State's gay marriage ban gets hearing in federal court

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PHILADELPHIA -- The legal fight for marriage equality moved to a Philadelphia federal courtroom Thursday as a lesbian couple urged a judge to overturn state law barring recognition of their out-of-state union.

But as U.S. District Judge Mary McLaughlin mulled arguments Thursday, her interest seemed to center on one fundamental question: How far did the U.S. Supreme Court intend to go last year when it struck down portions of the federal Defense of Marriage Act?

The high court's majority opinion in United States v. Windsor appeared on one hand to stake a claim for the authority of individual states to define marriage within their borders. But the opinion, written by Justice Anthony M. Kennedy, also contained an impassioned critique of laws that impinged on the rights of any couple to marry, describing them as humiliating and degrading.

"It is so abundantly clear that Pennsylvania law is facially discriminatory and the argument for it is irrational," said Michael Banks, a lawyer for the couple. He argued that current state statute amounted to lawmakers deciding, "we are going to impose our discriminatory views -- our bigotry -- on other people via fiat."

But Joel L. Frank, an attorney representing Gov. Tom Corbett, shot back.

"Windsor reaffirmed the authority of each state -- including Pennsylvania -- to define marriage as it sees fit," he said.

He noted the high court had let stand a portion of the federal law that expressly allows states to disregard same-sex unions granted outside their borders.

The roughly three-hour hearing occurred amid a series of rapid legal shifts in the landscape of marriage equality law. Since the Windsor decision last year, federal courts in eight states have overturned bans on same-sex marriage.

Unlike in many of those cases, Thursday's suit avoided a direct appeal for legalization of gay marriage in Pennsylvania.

Instead, it focused on the limited goal of state recognition of same-sex unions legally honored by other states.

Cara Palladino, 48, and Isabelle Barker, 42, the women at the center of the suit, sat in the front row flanked by a courtroom packed with supporters and marriage equality activists.

At the hearing's conclusion, Ms. Barker turned to her wife with a tentative smile before the couple walked out of the courtroom hand-in-hand.

Married in Massachusetts in 2005, the couple moved to Pennsylvania shortly after. They work at Bryn Mawr College and are raising a 5-year-old son in northwest Philadelphia.

"We're just living our lives and looking for a court to back us up," Ms. Palladino said Thursday. Ms. Barker added: "There's something very powerful about the right to have protection as a legally married couple."

The split between the two halves of Windsor -- its apparent preservation of state's rights wrapped in a sweeping broadside in defense of human rights -- divided the lawyers through much of Thursday's hearing.

Mr. Banks' argument often focused on broad proclamations of liberty and equality. Lawyers for Mr. Corbett, meanwhile, kept their case focused almost entirely on close readings of existing law and legal precedent.

Though Judge McLaughlin, an appointee of former President Bill Clinton, offered no indication Thursday of when she might rule, her opinion could become one of the first to address Pennsylvania's marriage laws since the Supreme Court's DOMA decision last year.

It is one of at least five similar challenges to some portion of the state's 1996 same-sex marriage ban wending through state and federal courts.

A second federal case -- filed in Harrisburg by 25 plaintiffs, including same-sex couples and their children -- seeks to overturn Pennsylvania's same-sex marriage ban entirely.

Meanwhile, in Commonwealth Court, the governor's administration is seeking to void scores of marriage licenses issued last year by officials to gay and lesbian couples in Montgomery County. A separate suit, filed by 21 of those couples, asks a state court to recognize their unions.

Pennsylvania is the only state in the Northeast that does not recognize same-sex unions -- despite support from nearly 57 percent of voters, according to recent polling.



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