Gay Wedding Exchanging Rings

A challenge to both the state and federal law governing same-sex marriage should be decided without reaching the federal Defense of Marriage Act, the U.S. Attorney General’s Office said in a statement of interest declining to intervene.

A couple who had been married in Massachusetts and were unable to have their union recognized when they later moved to Pennsylvania brought a challenge in federal court in Philadelphia in September, following the U.S. Supreme Court’s landmark decision in June that struck down the provision of the federal Defense of Marriage Act, or DOMA, that defined a marriage as being only between a man and a woman. The provision of that law, Section 2, which allows states to decide whether or not they will recognize same-sex marriages performed elsewhere, still stands.

Pennsylvania has a state law that was modeled on the federal DOMA, often called “mini-DOMA,” that still defines marriage as being only between a man and a woman.

This suit, brought by Cara Palladino and Isabelle Barker, challenges both the federal DOMA—Section 2, specifically—and the state law.

“Plaintiffs lack standing to challenge Section 2 of DOMA because the harm they claim is caused not by Section 2, but by the Pennsylvania statute prohibiting recognition of their same-sex marriage,” according to the statement of interest filed by the U.S. Attorney General’s Office.

“This court can accordingly resolve this case solely by determining the constitutionality of the Pennsylvania statute, and it need not and should not address plaintiffs’ conditional challenge to Section 2,” the statement of interest said.

The state law, Section 1704, restricts marriage to heterosexual couples and declares that same-sex marriages from other states will be void in Pennsylvania. It is the subject of several other legal challenges, all of which were filed on the heels of the U.S. Supreme Court decision in June in United States v. Windsor.

The first of those cases, brought in the U.S. District Court for the Middle District of Pennsylvania, is scheduled to go to trial in June. That case doesn’t challenge Section 2 of the federal DOMA, only the state law.

U.S. District Judge Mary A. McLaughlin of the Eastern District of Pennsylvania, who is presiding over the Palladino case that had named various state officials as defendants, had certified the case to the U.S. attorney general in November to give federal officials a chance to join the case.

But, that office decided that “it will not intervene at this time because the court can and should resolve this case without reaching the issue of Section 2′s constitutionality,” according to the statement of interest.

“It is well-established that a court should avoid reaching the issue of the constitutionality of an act of Congress unless essential to the decision of a case,” according to the statement, which cited to several opinions from courts including the U.S. Court of Appeals for the Third Circuit and the U.S. Supreme Court.

Beyond that, Palladino and Barker don’t have standing to reach Section 2 of the federal DOMA, the Attorney General’s Office argued, because their injury isn’t due to Section 2 nor would it be cured if Section 2 were found to be unconstitutional.

“A declaration that Section 2 is unconstitutional would not remedy plaintiffs’ injury, because Section 1704 would still preclude Pennsylvania from recognizing their Massachusetts marriage,” according to the statement of interest.

It is the state law, Section 1704, to which their injuries can be traced, the office argued.

“At least one federal district court has found in circumstances similar to this case that a same-sex couple seeking recognition of their out-of-state marriage by their state of residence lacked standing to challenge Section 2 of DOMA,” the Attorney General’s Office said, citing an opinion from earlier this year in the Northern District of Oklahoma in a case called Bishop v. Holder.

That case had been brought by a couple who was married in California and couldn’t get recognition of their union in Oklahoma.

There, “the court held that Section 2 was not causally related to the plaintiffs’ asserted injuries,” the Attorney General’s Office said. “The court reasoned that ‘the injury of non-recognition stems exclusively from state law.’”

The Attorney General’s Office urged McLaughlin to see the Palladino case in the same light.

The office also noted that the defendants in this case, Gov. Tom Corbett and Pennsylvania Attorney General Kathleen Kane, haven’t relied on Section 2 of the federal DOMA.

“Corbett has argued that Section 2 is a valid exercise of Congress’s power under the full faith and credit clause of the Constitution, but he also has argued that a determination as to the constitutionality of Section 2 ‘would have no effect’ on the Pennsylvania law challenged by plaintiffs: ‘With or without DOMA, the full faith and credit clause does not compel Pennsylvania to define and recognize marriage according to Massachusetts law,’” the U.S. Attorney General’s Office said, quoting from Corbett’s motion to dismiss the case.

If McLaughlin does end up reaching the question of Section 2′s constitutionality, the U.S. Attorney General’s Office will seek to intervene, it said.

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