Final briefs filed in challenge to Pa. ban on gay marriage

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Attorneys for the state filed the final briefs Monday in a federal court case challenging Pennsylvania's ban on same-sex marriage, putting the matter in a judge's hands.

The state's brief in the lawsuit led by Deb and Susan Whitewood of Bridgeville argued that the "plaintiffs cannot identify concrete state action by these defendants that allegedly has caused them harm.

"Instead, as they have done throughout these proceedings, plaintiffs rely primarily on speculation and conjecture with regard to harm that may occur in the future" because they aren't treated as married in Pennsylvania.

U.S. District Judge John E. Jones III of the Middle District of Pennsylvania has put no timetable on deciding the case. He had slated the matter for a June trial, but both sides decided that there were only legal questions, not factual disputes, so a trial isn't necessary.

The case pits the Whitewoods, 10 other gay couples, two teenage children of one of the pairs and a widow against state Health Secretary Michael Wolf, Revenue Secretary Dan Meuser and Donald Petrille Jr., Bucks County register of wills. The Office of General Counsel, which reports to Gov. Tom Corbett, has retained attorneys to defend the marriage ban.

"For better or worse, the state regulates who can get married," said Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania and one of the attorneys for the plaintiffs. "The state has told our clients that they can neither get married, nor have their out-of-state marriages recognized. That is a huge harm."

The ACLU and attorneys from Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller filed their lawsuit after the U.S. Supreme Court struck down the federal ban on recognition of gay marriages, in the so-called Windsor case.

The state's attorneys argued that Windsor doesn't invalidate the state's ban, because in that case the gay couple was legally married in New York but their gay marriage was ignored by the federal government. "By contrast, in this case, plaintiffs never possessed the right to marry in Pennsylvania or to have their out-of-state marriages recognized by Pennsylvania," so no right has been removed, they wrote.

The plaintiffs' final brief, filed last week, focused on the state's history of discrimination against gays. Mr. Walczak and the plaintiffs' other attorneys wrote that gays in Pennsylvania have faced police raids, employment discrimination, denial of child custody or visitation, bullying, "and the Pennsylvania Legislature's repeated attempts to enshrine anti-gay discrimination in the state constitution."

The state's attorneys wrote that without "a connection between state action and the alleged harm," there is no civil rights violation.


Rich Lord: rlord@post-gazette.com, 412-263-1542 or on Twitter @richelord. First Published May 12, 2014 4:38 PM

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