Federal Suit Filed in PA to Force State to Allow Same-Sex Marriage

Jul 9, 2013

Susan Whitewood, of Allegheny County, speaks during a news conference about American Civil Liberties Union's lawsuit against the state's gay marriage ban.
Credit Mary Wilson / 90.5 WESA

The American Civil Liberties Union is filing a federal lawsuit in Pennsylvania to make the state recognize gay couples.

The suit comes two weeks after the U.S. Supreme Court overturned the federal ban on gay marriage but left state prohibitions intact. Lawyers say this is the first federal case since to be filed challenging a state's gay marriage law.

The suit asks a federal judge to strike down the state's 1996 prohibition on gay marriage as a violation of the U.S. Constitution. It names 23 plaintiffs — gay and lesbian couples, one widow and two teenage daughters of a couple.

One plaintiff, Deb Whitewood, of Allegheny County, said her community accepts her commitment to her partner, Susan, and their three children.

"Our friends, our family, our church family, the kids and the teachers at my kids' school — they all recognize us as a true family and we feel that it's time the commonwealth of Pennsylvania did so as well," Whitewood said.

The suit names Gov. Tom Corbett among its defendants. His chief counsel is still reviewing the lawsuit.

Mark Aronchick, a lawyer with the firm assisting the ACLU on the case, noted Pennsylvania polls that show a majority of residences would support legal recognition of gay marriage.

"We welcome the opportunity to show the nation that the freedom to marry for same sex couples is nothing to fear and everything to celebrate," Aronchick said.

Pennsylvania would become the 14th state to legalize gay marriage if the lawsuit is successful. It also would force the state to recognize the legal marriages of all same-sex couples in other jurisdictions.

In the lawsuit, the ACLU said banning gay marriage satisfies no legitimate government or child welfare concerns of the state, since Pennsylvania judges routinely grant adoptions to same-sex couples that are viewed as in the best interest of the child.

"It serves only to disparage and injure lesbian and gay couples and their families," the lawsuit said.

For instance, the suit says, same-sex couples do not have access to a long list of legal and financial protections as do opposite-sex couples.

Those include an inheritance tax exemption for widows; an automatic power of attorney for spouses in health care decisions; damages and legal recourse under workers' compensation laws for a spouse who dies or is injured in the workplace; assistance programs for same-sex widows and widowers of military personnel and veterans; pension and survivor benefits for widows and widowers of public employees; Family Medical Leave Act provisions; and a spouse's Social Security retirement benefits.

The lawsuit was not spurred by the U.S. Supreme Court's three-week-old decision striking down part of the federal government's anti-gay marriage law that applies only to legally married same-sex couples seeking benefits from the federal government. But it does quote from the decision, saying that the barrier to marriage denies same-sex couples "a dignity and status of immense import."

Federal courts in California are so far the only ones that have said a state same-sex marriage ban violates the U.S. Constitution. But federal challenges are popping up in other states, including Nevada, Hawaii and Michigan.

Same-sex marriage is legal, or soon will be, in 13 states and the District of Columbia, representing about 30 percent of the U.S. population. Every state except Pennsylvania in the northeastern United States allows same-sex marriage except New Jersey, which allows civil unions. A 1996 Pennsylvania law defines marriage as a civil contract in which a man and a woman take each other as husband and wife, and it says same-sex marriages, even if entered legally elsewhere, are void in Pennsylvania. State law does not allow civil unions.

In Pennsylvania, recent polls show a majority are in favor of gay marriage. In 2012, the state voted for President Barack Obama, a Democrat who supports gay marriage, and in 2010 for Corbett, a Republican who supports a constitutional amendment to permanently ban it. Bills to legalize gay marriage have gone nowhere in recent years in the Legislature, and Corbett's predecessor, Democrat Ed Rendell, did not favor the legalization of same-sex marriage while in office.

The law passed in 1996 with overwhelming majorities in the state Legislature. During debate, the lawmaker who wrote the amendment, Republican House Rep. Allan Egolf, said: "This amendment does not take anything away from anyone that they now have. It is simply an expression of Pennsylvania's traditional and longstanding policy of moral opposition to same-sex marriages."

One opponent, then-state Sen. Allyson Schwartz — now a Democratic member of Congress who plans to challenge Corbett in next year's election — told colleagues that the bill discouraged tolerance, privacy and committed relationships.

"Our country was founded on the principles of liberty and justice for all," Schwartz told colleagues. "It is our responsibility, in fact our obligation, as elected officials to assure a society that prohibits discrimination against any class of people."

The Associated Press contributed to this report.