Same-sex marriage debate focused on Pa.

DOMA challenged by several lawsuits

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Pennsylvania has become the accidental epicenter for gay-rights litigation, with several suits cropping up over the summer in both state and federal court.

Since the U.S. Supreme Court ruled in June in United States v. Windsor, gutting the federal Defense of Marriage Act, two federal suits and three state suits have sprung up in Pennsylvania challenging the state's version of DOMA.

The American Civil Liberties Union, with Hangley Aronchick Segal Pudlin & Schiller, was the first to challenge the state's ban on gay marriage in July, when it filed a case on behalf of 11 same-sex couples and a widow. That case, brought in Harrisburg, was assigned to U.S. District Judge John E. Jones III of the Middle District of Pennsylvania.

The organization's strategy is "to bring good cases in jurisdictions where we can get a fair hearing. The Third Circuit is one of those places," explained Leslie Cooper, a lawyer for the ACLU.

Pennsylvania is also surrounded by states that have progressed on same-sex unions, she said, which forces the issue in this state.

In a similar vein, Mark Aronchick, who is working with the ACLU, said of Pennsylvania's judiciary, "We have excellent court systems, federal and state," with judges who don't shy away from tackling major issues.

He characterized the U.S. Court of Appeals for the Third Circuit as being nationally notable for ruling on big issues and said that courts in the state have led the way on civil rights for decades. And, he said, Pennsylvania is an outlier among states in the Northeast since it is alone in its staunch line against same-sex marriage.

Last week, a New Jersey Superior Court judge ruled that the state was unconstitutionally denying federal benefits to gay couples and decided that it must allow them to be married. An appeal is expected.

The lawyers bringing the due process and equal protection claims in the federal suit in the Middle District plan to tread carefully and develop a full record, Mr. Aronchick said, since they expect that the U.S. Supreme Court will be looking to bring finality to the issue. "The next chapter will be the final chapter," he said.

However, there are legal heavyweights behind the second federal lawsuit filed on the issue, too. rought in Philadelphia last week, lawyers from Morgan, Lewis & Bockius are working with Equality Forum to argue that same-sex couples married in other states are entitled to have their unions recognized in Pennsylvania under the full faith and credit clause of the Constitution, and the freedom to travel between states.

"We think it's most likely to be considered next by the Supreme Court," said Malcolm Lazin, who heads Equality Forum.

The Windsor decision meant that people would be entitled to federal marriage benefits according to where the couple is married or where they are domiciled, and impacts people's rights to 1,138 federal benefits.

The suit filed in late September, on behalf of a couple who was married in Massachusetts in 2005, addresses that issue.

There are cases in other states making the argument that restriction on same-sex marriage violates the equal protection and due process clauses of the Constitution, but this is the first to advance the full faith and credit and travel theories.

There is more litigation in Pennsylvania than in the 37 other states that don't allow same-sex marriage, Mr. Lazin said, but the next major ruling expected on the issue will come out of New Mexico, where eight counties authorized same-sex marriage; the state's Supreme Court accelerated the briefing schedule as a result and is expected to rule in October.

In Pennsylvania, a clerk in Montgomery County began issuing marriage licenses to same-sex couples following the state attorney general's decision not to defend the state when the ACLU filed suit in July.

That situation spawned the first state-court action when the Corbett administration asked the Commonwealth Court to compel D. Bruce Hanes, the clerk of the Orphans' Court, to follow Pennsylvania's DOMA and stop issuing the licenses.

He stopped when President Judge Dan Pellegrini sided with the state and ordered him to stop in September. Mr. Hanes is planning to appeal. Growing out of that action is the other major same-sex-marriage case Pennsylvania, which was brought by the couples who were married this summer after getting licenses from Mr. Hanes.

legalnews

Saranac Hale Spencer: sspencer@alm.com or 215-557-2449. Read more articles like this at www.thelegalintelligencer.com.


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