Twenty-one same-sex couples who received marriage licenses in Montgomery County this past summer sued the state last week in an effort to have their marriages recognized.
The couples filed suit in Commonwealth Court Sept. 24, calling on the court to find the state’s ban on same-sex marriage to be unconstitutional and to rule that their licenses are valid.
Defendants include Gov. Tom Corbett, Attorney General Kathleen Kane and Health Secretary Michael Wolf. The defendants have 30 days to file a preliminary objection, which functions as a motion to dismiss, or to answer the motion, which would then send the case to a judge.
Montgomery County Register of Wills D. Bruce Hanes began issuing licenses to same-sex couples in July, a practice that was stopped last month by a Commonwealth Court judge, following a suit from the state Department of Health. The judge in that case found that Hanes was acting outside of his authority by deciding to not enforce a law he deemed unconstitutional; the judge, however, did not rule on whether the state ban on same-sex marriage is indeed unconstitutional, nor did he determine the validity of the licenses that were issued.
An appeal in that case was filed Oct. 1.
The latest suit contends that the state ban violates same-sex couples’ federal and state equal-protection and due-process constitutional guarantees, as well as the state Equal Rights Amendment, which prohibits discrimination on the basis of sex. It calls on the court to nullify the state law, issue a declaratory judgment finding the couples’ marriages valid and award injunctive relief to the plaintiffs if it sees fit.
The plaintiffs include 15 lesbian couples and six gay male couples. They were among 174 same-sex couples who received licenses from Hanes’ office during the window in which they were being issued.
More than 30 of those couples had petitioned the court to intervene in the suit against Hanes, a request that was not ruled upon. Plaintiffs’ attorney Sandy Bilus of Dechert LLP said the plaintiffs in this suit came from the group of potential intervenors, with a few couples deciding not to get involved.
The suit details the myriad challenges the couples have faced because of the state’s marriage law. For instance, several dealt with financial and emotional stress during the second-parent adoption process. Others have paid higher rates for health insurance and taxes on the insurance that heterosexual couples are not required to pay. One couple, the suit stated, bought added life insurance to contend with the state’s inheritance tax, from which heterosexual married partners are exempt.
“Not being able to be married affects a lot of potential benefits and protections,” Bilus said. “Even though my clients are engaged in long-term, loving, committed relationships, because they were not allowed to be married, they had a lot of uncertainties and fears.”
Also last week, a lesbian couple filed suit in federal court in Pennsylvania, calling for state recognition of legal same-sex marriages performed in other jurisdictions. This past summer, the American Civil Liberties Union of Pennsylvania filed suit in federal court on behalf of same-sex couples and their families.
In that case, Kane declined to defend the state ban on same-sex marriage, saying she found it unconstitutional, and its defense was taken up by the governor’s attorneys. Kane has not yet announced if she will take a similar course in this case and the new federal suit, and did not respond to a call for comment from PGN.
“She hasn’t officially declined to defend or delegated that responsibility but knowing what she’s done in the other case, I wouldn’t be surprised if that’s what happens,” Bilus said.
The attorney noted that each of the pending suits presents a unique challenge to the law, which he said is a good approach.
“It might be challenging for the governor to defend against all these suits, but they’re all raising slightly different issues and involve different people,” Bilus said. “The ACLU suit is only raising federal claims under federal law. Ours is raising state and federal claims and involves people married in Pennsylvania. The new federal suit is a challenge to the piece of the law that doesn’t allow you to get married elsewhere and have that marriage recognized. It’s looking at it on multiple fronts, and I think it shows that there are a lot of problems with this law and that there are a great number of people who agree that it should be held unconstitutional.”
