RIGHT TO MARRY LAWSUITS SET TO SKYROCKET AFTER DOMA DECISION

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By: Rob Tyler

            Just weeks after the U.S. Supreme Court’s landmark decision overturning Section 3 of DOMA, there has been a drastic increase in the number of lawsuits filed throughout the country challenging state laws and constitutional amendments that prohibit same-sex marriage.  At the forefront are lawsuits filed in Pennsylvania, Arkansas and Illinois.

            The reason for this sudden influx appear two-fold.  First, the U.S. Supreme Court did not address how a couple who marries in a state that recognizes same-sex marriage is treated for federal purposes if the couples actually resides in a state that does not permit same-sex marriage.  Second, the U.S. Supreme Court failed to decide the fate of same-sex marriage in the states that do not currently recognize such marriages.

            The Pennsylvania suit, Whitewood v. Corbett, addresses both of these issues.  Of the 10 couples who initiated the suit, half have legally married in other states, but, of course, those marriages are not recognized in Pennsylvania.  The other couples are Pennsylvania residents who are unable to get married under current Pennsylvania law. 

              Interestingly, the complaint filed in Whitewood includes a sex discrimination claim, which may appeal to Justice Kennedy, who raised the sex discrimination issue during oral argument for Hollingsworth v. Perry.   However, the Supreme Court never actually addressed the sex discrimination issue in either the Perry or Windsor opinion.  As such, if Whitewood is appealed to the Supreme Court, the sex discrimination issue may be one of “first impression” for the Court.

             In the Illinois case, Darby v. Orr, the ACLU has filed a motion for summary judgment, requesting a swift end to the harm and indignity that same-sex couples without the freedom to marry face, which may include the continued inability to access federal marriage benefits.  The motion includes the testimony of a number of experts who believe that now is the appropriate time to legalize same-sex marriage across the country.     

            The Arkansas case, Wright v. Arkansas, contains claims that Arkansas’ constitutional ban on same-sex marriage violates the equal protection clause of the U.S. Constitution and the due process clause of the Arkansas Constitution.  Furthermore, the case seeks a ruling that the ban violates the Full Faith and Credit Clause of the U.S. Constitution by not extending to Arkansas citizens the same marriage rights that are available in other states, and by refusing to recognize same-sex marriages that have been entered into lawfully in other states.  A second lawsuit in Arkansas is rumored to be filed soon, and there have also been two proposals to amend the Arkansas Constitution to allow for same-sex marriage.

            According to the ACLU, its campaign for equal rights for same-sex couples has only just begun.  The ACLU plans on filing similar suits in North Carolina and Virginia.  With this kind of a push, and with Section 3 of DOMA overturned, state laws/amendments that prohibit same-sex couples from marrying are beginning to appear quite vulnerable.  As always, we will continue to keep you updated as these, and other, lawsuits develop.

Rob Tyler is an associate in the firm’s Pittsburgh office and focuses his practice on a variety of litigation matters.  He is also a member of the Nontraditional Couples and Families Group.

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