The number holder (NH) was domiciled in Pennsylvania when the Claimant applied for spouse’s benefits; therefore, we look to the Pennsylvania law to determine if the Claimant and the NH had a valid same-sex marriage. Between July to September 2013, before Pennsylvania permitted same-sex marriage, a Clerk of the Orphans’ Court in Montgomery County, issued marriage licenses to approximately 174 same-sex couples. The Claimant and the NH were among this group. The Claimant provided a valid marriage certificate and other documentation that suggests that he and the NH satisfied the marriage requirements in accordance with the Pennsylvania law. We believe the Pennsylvania courts would find the 2013 marriage between the NH and the Claimant to be valid. Accordingly, the agency finds that the marriage between the NH and the Claimant is valid for purposes of determining Claimant’s entitlement to Title II spouse’s benefits.

Question

You asked whether a same-sex marriage between J~, the Number Holder (NH), and R~, Claimant, is valid for purposes of Title II spouse’s benefits where it was performed in Montgomery County, Pennsylvania, in August 2013, prior to the date when same-sex marriage was permitted in Pennsylvania.

Short Answer

Yes. We believe the Pennsylvania courts would find the 2013 marriage between NH and Claimant to be valid. Accordingly, we believe there is support for the agency to find that the marriage between the NH and Claimant is valid for purposes of determining Claimant’s entitlement to Title II spouse’s benefits.

Background

Between July to September 2013, before Pennsylvania permitted same-sex marriage, D. Bruce Hanes, Esq., Clerk of the Orphans’ Court in Montgomery County, issued marriage licenses to approximately 174 same-sex couples. The Claimant and the NH were among this group. The Marriage Certificate submitted by Claimant indicates that he and the NH were married by I~, a non-denominational minister on August XX, 2013, in Philadelphia, Pennsylvania^[1] . However, Pennsylvania statutes prohibited same-sex marriages prior to the May 20, 2014 decision in Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014)^[2] . The claimant applied for Title II spouse’s benefits on May XX, 2014.

ANALYSIS

1. A. 

   The Agency Looks to Pennsylvania Law

   To determine a claimant’s relationship as an insured’s spouse, the agency looks to the laws of the State where the insured is domiciled at the time Claimant files an application. 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. §§ 404.344, .345 (2018). If Claimant and the NH were validly married under State law at the time Claimant applies for spousal benefits, the relationship requirement is satisfied. Id. Here, because the NH was domiciled in Pennsylvania when Claimant applied for spouse’s benefits, Pennsylvania law applies.

2. B. 

   2013 Montgomery County Marriages

   On September 12, 2013, the Pennsylvania Commonwealth Court issued an injunction to stop Mr. Hanes, Clerk of the Orphans’ Court in Montgomery County, from issuing same-sex marriage licenses. Commonwealth of Pennsylvania v. Hanes, 78 A.3d 676 (Pa. Commw. Ct. 2013).

   Mr. Hanes appealed.

   On September 25, 2013, twenty-seven of the same-sex couples married in Montgomery County in 2013 petitioned the Commonwealth Court of Pennsylvania to have their marriages recognized as valid. Ballen v. Wolf,Petition for Review In the Nature of a Civil Action Complaint, Pa. Commw. Ct., (September 25, 2013), http://www.pacourts.us/assets/files/setting-3387/file-3059.pdf?cb=43e783. The Claimant and NH were not petitioners in Ballen, nor are we aware that they have they brought any other action to establish legality of their marriage under Pennsylvania law.

3. C. 

   Pennsylvania Recognizes Same-Sex Marriages

   On May 20, 2014, a federal district court issued an opinion in the case of Whitewood, 992 F. Supp.2d at 432, holding that sections 1102 and 1704 of Pennsylvania’s marriage laws violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution. The court overturned Pennsylvania’s laws regarding same-sex marriage stating, “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” Whitewood, 992 F. Supp. 2d at 431.^[3] Therefore, as of May 20, 2014, Pennsylvania recognized same-sex marriages that were valid in the jurisdiction in which they were celebrated. However, the Whitewood decision did not address the status of same-sex couples who had married with Montgomery County licenses in 2013.

   On May 21, 2014, Governor Tom Corbett announced that he and his legal team would not seek to appeal the Whitewood decision.^[4] Thus, Pennsylvania became the 19th state to legalize same-sex marriage.

   Notably, Governor Corbett’s office also specifically stated that it would not validate the 2013 marriage licenses. A spokesperson for the Governor’s Office of General Counsel said that these Montgomery County couples should get a new license, dated after the Whitewood decision, to ensure the marriages would not be disputed. However, Montgomery County officials stated that the marriages were signed, filed, and legal. Jessica Parks, Gay couples wed in 2013 remain in limbo in Montco, The Inquirer, (May 31, 2014), http://articles.philly.com/2014-05-31/news/50214004_1_montgomery-county-register-bruce-hanes-couples .

4. D. 

   Resolution of 2013 Montgomery County Marriages Post-Whitewood

   To date, there are no Pennsylvania decisions addressing the validity of a ceremonial same-sex marriage entered into in Pennsylvania prior to the Whitewood decision. However, as discussed in detail below, two post-Whitewood settlements have addressed the validity of the same-sex marriages that were performed in 2013. In both cases, the negotiated resolution was to recognize the 2013 marriages valid as of May 20, 2014, the date same-sex marriage became legal in Pennsylvania.

   On September 30, 2014, the Commonwealth and the petitioners in Ballen agreed to a court-approved settled resolution that the petitioners’ marriages would be considered legally valid from May 20, 2014, the date of the Whitewood decision, without regard to the date that the marriage license was issued or the marriage certificate was filed. However, the court issued its stipulation for settlement and dismissal without providing any rationale or analysis and the settlement only included the twenty-seven named couples. Robert C. Heim, Esq. and Joel L. Frank, Esq., Stipulation of Settlement and Dismissal, (2014), available athttp://www.pacourts.us/assets/files/setting-3387/file-3921.pdf?cb=a6baa1.

   Similarly, in 2013, Tiffany Jo Titus and Wendy Allison Titus were married in Erie County pursuant to a 2013 Montgomery County marriage license. Following the Whitewood decision, the couple filed a motion in Erie County asking the Court to declare their marriage legally valid. In October 2014, pursuant to the same terms as the Ballen settlement, the State agreed to recognize the Titus’s marriage as of May 20, 2014, the date of the Whitewood decision. Based on the settlement, an Erie County judge then declared the two legally married in Erie County. Lisa Thompson, Erie judge ends legal limbo for couple’s marriage, Erie Times-News, (October 14, 2014, 12:01 AM), http://www.goerie.com/article/20141019/NEWS/610195762 .

   However, other than these two settlement agreements, which are not binding on any court in Pennsylvania, no court has addressed the specific issue of whether Whitewood’s holding should be applied retroactively to the 2013 marriage ceremonies that were not part of the Ballen and Titus lawsuits.^[5]

5. E. 

   The United States Supreme Court Legalizes Same-Sex Marriage

   On June 26, 2015, the United States Supreme Court held that the right to marry is a fundamental right, and that denying marriage to same sex couples violates the Fourteenth Amendment’s Due Process and Equal Protection clauses. Obergefell v. Hodges, 135 S.Ct. 2584 (2015).^[6]

6. F. 

   The Hanes Appeal is Dismissed Pursuant to a Settlement Agreement

   The appeal in the Hanes Montgomery County clerk injunction matter was ultimately dismissed on December 16, 2015, pursuant to a settlement agreement following the Whitewood and Obergefell decisions. Commonwealth of Pennsylvania v. Hanes, 128 A.3d 1183 (Pa. 2015). Media reports indicate that the state Department of Health proposed moving the “Hanes couples’” anniversaries to May 20, 2014, the date of the Whitewood decision. Mr. Hanes has always wanted to use the date the ceremonies were performed, which the state Department of Health ultimately agreed not to challenge. Jim Melwert, Same-Sex Couples Who Got Married On Licenses Issued In Montco Before Ban Was Struck Down Can Keep Anniversary Date, CBS Philly (Dec. 2, 2015), http://philadelphia.cbslocal.com/2015/12/02/same-sex-couples-who-got-married-on-licenses-issued-in-montco-before-states-ban-was-struck-down-can-keep-anniversary- date; Same-sex Couples Married Before Pa. Ban Was Overturned Can Keep Original Anniversary Dates, Penn Live (Dec. 1, 2015), http://www.pennlive.com/news/2015/12/same- sex_ marriage_ pa_anniversa.html; see also Peter Nicholas, Backdating Marriage, 105 Cal. L. Rev. 395, 423 (2017) (“Toward the end of 2015, the Department of Health agreed to accept the dates of the marriage ceremonies, which all occurred before the ban on same - sex marriage was declared unconstitutional, as the legal dates of the marriages.” ).

7. G. 

   The Agency Should Recognize the NH and Claimant’s Marriage as Valid as of the Date Performed.

   Although to date there is no Pennsylvania decision directing recognition of same-sex marriage entered into with a license issued in Pennsylvania prior to May 20, 2014, we believe the Pennsylvania courts would nevertheless find such a marriage to be valid as of the date it was performed.

   Recent case law holding that a same-sex couple could establish a valid common law marriage prior to 2005 supports this conclusion.^[7] In the case of In re Estate of Carter, 159 A.3d 970, 977 (Pa. Super. Ct. 2017), the Superior Court of Pennsylvania found that “same sex couples have precisely the same capacity to enter marriage contracts as do opposite sex couples, and a court today may not rely on the now-invalidated [law] . . . to deny that constitutional reality.” (citing U.S. v. Windsor, ___ U.S. ___, 133 S. Ct. 2675 (2013); Obergefell v. Hodges, 135 S.Ct. 2584, 2604-05 (2015); Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014)). The court explained that, under the Equal Protection and Due Process clauses of the Fourteenth Amendment, same-sex couples must have the same right as opposite-sex couples to establish through a declaratory judgment action, the existence of a common law marriage prior to January 1, 2005. Id. at 978. Therefore, the court in Carter found that the same-sex couple had proven the elements of a common law marriage prior to 2005 notwithstanding the fact that such marriages were not recognized in Pennsylvania at that time. Id. at 982.

   In addition, pursuant to Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), the Agency should give Obergefell full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate Obergefell. As a result, the Agency will consider all State law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law, void and ineffective. The Agency will apply the relevant law to the facts as usual to evaluate marital status.

   Here, as detailed below, the evidence suggests that Claimant and the NH satisfied the required marriage elements of a ceremonial marriage the Commonwealth of Pennsylvania at the time of the marriage.^[8] See 23 Pa. Const. Stat. Ann. § 1301-1307 (relating to application and license); 23 Pa. Const. Stat. Ann §1503 (addressing solemnization). As previously indicated, the parties obtained the required marriage license in Montgomery County, Pennsylvania. 23 Pa. Const. Stat. Ann. § 1301 (effective 1990). According to 23 Pa. C.S.A. § 1307, a marriage license is issued if it appears from the properly completed application on behalf of each of the parties to the proposed marriage that there is no legal objection to the marriage. Therefore, we believe that the parties complied with 23 Pa. Const. Stat. Ann. § 1302 by filing an application for a license and 23 Pa. Const. Stat. Ann. § 1306 regarding the oral examination of the parties applying for a license. Similarly, the evidence also suggests that there were no restrictions on issuing the license under 23 Pa. Const. Stat. Ann. § 1304, including incompetency, minority, or a prohibited degree of consanguinity. Finally, we believe that 23 Pa. Const. Stat. Ann. § 1303(a), which prescribes a three-day waiting period between an application and issuance of a marriage license, was satisfied or the license was issued under 23 Pa. Const. Stat. Ann. § 1303(b), which waives the waiting period in the case of emergency or extraordinary circumstances.

   A ceremonial marriage is wedding performed by a religious or civil authority with the usual or customary formalities. In re Estate of Carter, 159 A.3d 970, 974 (Pa. Super. Ct. 2017) citing In re Manfredi’s Estate, 159 A.2d at 700. As the attached Marriage Certificate indicates, Claimant and the NH were married by I F, a non-denominational minister, in Pennsylvania on August XX, 2013.

   The claimant provided a Duplicate Marriage Certificate, which appears to have been properly filed, accepted, and returned to the parties by the Clerk of the Orphans’ Court on September 3, 2013 in accordance with 23 Pa. Const. Stat. Ann. § 1504 (effective 1990). See In re Neiderhiser’s Estate, 2 Pa. D. & C.3d 302, 309-10, 1977 WL 711 (C.P. 1977) (a clergyperson’s filing of the duplicate marriage license is prima facie evidence of a marriage ceremony completed in accordance with the laws of Pennsylvania and the religious organization and raises a presumption of a valid marriage.) Because the documentation provided suggests that the parties satisfied the requirements of marriage when they were married in 2013, we believe that the Pennsylvania courts would find the same-sex marriage to be valid under Pennsylvania law.

CONCLUSION

We believe the Pennsylvania courts would find the 2013 marriage between NH and Claimant to be valid. Accordingly, there is support for the agency to find that the marriage between the NH and Claimant is valid for purposes of determining Claimant’s entitlement to Title II spouse’s benefits.