Marriage Equality Demonstrators (bh)
Immediately following U.S. District Judge John E. Jones III of the Middle District of Pennsylvania’s ruling overturning the state’s ban on same-sex marriage, many Pennsylvania attorneys were exuberant about the decision, but several also wondered with some trepidation what comes next.
Angela D. Giampolo, a Philadelphia attorney who chairs the Gay and Lesbian Lawyers of Philadelphia (GALLOP) organization, said Tuesday afternoon she hoped the Corbett administration would make a quick announcement regarding whether it intended to appeal the decision to the U.S. Court of Appeals for the Third Circuit so as to avoid a “Utah situation.”
A federal judge overturned Utah’s same-sex marriage ban in December and more than 1,000 gay couples married over the following two weeks before the U.S. Supreme Court issued an emergency stay in early January.
Utah officials argued that they had to wait until the case was resolved on appeal before they could grant those couples benefits but, this past Monday, a federal judge ordered them to recognize the marriages.
Giampolo said she was advising her clients Tuesday afternoon that Jones’ ruling in Whitewood v. Wolf was not necessarily the end of the line for Pennsylvania’s same-sex marriage ban.
“What I’m telling my clients as they’re calling me right now is, ‘We just don’t know yet. We’re not out of the woods yet,’” Giampolo said.
Giampolo said there is no current challenge to Pennsylvania’s marriage law pending in the Third Circuit so there’s a real possibility the Corbett administration will choose to appeal in Whitewood.
“If I’m objective about it, it would actually make total sense to appeal,” Giampolo said.
Julia Swain, a partner in Fox Rothschild’s family law practice, said she also expects the state will appeal the decision but noted that Jones’ opinion and order in Whitewood was clear that same-sex couples can immediately marry in Pennsylvania and that Pennsylvania must immediately recognize the marriages of same-sex couples who wed out-of-state.
Swain said she would advise clients that they may go ahead and get married but with the understanding that the final word on the state’s marriage ban may not come for at least another year.
Daniel J. Clifford, a family law attorney with Weber Gallagher Simpson Stapleton Fires & Newby who recently helped get a marriage equality resolution approved by the Pennsylvania Bar Association, said he anticipates that, if the state does plan to appeal, it will likely move to stay Jones’ ruling before the mandatory three-day waiting period for all Pennsylvania marriages expires.
At that point, Clifford said, it will be up to Jones to decide whether to grant the stay pending appeal.
Clifford said he looks at the fight for marriage equality as a “brick-by-brick process” that began with the U.S. Supreme Court’s decision in United States v. Windsor last year.
“Roughly 11 months later you’re seeing the second brick,” Clifford said. “Will we get the third brick with the circuit courts?”
While the future of the Pennsylvania gay marriage ban remains unclear, the uncertainty didn’t stop many in the legal community from celebrating Jones’ ruling as a victory for equal rights.
“Champagne corks will definitely be popping in Pennsylvania tonight,” Flaster Greenberg attorney Abbe Fletman said.
Fletman, who also serves on the advisory board of the LGBT health and wellness organization, the Mazzoni Center, said she was delighted to finally have her marriage recognized in Pennsylvania.
“Before two o’clock [Tuesday] I was married in the state of Delaware, but not the commonwealth of Pennsylvania,” Fletman said. “There is a bundle of rights now available to same-sex couples.”
“If, God forbid, I died tomorrow,” Fletman continued, “my wife would no longer be fighting over whether she had to pay taxes on my half of the house.”
Philadelphia Bar Association Chancellor William P. Fedullo said his organization was “thrilled that Jones has brought Philadelphia and Pennsylvania into the 21st century.”
“It’s the exact right ruling. It’s overdue. We’re finally joining our brother and sister states of Delaware, New York and New Jersey.”
Swain called it a historic day for Pennsylvania and praised Jones’ opinion for its “elegant simplicity.”
“It’s a very straightforward, simply written decision but it will have a dramatic impact,” Swain said, adding that Jones’ opinion is “very strong in its legal conclusions and the legal bases he relies on for his conclusions.”
Clifford said the decision was a “fantastic move forward” for marriage equality.
Cletus P. Lyman, a principal of Lyman & Ash and one of the founders of GALLOP, called Jones’ decision “one of the strongest district court opinions in favor of marriage equality” to come down thus far, pointing specifically to Jones’ application of heightened scrutiny to his equal protection analysis of the marriage ban.
Not every lawyer in Pennsylvania praised Jones’ decision, however.
Randall Wenger, chief counsel to the Pennsylvania Family Institute, said his organization disagreed with Jones’ ruling because it undermines the traditional definition of marriage.
“We all want a more civil and loving society, but I don’t think we achieve that by forcing through the courts a new definition of marriage,” Wenger said. “The people of Pennsylvania deserve to believe that there is something unique about a man and a woman making a life together.”
Wenger said the interests of Pennsylvanians would be best served by having a public debate on the issue and not a discussion that has been “short-circuited by the opinion of a judge.”
Pointing to U.S. Supreme Court Justice Antonin Scalia’s dissent in Windsor, Wenger said the justice recognized that “folks who believe that marriage is between a man and a woman are treated like enemies of the state.”
“The decision that was meant to expand tolerance’s abilities may actually be undermining that,” Wenger added.
When asked how Jones’ decision could negatively impact Pennsylvanians, Wenger said, “We have yet to see what the long-term effects are of same-sex marriage, but there are a lot of effects. It continues to change the notion of what marriage is.”