No Divorce for Same-Sex Couple in Pennsylvania

A lesbian couple married in Massachusetts in 2009 may not obtain a divorce in Pennsylvania, their state of residence, in 2010, according to a ruling by Pennsylvania Common Pleas Judge Scott E. Lash (Berks County), as reported in the March 25 on-line edition of Law.com in an article by Leo Strupczewski that quotes liberally from the court's unpublished opinion. [The opinion became available on Westlaw in July. See 2010 WL 2510988, officially cited as 11 Pa. D. & C. 5th 558 (March 15, 2010).]

 

The opinion comments that petitioner Carole Ann Kern's attorney, Lisa D. Gentile, had "essentially acknowledged" that existing Pennsylvania law would not authorize the divorce, when she conceded that same-sex couples may not marry under the state's Marriage Law.  On the other hand, Gentile argued, a state marriage law that excludes same-sex couples is an unconstitutional violation of the right to marry.  Lash rejected this argument, finding no constitutional right for same-sex couples to marry, and arguing that for a court to declare such a right would inappropriately deprive the people of a voice through the democratic process of the legislature in  changing the "status quo" on a matter of public policy. 

 

Lash reviewed the major sexual privacy rulings by the US Supreme Court, but concluded that they did not extend to requiring the state to allow same-sex couples to marry, finding the argument that the right of a same-sex couple to marry is "fundamental" to be "insupportable."  (Never mind that a majority of the California Supreme Court embraced exactly that argument just a few years ago, only to be rebuked by a relatively narrow majority of the state's voters who enacted Proposition 8.) 

 

Lash did suggest that Kern could refile her action as one seeking a declaration that the marriage is void, but presumably that would not include resort to the marriage law's provisions for property distribution, etc.