Pennsylvania says ‘I do’
by Angela Thomas and Jen Colletta
May 22, 2014 | 1352 views | 0 0 comments | 73 73 recommendations | email to a friend | print
<i>Photo: Scott A. Drake</i>
Photo: Scott A. Drake
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“Same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such.”

With those words, Pennsylvania became the 19th state in the nation to sanction marriage equality.

In a highly anticipated ruling handed down Tuesday afternoon, U.S. District Court Judge John E. Jones 3d found that Pennsylvania’s ban on same-sex marriage is unconstitutional. The following day, Republican Gov. Tom Corbett announced he would not appeal the ruling.

Marriages are set to begin first thing Friday morning.

Where things stand

Jones did not issue an immediate stay — and actually prohibited the government from asking him for a stay — so same-sex couples began applying for marriage licenses immediately across Pennsylvania Tuesday. However, there was a question initially of whether the state would try to halt the practice.

Corbett answered that question late Wednesday afternoon.

“Given the high legal threshold set forth by Judge Jones in this case, the case is extremely unlikely to succeed on appeal,” Corbett said in a statement. “Therefore, after review of the opinion and on the advice of my Commonwealth legal team, I have decided not to appeal Judge Jones’ decision.”

In a joint statement, Witold Walczak, legal director of the ACLU of Pennsylvania, and Mark Aronchick of Hangley Aronchick Segal Pudlin & Schiller applauded the governor for “letting the constitutional principles of freedom and equality ring throughout Pennsylvania by allowing loving same-sex couples to marry,” adding the governor’s “historic decision” will be an “enduring legacy.”

The Philadelphia Register of Wills issued 18 licenses to same-sex couples Tuesday evening — after extending office hours — and another 20 just in the first hour-and-a-half of business Wednesday.

Couples must wait 72 hours to file their licenses and officially marry, and more than a dozen judges are volunteering to marry couples from noon-2 p.m. Friday and 10 a.m.-noon Saturday in the Mayor’s Reception Room at City Hall.

Since last summer’s seminal U.S. Supreme Court ruling dismantling the federal ban on same-sex marriage, every federal or state judge who has heard a challenge to a state ban has found it to be unconstitutional; Jones was the 14th consecutive judge to do so.

Rulings are stayed pending appeal in seven states; appeals are also ongoing in four states where judges ruled the state bans cannot prevent recognition of legal out-of-state marriages.

The case

The latest decision came in Whitewood v. Wolf, the first of several lawsuits filed last year in Pennsylvania following the Supreme Court finding. The case was filed July 9 by the ACLU and Hangley Aronchick, on behalf of 11 same-sex couples, two children and a widow.

The filing argued that the state’s 1996 law prohibiting same-sex marriage, and preventing the state from recognizing legal out-of-state same-sex marriages, is a violation of the federal due-process and equal-protection guarantees, which Jones agreed with.

Original defendants included Corbett, Health Secretary Michael Wolf, Attorney General Kathleen Kane and two registers of wills in Washington and Bucks counties, who denied marriage licenses to same-sex couples. Jones dismissed Corbett and Kane, who declined to defend the state’s ban, and Wolf, whose department oversees marriage records, was named the primary defendant.

The state originally asked Jones to dismiss the case, and he refused in November, setting a trial date for June. But, this spring, both parties agreed that, with the state offering no witnesses, the case could be decided on the briefs alone.

In his 39-page opinion, Jones — an appointee of George W. Bush who was backed by Rick Santorum — wrote a scathing condemnation of the state ban.

“We are a better people than what these laws represent, and it is time to discard them into the trash heap of history,” Jones wrote.

Jones equated the marriage-equality movement with the civil-rights struggle of the 1960s, referencing the Brown v. Board of Education ruling, the 60th anniversary of which was last weekend.

“In the 60 years since Brown was decided, ‘separate’ has thankfully faded into history and only ‘equal’ remains. Similarly, in future generations the label ‘same-sex marriage’ will be abandoned, to be replaced simply by ‘marriage,’” Jones wrote.

In tracing how he came to his conclusion, Jones explained that sexual orientation-discrimination is deserving of heightened-scrutiny review, a more stringent test for constitutionality.

This marks the first time sexual-orientation discrimination was given this form of review locally; the Supreme Court did not apply this review in Windsor, and such a case has never come before the Third Circuit Court of Appeals, Pennsylvania’s two controlling judicial bodies.

Barrett Marshall, Mazzoni Center staff attorney, said this is a significant development.

“We don’t have a civil-rights bill that protects against sexual orientation and gender-identity discrimination in Pennsylvania, or even a bullying bill, so there has not been a lot of discussion in our courts about how we make those decisions,” Marshall explained. “But now that this has been applied once, this case can be cited in other cases, not even just about marriage; it could be transferred to employment, health-care issues. This can be used as a tool in other areas. It opens up doors that were just totally closed previously.”

Jones constructed part of his opinion around the narrative of marriage vows, outlining examples in which the plaintiff couples — who were led by Deb and Susan Whitewood, together for 23 years, and their two teenage daughters — have embodied characteristics of “traditional” marriage.

“It was such an elegant opinion,” said lead plaintiff attorney Mark Aronchick. “What’s brilliant is he follows marriage vows — for richer, for poorer; for better, for worse; in sickness and in health — to organize all the histories and harms and slights and indignities of all our plaintiffs in a way that says to all Pennsylvanians, ‘These people are no different than you and you are no different than them. And let me show it to you in crystal-clear language.’ He has done a huge service in explaining this monumental opinion to the public and I think he set down a marker across this country for what the resolution should be everywhere.”

Jones added that, while public opinion remains split on marriage equality, homophobia does not justify constitutional violations.

“The issue we resolve today is a divisive one,” he said. “Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional.”

The reaction

Rallies took place across the state Tuesday, including an event at Philadelphia City Hall that drew hundreds. A rainbow flag was raised outside City Hall before the rally to tumultuous cheers from the crowd.

A number of local plaintiffs involved in the case took to the podium, as did plaintiffs’ attorneys and community leaders, with frequent chants of “No appeal” permeating through the audience.

While Mayor Michael Nutter was out of town that day, director of LGBT affairs Gloria Casarez read a statement from him. The mayor spoke to PGN Tuesday afternoon shortly after the ruling.

“This is a completely joyous moment,” he said. “In case after case after case all across America, courts are finding the state has no legitimate interest in this. And on the moral side, what we’re talking about is the right of people to be with the person they want to be with, in a loving, caring relationship, and to have all the same rights as anyone else in the United States of America.”

Nutter said he was looking forward to officiating same-sex weddings.

“I’m very, very excited about this. I have any number of friends who have been waiting for me to be able to perform their marriage legally, and that it would have all the rights all other couples have, so I look forward to the first of many marriage ceremonies for gay and lesbian couples in Philadelphia or anywhere else.”

Reaction poured in from officials across the state.

Kane said she remains “steadfast” in her decision not to defend the state’s DOMA, hailing the historic day.

“Today brings justice to Pennsylvanians who have suffered from unequal protection under the law because of their sexual orientation,” she said. “When state-sponsored inequality exists, citizens are deprived of the full protections that the Constitution guarantees. Our commonwealth progressed today and so have the hopes and dreams of many who suffer from inequality.”

Among those were the Whitewoods. On a conference call Tuesday afternoon, Deb Whitewood said she and her family were “ecstatic” about the decision.

She gave credit to the couple’s two teen daughters, Abbey and Katie, for serving as plaintiffs alongside their parents in the case.

“The joy on their faces is just something to be so proud of,” she said. “They put a face on all the children who are being raised by gay and lesbian parents across this country. I’m really proud of them for that.”

Tuesday was a bittersweet day for Philadelphia plaintiff Maureen Hennessey. She lost her wife, Mary Beth, to cancer last year, two months before the ACLU case was filed.

“Sunday was one year since Mary Beth passed,” she said. “It was hard here in this room, missing my better half to hug. But it’s great knowing it’s finally done. Before Mary Beth died, she wanted this done. I’m thrilled it’s only been a year and two days until we got it done. This means a lot to our children and to our grandchildren.”

Aronchick told PGN that, while the decision was what he and the other plaintiff attorneys had hoped for, having it come to fruition was surreal.

“It just started pile-driving in on me when I started reading the opinion,” he said. “I feel overwhelming joy and love toward all the people whose stories and aspirations we’ve carried for so long in this case; not just the couples in our case, but so many other people we’ve heard from, so many people whose eyes were opened, so many children who are just as deserving of the same respect and dignity as any other child.”

Aronchick applauded the rest of the legal team at Hangley Aronchick as well as the ACLU.

“We worried through this, we worked through this and we stayed up so many nights and went through so much effort to get to this. It’s just a great day,” he said. “I’ve been a lawyer for over 40 years and I’ve dealt with major issues and battles and controversies, but never one like this, never one like this. This is the greatest, the best ever. If I do nothing else, I can look at my friends and family and God and say, ‘I did something.’ And I’m speaking for our entire legal team.”

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