At the same time the Corbett administration filed its objections to a challenge to Pennsylvania’s ban on same-sex marriage in state court, the governor was let out of a similar federal suit.
The plaintiffs in the federal case agreed to dismiss Gov. Tom Corbett, who had launched a vigorous protest to his inclusion in the suit, and added the secretary of Revenue.
Dan Meuser, the secretary of Revenue, will join the Rule 12 motion to dismiss already filed by Michael Wolf, the secretary of Health, and the rapid pace of the court’s schedule will continue undisturbed, according to the stipulation filed Friday.
U.S. District Judge John E. Jones III of the Middle District of Pennsylvania announced at a status conference last month that he intends to rule on the motions by mid-November and set a schedule for trial soon after if any claims survive.
Focusing the suit on the two state officials who are most closely related to the enforcement of the marriage law—the ones responsible for income tax filings and death certificates—unclutters the case and “goes right to the heart of the issue,” said Mark Aronchick, of Hangley Aronchick Segal Pudlin & Schiller, who is working with the American Civil Liberties Union to represent the plaintiffs.
“An injunction against the Department of Health and the Department of Revenue from enforcing Pennsylvania’s [Defense of Marriage Act] would obtain the relief we’re seeking,” said John Stapleton, also of Hangley Aronchick. That relief is a finding from the court that “Pennsylvania’s DOMA is unconstitutional,” he said.
In the state-court suit, 21 couples challenged the marriage law, arguing that it violates Article I of the Pennsylvania Constitution as well as the equal protection and due process clauses of the 14th Amendment.
The Corbett administration responded that “the ability to marry in Pennsylvania is available in an equal manner to both a man and a woman.”
“The marriage law treats women as a class exactly the same as it treats men as a class. Both a man and a woman have the identical and equal right to enter into a contract to marry another person of the opposite sex,” according to the objections prepared by William Lamb of Lamb McErlane.
Lamb is representing the Corbett administration in other challenges to the state’s marriage law—there are two in federal court and two in state court, all of them by people who either want to be married in Pennsylvania or want their marriage from another state recognized in Pennsylvania. A fifth related suit is also pending in the state court system. It was brought by the state’s Department of Health as a mandamus action seeking to stop a Montgomery County clerk from issuing marriage licenses to same-sex couples this summer. The department prevailed in the Commonwealth Court in September, but the clerk, D. Bruce Hanes, is appealing to the state Supreme Court.
Lamb offered a similar argument in response to the other suit in state court, saying in a filing last month, “Men and women also are treated equally under the law with respect to the benefits and burdens that one receives after marriage. There is no distinction under the law respecting the benefits accorded to and burdens imposed upon a married man and a married woman. They are treated identically.”
The plaintiffs in that suit responded last week by citing to the U.S. Supreme Court’s 1967 opinion in Loving v. Virginia, a case in which the state of Virginia had argued that its laws prohibiting interracial marriage didn’t violate the equal protection clause because white people and black people were treated the same—neither could marry someone of the opposite race, according to the response.
They also cited Baehr v. Lewin, a case in which the Supreme Court of Hawaii relied on Loving to reject the same argument that the state of Pennsylvania made here.
Corbett is a named defendant in the state suit, Ballen v. Corbett, and Lamb, in the preliminary objections, argues that he is not a proper party because the secretary of Health, whose duties are closest to the marriage law, is also a defendant in the case. The official closest to the challenged statute is sufficient, Lamb argued, citing to the Commonwealth Court’s 1983 opinion in Leonard v. Thornburgh.
“In short, the party having the legally recognized interest in defending the constitutionality of a statute ‘belongs to the government official who implements the law,’” he argued, quoting from the Commonwealth Court’s 2002 opinion in Allegheny Sportsmen’s League v. Ridge.