwork marriage laws like we’re going to have in this country with same-sex marriage is to look at the place of celebration,” Renaker said.

She said Pennsylvania will have to decide how it is going to treat out-of-state same-sex marriages. But Renaker said Jones doesn’t have to know how that will play out to determine how this private employee benefit plan can be administered.

“We certainly hope that this decision clears the way for a quick resolution in favor of our client,” Renaker said.

Peter C. Breen of the Thomas More Society in Chicago is representing Farley’s parents. He pointed out that both Tobits and the parents have argued the court doesn’t have to reach the question of DOMA’s constitutionality in resolving the dispute, but rather were asked by the court to brief and argue the issue.

“It does take out an issue that was a distraction from the core issue of the retirement plan and what it said,” Breen said of the Windsor ruling.

Breen said Illinois did not have any sort of same-sex unions in place when Farley died. He said the retirement plan refers to a married individual.

“There is no interpretation of federal or state law that makes Ms. Tobits a married spouse of Ms. Farley,” Breen said. “First off because Ms. Farley died prior to any legal change in Illinois and second because this is a private contract and not a government benefit. So the terms of the contract and their plain meaning indicate that, because they were not married, Ms. Tobits has no right to these funds. Period.”

The case, filed by Cozen O’Connor in January 2011 as an interpleader action, was placed on the suspense docket in September 2012. Because the constitutionality of a federal law was raised, the U.S. Justice Department was given an opportunity to defend DOMA. It declined, informing the court it would not argue for the measure’s viability. That allowed the Bipartisan Legal Advisory Group of the U.S. House of Representatives to argue in support of the law. The group is represented by Paul D. Clement of Bancroft PLLC.

Cozen O’Connor had not taken a position on the constitutionality of DOMA other than to argue it would have faced dire tax consequences had it given Tobits the benefits in violation of DOMA’s definition of marriage.

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