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Family Law Update

May 2014

Whitewood v. Wolf Legalizes Same-Sex Marriage in Pennsylvania

by Kelly Martin - McNees Wallace & Nurick LLC 2014 Summer Associate

In a decision handed down on May 20th, Federal District Judge John E. Jones III  struck down Pennsylvania's ban on same-sex marriage, concluding that "all couples deserve equal dignity in the realm of civil marriage." Whitewood v. Wolf, No. 1:13-CV-1861, 2014 WL 2058105, at *1 (M.D. Pa. May 20, 2014).

 

Five same-sex couples seeking to marry in Pennsylvania, six couples and a widow seeking recognition for their out-of-state marriages, and two teenage daughters of one couple filed suit on July 9, 2013, asking the court to declare Pennsylvania's ban on same-sex marriage an unconstitutional violation of their civil rights. The defendants included Secretary of the Pennsylvania Department of Health Michael Wolf and Register of Wills and Clerk of Orphan's Court of Bucks County Donald Petrille, Jr.

 

Since 1996, two provisions of Pennsylvania's Domestic Relations Code have limited marriage to opposite-sex couples and denied recognition to same-sex marriages legally obtained in other jurisdictions. See 23 Pa. C.S. §§ 1102, 1704. At the time, Pennsylvania joined thirteen other states with similar provisions, and another eleven states followed suit in the next year. After eighteen years, the Middle District's Whitewood v. Wolf decision announced that the state's ban on performing and recognizing same-sex marriages violated both due process and equal protection rights as guaranteed by the Fourteenth Amendment to the United States Constitution. Whitewood, 2014 WL 2058105, at *1.

 

Power to Decide the Case

In response to Defendants' renewed objections to federal jurisdiction, the Honorable Judge Jones began by reiterating that a substantial federal question did exist in the case and that Baker v. Nelson no longer controls classifications based on sexual orientation. Id. at *4-*5.[1] Judge Jones described the doctrinal developments in the areas of constitutional due process and equal protection since Baker as undergoing nothing less than a "sea change." Whitewood, 2014 WL 2058105, at *5. The Middle District now joins numerous federal circuits and district courts in rejecting Baker's precedential value for classifications based on sexual orientation. Id.

 

Next, Defendants argued that Plaintiffs had failed articulate cognizable, personal harms suffered under the current Pennsylvania marriage laws, which would prevent Plaintiffs from succeeding on their § 1983 claim. The opinion dispensed with this argument quickly by acknowledging daily struggles that same-sex couples face regarding childcare and adoption, healthcare, taxation, end-of-life planning, and financial protection. Id. at *6. After dispensing with the threshold issues, Judge Jones addressed the due process and equal protection implications of Pennsylvania's ban on same-sex marriage.

 

The Fundamental Right to Choose A Spouse

The opinion describes marriage as a fundamental right older than the Bill of Rights itself. Id. at *7 (quoting Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). The court compared Pennsylvania's ban on same-sex marriage to Virginia's laws against interracial marriage – struck down in Loving v. Virginia – and Missouri's regulation of prisoners' marriages – struck down in Turner v. Safley. See 388 U.S. 1 (1967); 482 U.S. 78, 95-96. Based on the precedent of these landmark decisions, the Middle District of Pennsylvania concluded that the right to marry – and the right to marry an individual of one's choosing – are fundamental rights that the Constitution has always guaranteed to individuals like the Plaintiffs in this case. Whitewood, 2014 WL 2058105, at *8.

           

It followed from the conclusion that marriage to a person of one's choice is a fundamental right that the state's refusal to recognize legal marriages from other jurisdictions violates same-sex couples' due process rights. Id. at *9. After declaring Pennsylvania's ban on same-sex marriage to be an unconstitutional violation of the fundamental right to marry a person of one's choosing, the court went on to analyze the proper degree of scrutiny to apply under the equal protection clause for classifications based on sexual orientation. Id.

 

Only "Equal" Remains

The Plaintiffs in Whitewood pressed the court to apply heightened scrutiny to a classification based on sexual orientation, while the defendants argued for more deferential rational basis review. Id. at *10. Although Plaintiffs argued that the statutes represented a gender-based prejudice, this assertion did not persuade the court. Id. at *10 n.9. Rather, the court agreed that the classifications merited heightened review because they differentiated based on sexual orientation – not gender. Id. at *10.

 

The court opined that neither the Third Circuit nor the Supreme Court has offered an explicit answer on how to treat sexual orientation classifications but noted that neither court has foreclosed the possibility of applying the strictest scrutiny. Id. The standard that the Supreme Court applied to classifications based on sexual orientation in United States v. Windsor[2] has been described as anything from intermediate scrutiny to "rational basis with bite." Id. at 11. To determine the appropriate level of scrutiny, Judge Jones first determined whether homosexuality represents a quasi-suspect class. Id.

 

Defendants argued that homosexuals do not represent a quasi-suspect class because the group has political power and has experienced no historical discrimination, but the court concluded that the nation's history of discriminatory legislation and exclusionary culture heavily favored the application of heightened scrutiny. Id. at *12. The court considered state-sanctioned moratoriums on immigration and citizenship, hiring, military service, GI benefits, adoption, and criminalization of homosexual intimacy as recently as 2003. Id. at *12. The court conducted a holistic national survey, rather than the narrower, recent history of only Pennsylvania for which the Defendants' argued. Id.

 

Finally, the court considered the homosexual community's political power. Id. Citing again to the Supreme Court's reasoning in Windsor, the court focused the inquiry on whether homosexuals "have the strength to politically protect themselves from wrongful discrimination" as opposed to asking whether the group has achieved recent successes. Id. The court likened the current political power of homosexuals to that of women in 1973, when the Supreme Court considered the latter a quasi-suspect class despite recently-improved political standing. Id. For the court, the recent victories of homosexuals in the political and cultural spheres did not outweigh the looming backdrop of historical biases. Id.    

 

Focusing the on the historical and continued lack of statutory protections for homosexuals regarding discrimination in housing, public accommodation, hiring, and firing, the court found that all factors weighed in favor of finding homosexuality to be a quasi-suspect classification deserving of heightened scrutiny.

 

Little Deference for the Pennsylvania Marriage Laws

Defendants argued that Pennsylvania's ban on same-sex marriage served the state's interest in promoting procreation, protecting child-rearing and the well-being of children, preserving tradition, and providing economic protections for the state's businesses. However, Defendants only argued these objectives represented "legitimate" as opposed to "important" state interests as required under heightened review. Id. at *15.

 

In the face of Defendant's lack of argument, and unable to articulate what a successful argument against the marriage laws might look like, the court found that Defendants had failed to meet their burden under heightened review. Striking down the Pennsylvania marriage laws as unconstitutional, the court cautioned that just because "same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection." Id.

 

A Decision Here to Stay

After Judge Jones's decision, and after Governor Tom Corbett's announcement the following day that he would not appeal the decision, Pennsylvania became the final northeastern state to recognize marriage equality. Pennsylvania joins a list of states where courts have struck down similar laws against performing and recognizing same-sex marriages. Recent decisions in Idaho, Utah, Oklahoma, Virginia, Texas and Michigan are currently on hold pending the results of appeal. Same-sex marriage is now legal in the District of Columbia and nineteen states across the country. Plaintiffs have filed suits challenging the constitutionality of the bans on same-sex marriage in all of the remaining states, except North Dakota. A case challenging this last state's statute is expected within the next 6 to 8 weeks.

 

The Middle District of Pennsylvania's decision met with heated tension between staunch traditional norms and a modern movement with nationwide momentum. Judge Jones anticipated the fiery reaction of some with these final words of guidance: "We are better people than what these laws represent, and it is time to discard them into the ash heap of history."


[1] Considering Baker v. Nelson in 1972, the U.S. Supreme Court addressed an appeal regarding the constitutionality of a Minnesota law prohibiting same-sex marriage. 409 U.S. 810, 810 (1972). The court announced that no substantial federal question – and therefore, no subject matter jurisdiction – existed in the case. Id.

[2] 133 S. Ct. 2675 (2013). In its opinion last June, the Supreme Court of the United States found the federal Defense of Marriage Act's one man and one woman definition of marriage to be an unconstitutional violation of the plaintiffs' basic Fifth Amendment due process and equal protection rights. Id. at  2693. Judge Jones's opinion likened the Pennsylvania ban on same-sex marriage to DOMA's "interference with the equal dignity of same-sex marriages." Whitewood, 2014 WL 2058105, at *9.


 
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