Deciding to strike in the exuberant wake of the recent Supreme Court ruling that ended in a partial victory for the cause of same-sex marriage, the American Civil Liberties Union of Pennsylvania -- aided by volunteer counsel -- has filed a federal lawsuit aimed squarely at Pennsylvania's version of the Defense of Marriage Act. Good luck.
As the first case to be filed against such a state law since the high court's June ruling, the lawsuit is a bold statement that outlines injustices suffered by real people whom this commonwealth refuses to allow to marry. The plaintiffs include 10 couples, two minor children and a widow, with the lead plaintiffs being Deb and Susan Whitewood of Bridgeville and their two teenage daughters.
But the sympathy invited by these personal situations doesn't change the context. What Judge Anthony Kennedy wrote in his majority opinion in U.S. v. Windsor was that it was up to the states to define marriage. His ruling was about the unconstitutionality of denying federal benefits to gay couples married in states that approve such unions. He stopped short of declaring that laws banning gay marriage were themselves unconstitutional.
The problem with this lawsuit is that Pennsylvania has defined marriage. In 1996, it amended the law to state explicitly that marriage was limited to couples of one man and one woman. It also withdrew recognition of marriages between persons of the same sex entered into in another state or foreign jurisdiction.
This second part of the law, a striking departure from the usual practice of recognizing out-of-state marriages, might possibly give rise to a decent argument before a federal judge.
But the main target -- overturning the ban on gay marriage in Pennsylvania -- may be wishful thinking. Like it or not, Pennsylvania did in 1996 what Justice Kennedy said in 2013 was its right. Even if the ACLU's counsel prevails before one judge, the case will be appealed and it seems highly unlikely that this Supreme Court is going to change its opinion anytime soon. Still, the decision of state Attorney General Kathleen Kane not to defend the marriage law may help the lawsuit's chances.
In the meantime, the best remedy would be to work for lawmakers who are progressive enough to change the law in the place where it was written, admittedly a challenge in Pennsylvania.
Marriage for same-sex couples has been making steady progress, and the more states that have enacted, it the more the American people have become tolerant. The main benefit of the ACLU's lawsuit may be to cheer up those who are tired of waiting, but who may have to wait longer.opinion_editorials