Monday was the filing deadline in Whitewood v. Wolfe, the first suit ever to challenge Pennsylvania’s ban on same-sex marriage. After more than 130 filings, the case is now in the hands of U.S. District Judge John E. Jones 3d, who will rule based on the briefs, as opposed to bringing the case to trial, which was originally intended.
John Stapleton, of Hangley Aronchick Segal Pudlin & Schiller, which represented the 25 plaintiffs with the American Civil Liberties Union of Pennsylvania, said Jones could rule any day.
“Essentially, the work of the attorneys is finished and it’s really in the judge’s hands now,” Stapleton said. “I wish I had a more precise answer about when. It could be any day versus sometime longer. That answer is up to the judge.”
The plaintiffs argued that the state’s 1996 law defining marriage as between one man and one woman violates the constitutional equal-protection clause.
Stapleton noted that attorneys argued that law is unconstitutional because it denies couples the right to marry in Pennsylvania, and also denies state rights and benefits to couples married legally outside of Pennsylvania.
“We challenged both parts of the Pennsylvania DOMA [Defense of Marriage Act]. And if we’re successful on our claims, then both parts of the Pennsylvania DOMA will be stricken,” Stapleton said.
He added that, if Jones rules in the plaintiffs’ favor, it will be up to the judge to decide if that ruling goes into effect immediately or not.
It is unclear if Gov. Tom Corbett will immediately appeal a favorable ruling.
Joshua Maus, of the Office of General Counsel, declined comment on that issue, other than to say the office is “awaiting Judge Jones’ ruling.”
“They certainly have the right to file an appeal, like any party does, but we certainly would argue strongly for many reasons why an appeal should not be pursued. They have that right. And whether they exercise that right is up to them,” Stapleton said. “But I don’t want to count our chickens before they hatch. We’re focused at the trial level right now.”
In the final filings Monday, both sides reiterated their claims — the plaintiffs that the state law has born harm upon the couples and does not stand up to either rational-basis or heightened-scrutiny constitutional evaluations, and the defense that the state was not directly responsible for any injury caused to the plaintiffs.
In addition to a series of expert submissions, all of the plaintiffs submitted personal declarations for the judge’s consideration.
“Most fundamentally, what our plaintiffs have shown through their extensive declarations are the serious and profound harms they suffer on both a micro level every day, all the way up to the bigger-picture, major life events, like the disrespect that surviving same-sex spouses have to suffer when they lose a loved one in the form of increased taxes or the state’s refusal to recognize them as widows and widowers,” Stapleton said.
Stapleton noted that, while the plaintiffs’ attorneys have an amicable business relationship with the defense attorneys, the state failed to illustrate that the marriage-equality ban should remain in place.
“When you weigh the papers and you look at our motions and their motions, you see a complete and total disparity,” he said. “The law and evidence are completely on the plaintiffs’ side. And the momentum is behind the same-sex couples, extraordinarily so. We’re really hoping to keep that momentum going.”
Since last summer’s U.S. Supreme Court ruling dismantling the federal ban on same-sex marriage, judges in eight states have found their respective state bans on marriage equality to be unconstitutional, the latest just this week in Idaho. In that case, the judge rejected a stay and marriages are expected to begin May 16.
An appeal is planned in Arkansas, and all other decisions have been stayed pending appeal except for in New Jersey, where Gov. Chris Christie dropped an appeal. An appeal is also ongoing in Kentucky, where a judge found it was unconstitutional to not recognize legal out-of-state marriages.
Stapleton said the attorneys and plaintiff couples are confident in their case but noted a favorable ruling is “not a sure thing.”
“We are certainly eager for a ruling and certainly hopeful we could win,” he said. “This moment that will hopefully be on the not-too-distant horizon has been a long time coming for our plaintiffs, who like thousands of other same-sex couples have felt what it’s like to be on the margins of society and excluded from something as important as marriage. To be welcomed into that institution and provided marital rights is going to be a really amazing and profound moment that perhaps we as lawyers and maybe even the plaintiffs won’t quite be able to put into words. It’s going to be a — knock on wood — special moment.”