(Lev Dolgachov)

The novel approach taken in one of the challenges to Pennsylvania’s ban on same-sex marriage has drawn some skepticism from the bench.

The case filed last September—one of several filed in the wake of the U.S. Supreme Court’s decision in United States v. Windsor a year ago—challenging the portion of Pennsylvania’s marriage law that declares same-sex unions formed in other states to be void in the state had two hours of arguments Thursday morning.

Along with the more conventional claims that the state’s law violates the due process and equal protection clauses of the 14th Amendment, lawyers also brought claims under the full faith and credit clause of the U.S. Constitution and also under the right to travel, which are largely untested in relation to the issue of same-sex marriage.

“It just seems to me that it’s a difficult road for the plaintiffs,” said U.S. District Judge Mary A. McLaughlin of the Eastern District of Pennsylvania, referring to the full faith and credit clause argument.

“It is an unconventional road,” said Michael Banks of Morgan, Lewis & Bockius, who is on the team representing the plaintiffs—a lesbian couple who were married while living in Massachusetts in 2005 before they moved to Pennsylvania. Their marriage isn’t recognized in Pennsylvania.

Most challenges to laws banning same-sex marriage, including the one currently proceeding in federal court in Harrisburg, center on alleging violations of the due process and equal protection clauses. But they have also typically targeted bans on the actual marriage of same-sex couples, whereas this case addresses the section of Pennsylvania law that bars the recognition of marriages performed in other states.

Since this is a recognition case, Banks argued, the clause requiring states to heed the judicial proceedings of other states would apply.

Banks likened the situation of seeking recognition in Pennsylvania of a marriage license issued in Massachusetts to a common-law tort case. In that hypothetical, a judgment entered in Massachusetts would be enforced in Pennsylvania even if the underlying claim wouldn’t have prevailed in Pennsylvania courts.

“We are not asking this court to compel Pennsylvania to recognize Massachusetts law,” Banks said, rather, just that “the public act and record should be respected here.”

“The whole point of the full faith and credit, or the primary purpose of it, is to give res judicata effect to judgments entered into in other states, that’s to prevent forum-shopping,” said Maureen McBride, one of the Lamb McErlane lawyers defending the Corbett administration.

“I disagree that by asking Pennsylvania to recognize, through the full faith and credit clause, a marriage entered into in another state that you’re not asking Pennsylvania, in effect, to apply Massachusetts law,” which is at odds with Pennsylvania’s policy, McBride said.

The judge didn’t hear arguments on the theory that the state’s law violates the plaintiffs’ right to travel—Banks said they would stand on the briefs for that argument.

As for the lengthy arguments—nearly an hour—over due process and equal protection, McLaughlin focused on the proper level of scrutiny to apply: rational basis, heightened scrutiny or strict scrutiny.

The plaintiffs haven’t asked for strict or heightened scrutiny, which would make it harder for the state to defend the law, because even under the lightest review, rational basis, the law would clearly fall, Banks said.

He characterized the law’s denial of the fundamental right to marry as “demeaning” and “humiliating” and likened the Corbett administration’s arguments in defense of the law to arguments made in defense of Virginia’s law barring interracial marriage in the Loving v. Virginia case. Ultimately, the U.S. Supreme Court struck down that law in 1967.

Joel Frank of Lamb McErlane argued the plaintiffs hadn’t carried their burden in presenting evidence to show that the law is unconstitutional, so it could withstand the deferential standard of rational-basis review.

“Both of you seem to be saying, ‘use rational basis,’” McLaughlin said. “I would just like to hear what you think the bases are,” she said to Frank.

“I have to decide whether there was a rational basis for Section 1704,” McLaughlin said, referring to the law, and asking Frank to lay out the basic underpinning for the law.

She had asked both lawyers—Banks for the plaintiffs and Frank for the Corbett administration—whether they thought the U.S. Supreme Court’s decision in Windsor had set the standard of review to be applied in cases like this.

Since Justice Anthony Kennedy, who wrote the majority’s opinion in Windsor, didn’t explicitly name the standard of review, McLaughlin pressed the lawyers for their interpretations of that move.

Frank listed for the judge four bases underpinning Pennsylvania’s marriage law: promotion of procreation and the connection between the mother and father; child-rearing and well-being of children since men and women could be seen to bring different assets to parenting; tradition; and economic impact.

“There was no evidence presented to you to overcome the presumption of constitutionality,” Frank said.

As to procreation, Banks argued that opposite-sex couples make no covenant to procreate before they are granted a marriage license and octogenarians, who wouldn’t likely be fertile, can marry in Pennsylvania.

Further, Banks said, the plaintiffs in this case got married and had a baby who they are raising together.

Of the administration’s arguments that the legislature had a rational basis for passing the law, Banks said, “None of that hangs together or makes any constitutional sense.”

“What about the economic-impact argument?” McLaughlin said. “Which, arguably, is the strongest, especially if you’re talking rational basis. Talk to me about that.”

The state didn’t decide that it wouldn’t extend certain benefits to out-of-state couples, Banks said, it created a certain class of people, same-sex couples, who wouldn’t be eligible for benefits.

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