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Legal fight reflects uncertainty for same-sex couples who get married out of state 

"While the state can't divorce a same-sex couple in a technical sense, they are divorcing them in actuality — and without even a court hearing."

Down on the first floor of the City-County Building, a handful of same-sex couples celebrated Valentine's Day by trying to obtain a county marriage license — a public protest of Pennsylvania's refusal to recognize gay marriage. But a somewhat different drama was playing out six floors above, far from reporters' microphones.

There, in the courtroom of Common Pleas Judge Robert J. Colville, Brad Ankney was suddenly presented with a surprising possibility: His employer might — might —provide health benefits to Ankney's same-sex partner ... if they obtained a marriage license somewhere else.

That scenario arose in a lawsuit Ankney filed last August against his employer, the Allegheny Intermediate Unit. Like many employers, the educational-support agency offers health benefits to employees' spouses. But as his lawsuit argues, "Because Ankney [is] not eligible to be married in Pennsylvania, Ankney cannot avail himself of many of the benefits of his employment."

But in oral arguments before Colville, AIU attorney Anthony Sanchez observed that "Marriage is not an impossibility in this country anymore." For a couple to obtain benefits, he observed, AIU's policy only "specifies [they must be] married" — not married in Pennsylvania.

Both Maryland and New York recognize same-sex marriage, and are within driving distance. After the hearing, Ankney said he'd consider getting an out-of-state license if AIU would recognize it. Still, the Somerset County native said, "I'm a resident of Pennsylvania, and I'd prefer to get a Pennsylvania marriage license."

It's also unclear whether Sanchez was offering a solution to the impasse, or merely prolonging it. Sanchez contended that since Ankney didn't have an out-of-state marriage license, the issue was "not a live controversy," and thus not a question Colville could rule on. When approached after the hearing, Sanchez declined comment.

Ankney and his partner are not the only Pennsylvania couple facing such uncertainty. Even when such couples cross state lines to get married, once back on Pennsylvania soil, they find themselves on uncertain legal ground. State law does not recognize same-sex marriage for residents, even if their employers do.

As Levana Layendecker, a spokesperson for LGBT advocacy group Equality PA puts it, "There are so many couples in limbo."

Ankney's attorneys, the ACLU's Sara Rose and the Women's Law Project's Sue Frietsche, say the Feb. 14 hearing was the first time the AIU suggested it might recognize an out-of-state license. That made it a notable development in a hearing which, for the most part, rehashed arguments previously spelled out in written briefs.

Ankney contends the AIU's policy violates both Allegheny County's 2009 anti-discrimination ordinance, and the state's anti-discrimination law. Although the state law doesn't address LGBT discrimination, Frietsche told Colville the policy amounts to sex discrimination too: "If Mr. Ankney were a woman instead of a man, he could qualify for benefits by marrying his partner."

Colville seemed dubious. AIU's policy "is not based on gender alone," he said: If it were discriminatory, "The discriminatory act would not occur but for the fact that there was sexual-orientation discrimination."

As for the county ordinance, Sanchez noted that the county's Human Relations Commission itself had rejected Ankney's claim in a brief letter. (The letter's author, Assistant County Solicitor Robert Bogoyn, told City Paper last year that Ankney was "in kind of a catch-22," since the state is denying the marriage license the AIU requires.)

"This court should give great deference to that" decision, Sanchez said.

Rose countered that the commission hadn't even held a hearing, and that its memo offered little in the way of legal reasoning. "The commission's decision should not be [given] any deference by this court," she said.

Rose was also wary of the suggestion that Ankney cross state lines: "We'd still have an argument that this would be a burden that falls only on LGBT employees," she said after the hearing. Had Ankney been in an opposite-sex relationship, after all, he could have obtained a marriage license just by hopping on an elevator.

Even with a license, Ankney's rights off the job would still be in doubt.

Under Pennsylvania's Defense of Marriage law, same-sex marriages consecrated elsewhere are rendered "void." One month after Ankney filed his suit, in fact, that provision became the target of another lawsuit.

Cara Palladino and Isabella Barker were married in Massachusetts in 2005, only to have that marriage effectively annulled when they moved to the Philadelphia area. The two have sued in federal court, arguing that Pennsylvania is violating the U.S. Constitution's "full faith and credit" clause, which requires each state to grant legitimacy to official acts carried out by every other.

"While the state can't divorce a same-sex couple in a technical sense, they are divorcing them in actuality — and without even a court hearing," says Malcolm Lazin, executive director of Equality Forum. The Philadelphia-based LGBT-rights group is coordinating the Palladino lawsuit because, Lazin says, state law determines everything from hospital-visitation rights to "who can pick up a child from school." And with an out-of-state marriage license, securing those rights requires "separate legal documents that you wouldn't need if you were an opposite-sex couple."

Lazin says his advice to Ankney would be "get married now" — in hopes of securing his rights as soon as possible. For the next several years, at least, "The U.S. Supreme Court will be reluctant to tell Alabama and Pennsylvania who to marry," Lazin surmises. By contrast, it will act more quickly on a case like Palladino's, because "if states don't recognize each other's judgment, the whole federal system falls apart."

Even then, an initial ruling in Palladino's case won't come until late spring or early summer. There is no timetable for Colville to issue a ruling in Ankney's case.

So for now, says Lazin, if you want to understand the limbo same-sex couples find themselves in, "This case and Palladino fit perfectly together."

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