Outside the Beltway

Legal Fight Against Same-Sex Marriage Moves To The States

The marriage equality battle is entering its next phase.

Doug Mataconis · Tuesday, July 9, 2013 · 12 comments

Less than two weeks after the Supreme Court released its opinion in United States v. Windsor striking down Section Three of the Defense of Marriage Act, the American Civil Liberties Union is moving forward with legal action against laws against marriage equality at the state level, with the first newly filed case coming in Pennsylvania:

The Supreme Court returned the battle over same-sex marriage to the states last month, and Deb and Susan Whitewood are among the first to pick up the fight.

A couple for 22 years with two teenage daughters, the Whitewoods filed suit on Tuesday to overturn Pennsylvania’s ban on gay marriage, one of the first of an expected outpouring of cases around the country to cite the court’s majority opinion that same-sex couples are denied a “status of immense import” and their children deprived of “the integrity and closeness of their own family.”

The suit, carefully assembled by the American Civil Liberties Union, was filed in Federal District Court in Harrisburg with the aim of adding Pennsylvania to the column of 13 other states permitting same-sex marriage, plus the District of Columbia. The 23 plaintiffs come from many walks of life, including a doctor, college professors, a truck driver, a Vietnam veteran and a widow who lost her partner of 29 years.

“What we’re looking for is the validation from the legal system that we are equal in our marriage as anyone else,” said Susan Whitewood, 49, in an interview before a planned news conference to announce the suit at the Pennsylvania Capitol in Harrisburg.

The legalization of same-sex marriage has primarily come through the political process, with lawmakers and voters approving it in six states in just the past year. But earlier victories were achieved through state courts, including in Massachusetts and Iowa. The A.C.L.U. acknowledged that it was bringing suit in Pennsylvania because overturning the state’s gay marriage ban in the Republican-controlled legislature is a near-term impossibility.

Pennsylvania’s law defines marriage as between a man and a woman – similar to the federal law struck down by the Supreme Court — and it denies recognition to same-sex marriages legally performed elsewhere.

Gay-marriage opponents say using the courts undermines the will of the voters. Michael Geer, president of the Pennsylvania Family Institute, which opposes same-sex marriage, said that in 1996 when the state passed its law, fewer than 25 out of some 240 legislators opposed it.

“The fact the A.C.L.U. is turning to the courts to try to redefine marriage takes it out of the hands of the people,” he said.

The A.C.L.U. plans to file suit shortly in two other states, Virginia and North Carolina. In Michigan, a federal judge blocked a state law denying domestic partner benefits to public employees, citing last month’s United States Supreme Court rulings. “You’ll have these things filed all over the place,” said Frank Schubert, political director of the National Organization for Marriage, which opposes same-sex marriage.

James Esseks, national director of the LGBT Project at the A.C.L.U., agreed. “No question this issue will get back to U.S. Supreme Court over the next several years,” he said.

At the heart of many of the cases is the issue the Supreme Court ducked in one of its two recent rulings, a narrow decision on a California case: If a state prohibits same-sex couples from marrying, does it trample the guarantee of equal protection in the United States Constitution?

Supporters believe that enlarging the map of states that allow same-sex marriage will ultimately influence the Supreme Court when it next takes up the issue of a constitutional right to same-sex marriage, as it is expected to do in the next few years. Activists are pressing legislatures in three more states that appear ready to pass measures legalizing same-sex marriage: New Jersey, Hawaii and Illinois.

“We think what the map of the country looks like is going to make a big difference to how the issues in the case feel to the Supreme Court,” Mr. Esseks said. “Will we have the 13 states plus D.C., or will we be at 20 or more?”

Opponents are fighting back under the same logic. They believe they have an opportunity to add Indiana to the 29 states with constitutional bans on same-sex marriage.

“Our challenge is to let the court see they’re not going to get away with this without a massive public revolt,” said Mr. Schubert of the National Organization for Marriage.

Both sides have trained their focus on one man, Justice Anthony M. Kennedy, the frequent swing vote on the court, who wrote the 5-to-4 majority opinion striking down a key part of the federal Defense of Marriage Act. Justice Kennedy did not say whether there was a constitutional right to same-sex marriage, leaving it up to individual states. But he defined the terms of battle.

As noted, the ACLU is also planning to bring similar claims in North Carolina and Virginia. In North Carolina, the group is seeking to add a claim challenging the states ban on same-sex marriage, which has only been on the books since April of last year, to an existing case filed on behalf of a lesbian couple challenging a decision by the State Supreme Court ruling that same-sex couples are ineligible for “second parent” adoption under state law. The organization, along with its Virginia affiliate, also plans to file a lawsuit challenging the 2006 amendment to Virginia’s Constitution that defined marriage as being between one man and one woman.  In its statement on the new lawsuits, the ACLU also makes clear what its overall strategy is, to get one or more of these state laws before the Supreme Court where it would hopefully have no choice but to provide a definitive ruling on the issue of whether the Constitution protects the right to marry for same-sex couples:

In the second prong of our post-DOMA strategy, we will litigate federal court cases that will bring the marriage issue back to the U.S. Supreme Court, which has the power to create a federal solution by declaring that the entire country must have fair marriage laws. The Supreme Court ducked the issue of the constitutionality of Prop 8 – and thereby the federal solution – just a couple of weeks ago, but it’s already clear that this core constitutional issue will get back to the Court within a few years. Even before today’s announcement of the ACLU’s federal marriage lawsuits, there were seven cases with federal marriage claims pending all around the country.

I talked about two of those seven cases, both Federal Court cases still in the early stages in Michigan, last week. In both of those cases, two different Federal Judges handed significant victories to the Plaintiffs challenging Michigan’s same-sex marriage ban based primarily on the Supreme Court’s holding in Windsor, as well as the holding in Hollingsworth v. Perry, the case challenging Proposition 8.

Along with this new effort by the ACLU which, as David S. Cohen noted last week, is a big change from the more conservative legal strategy the group had been following on the marriage equality issue over the past decade or so, there are also other efforts in the works. David Boies and Ted Olson, the men who guided the Hollingsworth v. Perry case through the Federal Courts, both said after the Court ruled in their case two weeks ago that they would be looking for opportunities to represent clients seeking to challenge state law same-sex marriage bans. Given their reputations and the success they had in the California case, I would imagine it won’t be difficult at all for them to find clients for these types of cases.

In addition to these litigation efforts, there are also efforts at the legislative level:

Freedom to Marry is backing a 2014 ballot initiative in Oregon and will announce Tuesday a $250,000 contribution to that campaign. The group will donate another $250,000 today to three other states where it hopes to see gay marriage achieved through legislation:

* Illinois: Earlier this year, the state Senate passed a gay-marriage bill, but the state House declined to take it up. If the measure can get through the legislature, Democratic Governor Pat Quinn says he will sign it.

* New Jersey: The legislature passed a gay-marriage bill last year, but Governor Chris Christie vetoed it. Legislators could either pass a new bill, challenging Christie — who is up for reelection in a liberal-leaning state — to veto it again. Or they could try to override his veto, which would require more votes from Republican lawmakers reluctant to go against Christie.

* Hawaii: One of the first gay-marriage battlegrounds, Hawaii saw a state Supreme Court ruling in favor of same-sex marriage in 1993 superseded by a public vote that threw the measure back to the legislature, which banned it. Legislators in the state, one of the most Democratic in the country, hope to reverse the ban.

In four more states — Colorado, Nevada, New Mexico, and Ohio — Freedom to Marry is already working toward legalization in 2015-16. (One of the lessons of the 2012 victories was that it’s important to lay groundwork far in advance, before the heat of a campaign’s final months.) In two more, Arizona and Michigan, it is considering whether to invest.

In other words, we’ve clearly entered Part Two of the marriage equality battle. Part One was marked, for a very long time, but a long string victories for the “traditional marriage” crowd that seems to have hit its high water mark with the April 2012 referendum in North Carolina. Since then we’ve seen three states legalize same-sex marriage via popular referendum day while one beat back a referendum that would have defined marriage as being between one man and one woman. We’ve also seen three more states legalize same-sex marriage via legislation just since the Supreme Court heard oral argument in the same-sex marriage cases in March. Before the end of the year, it seems all but certain that one of the three states listed above, most likely Illinois, will also see its legislature vote to legalize same-sex marriage, bringing the total number of states where marriage equality exists to 14, covering more than 1/3 of the nation’s population. Finally, Part One ended with the Court’s decisions two weeks ago. Something tells me that Part Two of this fight is going to be going in one inexorable direction.

Here’s the Complaint in the newly-filed Pennsylvania case:

Whitewood et al v. Corbett — Complaint by dmataconis