The federal judge hearing a challenge to Pennsylvania’s ban on same-sex marriage said he will decide by mid-November if there’s anything left of the case to go to trial.
U.S. District Judge John E. Jones III of the Middle District of Pennsylvania told a dozen lawyers gathered in his Harrisburg courtroom Wednesday at a case management conference that he plans to order an expedited briefing schedule in the closely watched case. He’ll resolve all motions by the middle of next month, Jones estimated.
“I don’t think that’s too ambitious for me,” he told the lawyers, six of whom were representing the 23 plaintiffs. Five lawyers were representing the various defendants, including Governor Tom Corbett and Michael Wolf, secretary of the state Department of Health.
That pair is represented by William Lamb of Lamb McErlane, who filed motions to dismiss earlier this week. The same-sex couples bringing the suit are represented by Mark Aronchick of Hangley Aronchick Segal Pudlin & Schiller and lawyers from the American Civil Liberties Union, which has put resources from its national organization behind this suit. It is also involved in similar suits across the country.
There’s no reason that the trial, if there is to be one, couldn’t happen next year, Jones said.
But Aronchick pressed for a trial in the first quarter of 2014.
“Really and truly, this case could be ready in February or March,” Aronchick told the judge, referring to a trial date.
“Honestly, that might be a little ambitious,” Jones said.
He had started off the conference by saying, “We have wildly disparate notions of when the trial should occur — approximately a year apart.”
In reviewing the case management plan, Jones said, “I thought to myself, we can probably all agree that it’s October 9 of 2013, beyond that, I’m not sure.”
He’ll stay discovery until he’s decided on the motions, Jones said, and, “if the case survives, or portions of the case survive, for the individual defendants who remain in the mix thereafter, discovery proceeds accordingly.”
Witold Walczak, legal director for the ACLU of Pennsylvania, told Jones that they have already served discovery on the defendants and characterized it as not burdensome.
“We may be able to have discussions with the defendants about who the proper parties are in this case,” Walczak said. “All we know is that at the end of the day, we’re fairly certain there’s going to be somebody left standing on behalf of the commonwealth and the commonwealth, through those officials, will be responding to our interrogatories.”
Also named as defendants are two county officials and Attorney General Kathleen Kane, who announced this summer that she wouldn’t defend the state’s same-sex marriage ban.
Turning to Lamb, Jones said of the argument in his recently filed motion to dismiss, “You say that Baker v. Nelson is game, set, match.”
Lamb had argued in his brief that both officials 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.”
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.
If Jones agrees with Lamb and dismisses the case in November, the plaintiffs will appeal to the U.S. Court of Appeals for the Third Circuit, Walczak and Aronchick said after the conference.
If there is to be a trial, which is what the plaintiffs have been shooting for in order to develop a full record for the case as it moves toward the U.S. Supreme Court, it will be scheduled at the next case management conference, set for November 22 in Harrisburg