The Department of Justice has continued to support its finding that the federal ban on same-sex marriage is unconstitutional with a recent filing in a Pennsylvania case.
The DOJ filed a brief late last month in Cozen O’Connor v. Tobits, a federal case in the Eastern District of Pennsylvania, arguing for the unconstitutionality of the Defense of Marriage Act.
The department determined last year that the section of DOMA that defines marriage as being between one man and one woman is unconstitutional. The Cozen case marks the seventh time the DOJ has submitted filings arguing that position. It is the first such case in Pennsylvania.
The case developed after Sarah Ellyn Farley, a partner in law firm Cozen O’Connor, died in 2009. Her wife, Jennifer Tobits, is seeking the $41,000 in death benefits from Cozen; however, Farley’s parents are arguing that they are the beneficiaries of the private profit-sharing plan.
While Farley was based out of Chicago, the firm is headquartered in Philadelphia, resulting in the case being filed in Pennsylvania.
The case is the first that questions whether a private employer can give benefits governed by the federal Employee Retirement Income Security Act to same-sex spouses. ERISA does not limit the definition of “spouse” by gender.
Tobits and Farley were married in Canada in 2006.
Cozen automatically considers an employee’s “spouse” as his or her beneficiary, unless the individual designates someone else. Farley’s parents, David and Joan, submitted a beneficiary form to Cozen dated the day before their daughter’s death. While the form contains a signature purportedly from Farley, Tobits did not sign under the spousal consent section, although that line is notarized.
The Farleys are contending that, in addition to the beneficiary form naming them, they are entitled to the money because DOMA prevents the firm from recognizing Tobits as Farley’s spouse. The parents are also arguing that Pennsylvania’s ban on same-sex marriage would further prohibit the firm from offering Tobits the benefits.
Shannon Minter, executive director of the National Center for Lesbian Rights, which is representing Tobits, asserted that Cozen O’Connor is trying to “hide behind DOMA in order to justify its refusal to honor the terms of its own benefits plan.”
“The plan defines a spouse as anyone who is legally married. It does not exclude a same-sex spouse. And yet, Cozen O’Connor is refusing to pay the benefit to Jennifer Tobits, who is the surviving spouse of Ellyn Farley, by falsely claiming that DOMA prohibits it from doing so,” Minter said. “It is outrageous that Cozen is refusing to honor its own commitment to its employees.”
However, because the issues of the federal and state DOMA were raised, Judge Darnell Jones gave DOJ and the Pennsylvania Attorney General the opportunity to file briefs in the case before his scheduled March 12 ruling.
Pennsylvania AG Linda Kelly did not submit a brief by the Dec. 30 deadline.
AG spokesperson Nils Frederiksen said that, as a general policy, the office does not “intervene in private-party lawsuits at the trial-court level when both sides are adequately represented.”
“At this stage, this is not a case we would intervene in,” he added. “We will continue to monitor it and future action could be considered should the case go to the appellate level, but we would review it then and proceed from there.”
Additionally, Frederiksen said the Pennsylvania same-sex marriage ban is a “secondary issue” in the case.
In its filing, the DOJ argued that cases involving sexual-orientation discrimination should be subject to “heightened scrutiny” review, which would hold the government to stricter standards to justify denying equal rights to LGBTs.
When looked at through that lens, the department said, DOMA would fail.
The DOJ filing was submitted with a joint amicus brief by the Human Rights Campaign and Equality Forum.
Equality Forum executive director Malcolm Lazin said repealing DOMA is the next defining issue for the LGBT community.
“DOMA has remarkable ramifications across all areas of our community, and the reason Equality Forum got involved in this was that, as we start to attack individual sections of this law, it helps to undermine the entirety of the law,” Lazin said. “I think people don’t really understand the impact of DOMA and how it’s involved in literally every aspect of our lives — from Social Security benefits to immigration issues.”
A number of national organizations filed briefs supporting DOMA, including Concerned Women for America and Parents and Friends of Ex-Gays and Gays.
While Minter welcomed the DOJ’s opposition to DOMA, he said NCLR is optimistic that Jones will agree with his client that DOMA does not play a role in the case.
“[The case] is about requiring employers to provide the benefits they say they are going to provide,” he said. “If Cozen did not want to provide equal benefits to same-sex spouses, it should have said so, but it did not. DOMA applies to federally mandated benefits, but it does not tie the hands of private employers, who are perfectly free to honor the marriages of their lesbian, gay and bisexual employees. The DOJ brief shows that Cozen’s attempt to hide behind DOMA is absurd.”
Jen Colletta can be reached at [email protected].