Guest Blogger

Do it for Joan, and for all of us

Filed By Guest Blogger | September 07, 2007 4:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Equality Advocates Pennsylvania, Joan Procito, Lee Carpenter, LGBT civil rights, marriage, unemployment

[EDITOR'S NOTE:] The following guest post is from Lee Carpenter, Legal Director for Equality Advocates Pennsylvania. She also supervises Equality Advocates' legal clinic, and acts as an adjunct clinical instructor to Temple Law students who each semester assist Equality Advocates' attorneys and learn hands-on about the unique legal issues facing LGBT Pennsylvanians. Lee is guest blogging at the Project about a unique case that they argued in court yesterday. Feel free to leave any questions for her in the comments section.

2-thumb-carpenter.jpgHi, I'm Lee Carpenter, the legal director at Equality Advocates Pennsylvania. We're an LGBT-rights nonprofit based in Philadelphia, and among other things, we provide legal services to folks in Pennsylvania who are facing discrimination based upon their LGBT status.

Yesterday, we argued a case before one of Pennsylvania's courts of appeal that really brings home a lot of important issues regarding the equality of same-sex relationships in the eyes of the law. Our case involved a woman, Joan Procito, who had to leave her job and move from Pennsylvania to Florida. Her reason for doing so was the fact that her partner needed to move to Florida to be closer to her disabled son, who had just gotten into college in that state.

Now, Joan and her partner have been together for almost a decade. She's acted as a stepmom to her partner's kid. They live together, their finances are totally commingled, and they think of themselves as a family unit. In short, Joan and her partner are exactly like a married couple in every way except for the sad fact that Pennsylvania forbids the recognition of their relationship as a marriage.

So Joan, as seems pretty natural under these circumstances, didn't really feel like she had a choice to stay in Pennsylvania at her old job. The thousand-mile commute from Florida seemed a little on the unreasonable side. So did the idea of basically having to keep two separate households in two separate states. So she did what pretty much any spouse would do - she quit her job and applied for
unemployment compensation.

However, she was refused that compensation. The reason for the refusal wasn't that her reason for leaving her job wasn't good enough, or that she really got fired, or anything like that. The single reason given? She and her partner weren't married. If they had been, she would have almost certainly been able to get unemployment under a series of Pennsylvania cases that have said that having to follow your "spouse" to a new place is a good reason for having to leave your job. But since there are cases out
there that say that unmarried straight people can't take advantage of this "follow the spouse" rule, then, well, the folks at Unemployment figured that Joan couldn't either.

Of course, our office took this case. We first appealed the original decision to the Unemployment Compensation Board of Review, and now we've taken it to the Commonwealth Court of Pennsylvania. We're arguing that the rule about unmarried straight folks can't be applied to unmarried same-sex couples because, of course, same-sex couples can't get married here. You can't exactly fault Joan
and her partner for their lack of commitment when Pennsylvania law refuses to allow them a marriage license, the only legally-meaningful symbol of commitment available.

This case says some interesting things about the marriage debate. Most importantly, it points out how marriage discrimination has effects that most of us can't possibly imagine until we're faced with them. I mean, many of us know about inheritance rights and filing joint federal tax returns, but who knew that marriage discrimination could touch our families when we try to get unemployment compensation, for god's sakes? The fact is that the law is loaded with little nooks and crannies like this, where the difference between fair and unfair treatment can hinge on whether you can say that - legally - your partner is in fact your "spouse."

I think this is a great case to talk to straight allies about. People are honestly shocked when they realize that cases like Joan's even exist, and that a few people's obsession with holding onto the legal superiority of straight relationships can result in obvious injustices like this one.

I hope we win this one, and I think we can. You can help - maybe not in this battle, but in the bigger fight - by talking to as many people as will listen about what marriage discrimination really does to our families.

Do it for Joan, and for all of us.

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Don Sherfick Don Sherfick | September 7, 2007 5:04 PM

Very interesting, Lee, and I'm sure that many folks, both within our community and perhaps more importantly outside, are in supportive sympathy with Joan's plight.

One of the things that has fascinated/discouraged me is what I call the "gateway argument" defendants in cases like this seem to employ, and the courts generally seem to slavishly buy: That because a couple is not married, and under some kind of rational basis test the marriage statute is declared constitutional, anything remotely depending on marital status gets denied as well, whether or not what's being denied has any relationship at all to the reasons the marriage statute was upheld in the first place. For example, if a marriage statute is upheld because of some relationship to procreation (as in the laughable "irresponsible heterosexuals needing extra state protection" argument that has prevailed in Indiana and elsewhere), that's enough to justify the denial of totally non-procreative things like spousal inheritance tax exemmptions or, in this case perhaps, unemployment benefits. Keep us advised of your progress, please.

This is a perfect example of the unintended consequences of these marriage amendments several states are passing. They claim to want to take marriage out of the hands of "activist judges" and yet in reality they're just giving the judges even more to decide after it becomes clear that things aren't quite as cut and dry as they'd like. The Catch 22 mentality is overwhelming.

And good luck with the case! You should win it easily! It's a no-brainer. They should have to give her unemployment or throw out the amendment.