- The Washington Times - Tuesday, October 8, 2013

In a bellwether case for states trying to preserve gay-marriage bans in a fast-shifting legal landscape, Pennsylvania officials are arguing that the Supreme Court’s decision this summer and the Obama administration’s approach should not undercut the state’s ability to enforce its own marriage laws.

State officials said in a legal brief filed this week that Gov. Tom Corbett, a Republican, and the state’s health secretary should be dropped as defendants in a federal case filed in July by nearly two dozen state residents over the gay-marriage ban, arguing that state officials are immune to being sued in federal court without their consent.

Pennsylvania is one of 37 states where gay marriage remains illegal, but it has been the target of multiple legal challenges to its statute as the only state in the Northeast that doesn’t allow either gay marriage or same-sex civil unions. Gay-marriage activists have filed federal lawsuits in states including Pennsylvania, Virginia and North Carolina, believing federal judges would be more sympathetic to gay marriage and more willing to overturn state prohibitions.

The U.S. Supreme Court’s landmark ruling in June on gay marriage did not find a constitutional right to same-sex nuptials and did not mandate that individual states must allow or recognize same-sex marriages, attorney William H. Lamb argued on behalf of Mr. Corbett and Pennsylvania Secretary of Health Michael Wolf. Mr. Lamb asked that all claims against Mr. Corbett and Mr. Wolf be dismissed.

All parties in the lawsuit, known as Whitewood v. Corbett, are scheduled to meet Wednesday with U.S. District Judge John E. Jones III to discuss the case.

Pennsylvania is one of 19 states where gay-rights activists are suing to legalize same-sex marriage. Battles are underway in states with voter-passed constitutional amendments barring same-sex marriage, such as Arkansas and Virginia, as well as states that outlaw gay marriage only by statute, such as Illinois and West Virginia.

Many lawsuits were filed this summer after the Supreme Court struck down the section of the 1996 federal Defense of Marriage Act (DOMA) that said only marriages of one man and one woman could be recognized by the federal government.

In Pennsylvania, Mr. Corbett and Mr. Wolf are responding to a lawsuit filed by 10 gay couples, two children and a lesbian widow who are seeking to overturn Pennsylvania’s state amendment in favor of traditional marriage, also enacted in 1996.

“The exclusion from the esteemed institution of marriage” denies gay couples and their families tangible government benefits and “demeans and stigmatizes” them “by sending the message that they are less worthy and valued than families headed by opposite-sex couples,” says the complaint, filed by American Civil Liberties Union Foundation attorneys and their affiliates on behalf of Deb and Susan Whitewood and their co-plaintiffs.

In papers filed Monday, Mr. Corbett and Mr. Wolf argued that the entire case should be dismissed because the gay plaintiffs do not have a federal question that the court can address.

In its 1972 Baker decision, the Supreme Court held that a state’s definition of marriage “is traditionally within the province of the states” and did not present a substantial federal question for the high court, wrote Mr. Lamb, himself a former justice of the Supreme Court of Pennsylvania.

The Baker decision was not “explicitly or implicitly” overruled by the Supreme Court in June. In fact, the court “took great pains to acknowledge that regulation of domestic relations matters traditionally has fallen within the exclusive province of the states,” wrote Mr. Lamb, urging Judge Jones to dismiss all claims against his clients.

Pennsylvania Attorney General Kathleen Kane, a Democrat also named in the lawsuit, publicly declined to defend the state marriage law, saying she, too, thought it was unconstitutional. Her attorneys are expected to attend Wednesday’s meeting with Judge Jones, as well as counsel for two county officials.

Because of Ms. Kane’s refusal to defend the state’s ban on gay marriage, Mr. Corbett’s legal office has hired a private team led by Mr. Lamb to plead the state’s case.

The federal case is separate from a proceeding in Commonwealth Court in which the Department of Health is trying to stop a court clerk in Montgomery County, outside Philadelphia, from issuing marriage licenses to same-sex couples.

In New Jersey, a judge is expected to decide soon whether to stay her ruling that orders the state to grant gay marriages as of Oct. 21.

In a Sept. 27 ruling, Mercer County Superior Court Judge Mary Jacobson agreed with gay plaintiffs that New Jersey’s civil-union law puts them at an immediate and impermissible disadvantage because the federal government now recognizes gay unions — but only those in legal marriages.

New Jersey’s gay couples in civil unions “are now denied [federal] benefits solely as a result of the label placed upon them by the State,” Judge Jacobson wrote.

State officials promptly filed papers asking the judge to keep the status quo until the case can be fast-tracked to the New Jersey Supreme Court. The officials argued that New Jersey’s civil-union law is constitutional under both state and federal law, and should not be overturned based on a federal policy that is being applied incorrectly to states with civil unions.

New Jersey Gov. Chris Christie, a Republican, also has called for a public vote on gay marriage.

Meanwhile, gay-rights activists are inviting the Obama administration to weigh in on the state lawsuits just as it did with the DOMA case and Proposition 8 case in California.

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