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Climbing Toward Equality


Equal rights for same-sex couples is still an uphill battle


In an en banc decision last month, the Superior Court reversed 25 years of a legal presumption against homosexual parents.

In M.A.T. v. G.S.T., a unanimous court, in a decision by Judge Christine Donohue, overruled its 1985 decision in Constant A. v. Paul C.A., thereby reversing the application of an evidentiary presumption against a homosexual parent.

In Constant A., Judge Patrick R. Tamilia, writing for a two-judge majority, stated:

“[T]here are sufficient social, moral and legal distinctions between the traditional heterosexual family relationship and illicit homosexual relationship to raise the presumption of regularity in favor of the licit, when established, shifting to the illicit, the burden of disproving detriment to the children.”

But Donohue, writing for the M.A.T. Court, examined the cases that followed Constant A. including the Superior Court’s decisions in Pascarella v. Pascarella in 1986, Barron v. Barron in 1991 and Blew v. Verta, in 1992 and held as follows:

“Resolving this conflict in prior panel decisions of this Court, we overrule both the holdings and the reasoning in Constant and its progeny (including Pascarella and Barron), and conclude that a homosexual parent bears no special evidentiary presumption in a child custody case. Constant’s evidentiary presumption against the parent involved in a same sex relationship is fundamentally contrary to our Supreme Court’s admonition that presumptions should not be relied upon when deciding child custody cases between the parents.

“Moreover, Constant’s evidentiary presumption is based upon unsupported preconceptions and prejudices — including that the sexual orientation of a parent will have an adverse effect on the child, and that the traditional heterosexual household is superior to that of the household of a parent involved in a same sex relationship. Such preconceptions and prejudices have no proper place in child custody cases, where the decision should be based exclusively upon a determination of the best interests of the child given the evidence presented to the trial court.”

Within a week of M.A.T. v. G.S.T., the Supreme Court of Pennsylvania unanimously decided that gay and lesbian employees of the Pennsylvania judiciary would receive medical benefits for same-sex domestic partners starting March 1. Also in January, a Florida court approved an adoption by gay parents. Florida’s statute specifically precludes adoption by a gay parent. As of the end of January, three different judges in Florida courts ignored the statute and approved the adoptions.
At its 2009 annual meeting, the American Bar Association approved Resolution 112 which reads as follows:
“RESOLVED, that the American Bar Association urges Congress to repeal 1 U.S.C. § 7, which denies federal marital benefits and protection to lawfully married same-sex spouses.”
It would appear then that in this 21st century, rights of gays and persons with alternate sexual identities are moving forward. However, there is still considerable homophobia and prejudice against this population.
The Defense of Marriage Act was signed into law by President Bill Clinton in 1996, eight years before same-sex couples had the right to marry anywhere in the United States. The stated intent of Congress in passing DOMA was to “defend the institution of traditional heterosexual marriage and protect the rights of States to formulate their own public policy regarding the legal recognition of same-sex unions, free from any constitutional implications.”
Since 1996, a federal law has existed which accomplished on a federal level what M.A.T v. G.S.T. sought to eradicate in Pennsylvania. Notwithstanding that DOMA is the law of the United States, there are five states which have approved marriage between same-sex couples, beginning with Massachusetts in 2004. Connecticut, Iowa, New Hampshire and Vermont all followed. Maine and California passed same-sex marriage laws but those laws were reversed by voter referenda. New Jersey just defeated a law which would have approved same-sex marriage.
There are jurisdictions that offer recognition and protection for same-sex couples: California, the District of Columbia, New Jersey, Nevada, Oregon and Washington. New York and the District of Columbia recognize same-sex marriages that have been performed in other jurisdictions. The Williams Institute estimates that 35,000 same-sex couples have married in the United States.
The Pennsylvania Constitution has a “baby DOMA” defining marriage as between one man and one woman. How ironic that the same jurisdiction which has a baby DOMA is the one that decided M.A.T. v. G.S.T. A review of Pennsylvania’s laws, on their face, does not yield a very promising picture for same-sex couples.
On the books, same-sex couples have no rights in Pennsylvania with regard to statutory law. There is no marriage act for gay people and no divorce code. In New Jersey, for instance, the state’s marriage act covers all the rights and responsibilities with regard to civil unions in that state. New Jersey’s divorce code governs the termination of civil unions with the same terms as for married people seeking divorce.

Even though Pennsylvania, in this landmark opinion of M.A.T. V. G.S.T., has eradicated an evidentiary presumption against gay parents’ households with regard to custody matters, such far-reaching insight by the court does not cure the fact that there is a constitutional ban on gay marriage in Pennsylvania that prevents marriage between anyone except a male and a female. This is so despite same-sex members of the judiciary in Pennsylvania and their staffs being able to secure health benefits for their domestic partners and despite the fact that Gov. Edward G. Rendell provided benefits to same-sex domestic partners of employees of the executive branch one year ago.

I recently secured a pre-birth order regarding a child to be born to a same-sex male couple, carried by a surrogate, which declared the same-sex partners the legal parents of the child. (See “Baby Steps for the Justice System” 32 PLW 1250, Nov. 2, 2009). That order took the surrogate out of the loop and eliminated the need for the same-sex couple to have to go through the process of terminating the parental rights of the surrogate and for the life partner of the biological father to have to adopt the child. The pre-birth order states that the same-sex couple are the legal parents of the child and their names are on the birth certificate from the moment of the child’s birth.

The limited progress described in this article reminds me of the old slogan for Virginia Slims cigarettes — “You’ve come a long way, baby.” However, this is not the time for advocates of equal rights for same-sex partners to rest on their laurels. With a stroke of the pen in 1996, Clinton signed DOMA, which essentially overrode any individual state’s determination that a certain class of marriages is valid. DOMA also nullified a class of marriages for federal purposes so that same-sex partners cannot receive federal benefits such as Social Security benefits, including SSI and ERISA benefits.

President Obama, in his recent State of the Union message, promised to eradicate the “Don’t Ask, Don’t Tell” policy of the United States armed forces. Subsequently, there was a great deal of discussion among members of Congress and among the military chiefs of staff. In The New York Times, Frank Rich wrote a column Feb. 7 titled “Smoke the Bigots Out of the Closet.” Rich applauded Admiral Mike Mullen, who called for gays to serve openly in the military. He concluded his article by stating:

“The more bigotry pushed out of the closet for all voters to see, the more likely it is that Americans will be moved to grant overdue full citizenship to gay Americans. It won’t happen overnight, any more than full civil rights for African-Americans immediately followed Truman’s desegregation of the armed forces. But there can be no doubt that Mike Mullen’s powerful act of conscience last week, just as we marked the 50th anniversary of the Greensboro, N.C., lunch counter sit-in, pushed history forward. The revealing silence that followed from so many of the usual suspects was pretty golden too.”

The granting of equal rights, benefits, and responsibilities to same-sex partners still has an uphill battle. However, with the foresight of the Superior Court in M.A.T. v. G.S.T., each baby step makes it easier to climb up the hill. •



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