March 12, 2012
By Jacob Combs
Today, at 1 p.m. EDT, Judge C. Darnell Jones of the Eastern District Court of Pennsylvania will hear arguments in O’Connor v. Tobits, a case challenging the constitutionality of DOMA. Jennifer Tobits married Ellyn Farley in 2006, two weeks before Farley was diagnosed with a rare form of cancer. Over the next four years, Tobits stood by her spouse as she battled the disease until her death in 2010. After Ellyn died, her parents, who did not approve of her sexuality, attempted to collect her pension plan benefits. Cozen O’Connor, the firm administering the pension, filed suit asking the Court to determine who should receive Ellyn’s benefits, and Tobits filed a counterclaim against Cozen for breach of fiduciary duty, arguing that it had a responsibility to inform her that it would not recognize spouses of the same sex.
The National Center for Lesbian Rights, which is representing Tobits in the case, points out that this case is the first of its kind because it concerns the application of DOMA to a private company, not the federal government. In the O’Connor case, Cozen has argued that DOMA prevents it from recognizing same-sex spouses and providing them equal benefits. If Judge Jones decides that DOMA does apply to private companies, he would then have to go on to determine its constitutionality. Two courts, one in Massachusetts and one in California, have declared DOMA unconstitutional. The Pennsylvania court would be the first one to explicitly uphold the law’s constitutionality.
This is not the first time a court has considered Tobits’s rights in regard to Ellyn Farley’s benefits. An Illinois court ruled that the couple was legally maried in Canada and that Tobits was therefore entitled to all the rights and protections Illinois affords to spouses. That case was precipitated by a probate action filed by Ellyn’s parents after her death, which claimed Jennifer was single and asked that Ellyn’s father be named her estate’s administrator.
Cozen’s claim that DOMA applies to private companies is unprecented and would mark a significant expansion in the reach of the already-harmful Defense of Marriage Act were the court to agree with the company. Given the lack of success DOMA has had in the courts when it comes to federal employees (which the law explicitly affects), it seems unlikely that the court would rule in favor of expanding the law to apply to private employers. If Judge Jones strikes down DOMA, he will be the third judge appointed by a Republican president (and the second Bush appointee) to do so.
We’ll have more here on P8TT about the O’Connor case as it develops!
UPDATE: Thanks to Kathleen for passing on the court’s order outlining today’s arguments. The court set out a full hour and 15 minutes for the three official parties to the case to make their arguments, and then set aside an additional two hours for interveners (like BLAG) and organizations that filed amici briefs. All in all, that’s a lot of time! The court also instructed the various parties to address the following issues:
A. Whether the Cozen Plan’s choice-of-law provision impacts the definition of “spouse,” and, if so, whether Illinois or Pennsylvania law should be utilized in that regard. B. Whether the Cozen Plan’s definition of the word “spouse” is ambiguous. If so, whether the Court should consider extrinsic evidence to resolve the ambiguity (and what evidence should be considered). C. What impact, if any, the decisions of the Illinois courts concerning Ms. Tobits’s status as Ms. Farley’s heir have on determination of the issues before the Court.
D. Whether Plaintiff has standing to assert a breach of fiduciary duty claim against Cozen, and whether, assuming, arguendo, that standing exists, Plaintiff has sufficiently alleged that Cozen breached its fiduciary duty by failing to properly communicate to Ms. Farley that a same-sex spouse may not be considered a “spouse” under the Cozen Plan.
E. Whether ERISA dictates the definition of the meaning of “spouse” or precludes private employers from covering same-sex spouses under their plans.
F. Whether the federal Defense of Marriage Act (“DOMA”) controls the terms of private employer benefit plans so as to prevent a private employer from defining the term “spouse” in its ERISA plan to include a same-sex spouse.
G. Whether DOMA’s plain text, legislative history, and doctrines of constitutional avoidance preclude the Court from reaching the question of whether DOMA violates the U.S. Constitution.
H. Assuming, arguendo, that DOMA controls here and it is necessary for the Court to reach a constitutional question, whether DOMA violates the Equal Protection Clause of the U.S. Constitution, including:
- i. The appropriate level of review and reasons for such.
- ii. Whether and how DOMA survives rational basis review (including discussion of the interests contemplated by Congress when DOMA was adopted).
- iii. Whether and how DOMA survives heightened scrutiny review (including discussion of the interests contemplated by Congress when DOMA was adopted).
I. Assuming, arguendo, that DOMA controls here and it is necessary for the Court to reach a constitutional question, whether DOMA violates the Due Process Clause of the U.S. Constitution. J. Whether the Commonwealth of Pennsylvania’s Defense of Marriage Act (“PA-DOMA”) controls Ms. Tobits’s right to a surviving spouse benefit, and, if so, whether PA-DOMA violates (1) federal due process and equal protection rights; (2) Pennsylvania’s Equal Rights Amendment; or (3) any other Pennsylvania constitutional equality guarantee.
K. Assuming, arguendo, that DOMA (and, if appropriate, PA-DOMA) is unconstitutional, whether Cozen O’Connor’s actions are redressable at law.
L. The impact of any recent judicial decision(s) on evaluation of the questions set forth above, including, but not limited to, Golinski v. U.S. Office of Personnel Management, 2012 WL 569685 (N.D. Cal. Feb. 22, 2012).