Antigay activist seeks to get involved in marriage cases
by Angela Thomas
Jan 30, 2014 | 1768 views | 1 1 comments | 74 74 recommendations | email to a friend | print
A local antigay activist is continuing his quest to become involved in several legal challenges against the state’s ban on same-sex marriage.

James D. Schneller, president of the Philadelphia Metro Task Force, filed a brief Jan. 25 in the Whitewood v. Wolf case, again calling on the U.S. District Court for the Middle District of Pennsylvania to permit him to become an intervener. The case was filed last summer by the American Civil Liberties Union on behalf of a group of same-sex couples, two children and a widow, and was the first to challenge the constitutionality of the state law prohibiting same-sex marriage. The case is set for trial in June.

Gov. Tom Corbett and Attorney General Kathleen Kane were originally named as defendants but were removed in early November, and Health Secretary Michael Wolf remains the only defendant.

Schneller, who has also led unsuccessful efforts to thwart LGBT nondiscrimination ordinances in Conshohocken and Haverford, filed a motion to intervene as a defendant in November on behalf of Pennsylvania citizens.

In his most recent filing, which followed the plaintiffs’ Jan. 8 opposition to his being an intervener, Schneller said the plaintiffs — who argued in part that Schneller’s only interest in the issue was that it “offends him morally and because he sees a threat in the accomplishments and tactics of those he labels ‘homosexual activists’” — “cherry pick[ed]” the reasons he asserted for his involvement.

Schneller argued that citizens’ religious freedom, and rights to free speech, to freedom from government collusion, to freedom from seizure or confiscation of rights and to freedom from arbitrary enforcement “have and remain infringed upon, with the prospect of exponential increase, should the requested nullifying of the marriage act’s definition of marriage and forbiddance of recognizing out-of-state ‘gay marriage’ be granted.”

Schneller also filed a brief Jan. 17 to be included as an intervener in the Palladino v. Corbett case, which was filed in the U.S. District Court for the Eastern District of Pennsylvania in September. The case, filed by Philadelphia residents Cara Palladino and Isabelle Barker who were married legally in Massachusetts, claims that section two of the federal Defense of Marriage Act violates equal-protection rights by denying valid same-sex marriages performed in other jurisdictions.

Schneller cited his lengthy litigious history challenging municipal LGBT nondiscrimination ordinances for his ability to enhance the “factual basis” of the issues.

Schneller said his was an “emergency” motion to intervene, following the plaintiffs’ recent request for summary judgment. He also argued that recent court rulings have favored marriage-equality proponents.

“Recent decisions indicate a trend to omit or un-prioritize health-, moral- and traditional family-related considerations in proceedings of this nature,” Schneller wrote.

Schneller said in the Palladino filing that he has also filed motions to intervene in the Commonwealth Court case where several-dozen same-sex couples are suing for recognition of marriage licenses issued to them in Montgomery County last summer, as well as in the case of a Bethlehem woman who is challenging the state law in county court after being forced to pay inheritance tax on the estate of her late wife. A hearing had been scheduled for this week in that case, but was delayed until March.

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January 31, 2014
On October 11, 1983, Pennsylvania Superior Court president judge Edmund B. Spaeth Jr. looked out over his courtroom and considered whether to grant two men who once loved each other a divorce. Today, in the wake of a Montgomery County clerk issuing marriage licenses to gay couples, the debate over gay marriage feels as though it’s approaching an inevitable political and legal endgame.

But when DeSanto v. Barnsley reached a Philadelphia courtroom 30 years ago, the issues involved sounded unfathomable. “This case presents the novel issue of whether two persons of the same sex can contract a common-law marriage,” Spaeth would write in 1984.

In the summer of 1970, John DeSanto and William Barnsley had stood before friends in a Yeadon apartment, exchanged rings, and committed themselves to one another. Starting that year, a series of state courts would rule plainly that this arrangement could never be marriage, a status reserved for one man and one woman.

But Barnsley and DeSanto decided they could still share in the karmic rewards of a marriage, even with none of its legal or economic benefits.

In 1975, Barnsley bought a Newtown Square home, and the two men adopted a typical division of labor for suburban middle-class couples: Barnsley, a hospital blood-bank supervisor, made the money; DeSanto, a high-school dropout, handled household errands and managed their finances. In 1980, though, according to DeSanto, Barnsley asked him to move out after falling for another man.

“We went to township meetings together. We were very accepted in the community,” DeSanto told the Associated Press a few years later. “It’s a shame it had to end in tragedy.”

DeSanto headed to the courthouse in Media with divorce papers, demanding alimony. When his claim was rejected on the basis that two men who could never be married could thus never be divorced, DeSanto’s attorney, Rosalie Davies, appealed to Superior Court.

Pennsylvania was one of only a handful of states to recognize common-law marriages, and Davies argued that by that standard, two people who had spent 10 years mutually intertwining their lives should be treated as spouses.

“He’s in the exact position of a wife,” Davies said of her client. DeSanto v. Barnsley was unlike any marriage case that proceeded it, in that it featured two gay men facing off against one another with competing views on whether or not they ever had been married.

Davies’s smoking gun — Barnsley’s anniversary cards to DeSanto — didn’t impress Spaeth. To him, a simple principle of law was involved: The courts overreached if they used common law to recognize couples the legislature had pointedly excluded from marriage. He upheld the lower court, but DeSanto v. Barnsley would live on, lurking in the footnotes of cases and law-journal articles.

“I think it takes a good 10 years of litigation until you get cases going in your favor,” Davies said after the ruling.

She was almost exactly right. In May 1993, Hawaii’s Supreme Court issued the country’s first ruling friendly to gay marriage. Twenty years after that, the U.S. Supreme Court joined in, overturning part of the Defense of Marriage Act. Many lawyers working in this arena think the next big Supreme Court challenge to the remaining parts of the Defense of Marriage Act could come, not from a gay couple trying to marry where they live, but from one being denied the right to divorce there.

Pennsylvania has been down that road once before. Time will tell if the next decision is different.