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DOMA hearing held involving widow beneficiary case
by Carrie Maxwell, Windy City Times

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The motions for the interpleader action case (Cozen O'Connor, P.C. v. Jennifer J. Tobits, et al. and Estate of Sarah Ellyn Farley) involving a same-sex widow's pension plan proceeds were heard by Judge C. Darnell Jones II of the United States District Court, the Eastern District of Pennsylvania, March 12.

Sarah Ellyn Farley worked for six years as an attorney in the Chicago offices of Cozen O'Connor.

Tobits and Farley were married in 2006 in Toronto, Ontario, Canada.

In 2010, Farley died at the age of 37 from a rare form of cancer.

Cozen O'Connor filed a lawsuit claiming that the Defense of Marriage Act (DOMA) prevents them from recognizing Tobits as the beneficiary of Farley's pension-plan death benefits. Their argument says that DOMA applies to private companies as well as the federal government. The firm has asked the court to determine who should receive the death benefits, Tobits or Farley's parents.

Tobits then filed a breach of fiduciary duty counterclaim against Cozen O'Connor, alleging that if the firm did not intend to recognize same-sex spouses, it had a duty to inform Tobits of that fact. Tobits wants to be recognized as the legal surviving spouse and beneficiary of her late wife's pension plan proceeds.

Farley's parents are also challenging the legality of the couple's marriage under DOMA, saying that Cozen O'Connor's pension plan is Employee Retirement Income Security Act (ERISA)-qualified. ERISA is a federal mandate, however, and does not define the word "spouse."

Farley's parents never approved of her daughter's sexual orientation nor her marriage to Tobits.

Tobits has already been appointed as administrator of her late wife's estate by an Illinois probate court. In the Illinois case, the court rejected the Farley's claim that their daughter was single, and ruled that Tobits and Farley were legally married and entitled to all the rights and protections given to spouses under state law.

Cozen O'Connor's pension plan states that a spouse is a person to whom an employee has been married for at least one year. The pension plan does not indicate that the same-sex spouses are excluded from participating. Additionally, the law firm has several offices in states where same-sex marriage is legal, and also has diversity and non-discrimination policies that include sexual orientation.

At the hearing, the court asked all of the involved parties to address the constitutionality of DOMA. Both the United States Department of Justice (DoJ) and the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives have intervened in the case and are also parties.

The DoJ, under President Obama's instructions, is no longer defending the constitutionality of DOMA.

BLAG, under the direction of Speaker of the House John Boehner, R-Ohio, has convened to defend DOMA in the courts, and is doing so in this case.

The National Center for Lesbian Rights (NCLR) and co-counsels Teresa Renaker and Julie Wilensky of Lewis, Feinberg, Lee, Renaker and Jackson, P.C.; and Benjamin L. Jerner, Tiffany Palmer and Rebecca Levin of Jerner and Palmer, P.C. represented Tobits in court.

H. Robert Fiebach of Cozen O'Connor's Philadelphia law office represented the firm in court while Thomas Brejcha and Peter Breen from the Thomas More Society, Randall L. Wenger from the Independence Law Center and Jonathan W. Michael from Burke, Warren, MacKay and Serritella, P.C. in Chicago are representing the Farleys.

During the hearing, which lasted more than four hours, Minter said, "An attorney from the U.S. DoJ appeared to argue that if DOMA applies in this case, then DOMA is unconstitutional and an attorney from BLAG argued in defense of DOMA."

The court also heard from Susan Katz Hoffman, an ERISA expert from Little Mendelson, who argued that DOMA does not prevent an employer from voluntarily providing benefits to a same-sex spouse, and that if an employer does not intend to do so, the employer must make that clear. Hoffman also wrote an amicus brief on behalf of the Human Rights Campaign, arguing that DOMA does not apply to this case.

"Judge Jones was very engaged and seemed to understand that Cozen's position, that DOMA prohibits private employers from recognizing same-sex spouses, would unsettle thousands of existing private pension plans," said Minter.

"We hope the judge rules that DOMA does not apply to private benefit plans and that Cozen O'Connor must give Farley's death benefit to Tobits, as required by the plain language of the plan," said Minter, adding, "The U.S. DoJ agrees that DOMA does not apply to private employers, and is also arguing that if the judge holds that DOMA applies here, then DOMA violates the equal protection clause of the federal constitution and should be struck down. We strongly agree that if DOMA applies, it is blatantly unconstitutional and should be struck."

If the court decides that DOMA applies to a private companies' (Cozen O'Connor) benefit plan and awards the benefits to the Farley's the ruling will extend DOMA to non-governmental actors. Currently, DOMA defines the terms "spouse" and "marriage" only in federal laws and regulations.

A ruling in this case is still pending and may not be handed down for a number of months.

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