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.