State Treasurer Rob McCord today petitioned federal court for permission to submit a friend-of-the-court brief in a pending marital rights case, seeking to ensure the court receives the balanced perspective of a statewide elected executive who is able to identify specific issues in which same-sex couples are deprived of equal treatment under the law when accessing state-sponsored programs and benefits.
In the amicus brief attached to the filing with the United States District Court for the Eastern District of Pennsylvania, McCord sided with plaintiffs Cara Palladino and Isabelle Barker in arguing that the law should be overturned as unconstitutional. In doing so, he is the first state elected official to challenge Pennsylvania’s Marriage Law formally in a legal proceeding. He is also one of the few officials in the country to engage in a same-sex marriage case based upon his financially-related legal responsibilities.
“As treasurer, I oversee a broad range of public programs and benefits. Too often, our state’s marriage law forces me to implement these programs and convey benefits in ways that may deprive people of their equal rights. I believe that is morally wrong and should be illegal. The statute places me in the untenable — and personally disturbing — position of enforcing and complying with a discriminatory law,” McCord said.
The state Treasury administers several programs in which spousal rights frequently have a bearing. By formally stating that marriage in Pennsylvania is between one man and one woman, the state’s marriage law establishes two distinct classes of couples: those whose marriages are recognized as a matter of state law and those whose marriages are not. It thereby excludes same-sex couples from access to some of the rights, privileges, and legal presumptions attached to marriages the state recognizes. That is true even if the marriage is valid in other states or foreign jurisdictions.
Although McCord chose to file the brief based upon his official view of the legal inequalities and injustices evident in the way the law must be applied to Treasury Department programs, he also noted that his own experience would incline him to support the plaintiffs’ case.
“This issue of marriage equality is personal for me. My own interracial marriage, had it occurred when I was born (and not 27 years later), would have been illegal in many states,” McCord said.
“Instead of violating civil rights, we should be celebrating Pennsylvania’s historic leading role in protecting and promoting the civil rights that relate to marriage equality,” McCord said. He pointed out in his filing that Pennsylvania was once a leader in removing laws that selectively granted the right to marry only to certain classes of citizens. In 1780, Pennsylvania became the first state to repeal its anti-miscegenation law, removing any legal impediment to interracial marriage. It was not until 1967, however, with the United States Supreme Court decision in Loving v. Virginia, that such prohibitions were declared unconstitutional in all states.
In his brief to the U.S. District Court, McCord wrote: “Litigation before this Court revisits the issue of state laws that selectively recognize marital rights, replacing racially based barriers with a newly identified obstacle — sexual orientation.”
From his unique perspective as treasurer, McCord detailed to the court in his brief how the Pennsylvania Marriage Law denies financial benefits to same-sex spouses. Those include matters falling under the state unclaimed property law, establishing and transferring Pennsylvania 529 College Savings accounts, accessing retirement benefits, and receiving disparate treatment in tax appeals.
In the example of unclaimed property, one means by which individuals may be entitled to claim property is by establishing a legal relationship with a deceased owner. In cases where there is no will, Treasury can, under certain circumstances, distribute the property to the surviving spouse. In a variety of situations, however, the survivor in a same-sex marriage cannot establish an entitlement to the property under Pennsylvania law, and as a result, Treasury is forced to deny the spouse’s claim.
Concerning PA 529 College Savings accounts, if an account owner dies without a will and the beneficiary is a minor, ownership passes to the surviving spouse. Because Pennsylvania law does not recognize same-sex marriage, however, a same-sex spouse would not become the successor owner. By comparison, a spouse in an opposite-sex marriage would control the account.
In addition, by virtue of his elected office, the treasurer is a member of the boards of the two largest state public retirement plans, the State Employees Retirement System (SERS) and the Public School Employees Retirement System (PSERS). One responsibility of the board is to pay death benefits to designated beneficiaries upon the death of a member. If the member did not designate a beneficiary and the board is not notified to pay the estate, then the board is authorized to pay benefits to the executor, administrator, surviving spouse or next of kin. A same-sex spouse may not be entitled to benefits under those circumstances, but an opposite-sex spouse would.
The treasurer is also the statutory chair of the Board of Finance and Revenue (BF&R), which hears and resolves appeals of tax state matters. Marriage law in Pennsylvania has a significant impact on tax rates. In some cases, transactions or transfers of property are tax-free or taxed at a lower rate when they occur between spouses. When appeals arise, BF&R cannot apply the same rules to same-sex couples that it applies to opposite-sex marriage.
“Beyond the basic right itself to marry, there are many financial implications to the current state marriage law. As I carry out my duties as treasurer, I witness directly the injustice it imposes on same-sex spouses. I am respectfully asking the court to end that injustice and allow the Treasury Department to treat everyone equally under the law,” McCord concluded.