Same-sex couples, ACLU file lawsuit to overturn Pennsylvania ban on gay marriage

Federal lawsuit seeks to legalize gay marriage in Pennsylvania

A lawsuit filed Tuesday started Pennsylvania down a yearslong path toward a courthouse showdown over the state's ban on same-sex marriage.

Attorneys with the American Civil Liberties Union and Philadelphia law firm Hangley Aronchick Segal Pudlin & Schiller, representing 10 couples and one widow as plaintiffs, predicted that the lead defendant would not go down easily.

"I don't think [Gov.] Tom Corbett is going to lay down on this," said Witold Walczak, legal director of the Pennsylvania ACLU. "We are expecting a trial in this case -- a relatively short discovery period, and then a trial."

Mr. Corbett confirmed Mr. Walczak's prediction.

"Clearly the Supreme Court of the United States said it's up to the states to decide what to do" regarding gay marriage, he said. "A lawsuit to overturn what is the law of Pennsylvania I don't think is going to carry much weight, because it's going to be determined by the courts of Pennsylvania."

The case will be handled by an appointed federal judge in the Middle District of Pennsylvania, based in Harrisburg. It is the first federal case to be filed challenging a state gay marriage ban since the Supreme Court decided last month, in what is known as the Windsor decision, that the federal Defense of Marriage Act was unconstitutional.

That 5-4 decision found that the federal act infringed on the states' rights to decide who to marry, by refusing federal recognition of same-sex marriages that are legal in 13 states and the District of Columbia.

The ACLU's lawsuit asks the federal judiciary to take a further step, arguing that Pennsylvania's act -- which defines marriage as between a man and a woman -- deprives same-sex couples of their constitutional due process right and equal protection rights. To deny someone a right accorded to another, according to the complaint, the state would have to show that there is a rational, legitimate government interest in doing so.

"Neither tradition nor moral disapproval of same-sex relationships or marriage for lesbian and gay couples is a legitimate basis for unequal treatment of same-sex couples under the law," according to the complaint.

The plaintiffs want the court to force Pennsylvania to accept same-sex marriages forged in other states, and to allow gay couples to marry here.

"Everyone in our world recognizes us as a true family -- our friends, our family, our church family, the teachers at the kids' school, they all recognize us as a true family. And we feel that it's time that the commonwealth of Pennsylvania did so as well," said Deb Whitewood, 45, of Bridgeville, one of the plaintiffs who attended a news conference in the Capitol Rotunda in Harrisburg.

"Nobody here is trying to change the definition of marriage," Mr. Walczak said. "If we win this case, marriage is no different than it is today, except it is going to be fairer."

He added that the ACLU is "not asking for damages. We're just asking to overturn the law."

Attorney Mark Aronchick called it "the most important civil rights lawsuit in the nation right now."

Opposition promptly criticized the ACLU's goals and methods.

"There are those of us who believe that marriage should remain the union of husband and wife," said Michael Geer, president of the nonprofit Pennsylvania Family Institute, "because the union of one man and one woman uniquely brings forth children and uniquely benefits children in society.

"To allow a judge to make a determination on an issue of such significance or import, rather than going through the deliberative political process ... seems unwise and undemocratic, frankly," he said, noting that other states have decided on their definitions of marriage through legislation or ballot initiatives.

"It is too soon to say whether the Catholic Conference or another group will respond to this lawsuit with an amicus brief, but we will be watching the case closely," said Amy Hill, director of communications for the Pennsylvania Catholic Conference.

Advocates for same-sex marriage were girding to join the fight.

Equality Pennsylvania, Marriage Equality for Pennsylvania and the Delta Foundation of Pittsburgh all said they are waiting on legal advice, but they are considering filing amicus briefs.

According to an analysis of U.S. Census data by the California-based think tank The Williams Institute, there are around 22,336 same-sex couples in Pennsylvania.

Besides Mr. Corbett, the defendants are state Attorney General Kathleen Kane; Health Secretary Michael Wolf, whose agency produces marriage license forms that demand a bride and a groom; and two county registers of wills, Donald Petrille Jr. of Bucks County, and Mary Jo Poknis of Washington County, whose offices refused same-sex couples' requests for marriage licenses.

Mr. Walczak said he expected the case to come to trial in the next year or two, then likely move to the U.S. 3rd Circuit Court of Appeals, regardless of which side prevails. It could then potentially go to the Supreme Court, he said.

"Certainly, this is not a slam dunk," said Bruce Ledewitz, a professor of law with Duquesne University who has been publicly supportive of same-sex marriage.

He said the state will try to show, early on, that it has a rational basis for excluding homosexuals from marriage. If the state prevails at the district court level, the ACLU could appeal to the circuit court, but the Supreme Court would be unlikely to take the case because it "has been ducking this issue for five years," he said.

The ACLU, Mr. Ledewitz predicted, will try to prove that same-sex couples are as stable and as good at parenting as opposite-sex unions. If the ACLU wins in Harrisburg and at the circuit court level, the Supreme Court would have little choice but to take the case, potentially leading to a ruling with national implications.

"There will be another case taken to the Supreme Court at some point in the not-too-distant future," Mr. Walczak said. "Whether this case ends up being the one that goes to the Supreme Court now is impossible to predict."

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Rich Lord:, 412-263-1542 or Twitter @richelord. Monica Disare: First Published July 9, 2013 12:00 PM


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