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Long Road to Healthcare for Same-sex Partners in PA

The Path to Health Care for Same-Sex Partners

            Bryce Ginther and Kit Kineef have become the latest plaintiffs in the effort to expand Pennsylvania's recognition of rights for same-sex marriage and partnerships. In a federal lawsuit filed on February 11 against Arcelormittal, a steel mill and Ginther's employer, the men allege that Kineef was wrongfully denied benefits under Ginther's insurance plan, following their marriage in New York on May 15, 2012. In support of their arguments for extending coverage to Kineef, they cite the unclear language of the plan, which merely states "the Employee's spouse" and does not have a same-sex spouse exclusion stated, as well as the unwieldy process that Ginther took to get to this point, listing the administrative channels he navigated in order to appeal the denial--and even to learn whether he had been denied or not in the first place.

            Ginther and Kineef face an uphill battle under Pennsylvania state law, however. In 1996, the Defense of Marriage Act (DOMA), defining marriage as "a legal union between one man and one woman as husband and wife," was passed by both houses of Congress and signed into federal law. This same year, Pennsylvania revised its code to reflect the definition of "marriage" as "a civil contract by which one man and one woman take each other for husband and wife." This definition has not been revised to date. Attempts to have Pennsylvania recognize civil unions from other states have also failed. In Himmelberger v. Commonwealth of Revenue Bureau of Individual Taxes, Marie Himmelberger appealed a Berks County Court of Common Pleas decision that failed to recognize her civil union from New Jersey for the purpose of evaluating an inheritance tax. The Commonwealth Court of Pennsylvania, in May 2012, affirmed the lower decision, refusing to find error in the holding that a New Jersey civil union is not the equivalent of a marriage between persons of the same sex, that the "marriage" definition above is applicable in the current case, and finally, that the Full Faith and Credit Clause of the US Constitution does not require Pennsylvania to apply New Jersey tax law relating to taxation of same sex couples.

            Pennsylvania's case law and statutes not only fail to acknowledge relationships between same-sex individuals.  Pennsylvania's current non-discrimination law fails to include "sexual orientation" or "gender identity or expression" as protected classes, meaning that there is currently no statewide law protecting LGBT individuals from discrimination.

            Without these statutory protections, Ginther and Kineef's challenge appears to be difficult. However, the picture is not entirely bleak. In 2011, the Obama administration announced that Section 3 of DOMA, codifying non-recognition of same-sex marriage for federal purposes, was unconstitutional, and that it would no longer defend this section in court. Eight federal courts have also found this section unconstitutional, and oral arguments have been scheduled before the US Supreme Court for March. Efforts to pass a constitutional amendment (adding to the current statute) banning gay marriage have consistently failed since 2006. And although Pennsylvania's DOMA remains in place, both Philadelphia and Pittsburgh have recognized domestic partnerships for same-sex couples. Further, nothing in the law prevents local ordinances from providing more protection than the state level does. To date, 24 local governments in Pennsylvania have passed ordinances prohibiting employment discrimination against LGBT people. Many employers have also taken it upon themselves to extend health care coverage to partners of their employees in domestic partnerships and long-term same-sex relationships.

            Despite these measures, because of Pennsylvania's lack of anti-discrimination law at the state level, the rights of couples in same-sex relationships such as Ginther and Kineef remain tenuous. Therefore, it is critical that LGBT individuals familiarize themselves with both their local ordinances as well as their employer's policies in order to make sure that they are receiving all of the protections available to them, in the absence of state legislation.

Bryce Ginther and Kit Kineef have become the latest plaintiffs in the effort to expand Pennsylvania's recognition of rights for same-sex marriage and partnerships. In a federal lawsuit filed on February 11 against Arcelormittal, a steel mill and Ginther's employer, the men allege that Kineef was wrongfully denied benefits under Ginther's insurance plan, following their marriage in New York on May 15, 2012.

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