PhillyGayLawyer in Legal Intelligencer: Decision Day in Pennsylvania’s Fight for Marriage Equality

By | May 12, 2014

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The fight for marriage equality in Pennsylvania may finally be coming to an end. There are multiple same-sex marriage cases that have been filed in Pennsylvania, but the American Civil Liberties Union and Hangley Aronchick Segal Pudlin & Schiller’s Whitewood v. Wolf, No. 13-1861-JEJ, filed a motion for summary judgment April 21 that was not contested. The case was brought on behalf of 21 plaintiffs (10 couples and one child) alleging that Pennsylvania’s state Defense of Marriage Act (DOMA) violated the Equal Protection Clause of the 14th Amendment and argues that the law substantially effects the fundamental right to marry and discriminates based on sex and sexual orientation. Originally set to be heard in June, we could have a ruling from U.S. District Judge John E. Jones of the Middle District of Pennsylvania as early as today.

Oral arguments in a different case that asks Pennsylvania to recognize same-sex marriages legally performed in other states and countries, Palladino v. Corbett, No. 13-5641, are set to be heard by Eastern District Judge Mary McLaughlin in Philadelphia on Thursday. It is entirely possible that the judges could time a coinciding or joint ruling, but regardless: Pennsylvania may finally recognize gay marriage very soon. But before you pop the corks in celebration, it’s important to know what is happening in other states to discern what will most likely happen here in Pennsylvania.

The first post-DOMA state to fall was New Jersey. Back in Feb. 17, 2012, a bill that would have legalized same-sex marriage in New Jersey was vetoed by Gov. Chris Christie. On Sept. 27, 2013, a New Jersey Superior Court ruling led to its legalization on October 2013. Christie originally filed an appeal to the New Jersey Supreme Court, but shockingly withdrew it after the court declined to issue a stay on the lower court’s ruling. New Jersey began issuing same-sex marriage licenses Oct. 21, 2013, and several people that I’m close with and love, as well as others I’ve never met, were finally recognized as legally married.

In Hawaii, there was a state DOMA in effect since 1993 (similar to ours here in Pennsylvania). A lot of people aren’t aware of it, but that legislation was the basis for the United States’ Defense of Marriage Act that was finally struck down last year in Windsor v. United States, 570 U.S. 12 (2013). In October and November 2013, both houses of the Hawaii legislature enacted legislation legalizing same-sex marriage that took effect Dec. 2, 2013, putting the rainbow back into the “Rainbow State.”

In President Obama’s home state of Illinois, the General Assembly passed a bill legalizing same-sex marriage Nov. 5, 2013. The House of Representatives narrowly passed an amended version of an earlier Senate bill 61-54-2 and the Senate took only an hour to approve the House version 32-21. Governor Pat Quinn signed the legislation Nov. 20, 2013, to take effect June 1, 2014. On Feb. 21, however, at the appeal of LGBT couples where one spouse might not make it to June 1 due to health reasons, U.S. District Judge Sharon Johnson Coleman of the Northern District of Illinois ruled that “there is no reason to delay further when no opposition has been presented to this court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry.” Cooke County, which includes Illinois’ largest city, Chicago, distributed its first marriage license to a same-sex couple an hour later, with other counties following suit.

New Mexico was the subject of an earlier article I wrote in The Legal, published Sept. 26, 2013, as like D. Bruce Hanes of Montgomery County in Pennsylvania, it had clerks of the register of wills “go rogue,” so to speak. In 2013, certain New Mexico counties, either on the basis of a court decision or their clerks’ own volition, began issuing marriage licenses to same-sex couples. In August 2013, Dona Ana County and Santa Fe County began issuing same-sex marriage licenses, the latter through a court order. Although opponents filed for an injunction, it was shot down and same-sex marriage expanded to a total of eight New Mexico counties. On Dec. 19, 2013, that state Supreme Court ruled unanimously that, effective immediately, same-sex marriage would be permitted throughout the state.

And then came rulings in states that I certainly did not see coming: Utah, Oklahoma and Texas surprised the country. In Utah, the ban on same-sex marriage was ruled unconstitutional Dec. 20, 2013, in Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013). Celebrating was sadly short-lived as the ruling was stayed by the U.S. Supreme Court on Jan. 6 and is currently under appeal in the U.S. Court of Appeals for the Tenth Circuit. Oral arguments were heard April 10, but no decision has yet been reached. In Oklahoma, the ban on same-sex marriage was ruled unconstitutional in U.S. district court Jan. 14 through Bishop v. Oklahoma ex rel. Holder, No. 04-CV-848-TCK-TLW. The ruling was immediately stayed pending resolution of Utah’s Kitchen. An appeal was heard by the same panel of judges as Utah’s case in the Tenth Circuit, but with separate briefing and oral argument April 17. A decision from the Tenth Circuit is expected in the coming weeks for both Utah and Oklahoma. In the Texas same-sex marriage case De Leon v. Perry, 5:13-cv-00982, a preliminary injunction was granted in the U.S. district court Feb. 26. The court reasoned that Texas’ ban on same-sex marriage is unconstitutional and that continued enforcement would cause same-sex couples irreparable harm. The district judge issued a stay during the states’ interlocutory appeal to the Fifth Circuit. The plaintiffs filed a motion for an expedited hearing of the appeal April 14, and we are waiting to hear on this case as well.

Michigan’s path to same-sex marriage equality has been equally as interesting. Michigan’s ban on same-sex marriage was ruled unconstitutional March 21 after a nearly two-week trial in DeBoer v. Snyder, Civil Action No. 12-CV-10285. Same-sex marriage licenses were issued to 323 couples the morning of March 22 before a permanent injunction against enforcement of same-sex marriage bans was ordered that day. An appeal was subsequently filed in the Sixth Circuit. The order is stayed indefinitely, i.e., until appeals have been concluded, and an expedited appeal has been ordered on a 2-1 appeal panel vote. Thankfully, while Michigan exists in limbo, its U.S. attorney general has come out stating that the federal government will recognize those 323 same-sex marriages licenses issued that morning, even though the state will not.

Virginia’s ban on same-sex marriage was ruled unconstitutional Feb. 13 in Bostic v. Rainey, Civil No.2:13cv395. That ruling was stayed the same day pending conclusion of the appeal in the Fourth Circuit, with oral argument tentatively set for this week, the exact same week we expect to hear a decision in the Whitewood Pennsylvania marriage equality case.

So, after that lengthy, chronological assessment of the marriage equality cases post-DOMA, what does this mean for Pennsylvania? What we know to be true is that every ruling since Utah has been stayed pending appeals. This will most likely occur in Pennsylvania as well. This would send it to the Third Circuit, in which no other rulings are currently pending. We do not know what the Third Circuit will do from there—it could throw it out immediately and grant Pennsylvania marriage equality or send it up to the U.S. Supreme Court.

Pennsylvania is the only state in the Northeast that doesn’t allow marriage equality. It is entirely possible that this could be a deciding factor in it not being appealed. Gov. Tom Corbett, who likened gay marriage to incest back in October 2013, could appeal, but since the state defendants have agreed to summary judgment in the case, one would hope this wouldn’t be the case. This could be the historical time that so many Pennsylvania citizens have long awaited. Windsor has created a domino effect around the nation and there is no turning back as judge after judge decides to stand on the right side of history. These rulings are all leading up to an inevitable return to the U.S. Supreme Court where they will hopefully echo their ruling in Windsor and declare marriage equality throughout the country. Regardless, I had the pleasure of speaking personally with Edie Windsor of the aforementioned Windsor case during her recent trip to Philadelphia who said that she will be returning back to her hometown to celebrate with us all. Whether the decision is appealed or not: decision day in Pennsylvania’s fight for marriage equality is upon us, and same-sex marriage will be legalized in Pennsylvania and eventually the entirety of the United States.

Read more: http://www.thelegalintelligencer.com/id=1202654940688/Decision-Day-in-Pennsylvania%27s-Fight-for-Marriage-Equality#ixzz31iPVrDGH

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