Same-sex marriage ban ruled unconstitutional in Pennsylvania



A federal judge's decision declaring unconstitutional the state's ban on same-sex marriage spurred both wedding planning and hand-wringing Tuesday, as gay couples and their supporters celebrated while conservative voices called for a prompt appeal.

In a 39-page decision that advocates described as an eloquent but matter-of-fact "bell ringer," U.S. District Judge John E. Jones III set out to put the state's 18-year-old Defense of Marriage Act on, as he put it, "the ash heap of history."

READ the PDF of U.S. District Judge John E. Jones III’s decision

Gay couple reacts to same-sex marriage ruling

Deb and Susan Whitewood of South Fayette, one of 11 gay couples seeking to overturn Pennsylvania's ban on same-sex marriages, react to news that the law was ruled unconstitutional. (Video by Bob Donaldson; 5/20/2014)

Some among the plaintiffs -- 11 gay couples, two teenage children and a widow -- immediately started thinking ahead.

"Our five-year [anniversary of their] commitment ceremony is coming up in July," said Lynn Hurdle, 44, one of the plaintiffs along with her partner, Fredia Hurdle. "That would be a wonderful time to be married in Pennsylvania."

"I was missing my better half to hug," said plaintiff Maureen Hennessey, a widow who argued that her inability to marry penalized her when her partner passed away and the estate tax came due. "Before Marybeth died, she wanted this done."

Brandon McGinley, field director for the Pennsylvania Family Institute, a Harrisburg-based nonprofit, had one wish: "Just that they appeal this decision. Marriage is too important to just let one judge decide."

"I hope the governor will take seriously his responsibility," said Mr. McGinley, urging Gov. Tom Corbett "to defend our law vigorously."

The state has 30 days to appeal, but in the meantime, same-sex couples in some parts of Pennsylvania were applying for marriage licenses, a step that usually triggers a three-day waiting period before a couple can tie the knot. Allegheny County Executive Rich Fitzgerald invited couples to apply for licenses online Tuesday night, or in person today.

The ruling comes in a case filed in July, led by Deb and Susan Whitewood of South Fayette, with plaintiffs including their daughters, plus Diana Polson and Dawn Plummer of Point Breeze, and Lynn and Fredia Hurdle, of Crafton Heights.

The defendants are state Health Secretary Michael Wolf, Revenue Secretary Dan Meuser and Donald Petrille Jr., Bucks County register of wills. Mr. Corbett was originally a defendant, but was dropped from the case because his office doesn't directly administer marriage-related state functions.

Some of the plaintiffs, represented by the American Civil Liberties Union and the Philadelphia firm Hangley Aronchick Segal Pudlin & Schiller, demanded that Pennsylvania recognize gay marriages forged in other states, while others sought to tie the knot in their home states.

Judge Jones gave both groups what they wanted.

"By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the commonwealth," he wrote.

He found that restricting marriage to man-and-wife couples violated the due process and equal protection clauses of the 14th Amendment, and issued "an order permanently enjoining ... enforcement" of the ban.

"Encompassed within the right to liberty is the fundamental right to marry," he wrote.

The ACLU and plaintiffs built on the language of the U.S. Supreme Court's decision last year in the case of Windsor v. United States, which struck down the federal ban on recognition of gay marriages.

The defense countered that Windsor just reinforced states' rights to decide who can and cannot marry. They argued that the General Assembly needs only to have a "rational basis" to enact a law, and that that lawmakers sought "promotion of procreation ... child rearing and the well-being of children ... tradition" and business concerns.

The ACLU then contended that prejudice can't be rational.

Judge Jones found that laws that discriminate based on sexual orientation should be examined with a "heightened scrutiny." Applying that scrutiny, he ruled that "the classification imposed by the marriage laws based on sexual orientation is not substantially related to an important governmental interest" and is therefore unconstitutional.

Calls to appeal

Those who view marriage as specific to a woman and a man argued that a lone judge shouldn't have the power to impose a social experiment on the commonwealth.

"We believe all Pennsylvanians deserve dignity and respect regardless of their beliefs on this issue," said Rob Gleason, chairman of the state Republican Party, in a news release. "However, the citizens of the commonwealth also deserved to be participants in the ongoing discussion rather than be dictated to by judicial fiat."

Bishop David Zubik of the Roman Catholic Diocese of Pittsburgh said in a release that "to disagree with today's federal decision redefining marriage is not a matter of discrimination.

"The traditional definition of marriage between a woman and a man is natural and true to the human condition and the beauty of family life," he continued. "We as a culture have been steadily eroding the strength of our families by undermining the sacredness of marriage. The decision rendered today simply is another step down that road. It waters down the meaning of marriage."

Joshua Maus, spokesman for the Office of General Counsel, which reports to Gov. Corbett and has administered the defense of the ban, said that the office is reviewing the "legal issues" presented by the decision. He did not know whether an appeal would be filed.

The plaintiffs' attorneys said an appeal wouldn't likely be successful. Judge Jones "intentionally put every single, solitary issue that anyone could ever ask about why this was a correct constitutional and civil rights case" into his decision, said attorney Mark Aronchick of the Hangley firm, which joined the ACLU on the case. The plaintiffs, he said, presented "a very overwhelming and powerful record."

In 18 other states, federal or state judges have knocked down bans on same-sex marriage, and all of those decisions except one in Oregon are under appeal. Another 17 states, plus Washington, D.C., already allow marriage for same-sex couples.

Some judges have overturned bans but have stayed their own rulings pending appeal. Judge Jones issued no such stay, meaning the state would have to ask for such a measure promptly if it wanted to prevent the same-sex marriages that could otherwise begin this week.

The appealed cases must begin to work their way through the federal circuit courts before one or more gets to the Supreme Court. Experts have said that court is likely to decide, within a year or two, whether to strike down all remaining state same-sex marriage bans.

"Timing will dictate everything," said Witold Walczak, legal director of the ACLU of Pennsylvania and one of the lead lawyers for the plaintiffs. "Any of these cases could go up to the Supreme Court. ... It is conceivable that the court would take a number of cases together."

The state's population remains closely divided on the issue, according to a Robert Morris University poll of 506 residents completed last week. It found that 49.5 percent of those surveyed support the state allowing same-sex marriage, while 40.7 percent oppose it.

Mr. Walczak predicted that one of the cases -- conceivably Whitewood -- would bring the beginning of the end of the national debate on the definition of marriage.

"Same-sex marriage is not something that we're going to be talking about," he said. "It's just going to be marriage."

Susan Whitewood said the case was not just about couples, but about daughters and sons like the ones she is raising with Deb. "It's such a huge concept to know that you're legal, that we got validated, that when they go to school they can say they have two moms and it's nothing different than if they said they had a mom and a dad in their household."

RELATED: Same-sex couples can apply for a marriage license in Allegheny County


Rich Lord: rlord@post-gazette.com or 412-263-1542. Twitter @richelord. Maxwell Radwin contributed. First Published May 20, 2014 2:28 PM

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