July 29, 2013 | by Chris Johnson
Court rules lesbian widow must receive survivor’s benefits
Sarah Ellyn Farley, Jennifer Tobits, Pennsylvania, Gay News, Washington Blade

Sarah Ellyn Farley and Jennifer Tobits. (Photo courtesy of the National Center for Lesbian Rights)

A federal court has determined that a lesbian widow is entitled to her late spouse’s benefits partly on the basis that Illinois civil union law is sufficient for federal purposes — a view that differs from the Obama administration’s interpretation of the Supreme Court ruling against the Defense of Marriage Act.

On Monday, the U.S. District Court for the Eastern District of Pennsylvania ruled in a 12-page unsigned decision that Jean Tobits is entitled to survivor’s benefits under the Employee Retirement Income Security Act, or ERISA, following the death of her spouse, Sarah Ellyn Farley, who died of cancer in 2010.

“Windsor makes clear that where a state has recognized a marriage as valid, the United States Constitution requires that the federal laws and regulations of this country acknowledge that marriage,” the decision states. “In light of that, this Court finds that Ms. Tobits is Ms. Farley’s ‘Spouse’ pursuant to the terms of the Plan.”

The lawsuit, known as O’Connor v. Tobits, came about in 2011 as the result of Cozen O’ Connor PC, the law firm where Farley worked, filing an interpleader action. Both Tobits and Farley’s parents, who didn’t recognize the marriage of her lesbian daughter, requested payment of the Pre-Retirement Survivor Annuity after Farley’s death that was available under the firm’s profit sharing plan.

Among those saying that Tobits had a right to the benefits and not Farley’s parents was the National Center for Lesbian Rights, which filed a brief on behalf of Tobits in 2011.

Chris Stoll, a senior staff attorney at NCLR, praised the court for its ruling and said it had implications for employers nationwide.

“This is not just a vindication for Jennifer, it is a tremendous victory for every married same-sex couple,” Stoll said. “Employers will no longer be able to hide behind DOMA to avoid providing equal retirement benefits to the same-sex spouses of their employees.”

In the aftermath of the ruling striking down Section 3 of DOMA by the Supreme Court, which determined plaintiff Edith Windsor had a legal marriage because she legally wed Thea Spyer in Canada, the district court determined Tobits and Farley had a legal marriage recognized under federal law because they also married in Canada in 2006.

But the district court buttressed its reasoning by noting that the couple lives in Illinois, which has civil unions, but not same-sex marriage. The ruling notes in a footnote that under state law, Illinois can recognize same-sex marriages solemnized in other jurisdictions as civil unions.

“Indeed, because the Illinois probate Court recognized Ms. Tobits as the sole heir to a civil union, it accepted as valid the marriage between Ms. Tobits and Ms. Farley that took place in Canada in 2006,” the ruling states. “This Court takes judicial notice of these decisions as bearing a direct relation to matters at issue before this Court.”

Doug NeJaime, a gay law professor at the University of California, Irvine, took particular note of the incorporation of Illinois civil unions law into its reasoning.

“The interesting thing here is that the court finds support for the inclusion of the same-sex spouse based on the couple’s domicile being Illinois, a civil union state,” NeJaime said. “In this sense, the court is suggesting that because civil union statutes give those in civil unions the rights of spouses, that is enough for federal purposes as well.”

That interpretation is different from what the Obama administration has reasoned with regarding civil unions in the aftermath of the Supreme Court ruling against DOMA. The U.S. Office of Personnel Management has determined that gay federal employees must enter into a same-sex marriage to receive benefits for their spouses. Those in civil unions or domestic partnerships aren’t eligible.

NeJaime said the reasoning in the decision could place the court at odds with the Obama administration.

“The court is saying that the couple with a marriage from Canada residing in Illinois should be treated like spouses, but this does lead to the potential conclusion that those in civil unions in general should be treated like spouses,” NeJaime said.

NCLR’s Stoll acknowledged the court took note of the civil union law, but said it bases most of its reasoning on Tobits and Farley’s marriage in Canada.

“The judge noted that Illinois respected their relationship and gave them all of the same rights and benefits as other married couples, but his ruling does not appear to depend on that fact,” Stoll said. “A couple that was married in any jurisdiction that allows it should be treated the same as any other married couple for purposes of federally mandated employee benefits, regardless of where they live.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

3 Comments
  • My spouse and I were married in Iowa. She died in a hospice house in MO in January 2012. Wondering if there is an attorney willing to take my case to court for me to obtain her survivor benefits. She automatically assumed I would be able to get them. She was wrong :.

  • I was married in California when it was legal in 2008. It remained legal since Prop 8 did not take away existing marriages, just restricted issuing new licenses. After moving to Illinois, the marriage was not recognized by the state but the state required us to divorce when the relationship ended. I felt it was unfair for them not to recognize the marriage until it is time to end it. They do nothing to support married people but definitely want to help them break up. She should get the benefits in my opinion based on the fact that they force you to get divorced if you have a marriage certificate.

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