NO. 837 PHILA. 1982, Appeal from the Order in the Court of Common Pleas of Delaware County, Civil No. 81-01746
Rosalie Davies, Narberth, for appellant.
Howard A. Finkelman, Philadelphia, for appellee.
David W. Webber, Philadelphia, amicus curiae Lambda Legal Defense and Education Fund, Inc.
Spaeth, President Judge, and Montemuro and Popovich, JJ.
[ 328 Pa. Super. Page 183]
This case presents the novel issue of whether two persons of the same sex can contract a common law marriage. We hold that they cannot, as a matter of law. The order of the trial court dismissing appellant's complaint for divorce is therefore affirmed.
On February 16, 1981, appellant, John DeSanto, filed a complaint for divorce against appellee, William Barnsley. In his complaint appellant alleged that on June 14, 1970, in a ceremony before friends, he and appellee entered into a common law marriage, and that then they lived together until November 15, 1980. Appellant requested a divorce, equitable distribution, alimony, alimony pendente lite, and costs. Appellee, in his answer, denied that he and appellant were ever married or capable of being married. Appellant filed a petition to determine marital status, pursuant to section 206 of the 1980 Divorce Code, and after a hearing on the petition, the trial court, on February 17, 1982, entered a decree dismissing appellant's complaint. The decree was accompanied by an opinion holding that as a matter of law two persons of the same sex cannot contract a common law marriage. Appellant appealed to this court. After a presubmission conference, and upon agreement of the parties, the case was remanded to the trial court, and on September 2, the court issued another opinion, in which, after discussing the credibility of the witnesses who had testified at the hearing on appellant's petition to determine marital status, the court "h[e]ld that [appellant] has not met the burden of proof sufficient to establish a common law marriage, even if two persons of the same sex could establish a marriage relationship." Slip op. at 5.
Appellant argues: (1) that the trial court erred in holding that as a matter of law two persons of the same sex cannot contract a common law marriage; (2) that to deny the validity of common law marriage between two persons of the same sex is proscribed by the Pennsylvania Equal Rights Amendment, Pa. Const., Article I, Section 28; and (3) that the trial court erred with respect to certain of its
[ 328 Pa. Super. Page 184]
findings of fact and evidentiary rulings. On the first argument, we find no error. We do not consider the second and third arguments. Appellant has waived the second argument, for he did not make it to the trial court; and given our conclusion that as a matter of law he and appellee could not contract a common law marriage, it is of no importance whether the trial court erred in its findings and evidentiary rulings.
The issue of whether two persons of the same sex may contract a common law marriage has not been addressed in Pennsylvania, nor, to our knowledge, in any other jurisdiction. Other jurisdictions have considered whether statutory or ceremonial marriage can be entered into by same-sex couples, and have uniformly held that it cannot be. One such case is Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). In Baker, two males applied for a marriage license and the clerk declined to issue one on the sole ground that they were of the same sex. The Minnesota Supreme Court affirmed the trial court's order quashing a writ of mandamus, and specifically directed that a marriage license not be issued. The court rejected the argument that the absence of an express statutory prohibition against same-sex marriages showed a legislative intent to authorize such marriages. The court found that the statute used "marriage" as a term of common usage, "meaning the state of union between persons of the opposite sex," id. at 311, 191 N.W.2d at 186, and referred to dictionary definitions. Supporting this interpretation of legislative intent was the fact that the marriage statutes dated back to territorial ...