Attorneys retained by the Corbett administration have responded to two of the lawsuits challenging Pennsylvania’s ban on same-sex marriage.

One response was submitted in an action filed against the state government in common pleas court, and the other in the high-profile suit backed by the American Civil Liberties Union in federal district court, in which Governor Tom Corbett and other state officials were named as defendants.

In both cases, the state defendants are represented by William Lamb of Lamb McErlane.

In the response to the state-court suit, Lamb argued that the plaintiffs named no officials nor agencies as defendants and the state itself is cloaked in sovereign immunity.

The same immunity that shields the state extends to the governor, Lamb argued in the response to the federal suit that named Corbett as a defendant.

Michael Wolf, the secretary of the Pennsylvania Department of Health, was also named as a defendant in that case.

“The claims against both Corbett and Wolf should be dismissed because this court is precluded from exercising federal subject-matter jurisdiction over any of plaintiffs’ claims under the United States Supreme Court’s decision in Baker v. Nelson,” Lamb argued.

In that 1972 opinion, the Supreme Court held that the question about another state’s ban on same-sex marriage was one that should not be answered by the federal courts, according to Lamb’s brief.

Baker involved a request to the United States Supreme Court to review an appeal from the Supreme Court of Minnesota, which had held that a state law banning same-sex marriages did not violate the due process and equal protection clauses of the United States Constitution. When the losing plaintiffs appealed (as was their right under federal law at the time), the U.S. Supreme Court held that the appeal failed to raise a viable and justiciable federal question,” Lamb argued.

“Federal courts throughout the country recognize that Baker is binding in cases involving challenges to marriage laws,” he said, citing five such cases over the last eight years, all of them before the Supreme Court’s ruling in United States v. Windsor in June.

Anticipating that the plaintiffs might argue that Windsor, which gutted the federal Defense of Marriage Act by killing the definition of marriage as being between one man and one woman, would moot Baker, Lamb argued against that point.

He noted, first, that Windsor acknowledged the traditional power of states to regulate matters of domestic relations.

He also emphasized the fact that the Supreme Court left untouched the provision in DOMA that allows states to decide whether or not they will recognize same-sex marriages formed in other states.

“Moreover, and more importantly, Windsor did not overrule the longstanding precedent of Baker. In fact, the Supreme Court majority in Windsor does not even address or mention Baker,” Lamb said.

He also drew a significant line between the plaintiffs’ vision for the course of the case and that of the defendants.

“While plaintiffs have urged and will continue to urge this court to allow them a full-blown trial, the truth of the matter is that this case should and must be decided by this court as a matter of law without the need for any witnesses, testimony or exhibits,” Lamb said.
Mark Aronchick of Hangley Aronchick Segal Pudlin & Schiller, who is working with the ACLU on the federal case, has said repeatedly that they plan to build a full and complete record in the district court to brace the suit as it inevitably works its way up through appeal. The case is before U.S. District Judge John E. Jones III of the Middle District of Pennsylvania.

However, Lamb argued, “This court need only determine, as numerous other federal courts have, that the Supreme Court’s decision in Baker is binding on this court and that only the Supreme Court (should it choose to do so) may overrule this precedent.”

The state-court suit, which makes claims only under Pennsylvania’s constitution, was brought by two women who were married this summer after a Montgomery County clerk started issuing marriage licenses to same-sex couples. He was prompted by the ACLU’s federal suit, which led to a high-profile move by Attorney General Kathleen Kane announcing that she wouldn’t defend the law since in her judgment it is unconstitutional.

Lamb argued that the plaintiffs’ contention that the state’s law denies them equality based on their gender is unpersuasive.

“The Marriage Law does not deny individuals equality under the law based on sex. Rather, the Marriage Law treats men and women equally, allowing both a man and a woman to enter into the contract of marriage with someone of the opposite sex.

“Men and women also are treated equally under the law with respect to the benefits and burdens received that one receives after marriage. There is no distinction under the law respecting the benefits accorded to and burdens imposed upon a married man and a married woman. They are treated identically,” he said.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.