The
legalization of same-sex marriage has given way to a new problem for a
Pennsylvania couple, who technically are father and son.
Before
states across the country began striking down bans on same-sex marriage
and the Supreme Court ultimately decided the issue nationwide, some gay
couples
used adoption laws as a way to gain legal recognition as a
family, and the related benefits such as inheritance and hospital
visitation rights.
Nino
Esposito, a retired teacher, adopted his partner Roland "Drew" Bosee, a
former freelance and technical writer, in 2012, after more than 40
years of being a couple.
Now, they're
trying to undo the adoption to get married and a state trial court judge
has rejected their request, saying his ability to annul adoptions is
generally limited to instances of fraud.
"We
never thought we'd see the day" that same-sex marriage would be legal
in Pennsylvania, Esposito, 78, told CNN in a telephone interview.
The adoption "gave us the most legitimate thing available to us" at the time, said Bosee, 68.
The
adoption process Bosee and Esposito went through was not uncommon.
Although it is difficult to gather hard numbers, the ACLU of
Pennsylvania, a group supporting the couple, says it learned that many
couples in states across the country lawfully took advantage of adoption
laws in order to protect their relationships. Now these couples seek to
marry, but first they must confront state adoption laws that provide no
easy path to annulment.
In Pennsylvania, Esposito and Bosee knew other couples who successfully annulled their adoptions in order to marry.
They quickly made plans to do the same after Pennsylvania legalized marriage between same-sex couples in May 2014.
"We realized we could have a complete union, which is what we want," Esposito said.
But
Judge Lawrence J. O'Toole, of the Court of Common Pleas of Allegheny
County, ruled against the couple. He noted that the primary purpose of
the adoption was to reduce the Pennsylvania inheritance tax payable upon
the death of one of the men from 15% to 4%, "as the two men would now
be in a parent-child relationship instead of a third party
relationship."
O'Toole said he was
"sensitive to the situation" but noted that despite the fact Esposito
and Bosee desire to marry, "they cannot do so because they are legally
father and son."
"This Court welcomes direction from our appellate courts in handling parallel cases," O'Toole wrote.
"We
don't believe the Pennsylvania judge who refused to annul this adoption
was unsympathetic," said Witold Walczak, the Legal Director of the ACLU
Pennsylvania, "he simply felt that the legal path to doing so should be
forged by an appellate court."
"The
ACLU is hopeful that the Superior Court will apply established legal
principles to allow annulment of adoptions by same-sex couples who that
they can finally partake of their constitutional right to marry,"
Walczak said.
Fast Facts: Same-sex marriage
While
in most of the country there have not been problems implementing the
U.S. Supreme Court's decision in Obergefell vs. Hodges, there have been
some pockets of resistance.
Some
probate judges and other public officials in the South, citing religious
objections, stopped issuing marriage licenses all together to avoid
issuing licenses to gay couples.
Pennsylvania
Democratic Sen. Bob Casey, in a letter Monday to Attorney General
Loretta Lynch, asked that the Justice Department weigh in on the side of
Esposito and Bosee.
"LGBT couples
should have the right to obtain a marriage license, no matter the state
or jurisdiction in which they reside," Casey wrote. "In adoption cases
such as these, the law has changed dramatically since the adoptions were
first carried out."
By the numbers: Same-sex marriage
Attorneys
Mikhail Pappas and Andrew Gross, who represent Esposito and Bosee, say
they would welcome help from the Justice Department to make clear their
clients have a civil right at issue in the case.
In
court papers, the attorneys argued: "The personal and social benefits
of marriage are legion and unparalleled relative to any other
association between individuals that our society formally sanctions and
recognizes."
Dena Iverson, a Justice Department spokeswoman, said the department received Casey's letter and is reviewing his request.
Despite Supreme Court ruling, same-sex marriage conflicts continue
Esposito
and Bosee said they're being cautious now about planning a wedding.
When they filed their adoption annulment they anticipated being able to
marry the same day.
"We had our $80 in
cash and we were ready to go across the street to get our license. Judge
O'Toole had other ideas," Esposito said.
