There is much that makes Pennsylvania stand out among its forty-nine sister-states. Not only is it home to Philadelphia, our nation’s birthplace (and whose cheesesteaks people willingly drive hours to devour), you will also find America’s most livable city, Pittsburgh—a city whose people bleed black and gold, no matter the season or the sport.
But, as the saying goes, Pennsylvania is “Philadelphia in the east, Pittsburgh in the west, and Alabama in the middle.” Sandwiched between two democratic factions, Pennsylvania’s strong conservative presence in the middle of the state has contributed to another of the state’s distinguishing features, albeit one in which (hopefully) significantly fewer people take pride: Pennsylvania remains the only state in the northeastern United States not to recognize either same-sex marriages or civil unions. Indeed, although Pennsylvanians helped to elect and re-elect Barack Obama as President of the United States, and even though more than half of all Pennsylvanians support same-sex marriage, pro same-sex marriage laws have been unable to gain real momentum here in “Pennsyltucky.”
On an otherwise-ordinary Wednesday morning this past June, however, the legal status of same-sex marriages—both in Pennsylvania and elsewhere—and federal recognition of those marriages, teetered on the precipice of change. After two suspense-filled mornings waiting for the United States Supreme Court to announce its opinions in Hollingsworth v. Perry (challenging the constitutionality of California’s Proposition 8 and same-sex marriage generally) and United States v. Windsor (deciding the constitutionality of Section 3 of the federal Defense of Marriage Act (“DOMA”), we waited to hear whether, to borrow from Justice Ginsburg, our nation’s “skim-milk marriages” would be made whole, further diluted, or end up somewhere in between. Here in Pittsburgh, supporters of marriage equality gathered downtown—enormous rainbow flag in tow—poised to either “riot or rejoice” the decisions. Coincidentally, or perhaps not, Wednesday, June 26, 2013 was ten years to the date since the Supreme Court had stricken down laws criminalizing sodomy, in an opinion emphasizing respect for individuals’ private sexual lives and choices.
IF THE SUPREME COURT AGREES WITH THE ARGUMENT THAT PENNSYLVANIA’S LAWS PROHIBITING SAME-SEX MARRIAGE
DISCRIMINATE ON THE BASIS OF SEX, THERE IS LITTLE DOUBT THAT ALL SIMILAR STATE LAWS WILL ULTIMATELY BE DEEMED UNLAWFUL.
The Court did not make us wait long for the news. Shortly after 10 AM, we learned that two 5-4 votes had transformed our nation from one in which no same-sex marriage was valid in the eyes of the federal government, and where same-sex couples could not marry in California, to one in which at least some lawfully-married same-sex couples were deemed equal to their opposite-sex counterparts for federal purposes. What’s more, close to one-third of U.S. residents would soon be living in a state permitting, and performing, same-sex marriage. Many rejoiced that the days of skim-milk marriages were finally over.
Not so fast.
Certainly, DOMA’s timely death and the impending return of marriage equality to California gave cause to celebrate—particularly when considering the predominately-conservative makeup of the Supreme Court. But, for those living in states, like Pennsylvania, that continue to prohibit same-sex marriage, and which do not recognize same-sex marriages validly entered into elsewhere, the celebrations were muted by the sobering reality that such marriages continue to be of the skim-milk variety. That Pennsylvanians, Arizonians, and Missourians in same-sex relationships need drive only a few hours—maybe even just a few minutes—to lawfully wed, means little to those whose own state treats them as second-class citizens, excluding them from an array of state marital protections, rights, and responsibilities.
Also souring the taste of victory is the uncertainty remaining over whether married same-sex couples living in states not recognizing such marriages are nevertheless deemed “married” for various federal purposes. On the one hand, we know that all American citizens are now eligible to sponsor their (lawful) foreign same-sex spouse for a green card, regardless of where the couple will reside. Less clear is whether one partner in a same-sex married couple that lives in a state not allowing same-sex marriage is entitled to collect his or her spouse’s social security benefits. Although social security law has traditionally looked to the law of the wage-earner’s state of residence to determine the validity of one’s marriage, rather than to the law of the state where the marriage was celebrated, President Obama has voiced his conviction that all lawfully-married same-sex couples should receive the same federal benefits. For now, however, couples living in states not recognizing same-sex marriage must wait for the various federal governmental agencies to speak, and for their own state governments or courts to act.
In Pennsylvania, the wait may not be long. On July 9, 2013, Pennsylvanians sent a clear message that it’s time to overturn the state’s 17-year-old law prohibiting same-sex marriage and join the ranks of those states permitting the same. Represented by attorneys from the American Civil Liberties Union (ACLU), and on behalf of all same-sex couples in Pennsylvania, (including more than 6,000 same-sex couples raising children), twenty-three Pennsylvania citizens filed Whitewood v. Corbett in a federal trial court in Harrisburg. The plaintiffs are ten same-sex couples, one of the couples’ two teenage daughters, and one widow. Of the ten couples, four have already legally wed and now seek Pennsylvania’s recognition of their marriage. The remaining six couples seek the ability to lawfully marry in Pennsylvania, the state they call home.
Whitewood appears to be the first post-DOMA/Prop 8 legal challenge to a state law forbidding same-sex marriage. The complaint alleges that Pennsylvania’s laws excluding same-sex couples from marrying and refusing to recognize the marriages of same-sex couples celebrated in other states unconstitutionally deprive same-sex couple of the fundamental right to marry, discriminate on the basis of sexual orientation, and discriminate on the basis of sex (i.e. a man is not permitted to do the same thing a woman may do— marry a man—and vice versa). Key language from Justice Kennedy’s Windsor opinion is woven throughout the Whitewood complaint, most notably, the notion that same-sex Pennsylvania couples are denied a “dignity and status of immense import,” which, in turn, “makes it even more difficult for their children to understand the integrity and closeness of their own family.”
Should Whitewood ultimately end up before the Supreme Court, it is the Court’s treatment of this third argument, sex discrimination, to which scholars will pay closest attention. In contrast to the uncertainty over the precise “level of review” (“rational basis,” “intermediate/heightened,” or “strict”) courts must use in determining whether a law that discriminates based on sexual orientation is constitutional, the law is clear that laws which treat a man differently from a similarly-situated woman must be buttressed by an important reason that existed at the time the law was enacted. If the Supreme Court agrees with the argument that Pennsylvania’s laws prohibiting same-sex marriage discriminate on the basis of sex, there is little doubt that all similar state laws will ultimately be deemed unlawful.
Yet, even under the “rational basis standard,” which is extremely deferential toward the government, optimism is high that, at least in Pennsylvania, marriage equality will soon be a reality. The reasoning for this optimism is three-fold. First, Pennsylvania has, for many years, permitted second-parent adoption (adoption of a child by a second parent in the home who is not married to the child’s legal parent). The state thus has little room to claim a “legitimate interest” in fostering a mother-father household as a justification for prohibiting same-sex marriage.
Second, the legislative history of Pennsylvania’s laws (i.e. the transcripts from the debates over whether to pass the law) suggests that the Pennsylvania General Assembly was motivated primarily by its “moral opposition to same-sex marriages.” Yet, as Justice Kennedy made clear in his Windsor opinion striking down Section 3 of DOMA, the Constitution protects same-sex couples’ “moral” choice to be together. It is, therefore, very possible that Pennsylvania lawmakers were not primarily motivated by even a legitimate reason when they decided to pass laws prohibiting the celebration and recognition of same-sex marriages.
Finally, in an exciting move, Pennsylvania’s democratic Attorney General, Kathleen Kane (one of several Defendants to the lawsuit), announced that her office will not defend the laws being challenged. Other government officials in Pennsylvania also have the power to defend the states’ laws, so the fact that the Attorney General has refused to do so does not, unfortunately, mean the laws will automatically be struck down. Still, such a bold gesture may influence other key officials to do the same. And, perhaps most importantly of all, Attorney General Kane’s decision reflects the progress that Pennsylvanians, and all Americans, have made toward changing people’s minds about marriage equality, and toward allowing their own minds to be changed.
With equality in Pennsylvania seemingly no longer an “if,” but a “when,” it’s time for same-sex couples to begin preparing to upgrade their skim-milk marriages to the full-bodied version. Cheers!
Kate is a Litigation Attorney at Buchanan Ingersoll & Rooney PC and a member of the firm’s Nontraditional Couples and Families group. She has written extensively on DOMA and Prop 8 for the firm’s Nontraditional Couples blog (www.nontraditionalcouples.com).
