Gay Wedding Exchanging Rings

Pennsylvania’s “mini-DOMA” has the same discriminatory purpose and effect as the federal Defense of Marriage Act on which it was based, plaintiffs in one of the challenges to the state’s ban on same-sex marriage argued in their opposition to the Corbett administration’s objections to their suit.

The state’s law restricting the definition of marriage as being between one man and one woman should be struck for the same reason the U.S. Supreme Court struck it from the federal law, lawyers in the case, led by Robert Heim of Dechert, argued in Ballen v. Corbett. The case, brought by same-sex couples who were granted marriage licenses by a Montgomery County clerk before he was ordered to stop last summer, is in the Commonwealth Court. The administration is represented by lawyers from Lamb McErlane, as it is in the other challenges to the state’s marriage law.

“Crucially, the Supreme Court of the United States recently held that the federal Defense of Marriage Act … was unconstitutional under ‘basic due process and equal protection principles’ because the law had the avowed purpose ‘to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages,’” Heim said in the brief, referring to the high court’s opinion in United States v. Windsor that was issued in June.

“Pennsylvania’s marriage law—its own version of DOMA—is no different,” he said.

Heim also countered the argument that Gov. Tom Corbett should be dismissed from the suit since he isn’t a proper party, saying that the governor is responsible for enforcing all of the state’s laws.

Beyond that, he said in the brief that his clients plan to “seek discovery from a wide range of executive departments and officials” and “dismissing the governor could impact plaintiffs’ ability to obtain the discovery they need to prove their case, and thus would impose an undue and unfair burden on plaintiffs.”

The couples who brought the suit in September filed a joint petition with Attorney General Kathleen Kane last month seeking to dismiss her as a defendant since she “is an unnecessary party,” according to the short petition filed with the Commonwealth Court.

The Corbett administration fired back, saying in a response filed this month, “Joint petitioners argue that a discontinuance of the action against the attorney general would not cause unreasonable inconvenience, vexation, harassment, expense or prejudice to the governor. This is completely untrue.”

The lawyers for Corbett, a Republican, argued that dismissing only Kane, who is a Democrat, “implies a motive to inconvenience, harass and/or prejudice the governor with no legitimate justification.”

Corbett, Kane and Michael Wolf, the state’s secretary of health, are named as defendants in the action.

Heim argued in the most recent brief that Corbett and his office function as an all-encompassing defendant, thereby keeping the complexity of the case at a minimum.

“Without Corbett as a defendant, plaintiffs may need to amend their petition to sue all of the inferior executive officers implicated by the marriage law,” Heim argued. “By retaining the governor as a defendant, however, plaintiffs can reach all inferior executive departments or officers for purposes of discovery or ultimate relief.”

The month after the U.S. Supreme Court issued its opinion in Windsor, Kane announced that she wouldn’t defend the state’s marriage law in the first suit to challenge the law that was filed in federal court in July. That move prompted sparring between the Attorney General’s Office and the Office of General Counsel, which is an extension of the executive branch.

Kane called Pennsylvania’s marriage law “wholly unconstitutional.”

“Although Windsor did not directly address the constitutionality of any state law restricting same-sex marriage like Pennsylvania’s marriage law, the Supreme Court’s reasoning supports the conclusion that such laws are unconstitutional,” Heim argued in the brief.

The Montgomery County clerk, D. Bruce Hanes, started issuing marriage licenses to same-sex couples soon after Kane’s announcement. Wolf’s Department of Health in August filed a mandamus action to compel Hanes to stop, which was granted in September. Hanes is appealing that case.

Also among the Corbett administration’s objections was the plaintiffs’ claim of sex discrimination is invalid since both men and women are treated equally under the marriage law.

“Both a man and a woman are equally prohibited from marrying someone of the same sex under the marriage law. There is no distinction in the treatment of a man or a woman under the law,” lawyers for the administration argued in the objections filed last month.

However, Heim answered that argument in the most recent brief, saying, “Half a century of case law from the Supreme Court of the United States and the Pennsylvania courts shows defendants’ ‘equal application’ theory is without merit and should be rejected.”

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