Before same-sex marriage became legal across the United States, some couples would become parent and child — just on paper — to get rights they were otherwise denied.
One Pennsylvania couple has ended up at the center of a legal battle over such a maneuver.
Drew Bosee, 69, and Nino Esposito, 79, met at a party in Pittsburgh on Easter weekend of 1970.
“We were introduced … and that was about it for that weekend,” recalled Bosee, who was 23 at the time. Bosee was living in Wynnewood, Montgomery County, and about to embark on earning a degree in veterinary science at the University of Pennsylvania.
The summer marked a turning point for Bosee. He found himself charmed by the Steel City, decided not to attend Penn, instead moving to Pittsburgh that August.
A few months later, Bosee happened to run into Esposito at a gay bar.
“He gave me his bar stool,” said Bosee. It was Friday the 13th, now their anniversary. Esposito, the quieter of the two, nods in agreement. He said that night was the last time either went out looking for love.
“Once we met each other, we just stopped going … Why go, what was the reason? There was no reason,” he said.
The next year, Bosee moved in with Esposito and his parents. They lived quietly as a couple, traveling to visit Esposito’s family in Italy, buying homes together and acting as each other’s plus-ones.
In spite of their shared lives, for most of their time as partners, there was no way for them to — legally — become a family.
About 20 years ago, a lawyer mentioned that adoption could be one way for them to more fully share assets and benefits such as health insurance. But it wasn’t until 2012 that they went to a judge and Esposito formally adopted Bosee.
“He told Nino, you know you will now be responsible for Drew. And [Drew] said, ‘Well I’ve been responsible for him for 41, 42 years,” according to Bosee. As the younger member of the couple, Bosee became, on paper, Esposito’s “child.”
By undergoing an adult adoption, Bosee and Esposito joined the ranks of an unknown number of same-sex couples who repurposed existing laws in an attempt to have their relationship recognized prior to the universal legalization of same-sex marriage.
Sergio Cervetti and Kenneth Rinker of Doylestown, Pennsylvania, are another couple who decided to take the adoption route. In 2000, they had both retired from the arts scene in New York City where they had been able to share benefits as members of a state-recognized domestic partnership.
After moving to Bucks County, Rinker said, “In order to keep our health insurance after we retired, we were told the best thing was to adopt.”
Adoption was a way not only for the couples to share benefits, but also to guarantee family rights in the event of sickness or death. Without legal protection, members of same-sex couples have been forcibly removed from a partner’s hospital room and have been denied power-of-attorney and other legal benefits.
“This is something we’ve known about for years, this practice, but there has never been a way to track numbers and there still isn’t a way to track numbers,” said Nancy Polikoff, professor and LGBT family law expert at American University in Washington, D.C.
Even without exact data, Polikoff said she wouldn’t construe the practice as rare, and she’s been hearing of cases since she first started practicing law in the 1970s. But it wasn’t necessarily something that couples would publicize.
She said she heard about individual cases much in the same way Cervetti and Rinker learned that they could adopt, through word of mouth.
These adoptions, while a good option at the time, don’t offer nearly as many benefits as same-sex marriage, which became legal across the country after the U.S. Supreme Court ruling in Obergefell v. Hodges this year. Those benefits include the elimination of inheritance tax, at least in Pennsylvania, and greater freedom to co-parent children.
But the decision actually created a dilemma for Bosee and Esposito, Cervetti and Rinker, and other couples. In 25 states, including Pennsylvania, a parent can face jail time for marrying an adopted child.
After Obergefell v. Hodges
After Cervetti and Rinker, as well as another couple they knew in Harrisburg, had successfully annulled their adoptions, Bosee and Esposito were emboldened to think about marriage, something they never thought would be an option.
“We thought Pennsylvania was never, ever going to accept this marriage equality,” said Esposito. “That’s why, when marriage equality first passed in 2014 … we didn’t rush to annul.”
In June, they went before a judge to request an annulment. Right off the bat, Esposito said they knew something was wrong.
“When we walked into that courtroom, we knew what he was going to say,” he said. “His whole demeanor and attitude. We knew exactly that he was going to deny it.”
In his opinion, Judge Lawrence O’Toole stated, “the Adoption Act does not have a provision permitting the annulment or revocation of the adoption.” His decision also implied that the men’s only reason for wanting to get married was to avoid paying inheritance tax.
Polikoff, the law expert, said this is the only case she’s seen of this kind of annulment being blocked, although she has heard of couples not bothering to annul their adoptions before marrying, thus risking jail time or the nullification of their marriage. Adoption law varies tremendously by state, so couples hashing out their status post-Obergefell v. Hodges face different challenges and constraints depending on where they live. It’s up to local courts to decide how to interpret the law.
After O’Toole’s decision, the Pennsylvania ACLU filed an amicus brief in support of an annulment for Bosee and Esposito.
Knowing that other couples in Pennsylvania haven’t faced the same challenge, Esposito said he feels discriminated against — and impatient.
“He better hurry up because I turned 79 [recently] … I don’t have all the time in the world,” he said.
He said he also feels tired of the attention they’ve received over the case. A more animated Bosee said they will work through the courts for as long as they can afford to. The couple filed an appeal in July and are waiting for the Superior Court to set a date for arguments in early 2016.
In the meantime, the $80 in cash they pulled out to use for a marriage license last June is tucked away in a folder, gathering dust until the day they can finally use it.