The first challenge brought against Pennsylvania’s ban on same-sex marriage won’t take a detour to the Third Circuit.
U.S. District Judge John E. Jones III of the Middle District of Pennsylvania denied the Corbett administration’s motion for interlocutory appeal. Jones’ ruling keeps Whitewood v. Wolf—which was filed July 9 and presented the first challenge to Pennsylvania’s ban—on track for trial in June 2014.
The administration’s lawyers say that, under a 1972 summary opinion from the U.S. Supreme Court, the challenge can’t proceed. That decision, Baker v. Nelson, rejected as not presenting a federal question an appeal from the Minnesota Supreme Court to uphold a ban on same-sex marriage in that state. The administration argues that Baker precludes the federal court in Harrisburg from hearing the challenge.
The Whitewood case was brought by a dozen same-sex couples seeking either to get married in Pennsylvania or have the state recognize the marriages they had performed elsewhere.
Jones had first rejected that argument last month when he ruled on the administration’s motion to dismiss.
Following that decision, the administration sought to certify the question for review by the U.S. Court of Appeals for the Third Circuit.
“Although defendants arguably present a controlling question of law … we disagree that substantial grounds for a difference of opinion exist on that question,” Jones said in his denial of the motion for certification issued Tuesday.
“As stated by the Third Circuit, ‘indications that there have been doctrinal developments since the summary action will relieve a lower court from the duty to adhere to a summary disposition,’” Jones said, quoting from the Third Circuit’s 1980 opinion in Lecates v. Justice of the Peace Court.
When he rejected the Baker argument in the motion to dismiss, Jones had ruled that developments in the law over the last 40 years have undercut the significance of Baker.
“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 had 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.”
Lawyers for the administration, from Lamb McErlane, had 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 in order to support the move for certification to the Third Circuit.
The plaintiffs, represented by lawyers from the American Civil Liberties Union and Hangley Aronchick Segal Pudlin & Schiller, noted in their opposition to certification that all of those opinions were issued before the U.S. Supreme Court decided in June the landmark case United States v. Windsor, striking down the definition of marriage as being between one man and one woman in the federal Defense of Marriage Act.
Jones agreed with the plaintiffs’ point in a footnote, saying, “While defendants correctly note that conflicting decisions may demonstrate substantial grounds for differing opinions … we again observe, with significance, that all of the cases defendants cite in support of Baker‘s preclusive effect predate the Supreme Court’s decision in United States v. Windsor.”
Similarly, with regard to the administration’s argument that it is the purview of the U.S. Supreme Court and not the district courts to address doctrinal developments in the law, Jones agreed with the plaintiffs’ rejection of that argument. They both cited to the U.S. Supreme Court’s 1975 opinion in Hicks v. Miranda.
“Contrary to defendants’ assertion, this court is rightfully in position to consider and assess such doctrinal advancements,” Jones said.
He has set a trial date for June 9.
(Copies of the five-page opinion in Whitewood v. Wolf, PICS No. 13-3338, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •