Decisions of Interest

PA Judge Denies Divorce for Same-Sex Couple

Because Pennsylvania does not recognize same-sex marriages, a Berks County, PA, judge has ruled he cannot issue a divorce order for two women who married in Massachusetts in 2009. In the ruling, which appears to be one of first impression, Berks County Common Pleas Court Judge Scott E. Lash stayed close to Pennsylvania's pronouncements on the issue of marriage and opted not to stray from what has already been said on the subject.

The state Supreme Court, Lash wrote, has described a fundamental right as “inherent in man's nature,“ among the “basic rights of human beings,“ and among the “hallmarks of Western Civilization.“ The argument that a same-sex marriage passes such a test is unsupportable, the judge continued.

The parties were married in Massachusetts, but were unable to file for divorce there, because Massachusetts law requires parties filing for divorce to live there for a year beforehand. As a result, Kern filed a divorce action in Berks County.

Lash wrote: “In essence, there are two (2) questions which must be posed: first, whether the right of privacy bestowed on consenting adults, permitting them to engage in intimate activity without government interference, also guarantees a right to marry; and secondly, whether the fundamental right of marriage contemplates same-sex marriages.“ The answer to both, Lash determined, was no.

That did not mean, however, that Kern lacked any relief, Lash wrote. Though she was unable to file for divorce, she is not barred from requesting the court to have her marriage declared void. In addressing the second question, Lash, described the argument that a same-sex marriage qualified as a fundamental right as unsupportable. In support, he cited to the 1984 Superior Court case DeSanto v. Barnsley, which ruled that a homosexual couple could not contract a common law marriage. The panel, in that case, ruled that though marriage was not defined in statutory law, there was a strong inference that marriage was limited to two persons of the opposite sex. ' Leo Strupczewski

PA Judge Denies Divorce for Same-Sex Couple

Because Pennsylvania does not recognize same-sex marriages, a Berks County, PA, judge has ruled he cannot issue a divorce order for two women who married in Massachusetts in 2009. In the ruling, which appears to be one of first impression, Berks County Common Pleas Court Judge Scott E. Lash stayed close to Pennsylvania's pronouncements on the issue of marriage and opted not to stray from what has already been said on the subject.

The state Supreme Court, Lash wrote, has described a fundamental right as “inherent in man's nature,“ among the “basic rights of human beings,“ and among the “hallmarks of Western Civilization.“ The argument that a same-sex marriage passes such a test is unsupportable, the judge continued.

The parties were married in Massachusetts, but were unable to file for divorce there, because Massachusetts law requires parties filing for divorce to live there for a year beforehand. As a result, Kern filed a divorce action in Berks County.

Lash wrote: “In essence, there are two (2) questions which must be posed: first, whether the right of privacy bestowed on consenting adults, permitting them to engage in intimate activity without government interference, also guarantees a right to marry; and secondly, whether the fundamental right of marriage contemplates same-sex marriages.“ The answer to both, Lash determined, was no.

That did not mean, however, that Kern lacked any relief, Lash wrote. Though she was unable to file for divorce, she is not barred from requesting the court to have her marriage declared void. In addressing the second question, Lash, described the argument that a same-sex marriage qualified as a fundamental right as unsupportable. In support, he cited to the 1984 Superior Court case DeSanto v. Barnsley, which ruled that a homosexual couple could not contract a common law marriage. The panel, in that case, ruled that though marriage was not defined in statutory law, there was a strong inference that marriage was limited to two persons of the opposite sex. ' Leo Strupczewski