Same-sex Pa. couples file federal suit over state's gay marriage ban

By Jon Campisi | Jul 10, 2013

Weeks after the U.S. Supreme Court ruled parts of the federal Defense of Marriage Act

Weeks after the U.S. Supreme Court ruled parts of the federal Defense of Marriage Act

unconstitutional, a team of plaintiffs in the Keystone State have gathered to challenge the commonwealth’s own ban on same-sex marriage.

The American Civil Liberties Union, its Pennsylvania chapter and area civil rights attorneys have joined forces to represent 21 Pennsylvanians who either wish to marry in the state or desire to have the commonwealth recognize their out-of-state marriages.

The lawsuit, filed July 9 at the federal court in Harrisburg, claims that the Pennsylvania Defense of Marriage Act, which was passed in the mid-1990s, violates both the plaintiffs’ fundamental right to marry and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

The civil action comes after the June 26 decision in United States v. Windsor in which the U.S. Supreme Court struck down Section 3 of DOMA as a violation of the Due Process Clause of the Fifth Amendment.

Talk of challenging various states’ own versions of DOMA or constitutional amendments banning same-sex marriage has taken place nationwide in the just under two weeks since the Windsor decision was handed down.

That decision requires federal recognition for gay and lesbian couples who are married in their home states.

As for the Pennsylvania case, the ACLU and lawyers with the Philadelphia firm Hangley Aronchick Segal Pudlin & Schiller said they assembled a class of plaintiffs from various walks of life, including an emergency room doctor, a nurse, a teacher, university professors, a truck driver, a psychologist, attorneys, state employees, and veterans, to show that the problems associated with same-sex marriage bans affect vast segments of the population.

“The plaintiffs reflect Pennsylvania’s rich diversity: they are African-American, Caucasian, Latino, and Asian; they are Methodist, Baptist, Catholic, Quaker, Jewish, Buddhist, and secular,” reads an ACLU of Pa. news release announcing the lawsuit. “Many have been together for decades, and some are raising children together. The situations faced by these couples are similar to those faced by thousands of same-sex couples in Pennsylvania who are being denied the basic rights that are afforded by marriage.”

The plaintiffs in the case argue that the court should closely scrutinize what they term the unfair treatment under Pennsylvania’s Defense of Marriage Act, which discriminates on the basis of gender and sexual orientation.

“The couples in this lawsuit are united by love, family and commitment, which are the cornerstones of marriage. They are married in every sense of the word, except one – under Pennsylvania law,” Witold Walczak, the legal director of the ACLU of Pa., said in a statement. “Today’s suit seeks to give Pennsylvania’s same-sex couples the freedom to marry.”

Mark Aronchick, one of the plaintiffs’ attorneys from Hangley Aronchick Segal Pudlin & Schiller, said in his own statement that Pennsylvania’s DOMA does not appear to withstand any level of legal scrutiny because “excluding same-sex couples from marriage does not further any legitimate government interest.

“It serves only to insult and hurt lesbian and gay couples and their families,” Aronchick stated. “We have filed this case today because these families deserve the security of knowing that, in times of crisis, their loved ones will be protected and provided for.”

The lead plaintiffs in the case are Allegheny County residents Deb and Susan Whitewood, along with their teenage daughters, Abbey and Katie.

The women, who consider themselves devout Christians, are also raising a 2-year-old adopted son.

They have lived together in a committed relationship for more than two decades.

The couple had a “holy union” ceremony at their church back in 1993, after which they changed their last name to Whitewood, a combination of both of their previous surnames, according to the ACLU.

Less than 10 years later, they entered into a civil union in Vermont.

But neither the church proceeding in Pennsylvania nor the secular ceremony in New England has offered them the same legal protections afforded to opposite-sex couples in their home state.

“Despite their demonstrated commitment to each other, Pennsylvania law treats them as legal strangers, and they know that they and their family do not have the security or the dignity of a legally recognized marriage,” states the news release from the ACLU of Pa.

In a statement, Reggie Shuford, the executive director of the ACLU’s Pennsylvania chapter, called it “shameful” that as the “cradle of American liberty,” a state like Pennsylvania continues to refuse to legally recognize as legal a committed relationship between loving partners of the same gender.

“It’s wrong that the state where these couples live, work, and raise families treats them as second-class couples,” Shuford said.

While the lead plaintiffs hail from the greater Pittsburgh area, other plaintiffs in the suit reside in Philadelphia, the State College region, Harrisburg, Chester County in southeastern Pennsylvania, and Northampton County in the northeastern part of the state.

Leslie Cooper, of the ACLU’s Lesbian Gay Bisexual and Transgender Project, said in a statement that even before the recent U.S. Supreme Court decision in Windsor, Americans have been shifting their attitudes toward same-sex marriage.

The overwhelming public acceptance of gay nuptials has propelled civil rights lawyers to continue to fight for the rights of those who live in states that shun the practice, she stated.

“Whether it’s through litigation, through the legislature, or at the ballot box, we will continue to work to broaden the number of states where same-sex couples can marry,” Cooper said.

The defendants named in the case are Pennsylvania Gov. Tom Corbett, Attorney General Kathleen Kane, Health Department Secretary Michael Wolf, Washington County Register of Wills Mary Jo Poknis, and Bucks County Register of Wills and Orphans’ Court Clerk Donald Petrille, Jr.

Poknis is named as a defendant because of her refusal to issue a marriage license to Deb and Susan Whitewood when the lead plaintiffs applied for one on June 24 of this year.

Petrille similarly is listed as a defendant because of his apparent refusal to issue a marriage license to plaintiffs Angela Gillem and Gail Lloyd because they are a same-sex couple.

The plaintiffs seek declaratory and injunctive relief, as well as attorneys’ fees and litigation costs.

The complaint states that the commonwealth’s exclusion of same-sex couples from marriage adversely impacts the plaintiffs and other Pennsylvania gay couples in significant ways, namely by excluding them from legal protections offered to opposite-sex couples.

For example, while straight married couples are exempt from an inheritance tax provided to widows, homosexual couples are not.

Pennsylvania also currently denies many federal protections afforded to married couples such as the ability to take time off work to care for a sick spouse under the Family and Medical Leave Act.

“Our courts and our society have discarded, one by one, marriage laws that violated the Constitution’s mandate of equality, such as anti-miscegenation laws and laws that denied married women legal independence and the right to make decisions for themselves,” the lawsuit reads. “History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution.”

The suit says that Pennsylvania’s discriminatory treatment is subjected to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation.

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