Gay marriage: Lawsuit, first since DOMA ruling, targets Pennsylvania ban

The ACLU, on behalf of 10 same-sex couples and others, filed the suit, which cites language from the majority opinion in the DOMA case in asking a US judge to strike down the Pennsylvania ban.

Marc Levy/AP
American Civil Liberties Union lawyer Witold J. Walczak speaks on the steps of the Capitol in Harrisburg, Penn., alongside many of the 23 men, women, and children who are plaintiffs in a lawsuit seeking to overturn a state law effectively banning same-sex marriage in Pennsylvania, on Tuesday, July 9.

The American Civil Liberties Union filed a suit Tuesday on behalf of 10 same-sex couples, two children, and a lesbian widow asking a federal judge to strike down Pennsylvania’s ban on same-sex marriage.

The lawsuit comes less than two weeks after the US Supreme Court invalidated the federal Defense of Marriage Act (DOMA) and opened the way for California to resume same-sex marriages.

The suit is the first of several lawsuits expected at the state level in the wake of the DOMA decision and cited language from the majority opinion written by Justice Anthony Kennedy.

The case was filed in federal court in Harrisburg, Pa., and was assigned to US District Judge John Jones. Judge Jones is a 2002 appointee of then-President George W. Bush.

If the suit is successful, Pennsylvania would become the 14th state to recognize same-sex marriage through either a court ruling or legislative action. Similar legal challenges are expected soon in North Carolina and Virginia.

The Pennsylvania suit seeks to take the legal battle over same-sex marriage one step further than the Supreme Court was willing to go last month in its landmark ruling in the DOMA case.

The plaintiffs argue that Pennsylvania’s marriage law denies them the ability to exercise a “fundamental right” to marry regardless of gender or sexual orientation.

The Supreme Court has held that marriage is a fundamental right in unions between a man and a woman, but the high court has not yet addressed whether same-sex couples have a fundamental right to marry.

“The Supreme Court has long recognized that marriage is a fundamental right and that choices about marriage, like choices about other aspects of family, are a central part of the liberty protected by the Due Process Clause,” the Pennsylvania suit says in part.

“Pennsylvania law denies the plaintiff couples and other same-sex couples this fundamental right by denying them access to the state-recognized institution of marriage and refusing to recognize the marriages they entered into in other states.”

The lawsuit continues: “The Commonwealth can demonstrate no important interest to justify denying the plaintiff couples this fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate interest at all.”

The suit also challenges the Pennsylvania marriage statute on grounds that it discriminates against same-sex couples by treating them differently than opposite-sex couples who are allowed to marry and enjoy the benefits of marriage.

Evoking the language of Justice Kennedy’s opinion, the lawsuit says the exclusion of gay men and lesbians from marriage in Pennsylvania serves no compelling purpose other than to injure same-sex couples and their families.

The exclusion stigmatizes children in families headed by same-sex couples, the lawsuit says.

According to the 2010 census, there are more than 6,000 same-sex couples raising children in Pennsylvania.

The lead plaintiffs in the case are Deb and Susan Whitewood, who have lived together in a committed relationship for 22 years. They live in Bridgeville in Allegheny County with their three children. They have two daughters, ages 16 and 15, and a two-year-old son.

Susan Whitewood works as a human resources executive at the BNY Mellon bank, and Deb Whitewood is a stay-at-home mom, according to the suit.

The lawsuit says that same-sex couples are similarly situated as opposite-sex couples for purposes of marriage.

“Like opposite-sex couples, same-sex couples build their lives together, plan their futures together and hope to grow old together,” the suit says. “Like opposite-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness.”

“We only want what every married couple wants – to express our love and commitment in front of friends and family, and the security and protections that only marriage provides,” Deb Whitewood said in statement after the suit was filed.

“Our life is built around our relationship and the family we have made,” she added.

The Pennsylvania law restricts same-sex couples in two ways. It limits marriage to a man and a woman. It also bars recognition by the state of same-sex marriages performed in other states that currently recognize such unions.

“We believe this law cannot stand under any level of 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,” said Mark Aronchick, a lawyer in Philadelphia who filed the suit along with the ACLU.

“In the past few years, we have seen an astonishing and welcome shift toward Americans embracing the idea that married same-sex couples and those who wish to marry should not be regarded as less than any other family,” said Leslie Cooper of the ACLU Lesbian Gay Bisexual and Transgender Project.

“Whether it is 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,” she said.  

The case is Whitewood v. Corbett (13cv1861).

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