Pennsylvania's marriage ban challenged as ACLU, Freedom to Marry boost efforts

Posted by Justin Snow
July 9, 2013 3:01 PM |

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Pennsylvania's same-sex marriage ban in facing an unprecedented challenge after the American Civil Liberties Union filed a lawsuit in federal court today alleging the law is unconstitutional.

Filed on behalf of 23 Pennsylvanians who either wish to marry in Pennsylvania or want the state to recognize their marriages performed elsewhere, the lawsuit filed in Harrisburg today comes less than two weeks after two landmark marriage equality rulings from the U.S. Supreme Court. 

"Pennsylvania's exclusion of same-sex couples from marriage infringes on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation," the lawsuit states. "But it cannot stand under any level of scrutiny because the exclusion does not rationally further any legitimate government interest. It serves only to disparage and injure lesbian and gay couples and their families."

The plaintiffs "come from all walks of life," according to the lawsuit, and include an "emergency room doctor, university professors, a truck driver, an executive at BNY Mellon, a psychologist, a dog trainer, state employees, lawyers, an artist, a stay-at-home mom, and retirees."

"We believe that 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 attorney Mark Aronchick of Hangley Aronchick Segal Pudlin & Schiller, who is working with the ACLU on the case. "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 Pennsylvania lawsuit was one of three announced by the ACLU Tuesday. In North Carolina, the ACLU will amend a lawsuit filed last year on behalf of six same-sex couples wishing to obtain second-parent adoptions of their children to also seek the right of same-sex couples to marry. In Virginia, the ACLU and Lambda Legal will file a marriage-equality lawsuit in coming weeks. 

"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 in a statement. "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.” 

The renewed legal push on multiple state fronts comes the same day Freedom to Marry announced an expansive 30-month plan to have a majority of Americans living in marriage-equality states by 2016.

"This irrefutable momentum confirms that the national strategy we have pursued is the strategy that will bring us to nationwide victory, and that full victory is within reach -- within years, not decades," said Evan Wolfson, Freedom to Marry president and founder, while announcing an initial investment of $500,000 in state marriage campaigns. "The key to winning is, as it has always been, that when we get to the Supreme Court with the next marriage cases, we go with more states and more support creating the climate for the justices then to do the right thing."

Under the leadership of Richard Carlbom as director of state campaigns, who was recently hired after he helped defeat an anti-gay constitutional amendment in Minnesota in November and then helped pass marriage-equality legislation earlier this year as head of Minnesotans United for All Families, Freedom to Marry will work to win marriage equality in Hawaii, Illinois, New Jersey and Oregon by 2014. Looking to Arizona, Colorado, Michigan, Nevada, New Mexico, North Carolina, Ohio, Pennsylvania and Virginia, the organization will assist in laying the groundwork to secure marriage equality by 2016. 

Nearly a third of the U.S. population now live in one of the 13 states or D.C. that permit same-sex marriage. 

As state campaigns continue, Wolfson has long argued that the issue of marriage equality will return to the Supreme Court until the justices hand down a ruling that affirms the right of same-sex couples to marry in all 50 states. In the meantime, a focus remains on achieving the critical mass of marriage-equality states and public support that encourage the justices to rule sweepingly. 

"We all believe the best way to maximize our chances of winning in court is to make sure political organizing and public education on the ground accompany the legal work," Wolfson said, referring to the three ACLU lawsuits. "It's our job working together to make the same strong case for the freedom to marry in the court of public opinion as our key advocates are making in the courts of law."

[Photo: Marriage equality supporters outside the U.S. Supreme Court (Credit: Todd Franson/Metro Weekly).]

Read the ACLU's Pennsylvania lawsuit here:

Whitewood v. Corbett -- Complaint


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