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Today’s DOMA hearing in Pennsylvania: why this case is different

DOMA trials

By Jacob Combs

Today, at 1 p.m. EDT, Judge C. Darnell Jones of the Eastern District Court of Pennsylvania will hear arguments in  O’Connor v. Tobits, a case challenging the constitutionality of DOMA.  Jennifer Tobits married Ellyn Farley in 2006, two weeks before Farley was diagnosed with a rare form of cancer.  Over the next four years, Tobits stood by her spouse as she battled the disease until her death in 2010.  After Ellyn died, her parents, who did not approve of her sexuality, attempted to collect her pension plan benefits.  Cozen O’Connor, the firm administering the pension, filed suit asking the Court to determine who should receive Ellyn’s benefits, and Tobits filed a counterclaim against Cozen for breach of fiduciary duty, arguing that it had a responsibility to inform her that it would not recognize spouses of the same sex.

The National Center for Lesbian Rights, which is representing Tobits in the case, points out that this case is the first of its kind because it concerns the application of DOMA to a private company, not the federal government.  In the O’Connor case, Cozen has argued that DOMA prevents it from recognizing same-sex spouses and providing them equal benefits.  If Judge Jones decides that DOMA does apply to private companies, he would then have to go on to determine its constitutionality.  Two courts, one in Massachusetts and one in California, have declared DOMA unconstitutional.  The Pennsylvania court would be the first one to explicitly uphold the law’s constitutionality.

This is not the first time a court has considered Tobits’s rights in regard to Ellyn Farley’s benefits.  An Illinois court ruled that the couple was legally maried in Canada and that Tobits was therefore entitled to all the rights and protections Illinois affords to spouses.  That case was precipitated by a probate action filed by Ellyn’s parents after her death, which claimed Jennifer was single and asked that Ellyn’s father be named her estate’s administrator.

Cozen’s claim that DOMA applies to private companies is unprecented and would mark a significant expansion in the reach of the already-harmful Defense of Marriage Act were the court to agree with the company.  Given the lack of success DOMA has had in the courts when it comes to federal employees (which the law explicitly affects), it seems unlikely that the court would rule in favor of expanding the law to apply to private employers.  If Judge Jones strikes down DOMA, he will be the third judge appointed by a Republican president (and the second Bush appointee) to do so.

We’ll have more here on P8TT about the O’Connor case as it develops!

UPDATE: Thanks to Kathleen for passing on the court’s order outlining today’s arguments.  The court set out a full hour and 15 minutes for the three official parties to the case to make their arguments, and then set aside an additional two hours for interveners (like BLAG) and organizations that filed amici briefs. All in all, that’s a lot of time!  The court also instructed the various parties to address the following issues:

A. Whether the Cozen Plan’s choice-of-law provision impacts the definition of “spouse,” and, if so, whether Illinois or Pennsylvania law should be utilized in that regard. B. Whether the Cozen Plan’s definition of the word “spouse” is ambiguous. If so, whether the Court should consider extrinsic evidence to resolve the ambiguity (and what evidence should be considered). C. What impact, if any, the decisions of the Illinois courts concerning Ms. Tobits’s status as Ms. Farley’s heir have on determination of the issues before the Court.

D. Whether Plaintiff has standing to assert a breach of fiduciary duty claim against Cozen, and whether, assuming, arguendo, that standing exists, Plaintiff has sufficiently alleged that Cozen breached its fiduciary duty by failing to properly communicate to Ms. Farley that a same-sex spouse may not be considered a “spouse” under the Cozen Plan.

E. Whether ERISA dictates the definition of the meaning of “spouse” or precludes private employers from covering same-sex spouses under their plans.

F. Whether the federal Defense of Marriage Act (“DOMA”) controls the terms of private employer benefit plans so as to prevent a private employer from defining the term “spouse” in its ERISA plan to include a same-sex spouse.

G. Whether DOMA’s plain text, legislative history, and doctrines of constitutional avoidance preclude the Court from reaching the question of whether DOMA violates the U.S. Constitution.

H. Assuming, arguendo, that DOMA controls here and it is necessary for the Court to reach a constitutional question, whether DOMA violates the Equal Protection Clause of the U.S. Constitution, including:

  • i. The appropriate level of review and reasons for such.
  • ii. Whether and how DOMA survives rational basis review (including discussion of the interests contemplated by Congress when DOMA was adopted).
  • iii. Whether and how DOMA survives heightened scrutiny review (including discussion of the interests contemplated by Congress when DOMA was adopted).

I. Assuming, arguendo, that DOMA controls here and it is necessary for the Court to reach a constitutional question, whether DOMA violates the Due Process Clause of the U.S. Constitution. J. Whether the Commonwealth of Pennsylvania’s Defense of Marriage Act (“PA-DOMA”) controls Ms. Tobits’s right to a surviving spouse benefit, and, if so, whether PA-DOMA violates (1) federal due process and equal protection rights; (2) Pennsylvania’s Equal Rights Amendment; or (3) any other Pennsylvania constitutional equality guarantee.

K. Assuming, arguendo, that DOMA (and, if appropriate, PA-DOMA) is unconstitutional, whether Cozen O’Connor’s actions are redressable at law.

L. The impact of any recent judicial decision(s) on evaluation of the questions set forth above, including, but not limited to, Golinski v. U.S. Office of Personnel Management, 2012 WL 569685 (N.D. Cal. Feb. 22, 2012).


  • 1. David Henderson  |  March 12, 2012 at 9:59 am

    I think you mean "1 p.m. EDT", since Daylight Savings Time started yesterday. There's no place in the U.S. which is currently on EST.


  • 2. Jacob Combs  |  March 12, 2012 at 12:34 pm

    Right you are–post edited.

  • 3. Sagesse  |  March 12, 2012 at 10:03 am


  • 4. David  |  March 12, 2012 at 10:27 am

    I honestly can't believe how revolting these parents are. It's bad enough that they deny the reality of their daughter's relationship during her life, but to try and punish their daughter's partner after her death is downright evil.

    Disgusting vile people.

  • 5. _BK_  |  March 12, 2012 at 12:26 pm


  • 6. Str8Grandmother  |  March 12, 2012 at 5:25 pm

    David- I'll add another thumbs Up to that!
    I am proud the surviving wife is fighting for the legacy that her deceased wife wanted her to have. I am sure she must be doing it to honor her wife more than any other reason.

  • 7. Jim  |  March 12, 2012 at 10:40 am

    It's not just parents, many private companies, insurance companies, investment companies, i.e. follow DOMA rules. We (my husband & I) have annuities with Pacific Life, where we can collect a certain amount for the rest of our life (even after we have withdrawn all that we contributed), and then, if we were husband & wife, the wife could still collect that amount after my death. However, even though we are legally married in CA, Pacific Life follows the definition under DOMA which means my husband is not eligible for that monthly amount after I die. So this case has huge implications since it affects private companies, vs the other DOMA cases which affect the government.

  • 8. Jamie  |  March 12, 2012 at 5:10 pm

    Sounds like a good reason to cancel your policy with MetLife. There are plenty of companies that offer plans that don't discriminate.

  • 9. Larry  |  March 12, 2012 at 9:34 pm

    MetLife and Pacific Life are totally different companies. My Dad works for MetLife and has firsthand knowledge that it is very LGBT friendly, both as an employer and an insurance provider. See

  • 10. Str8Grandmother  |  March 12, 2012 at 5:26 pm

    Jim that IS big, I agree.

  • 11. Bob  |  March 12, 2012 at 10:59 am

    sign the petition demanding that Obama immediately sign the executive order to protect LGBT workers, which is presently sittng on his desk (this was an election promise)

  • 12. Naomi  |  March 12, 2012 at 1:15 pm

    I'm a bit confused about what the Obama administration not defending DOMA means in practical terms. Is the policy keeping these cases from reaching SCOTUS, since no one appeals when DOMA is truck down by a lower court? Or could independent parties intervene, as they have in the prop 8 trial? Could someone please explain?

  • 13. karen in kalifornia  |  March 12, 2012 at 1:38 pm

    Bipartisan Legal Advisory Group of the U.S. House of Representatives or BLAG is the intervenor for the feds….using our tax money to make sure LGBT citizens are discriminated against.

  • 14. Naomi  |  March 12, 2012 at 2:09 pm

    How kind of them. ::eye roll::

    Thanks for explaining!

  • 15. Kathleen  |  March 12, 2012 at 5:26 pm

    Naomi, the DOJ has indicated its intention to stay with the cases to see them through the appeals process. In Golinski, for example, the BLAG appealed the district court ruling, but so did the DOJ. In the cases I've been watching – Windsor, Golinski, Pedersen — the DOJ has been simultaneously supporting the plaintiffs' equal protection claims while also filing a motion to dismiss "for procedural reasons."

  • 16. karen in kalifornia  |  March 12, 2012 at 1:22 pm

    I've read articles about this case which report Farley re-assigned her parents as beneficiaries to the Cozen policy literally on her death bed.
    The Pennsylvania law firm asked the court to figure out who gets the money. Seems like most of the arguements go that because the profit-sharing plan was under ERISA ss spouses don't have to be
    acknowledged. More of the same I'm afraid.

  • 17. Str8Grandmother  |  March 12, 2012 at 5:38 pm

    Karen, thanks for the link, it was a really good article on this court case. Probably this will not be recorded since it is a State Case. I got a lot out of watching the videos of the Prop 8 Appeal, now if there is no video, I get a frown 🙁

  • 18. Kathleen  |  March 12, 2012 at 6:39 pm

    This is in federal district court, not state court. But there won't be a recording, as this isn't an appeals court. Only 14 district courts are currently in the pilot program allowing recording of proceedings and the E.D. Pa isn't one of them.

  • 19. Al Petrofsky  |  March 20, 2012 at 2:30 pm

    Kathleen, in the U.S. District Court, there are actually many districts, including the Eastern District of Pennsylvania, in which court reporters are used at only some hearings. When no court reporter is at a hearing, an audio recording is made and becomes a public record. Today I spoke to one of the court's audio technicians, Christina Franzese, and confirmed that an audio recording of the March 12 hearing in Cozen O'Connor, P.C. v. Tobits is available for $30. Just fill out the form, send it in with a check, and they'll mail you a CD. To confirm this for yourself, see the Clerk's Office Procedural Handbook at page 124 and/or call David Hayes (see the handbook for his number). Here are links to the handbook and the order form:

    I don't know whether this would fit into your budget for records acquisition, but I wanted to make sure you at least knew it was an option. In any event, thanks for all the PACER fees you've already saved me (and so many other people) by posting various filings.

  • 20. David Henderson  |  March 20, 2012 at 2:55 pm

    As a public record, that means after paying a fee to have a copy made, one can distribute it freely and distribute copies, yes?

  • 21. Kate  |  March 20, 2012 at 3:08 pm

    I'd be delighted to contribute to a fund to get a copy of that CD for Kathleen; anyone else? I'm sure she would have a PayPal account…………

  • 22. Ann S.  |  March 20, 2012 at 3:21 pm

    Kate, I'm not sure she has a PayPal account, but I had that same thought and certainly would be willing to contribute.

  • 23. Kate  |  March 20, 2012 at 5:04 pm

    Terrific! Would you be willing to set this up and let me know how to contribute? I'm leaving for Alaska in the morning for a couple of weeks and would like to be able to help with this before then. Otherwise, it will be a delay…………

  • 24. Ann S.  |  March 20, 2012 at 5:08 pm

    Kate, are you comfortable letting me have your email address? Then I can tell you how.

  • 25. Kate  |  March 20, 2012 at 5:13 pm

    of course — see your FB messages.

  • 26. Kathleen  |  March 20, 2012 at 5:36 pm

    Ann just alerted me to this discussion. I had no idea this was available! I saw that a transcript was filed today, but it's not yet available through PACER. I had begun making inquiries about getting the transcript but hadn't tracked it down yet. Now that I read the notice, I don't see a court reporter name on the notice, so maybe this recording is it?

    I would LOVE a copy of this CD! I would think it's a public record and can be put online, but I'll have to verify that. Of course I'll make it available to everyone if at all possible.

  • 27. Al Petrofsky  |  March 20, 2012 at 9:39 pm

    "Now that I read the notice, I don't see a court reporter name on the notice, so maybe this recording is it?"

    No, the notice really is about a transcript, which now exists in addition to the audio recording. The price to get a copy of the transcript depends on when you want it. It's $0.83/page now, but will drop to $0.08/page after 90 days (on June 18). The hearing was scheduled to last 4.5 hours, and I'm guessing that took up more than 200 pages, so it would cost something like $200 to get a transcript now or $20 to get one later.

    The price for a CD of the audio is just a flat $30, regardless of when you order it or how long the hearing was. (An ordinary music CD could only hold about 1 hour, but the court uses a compressed format that allows any single-day hearing to fit on one CD.)

  • 28. Kathleen  |  March 21, 2012 at 2:03 pm

    Thanks for all the info. Al, do you know where I can find a list of the district courts that utilize these audio recordings in lieu of court reporters?

    Also, a heads up – PACER fees are increasing on April 1 from $0.08/page to $0.10/page.

  • 29. Kathleen  |  March 23, 2012 at 11:35 pm

    Al, I received your email and replied from my regular email address to the email addy you listed. If you haven't received the reply, check your spam filter. Really glad to make this connection.

  • 30. Kathleen  |  March 20, 2012 at 5:37 pm

    And thank you so much, Al, for looking into this and bringing this to our attention!

  • 31. Fr. Bill  |  March 12, 2012 at 1:30 pm

    This case is huge. Lots of employers tout their benefits as part of your paycheck so equal pay for equal work doesn't apply to gay and lesbian employees when employers and insurance companies hid their own discrimination behind ERISA and DOMA. My employer when I was in the corporate world did that. Thankfully the Episcopal Church believes in equality and its plans cover spouses and civil union partners.

  • 32. Paul in Minneapolis  |  March 12, 2012 at 1:42 pm

    Since April 2, 2006, all of Indiana observes Daylight Savings Time, along with most of the rest of the country, when DST is in effect. Most of Indiana is in the Eastern time zone, but twelve counties are in the Central time zone.

  • 33. Sam  |  March 12, 2012 at 6:12 pm

    From GLAD:

  • 34. Str8Grandmother  |  March 13, 2012 at 9:06 am

    Sam that is a REALLY good document you linked to from GLAD. It shows all the DOMA cases, even those not being litigated by GLAD and the status. It is 5 pages long and shows 16 different Court Challenges, a brief description and where the court cases are at.

    I printed it and bookmarked it. It is a great doc, many thanks!
    Here I'll repeat the link-

  • 35. Kathleen  |  March 13, 2012 at 11:14 am

    Re the GLAD document – a couple of updates/corrections….
    – In Golinski, the DOJ as also appealed (not just BLAG)
    – McLaughlin v. Panetta, the document lists defendants' responses to summary judgment due April 28. Actually, the case is just on hold until April 28, with no current due dates. Because I was seeing reports that conflicted with what was showing on the case docket, Jason H checked with the clerk's office and all due dates (responses to summary judgment and answers to initial complaint) have been suspended and not yet reset. My guess is that at some point the judge will either reset the due dates or ask for a status report from the parties.

  • 36. Chrys  |  March 12, 2012 at 6:44 pm

    Sigh. My wife is covered under my health insurance because since I am the owner of the company, I can define my benefit schedule so as to include her. If they decide that I can no longer do that, it will be a serious problem.

  • 37. _BK_  |  March 13, 2012 at 5:46 am

    But what authority would they have to prevent you (or the owner of any company) from allocating such benefits?

  • 38. Kathleen  |  March 14, 2012 at 2:05 pm

    Supplemental material filed today, Wed, Mar 14: portions of IRS approved plan allowing employers to include domestic partners as spouses for all purposes under the plan. (per request of Judge Jones at Monday's oral arguments)

  • 39. Carey  |  March 15, 2012 at 11:08 am

    Kathleen, that seems like a very POSITIVE document and request made my Judge Jones. I'm wondering if there are any updates to this case? As a Pennsylvanian lesbian who is married to my wonderful wife (and yes i said MARRIED 😉 I'm eager to hear the outcome.

    Thanks for all of the information provided thus far.

  • 40. Kathleen  |  March 15, 2012 at 11:23 am

    Carey, nothing new in the case. And I agree that's a positive sign, but it's always dangerous to read too much into these sorts of request. Judges try to get all sides of an issue before reaching a decision and what they request and questions they ask aren't always a good indicator of what their ruling will be.

  • 41. John_B_in_DC  |  March 15, 2012 at 5:06 pm

    No surprise, NOM is quoting from a misleading and woefully uninformed article posted on CitizenLink:

    Do they really not realize that you can't designate a beneficiary to life insurance or retirement benefits in a will?

  • 42. _BK_  |  March 18, 2012 at 12:20 pm

    I know that's a rhetorical question, but…

    they probably do.

  • 43. StraightSupporter  |  March 18, 2012 at 6:17 am

    Some members of the church (Canaan Baptist in Salisbury NC) that my girlfriend and I got to went up to Pennsylvania this last week on "church business". I don't know the details, but because of the timing of the event, and because of the preacher/guest preacher talking about voting in favor of DOMA (right after talking about their freedom of religion being violated if commissioners can't pray in Jesus name), I think it likely does have something to do with it.

  • 44. Kathleen  |  March 21, 2012 at 4:30 pm

    Another filing in the case, for those watching. Cozen O'Connor's response to the supplemental material filed after the hearing:

  • 45. Kathleen  |  March 26, 2012 at 1:33 pm

    And another filing in the case today, March 26:
    Equality Forum's response to Cozen & O'Connor Letter of March 21, 2012

  • 46. Carey_PA  |  April 13, 2012 at 8:59 am

    I'm not real good with all of these back and forth lawyer letters but those last 2 don't sound so promising……does anyone with a legal background care to share their insights?

  • 47. Prop 8 Trial Tracker &raq&hellip  |  April 25, 2012 at 3:00 pm

    […] are available from the DOMA challenge Cozen O’Connor v. Tobits are available here. Jacob covered the case here at P8TT. Thanks to Kathleen for putting this […]

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