Same-sex marriage in Pennsylvania

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Same-sex marriage in Pennsylvania became legal on May 20, 2014, when a U.S. federal district court judge ruled that the states' 1996 statutory ban on recognizing same-sex marriage was unconstitutional.[1]

The state has never recognized civil unions or domestic partnerships and was the last state in the Northeast region where same-sex couples could not legally marry.[2]

Same-sex marriage legalization[edit]

Statutory ban[edit]

In September 1996, the Pennsylvania House of Representatives approved Rep. Allan Egolf's (R-Perry) amendment to ban the performance and recognition of same-sex marriage on a vote of 177 to 16, after an effort to rule it unconstitutional failed on a vote of 171 to 29. The Senate passed the legislation on October 1 on a vote of 43 to 5.[3] Republican Governor Tom Ridge signed the amendment into law.[4]

Whitewood v. Wolf[edit]

Whitewood v. Wolf
MD pa seal.jpg
No. 1:13-cv-1861
U.S. District Court for the Middle District of Pennsylvania
Full case name Deb Whitewood, et al.,
Plaintiffs,
v.
Michael Wolf,
in his official capacity as Secretary, Pennsylvania Department of Health, et al.,
Defendants.
Date decided May 20, 2014
Citations 2014 WL 2058105
Judge sitting John E. Jones III, U.S.D.J.
Case history
Subsequent actions Application for stay denied sub nom. Santai-Gaffney v. Whitewood, No. 14A19 (U.S. Sup. Ct. Jul. 9, 2014), denial of intervenor status summarily affirmed, appeal ordered dismissed, sub nom. Whitewood v. Secretary Pennsylvania Department of Health, No. 14-3048 (3d Cir. July 3, 2014); intervenor status denied (M.D. Pa. June 18, 2014)
Case holding
State enjoined from enforcing same-sex marriage ban; such bans violate the Fourteenth Amendment's Due Process and Equal Protection clauses.

On July 9, 2013, following the U.S. Supreme Court decision in United States v. Windsor, the ACLU filed suit in U.S. District Court for the Middle District of Pennsylvania on behalf of 23 plaintiffs—10 couples, 2 of their children, and a widow—seeking to overturn Pennsylvania's 1996 statutory ban on same-sex marriage.[5] The case, originally Whitewood v. Corbett, was assigned to Judge John E. Jones III.[6] On July 11, Attorney General Kathleen Kane, a named defendant, said that she would not defend the statute as she "endorse[d] equality and anti-discrimination laws" and that the statute was "wholly unconstitutional".[7] On July 30, Governor Tom Corbett announced he would defend the statute.[8]

All parties agreed to having Corbett's name removed as a defendant.[9] The remaining named defendants are the state health and revenue secretaries, and the Bucks County register of wills.[8] On November 15, Judge Jones rejected the state defendants' motion to dismiss the suit. The judge found that while Baker v. Nelson was precedent, it did not require him to find that denial of marriage equality is outside federal jurisdiction because "[t]he jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972", foremost being the recent Supreme Court ruling in United States v. Windsor.[10] Jones set the trial date for June 9, 2014; later deemed unnecessary (see below).[11] In early December, the state's attorneys asked Jones to allow them to ask the Third Circuit Court of Appeals to rule on whether Baker v. Nelson is binding precedent. Judge Jones denied this interlocutory appeal on December 17, writing "this Court is rightfully in position to consider and assess such doctrinal advancements [since Baker]."[12][13]

On April 21, 2014, plaintiff same-sex couples filed a motion for summary judgment in Whitewood v. Wolf. This allows the court to rule solely on the briefs, without a trial, where the facts are undisputed in a case. The state defendants agreed to dispense with trial as well.[14]

On May 20, 2014, Judge Jones ruled in Whitewood v. Wolf that Pennsylvania's same-sex marriage ban is unconstitutional.[15] He applied intermediate scrutiny and declared that the ban violates the Due Process and Equal Protection clauses of the United States Constitution.[16] The ruling went into effect immediately and was not stayed, allowing same-sex couples to request and receive marriage licenses throughout the state, who began marrying after a mandatory 3 day waiting period.[17][18]

Pennsylvania's Republican Governor Tom Corbett announced on May 21, that he would not appeal Judge Jones' decision, effectively making Pennsylvania the 19th state to legalize same-sex marriage.[19]

On June 6, the Schuylkill County court clerk responsible for responding to marriage license applications, Theresa Santai-Gaffney, filed a motion before Judge Jones to allow her to intervene in the case in her official capacity. She wanted the court to stay its decision in Whitewood v. Wolf and to allow her appeal it.[20] Judge Jones denied the motion on June 18, lamenting that a private citizen would use her public office to make a "wholly disingenuous" intervention.[21]

Santai-Gaffney immediately appealed the denial of her intervention to the Third Circuit Court of Appeals and asked it to stay the lower court's ruling. She argued that the Supreme Court's order in Herbert v. Kitchen, 134 S.Ct. 893 (2014), is precedent for a stay, that she is likely to succeed on the merits, that sexual orientation is not a suspect class, and that the public interest is served by preventing same-sex marriage.[22] The Third Circuit immediately ordered the case sent to a panel to determine if summary action was warranted.[23]

On July 3, a three-judge panel of the Third Circuit summarily affirmed Judge Jones' dismissal of the Santai-Gaffney's motion to intervene in Whitewood and ordered her appeal dismissed. U.S. Circuit Judge Patty Shwartz, in a two-sentence order, said such dismissal was warranted "[f]or essentially the reasons set forth in the Opinion of the District Court." Santai-Gaffney's lawyer then said "Our plan is to file something with the U.S. Supreme Court... The people of Pennsylvania deserve to have adequate review of this law."[24][25]

After the Third Circuit ruling, clerk Santai-Gaffney again applied for a stay of judgment, this time U.S. Supreme Court Associate Justice Samuel Alito, Circuit Justice for the Third Circuit, docketed sub nom. Santai-Gaffney v. Whitewood, No. 14A19 (Jul. 7, 2014). In her application, the clerk attempted to overcome not only the questions of her interest in intervening and standing to appeal, but that she, as a public official, is suffering irreparable harm. Supreme Court rules also require it probable that four Justices grant certiorari on any question presented in order for a stay to be granted. The counsel of record in clerk Santai-Gaffney's litigation, as listed in court filings, is the Alliance Defending Freedom, a conservative Christian nonprofit organization.[26] On July 9, Circuit Justice Alito denied the clerk's application for a stay,[27] referencing National Organization for Marriage v. Geiger.[28]

Other court cases[edit]

Palladino v. Corbett[edit]

On September 26, 2013, a same-sex couple lawfully married under Massachusetts law filed suit in U.S. District Court for the Eastern District of Pennsylvania, seeking to require that Pennsylvania recognize out-of-state marriages between same-sex partners as valid. The couple also seek a declaration that the statute outlawing in-state same-sex marriage is unconstitutional. The case was assigned to District Judge Mary A. McLaughlin. The defendants, Pennsylvania's governor and attorney general, filed motions to dismiss that November and December, respectively, with the plaintiffs responding in January 2014.[29]

On January 17, 2014, a group called the Philadelphia Metro Task Force, opposed to same-sex marriage recognition in Pennsylvania, sought to intervene in the lawsuit. This group alleges that, in allowing same-sex marriage, "reverse discrimination is threatened amidst a continual omission of religious and moral freedom." (internal quotes omitted) Judge McLaughlin denied the group's motion to intervene on March 4, 2014. In a written order, she denied the Metro Task Force intervention as defendants because they "do not identify a sufficient interest they might have at stake in this litigation, nor do they demonstrate why their interests are not adequately represented by an existing party." Going further, the judge denied the group amicus curiae status, disallowing them the privilege of filing a brief as a non-party.[29]

Oral arguments for summary judgment in the case were held on May 15.[30] The case was rendered moot on May 21 when Governor Corbett decided not to appeal the decision in Whitewood v. Wolf, recognizing same-sex marriages in the state.[31]

Commonwealth Court cases[edit]

In July 2013 Pennsylvania Attorney General Kathleen Kane refused to defend Pennsylvania's gay-marriage prohibition in U.S. district court (see cases listed above), calling the Pennsylvania statute forbidding such "wholly unconstitutional."[32]

Following this decision, D. Bruce Hanes, the Montgomery County Register of Wills and Clerk of the Orphans' Court, announced he would issue marriage licenses to same-sex couples. He interpreted his Orphan's Court position as a judicial one, and thus having discretion, and found that denying same-sex couples marriage licenses per statute would violate rights given his reading of the state constitution. He issued the first such marriage license on July 24, 2013 and by August 9, 2013, had issued marriage licenses to more than 100 same-sex couples. A week later the Pennsylvania Department of Health filed a lawsuit in Commonwealth Court against Hanes to legally enjoin him from issuing any more licenses.[33][34][35][36][37]

The case is Commonwealth v. Hanes.[a] Oral arguments were held on September 4, 2013.[39] On September 12, 2013, Judge Dan Pellegrini ordered Hanes to stop issuing marriage licenses to same-sex couples "[u]nless and until either the General Assembly repeals or suspends the Marriage Law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced".[40][41] Hanes had issued 174 licenses to same-sex couples before the court issued its order and he has appealed its decision to the Supreme Court of Pennsylvania.[42] Couples that received a marriage license from Hanes filed an amicus curiae brief on his behalf with the state supreme court on December 2, 2013. In the brief, the couples note that the court below never ruled on the substantive issue of same-sex marriage, and they argue for it.[43]

On September 6, 2013, in Cucinotta v. Commonwealth,[b] a Chester County same-sex couple filed a petition in Commonwealth Court seeking to find Pennsylvania's restriction of same-sex marriage unconstitutional.[44]

On September 25, 2013, the group of 42 individuals who were married with licenses issued by Montgomery County Clerk Hanes (see above), petitioned the Commonwealth Court. The case is Ballen v. Corbett, later restyled Ballen v. Wolf,[c] after parties agreed that the respondent would be Pennsylvania's secretary of health instead of its governor. The petitioners are seeking to overturn the state's same-sex marriage ban on the grounds that it violates both the state and federal constitutions.[45][46] The cases in the Commonwealth Court were rendered moot on May 21 when Governor Corbett decided not to appeal the decision in Whitewood v. Wolf.[31]

Economic Impact[edit]

A UCLA study[47] found that allowing same-sex couples to marry in Pennsylvania will add nearly $100 million to the state's economy.[48] Total spending related to weddings and wedding-related tourism will account for up to $92 million in the first three years, and state and local tax revenues are expected to increase by up to $5 million. Additionally, up to 1,142 new full- and part-time jobs are expected to be created by the additional economic activity.[47]

Marriage legislation[edit]

Prior to the Pennsylvania judiciary taking up same-sex marriage cases, there were several attempts to recognise such marriages via the state legislature, though none of these attempts were able to succeed in Republican majorities in either the State Senate or House of Representatives.

HB2604[edit]

On May 8, 1996, Rep. Allan Egolf introduced HB 2604 in the Pennsylvania state house that would ban same-sex marriages and refuse to recognizes marriages performed in other states. The bill bypasses the House judiciary committee in a bid to be in time for elections. On June 28, 1996 the House considers a bill that would amend Pennsylvania's Domestic Relations Act to allow for grandparents to adopt grandchildren over the objections of their parents. Representative Egolf introduces an amendment to this bill that parallels his pending anti-marriage bill. The Republican controlled state House debated and voted to add this anti-marriage amendment to the adoption bill. The vote on the amendment was 177-16. The bill, which already passed the State Senate, was sent back for a concurrence vote. After this vote, the House recessed for the summer.

On October 1, 1996, the Republican controlled state Senate voted 43-5 to concur with the anti-marriage language added by the House. Governor Ridge (R) signed the act into law on October 8.[49][50]

SB719[edit]

Legislation to extend marriage to same-sex couples by amending the statute has been introduced in the Pennsylvania General Assembly several times. In May 2009, State Senator Daylin Leach introduced such a bill in the Senate.[51] State Representative Babette Josephs also introduced a similar bill in the House of Representatives. Both bills remained in committee.[52] In March 2013, Senator Leach introduced SB719.[53] In June 2013, Reps. Brian Sims and Steve McCarter, introduced a same-sex marriage bill in the house, following the US Supreme Court ruling.[54]

Civil unions[edit]

State Representative Mark B. Cohen introduced a bill in 2011 to provide for civil unions, but it died in committee.[55] He re-introduced it in the 2013 session, and the bill is pending.[56]

Attempts at constitutional ban[edit]

In Pennsylvania, a constitutional amendment requires approval by both houses of the state legislature in two successive two-year sessions by majority vote before going to voters in a referendum.[57]

In 2006, five state representatives, with Pennsylvania State Representative Scott W. Boyd as a main sponsor, introduced House Bill 2381, proposing an amendment to the Pennsylvania Constitution defining marriage as the union of one man and one woman.[58] The bill had 87 cosponsors and was approved June 6, 2006, on a vote of 136–61.[58] The Senate approved the bill 38–12 on June 21, 2006. The bill was referred to the Rules Committee in the House of Representatives on June 22, 2006, where no action was taken.[59]

In 2008, a similar bill with State Senator Mike Brubaker as its main sponsor, Senate Bill 1250, was approved by the Senate Judiciary Committee. It would have banned same-sex marriage and its "functional equivalent".[60] This language led to debate on whether the bill would not only ban same-sex marriage and civil unions, but also prevent hospital visitation, employer health benefits and recognition of a will for same-sex couples.[60] The bill was laid on the table on May 6, 2008 because the House of Representatives in the State Government Committee would not allow Senate Bill 1250 to be considered by the committee in a timely manner. Senator Brubaker requested the bill be laid aside. The Senate agreed to the motion by voice vote.[61]

In 2010, State Senator John Eichelberger introduced Senate Bill 707.[62] This proposed amendment failed in the Judiciary Committee, when all 5 Democrats and 3 Republicans voted to table the amendment, opposed by 6 Republicans.[63]

In 2011, State Representative Daryl Metcalfe introduced House Bill 1434 with 36 cosponsors on May 3.[64] It was referred to the Committee of State Government. The bill would amend the state constitutional to ban same-sex marriage and any substantial equivalent.[65] On March 13, 2012, opponents of the bill claimed victory when Metcalfe delayed a committee vote on the legislation.[52]

In 2013, he reintroduced the bill with 27 cosponsors on May 7, the lowest number of cosponsors the bill has had when introduced.[66]

Local domestic partnerships[edit]

Map of Pennsylvania counties, cities, and boroughs that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

While domestic partnerships are not offered statewide, the city of Philadelphia offers 'life partnerships' in the case of a "long-term committed relationship between two unmarried individuals of the same gender who are residents of the City of Philadelphia; or one of whom is employed in the City, owns real property in the City, owns and operates a business in the City, or is a recipient of or has a vested interest in employee benefits from the City of Philadelphia."[67][68] The city of Pittsburgh also provides domestic partnerships.[69] County employees in Luzerne County are required to identify if they are in a domestic partnership, which is explicitly defined as being between people of the same gender.[70]

Public opinion[edit]

An April 2011 Public Policy Polling (PPP) survey found that when Pennsylvania voters were asked to choose between same-sex marriage, civil unions, or no legal recognition of homosexual relationships, 30% supported same-sex marriage, 33% supported civil unions, and 35% opposed all legal recognition. 2% were not sure.[71]

A July 2011 PPP survey found that 38% of Pennsylvania voters thought that same-sex marriage should be legal, while 51% thought it should be illegal and 11% were not sure. In a separate question offering voters the option of civil unions, 32% supported same-sex marriage, 36% supported civil unions, and 31% opposed all legal recognition. 1% were unsure.[72]

An August 2011 Franklin & Marshall survey found that 50% of Pennsylvanians supported a constitutional amendment to legalize same-sex marriage, while 42% opposed it and 8% were not sure. A separate question on the same survey found that 62% of respondents supported a law legalizing civil unions for same-sex couples, while 34% opposed it and 5% were not sure.[73]

A November 2011 PPP survey found that 36% of Pennsylvania voters thought that same-sex marriage should be legal, while 52% thought it should be illegal and 12% were not sure. In a separate question offering voters the option of civil unions, 29% supported same-sex marriage, 35% supported civil unions, and 33% opposed all legal recognition; 1% were not sure.[74]

A May 2012 PPP survey found that 39% of Pennsylvania voters thought that same-sex marriage should be legal, while 48% thought it should be illegal and 13% were unsure. Offered the option of civil unions, 35% supported same-sex marriage, 33% supported civil unions, and 28% opposed all legal recognition, 3% were unsure.[75]

A June 2012 Franklin & Marshall survey found that 48% of Pennsylvanians supported a constitutional amendment to legalize same-sex marriage, while 49% were against such an amendment, an increase of 6% in support since 2009. A separate question on the same survey found that 63% of respondents favored a law legalizing civil unions for same-sex couples, while 33% were against such a law, an increase in support of 5% since 2009.[76]

A September 2012 Muhlenberg College survey found that 44% of Pennsylvanians supported same-sex marriage being legal, while 45% wanted same-sex marriage to be illegal, with 11% unsure.[77]

A January 2013 Quinnipiac University poll found that 47% supported same sex marriage, while 43% were opposed to the idea. The poll also found that white Catholics in the state supported same sex marriage by a 50/40 margin, while white Protestants in the state opposed same sex marriage by a 60/31 margin.[78]

A January 29 – February 3, 2013 Franklin & Marshall College poll found that 52% supported same sex marriage, while 41% were opposed.[79][80]

A March 2013 PPP survey found that 45% of Pennsylvanians supported same-sex marriages and 47% opposed them; asked on the question of marriage or civil unions for same-sex couples in the state, over 74% of respondents indicated support for either (with 38% supporting marriage rights and 36% supporting civil unions but not marriage), with only 24% of respondents opposed to any civil recognition of same-sex couples and 2% not sure.[81]

A May 2013 Franklin & Marshall College poll found that 54% supported same sex marriage, while 41% were opposed.[82]

A December 2013 Public Religion Research Institute survey found that 61% of Pennsylvania residents support same-sex marriage, while 35% opposed, and 3% didn't know or refused to answer.[83]

A February 2014 Quinnipiac University poll found that 57% supported same sex marriage, 37% were opposed to the idea, and 6% didn't know.[84]

A May 2014 Public Policy Polling (PPP) survey found that 48% of Pennsylvanians supported same-sex marriage being legal, while 44% wanted same-sex marriage to be illegal, with 9% unsure.[85]

See also[edit]

Notes[edit]

  1. ^ Pa. Supreme Court Docket No. 77 MAP 2013, Pa. Commonwealth Court Docket No. 379 M.D. 2013, accessible here.[38]
  2. ^ Pa. Commonwealth Court Docket No. 451 M.D. 2013
  3. ^ Pa. Commonwealth Court Docket No. 481 M.D. 2013

References[edit]

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  83. ^ A Shifting Landscape
  84. ^ "Pennsylvania Results". Quinnipiac University Polling. Retrieved March 3, 2014. 
  85. ^ "Wolf with hefty lead in Governor's race". June 3, 2014. Retrieved June 10, 2014. 

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