Is the Recognition of Same-Sex Marriages Retroactive?

In Obergefell v. Hodges, ___ U.S. ___, No 14-556 (6/26/15), the United States Supreme Court held that it was a violation of the due process and equal protection clauses of the 14th Amendment for states to deny marriages licenses to same-sex couples, or to refuse to recognize same-sex marriages lawfully entered into in other states.   This decision was a natural progression from the decision in United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, No. 12-307 (2013), which held that it was a violation of the 5th Amendment for the federal government to refuse to recognize same-sex marriages that were lawfully entered into under state law.

The Obergefell decision will not have much impact in Pennsylvania because Pennsylvania was already recognizing same-sex marriages in accordance with the federal district court decision in Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014), but Obergefell affirms the conclusion of the district court, eliminating any possibility of any disputes about the validity or effect of the Whitewood decision.

And there are still some questions about the possible retroactive application of the Whitewood and Obergefell decisions.  Generally speaking, constitutional decisions are given retroactive effect according to the principle (or perhaps the fiction) that the Constitution hasn’t really changed and what the Constitution requires now is what the Constitution has always required.  However, there are practical limits, so that (for example) the Internal Revenue Service has stated that same-sex couples could file amended tax returns as married filing jointly only for those years for which the statute of limitations for refunds had not run.  (See IRS Notice 2014-19.)

I had previously commented that it was possible that Pennsylvania might have to recognize a same-sex common law marriage if the couple exchanged wedding vows before 2005, and the holding in Obergefell may make that even more likely.  If two couples appear in court, each claiming the existence of a common law marriage entered into before 2005, and the only difference between the two couples is that one is a same-sex couple and one is an opposite-sex couple, it would seem to be a violation of equal protection to recognize the opposite-sex marriage but not the same-sex marriage.

The other situation in which Obergefell and Whitewood would have some retroactive effect would be for couples that were married in other states and purchased property in Pennsylvania in joint names.  The presumption in Pennsylvania is that, when property is purchased by a married couple in their joint names, title is taken as tenants by the entireties, and not as tenants in common.  (An important difference between the two forms of ownership is that tenants in common are considered to each own an undivided one half interest in the property, so a creditor of once spouse can attach that spouse’s half of the property, but entireties property cannot be attached by a creditor of one spouse, because the property is considered to be owned by the marital unit.)  If two unmarried people buy property and then later marry, the property is not converted to entireties property because the buyers have to be married at the time of the purchase.  But if a same-sex couple was married in New York or Massachusetts, and they move to Pennsylvania and buy property in Pennsylvania, the property should be considered to be entireties property because they were already married at the time the property was purchased, even if Pennsylvania did not recognize the marriage at the time the property was purchased.

If I were counseling a same-sex couple, I would recommend that they not depend on retroactive applications of rulings, but that they get a marriage license and confirm their marriage with a new ceremony even if they exchanged vows before 2005, or that they re-title their property as tenancy by the entireties even if they were married under the laws of another state at the time they purchased the property.  But sometimes those things aren’t possible (such as a death having already occurred), or aren’t considered while they are possible, so we’ll probably see these issues in the future.

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