Rethinking Same-Sex Marriage in Pennsylvania Post-Windsor

September 3, 2013 The Legal Intelligencer

Reprinted with permission from the August 30 issue of The Legal Intelligencer. (c) 2013 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

The U.S. Supreme Court's decision in United States v. Windsor, 570 U.S. ___ (2013),ratcheted up an already rapidly evolving legal environment for same-sex marriage in Pennsylvania. Having temporarily suspended his ruling pending the Supreme Court's decision, U.S. District Judge C. Darnell Jones II of the Eastern District of Pennsylvania rendered a decision on Cozen O'Connor v. Tobits, No. 11-0045,shortly after the release of Windsor. Jones ruled in favor of Jennifer Tobits, the same-sex spouse of a deceased Cozen O'Connor attorney, declaring her the spouse beneficiary of the deceased's profit-sharing plan. Though the opinion was narrowly construed to avoid Pennsylvania law, it was nevertheless an example of the federal court interpreting a federal statute (the Employee Retirement Income Security Act) to be "gender neutral" in its definition of "spouse."

The Windsor decision bolstered the filing of Whitewood v. Corbett. On July 9, the American Civil Liberties Union, with volunteer counsel from Hangley Aronchick Segal Pudlin & Schiller, filed a complaint in the Middle District of Pennsylvania on behalf of 23 Pennsylvanians.

The plaintiffs in Whitewood are a diverse group of individuals affected by the Pennsylvania statute that limits marriage to one man and one woman. Some are in same-sex relationships and wish to marry in Pennsylvania. Others are same-sex couples previously married outside of Pennsylvania and wish to have their marriages recognized here. One plaintiff is a widow who is not provided the protections available to surviving spouses in Pennsylvania because her spouse was a woman. And two of the plaintiffs are minor children whose same-sex parents are not permitted to marry in Pennsylvania.

The Whitewood case names Governor Tom Corbett, Attorney General Kathleen Kane, Pennsylvania Secretary of Health Michael Wolf, Washington County Register of Wills Mary Jo Poknis and Bucks County Register of Wills Donald Petrille Jr. as defendants in the action.

Just two days after the Whitewood case was filed, Kane announced her office would not defend the Pennsylvania statute, stating, "I cannot ethically defend the constitutionality of Pennsylvania's version of [the Defense of Marriage Act] as I believe it to be wholly unconstitutional." The Governor's Office released an announcement in response, stating he was "surprised that the attorney general, contrary to her constitutional duty under the Commonwealth Attorneys Act, has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs." On July 20, Corbett's office confirmed it will defend against the lawsuit.

The suit takes aim at the portion of Pennsylvania's marriage law that limits marriage to between one man and one woman. Specifically, 23 Pa.C.S. §1102 defines marriage as a "civil contract by which one man and one woman take each other for husband and wife." Additionally, 23 Pa.C.S. §1704 declares any "marriage between persons of the same sex ... entered into in another state or foreign jurisdiction, even if valid where entered into" to be void in the state of Pennsylvania.

Relying on Windsor and other cases addressing same-sex marriage from across the country, the Whitewood complaint argues that: (1) same-sex and opposite-sex couples are similarly situated for purposes of marriage; (2) the exclusion of same-sex couples from marriage causes substantial harm to the couples and their families; (3) excluding same-sex couples from marriage is not rationally related to a legitimate government interest, especially with a legal standard of heightened scrutiny; (4) the exclusion of same-sex couples from the right to marry is a violation of the due process clause of the 14th Amendment of the U.S. Constitution; and (5) the prohibition against same-sex marriage constitutes discrimination under the equal protection clause of the U.S. Constitution. The suit seeks a declaratory judgment that the provisions within the Pennsylvania marriage law violate the Constitution's equal protection clause and due process clause, seeks an injunction to prevent the defendants from denying the plaintiffs and all other same-sex couples the right to marry in Pennsylvania, and requires the defendants to recognize same-sex marriages performed in other jurisdictions.

Around the time that Whitewood was filed, a couple from the Limerick area of Montgomery County approached the Montgomery County Democratic Party about whether Register of Wills D. Bruce Hanes would issue a marriage license to them. Though the couple briefly backed away from seeking a license July 23, Hanes nevertheless announced his intention to issue same-sex marriage licenses. That initial couple is now among more than 100 same-sex couples who have been issued marriage licenses in Montgomery County.

A challenge to Hanes' decision was brought by the Pennsylvania Department of Health on July 30 when it filed an action in mandamus in the Commonwealth Court, Commonwealth v. Hanes. The department seeks to force Hanes, in his capacity as clerk of the Montgomery County Orphans' Court, to comply with Pennsylvania's marriage law and immediately cease issuing marriage licenses to same-sex couples or accepting for registration any marriage licenses of same-sex couples who formalized their marriage. The Department of Health cites Hanes' actions as "undermining the uniformity in the administration of the marriage law intended by the General Assembly, and risks causing serious and limitless harm to the public throughout the commonwealth and beyond." According to the filing, the issuance of same-sex marriage licenses not only violates the marriage law, which the Department of Health argues is a reflection of the state's established public policy on marriage, but Hanes is also interfering with "the proper performance of the powers, duties and responsibilities that the law assigns to and imposes upon the Department of Health." The Department of Health relies on an "implicit" power conferred upon it through the statutory language of the marriage law and the Vital Statistics Law of 1953 to seek enforcement and Hanes' adherence to them.

Hanes filed preliminary objections contesting the Department of Health's standing to bring the action and the Commonwealth Court's jurisdiction over the case. The department's argument in favor of standing is that Hanes' failure to follow the marriage law and Pennsylvania's 1996 amendment (i.e., Pennsylvania's DOMA) complicates its duties as record-keepers. Hanes' pending preliminary objections to the department's amended petition argue that the department not only lacks standing to bring the action, but it fails to state a claim for which it may be granted relief.

Hanes' jurisdictional argument is predicated on 42 Pa.C.S.A. § 5103(a) and 42 Pa.C.S.A. § 761, which dictate that in the absence of an appeal to the Commonwealth Court from a lower court, the matter should be heard by the Supreme Court. Hanes also argues that the department is not actually adverse to him and instead fails to demonstrate a clear legal right to compel him to fulfill the dictates of his office in a particular way. Hanes' preliminary objections use his refusal to adhere Pennsylvania's legal definition of marriage to directly confront the constitutionality of Pennsylvania's DOMA. He argues that the department lacks the clear legal right to demand his compliance to a law that is arbitrary, suspect and would not survive a strict scrutiny analysis under the equal protection clause.

A hearing on the department's amended application for summary relief is scheduled for September 4. Recently, more than two-dozen couples who received their marriage licenses from Montgomery County sought to intervene in the case and become parties to the action. Depending on the outcome of the hearing September 4, the merits of Hanes' objections will be considered, including his request for removal of the case to the Pennsylvania Supreme Court. If the Supreme Court accepts the case, the possibility exists that it could become the opportunity for the court to consider the constitutionality of Pennsylvania's DOMA and, by extension, the validity of the marriage licenses issued by Hanes and same-sex marriage in Pennsylvania, generally.

The momentum of recent court actions may be tied closely to Windsor. However, pockets of areas throughout Pennsylvania have been addressing same-sex rights for the past few years. Municipalities such as Pittsburgh, Allentown, State College, Harrisburg and Philadelphia have passed various measures recognizing domestic partnerships (Allentown, State College and Philadelphia); extending tax credits to companies that provide health care benefits to domestic partners (Philadelphia); or requiring city contractors to extend spousal benefits to domestic partners (Philadelphia and Pittsburgh). Harrisburg has had a life partner registry in place since 2008 designed to "reliably ascertain whether an employee's designee listed on the life partnership registry and other dependents are eligible for ... benefits." Recently, two mayors of towns in Centre County began marrying same-sex couples.

Evidence of eroding support for Pennsylvania's DOMA may also be interpreted from the bipartisan legislation recently introduced in the Pennsylvania Senate seeking to amend the 1955 Pennsylvania Human Relations Act to prohibit discrimination of individuals based on sexual orientation and gender identification. Within the near future, the localized and state-level political efforts may be radically shaped by the outcomes of Whitewood and the Department of Health.