The Whitewoods—from left, Landon, Susan, Abbey, Katie and Deb—pose together after a news conference July 9, 2013, in Harrisburg to announce that they are the lead plaintiffs in Whitewood v. Wolf . Pennsylvania’s ban on same-sex marriage was overturned Tuesday. (AP photo by Marc Levy)
Just five days before U.S. District Judge John E. Jones III of the Middle District of Pennsylvania issued his ruling overturning the state’s ban on same-sex marriage, the Pennsylvania Bar Association approved a resolution stating it “endorses full marriage equality for all same-sex couples, spouses and their families residing in the commonwealth of Pennsylvania.”
The timing was coincidental but noteworthy, given that much of the pushback the resolution encountered came from PBA leadership who thought it more prudent to wait until the court made a ruling before taking an official position on what they viewed primarily as a sociopolitical issue, according to PBA Family Law Section Chair Daniel J. Clifford.
Clifford, whose section co-sponsored the resolution with the PBA’s GLBT rights committee, said his argument to reluctant colleagues was that the PBA, as a professional organization, had a unique opportunity to take a strong position on an important statewide issue.
“My exact words were, ‘Sometimes leaders need to exercise leadership,’” Clifford said.
The PBA’s House of Delegates adopted the resolution by a voice vote May 16 after the board of governors voted 18-3—with two members abstaining because they do work for the state—in favor of the measure, according to Clifford.
The resolution, which made mention of a similar measure the Philadelphia Bar Association adopted in January, said Pennsylvania’s same-sex marriage ban “place[d] Pennsylvania at a significant economic, social and political disadvantage when trying to attract and retain LBGT-friendly businesses and employees” and made Pennsylvania businesses “subject to increased legal and administrative costs when trying to fairly and legally apply conflicting state and federal mandates regarding same-sex spouses, domestic partners and civil unions.”
Harrisburg attorney Leo L. Dunn, who was the chairman of the GLBT rights committee when the resolution was passed, said the committee drafted the resolution primarily to address the legal issues those in the committee regularly face, including how to handle estate taxes in the wake of the U.S. Supreme Court’s decision in United States v. Windsor. Dunn added that the committee additionally put together a report outlining nearly 600 statutory benefits married couples receive in Pennsylvania.
“We were looking at it primarily from the standpoint of, we didn’t have a single set of legal rules for our clients. This was an issue of what can we do to help make our clients’ lives better, and make things work better for our clients,” Dunn said. “We felt it was something that we needed to put forward and say that PBA felt it was important for clients’ rights to make this statement at this time.”
In addition to a co-sponsorship from the family law section, the resolution was supported by the PBA’s women in the profession and civil and equal rights committees, as well as by the real property, probate and trust section, according to Clifford.
Dunn said that while he was unable to participate in the substantive portions of the discussion due to his involvement with state agencies, support for the resolution seemed “overwhelming” at nearly every level of the PBA voting process.
But Clifford said that, while it was not difficult to drum up support among the various sections of the PBA, not everyone was supportive of the resolution when it reached the Board of Governors and House of Delegates levels.
Clifford said several members of PBA leadership opposed the resolution, saying they felt same-sex marriage was a sociopolitical issue that the organization had no business weighing in on.
Bedford County District Attorney William J. Higgins Jr. said he was one of the board members who voted against the resolution.
Higgins said he also made a motion at the May 16 House meeting to postpone the vote on the resolution’s approval until after the court issued a ruling.
“I thought it was premature and unnecessary to take a position on such a hot political issue,” Higgins said.
Clifford said some members who opposed the resolution pointed to the loss of membership the American Bar Association suffered following its controversial stance in support of abortion rights in the early 1990s.
Higgins said he was wary of how picking a side on what he sees as a divisive issue could hurt the PBA’s already declining membership.
“It does concern me that each time we take a position on a political issue we’re alienating more and more of our membership,” Higgins said, adding that the PBA has taken “more and more opportunities to take a political position—usually on the left side of things.”
Higgins said he also felt it was wrong for a statewide bar association to come down in support of gay marriage when Pennsylvania lawyers, including Gov. Tom Corbett, were in the midst of arguing against gay marriage in pending litigation.
But Clifford, noting that polls have shown strong support for gay marriage among Pennsylvanians between the ages of 18 and 29, argued that by not taking a position on marriage equality, the PBA risked alienating the younger generation of lawyers it should be trying to appeal to.
Clifford also said he found it “surprising” that any lawyer would fail to see how same-sex marriage is an important issue for the legal profession, noting its implications for family, trusts and estates and civil rights lawyers, among others.
Not to mention that, from a business standpoint, recognition of gay marriage in Pennsylvania is likely to result in an uptick in business for many attorneys across the state, Clifford said.
“As a professional trade association, why would you vote against your own business interests?” Clifford said.
Philadelphia Bar Association President William Fedullo said it is misleading to think of the same-sex marriage issue as strictly a social concern, as opposed to a legal issue. He said the PBA did a “smart thing” to pass the resolution.
“If you look at marriage as an institution, it affects more than 500 things in your legal life. To think it’s a social issue and not a legal issue is really missing the point,” Fedullo said. “Because of the separation of church and state, you have to respect gay marriage [from a legal standpoint]. You can’t say divorce is OK, but gay marriage isn’t, because both are against the tenets of some religions and it shouldn’t affect what you do civilly.”
While PBA President Francis X. O’Connor would not comment on why the resolution was passed or what passing the resolution may mean for the organization, he did acknowledge that it promoted some sharp debate within the PBA.
“What you wish for is a spirited and active debate, and in the end somebody gets the majority,” O’Connor said. “We encourage debate and comment about it on all sides so that we can be an open and inclusive organization, tolerant of all views.”