Wife, family of late Cozen O'Connor partner feuding over profit-sharing plan

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A federal judge in Philadelphia has placed a closely watched case involving the constitutionality of the Defense of Marriage Act and the survivors of a deceased Cozen O'Connor partner on the suspense docket, effectively terminating the matter pending the outcome of other relevant cases.

U.S. District Judge C. Darnell Jones II of the Eastern District of Pennsylvania heard arguments on DOMA's constitutionality in Cozen O'Connor v. Tobits in March and the parties have been filing supplemental authority notices in the subsequent months, updating the judge on how other courts have come down on the issue of whether it is constitutional for marriage to be limited to between one man and one woman.

But Judge Jones didn't say in his one-paragraph order what other relevant cases he was referring to or how long the case would sit on the suspense docket.

Teresa Renaker of Lewis, Feinberg, Lee, Renaker & Jackson in Oakland, Calif., represents Jennifer Tobits, whose wife, Sarah Ellyn Farley, was a partner at Cozen O'Connor before she died in 2009. Farley's profit-sharing plan benefits from the firm are at issue in the case -- Ms. Tobits says she is owed the funds as Farley's wife.

The two were married in Canada in 2006 and lived in Chicago. But Farley's parents say federal and Pennsylvania law do not recognize the marriage as legal, and therefore the $41,000 in benefits should go to them.

Ms. Renaker said she couldn't know for sure what Judge Jones was referring to in his order, but she noted a case out of the U.S. Court of Appeals for the Ninth Circuit -- Office of Personnel Management v. Golinski -- that raises similar issues. A petition for certiorari in that case is currently pending before the U.S. Supreme Court.

In Golinski, staff attorney Karen Golinski of the Ninth Circuit was denied health coverage for her spouse, Amy Cunninghis, to whom she is married under California law. She was denied those benefits because of DOMA, but the lower courts in her case have found the act unconstitutional. She and the U.S. Solicitor General's Office filed petitions for certiorari with the high court.

U.S. Attorney General Eric Holder said that, under a directive from President Barack Obama, the Justice Department would not enforce DOMA. With the government declining to enforce one of its laws, former Solicitor General Paul D. Clement, now of the Bancroft law firm, has stepped in to represent the Bipartisan Legal Advisory Group of the U.S. House of Representatives in support of DOMA.

He is involved in Tobits as well.

Ms. Renaker said there could be a number of cases that Judge Jones is looking to before making a ruling.

"There has been sort of an effort to get the [U.S] Supreme Court to look at this issue this term and to look at a bunch of different cases," she said.

A call to the Farleys' attorneys at the Thomas More Society was not returned. Cozen O'Connor attorney H. Robert Fiebach declined to comment on why Judge Jones decided to put the case on the suspense docket.

In a recent talk in Philadelphia to promote his new book about the relationship between Mr. Obama and Chief Justice John G. Roberts Jr., CNN legal analyst Jeffrey Toobin said there are two types of same-sex marriage cases the court could take up and the justices would most likely choose to avoid one of them.

Mr. Toobin said a case such as the one out of Massachusetts would be more likely to end up on the court's argument list because it wouldn't require that same-sex marriage be recognized by all states. Rather, a finding that DOMA is unconstitutional would simply prohibit same-sex couples in states that do recognize same-sex marriage from being denied federal benefits.

The other type of case Mr. Toobin referred to was the Proposition 8 case out of California, Perry v. Brown. In the cert petition to the Supreme Court, the caption is Hollingsworth v. Perry. The court distributed that case to its Sept. 24 conference, but there has been no word yet as to whether the case has been taken up.

In the Prop 8 case, the issue is whether the equal protection clause of the 14th Amendment prohibits a state from defining marriage between a man and a woman as California did in its Proposition 8, a ballot initiative that amended the state's constitution to limit the availability of marriage to between a man and a woman.

Mr. Toobin said at his Sept. 20 talk at the Free Library of Philadelphia that taking the Prop 8 case would force the court to address the issue of whether every state has to allow for same-sex marriage. That, he said, is a much broader issue. Cases like Golinski or Gill, he said, would be "much easier" for the Supreme Court to take up.


Gina Passarella: gpassarella@alm.com or 215-557-2494. Visit www.thelegalintelligencer.com.


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