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.