In the last week, the state has asked for dismissals of two of the pending challenges to Pennsylvania’s ban on same-sex marriage.
Last week, the Department of Revenue filed a preliminary objection in response to a lawsuit brought by a lesbian widow from Bethlehem, asking the court to dismiss the case. And on Monday, Gov. Tom Corbett asked a judge to dismiss another suit brought by a legally married lesbian couple who is seeking to have their marriage recognized by the state.
In the first case, Barbara Baus filed a suit in Orphans Court of Northampton County Oct. 25 to seek equal treatment under Pennsylvania’s inheritance-tax law for same-sex couples.
The case is one of at least six challenging the state’s Defense of Marriage Act. Baus’ suit contends the state’s law, and its subsequent effect on the inheritance-tax law, is a violation of federal due-process and equal-protection constitutional guarantees.
Baus, a Bucks County native, was married to her longtime partner, Cathy Burgi-Rios, in 2011 in Connecticut, before Burgi-Rios died from complications from her battle with leukemia.
The couple, who were together for more than 15 years, co-owned property and had joint bank accounts. Burgi-Rios named Baus the executrix of her will and sole beneficiary of her assets, but after her passing, Baus was asked to pay more than $10,000 in inheritance tax. Heterosexual married couples are exempt from inheritance tax.
In its filing last week, the Revenue Department cited a 1972 U.S Supreme Court ruling that found marriage to be a state, not federal, issue as a reason for the case to be dismissed.
“They are basically saying there is no legal merit to support going through the claims that were made,” said attorney Tiffany Palmer, who is representing Baus with Benjamin Jerner, both of Jerner & Palmer, P.C., along with Lenore Carpenter and Stanely Pelli. “I don’t think they will be successful.”
Oral arguments have been set for Jan. 28.
In the second case, Philadelphia residents Cara Palladino and Isabelle Barker, who were married legally in Massachusetts in 2005, contend that Section Two of the federal Defense of Marriage, violates the federal due-process and equal-protection rights of same-sex couples legally married in jurisdictions that sanction marriage equality.
The U.S. Supreme Court struck down a different section of the federal DOMA this summer.
In the Palladino filing, Corbett also relied on the 1972 Supreme Court ruling as grounds for dismissal, as well as a constitutional condition that state officials are immune from federal lawsuits in certain situations.
“It is well-established that general authority to enforce the laws of the state is not sufficient to make a government official the proper party to litigation challenging the law,” Corbett argued.
Michael Banks and Eric Kraeitler of Morgan Lewis & Bockius are serving as lead counsel in the Palladino case, with Palmer and Jerner as co-counsel.
Palmer said the judge could make a determination as to where the case will proceed in the next month.
The state used the 1972 precedent in another case challenging the ban on same-sex marriage filed by the American Civil Liberties Union, but the judge in that case found earlier this month that it should proceed because of the recent “sea change” in the institution of marriage.