DOMA Constitutionality Questioned in Same-Sex Marriage Case

The parties involved in a same-sex marriage dispute involving a deceased Cozen O'Connor partner and her profit-sharing plan continue to trade court filings and have now officially raised questions regarding the constitutionality of the federal Defense of Marriage Act and Pennsylvania's “mini DOMA.”

Background

The case, Cozen O'Connor v. Tobits , was filed by the law firm as an interpleader action, asking the court to have the parents and wife of former partner Sarah Ellyn Farley decide among themselves who should get Farley's profit-sharing plan benefits. Parents David and Joan Farley argued they were named as beneficiaries on the plan and, in the alternative, the benefits are to go to the parents if no surviving spouse is named. Because federal and Pennsylvania state law do not recognize same-sex marriages, the money automatically defaults to the parents, they argued. They have filed a motion to dismiss the cross-claim by Jennifer Tobits, Ellyn Farley's wife.

Tobits, on the other hand, argues the spouse has to approve a designation of beneficiary other than the spouse and she never signed off on that. She has argued that federal and state law do not apply because ERISA does not define “spouse,” so that should be dictated by the definitions of the contract terms included within the plan.

Cozen O'Connor said in its interpleader action that the plan is governed by the federal ERISA law and includes a clause that Pennsylvania state law applies.

Two Constitutional Questions

On Aug. 23, the day after the Farleys filed a motion to dismiss Tobits' cross-claims against them, Tobits filed two constitutional questions, putting both U.S. Attorney General Eric Holder and Pennsylvania Attorney General Linda Kelly on notice that she would argue DOMA and a similar provision of Pennsylvania's domestic relations act are unconstitutional. Both state that marriage can be only between a man and a woman.

“Defendant Tobits maintains that 23 Pa. C.S.A. ' 1704 has no legal bearing on this case and is irrelevant to the distribution of the plan,” Tobits explained in a notice to Kelly and the court. “To the extent the court analyzes this statute, however, the cross-claim is barred in whole or in part because 23 Pa. C.S.A. ' 1704 violates the guarantees of equal protection and due process of law embodied in the U.S. and Pennsylvania constitutions, and the Equal Rights Amendment to the Pennsylvania Constitution.”

She wrote a nearly identical notice to Holder, who has recently said that the Obama administration will not look to defend DOMA. The notices open the door for either the U.S. Department of Justice or the state to intervene in the case and defend the laws.

Tobits' attorney, Melanie S. Rowen of the National Center for Lesbian Rights in San Francisco, said she is very confident her client will not have to get into the constitutionality issues. She said it was simply the appropriate time in the case to file the notices.

U.S. District Court Judge C. Darnell Jones II for the Eastern District of Pennsylvania is presiding over the case and had scheduled a conference for Oct. 4. In their four-page motion to dismiss, the Farleys reiterated their point that Tobits could not have a claim to the benefits, which total around $41,000, because she is not the lawful spouse of their daughter.

“Addressing the meaning of the term 'spouse' as used in ERISA ' 205, all federal courts to have considered the issue have determined that the statutory term 'spouse' refers to the legal spouse,” the Farleys said in their motion, citing the 2007 Southern District of New York case Pension Fund v. McInerney. “ERISA mandates that 'pension benefits must be paid to [the decedent plan participant's] lawful widow, regardless of the plan's terms and definitions.' It follows that an ERISA plan cannot pay a death benefit to a spousal claimant who is not a lawful spouse.”

The Farleys again pointed out that the laws of the federal system, Pennsylvania and Illinois, where Tobits and Ellyn Farley lived, all state marriage is between a man and a woman. They are being represented in the case by the Thomas More Society in Chicago and the Independence Law Center in Harrisburg.

Attorney Statements

In an e-mail statement, the Thomas More Society's Peter Breen said Tobits' latest filings add “more false and legally irrelevant allegations to the record, all in an attempt to distract from the key issue in this case: How can Tobits claim to have been 'married' to the deceased when neither federal nor Pennsylvania law allow for same-sex marriage?”

He said the Farleys would defend those allegations if necessary but have asked the judge to dismiss the case before it gets to that point.

“If Tobits wasn't married to the deceased, this case is essentially over,” he said.

In prior court filings, the Farleys said their daughter, aware of her terminal cancer, executed a holographic will Sept. 9, 2010, dividing her assets between Tobits and the Farleys. On Sept. 12, 2010, Ellyn Farley executed a beneficiary designation form for Cozen O'Connor's profit-sharing plan, designating her parents as the beneficiaries.

After Ellyn Farley died, the Farleys presented a designation of beneficiary form to the law firm, purporting to show they were designated as the beneficiaries, according to the firm. The unsigned form listed her marital status as single and was dated the day before she died.

“It is unsigned by her and purports to have the signature of Ms. Farley's spouse notarized, which is inconsistent with the declaration that she is single and in any event is not signed by her spouse,” the firm said in its complaint. “Accordingly, Cozen O'Connor cannot determine the validity of this designation of beneficiary form.”

The Profit-Sharing Plan

Under the profit-sharing plan, accounts are to be distributed to beneficiaries upon the death of a participant. Unless otherwise selected, the spouse is the beneficiary of a death benefit equal to the pre-retirement survivor annuity. The participant also could designate a beneficiary other than a spouse to receive the pre-retirement survivor annuity only if the participant and spouse validly waived the annuity, the firm said. In the event no valid designation of beneficiary was made, benefits will be paid by priority first to the surviving spouse and then to the surviving parents, according to the complaint.

“Because Ellyn Farley and defendant Tobits were not 'married' under relevant law for the year prior to Ellyn's death, Tobits cannot be considered a 'spouse' under the plan,” the Farleys have said in court filings. They further explained that the beneficiary designation makes it clear Ellyn Farley wanted her parents to receive the benefits.

Tobits said in her answer, counter- and cross-claim in the Pennsylvania action that she married Farley Feb. 17, 2006, in Toronto and Cozen O'Connor personnel were in attendance and aware of the marriage.

Tobits brought a breach of fiduciary duty claim against the firm for failing to inform Ellyn Farley that provisions of the plan could create uncertainty about whether Tobits would be recognized as Farley's wife. Tobits argued the plan failed to comply with ERISA law in that it did not advise the participants that some marriages might not be recognized under the plan.

In her cross-claim against the Farleys, Tobits said Ellyn Farley had a “difficult” relationship with her parents. Tobits said Joan Farley did not attend the wedding and instructed her daughter not to send invitations to certain family members, according to the court filing. Tobits said Ellyn Farley was hospitalized Sept. 9, 2010, and was on pain medication during her hospital stay when she signed the documents at issue. Tobits said she was the medical power of attorney at the time.

When he arrived at the hospital, David Farley sought a copy of the will and later informed a nurse that he had “'changed the forms'” and that he and his wife, not Tobits, would be making decisions related to Ellyn Farley, according to Tobits' filing.

On Sept. 12, David Farley asked Tobits to go to her home and get a blank copy of the profit-sharing beneficiary form. Tobits said she feared she wouldn't be allowed to see her wife if she didn't comply, so she went home to get the form. When Tobits got back to the hospital, Joan Farley took the blank form and within a half hour it was filled out by Ellyn Farley with the Farleys as beneficiaries, Tobits said in the filing.

Ellyn Farley died the next morning. Tobits now argues Farley was inappropriately influenced to sign the beneficiary form and was in a state of weakened intellect at the time she did, according to court filings. Cozen responded to counterclaims against it by both parties, arguing the plan fully complied with ERISA law. The firm again asked the court to take the disputed benefits into escrow and release Cozen O'Connor from the case.

Gina Passarella is a senior reporter for The Legal Intelligencer, an ALM sister publication of this newsletter in which this article also appeared. Contact Ms. Passarella at 215-557-2494 or at [email protected].

The parties involved in a same-sex marriage dispute involving a deceased Cozen O'Connor partner and her profit-sharing plan continue to trade court filings and have now officially raised questions regarding the constitutionality of the federal Defense of Marriage Act and Pennsylvania's “mini DOMA.”

Background

The case, Cozen O'Connor v. Tobits , was filed by the law firm as an interpleader action, asking the court to have the parents and wife of former partner Sarah Ellyn Farley decide among themselves who should get Farley's profit-sharing plan benefits. Parents David and Joan Farley argued they were named as beneficiaries on the plan and, in the alternative, the benefits are to go to the parents if no surviving spouse is named. Because federal and Pennsylvania state law do not recognize same-sex marriages, the money automatically defaults to the parents, they argued. They have filed a motion to dismiss the cross-claim by Jennifer Tobits, Ellyn Farley's wife.

Tobits, on the other hand, argues the spouse has to approve a designation of beneficiary other than the spouse and she never signed off on that. She has argued that federal and state law do not apply because ERISA does not define “spouse,” so that should be dictated by the definitions of the contract terms included within the plan.

Cozen O'Connor said in its interpleader action that the plan is governed by the federal ERISA law and includes a clause that Pennsylvania state law applies.

Two Constitutional Questions

On Aug. 23, the day after the Farleys filed a motion to dismiss Tobits' cross-claims against them, Tobits filed two constitutional questions, putting both U.S. Attorney General Eric Holder and Pennsylvania Attorney General Linda Kelly on notice that she would argue DOMA and a similar provision of Pennsylvania's domestic relations act are unconstitutional. Both state that marriage can be only between a man and a woman.

“Defendant Tobits maintains that 23 Pa. C.S.A. ' 1704 has no legal bearing on this case and is irrelevant to the distribution of the plan,” Tobits explained in a notice to Kelly and the court. “To the extent the court analyzes this statute, however, the cross-claim is barred in whole or in part because 23 Pa. C.S.A. ' 1704 violates the guarantees of equal protection and due process of law embodied in the U.S. and Pennsylvania constitutions, and the Equal Rights Amendment to the Pennsylvania Constitution.”

She wrote a nearly identical notice to Holder, who has recently said that the Obama administration will not look to defend DOMA. The notices open the door for either the U.S. Department of Justice or the state to intervene in the case and defend the laws.

Tobits' attorney, Melanie S. Rowen of the National Center for Lesbian Rights in San Francisco, said she is very confident her client will not have to get into the constitutionality issues. She said it was simply the appropriate time in the case to file the notices.

U.S. District Court Judge C. Darnell Jones II for the Eastern District of Pennsylvania is presiding over the case and had scheduled a conference for Oct. 4. In their four-page motion to dismiss, the Farleys reiterated their point that Tobits could not have a claim to the benefits, which total around $41,000, because she is not the lawful spouse of their daughter.

“Addressing the meaning of the term 'spouse' as used in ERISA ' 205, all federal courts to have considered the issue have determined that the statutory term 'spouse' refers to the legal spouse,” the Farleys said in their motion, citing the 2007 Southern District of New York case Pension Fund v. McInerney. “ERISA mandates that 'pension benefits must be paid to [the decedent plan participant's] lawful widow, regardless of the plan's terms and definitions.' It follows that an ERISA plan cannot pay a death benefit to a spousal claimant who is not a lawful spouse.”

The Farleys again pointed out that the laws of the federal system, Pennsylvania and Illinois, where Tobits and Ellyn Farley lived, all state marriage is between a man and a woman. They are being represented in the case by the Thomas More Society in Chicago and the Independence Law Center in Harrisburg.

Attorney Statements

In an e-mail statement, the Thomas More Society's Peter Breen said Tobits' latest filings add “more false and legally irrelevant allegations to the record, all in an attempt to distract from the key issue in this case: How can Tobits claim to have been 'married' to the deceased when neither federal nor Pennsylvania law allow for same-sex marriage?”

He said the Farleys would defend those allegations if necessary but have asked the judge to dismiss the case before it gets to that point.

“If Tobits wasn't married to the deceased, this case is essentially over,” he said.

In prior court filings, the Farleys said their daughter, aware of her terminal cancer, executed a holographic will Sept. 9, 2010, dividing her assets between Tobits and the Farleys. On Sept. 12, 2010, Ellyn Farley executed a beneficiary designation form for Cozen O'Connor's profit-sharing plan, designating her parents as the beneficiaries.

After Ellyn Farley died, the Farleys presented a designation of beneficiary form to the law firm, purporting to show they were designated as the beneficiaries, according to the firm. The unsigned form listed her marital status as single and was dated the day before she died.

“It is unsigned by her and purports to have the signature of Ms. Farley's spouse notarized, which is inconsistent with the declaration that she is single and in any event is not signed by her spouse,” the firm said in its complaint. “Accordingly, Cozen O'Connor cannot determine the validity of this designation of beneficiary form.”

The Profit-Sharing Plan

Under the profit-sharing plan, accounts are to be distributed to beneficiaries upon the death of a participant. Unless otherwise selected, the spouse is the beneficiary of a death benefit equal to the pre-retirement survivor annuity. The participant also could designate a beneficiary other than a spouse to receive the pre-retirement survivor annuity only if the participant and spouse validly waived the annuity, the firm said. In the event no valid designation of beneficiary was made, benefits will be paid by priority first to the surviving spouse and then to the surviving parents, according to the complaint.

“Because Ellyn Farley and defendant Tobits were not 'married' under relevant law for the year prior to Ellyn's death, Tobits cannot be considered a 'spouse' under the plan,” the Farleys have said in court filings. They further explained that the beneficiary designation makes it clear Ellyn Farley wanted her parents to receive the benefits.

Tobits said in her answer, counter- and cross-claim in the Pennsylvania action that she married Farley Feb. 17, 2006, in Toronto and Cozen O'Connor personnel were in attendance and aware of the marriage.

Tobits brought a breach of fiduciary duty claim against the firm for failing to inform Ellyn Farley that provisions of the plan could create uncertainty about whether Tobits would be recognized as Farley's wife. Tobits argued the plan failed to comply with ERISA law in that it did not advise the participants that some marriages might not be recognized under the plan.

In her cross-claim against the Farleys, Tobits said Ellyn Farley had a “difficult” relationship with her parents. Tobits said Joan Farley did not attend the wedding and instructed her daughter not to send invitations to certain family members, according to the court filing. Tobits said Ellyn Farley was hospitalized Sept. 9, 2010, and was on pain medication during her hospital stay when she signed the documents at issue. Tobits said she was the medical power of attorney at the time.

When he arrived at the hospital, David Farley sought a copy of the will and later informed a nurse that he had “'changed the forms'” and that he and his wife, not Tobits, would be making decisions related to Ellyn Farley, according to Tobits' filing.

On Sept. 12, David Farley asked Tobits to go to her home and get a blank copy of the profit-sharing beneficiary form. Tobits said she feared she wouldn't be allowed to see her wife if she didn't comply, so she went home to get the form. When Tobits got back to the hospital, Joan Farley took the blank form and within a half hour it was filled out by Ellyn Farley with the Farleys as beneficiaries, Tobits said in the filing.

Ellyn Farley died the next morning. Tobits now argues Farley was inappropriately influenced to sign the beneficiary form and was in a state of weakened intellect at the time she did, according to court filings. Cozen responded to counterclaims against it by both parties, arguing the plan fully complied with ERISA law. The firm again asked the court to take the disputed benefits into escrow and release Cozen O'Connor from the case.

Gina Passarella is a senior reporter for The Legal Intelligencer, an ALM sister publication of this newsletter in which this article also appeared. Contact Ms. Passarella at 215-557-2494 or at [email protected].