By Kate Paine
It has been a momentous year for marriage equality in our country. The U.S. Supreme Court’s landmark June 2013 decisions overturning the Defense of Marriage Act and upholding the ruling on Proposition 8’s unconstitutionality opened the proverbial floodgates, ushering in a sea of change for same-sex marriage more quickly than anyone could have imagined. Even more unexpectedly, the changing tides have flowed to states long viewed as bastions of social conservatism.
When I first wrote about Whitewood v. Wolf (formerly known as Whitewood v. Corbett) – the July 2013 case filed by the American Civil Liberties Union of Pennsylvania in a Harrisburg federal court – for the August 2013 issue of Equal Magazine, same-sex marriage was legal in twelve states (plus Washington, D.C.): California, Connecticut, Delaware, Iowa, Maine, Massachusetts, Maryland, Minnesota, New Hampshire, New York, Rhode Island, and Vermont.
Since that time, another four states legalized marriage for same-sex couples (New Jersey, Hawaii, Illinois, and New Mexico), bringing the number of jurisdictions actually performing same-sex marriage at the time of publication to seventeen – nearly one-third of all states in the U.S. In the past four months, federal judges in five additional states (Utah, Oklahoma, Virginia, Texas, and Michigan) have declared unconstitutional their states’ laws forbidding same-sex marriage. However, same-sex marriage in those states has been placed on hold (apart from a limited number of marriages performed in Utah and Michigan), pending the outcome of those cases on appeal to the federal Circuit Courts. Judges in four other states (Tennessee, Kentucky, Ohio, and Oregon) were also active in pushing equality forward, although their limited rulings decided only the unconstitutionality of refusing to recognize citizens’ valid same-sex marriages performed out of state.
If the decisions out of Utah, Oklahoma, Virginia, Texas, and Michigan are affirmed on appeal, the number of Americans living in a state issuing marriage licenses to same-sex couples will jump from approximately 38% to more than 50%. Recent polls show support for same-sex marriage now exists among more than half of all Americans, so the latter number is quite fitting.
Substantial progress has also occurred for married same-sex couples seeking federal recognition of their marriage and the same protections, rights, and responsibilities afforded married opposite-sex couples. Initially, it was unclear whether DOMA’s demise meant that federal benefits would extend to all lawfully-married same-sex couples, irrespective of where they live, to only those same-sex couples residing in states that recognize their marriage, or a combination of both.
In February 2014, United States Attorney General Eric Holder removed much of this uncertainty when he announced that the Department of Justice will consider “married” all same-sex couples with a valid marriage license, regardless of where that couple chooses to live. Now, all same-sex couples who marry in, for example, Maryland will be treated the same for matters like prison visitations, survivor’s benefits, bankruptcy petitions, and even trial testimonial privileges, whether that couple actually lives in Maryland or instead in neighboring West Virginia or Pennsylvania.
Still, certain federal agencies, perhaps most notably the Social Security Administration and (in certain instances) the Department of Labor, continue to determine eligibility for benefits based on the status of same-sex marriage in a couple’s state of residence. Consequently, married same-sex couples living in states where their marriage is not recognized remain unable to enjoy rights like being named beneficiaries under a same-sex spouse’s social security plan and taking job-protected leave to care for a same-sex spouse, pursuant to the Family and Medical Leave Act. But, given the Obama Administration’s pledge to secure equal treatment for all same-sex married couples, it will hopefully be only a short time until these agencies board the ship of full equality.
Amidst this sea of transformative progress, however, Pennsylvania floats somewhat adrift. As of publication, the Keystone State regrettably remains the only state in the Northeast not to allow same-sex marriage and recognize its citizens’ out-of-state same-sex marriages. Even after removing himself as a defendant in Whitewood and unsuccessfully attempting to have the case dismissed, Governor Corbett has remained staunchly committed to defending Pennsylvania’s same-sex marriage ban. Not only are such views out of touch with the majority of Pennsylvania voters who now support legalizing same-sex marriage, they swim against the current of progress flowing in other states.
But that could all change soon. On April 21, 2014, attorneys for the Whitewood plaintiffs submitted motions asking the Court to decide the case as soon as all papers have been filed on May 12, 2014. The case, which seeks a ruling that the state’s same-sex marriage ban violates a fundamental right to marry and unlawfully discriminates against same-sex couples, was originally scheduled for trial in Harrisburg, Pennsylvania on June 9, 2014. Recently, the attorneys realized a trial was unnecessary when the defendant (technically, the Commonwealth of Pennsylvania) stated it would not call any experts to argue in favor of the state’s same-sex marriage ban – a significant case development that many have viewed as signaling the Commonwealth’s decision to stop defending the (hopefully) doomed law.
Though many appear certain that the Judge presiding over Whitewood will swim with the current of progress and overturn Pennsylvania’s law prohibiting same-sex marriage, the question of the breadth of his decision lingers. It is possible Judge James will decide that Pennsylvania’s law does not further any legitimate purpose and thus does not have a “rational basis,” as some post-DOMA judges have continued to do, and strike the law down on this ground alone. Those advocating for marriage equality are hopeful, however, that the Judge will adopt the position of the Obama administration that laws which discriminate based on sexual orientation deserve “heightened scrutiny,” meaning that the government must have an important goal that is furthered by the discriminatory treatment – a near-impossible standard for Pennsylvania to meet in this case. Adopting “heightened scrutiny” would also pave the way for increased protections against sexual-orientation discrimination in other areas, like employment and housing.
Still, some have questioned whether, at this point, the outcome of the numerous same-sex marriage cases pending in courts throughout the country even matters. In their view, the ripple effect of progress elsewhere – particularly in conservative states like Texas and Oklahoma – is enough of a victory to sustain morale until the Supreme Court legalizes marriage nationwide. What is more, they say, same-sex couples wanting to marry are free to do so and will receive many of the same federal benefits their opposite-sex counterparts. That is, of course, so long as the couple is willing to travel in search of equality by marrying out of state.
Pose the question of whether the fight still matters to any of the 23 Whitewood plaintiffs (ten couples, two children, and one widow) fighting for equality, and the answer will undoubtedly be a resounding “yes.” The same can surely be said for the plaintiffs in the four other same-sex marriage cases currently proceeding through Pennsylvania courts, two of which address issues surrounding the marriage licenses that Montgomery County’s Register of Wills, Bruce Hanes, issued for several months after DOMA’s timely death.
There are thousands of same-sex Pennsylvania couples anticipating the day they can marry in the state they call home and be treated equally under Pennsylvania law. They are proud that the fight is taking place on home turf. And, given that, just recently, the Alabama House of Representatives approved a resolution calling for a convention to discuss adding a nationwide same-sex marriage ban to the U.S. Constitution, lawsuits like Whitewood remain a critical component of the fight for marriage equality in the United States.
In light of that importance, though, some have expressed frustration over Whitewood’s comparatively slow advancement through the court. Whitewood was, in fact, the first federal post-DOMA lawsuit filed challenging a state same-sex marriage ban. Vic Walczak, lead Plaintiffs’ attorney from the ACLU of Pennsylvania, appreciates that the wait is trying for Pennsylvanians anxious for their state to get on the right side of history. But, he also wants people to understand that Whitewood’s careful, steady progress was purposeful. According to Attorney Walczak, the lawyers have always “felt the need to develop a full record, both by presenting our clients’ compelling stories to show that same-sex couples are just like other couples who marry, and by presenting expert testimony to debunk all arguments that the discrimination can be justified in any way.” He adds that, because of this methodical approach, “Whitewood may be an especially attractive candidate, when and if the Supreme Court selects a same-sex marriage case for review.”
Ultimately, Whitewood could be the case in which the Court decides, once and for all, to untether states’ same-sex marriage bans from their unconstitutional moorings and embrace marriage equality for all. First to set sail, Pennsylvania’s same-sex marriage case may end up making the biggest wave of all.
A substantially similar version of this article was published in on pages 102-105 of Equal Magazine’s June 2014 edition, which can be found online at http://issuu.com/pittsburghpride/docs/equal_magazine_may_june_issuu. This article is published here with express permission from the Delta Foundation.