UPDATE, May 20, 3:25 p.m.: On Tuesday afternoon, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania overturned the state’s ban on same-sex marriage. From the ruling:
Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. … We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.
Judge Jones issued an order that prevents any stay for the ban. The ruling takes effect immediately, according to Politics PA.
Ten years after Massachusetts became the first state to legalize same-sex marriage, a federal judge is expected to announce a decision on same-sex marriage in Pennsylvania by close of business Tuesday.
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The Pennsylvania case, Whitewood v. Wolf, was filed in the wake of United States v. Windsor, the U.S. Supreme Court ruling that knocked down part of the federal Defense of Marriage Act (DOMA). The Windsor decision paved the way for challenges to state bans on same-sex marriage, often referred to as “mini-DOMAs.”
Pennsylvania is one of 36 states with a mini-DOMA, and the only state in the Northeast that doesn’t allow same-sex marriages or civil unions.
After the Windsor decision last year, the American Civil Liberties Union and attorneys from the law firm Hangley Aronchick Segal Pudlin & Schiller filed a federal lawsuit on behalf of 21 plaintiffs, all Pennsylvania residents who either want the right to marry in Pennsylvania or who are already married in other states and want the state to recognize their union and grant all associated rights.
The plaintiffs allege that Pennsylvania’s Defense of Marriage Act and refusal to recognize out-of-state same-sex marriages violates the fundamental right to marry as well as the Equal Protection Clause of the Fourteenth Amendment.
Last year, just two days after Whitewood was filed in federal court, Pennsylvania Attorney General Kathleen Kane announced she would not defend Pennsylvania’s ban.
“I cannot ethically defend the constitutionality of Pennsylvania’s (law banning same-sex marriage), where I believe it to be wholly unconstitutional,” Kane told a crowd at the Constitution Center in Philadelphia at the time. “Denying equality is the very definition of discrimination.”
Republican Gov. Tom Corbett does not support same-sex marriage, though last year, in an apology issued after likening same-sex marriage to incest, Corbett conceded that it is “an important issue and the question of its legal status is one that will be heard and decided upon its merits, with respect and compassion shown to all sides.”
Initially the Whitewood trial was scheduled for June 9. But last month, plaintiffs filed a motion requesting summary judgment—meaning skipping trial. The judgment was granted because state attorneys do not dispute the facts of the plaintiff’s case. The disagreement is over whether the state ban is constitutional, which largely rests on whether a federal judge finds that the ban violates the Equal Protection Clause of the Fourteenth Amendment and discriminates on the basis of sexual orientation.
In lieu of a trial, every Whitewood plaintiff submitted written testimony in the form of a declaration. These documents tell the story of Pennsylvania residents denied the legal and financial protection and, in their view, the dignity and respect that comes with marriage.
Deb and Susan Whitewood, of the Pittsburgh area, are the namesake plaintiffs. Deb Whitewood explained to the court that the couple are devout Christians whose romantic relationship initially caused “soul-searching.” They celebrated their commitment in a union ceremony at their church back in 1993. Deb’s maiden name is White, and Susan’s is Underwood; they combined their surnames to create a new family name. Today, they have three children, a dog, two cats, and a tank of fish.
They held a wedding ceremony in Vermont in 2001, but still “prayed that someday we would be able to get married in our home state, Pennsylvania.”
After the federal government announced it would recognize same-sex marriages, they traveled to Maryland, where they were married in a legal ceremony.
Even though an out-of-state marriage would not be recognized in Pennsylvania, the ability to file federal taxes as married would save us several thousand dollars each year, and this is money we very much could use to help pay for our daughter’s upcoming college expenses.
Whitewood argues that after being together 22 years and building a family around love and faith, they—not the government—should be able to determine if they should wed. Practically speaking, Whitewood worries about medical privileges, but the burden is also emotional. She wrote that checking the “unmarried” box on forms “cuts like a knife.”
Another plaintiff, David Palmer, submitted testimony about how it feels to travel through states with marriage equality to return home to Pennsylvania, where his marriage is not recognized:
Every single time we cross the Delaware River to come home, my heart drops a little as I remember that here, in our home, we are not married. I don’t think we deserve that.
And then there’s the heartbreaking testimony of former Philadelphia schoolteacher Maureen Hennessey. Hennessey and her partner, Mary Beth McIntyre, became a couple in 1984 and raised three children together. They always hoped to marry in their local Quaker meeting house among friends and family. Instead, they married in Massachussets in 2011, after McIntyre was diagnosed with terminal cancer. Mary Beth passed away last year. Now, because of Pennsylvania law, Hennessey is subject to taxes that create economic hardship that only amplifies her grief.
“While Mary Beth was suffering the physical and emotional pain of end stage cancer, she had the additional burden of worrying about how I would manage financially after she was gone,” Hennessey testified in her declaration.
They paid out-of-pocket for an attorney to draw up paperwork replicating some benefits that automatically come with marriage, but despite this arduous and expensive process, it’s not possible to recoup all the basic legal protections available to married people.
“The fact that our marriage isn’t recognized in Pennsylvania made it much harder to advocate for Mary Beth during her illness,” Hennessey testified.
In response to the plaintiffs’ written testimony, state attorneys filed briefs in a final attempt to defend the state ban on same-sex marriage.
“Plaintiffs cannot identify concrete state action … that allegedly has caused them harm,” they argued. Instead, “plaintiffs rely primarily on speculation and conjecture with regard to harm that may occur in the future.”
Even if U.S. District Judge John E. Jones III of the Middle District of Pennsylvania rules same-sex marriage legal in Pennsylvania on Tuesday, recent history shows that the ruling may be stayed, pending an appeal.