A.C.L.U. Lawsuit Aims to Overturn Pennsylvania’s Ban on Gay Marriage
By TRIP GABRIEL
The Supreme Court returned the battle over same-sex marriage to the states last month, and Deb and Susan Whitewood are among the first to pick up the fight.
A couple for 22 years with two teenage daughters, the Whitewoods filed suit on Tuesday to overturn Pennsylvania’s ban on gay marriage, one of the first of an expected outpouring of cases around the country to cite the court’s majority opinion that same-sex couples are denied a “status of immense import” and their children deprived of “the integrity and closeness of their own family.”
The suit, carefully assembled by the American Civil Liberties Union, was filed in Federal District Court in Harrisburg with the aim of adding Pennsylvania to the column of 13 other states permitting same-sex marriage, plus the District of Columbia. The 23 plaintiffs come from many walks of life, including a doctor, college professors, a truck driver, a Vietnam veteran and a widow who lost her partner of 29 years.
“What we’re looking for is the validation from the legal system that we are equal in our marriage as anyone else,” said Susan Whitewood, 49, in an interview before a planned news conference to announce the suit at the Pennsylvania Capitol in Harrisburg.
The legalization of same-sex marriage has primarily come through the political process, with lawmakers and voters approving it in six states in just the past year. But earlier victories were achieved through state courts, including in Massachusetts and Iowa. The A.C.L.U. acknowledged that it was bringing suit in Pennsylvania because overturning the state’s gay marriage ban in the Republican-controlled legislature is a near-term impossibility.
Pennsylvania’s law defines marriage as between a man and a woman – similar to the federal law struck down by the Supreme Court — and it denies recognition to same-sex marriages legally performed elsewhere.
Gay-marriage opponents say using the courts undermines the will of the voters. Michael Geer, president of the Pennsylvania Family Institute, which opposes same-sex marriage, said that in 1996 when the state passed its law, fewer than 25 out of some 240 legislators opposed it.
“The fact the A.C.L.U. is turning to the courts to try to redefine marriage takes it out of the hands of the people,” he said.
The A.C.L.U. plans to file suit shortly in two other states, Virginia and North Carolina. In Michigan, a federal judge blocked a state law denying domestic partner benefits to public employees, citing last month’s United States Supreme Court rulings. “You’ll have these things filed all over the place,” said Frank Schubert, political director of the National Organization for Marriage, which opposes same-sex marriage.
James Esseks, national director of the LGBT Project at the A.C.L.U., agreed. “No question this issue will get back to U.S. Supreme Court over the next several years,” he said.
At the heart of many of the cases is the issue the Supreme Court ducked in one of its two recent rulings, a narrow decision on a California case: If a state prohibits same-sex couples from marrying, does it trample the guarantee of equal protection in the United States Constitution?
Supporters believe that enlarging the map of states that allow same-sex marriage will ultimately influence the Supreme Court when it next takes up the issue of a constitutional right to same-sex marriage, as it is expected to do in the next few years. Activists are pressing legislatures in three more states that appear ready to pass measures legalizing same-sex marriage: New Jersey, Hawaii and Illinois.
“We think what the map of the country looks like is going to make a big difference to how the issues in the case feel to the Supreme Court,” Mr. Esseks said. “Will we have the 13 states plus D.C., or will we be at 20 or more?”
Opponents are fighting back under the same logic. They believe they have an opportunity to add Indiana to the 29 states with constitutional bans on same-sex marriage.
“Our challenge is to let the court see they’re not going to get away with this without a massive public revolt,” said Mr. Schubert of the National Organization for Marriage.
Both sides have trained their focus on one man, Justice Anthony M. Kennedy, the frequent swing vote on the court, who wrote the 5-to-4 majority opinion striking down a key part of the federal Defense of Marriage Act. Justice Kennedy did not say whether there was a constitutional right to same-sex marriage, leaving it up to individual states. But he defined the terms of battle.
Opponents said that their course is to show how same-sex marriage is a breach of thousands of years of history.
Advocates have seized, especially, on Justice Kennedy’s language that denying marriage to gay and lesbian couples harms their children by assigning them second-class status. The Pennsylvania suit argues that children of same-sex couples are deprived of “social recognition and respect” and of financial benefits that married parents enjoy.
The Whitewoods said their daughters, Abbey, 16, and Katie, 14, were eager to join the suit.
“Having children means we have to protect our children in the utmost way,” said Susan Whitewood, a human resources executive. “We have to be enormously proactive in everything we do that we don’t get discriminated against or don’t have negative ramifications.”
Before school each year, she and her partner, Deb Whitewood, 45, a stay-at-home mother, met with teachers in their suburban Pittsburgh community to explain their family and answer any questions. Invariably their girls were the first a teacher had encountered with two moms, the women said.
“People would ask the questions,” Deb Whitewood said, “and then things would just go totally normal from there.”