The Curious Case of a Philly Gay Divorce — 30 Years Ago

On October 11, 1983, Pennsylvania Superior Court president judge Edmund B. Spaeth Jr. looked out over his courtroom and considered whether to grant two men who once loved each other a divorce. Today, in the wake of a Montgomery County clerk issuing marriage licenses to gay couples, the debate over gay marriage feels as though it’s approaching an inevitable political and legal endgame.

But when DeSanto v. Barnsley reached a Philadelphia courtroom 30 years ago, the issues involved sounded unfathomable. “This case presents the novel issue of whether two persons of the same sex can contract a common-law marriage,” Spaeth would write in 1984.

In the summer of 1970, John DeSanto and William Barnsley had stood before friends in a Yeadon apartment, exchanged rings, and committed themselves to one another. Starting that year, a series of state courts would rule plainly that this arrangement could never be marriage, a status reserved for one man and one woman.

But Barnsley and DeSanto decided they could still share in the karmic rewards of a marriage, even with none of its legal or economic benefits.

In 1975, Barnsley bought a Newtown Square home, and the two men adopted a typical division of labor for suburban middle-class couples: Barnsley, a hospital blood-bank supervisor, made the money; DeSanto, a high-school dropout, handled household errands and managed their finances. In 1980, though, according to DeSanto, Barnsley asked him to move out after falling for another man.

“We went to township meetings together. We were very accepted in the community,” DeSanto told the Associated Press a few years later. “It’s a shame it had to end in tragedy.”

DeSanto headed to the courthouse in Media with divorce papers, demanding alimony. When his claim was rejected on the basis that two men who could never be married could thus never be divorced, DeSanto’s attorney, Rosalie Davies, appealed to Superior Court.

Pennsylvania was one of only a handful of states to recognize common-law marriages, and Davies argued that by that standard, two people who had spent 10 years mutually intertwining their lives should be treated as spouses.

“He’s in the exact position of a wife,” Davies said of her client. DeSanto v. Barnsley was unlike any marriage case that proceeded it, in that it featured two gay men facing off against one another with competing views on whether or not they ever had been married.

Davies’s smoking gun — Barnsley’s anniversary cards to DeSanto — didn’t impress Spaeth. To him, a simple principle of law was involved: The courts overreached if they used common law to recognize couples the legislature had pointedly excluded from marriage. He upheld the lower court, but DeSanto v. Barnsley would live on, lurking in the footnotes of cases and law-journal articles.

“I think it takes a good 10 years of litigation until you get cases going in your favor,” Davies said after the ruling.

She was almost exactly right. In May 1993, Hawaii’s Supreme Court issued the country’s first ruling friendly to gay marriage. Twenty years after that, the U.S. Supreme Court joined in, overturning part of the Defense of Marriage Act. Many lawyers working in this arena think the next big Supreme Court challenge to the remaining parts of the Defense of Marriage Act could come, not from a gay couple trying to marry where they live, but from one being denied the right to divorce there.

Pennsylvania has been down that road once before. Time will tell if the next decision is different.

This story originally appeared in the October issue of Philadelphia magazine.