The Corbett administration wants the U.S. Court of Appeals for the Third Circuit to settle what it sees as an open question of law—the bearing of a 1972 U.S. Supreme Court decision on challenges to Pennsylvania’s ban on same-sex marriage.

It has pointed to the high court’s opinion in Baker v. Nelson in the motions to dismiss that it has filed in both federal suits brought in the last few months aimed at dismantling the state’s ban on same-sex marriage.

A federal judge in Harrisburg earlier this month rejected the administration’s argument that Baker would preclude the case—he has set a trial date for June 9.

The federal judge presiding over the case brought in Philadelphia hasn’t yet ruled on the issue. The motion to dismiss was just filed this week.

The administration’s lawyers, from Lamb McErlane, asked U.S. District Judge John E. Jones III of the Middle District of Pennsylvania to certify its question for interlocutory appeal to the Third Circuit.

“Given the Third Circuit’s lack of guidance, together with the conflicting and contradictory case law from other courts, a substantial ground for difference of opinion exists as to the issue for which defendants seek certification of the order,” William Lamb argued in the motion for certification filed this week.

He cited several other courts—the First Circuit, the District of Nevada, the Middle District of Florida and the District of Hawaii—that have held the opposite of Jones, finding that Baker still stands as binding precedent from the Supreme Court.

That short opinion had dismissed an appeal from the Supreme Court of Minnesota that upheld a state law banning same-sex marriages, saying that it didn’t violate the due process and equal protection clauses of the Constitution.

Developments in the law over the last 40 years have undercut the significance of that opinion, Jones ruled.

“We ultimately do not find it controlling due to the significant doctrinal developments in the four decades that have elapsed since it was announced by the Supreme Court,” Jones said.

“The jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972,” Jones said. “The Supreme Court has decided several cases since Baker which demonstrate that it no longer views constitutional challenges based on sex or sexual identity classifications as unsubstantial.”

But, the Third Circuit hasn’t ruled on the issue, according to Lamb’s brief.

“The issue of doctrinal development is reserved for the United States Supreme Court to decide, not the several district courts,” Lamb said at a case management conference last week, telling Jones that he planned to seek interlocutory appeal.

“Pennsylvania is the only state within the jurisdiction of the Third Circuit Court of Appeals that will present this issue to that court because both New Jersey and Delaware already allow same-sex marriage,” Lamb’s brief said in a footnote.

Pennsylvania is the only northeastern state that doesn’t recognize same-sex unions and its definition limiting marriage to one man and one woman has been under attack since the summer. Five lawsuits are winding through various state and federal courts in Pennsylvania challenging the state’s ban. They were all brought in the wake of the U.S. Supreme Court’s landmark decision issued in June striking down the same definition of marriage in the federal Defense of Marriage Act. Pennsylvania’s law is colloquially referred to as “mini DOMA.”

Anticipating that the U.S. Supreme Court’s opinion, United States v. Windsor, could be argued to void the effect of Baker, Lamb argued in the brief to support the administration’s motion to dismiss the case filed in the Eastern District of Pennsylvania that it didn’t explicitly overrule Baker.

That case, brought about two months after the one in the Middle District, is in front of U.S. District Judge Mary A. McLaughlin.

Unlike the other suit in federal court, which is brought under the due process and equal protection clauses of the 14th Amendment, the Eastern District suit focuses on the full-faith and credit clause of the Constitution and the right to travel. The plaintiffs were married in Massachusetts in 2005, a union not recognized in Pennsylvania.

“In reaching its decision in Windsor, the Supreme Court majority took great pains to acknowledge that regulation of domestic relations matters traditionally has fallen within the exclusive province of the states,” Lamb said in the brief, casting the Windsor decision as a states’ rights opinion.

Also, he said, “While widely regarded as having struck down the federal Defense of Marriage Act, the Supreme Court’s decision in Windsor struck down only one of DOMA’s provisions—Section 3, which defines ‘marriage’ for purposes of federal law as limited to the union of one man and one woman. The Supreme Court did not strike down DOMA’s other important provision—Section 2—which provides that states are not required to recognize same-sex marriages performed in a different state.”

The plaintiffs in that suit are to respond by Dec. 20.

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