While she is no longer being forced to pay a discriminatory tax, a lesbian widow from Pennsylvania was allowed last week to continue with her case against the tax law.

Last fall, Bethlehem resident Barbara Baus appealed to Orphans’ Court of Northampton County after she was asked to pay more than $10,000 in inheritance tax on the estate of her late wife, Cathy Burgi-Rios, who died in 2012 from complications of leukemia. At the time, heterosexual married couples were exempt from paying a tax on property inherited from a late spouse, but same-sex married couples were treated as strangers and forced to pay a 15-percent tax.

In January, the Department of Revenue filed preliminary objections, contending Baus failed to make a valid claim. In May, U.S. District Judge John E. Jones 3d legalized same-sex marriage and, one month later, the department sought to dismiss Baus’ appeal, stating that the case was made moot because of the marriage-equality ruling.

On July 24, Northampton County Court of Common Pleas Judge Craig A. Dally issued an order refusing to dismiss the appeal filed by Baus.

Baus’ attorney, Benjamin Jerner of Jerner and Palmer, P.C., said Baus has been informed she does not have to pay the inheritance tax, but that the Inheritance and Estate Tax Act, which was challenged as part of Baus’ initial filing, still contains language that discriminates against same-sex couples.

In his finding, Dally noted that the continued application of that section “as written is clearly unconstitutional.”

“So long as the statute remains, it leaves open the possibility that [Baus], if she were to remarry, or other same-sex spouses, could be subject to discrimination under the notwithstanding pronouncement of [marriage-equality case] Whitewood,” Dally wrote.

Jerner said it is imperative to change the language regarding transfers between “husband and wife.”

“The problem is that those are not automatically meant to mean everybody, so in this particular case this statute deals with whether or not certain properties are exempt from taxation,” he said. “Right now, there is a zero-percent rate for spouses in Pennsylvania but they can change those tax rates at any time, so that is why this is important. It might seem minor until it happens to someone else.”

Ultimately, Jerner said he hopes the case leads to that section of the statute being repealed, amended or found unconstitutional.

“I think it is pretty clear that [it is unconstitutional] and that other statutes that are on the books in Pennsylvania where same-sex couples are excluded will fall, whether that will happen one by one or through court challenges or the good folks in Harrisburg, I don’t know,” Jerner said. “Marriage equality is excellent, and now we get into the nitty gritty. I think Pennsylvania still has work to do to bring the laws in Pennsylvania up to speed with the Whitewood decision.”

From our media partner PGN-The Philadelphia Gay News.