Following Windsor, Lawsuits Take Aim At Pennsylvania Same-Sex Marriage Ban.

Like many other states, Pennsylvania bars same-sex marriage by statute.  23 Pa. Cons. Stat. §§ 1102 and 1704 (1996).  Unlike other states, Pennsylvania’s ban is currently being challenged at all levels of government.  This drive is even visible at the local level: Reuters reported that the county clerk of Montgomery County issued more than 170 marriage licenses to same-sex couples between late July and mid-September, when a state court ordered him to stop.  In the state legislature, two representatives in the lower house plan to introduce a bill on October 6 that would override the existing ban and permit same-sex marriages.

While acts of civil disobedience and bold legislative proposals may inspire marriage equality advocates, the Republican governor and the Republican majorities in both houses of the state legislature are unlikely to be so moved.  In the end, the most significant threat to the state ban is a pair of lawsuits filed in two different federal district courts.  Both suits are the direct result of the U.S. Supreme Court’s holding in United States v. Windsor, 133 S. Ct. 2675 (2013).  In Windsor, the Court struck down Section 3 of the federal Defense of Marriage Act (DOMA), which permitted the federal government to withhold federal recognition for same-sex marriages entered into in states and jurisdictions where same-sex marriage is legal.  Although Justice Anthony Kennedy based the Court’s holding in part on the traditional supremacy of states in regulating marriage, other parts of his reasoning paradoxically provided fertile ground for federal challenges to state same-sex marriage bans.        

The first challenge, Whitewood v. Corbett, was filed in the U.S. District Court for the Middle District of Pennsylvania just days after the Supreme Court handed down its opinion in Windsor.  In their complaint, the plaintiffs challenge Pennsylvania’s ban on same-sex marriage on the grounds that denying same-sex couples the right to marry in Pennsylvania violates the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause.

Quoting Kennedy, the plaintiff’s complaint alleges that the state ban “‘tells [same-sex] couples and all the world- that their relationships are unworthy’ of recognition.”  The complaint also references the part of Kennedy’s reasoning which addressed a significant group of people affected by  government’s refusal to recognize same-sex marriage: the children of same-sex couples.  The plaintiffs claim that the state ban “‘humiliates the…children now being raised by same-sex couples’ and ‘makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’” Governor Tom Corbett—himself the primary defendant in Whitewood–has moved to dismiss the case.

The second challenge, Palladino v. Corbett, was filed in the U.S. District Court for the Eastern District of Pennsylvania in late September.  Although a record of their complaint was not available at the time of this article’s posting, Alfred Lubrano of the Philadelphia Inquirer reports that the plaintiffs in Palladino are challenging the state ban on the grounds that it violates Full Faith and Credit.  The plaintiffs, two women who were lawfully married in Massachusetts, assert that it is unconstitutional for Pennsylvania to not recognize their marriage.  While it remains unclear if the plaintiff’s will reference Kennedy’s reasoning in Windsor, they echoed Kennedy’s consideration for children of same-sex couples at a recent press conference, stating that their young son “doesn’t know he’s a second-class citizen in Pennsylvania, where we’re not considered married.”

On top of the suits themselves, a high-profile schism in Pennsylvania’s executive branch may complicate the state’s defense of the law.  Despite being named as a defendant in both Whitewood and Palladino, Pennsylvania’s Attorney General Kathleen Kane, a Democrat, has publically denounced the state ban as unconstitutional and has stated that she will not defend it in federal court.  Kane’s position puts her at odds with Governor Tom Corbett, a Republican who supports the state ban and – perhaps at the suggestion of Rick Santorum – recently compared same-sex marriage to incest.  With developments in both cases on a weekly basis, Pennsylvania remains at the center of the nation’s debate over same-sex marriage.

The Daily Show on Stop-and-Frisk Decision

The Daily Show on Stop-and-Frisk Decision

Last night, the Daily Show discussed the recent federal court case finding NYPD’s stop-and-frisk tactics unconstitutional and NYC’s response to the decision.  As we covered on Monday, U.S. District Court Judge Shira Scheindlin held that the New York Police Department’s stop-and-frisk tactics violated the Fourth Amendment’s prohibition against unreasonable search and seizures and the Fourteenth Amendment’s Equal Protection Clause. 

Here is how The Daily Show describes its “coverage” of the story:

Mayor Michael Bloomberg thinks New York’s stop-and-frisk program is being unfairly stopped and scrutinized even though it’s done nothing wrong. 

Federal Judge Finds NYPD’s Stop-and-Frisk Unconstitutional

Today, U.S. District Court Judge Shira Scheindlin held that the New York Police Department’s stop-and-frisk tactics violated the Fourth Amendment’s prohibition against unreasonable search and seizures and the Fourteenth Amendment’s Equal Protection Clause. 

Below is the beginning of a WNYC story about the case: 

U.S. District Court Judge Shira Scheindlin issued her long-awaited opinion finding that the New York City Police Department had violated the Fourth and Fourteenth Amendments in the way they have conducted stop-and-frisks. 

“Targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality,” she wrote in her strongly-worded ruling.

In her opinion, which can be read in full below, Judge Scheindlin writes:

“To be very clear: I am not ordering an end to the practice of stop and frisk. The purpose of the remedies addressed in this Opinion is to ensure that the practice is carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much-needed police protection.”

Mayor Michael Bloomberg, reacting Monday afternoon at a press conference, was visibly angered by the judge’s decision. “The judge ignored the realities of crime,” he said, “like the fact that our police officers on patrol make an average of less than one stop a week.”

More on Bloomberg’s reaction.

The judge specified a number of steps the NYPD must take to reform stop-and-frisk. It must revise its policies and training procedures, especially its “over-broad definition of ‘furtive behavior.’ It must change the written documentation police must produce after stops. and it must institute a one-year body camera pilot program involving one precinct in each borough. . . . 



Judge outlines what NYPD needs to do next.



Ruling: Judge finds NYC stop-and-frisk policy violated rights.


“Prop 8 — The Musical”

“Prop 8 — The Musical”

In a star studded video, Funny or Die presents, “Prop 8 — The Musical,” featuring Jack Black, Neil Patrick Harris, Craig Robinson, Lake Bell, Rashida Jones, Kathy Najimy, John C Reilly, Maya Rudolph, Allison Janney, Margaret Cho, Andy Richter, and Sarah Chalke. I know that this video is several years old, but in the wake of Hollingsworth v. Perry, it remains relevant.  The video runs just over three minutes.

Moral Maze: Same-Sex Marriage

Moral Maze: Same-Sex Marriage

This week, same-sex marriage dominated the news with the Supreme Court cases of United v. States v. Windsor and Hollingsworth v. Perry. The same-sex marriage debate is not unique to the United States, however.  Across the pond, the topic is just as controversial.  Recently, the British House of Commons approved gay marriage with the support of conservative Prime Minister David Cameron.  

If you are passionate about gay rights, this episode  (43 minutes) of the Moral Maze is a must.  It is dry (*cough* British), but it is also the most intelligent debate about same-sex marriage that I have ever heard.  

Finally, if you are interested in being part of the SLACE podcast next year.  Aside from interviews and recorded events, the podcast will also include debates in this format.  Students will encompass the panelists, who will question “experts” (probably mostly professors) advocating various positions.  Ideally, there would be one of these debates per semester.  Members of Moot Court would make ideal panelists.