And sometimes, a little justice happens

Same-sex marriage is new to most of the nation, but same-sex couples have been living as married families for centuries. As we move forward toward a more inclusive society, lawyers sometimes have to confront the vestiges of laws and policies that have no place or purpose anymore.

Recently, our firm confronted just such a situation. We managed to get our client relief, and in the process, made new law for the entire Commonwealth.

Our client lived with her partner for over 40 years, but of course, could not obtain a marriage certificate until last year. They were married, but shortly afterward, our client’s wife passed away.

Our client applied for her wife’s Social Security benefits, but she was denied because they had not been married for at least nine months — never mind that nine months earlier marriage was not an option.

Social Security exhibit at the FDR Museum. Creative Commons 2011, some rights reserved.
Social Security exhibit at the FDR Museum. Creative Commons 2011, some rights reserved.

She came to us seeking assistance. Lee M. Herman and Andrew Fabian decided to help her out on a pro bono basis.

Our lawyers decided that the best way to get her the Social Security benefits she deserved meant asking a judge to declare her decades-long relationship to be a common law marriage.

We filed a petition with the Court of Common Pleas in Delaware County, but but knew that this would be a challenge. First, we were asking the Court to recognize a common law marriage existed before same-sex marriages were legal. Second, we were asking for that to be made retroactive. Finally, common law marriage was abolished going forward in Pennsylvania 10 years ago.

Also? To the best of our knowledge, no one had ever tried this before in Pennsylvania.

After a full hearing before Judge Barry C. Dozor, which involved both factual testimony and legal argument, as well as the preparation of a major brief on the issue, the Court agreed — this relationship constituted a marriage, one that existed before common law marriage was abolished, and retroactively declared it as such.

But we still had to convince Social Security to award the benefits.

We filed an appeal of the denial and went to an Administrative Law Judge of the Social Security Administration. With our state court ruling in hand, the ALJ ruled that our client, the bereaved widow, should received Social Security benefits.

We won’t know how many of these circumstances still exist in the law until they come up. These antiquated rules linger on not of malice, but because of a lack of foresight. Thousands of agencies and programs affected by the same-sex marriage simply haven’t had to confront the many ways in which their otherwise “neutral” rules harm the LGBT community.

We are proud to have made this contribution to the fight, and stand ready to help again.


About the author: Charles Thomas