The Whitewoods—from left, Landon, Susan, Abbey, Katie and Deb—pose together after a news conference July 9, 2013, in Harrisburg to announce that they are the lead plaintiffs in Whitewood v. Wolf . Pennsylvania's ban on same-sex marriage was overturned Tuesday.
The Whitewoods—from left, Landon, Susan, Abbey, Katie and Deb—pose together after a news conference July 9, 2013, in Harrisburg to announce that they are the lead plaintiffs in Whitewood v. Wolf . Pennsylvania’s ban on same-sex marriage was overturned Tuesday. (AP photo by Marc Levy)

Pennsylvania’s ban on same-sex marriage is unconstitutional, a federal judge has ruled.
U.S. District Judge John E. Jones III of the Middle District of Pennsylvania joined a dozen other federal courts over the last year in tossing the restriction of marriage to only opposite-sex couples.

“Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional,” Jones said in his 39-page opinion in Whitewood v. Wolf.

Of marriage laws like Pennsylvania’s, modeled on the federal Defense of Marriage Act that had defined marriage as being between one man and one woman, Jones said, “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Visit http://at.law.com/Reaction for reactions from Pennsylvania lawyers to Jones’ ruling.

The case was the first to challenge Pennsylvania’s ban on same-sex marriage since the U.S. Supreme Court’s landmark decision in United States v. Windsor last year, gutting the federal DOMA by declaring that its definition of marriage is unconstitutional.

Jones went a step further, finding that the provision in Pennsylvania’s law, often called “mini-DOMA,” that bars the recognition of same-sex marriages performed in other states is also unconstitutional.

That issue alone is the subject of a separate federal challenge to mini-DOMA in the Eastern District of Pennsylvania.

Since the Corbett administration hasn’t indicated whether or not it will appeal Jones’ decision, “we have a live case,” said Michael Banks of Morgan, Lewis & Bockius, who is representing the challengers in that case, which is in front of U.S. District Judge Mary A. McLaughlin.

If the Corbett administration doesn’t appeal, Jones’ opinion will stand and Pennsylvania’s marriage ban will be dead. In that case, Banks said, they would look to McLaughlin for guidance, but will wait to “see how it unfolds.”

In a hearing last week, McLaughlin pressed the question of what level of scrutiny to apply, since the U.S. Supreme Court hasn’t been clear.

“Indeed, in the tea leaves of Windsor and its forebears we apprehend the application of scrutiny more exacting than deferential,” Jones said, effectively dismissing the use of the lightest level of scrutiny, rational basis, which is highly deferential to the legislature for its passage of laws.

Jones examined the state’s marriage law under the intermediate level of heightened scrutiny after finding that the classification of people based on their sexual orientation is quasi-suspect.

In that discussion, the judge offered an overview of the officially-sanctioned discrimination faced by gay and lesbian people since the Eisenhower administration. In the 1950s, the Philadelphia Police formed a “morals squad” that arrested 200 gay men a month, Jones said in a footnote, and state legislators have sponsored bills to amend the constitution to include the restriction of marriage to heterosexual couples in every session since 2006.

The Corbett administration failed to carry its burden to prove that the marriage law is substantially related to an important governmental objective, Jones held.

“Indeed, it is unsurprising that defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the marriage laws from being invalidated under this more-searching standard,” Jones said, adding in a footnote that several states’ marriage bans have fallen under the more relaxed standard of rational basis review.

He rejected the arguments advanced by the Corbett administration that the state’s restriction of marriage to only opposite-sex couples would foster the state’s interest in procreation and child-rearing.

The case had initially been set for trial in June, but last month both sides agreed to ask the judge to decide the issues as a matter of law on the briefs.

All the cases that have been decided in the year since Windsor have been decided on the briefs except for the federal challenge in Michigan—that state has a marriage law that was approved by voters decades ago, whereas Pennsylvania’s was passed by the General Assembly in 1996. That trial, held earlier this year, included testimony from expert witnesses on behalf of the state who said that children raised by heterosexual couples generally fare better than children raised by same-sex couples.

One such expert, Dr. Mark Regnerus, who is an associate professor of sociology at the University of Texas at Austin, prompted his employer to issue a statement following his testimony. The university said that Regnerus’ “opinions are his own. They do not reflect the views of the sociology department of the University of Texas at Austin. Nor do they reflect the views of the American Sociological Association, which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed.”

The Corbett administration offered no expert witnesses and didn’t depose any of the plaintiffs.

The challengers—11 couples, two teenage children who belong to one of those couples, and a widow—offered six expert reports, 23 depositions from the plaintiffs, and documents.

Since the case was filed last July, Mark Aronchick—of Hangley Aronchick Segal Pudlin & Schiller, who is on the team with the American Civil Liberties Union representing the challengers—has stressed that they planned to build a full and complete record in the district court to brace the suit as it works its way up through appeal.

“Should this case proceed, the record is as full as any,” Aronchick said Tuesday.

Although, he said, referring to Jones’ opinion, he hopes that “all public officials see this as the final definitive word.”

Pennsylvania is the 19th state—following a similar ruling in Oregon the day before—to allow for same-sex marriage, said James Esseks, of the American Civil Liberties Union, who spoke with Vic Walczak, also of the ACLU, during a telephone press conference following the issuance of the opinion. Noting that there are appeals in similar cases pending in half-a-dozen circuit courts, Esseks said, “We’d love to take this to the Third Circuit,” but would rather have it stand.

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

(Copies of the 39-page opinion in Whitewood v. Wolf, PICS No. 14-0811, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)