The second challenge to be brought in federal court against Pennsylvania’s ban on same-sex marriage should take a similar tack to the first and focus on the state’s secretary of health and secretary of revenue, the attorney general suggested in a motion filed Monday.
Kathleen Kane, the state’s attorney general, is one of two defendants named in the second suit—she filed a motion to dismiss the case against her office Monday in the Eastern District of Pennsylvania.
Gov. Tom Corbett, the other defendant in the case, filed a motion to dismiss late last month.
Both were initially named as defendants in the first challenge, brought in July in the Middle District of Pennsylvania, but each were dismissed by the two-dozen plaintiffs in that case and replaced by the secretaries of health and revenue.
Those two officials just filed their answer to the plaintiffs’ amended complaint in the Middle District challenge.
In it, they reiterated the argument advanced by the Corbett administration’s lawyers in both challenges that the cases should be dismissed under the U.S. Supreme Court’s 1972 decision in Baker v. Nelson. In their answer, they raised that argument as an affirmative defense.
U.S. District Judge John E. Jones III of the Middle District of Pennsylvania decided last month on a motion to dismiss from the secretaries that Baker isn’t controlling because of “significant doctrinal developments in the four decades that have elapsed since it was announced by the Supreme Court.”
They have asked to have the question certified for interlocutory appeal to the U.S. Court of Appeals for the Third Circuit.
Shortly after that first challenge was initially filed, Kane announced that Pennsylvania’s law banning gay marriage was “wholly unconstitutional” and her office wouldn’t defend it. The month before, the U.S. Supreme Court had gutted the federal Defense of Marriage Act by striking down the provision that defined marriage as being between one man and one woman. Pennsylvania’s marriage law, sometimes called “mini DOMA,” mirrors that language.
The responsibilities of the attorney general are too far removed from the actual enforcement of Pennsylvania’s marriage law to implicate her as a proper defendant, Kane argued.
“There is no question that plaintiffs challenging the constitutionality of a state statute may bring suit against the official who is charged with enforcing the statute, but only if that official has either enforced the statute or threatened to enforce it against the plaintiffs,” Kane said in her brief.
“In this case, the attorney general is neither charged with the enforcement of Section 1704 of the marriage law, nor has she enforced or threatened to enforce it against the plaintiffs,” she said.
It’s not surprising that Kane would file a motion challenging the claims against her rather than the merits of the suit itself, said Michael Banks of Morgan, Lewis & Bockius, who is working with the Philadelphia-based LGBT rights group Equality Forum on the Eastern District case.
In her brief, Kane suggested that the appropriate state officials would be the secretaries of health and revenue since their responsibilities touch on the enforcement of the marriage law.
When the plaintiffs in the Middle District case dropped Corbett and added the secretary of revenue, their lawyer, Mark Aronchick, said that 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.” Aronchick, of Hangley Aronchick Segal Pudlin & Schiller, is working with the American Civil Liberties Union on the case.
That suit includes plaintiffs who are seeking to get a marriage license in the state of Pennsylvania as well as those who want their marriages performed in other states to be recognized in Pennsylvania, while the Eastern District case is brought by one couple who was married in Massachusetts and wants that union recognized here. So, Banks explained, the plaintiffs in the Middle District suit have claims that could be more appropriately directed at the secretaries.
“In our case, I believe we’ve identified the proper defendants,” Banks said, referring to Corbett and Kane. “We’ll leave it to the judge to decide,” he said.
U.S. District Judge Mary A. McLaughlin of the Eastern District of Pennsylvania is presiding over the case. Banks guessed she will rule on the issue in or about March or April.
“We are on the right side of history and making correct constitutional arguments,” Banks said. His suit focuses on the full faith and credit clause of the U.S. Constitution and the right to travel.
“The real question isn’t, ‘Who’s the proper defendant among state officials?’” he said, but, rather, is there a constitutional violation?
“We’re confident that the court will conclude that there is a constitutional violation,” Banks said.
Joe Peters, spokesman for the Attorney General’s Office, couldn’t be reached for comment.