Final Motion To Intervene - Pa State Marriage Case

As the Supreme Court of the United States recently held, the goal of laws like the Marriage Law,
23 Pa. C.S. 1101 et seq., is to impose inequality and to disparage and injure same-sex couples. See United States v. Windsor, 133 S.Ct. 2675, 2696 (2013). Because this Petition has been timely filed following the Department of Healths Amended Petition for Review in the Nature of an Action in Mandamus (Am. Petition), and because Putative Intervenors participation will not unfairly prejudice the parties, Putative Intervenors respectfully request to intervene as Respondents in this case. Intervenors 1. Each of the following Putative Intervenors are same-sex couples who were issued
valid marriage licenses by Respondent Hanes: (a) (b) (c) (d) (e) Sasha Ballen and Dee Spagnuolo of Wynnewood, Pennsylvania. Jennifer L. Anderson and Lisa A. Fraser of Coatesville, Pennsylvania. Gabriella Assagioli and Lynn Zeitlin of Narberth, Pennsylvania. Youval Balistra and Dr. Glen H. Loev of Bryn Mawr, Pennsylvania. Mark Baumann-Erb and Ronald Baumann-Erb of Phoenixville, Pennsylvania. (f) (g) (h) (i) (j) (k) (l) Jeffrey Becker and Kevin Taylor of Havertown, Pennsylvania. Joan L. Bennett and Joanne B. Glusman of Bryn Mawr, Pennsylvania. Joseph Billips and Andrew Pruessner of Collegeville, Pennsylvania. Loreen Bloodgood and Alicia Terrizzi of Pottstown, Pennsylvania. James Booth and Bolton Winpenny of Harrisburg, Pennsylvania. Leigh Taylor Braden and Sophie Forge of Penn Valley, Pennsylvania. Joan Brown and Jill Galper of Philadelphia, Pennsylvania.
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(m)
William Brad Cook and Clarence Samuel Warden, Jr. of Norristown, Pennsylvania.
(n) (o)
Dr. Marta Dabezies and Patricia Rose of Philadelphia, Pennsylvania. Dr. Mary Margaret DeSouza and Kimberly A. Lane of Norristown, Pennsylvania.
(p) (q) (r) (s) (t) (u) (v) (w) (x) (y) (z)
Mark Diehl and Brian Stafford of Mifflinville, Pennsylvania. Mary Beth Flynn and Elaine Spangler of Elkins Park, Pennsylvania. William A. Gray, Jr. and John Kandray of Swisszale, Pennsylvania. Dawn Grove and Tracy Harper of Zieglerville, Pennsylvania. Elizabeth M. Harvey and Sada Sallack of Philadelphia, Pennsylvania. Karen Henry and Andrea Schaeffer of Lansdale, Pennsylvania. Joanne Hyle and Kathryn Kolbert of Philadelphia, Pennsylvania. Charlene Kurland and Ellen Toplin of Dresher, Pennsylvania. Christine Lindgren and Andrea Myers of Philadelphia, Pennsylvania. Ethelda A. Makoid and Wendy L. Sheppard of Ambler, Pennsylvania. Marcia L. Martinez-Helfman and Sarah A. Martinez-Helfman of Haverford, Pennsylvania.
(aa) (bb) (cc) (dd) (ee) (ff)
Nicholas Pantaleone and Anthony Ruffo of Eagleville, Pennsylvania. Ruth Parks and Michelle Schaeffer of Conshohocken, Pennsylvania. Robert Polay and Nicholas Vlaisavljevic of Collegeville, Pennsylvania. Lisa Roling and Mary Young of Philadelphia, Pennsylvania. Domenick Scudera and Brian Strachan of Collegeville, Pennsylvania. Richard Strahm and Ken Robinson of Lansdale, Pennsylvania.
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Putative Intervenors Interests And Grounds For Intervention 2. A person may seek leave to intervene in an original jurisdiction petition for
review before this Court by filing a petition containing a concise statement of his or her interests and the grounds upon which intervention is sought. See Pa. R.A.P. 1531(b). 3. A person is entitled to intervene in a pending case if the determination of such
action may affect any legally enforceable interests whether or not such person may be bound by a judgment in the action. Pa. R.C.P. 2327(4).1 If a putative intervenor satisfies this requirement, and no grounds for refusing the petition exist under Pa. R.C.P. 2329, [a]llowance of intervention is mandatory. T.H. Props., L.P. v. Upper Salford TShip Bd. of Supervisors, 970 A.2d 495, 499 (Pa. Cmwlth. 2009). 4. Putative Intervenors seek to participate in this lawsuit because it may affect their
interests. See Pa. R.C.P. 2327(a). 5. The Pennsylvania Marriage Law defines marriage as a civil contract by which
one man and one woman take each other for husband and wife. 23 Pa. C.S. 1102. The law also provides: It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. 23 Pa. C.S. 1704. 6. As the Supreme Court of the United States recently held, marriage is a far-
reaching legal acknowledgment of the intimate relationship between two people. United States v. Windsor, 133 S.Ct. at 2693. In recognizing that, the Court struck down section 3 of the federal Defense of Marriage Act, 1 U.S.C. 7, as unconstitutional because it was a law having the purpose and effect of disapproval of [same-sex couples]. Id. at 2693.
Unless otherwise prescribed by the Pennsylvania Rules of Appellate Procedure, the practice and procedure governing original jurisdiction petitions for review shall be in accordance with the appropriate Pennsylvania Rules of Civil Procedure, so far as they may be applied. Pa. R.A.P. 1517.
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7.
Following the Supreme Courts decision in Windsor, Pennsylvania Attorney
General Kathleen Kane publicly announced that Pennsylvanias definition of marriage set forth in the Marriage Law, which defines marriage solely to be between a man and a woman, the same way the federal law struck down in Windsor defined marriage, was unconstitutional and her office would therefore not defend it. See Am. Petition 44. 8. On July 23, 2013, Respondent Hanes publicly announced that, notwithstanding
the Marriage Law, his office would begin issuing marriage licenses to same-sex couples. See Am. Petition 42. Pursuant to this announcement, Putative Intervenors sought and obtained marriage licenses under the laws of the Commonwealth from Respondent Hanes. 9. In issuing marriage licenses to same-sex couples including the Putative
Intervenors, Respondent Hanes acted in full accordance with the Constitutions of the United States and the Commonwealth of Pennsylvania. 10. The Department of Health now seeks a writ of mandamus to compel Respondent
Hanes to cease and desist from issuing marriage licenses to same sex couples, asserting that Respondent Hanes conduct is illegal and that the consequence of such acts include: Same sex couples who falsely believe (or merely contend erroneously) that they are married. Am. Petition 55. 11. To the contrary, a writ of mandamus directed at Petitioner Hanes to enforce the
Marriage Law would force Respondent Hanes to violate both the United States and Pennsylvania Constitutions. 12. The Department of Healths Amended Petition further seeks a decision from this
Court finding that Respondent Hanes lacked authority to issue Putative Intervenors marriage licenses and violated the law by doing so. See Am. Petition 50.
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13.
Even if Putative Intervenors are not directly bound by such a judgment, a decision
by this Court may impact a later determination regarding the validity of Putative Intervenors marriages and marriage licenses. 14. The Department of Healths Amended Petition for Review does not explicitly
seek to invalidate Putative Intervenors marriage licenses. See Am. Petition 73 (seeking only a writ of mandamus to compel Respondent to comply with the Marriage Law and to cease and desist from issuing marriage licenses to same-sex couples). However, the Amended Petition is premised on the false argument that Putative Intervenors erroneously believe they are married. Id. 55. Accordingly, any decision by this Court which accepts the Department of Healths argument may cast legal uncertainty over the validity of Putative Intervenors marriage licenses and may negatively affect their future legally enforceable interests. Pa. R.C.P. 2327(4). 15. Accordingly, Putative Intervenors seek to intervene in this matter to protect their
interests in the continued validity of their Pennsylvania marriage licenses. Statement Of Relief And Defenses 16. Pursuant to Pa. R.C.P. 2328(a), Putative Intervenors seek relief from this Court
through dismissal of the Amended Petition. 17. Putative Intervenors wish to raise several potential defenses to the Department of
Healths Amended Petition, including the following: (a) Subject-matter jurisdiction lies with the Supreme Court of Pennsylvania,
pursuant to Pennsylvania Rule of Civil Procedure 1028 and 42 Pa. C.S. 761(c), 741, 721, and 5103(a). Accordingly, the matter should be transferred to the Supreme Court. (b) The action must be dismissed in its entirety because the Department of
Health lacks standing. See Nader v. Hughes, 643 A.2d 747 (Pa. Cmwlth. 1994). In a
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letter dated July 30, 2013, the Commonwealth concedes that it is the exclusive duty of the Pennsylvania Attorney General to uphold and defend the constitutionality of any law. See Exhibit A, Letter from James D. Schultz of the Governors Office of General Counsel to Adrian R. King, Jr., First Deputy Attorney General at 1, dated July 30, 2013. Furthermore, in an action for extraordinary relief, such as a writ of mandamus, standing is limited to the Attorney General, the District Attorney in the County where the harm is alleged, and a private citizen who can establish an injury in fact. See Dombrowski v. City of Philadelphia, 245 A.2d 238 (1968). (c) The Department of Health does not have clear legal right to force
Respondent Hanes to comply with a law that violates the United States and Pennsylvania Constitutions. The Marriage Law violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, section 1, Article I, section 26, and Article I, section 28 of the Pennsylvania Constitution. Because the Marriage Law violates the United States and Pennsylvania Constitutions, Respondent Hanes is constitutionally required to issue these marriage licenses, and the Department of Health cannot force Respondent Hanes to adhere to the unconstitutional Marriage Law. 18. Pursuant to Pennsylvania Rule of Civil Procedure 2328(a), Putative Intervenors
have attached as Exhibit B a copy of the Preliminary Objections that they wish to file in this action if permitted to intervene. No Grounds Exist For Refusing Intervention 19. Putative Intervenors claims and defenses are in subordination to, and in
recognition of, the propriety of the action. See Pa. R.C.P. 2329(1). Putative Intervenors do not seek to prevent this Court from entering a final judgment or wish to inject extraneous or
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irrelevant issues into the case. See N.E. Pa. SMSA Ltd. PShip v. Scott TShip Zoning Hearing Bd., 18 A.3d 1272, 1277 (Pa. Cmwlth. 2011). 20. Furthermore, Putative Intervenors interests are not already adequately
represented by the existing parties. See Pa. R.C.P. 2329(2). It is Putative Intervenors rights and lives that will be affected by a ruling on the legality of Respondent Hanes conduct in granting their marriage licenses and the constitutionality of the Marriage Law. For example, Putative Intervenors Ellen Toplin and Charlene Kurland have had repeated troubles with their insurance companies because their relationship was not recognized under Pennsylvania law. Putative Intervenors Ethelda A. Makoid and Wendy L. Sheppard have had hospitals refuse to afford them the dignity a heterosexual couple would receive. And because Putative Intervenor Leigh Taylor Braden could not sponsor Putative Intervenor Sophie Forge for a green card, the couple was deeply concerned that if Ms. Forge lost her job during a period where her company was struggling, she would have had to go back to France, despite having a newborn son at home. These are just a handful of the many examples where Putative Intervenors lives are directly impacted by their marital status. See Exhibit B, Center for Lesbian and Gay Civil Rights, Survey of Statutory Rights Associated with Marriage in Pennsylvania (1999). 21. While the interests of Respondent Hanes and Putative Intervenors are presently
aligned, Putative Intervenors are best-positioned to argue the constitutionality of a state law that purports to deprive them of equal protection and due process under the constitution of Pennsylvania and the United States. In addition, any doubts concerning the adequacy of representation of a Putative Intervenors interests should be resolved in favor of intervention. See Wilson of Wallingford, Inc. v. TShip of Nether Providence, 481 A.2d 692, 694 (Pa. Cmwlth. 1984).
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22.
Finally, Putative Intervenors have not unduly delayed the filing of this Petition
and the parties will not be prejudiced by intervention. See Pa. R.C.P. 2329(3). This Petition, filed shortly after the Department of Healths Amended Petition, is timely. Given the early stage of the litigation, the addition of Putative Intervenors to the action will not delay or significantly burden the Court. See In re Objections of Jeffrey K. Rowan and Kimberly K. Rowan, 763 A.2d 958, 961 (Pa. Cmwlth. 2000) (holding that a clear showing of prejudice to the existing parties is necessary to deny a petition for intervention). 23. Respondent Hanes consents to Putative Intervenors request to intervene in this
matter. Counsel for the Department of Health has indicated that the Department will oppose this request. 24. If necessary, Putative Intervenors request a hearing on this Petition. See Pa.
R.C.P. 2329(a). Conclusion And Prayer For Relief WHEREFORE, Putative Intervenors respectfully ask that this Court grant their Petition to Intervene and allow them to become parties to this case.
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VERIFICATION
I, Sasha Esther Ballen, state that I am a Putative Intervenor in this matter, and that the
factual averments set forth in the foregoing Petition For Leave To Intervene are true and correct
to the best of my knowledge, information, and belief.
I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.
4904.
Dated: August j (f ,2013

Sasha Esther Ballen
IN THE COMMONWEALTH COURT OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH, Petitioner, v. D. BRUCE HANES, in his capacity as the Clerk of Orphans Court of Montgomery County, Respondent. : : : : : : : : : : :
379 M.D. 2013
ORDER AND NOW, this ______ day of ______________, 2013, upon consideration of the Petition to Intervene, and any response thereto, it is hereby ORDERED that said Petition to Intervene is GRANTED. The Clerk of Court shall docket Intervenor Respondents Preliminary Objections, which are attached as Exhibit C the Petition to Intervene.
BY THE COURT:
________________________ J.
EXHIBIT A
EXHIBIT B
THE CENTER FOR LESBIAN AND GAY CIVIL RIGHTS SURVEY OF STATUTORY RIGHTS ASSOCIATED WITH M ARRIAGE IN PENNSYLVANIA Released March 23, 1999 1999 The Center for Lesbian and Gay Civil Rights 1211 Chestnut Street, Suite 605 Philadelphia, PA 19107 Phone: (215)731-1447 Fax: (215)731-1544 www.center4civilrights.org
This survey is a project of the Center for Lesbian and Gay Civil Rights, located in Philadelphia, Pennsylvania. Complete copies of the survey, including the statutory appendix, can be ordered from the Center at 1211 Chestnut Street, Suite 605, Philadelphia, PA, 19107, (215) 731-1447.1
Purpose To analyze the Pennsylvania Statutes in order to identify and quantify all the rights, benefits, protections, obligations and defenses associated with marriage and spousal status. Background Marriage between two people of the same sex is currently not permitted in any state. A number of courts in different states over the years have considered the issue of whether two people of the same sex can seek to be married.2 Courts almost uniformly have stated that marriage is a heterosexual institution, which excludes gay men and lesbians.
The study was conducted by attorneys Andrew S. Park, Executive Director, and Tiffany L. Palmer, National Association for Public Interest Law Equal Justice Fellow, both of the Center for Lesbian and Gay Civil Rights. The Center would like to thank the following University of Pennsylvania law students for their assistance wi th this project: Erik Oliver, Alexander Abbe, Susan Brown, Jennifer MacNaughton, David Schutzbank, and Temple University law student Charles Strickland. The Center also thanks Center volunteer Mollie K. Rubin. The Center has received operating funds from the Delaware Valley Legacy Fund of the Philadelphia Foundation, the Samuel S. Fels Foundation, the Chicago Resource Center, the Bread and Roses Community Fund, the Dolfinger-McMahon Foundation, the Allen Hilles Fund, the Couty Foundation, and the Philadelphia Bar Foundation. 2 See Singer v. Hara, 522 P.2d 1187 (Wash. 1974) (holding that the gender-neutral language of the Washington marriage statutes did not make same-sex marriages permissible, and concluding that banning same-sex marriages did not violate state or federal equal protection laws because licenses were denied to both homosexual men and women); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (rejecting same-sex couples argument that the states denial of a marriage license deprived them of the constitutional rights to marry, to associate, and to free exercise of religion, because the traditional definition of marriage did not include same-sex unions); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (rejecting same-sex couples argument that their applications for marriage licenses
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P AGE 1 OF 13 SURVEY OF STATUTORY RIGHTS ASSOCIATED WITH MARRIAGE IN P ENNSYLVANIA THE CENTER FOR LESBIAN AND GAY CIVIL RIGHTS
Pennsylvania courts considered the issue of same-sex marriage in 1984 when one man sought to have the court recognize a common law marriage between him and his male partner.3 The plaintiff filed a complaint for divorce from his male partner seeking equitable distribution and alimony alleging that he and his partner entered into a common law marriage in a ceremony ten years before.4 The trial court dismissed the complaint. 5 The superior court affirmed, reasoning that courts only recognize common law marriages in very limited circumstances, and to recognize same-sex common law marriages would go against this doctrine.6 In addition, the court observed that cohabitation does not by itself establish a common law marriage, and concluded that recognition of same-sex common law marriages is more properly the role of the legislature than the courts.7 In 1993, however, the Supreme Court of Hawaii became the first court to recognize that denying same-sex couples the right to marry was discrimination. In Baehr v. Lewin, 8 three same-sex couples challenged the states refusal to grant them marriage licenses, based on a state established fundamental right to marriage (included in the right to privacy) and on equal protection grounds under the Hawaii Constitution.9 The court declined to find that same-sex couples had a fundamental right to marriage,10 but did conclude that the statute restricting marriage to different-sex couples established a sex-based classification.11 The Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex.12 Accordingly, the court concluded that for the statute to be valid, the state would have to demonstrate that such discrimination was justified by compelling state interests and that the statute was narrowly drawn to avoid unnecessary abridgment of constitutional rights.13 The court remanded the case to the Circuit Court to determine whether the state could meet this burden,14 and the Circuit Court subsequently concluded that the state had not, and that the marriage statute was unconstitutional and in violation of the equal protection clause of article I, section 5 of the Hawaii Constitution.15
should be granted under a fundamental right to marry, because the traditional definition of marriage did not apply to same-sex couples and there was no irrational or invidious discrimination behind the prohibition); Anonymous v. Anonymous, 325 N.Y.S.2d 499, 500 (1971) (holding that a same-sex marriage was invalid, where a man married another man, believing him to be a woman, because marriage is and always has been a contract between a man and a woman). 3 DeSanto v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984). 4 Id. 5 Id. 6 Id. at 955 (recognizing a growing judicial impatience with common law marriage and a progressive change in judicial view requiring higher degrees of proof, and concluding that [t]o expand common law marriage to include a contract between two persons of the same sex would be, not simply inconsistent with such reluctant toleration, but an about-face). 7 Id. 8 852 P.2d 44 (Haw. 1993). 9 Id. at 48-50. 10 Id. at 57 (declining to find a fundamental right of same-sex marriage because it is not so rooted in the traditional and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions). 11 Id. at 59-63 (observing that the marriage statute, on its face, discriminates based on sex against the applicant couples in the exercise of the civil right of marriage, thereby implicating the equal protection clause of article I, section 5 of the Hawaii Constitution). 12 See HAW . CONST. art. I, 5. 13 See supra n. 8, at 67. 14 Id. at 68. 15 Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235, at *22 (Haw. Cir. Ct. Dec. 3, 1996), aff'd, 950 P.2d 1234 (Haw. 1997) (unpublished table decision).
The Hawaii case sparked other cases around the country. A same-sex couple in Alaska challenged the states refusal to provide them with a marriage license in Brause v. Bureau of Vital Statistics.16 The Alaska code specifically states that same-sex relationships will not be recognized by the state as entitled to the benefits of marriage.17 Like the Hawaii plaintiffs, the couple in Alaska challenged the statute as violating their equal protection and privacy rights.18 Unlike the Hawaii court, the Alaska superior court did find that the statute violated a fundamental right, included in the right to privacy.19 The Alaska court considered not whether there was a right to same-sex marriage rooted in traditions, but rather whether the freedom to choose ones own life partner was so rooted.20 The Court concluded, the choice of a life partner is personal, intimate, and subject to the protection of the right to privacy. 21 Thus, the state would have to show a compelling interest to abridge this right. The court also agreed with the Hawaii court that the prohibition on same-sex marriage was likely an impermissible sex-based classification, but chose not to explore the issue in detail because of its recognition of a fundamental right to choose ones life partner.22 The court left for further hearings the issue of whether the state could actually make a showing of a compelling state interest. 23 In 1997, three Vermont couples challenged a prohibition on same-sex marriage in Baker v. State.24 The plaintiffs in that case brought their action under the Common Benefits Clause of the Vermont Constitution, which is analogous to the U.S. Constitutions Equal Protection Clause.25 The Vermont Superior Court dismissed the plaintiffs complaint. 26 Like the Hawaii court, the Vermont court concluded that the fundamental right to marry did not apply to same-sex couples.27 The court did not address (as the Alaska court did) whether there was a fundamental right to choose ones life partner. The court also adopted a circular argument to conclude that there was no sex discrimination; the court asserted that since same-sex unions simply fall outside the definition of marriage, . . .an individuals gender is irrelevant to the application of the marriage statutes.28 The court went on to reason that homosexuals are not a suspect classification, and since there was no suspect classification or fundamental right at issue, the court could apply a rational basis analysis.29 Although the court recognized that the majority of the states articulated interests in preserving the prohibition have no rational relationship to the exclusion of same-sex couples from the institution of marriage, the court did accept the states assertion that the state needed the statutes to further the link between procreation and child rearing.30 The plaintiffs appealed the decision, and the Vermont Supreme Court heard oral arguments on the case in November 1998, but has yet to issue a ruling.31 The Hawaii case also sparked a backlash that quickly spread across the states and into the federal government as well. On September 21, 1996, the federal government joined the backlash as President Clinton signed The Defense of
No. 3AN-95-6562 CI, 1998 WL 88743, at *1 (Alaska Super. Feb. 27, 1998). See ALASKA STAT. 25.05.013. 18 See Brause, 1998 WL 88743, at *1. 19 Id. at *4-*5. 20 Id. 21 Id. 22 Id. at *5 (Were this issue not moot, the court would find that the specific prohibition of same-sex marriage does implicate the Constitutions prohibition of classifications based on sex or gender . . . . Sex-based classification can hardly be more obvious.). 23 Id. 24 No. S 1009-97 CnC (Chittenden Super. Ct. 1997), available in <http://www.fitzhugh.com/ samesex.htm>. 25 Id 26 Id 27 Id, IV.A. 28 Id., IV.C. 29 Id., IV.B, V. 30 Id., V. 31 Vermont Supreme Court Docket No. 98-32.
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Marriage Act, 32 (DOMA) into law. DOMA defines marriage as a legal union between one man and one woman as husband and wife; similarly, it defines spouse as referring only to a person of the opposite sex who is a husband or a wife. Because the Act makes both definitions apply [i]n determining the meaning of any Act of Congress, it potentially affects the interpretation of a wide variety of federal laws where marital status is a factor. Spearheaded by the Christian Right, state legislatures began proposing anti-gay marriage legislation similar to DOMA. Pennsylvania became one of the first states to pass such a law in 1996. It reads: It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in the Commonwealth.33 This law seeks to ban what currently does not exist in any statesame-sex marriage. While it may seem illogical to ban something that does not yet exist, the Pennsylvania law has already been used by courts to disadvantage gay and lesbian families.34 Method The Center conducted this study of Pennsylvania law and marital status to determine the scope of marital rights and to demonstrate the magnitude of the current inequalities between same-sex and opposite-sex couples. The United States General Accounting Office (GAO) released a study of the United States Code and marital status in response to the passage of the Defense of Marriage Act. The GAO study identified 1,049 federal laws in which benefits, rights, and privileges are contingent upon marital status.35 The Center used a methodology similar to the GAO study and conducted searches in the electronic database Lexis-Nexis to identify Pennsylvania statutes, rules and laws referring to the words spouse, or husband, or wife, or family or marriage.36 The exact search terms used were: SPOUSE or HUSBAND or WIFE or FAMILY or MARRI!. These statutes can be found in either Pennsylvania Statutes or Pennsylvania Consolidated Statutes Annotated. For purposes of this report, the findings section refers only to the title and section number of the statute. The format used will be Title ## ####. An initial search of the Pennsylvania laws revealed 1,421 statutes and laws that referenced the words used in the search. Then, a team of lawyers and law students analyzed each statute to determine its applicability and relevancy to marital rights. Certain statutes irrelevant to marital rights were then culled.37 If the statute was not culled, the statute was entered into a database developed by the Center. A brief description of each statute was entered, along with the title and section number. Statutes were also coded by category. Categories were designed to capture in a word the nature of the statutory provision based on the effect of the legal right implicated by the statute. Center staff developed five categories: Benefit; Protection; Obligation; Defense; and Miscellaneous. The Center defined each of these categories as follows:
Public Law 104-199, 110 Stat. 2419. 23 Pa. C.S.A. 1704. 34 In denying a second-parent adoption of two children to the lesbian partner of the biological mother, the court cited the Pennsylvania ban on same-sex marriage stating that the term spouse was to be construed narrowly and because the two women could not marry, one would not be considered the spouse of the other. See In re Adoption R.B.F. & R.C.F., Court of Common Pleas of Lancaster County, Pennsylvania Orphans Court Area, Opinion Sur Appeal, p. 7. 35 General Accounting Office, Office of General Counsel B-275860. 36 This search also included roots of the words family and marriage, revealing words such as families, married, marrying, etc. This was performed by typing marri! and famil! in the database Lexis as search engines. 37 For example, the word family revealed statutes including that term, but were irrelevant to family rights such as statutes that discuss salmon families swimming upstream.
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Benefit- Used to categorize a situation where one spouse is a good actor and at least one spouse desires the statutorily conferred preference or bonus. Also, opting for the benefit would disadvantage neither party. (For example, spousal transfers of real estate to each other are exempt from taxation). Protection- Used to categorize situations where the law recognizes that one spouse is a bad actor and the statute aims to protect the innocent spouse or other family members. (For example, Pennsylvania law limits a tax collectors ability to sue a spouse on an individuals tax debt to recover jointly owned property). Obligation- Used to categorize a situation where neither spouse is a bad actor and the responsibility of the statute applies with equal force to both parties. (For example, one statute requires a school board member to recuse himself or herself from participating on a school board vote for a hiring decision where a spouse is the potential employee involved). Defense- Used to categorize situations where the law permits a spouse who is a bad actor to maintain a benefit to protect the family unit. (For example, Pennsylvania law permits a spouse to assert a spousal privilege in criminal cases so that one spouse is not forced to testify against another). Miscellaneous- Used to categorize situations that do not fit any of the other four. Each statute was also classified according to a general area of applicable law. Center staff developed the following list of fourteen areas. Some of the areas correspond to the name of the title in the Pennsylvania statutes, others do not. The parentheses next to the area indicate how each area is identified in the appendix. Consumers (C) Crimes (CR) Domestic Relations (DR) Education (ED) Estates (ES) Family Organizations/Businesses (FB) Health (H) Parenting (PG) Property (PR) Public Assistance (PA) Public Employment (PE) Survivors Rights (SR) Taxation (T) Miscellaneous (M) Legislation that has not yet been codified into one of the Titles of the Pennsylvania Statutes or Pennsylvania Consolidated Statutes Annotated was not included in this database. The Pennsylvania Constitution as well as the Rules of Court were not included in this report. However, the Center identified more than 62 provisions in the Constitution and Rules implicating marital status. Readers of this survey should note that an electronic database search of this kind has several limitations. It cannot capture every single individual law where marital status is a factor. However, we believe that the probability is high that it identified a majority of the statutes in Pennsylvania Statutes and Pennsylvania Consolidated Statutes Annotated that implicate the martial relationship. The only way to create an exhaustive list would be to read and analyze the Pennsylvania statutes in its entirety. This effort would not produce any more useful information than we have provided in the electronic search.
Readers should also be mindful that many statutes could have been classified into more than one of the categories or areas set out above. Nevertheless, Center staff placed each statute into only one category and one area based on what might be a typical fact pattern invoking use of that statute. Use of this classification scheme was made in an attempt to quantify, in a comparative sense, the nature of the legal effects of statutory rights associated with marriage. Because statutes can be interpreted differently by courts, administrative agencies, and individuals seeking to make decisions based upon such statutes, these classifications are defined broadly and their application was flexible and adaptive. FINDINGS The Center entered 683 statutes from Pennsylvania Consolidated Statutes Annotated and Pennsylvania Statutes Annotated into a database. The attached appendix identifies each individual statute by title, section, and name, as well as a brief description, category, and area assigned by the Center. The following section summarizes the findings of this study. Not every statute will be discussed in this summary, but each important area of law will be covered. In total, the Center identified and coded 427 Benefits, 114 Protections, 59 Obligations, 10 Defenses, and 73 as Miscellaneous. A general description of each area of law is set out below with a few examples of statutes and their relevance to this survey. CONSUMERS The Center identified 19 statutes in the area of consumer law. This area includes statutes in Title 13, the Commercial Code. Many statutes in this area are intended to protect a buyer and that buyers family. For example, under Title 13 2318, third party beneficiaries of express and implied warranties for goods include a member of the family or household of the buyer. Thus, a spouse of a buyer would have a more secure right to enforce a warranty than a gay or lesbian partner who would have to prove membership in the household. CRIMES This area includes statutory references for crimes and offenses that implicate the marital or family relationship. The Center identified 28 statutes in this area. Most of the statues from Title 18, Crimes and Offenses, are included in this area. Many of the statutes included in this area involve the marital relationship as a defense to a crime. For example, the statutes that are applied in cases of statutory rape provide a defense for the offender if the offender is married to the victim. See Title 18 3122.1, 3123, 3125, and 3126. This area also includes crimes involving marriage to more than one person, such as bigamy under Title 18 4301. DOMESTIC RELATIONS The Center identified 77 statutes in the area of domestic relations. This is a large area including a wide range of rights and privileges based on the marital relationship. Most of the statutes included in this area are within Title 23, Domestic Relations, but statutes under other Titles may be included as well. This area includes all the statutes relating to marriage and divorce. It provides important rights regarding the dissolution of the marital relationship, such as the grounds for divorce (Title 23 3301), annulment (Title 23 3303), the equitable division of marital property (Title 23 3502), and award of alimony payments (Title 23 3701). Statutes in this area highlight some of the most extreme discrimination a gay or lesbian family may experience. Unlike married couples where a large number of statutes seek to protect the partners of a marriage, their property, and children after a divorce, gay and lesbian partners often times lose their property rights, homes, health insurance, and children. The equitable division of marital property is one benefit spouses receive when a marriage dissolves. Title 23 3501 defines marital property as all the property acquired by either party during the marriage. Absent a mechanism for equitable distribution, lesbian and gay couples who are terminating a relationship have no comprehensive method to resolve disputes concerning ownership of property. Civil litigation is not an option for most individuals, as it is expensive and
can last years. Thus, lesbian and gay individuals ending a relationship frequently are left with unfair and inequitable divisions of property, or no property at all. Title 23 3701 protects a dependant spouse by awarding support upon the dissolution of a marriage. The intent of this statute is to assure that individuals are not left completely without resources upon termination of a relationship, and to allow a transition period for an economically dependant spouse to economic independence. Lesbian and gay individuals are often left without an income, a home and property because of the lack of a mechanism to guarantee any level of support from the former partner. Title 23 4324 also protects a dependent spouse by awarding, in addition to support, a percentage of a spouses reasonable and necessary health care expenses. These statutes ensure that a dependent spouse is not left without property or health care. Absent voluntary domestic partnership policies from an employer, lesbian and gay partners are not eligible for health care benefits. Nevertheless, even if such policies exist and a lesbian or gay partner is receiving health benefits under such a policy, most policies require that a dependant partner be terminated from the policy as soon as the partnership ends. Also included in this area are the specific privileges spouses enjoy under the law when it comes to court testimony. Pursuant to Title 42 5913 spouses have a marital privilege and cannot be forced to testify as witnesses against each other. Spouses also have a privilege regarding confidential communications between them, preventing testimony in criminal cases about those communications. See Title 42 5914. Several provisions of Title 23 permit a spouse to leave the marital home in cases of domestic abuse, but still retain a cause of action for divorce, distribution and custody of children. Given the tenuous legal rights of some lesbian and gay partners to jointly owned property, a victim of domestic violence in a same-sex relationship may have a choice of leaving the joint household to be safe, or staying to preserve property rights. This area also includes the statute that prohibits the recognition of same-sex marriages in the Commonwealth of Pennsylvania. See Title 23 1704. EDUCATION The Center identified 12 statutes in the area of education. This area includes the statutes in Title 24, Education, that implicate family and marital relations. Although not as obvious as domestic relations explained above, even within this section, the family relationship is involved. For example, as part of the course of study in grades 7-12, all schools must teach U.S. History, emphasizing the growth of American family life, according to Title 24 16-1605. As many gay and lesbian youth and children of gay men and lesbians know, this usually does not include their families. Additionally, lesbians and gay youth themselves do not see the reality of their own lives reflected in their course of studies. Thus, the dream of growing up and entering into a supportive committed relationship seems that much less attainable. Another example includes the information available at universities about the types of housing available, including married student housing. See Title 24 2502-3. Since gay and lesbian couples are denied the right to marry, they may also be denied the opportunity to reside in low-cost on campus married student housing. This benefit is particularly important because the college years are a common coming-out time for many lesbians and gay men, sometimes accompanied by a decrease in financial support by parents and family upon learning about the sexual orientation of the student. ESTATES The Center identified 52 statutes involving estates. Statutes included under this area have major implications on the way property is passed after a person dies. Most of the statutes in this area may be found in Title 20, Decedents, Estates, and Fiduciaries, of the Pennsylvania Statutes. This area includes all the statutes that apply to transfers of property when a person dies intestate, meaning without a will. Title 20 2102 provides a mandatory share of an estate to the surviving spouse, and if there are no children or parents alive, the entire estate passes to the spouse. Title 20 2103 addresses the order of beneficiaries for the distribution of an estate when there is no surviving spouse and no will. It provides mandatory shares for family members in order of
children, parents, brothers, sisters, or their children, grandparents, uncles, aunts, and their children and then to the Commonwealth. Another example is Title 20 3101, which states that a decedents wages or salary, bank account balances, life insurance, and patient care accounts through public welfare must be paid to the surviving spouse, children, parents, or siblings, in that order of preference. Lesbian and gay partners have no right to inherit assets of a deceased partner. Lesbian and gay couples must enter into various legal documents, powers of attorney, wills, trusts, and conveyances. Such documents are expensive, require updating, and even when complete, may be subject to lengthy and expensive legal challenges by family members and creditors. Divorce may also alter the way an estate is distributed. However, statutes in title 23 provide that inheritance rights are automatically altered by the legal status of the relationship, even if the spouses have not updated their wills and estate documents. Divorce automatically modifies property conveyances and powers of attorney in a way that is not available to gay and lesbian couples who are separating. Pursuant to Title 20 2507, the provisions in a will are automatically changed based upon subsequent divorces, marriages, births, or adoptions, meaning, property devised to a spouse in a will is disregarded if a divorce has taken place. Similarly, Title 20 5605 allows a divorce to automatically revoke a power of attorney in the former spouse unless it appears from the document that the designation was intended to survive the divorce. A gay man or lesbian must specifically revoke a power of attorney created in a partner after the relationship dissolution. FAMILY ORGANIZATIONS/BUSINESSES The Center identified 44 statutes in the area of family businesses and organizations. The Pennsylvania statutes include a number of benefits and exemptions for family owned and operated businesses. This area includes those statutes, many of which involve family farms and other businesses. Family farms are important corporations and partnerships in a rural state like Pennsylvania. According to statistics from the 1996 census, Pennsylvania has more individuals living in rural areas than any other state except for Texas, and is among the top five states in the country for the proportion of the population living in rural areas. Title 3, Agriculture, includes a number of benefits and protections available for family-owned farms such as interest deferral and loan guarantees, grants, education and training, and the purchase of easements. Title 3 903 provides a definition of immediate family member for use in this statute as: a brother, sister, son, daughter, stepson, stepdaughter, grandson, granddaughter, father, or mother of the landowner and their spouses. Also included in this area are the ethical obligations regarding a family business. For example, Title 4 325.214 limits spouses and enumerated family members from having an interest in a racehorse if that horse is participating in a race where the other spouse or family member is the owner of another horse. Title 15 includes several sections that seek to prevent the formation of voting blocks by family members in closely held corporations. For example, Title 15 1103 and 2304 permit counting spouse/couples as one shareholder for determining the number of shareholders. While this kind of conflict rule, common in various statutory schemes, can be more a restriction on a married spouse than a benefit, the statute itself seeks to avoid collusion and conflicts in affairs concerning family ownership of businesses. Because the statutory scheme does not recognize same-sex relationships, it ignores the possibility that conflicts and collusion could arise out of same-sex relationships. Thus, because same-sex relationships are not recognized, the statute remains inadequate in its attempt to regulate and prohibit conflicts and collusion arising out of family relationships. For the purposes of certain labor and workplace regulations, Title 43 211.3 and 491-3, establish a statutory scheme that excludes spouses and children of an employer from the definition of employee. Thus, recognition of family relationships between employers and employees can serve to decrease burdensome state regulations of small business. A lesbian or gay owner of a business who employs his or her partner cannot take advantage of these exemptions. Election laws found in Title 25 3260(a), require that any political expenditure by an owners and officers of business entities be reported to the Secretary of the Commonwealth if, in the aggregate, they exceed $1,000. Contributions under the name of the spouse of the owners or officers are included in this aggregate. This law is designed to facilitate full
disclosure of campaign contribution and open campaign financing records to public scrutiny. However, contributions of the same-sex partner of owners and partners are not covered and need not be disclosed. HEALTH The Center identified 15 statutes in the area of health. This area includes those statutes that involve the Commonwealths interest in the health of the family. Many statutes in this area include special provisions to provide a family with counseling services, if necessary. Title 40 908-4 and 908-5 address drug and alcohol treatment services under insurance. Title 50 4417 states that if a person who is committed to a mental health institution does not have a living parent, spouse, issue, next of kin, or legal guardian, then the directors of facilities may make medical decisions about elective surgery. This example is important because a gay or lesbian partner is excluded from the right to make medical decisions for a partner, absent a specific legal document granting him or her that right. PARENTING The Center identified 30 statutes in the area of parenting. Many times, parenting rights can be tied to the marital relationship. One important example is in the case of adoption. Title 20 2711 requires a spouse to consent to an adoption unless they are already joined in the adoption application process. Title 20 2903 states that when one parent consents to the adoption of his or her child by the spouse of the parent, that parent will retain their parental rights with respect to the child.38 Some courts have found that this statute prevents the lesbian partner of a parent from adopting a child created through alternative insemination. One court stated that the biological mothers parental rights would have to be severed in order for an adoption to take place, refusing to allow it to occur under the exception stated above.39 Denying this type of adoption has tragic results for a gay or lesbian family. It means that the child will only have one legal parent, a potential tragedy if that one parent should die or become incapacitated. It also has implications for the non-legal co-parent of the child, who may be regarded by the courts as a legal stranger if that couple separates.40 This means a child may lose all contact with someone he or she once viewed as a parent. It also means that the non-legal parent does not have an obligation to provide child support. PROPERTY The Center identified 68 statutes in the area of property. This area includes property rights that are created through the marital relationship or benefit from that relationship. Statutes included in this area involve the property rights of married couples when both parties are still alive. Property after death is discussed the Estates section above. This area includes property such as real estate, bank accounts, vehicles or other assets. It also includes statutes that involve property rights for those owning property as tenants by the entirety, a manner in which only married couples may hold property. The inability of lesbians and gay men to hold property in a tenancy by the entirety involves serious disadvantages in a variety of other statutory schemes. Each partner becomes vulnerable to the other partners creditors. Also, each partner can alienate his or her interest in jointly-owned property without the consent of the other.
38
This is an exception to the rule that an adoption severs the parental rights of the first parent. For example, this is commonly referred to as step-parent adoption or second-parent adoption. This allows a stepparent to adopt the child of his or her spouse without terminating the parental rights of the first parent. 39 In re Adoption of R.B.F. & R.C.F., Court of Common Pleas of Lancaster County, Opinion Sur Appeal, p. 7. This case is now on appeal to the Pennsylvania Superior Court. The Center will file an amicus curiae brief in this case. 40 See J.A.L. v. E.P.H., 682 A.2d 1314 (Pa. Super. Ct. 1996)(where a former domestic partner of biological mother petitioned the court for custody of the child they co-parented, while the court ultimately denied the custody petition, the court held that the domestic partner acted as a parent to the child and had standing to seek partial custody).
Title 17 506 permits spousal joint accounts to be controlled by a single party as opposed to all parties. Title 17 701, also dealing with banking, extends the privilege of credit union membership to family members of a credit union member and spouses of deceased credit union members. A number of statutes under Title 75, Vehicles, also implicate the spousal relationship. Title 75 1115 carves out a marriage/divorce change of name exception for the need to provide information to the Division of Motor Vehicles for a vehicle title. The title does not need to be transferred but rather the title is changed using a special form. Lesbian and gay couples must change title by going though the entire transfer process. Title 75 1119 prohibits people from holding certificates of title recorded in the name of another person for the other person unless they are family members, among other exemptions. PUBLIC ASSISTANCE The Center identified 44 statutes in the area of public assistance. Many times, the marital relationship is implicated when an individual applies for financial public assistance from the government. This area includes those statutes relevant to public assistance awards such as Title 62 3088, where health insurance coverage is available to individuals and their immediate family members through public assistance programs. Also included in this area is Title 62 3204 that provides assistance to the families of individuals with disabilities. Crime victims and their families are another group of people who are eligible to receive public assistance. Under Title 71 180-7.3, a surviving spouse is among those eligible for compensation from the Crime Victims Compensation Board. A common provision in public assistance statute is an attempt to decrease the burden on the public treasury by shifting the burden of payment for medical care and necessities from the state to available family members. Title 62 1409 shifts liability for certain medical care expenses to a legally responsible spouse. Sections 1974 and 447 permit the attachment of the property of a parent or spouse to pay for support of an indigent. Title 71 1783 permits a spouse of an inmate of various state institutions to be held liable for maintenance costs of such a person. By not recognizing the existence of same-sex partners, the statutory scheme has missed an opportunity to reduce public expenditures and insure that individuals needing public assistance can be cared for in a manner which does not deplete the Commonwealth treasury. PUBLIC EMPLOYMENT BENEFITS The Center identified 150 statutes concerning public employment. This area includes a large number of statutes in the Pennsylvania statutory scheme that tie public employment and veterans benefits to the spousal or marital relationship. Most times, this involves a public employees pension, bereavement leave, and health insurance benefits. All of these statutes raise this issue of whether lesbian and gay workers are receiving compensation on a basis equal to their heterosexual counterparts. Heterosexual employees receive, in addition to salary and individual benefits, additional compensation based on family membership. In Pennsylvania, a man and a woman can meet at lunch and declare themselves husband and wife by that afternoon under the Commonwealths lenient common law marriage rules. A gay worker who has been with his partner for decades cannot access the same employment benefits as a similarly situated worker who has a common law spouse. For example, Title 16 4701 defines the survivors benefit allowance as the portion of the deceased county employees retirement money to be paid to a surviving spouse. Under Title 53 23609.2 any married person who retires as a firefighter will receive a pension and after his or her death, the surviving spouse will receive a pension equal to 50% of the decedents pension. Title 53 23609.3 states that if there is no surviving spouse, the pension is payable to the decedents children, dependent parents, or estate. Also included in this area are similar statutes for pensions payable to police officers, county officials, and other public employment jobs. Health insurance coverage provided by an employer has long been an issue important to all families. Many private corporations now offer domestic partnership benefits to employees and their partners. However, public employment,
many times, does not offer such benefits. For example, Title 24 5-513 allows school districts to make contracts of insurance that covers employees, spouses, and dependents. Bereavement is another important area of employment benefits. Title 24 11-1154 allows up to 3 days, non-docked and paid leave for death of an immediate family member as defined by blood, marriage, and household residents. One related statutory pattern found in public employment law is the ability of commissions to disqualify members due to missing too many meetings. Each of these statutes provides that members may be excused from disqualification if the reason for missing meetings is the death or illness of a family member. This statutory scheme affects the State Conservation Commission (Title 3 852), the State Board of Education (Title 24 26-2602-B), the State Board of Private Licensed Schools (Title 24 6503), the State Board of Private Academic Schools (Title 24 6703), the Pennsylvania Drug, Device and Cosmetic Board (Title 35 780-131), the Pennsylvania Human Relations Commission (Title 43 956), the State Board of Examiners of Nursing Home Administrators (Title 63 1103.1), the State Board of Psychology (Title 63 1203.1), the State Board of Dentistry (Title 63 121.1), the State Board of Physical Therapy (Title 63 1302.1), the State Registration Board for Professional Engineers, Land Surveyors and Geologists (Title 63 151.1), the State Board of Social Work Examiners (Title 63 1905), the State Board of Nursing (Title 63 212.1), the State Board of Optometry (Title 63 244.2a), the State Board of Osteopathic Medicine (Title 63 271.2a), the State Board of Pharmacy (Title 63 390-6), the State Board of Podiatry (Title 63 42.2a), the State Board of Medicine (Title 63 422.3), the State Real Estate Commission (Title 63 455.502), the State Board of Real Estate Appraisers (Title 63 4567.4), the State Board of Funeral Directors (Title 63 479.19), the Pennsylvania State Board of Veterinary Medical Examiners (Title 63 485.4), the State Board of Barber Examiners (Title 63 552.2), the State Board of Chiropractic (Title 63 625.301), the State Board of Auctioneer Examiners (Title 63 734.31), the State Board of Vehicle Manufacturers, Dealers and Salespersons (Title 63 818.3), the State Board of Accountancy (Title 63 92c) and the Board of Landscape Architects (Title 63 902.2a). This statutory exception encourages commission membership by individuals who have expertise to contribute even though they may also have family responsibilities. By not including similar provisions to allow lesbian and gay members of boards and commissions to be absent due to death or illness of a partner, the boards and commissions are losing the benefits of talented lesbian and gay citizens who must care for ill partners or who face the death of their partner. These boards represent the leadership and standard-setting bodies in their respective industries. Exclusion of same-sex relationships from this statutory scheme results in the exclusion of lesbians and gay men from these positions. Another common principle in public employment statutes (and family business statutes) is the prohibition of nepotism in the granting of public benefits and the application of regulations. For example, Title 71 279.4 prohibits an individual from sitting on a licensing board or commission, including any of the boards listed above, if he or she has a spouse whose occupation is covered by said board or commission. Title 24 6008 prohibits awarding contracts under the Information Technology Information Act if a state official or a member of his immediate family has a financial interest in the contract. Title 66 301 limits participation on the Public Utility Commission based on the holdings and profession of the individuals spouse. Title 69 610 prevents the issuance of a motor vehicle sales financing license to a person whose spouse has been found guilty of certain violations of the licensing act. These statutes are meant to preserve the integrity of the licensing, contracting and regulatory process. However, the above referenced statutes do not mention situations where the same-sex partner of a licensing board is in an occupation covered by said board or commission where the same-sex partner of a state official has an interest in the contract, where the same-sex partner of a prospective member of the Public Utility Commission may be involved in the utility industry, or where the same-sex partner of an applicant for a motor vehicle financing license may have been held in violation of the act. Again, by not recognizing the existence of same-sex partners, these statutes are inadequate in their attempt to eliminate conflicts of interest and self-dealing. SURVIVORS RIGHTS The Center identified 21 statutes involving survivors rights after the death of a spouse. The surviving spouse has a number of rights and privileges regarding the deceased spouse in addition to estate, property and pension issues. This
area includes statutes that implicate a surviving spouses rights with respect to the deceased spouse and the treatment of the deceased spouses body. One example is that a spouse can play an important role in authorizing or preventing an autopsy from being performed on a body pursuant to Title 35 1111. In addition, under Title 20 8611, the spouse is first in line after the person himself as able to donate their deceased spouses organs as anatomical gifts, absent a contrary intention. Title 20 8616 also respects the spouses preferences regarding treatment of the deceased spouses body and requires that the spouse, or next of kin, be consulted as to certain preferences. Title 16 also includes numerous statutes for the spouse and family to be consulted as to preferences for the burial and headstone for a deceased veteran. Title 7, dealing with Banks and Banking, allows the surviving spouse to receive a joint deposit into accounts owned by the spouses. In tort actions involving the wrongful death of a family member, only the spouse, children or parents of the deceased are eligible to bring a lawsuit, according to Title 42 8301. Thus, gay and lesbian partners are excluded. Important rights of crime victims are also included in this area such as the right of a victim or relative to present a statement for a parole report or to testify, and have notice of a hearing and decision. Also, immediate family members of a crime victim may testify in parole hearings if the victim was a minor or has died. See Title 61 331.22a. TAXATION The Center identified 50 statutes related to taxation. Tax issues are also among the many statutes that implicate the marital relationship. This area includes tax issues under Title 72, Taxation and Fiscal Affairs, and other statutes as well. One important statute in this area demonstrates the privileged status of married couples in many of the taxation schemes for property transfers. Under Title 53 6902, certain types of real property transfers, including those between a husband and wife and other enumerated family members, are excluded from municipal taxation. This means that property transfers to a gay or lesbian partner are taxed even if no money changes hands.41 Another major inequality between married couples and gay and lesbian couples is the inheritance taxation scheme. Title 72 9116 sets the inheritance tax rate for property passing after a death. Husbands and wives do not have to pay any tax on the transfer, while other family members pay a 6% tax. All other people, including gay and lesbian partners receiving property must pay a 15% tax on the transfer. In addition, lesbian and gay partners can not take advantage of a Family Tax Exemption available to spouses provided by Title 20 3121. M ISCELLANEOUS The Center included 70 statutes in this catch-all area which includes a wide range of statutes that did not seem to fit in other areas as well as interesting and bizarre statutes that mention the spousal or marital relationship, often in ways most people would not usually think about. For example, Title 53 24564 prohibits people from placing or forcing their children or family to place dead animals or other putrid or unsound matter in various places, punishable by a $10 fine. Title 25, Elections has a number of provisions regarding absentee ballots, allowing the spouses of military personnel serving out of the state or country to cast their ballots. Also included in this section are general statutes that include the definition of family in different titles, among others. Under Title 43 211.6, it is considered an unfair labor practice for an employer to threaten or coerce a spouse of an employee. However, lesbian and gay employees can be lawfully subject to coercion because the statute does not prohibit and employer from threatening the partner of the employee.
This has created tragedy for a number of gay and lesbian families. During the public testimony for the Domestic Partnership Ordinances in Philadelphia. Alfonso Rainey shared his story about how he and his partner were unable to afford the real estate transfer tax required to place both their names on the deed to their home. Only his partners name was on the deed. His partner died unexpectedly, and Alfonso lost his home as a result.
41
Conclusion This study demonstrates a vast number of ways gay and lesbian families are discriminated against because they are denied the right to marry. The Center is working hard to change this inequality, but in the mean time, the Center encourages lesbian and gay families to take proactive steps to protect their families.42 This survey shows that marriage and the spousal relationship pervades almost every area of law, affecting the operation of the state and individual at every level. This affects individual rights as well as a states right to adequately regulate industries and employees. Lesbian and gay families will remain non-existent in the eyes of the law until same-sex couples have the right to marry. Because lesbian and gay families exist and will continue to exist, with or without legal recognition, marriage is an important civil rights struggle that will not go away until that right is won for all citizens.
42
The Center recommends that families educate themselves about wills, advanced directives for health care, powers of attorney, cohabitation agreements, separation agreements, second-parent adoption, and guardianship.
EXHIBIT C
DECHERT LLP By: Robert C. Heim (Pa. 15758) Alexander R. Bilus (Pa. 203680) William T. McEnroe (Pa. 308821) Joanna L. Barry (Pa. 311438) Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 (215) 994-4000 David S. Cohen (Pa. 88811) 3320 Market Street Philadelphia, PA 19104 (215) 571-4714 Attorneys for Intervenor Respondents
IN THE COMMONWEALTH COURT OF PENNSYLVANIA ______________________________________ : : : : 379 M.D. 2013 Petitioner, : : v. : : D. BRUCE HANES, in his capacity as the : Clerk of Orphans Court of Montgomery : County, : : Respondent, : and : : SASHA BALLEN, et al., : : Intervenor Respondents. ______________________________________ : COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH, INTERVENOR RESPONDENTS PRELIMINARY OBJECTIONS TO THE DEPARTMENT OF HEALTHS AMENDED PETITION FOR REVIEW
Intervenor Respondents, through their undersigned counsel, preliminarily object to the Department of Healths Amended Petition for Review pursuant to Pa. R. Civ. P. 1028(a)(1), (a)(4), and (a)(5) on the following grounds: 1. Under 1996 amendments to Pennsylvania law, a couple must obtain a marriage
license before legally joining in marriage. See 23 Pa. C.S. 1301(a). Pennsylvanias Marriage Law, 23 Pa. C.S. 1101, et seq. (the Marriage Law), defines marriage as a civil contract by which one man and one woman take each other for husband and wife. Id. 1102. Furthermore, section 1704 provides that it is the policy of the Commonwealth that marriage shall be between one man and one woman. Id. 1704. 2. However, in a landmark decision on June 26, 2013, the United States Supreme
Court struck down a portion of the federal equivalent to Pennsylvanias Marriage Law, the Defense of Marriage Act, 1 U.S.C. 7 (DOMA), as unconstitutional. See United States v. Windsor, 133 S. Ct. 2675, 2696 (2013). DOMA and the relevant amendments to the Pennsylvania Marriage Law were passed in the same year, for the same reasons, and with the same statutory definition of marriage. 3. On July 11, 2013, Pennsylvania Attorney General Kathleen G. Kane announced
that the Office of Attorney General would not defend Pennsylvanias Marriage Law in a newly filed case challenging the laws constitutionality, see Whitewood v. Corbett, No. 13-1861 (M.D. Pa. filed July 9, 2013), because, in light of Windsor, she had determined that the Marriage Law is wholly unconstitutional.1
Press Release, Pennsylvania Attorney General Kathleen Kane, Attorney General Kane Will Not Defend DOMA (July 11, 2013), http://www.attorneygeneral.gov/press.aspx?id=7043.
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4.
Following Attorney General Kanes pronouncement, on July 23, 2013, the Clerk
of the Orphans Court of Montgomery County, Respondent D. Bruce Hanes, announced that his office would begin issuing marriage licenses to same-sex couples. 5. Intervenor Respondents are same-sex couples who have received marriage
licenses from Respondent and have, or intend to be, married in Pennsylvania.2 6. On July 30, 2013, Petitioner Department of Health filed a Petition for Review In
the Nature of an Action in Mandamus with this Court, and subsequently filed an Amended Petition for Review on August 5, 2013. The Department of Health seeks an order directing Respondent Hanes to cease and desist from issuing marriage licenses to same-sex couples. Am. Petition at 25. 7. Because the Marriage Law is patently unconstitutional under both the United
States and Pennsylvania Constitutions for the reasons discussed below and in the accompanying Memorandum of Law, the Department of Healths Amended Petition for Review should be dismissed.
Intervenor Respondents are: Sasha Ballen and Dee Spagnuolo; Jennifer L. Anderson and Lisa A. Fraser; Gabriella Assagioli and Lynn Zeitlin; Youval Balistra and Dr. Glen Loev; Mark Baumann-Erb and Ronald Baumann-Erb; Jeffrey Becker and Kevin Taylor; Joan L. Bennett and Joanne B. Glusman; Joseph Billips and Andrew Pruessner; Loreen Bloodgood and Alicia Terrizzi; James Booth and Bolton Winpenny; Leigh Taylor Braden and Sophie Forge; Joan Brown and Jill Galper; William Brad Cook and Clarence Samuel Warden, Jr.; Dr. Marta Dabezies and Patricia Rose; Dr. Mary Margaret DeSouza and Kimberly A. Lane; Mark Diehl and Brian Stafford; Mary Beth Flynn and Elaine Spangler; William A. Gray, Jr. and John Kandray; Dawn Grove and Tracy Harper; Elizabeth M. Harvey and Sada Sallack; Karen Henry and Andrea Schaeffer; Joanne Hyle and Kathryn Kolbert; Charlene Kurland and Ellen Toplin; Christine Lindgren and Andrea Myers; Ethelda A. Makoid and Wendy L. Sheppard; Marcia L. Martinez-Helfman and Sarah A. Martinez-Helfman; Nicholas Pantaleone and Anthony Ruffo; Ruth Parks and Michelle Schaeffer; Robert Polay and Nicholas Vlaisavljevic; Lisa Roling and Mary Young; Domenick Scudera and Brian Strachan; Richard Strahm and Ken Robinson.
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PRELIMINARY OBJECTIONS First Preliminary Objection: Lack of Subject Matter Jurisdiction 8. Pursuant to Pa. R. Civ. P. 1028(a)(1), Intervenor Respondents object that this
Court lacks subject-matter jurisdiction because the Supreme Court of Pennsylvania has sole authority for the general supervision of the courts. See Pa. State Assn of Jury Commrs v. Commonwealth, No. 247 M.D. 2013, 2013 WL 3929862, at *2 (Pa. Cmwlth. July 31, 2013). 9. Respondent Hanes is a judicial officer serving the Orphans Court of Montgomery
County, Pennsylvania pursuant to 42 Pa. C.S. 2777. Issuing a marriage license constitutes a judicial act. See In re Miller Estate, No. 182, 1907 WL 3761, at *1 (Pa. Super. Ct. May 8, 1907). 10. The Supreme Court has original jurisdiction over this action pursuant to 42 Pa.
C.S. 721 because the case involves mandamus to a court of inferior jurisdiction. 11. This Court has original jurisdiction in cases of mandamus to courts of inferior
jurisdiction only where such relief is ancillary to matters within its appellate jurisdiction. See 42 Pa. C.S. 761. 12. Because this matter does not fall within the Courts ancillary jurisdiction and
because the Petition requests that the Court issue a writ of mandamus to the officer of an inferior court, this Court lacks jurisdiction. See Leiber v. Cnty. of Allegheny, 654 A.2d 11, 14 (Pa. Cmwlth. 1994) (holding that a petition filed against a member of an inferior tribunal should be transferred to the Supreme Court). WHEREFORE, Intervenor Respondents respectfully request that the Amended Petition be transferred to the Supreme Court pursuant to 42 Pa. C.S. 721 and 5103(a) or that the Amended Petition be dismissed pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1).
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Second Preliminary Objection: Lack of Standing 13. Pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(4) and (a)(5),
Intervenor Respondents object that Petitioner lacks standing to bring the Amended Petition.3 14. Standing is a threshold requirement, see Howard v. Commonwealth, 957 A.2d
332, 335 (Pa. Cmwlth. 2008), concerned only with the question of who is entitled to make a legal challenge to the matter involved, Bonetti Health Care Ctr., Inc. v. Dept. of Pub. Welfare, No. 1339 C.D. 2011, 2012 WL 8682351, at *2 (Pa. Cmwlth. Mar. 7, 2012). 15. The Pennsylvania Supreme Court has held that where the duty of an officer
under a statute is a public one, it can be enforced only at the suit of the attorney general or the district attorney of the proper county or by a private citizen who has a specific and independent legal right or interest in himself different from that of the public at large. Dorris v. Lloyd, 100 A.2d 924, 926 (Pa. 1954); see also Dombroski v. City of Phila., 245 A.2d 238, 245 (Pa. 1968) (stating that a county commissioner, treasurer, controller, and elected members of a retirement board were private plaintiffs in the only sense here relevant in a mandamus action because they were not the Attorney General or district attorney). 16. 17. Petitioner is neither the Attorney General nor a District Attorney. In addition, Petitioner lacks a specific and independent legal right or interest
different from that of the public at large. Petitioner is not charged with the regulation of
3
Pennsylvania cases have analyzed preliminary objections based on lack of standing under both rule 1028(a)(4), in the nature of a demurrer, and 1028(a)(5), lack of capacity to sue. See Boady v. Philadelphia Mun. Auth., 699 A.2d 1358, 1360-61 (Pa. Cmwlth. 1997) (analyzing standing under rule 1028(a)(4)); First Republic Bank v. Brand, No. 147 Aug. Term 2000, 2000 WL 33394627, at *2 n.3 (Pa. Com. Pl. Dec. 19, 2000) (analyzing standing under rule 1028(a)(5)). In any event, it is well-settled that parties may challenge standing in their preliminary objections. See, e.g., Kee v. Pa. Turnpike Commn, 685 A.2d 1054, 1056 n.4 (Pa. Cmwlth. 1996) (Pennsylvania courts have a history of addressing preliminary objections raising questions of standing).
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marriage licenses, and its interest in marriage stems purely from a duty to see that vital statistics and registrations are made appropriately. See Am. Petition 9-11. 18. Accordingly, Petitioner lacks standing to seek a writ of mandamus against
Respondent Hanes. WHEREFORE, Intervenor Respondents respectfully request that the Petition be dismissed pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(4) and (a)(5). Third Preliminary Objection: Failure To State A Claim Upon Which Relief Can Be Granted Equal Protection and Due Process under the Pennsylvania and U.S. Constitutions 19. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), Intervenor
Respondents object that the Petitioner has failed to sufficiently plead claims upon which relief can be granted. 20. Mandamus is an extraordinary remedy. See Nickson v. Com. Bd. of Prob. and
Parole, 880 A.2d 21, 23 (Pa. Cmwlth. 2005). It may be used to compel the performance of a duty only when a clear legal right exists in the plaintiff, there is a corresponding duty on the defendant, and there is no other appropriate or adequate remedy. See Nader v. Hughes, 643 A.2d 747, 752 n. 13 (Pa. Cmwlth. 1994). 21. Petitioner cannot show a clear right to relief because the Marriage Law patently
violates Intervenor Respondents rights to equal protection and/or due process under both the United States and Pennsylvania Constitutions, and is unconstitutional and unenforceable. 22. As the Supreme Court of the United States has explained, [t]he Equal Protection
Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons
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similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). 23. When a law draws classifications between people and treats people differently
based on those classifications, the level of scrutiny applied by the Court to determine whether the law is constitutional depends on the type of classifications drawn by the law and nature of the rights impacted by the law. See id. at 439-40. 24. Laws that classify based on race and national original are subject to strict scrutiny
because those classifications are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. Id. at 440. Laws that burden a fundamental constitutional right[], San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 51 (1973), are also subject to strict scrutiny. 25. Laws that classify based on sex and parents non-marital status are subject to
intermediate scrutiny. These are considered quasi-suspect classes, and laws classifying on this basis must be substantially related to the achievement of important governmental objectives. See United States v. Virginia (VMI), 518 U.S. 515, 524 (1996). Intermediate scrutiny has also been applied to review a law that affects an important, though not constitutional, right. Ramos v. Town of Vernon, 353 F.3d 171, 175 (2d Cir. 2003). 26. Although the United States Supreme Court has not squarely addressed the issue,
laws that classify based on sexual orientation should also be subject to intermediate scrutiny. See Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) affd on other grounds 133 S. Ct. 2675 (2013). See also Brief of the United States on the Merits Question, United States v. Windsor, 133 S.Ct. 2675 (2013), 2013 WL 683048, at *13.
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27.
Lastly, rational-basis review applies to classifications based on distinguishing
characteristics relevant to interests the State has the authority to implement. Cleburne, 473 U.S. at 441. 28. The Marriage Law impermissibly discriminates both on the basis of gender and
on the basis of sexual orientation, and accordingly it should be subjected to intermediate scrutiny. See Virginia, 518 U.S. at 532-33; Windsor v. United States, 699 F.3d at 185. 29. The Marriage Law is not substantially related to the achievement of an important
government interest, and therefore fails to under intermediate scrutiny and is unconstitutional. 30. Moreover, under either intermediate scrutiny or rational basis review, a law that
treats homosexuals differently from heterosexuals is unconstitutional where it is motivated by animus. In other words, if the laws principal purpose is to impose inequality and it demeans the couple, whose moral and sexual choices the Constitution protects, the law is unconstitutional. United States v. Windsor, 133 S. Ct. at 2694 (internal quotations omitted). 31. The Marriage Law was motivated by animus towards homosexuals and same-sex
couples, and therefore is unconstitutional. 32. rational basis. 33. The text of the Marriage Law states that it is the strong and longstanding public Even if the Marriage Law was not motivated by animus, however, it has no
policy of this Commonwealth that marriage shall be between one man and one woman. 23 Pa. C.S. 1704. Tradition alone does not, however, provide a rational basis. See Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) ([T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . .).
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34.
Moreover, no interest in preserving the funds that would be spent to provide
marital benefits to same-sex couples justifies the Marriage Law, absent an independent and valid rationale for why same-sex couples ought to bear that burden. 35. Finally, the Marriage Law is not rationally related to an interest in protecting
children. See United States v. Windsor, 133 S.Ct. at 2694 (noting that denying marriage rights to same-sex couples humiliates their children and makes it harder for those children to understand the integrity and closeness of their own family); see also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.) affd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). 36. For similar reasons, the Marriage Law violates Intervenor Respondents rights to
equal protection under the Pennsylvania Constitution. Pa. Const. art. I 1, 26. 37. The Marriage Law also impinges Intervenor Respondents fundamental right to
marry and thus violates their equal protection and/or due process rights under the United States and Pennsylvania Constitutions. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (denying the fundamental freedom of marriage to some is surely to deprive all the States citizens of liberty without due process of law). 38. The Marriage Law is further unconstitutional under the Equal Rights Amendment
to the Pennsylvania Constitution because it discriminates on the basis of sex or gender. Pa. Const. art. I 28. 39. As the Supreme Court has recognized, [i]n the performance of assigned
constitutional duties each branch of the Government must initially interpret the Constitution, and
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the interpretation of its powers by any branch is due great respect from the others. United States v. Nixon, 418 U.S. 683, 703 (1974) (emphasis added). 40. In light of Attorney General Kanes pronouncement of the Marriage Laws
unconstitutionality, the United States Supreme Courts decision in Windsor, and the Marriage Laws patent inconsistency with the United States and Pennsylvania Constitutions, Respondent Hanes was within his authority to refuse to enforce the Marriage Law and to issue marriage licenses to Intervenor Respondents. In fact, had he refused to do so, he would have acted unconstitutionally. 41. Furthermore, Petitioner Department of Health cannot sustain its burden to show
that it is entitled to either a writ of mandamus or to summary relief because the Marriage Law, for the reasons stated above and more fully discussed in the accompanying Memorandum of Law, is wholly and patently unconstitutional under the United States and Pennsylvania constitutions. WHEREFORE, Intervenor Respondents respectfully request that the Amended Petition be dismissed pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4). CONCLUSION For these and the reasons more fully stated in the accompanying Memorandum of Law, Intervenor Respondents respectfully request that the Court sustain these Preliminary Objections and dismiss the Amended Petition with prejudice.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA ______________________________________ : COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF HEALTH, : : 379 M.D. 2013 Petitioner, : : v. : : D. BRUCE HANES, in his capacity as the : Clerk of Orphans Court of Montgomery : County, : : Respondent, : and : : SASHA BALLEN, et al., : : Intervenor Respondents. ______________________________________ :
INTERVENOR RESPONDENTS MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS
Robert C. Heim (Pa. 15758) Alexander R. Bilus (Pa. 203680) William T. McEnroe (Pa. 308821) Joanna L. Barry (Pa. 311438) DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808
David S. Cohen (Pa. 88811) 3320 Market Street Philadelphia, PA 19104
Attorneys for Intervenor Respondents
TABLE OF CONTENTS Page INTRODUCTION .......................................................................................................................... 1 STATEMENT OF JURISDICTION .............................................................................................. 3 SCOPE AND STANDARD OF REVIEW..................................................................................... 4 STATEMENT OF THE QUESTIONS INVOLVED..................................................................... 5 STATEMENT OF THE CASE....................................................................................................... 6 SUMMARY OF ARGUMENT ...................................................................................................... 8 ARGUMENT.................................................................................................................................. 9 I. II. III. This Court Lacks Subject Matter Jurisdiction ........................................................ 9 The Department of Health Lacks Standing........................................................... 11 The Marriage Law Violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution ................................... 13 A. The Marriage Law Violates the Equal Protection Clause......................... 13 1. 2. 3. The Marriage Law Discriminates on the Basis of Sexual Orientation .................................................................................... 15
The Marriage Law Discriminates on the Basis of Sex ......................... 17
The Marriage Law Has the Purpose and Effect to Disparage and Injure Same-Sex Couples and Cannot Satisfy Heightened Rational Basis Review ................................... 19 The Marriage Law Lacks Any Rational Basis .............................. 23
4. B. IV. A. B. C. V.
The Marriage Law Violates Due Process ................................................. 24 The Marriage Law Violates the Equal Rights Amendment to the Pennsylvania Constitution ........................................................................ 26 The Marriage Law Violates the Equal Protection principles of Article I of the Pennsylvania Constitution................................................................... 27 The Marriage Law Violates the Due Process principles of Article I of the Pennsylvania Constitution ........................................................................ 28
The Marriage Law Violates Article I of the Pennsylvania Constitution ............... 25
Respondent Hanes Acted Within His Authority, and In Any Event, the Law Is Unconstitutional and Should be Struck Down.......................................................... 29
CONCLUSION............................................................................................................................. 30
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TABLE OF AUTHORITIES Page(s) FEDERAL CASES Bowers v. Hardwick, 478 U.S. 186 (1986).................................................................................................................17 Burson v. Freeman, 504 U.S. 191 (1992).................................................................................................................25 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985)...............................................................................................14, 15, 19, 22 Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004).................................................................................................................21 Cooper v. Aaron, 358 U.S. 1 (1958).....................................................................................................................30 Craig v. Boren, 429 U.S. 190 (1976).................................................................................................................23 Frontiero v. Richardson, 411 U.S. 677 (1973)...........................................................................................................18, 23 Heller v. Doe, 509 U.S. 312 (1993).....................................................................................................17, 24, 26 Lawrence v. Texas, 539 U.S. 558 (2003).................................................................................................................17 Loving v. Virginia, 388 U.S. 1 (1967)...................................................................................................18, 24, 25, 26 Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012)........................................................................................................18 Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982).................................................................................................................22 Orr v. Orr, 440 U.S. 268 (1979).....................................................................................................18, 23, 24 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated on other grounds, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).............................................................................................................24
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Personnel Admistrator v. Feeney, 442 U.S. 256 (1979).................................................................................................................16 Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................................18 Romer v. Evans, 517 U.S. 620 (1996)...........................................................................................................19, 22 Rowland v. Mad River Local School Dist., 470 U.S. 1009 (1985) (Brennan, J., dissenting from a denial of certiorari) ............................17 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).....................................................................................................................15 U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973)...........................................................................................................19, 22 United States v. Nixon, 418 U.S. 683 (1974).................................................................................................................30 United States v. Virginia (VMI), 518 U.S. 515 (1996)...............................................................................................15, 17, 18, 22 United States v. Windsor, 133 S. Ct. 2675 (2013)..................................................................................................... passim Washington v. Davis, 429 U.S. 229 (1976).................................................................................................................16 Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d 168 (3d Cir. 1993).....................................................................................................27 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) affd on other grounds 133 S. Ct. 2675 (2013)..............15, 16, 17 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012)......................................................................................18 Zablocki v. Redhail, 434 U.S. 374 (1978).................................................................................................................25 STATE CASES Baehr v. Mike, No. 91-1394, 1996 WL 694235 (Cir. Ct. Hawaii Dec. 3, 1996)..............................................21 Boady v. Phila. Mun. Auth., 699 A.2d 1358 (Pa. Cmwlth. 1997) .........................................................................................13 - iii -
Bonetti Health Care Ctr., Inc. v. Dept. of Pub. Welfare, No. 1339 C.D. 2011, 2012 WL 8682351 (Pa. Cmwlth. Mar. 7, 2012)....................................12 Broaddus v. Pa. Bd. of Prob. & Parole, No. 416 M.D. 2009, 2010 WL 9519012 (Pa. Cmwlth. Apr. 30, 2010) ...................................28 Com. ex rel. Smith v. Pa. Dept of Corr., 829 A.2d 788 (Pa. Cmwlth. 2003) .............................................................................................5 Commonwealth v. Beam, 788 A.2d 357 (Pa. 2002) ..........................................................................................................13 Commonwealth v. Butler, 328 A.2d 851 (Pa. 1974) ......................................................................................................9, 27 Commonwealth v. Shoemaker, 518 A.2d 591 (Pa. Super. 1986).........................................................................................26, 29 Commonwealth v. Vartan, 674 A.2d 1156 (Pa. Cmwlth. 1996), revd on other grounds, 733 A.2d 1258 (Pa. 1999) ..............................................................................................................................8, 11, 12 Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. 1985).........................................................................................9, 25, 29 DeFazio v. Civil Serv. Commn of Allegheny Cnty., 756 A.2d 1103 (Pa. 2000) ........................................................................................................28 Dombroski v. City of Phila., 245 A.2d 238 (Pa. 1968) ......................................................................................................8, 13 Dorris v. Lloyd, 100 A.2d 924 (Pa. 1954) ......................................................................................................8, 13 Driscoll v. Corbett, No. 19 MAP 2013, 2013 WL 2981713 (Pa. June 17, 2013)......................................................8 First Republic Bank v. Brand, No. 147 Aug. Term 2000, 2000 WL 33394627 (Pa. Com. Pl. Dec. 19, 2000)........................13 Henderson v. Henderson, 327 A.2d 60 (Pa. 1974) ............................................................................................................27 Himmelberger v. Commonwealth, 47 A.3d 160 (Pa. Cwlth. 2012) ................................................................................................24
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Himmelberger v. Department of Revenue, No. 0610-0286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565 (Pa. Com. Pl. Sept. 28, 2011) ........................................................................................................................................24 Howard v. Commonwealth, 957 A.2d 332 (Pa. Cmwlth. 2008) ...........................................................................................12 In re Administrative Order No. 1-MD-2003, 882 A.2d 1049 (Pa. Cmwlth. 2003) .........................................................................................11 In re Miller Estate, 1907 WL 3761 (Pa. Super. May 8, 1907) ............................................................................8, 10 In re R.B.F., 803 A.2d 1195 (Pa. 2002) ........................................................................................................24 James v. SEPTA, 477 A.2d 1302 (Pa. 1984) ..................................................................................................14, 15 Johnson v. Allegheny Intermediate Unit, 59 A.3d 10 (Pa. Cmwlth. 2012) ...............................................................................................29 Kee v. Pa. Turnpike Commn, 685 A.2d 1054 (Pa. Cmwlth. 1996) .........................................................................................14 Kern v. Taney, 11 Pa. D. & C. 5th 558 (Pa. Com. Pl. 2010) ......................................................................25, 26 Lieber v. Cnty. of Allegheny, 654 A.2d 11 (Pa. Cmwlth. 1994) ...................................................................................8, 11, 12 McCord v. Pa. Gaming Control Bd., 9 A.3d 1216 (Pa. Cmwlth. 2010) ...............................................................................................5 Nader v. Hughes, 643 A.2d 747 (Pa. Cmwlth. 1994) ...........................................................................................30 Nickson v. Com. Bd. of Prob. and Parole, 880 A.2d 21 (Pa. Cmwlth. 2005) .............................................................................................30 Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003) ..........................................................................................................29 Pa. State Assn of Jury Commrs v. Commonwealth, No. 247 M.D. 2013, 2013 WL 3929862 (Pa. Cmwlth. July 31, 2013)....................................11 PENNSYLVANIA CONSTITUTION Pa. Const. art. I 1.........................................................................................................................28 -v-
Pa. Const. art. I 26.......................................................................................................................28 Pa. Const. art. I, 28......................................................................................................................27 STATUTES 23 Pa. C.S. 1101, et seq. .....................................................................................................1, 2, 7 23 Pa. C.S. 1102..........................................................................................................................27 23 Pa. C.S. 1301............................................................................................................................1 23 Pa. C.S. 1704..........................................................................................................2, 23, 25, 27 35 P.S. 450.601 .............................................................................................................................2 42 Pa. C.S. 721........................................................................................................................4, 10 42 Pa. C.S. 761........................................................................................................................4, 11 42 Pa. C.S. 2777......................................................................................................................8, 10 42 Pa. C.S. 5103............................................................................................................................4 71 P.S. 732-204...........................................................................................................................12 OTHER AUTHORITIES 42 Duq. L. Rev. 455 (2004) ...........................................................................................................28 3 Widener J. Pub. L. 743 (1994)....................................................................................................27
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INTRODUCTION This is a watershed moment in history for same-sex couples and equality in the United States, and particularly in Pennsylvania. Following the Supreme Courts landmark vindication of the rights of gay and lesbian couples in United States v. Windsor, elected officials in Pennsylvania like Attorney General Kathleen Kane and D. Bruce Hanes, Clerk of the Orphans Court of Montgomery County, have recognized that it is wholly unconstitutional for Pennsylvania to prevent same-sex couples in loving, committed relationships from entering into marriage. Both understood what the United States and Pennsylvania Constitutions require: all couples who love each otherregardless of sexual orientationdeserve the dignity and recognition of their relationship that a marriage confers. Intervenor Respondents are 32 same-sex couples who have received valid marriage licenses from Respondent Hanes and have, or intend to be, married under the laws of Pennsylvania.1 For the reasons discussed below, Intervenor Respondents respectfully request the Court to dismiss the Department of Healths Amended Petition for Review, because the Court
Intervenor Respondents are: Sasha Ballen and Dee Spagnuolo; Jennifer L. Anderson and Lisa A. Fraser; Gabriella Assagioli and Lynn Zeitlin; Youval Balistra and Dr. Glen Loev; Mark Baumann-Erb and Ronald Baumann-Erb; Jeffrey Becker and Kevin Taylor; Joan L. Bennett and Joanne B. Glusman; Joseph Billips and Andrew Pruessner; Loreen Bloodgood and Alicia Terrizzi; James Booth and Bolton Winpenny; Leigh Taylor Braden and Sophie Forge; Joan Brown and Jill Galper; William Brad Cook and Clarence Samuel Warden, Jr.; Dr. Marta Dabezies and Patricia Rose; Dr. Mary Margaret DeSouza and Kimberly A. Lane; Mark Diehl and Brian Stafford; Mary Beth Flynn and Elaine Spangler; William A. Gray, Jr. and John Kandray; Dawn Grove and Tracy Harper; Elizabeth M. Harvey and Sada Sallack; Karen Henry and Andrea Schaeffer; Joanne Hyle and Kathryn Kolbert; Charlene Kurland and Ellen Toplin; Christine Lindgren and Andrea Myers; Ethelda A. Makoid and Wendy L. Sheppard; Marcia L. Martinez-Helfman and Sarah A. Martinez-Helfman; Nicholas Pantaleone and Anthony Ruffo; Ruth Parks and Michelle Schaeffer; Robert Polay and Nicholas Vlaisavljevic; Lisa Roling and Mary Young; Domenick Scudera and Brian Strachan; Richard Strahm and Ken Robinson.
lacks jurisdiction, because the Department of health lacks standing, and because the Department of Health seeks to compel enforcement of an unconstitutional law.
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STATEMENT OF JURISDICTION Petitioner Department of Health asserts that this Court has jurisdiction over its Amended Petition for review pursuant to Section 761 of the Judicial Code, 42 Pa. C.S. 761(a)(2). Respondent and Intervenor Respondents contend that this Court lacks jurisdiction and that the matter should be transferred to the Supreme Court of Pennsylvania pursuant to 42 Pa. C.S. 721 and 5103(a).
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SCOPE AND STANDARD OF REVIEW In ruling on preliminary objections, the Court must accept as true all well-pleaded allegations of material fact in the Amended Petition for Review, as well as the inferences reasonably deducible from those facts. See McCord v. Pa. Gaming Control Bd., 9 A.3d 1216, 1218 n. 3 (Pa. Cmwlth. 2010). The Court is not, however, required to accept as true conclusions of law, unwarranted factual inferences, argumentative allegations, or expressions of opinion. Id. Preliminary objections in the nature of a demurrer should be granted when the facts pleaded are legally insufficient to establish a right to relief. Com. ex rel. Smith v. Pa. Dept of Corr., 829 A.2d 788, 792 (Pa. Cmwlth. 2003).
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STATEMENT OF THE QUESTIONS INVOLVED 1. Whether the Court lacks jurisdiction to hear the Amended Petition for Review and the action should be transferred because jurisdiction rests exclusively with the Supreme Court of Pennsylvania? Suggested Answer: Yes
2.
Whether Petitioner Department of Health lacks standing to bring the Amended Petition for Review and the Petition should be dismissed absent the participation of the Pennsylvania Attorney General? Suggested Answer: Yes
3.
Whether this action should be dismissed for failure to state a claim in mandamus upon which relief can be granted because the statute Petitioner seeks to enforce is unconstitutional under both the Pennsylvania and United States Constitutions? Suggested Answer: Yes
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STATEMENT OF THE CASE Petitioner Department of Health has filed an Amended Petition for Review in the Nature of an Action in Mandamus seeking to compel Respondent D. Bruce Hanes (Hanes or Respondent), in his capacity as the Clerk of the Orphans Court of Montgomery County, to cease and desist issuing marriage licenses to same-sex couples. Under Pennsylvania law, a couple must obtain a marriage license before legally joining in marriage. See 23 Pa. C.S. 1301(a). Pennsylvanias Marriage Law, 23 Pa. C.S. 1101, et seq., defines marriage as a civil contract by which one man and one woman take each other for husband and wife. Id. 1102. Furthermore, section 1704 provides that it is the policy of the Commonwealth that marriage shall be between one man and one woman. Id. 1704. In its landmark decision on June 26, 2013, the United States Supreme Court struck down a portion of the federal equivalent to Pennsylvanias Marriage Law, the Defense of Marriage Act, as unconstitutional. See United States v. Windsor, 133 S. Ct. 2675, 2696 (2013). Following Windsor, on July 9, 2013, the American Civil Liberties Union of Pennsylvania filed a federal lawsuit against several Pennsylvania officials challenging the constitutionality of the Marriage Law on behalf of same-sex couples who wish to marry in Pennsylvania or have their out-of-state marriages recognized by Pennsylvania. See Whitewood v. Corbett, No. 13-1861 (M.D. Pa.). On July 11, 2013, Pennsylvania Attorney General Kathleen G. Kane announced that the Office of Attorney General would not defend the Marriage Law. The Attorney General explained that she could not defend Pennsylvanias Marriage Law in the federal lawsuit because the law is wholly unconstitutional.2
2
See Jason Nark, Kane says states ban on gay marriage wholly unconstitutional, Phila. Daily News (July 12, 2013), available at http://articles.philly.com/2013-0712/news/40538475_1_kathleen-kane-attorney-general-kane-pennsylvania-republicans (last visited Aug. 14, 2013). -6-
Under Pennsylvania law, the clerks of the orphans courts are responsible for issuing marriage licenses. See 35 P.S. 450.601. Following Attorney General Kanes pronouncement, on July 23, 2013, Respondent Hanes announced that his office would begin issuing marriage licenses to same-sex couples. Intervenor Respondents received marriage licenses from Respondent Hanes. On July 30, 2013, Petitioner Department of Health filed a Petition for Review In the Nature of an Action in Mandamus with this Court, and subsequently filed an Amended Petition for Review on August 5, 2013. The Department of Health seeks an order directing Respondent Hanes to cease and desist from issuing marriage licenses to same-sex couples. Am. Petition at 25. The Department of Health asserts that it has implicit authority to seek judicial enforcement of the Marriage Law where non-compliance affects its administrative responsibilities. The Department of Health further contends that Hanes has issued invalid marriage licenses to same-sex couples. Intervenor Respondents have moved to intervene in this matter to protect the validity of their marriage licenses, and preliminarily object to the Department of Healths amended petition based on the Courts lack of jurisdiction, Petitioners lack of standing, and Petitioners lack of a clear entitlement to relief.
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SUMMARY OF ARGUMENT First, this Court lacks jurisdiction to hear this matter. Respondent Hanes is a judicial officer serving the Orphans Court of Montgomery County pursuant to 42 Pa. C.S. 2777. Issuing a marriage license constitutes a judicial act. See In re Miller Estate, 1907 WL 3761, at *1 (Pa. Super. May 8, 1907). This Court, in similar circumstances, has recognized that, because the petitioner requested a writ of mandamus to a member of an inferior tribunal, the Supreme Court has exclusive jurisdiction over this matter. Lieber v. Cnty. of Allegheny, 654 A.2d 11, 14 (Pa. Cmwlth. 1994). Because this Court has no appellate jurisdiction and because Petitioner seeks a writ of mandamus to an inferior court, this Court is without jurisdiction to decide the case. See Commonwealth v. Vartan, 674 A.2d 1156, 1159 (Pa. Cmwlth. 1996). Second, the Petitioner lacks standing to bring this action because it does not have the authority of the Attorney General or a district attorney. See Dorris v. Lloyd, 100 A.2d 924, 926 (Pa. 1954); see also Dombroski v. City of Phila., 245 A.2d 238, 245 (Pa. 1968). Finally, the Petitioner lacks a clear right to mandamus relief because the statute with which it seeks to compel compliance is unconstitutional. The Marriage Law violates the equal protection and due process provisions of the United States and Pennsylvania Constitutions because it creates unconstitutional classifications based on gender and sexual orientation that cannot survive even rational basis review, see, e.g., United States v. Windsor, 133 S. Ct. 2675, 2696 (2013), impinges the fundamental right to marry, see Driscoll v. Corbett, No. 19 MAP 2013, 2013 WL 2981713, at *12 (Pa. June 17, 2013) (discussing the levels of judicial scrutiny); Constant A. v. Paul C.A., 496 A.2d 1, 54 n.2 (Pa. Super. 1985), and violates the Pennsylvania Equal Rights Amendment, see Commonwealth v. Butler, 328 A.2d 851, 855 (1974). Accordingly, the Court should dismiss the Amended Petition or transfer it to the Supreme Court. -8-
ARGUMENT As a threshold matter, this Court lacks subject matter jurisdiction because the Commonwealth Court does not have jurisdiction over a dispute between a judicial officer and a Commonwealth agency where no appeal is currently pending. In addition, the Department of Health lacks standing to seek a writ of mandamus: such authority is vested with the Attorney General, a district attorney, or a private citizen with standing. Accordingly, the Department of Healths Petition for Review must be dismissed or transferred to the Pennsylvania Supreme Court. In the alternative, if the Court concludes this matter is properly before it, the Department of Health is not entitled to a writ of mandamus because it cannot show a clear right to relief where the law it seeks to enforce is patently unconstitutional under both the Pennsylvania and United States constitutions. I. This Court Lacks Subject Matter Jurisdiction. As an initial matter, this Courts subject matter jurisdiction has not been properly invoked because the Commonwealth Court does not have jurisdiction over a dispute between a judicial officer and a Commonwealth agency where no appeal is currently pending. Respondent Hanes is a judicial officer serving the Orphans Court of Montgomery County pursuant to 42 Pa. C.S. 2777. Issuing a marriage license constitutes a judicial act. See In re Miller Estate, No. 182, 1907 WL 3761, at *1 (Pa. Super. May 8, 1907). Here, Petitioner has asked this Court to issue a writ of mandamus against Respondent Hanes in his capacity as an officer of an inferior court, the Montgomery County Orphans Court. Accordingly, the Supreme Court has original jurisdiction over this action pursuant to 42 Pa. C.S. 721 because the case involves mandamus to a court of inferior jurisdiction.
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As this Court has recently noted, the Supreme Court of Pennsylvania has sole authority for the general supervision of the courts. See Pa. State Assn of Jury Commrs v. Commonwealth, No. 247 M.D. 2013, 2013 WL 3929862, at *2 (Pa. Cmwlth. July 31, 2013). Furthermore, this Court has original jurisdiction in cases of mandamus to courts of inferior jurisdiction only where such relief is ancillary to matters within its appellate jurisdiction. See 42 Pa. C.S. 761. Because no aspect of this case is within the Courts appellate jurisdiction, the Court lacks original jurisdiction pursuant to Section 761. This Court has recognized its lack of jurisdiction, in similar circumstances. In Lieber v. County of Allegheny, 654 A.2d 11 (Pa. Cmwlth. 1994), for instance, the Court found that, because the petitioner requested a writ of mandamus to a member of an inferior tribunal, the Supreme Court has exclusive jurisdiction over this matter. Id. at 14. Indeed, the Pennsylvania Supreme Court has essentially held that, where a party files a petition for a writ of mandamus or prohibition to a court of inferior jurisdiction in an appellate court where no appeal is currently pending, the Supreme Courts original jurisdiction over such a petition is exclusive. Commonwealth v. Vartan, 674 A.2d 1156, 1159 (Pa. Cmwlth. 1996), revd on other grounds, 733 A.2d 1258 (Pa. 1999) (citing Mun. Publications, Inc. v. Court of Common Pleas of Phila. Cnty., 489 A.2d 1286 (Pa. 1985)). Nevertheless, Petitioner asserts that the Court has jurisdiction over this matter because the case involves a Commonwealth officer. See Am. Petition 5. However, judges and other judicial officials are also considered Commonwealth officers. See In re Administrative Order No. 1-MD-2003, 882 A.2d 1049 (Pa. Cmwlth. 2003) (A judge of a court of common pleas, when sued in his or her official capacity is either the Commonwealth government or an officer of an officer of said government.). Petitioners argument is foreclosed by Leiber, where the Court
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recognized that it lacked jurisdiction to issue a writ of mandamus against a Commonwealth officera judgeand which also involved several other government subdivisions and officers, including : an elected constable, the county of Allegheny, the Allegheny County Clerk of Courts, and the manager of Constable Services. See 654 A.2d at 12. Despite the presence of such Commonwealth officers, including the clerk, the Court found that the Supreme Court has exclusive jurisdiction. Id. at 14. Accordingly, where a petitioner requests the Commonwealth Court to issue a writ of mandamus to a court of inferior jurisdiction and there is no appeal pending before it, the Court must transfer the matter to the Supreme Court pursuant to sections 721 and 5103 of the Judicial Code. Vartan, 674 A.2d at 1159; see also Leiber, 654 A.2d at 14. II. The Department of Health Lacks Standing. The Department of Health also lacks standing to bring this action because it does not have the authority of the Attorney General or a district attorney. 3 Standing is a threshold requirement, see Howard v. Commonwealth, 957 A.2d 332, 335 (Pa. Cmwlth. 2008), concerned only with the question of who is entitled to make a legal challenged to the matter involved, Bonetti Health Care Ctr., Inc. v. Dept. of Pub. Welfare, No. 1339 C.D. 2011, 2012 WL 8682351, at *3 (Pa. Cmwlth. Mar. 7, 2012). It is the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their
Pennsylvania cases have analyzed preliminary objections based on lack of standing under both rule 1028(a)(4), in the nature of a demurrer, and 1028(a)(5), lack of capacity to sue. See Boady v. Philadelphia Mun. Auth., 699 A.2d 1358, 1360-61 (Pa. Cmwlth. 1997) (analyzing standing under rule 1028(a)(4)); First Republic Bank v. Brand, No. 147 Aug. Term 2000, 2000 WL 33394627, at *2 n.3 (Pa. Com. Pl. Dec. 19, 2000) (analyzing standing under rule 1028(a)(5)). In any event, it is well-settled that parties may challenge standing in their preliminary objections. See, e.g., Kee v. Pa. Turnpike Commn, 685 A.2d 1054, 1056 n.4 (Pa. Cmwlth. 1996) (Pennsylvania courts have a history of addressing preliminary objections raising questions of standing).
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suspension or abrogation. 71 P.S. 732-204(a)(3). Indeed, the Commonwealth has described the Attorney Generals authority in this area as exclusive.4 [W]here the duty of an officer under a statute is a public one, it can be enforced only at the suit of the attorney general or the district attorney of the proper county or by a private citizen who has a specific and independent legal right or interest in himself different from that of the public at large. Dorris v. Lloyd, 100 A.2d 924, 926 (Pa. 1954); see also Dombroski v. City of Phila., 245 A.2d 238, 245 (Pa. 1968) (stating that a county commissioner, treasurer, controller, and elected members of a retirement board were private plaintiffs in the only sense here relevant in a mandamus action because they were not the Attorney General or district attorney). The Department of Health, however, contends that it has standing because it has a duty to see that the laws requiring the registration of . . . marriages . . . are uniformly and thoroughly enforced throughout the States and administrative responsibilities under the Marriage Law and the Vital Statistics Law. Am. Petition 11. In support of this argument, the Department of Health cites Commonwealth v. Beam, 788 A.2d 357, 360 (Pa. 2002). In Beam, the Department of Transportation brought an action to enjoin the operation of an unlicensed private airport. The Court concluded that the General Assembly had implicitly conferred upon the Department of Transportation the capacity to seek redress in a judicial forum to restrain operation of an unlicensed airport. Id. at 362. Unlike in Beam where injunctive relief was sought against a private party, the Department of Health has no authority to seek relief against a public official acting in the course of his official duties. Rather, the Pennsylvania Supreme Court has clearly held that such
4
See Exhibit A to Motion to Intervene, Letter from James D. Schultz of the Governors Office of General Counsel to Adrian R. King, Jr., First Deputy Attorney General at 1, dated July 30, 2013 (This duty is mandatory, not discretionary; and it is imposed exclusively on the Attorney General.).
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authority rests solely with attorney general or the district attorney of the proper county or by a private citizen who has a specific and independent legal right or interest. Dorris, 100 A.2d at 926. Because the Department of Health lacks standing, its Petition must be dismissed. III. The Marriage Law Violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. Because this Court lacks jurisdiction and the Department of Health lacks standing to bring this suit, the Court need not reach the merits of whether the Department of Health is entitled to the relief it seeks. Nevertheless, the Department of Health is not entitled to a writ of mandamus because the Marriage Law with which it seeks to force Respondent Hanes to comply is unconstitutional. A. The Marriage Law Violates the Equal Protection Clause.
As the Supreme Court of the United States has explained, [t]he Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). When a law draws classifications between people and treats people differently based on those classifications, the level of scrutiny applied by the Court to determine whether the law is constitutional depends on the type of classifications drawn by the law and nature of the rights impacted by the law. See id. at 439-40; see also James v. SEPTA, 477 A.2d 1302, 1306 (Pa. 1984) (discussing levels of review). The Supreme Court of the United States has applied at least three different levels of scrutiny to determine whether a law violates the Equal Protection Clause. Laws that classify based on race and national origin are subject to strict scrutiny because those classifications are
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so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. Id. at 440. Laws that burden a fundamental constitutional right[], San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 51 (1973), are also subject to strict scrutiny.5 Laws that classify based on sex and parents nonmarital status are also subject to intermediate scrutiny. These are considered quasi-suspect classes, and laws classifying on these bases must be substantially related to the achievement of important governmental objective[s.] United States v. Virginia (VMI), 518 U.S. 515, 524 (1996). Although the Supreme Court has not squarely addressed the issue, laws that classify based on sexual orientation should also be subject to intermediate scrutiny. See Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) affd on other grounds 133 S. Ct. 2675 (2013); see also Brief of the United States on the Merits Question, United States v. Windsor, 133 S.Ct. 2675 (2013), 2013 WL 683048, at *13. Lastly, rational-basis review applies to classifications based on distinguishing characteristics relevant to interests the State has the authority to implement. Cleburne, 473 U.S. at 441. The Supreme Court recently has held that even where a particular classification has not been explicitly recognized for intermediate scrutiny, a classification may be invalid if no legitimate purpose overcomes the purpose and effect to disparage and injure the targeted group. Windsor, 133 S. Ct. at 2696.
As Dean Chemerinsky explains, If a law denies the [fundamental] right to everyone, then due process would be the best grounds for analysis; but if a law denies a right to some, while allowing it to others, the discrimination can be challenged as offending equal protection or the violation of the right can be objected to under due process. Erwin Chemerinsky, Constitutional Law: Principles and Policies 814 (4th ed. 2011). For clarity, Respondent Intervenors will refer to the denial of the fundamental right to marry as a violation of their due process rights, but it is also a violation of their equal protection rights as well.
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Because it is a classification based on gender and sexual orientation, the Marriage Law fails intermediate scrutiny. However, even if rational basis review is applied, the Marriage Law also is invalid. 1. The Marriage Law Discriminates on the Basis of Sexual Orientation.
The Marriage Law is unconstitutional because it impermissibly discriminates against same-sex couples on the basis of their sexual orientation.6 Although the Supreme Court of the United States has not squarely addressed the issue, classifications based on sexual orientation should qualify for heightened or intermediate scrutiny because homosexuals are a discrete class that lack political power and have historically been subject to discrimination for a characteristic which bears no relation to ability to perform or contribute to society. See Windsor v. United States, 699 F.3d at181-185. Courts use the following factors to decide whether a classification affects a quasi-suspect class that is entitled to heightened scrutiny: A) whether the class has been historically subjected to discrimination; B) whether the class has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless. Id. at 181. Upon review of these factors, the Second Circuit concluded that homosexuals compose a class that is subject to heightened (or intermediate) scrutiny. Id. at 185. The United States Department of Justice set forth detailed evidence to support this point in its brief in Windsor. See Brief of the United States on the Merits Question, United States v. Windsor, 133 S.Ct. 2675
6
Although the Marriage Law does not mention sexual orientation on its face, it clearly has the purpose and effect of discriminating based on sexual orientation, and thus is considered under the United States Constitution to classify based on that characteristic. See Washington v. Davis, 429 U.S. 229 (1976); Personnel Admistrator v. Feeney, 442 U.S. 256 (1979).
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(2013), 2013 WL 683048, at *18-36. Indeed, as Justice Brennan has noted, homosexuals constitute a significant and insular minority of this countrys population. Rowland v. Mad River Local School Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting from a denial of certiorari). For many years, they have faced not only discrimination, but criminal penalties for engaging in homosexual conduct. See Lawrence v. Texas, 539 U.S. 558, 578 (2003); Bowers v. Hardwick, 478 U.S. 186, 196 (1986). For these reasons, homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public and laws that discriminate against homosexuals must satisfy heightened scrutiny. Windsor v. United States, 699 F.3d at 185. The Marriage Law fails heightened/intermediate scrutiny because there is no exceedingly persuasive justification for the Commonwealths gender-based classification. See Virginia, 518 U.S. at 533. The legislative history suggests that preserving traditional marriage and economic concerns motivated the Marriage Law. See 1996 Pa. Legis. J. (House), at 2019 ([T]he large majority [of Pennsylvanians] do not want our traditional marriage institution and our state of morals to be changed.); see also id. at 2018 ([I]f we are forced to recognize samesex marriages, this would put an unfunded mandate on our businesses, another burden on our taxpayers, and so on.). The Supreme Court has recognized that neither history nor tradition can save a law which discriminates. Lawrence, 539 U.S. at 578; see also United States v. Windsor, 133 S.Ct. at 2693-94 (stated purpose of protecting the traditional moral teachings reflected in heterosexual-only marriage laws fails constitutional scrutiny); Heller v. Doe, 509 U.S. 312, 326 (1993) (Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.). The Court also has recognized that monetary savings are not an important enough purpose to justify discrimination under heightened scrutiny. See Frontiero v.
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Richardson, 411 U.S. 677 (1973). Neither of these justification provides an exceedingly persuasive justification for the invidious classification that the Commonwealth seeks to perpetuate. Moreover, even if either of these goals were considered exceedingly persuasive, the Marriage Law is not substantially related to those goals. With respect to preserving longstanding notions of traditional marriage, the law addresses just one aspect of traditional marriage and nothing else.7 Underinclusive laws fail intermediate scrutiny because they are not substantially related to the goal. United States v. Virginia, 518 U.S. 515 (1996). With respect to economic savings, although fiscal prudence is undoubtedly an important government interest, it does not justify why same-sex couples should be excluded from a benefit that other couples enjoy. As the district court judge in Windsor noted: excluding any arbitrarily chosen group of individuals from a government program conserves judicial resources. Windsor v. United States, 833 F. Supp. 2d 394, 406 (S.D.N.Y. 2012). See also Plyler, 457 U.S. at 227. Accordingly, the Marriage Laws classification based on sexual orientation fails intermediate scrutiny. 2. The Marriage Law Discriminates on the Basis of Sex.
Sex-based classifications require the application of intermediate scrutiny and must be substantially related to achieving an important governmental objective. See Virginia, 518 U.S. at 53233; Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).
In fact, several traditional aspects of marriage are unconstitutional now, such as that only women receive alimony, see Orr v. Orr, 440 U.S. 268 (1979), and that two people of different races cannot marry, see Loving v. Virginia, 388 U.S. 1 (1967).
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By defining marriage as between one man and one woman, the Marriage Law unconstitutionally discriminates on the basis of sex. The only reason that a lesbian couple cannot marry is solely because they are both women. For instance, if named Intervenor Respondent Sasha Ballen were a man, this fictional man could marry Dee Spagnoulo; however, Intervenor Respondent Ballen is a woman, so she is not entitled to do so by sole virtue of her sex.8 Accordingly, the Commonwealth has made sex the defining aspect of marriage and limited its availability to citizens on the basis of sex. As the Marriage Law makes clear, this is based on traditional views of gender and sex. See 23 Pa. C.S. 1704 (It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage should be between a man and a woman.). Laws which perpetuate traditional views of gender roles and how men and women are expected to behave constitute gender discrimination. In Orr v. Orr, 440 U.S. 268 (1979), the Supreme Court struck down as unconstitutional an Alabama law that did not allow men to collect alimony from their former wives. See id. at 278-84. The Court concluded that the law was unconstitutional because it carrie[d] with it the baggage of sexual stereotypes by reinforcing the notion of the proper place of women and the need to have a man support them. Id. at 283. Because of the stereotype about womens proper place and their need for special protection from men, the State cannot be permitted to classify on the basis of sex. Id. The Marriage Law accomplishes the same result. It likewise stereotypes women as needing men and says that their proper place is in a marriage with a man. It relies on outmoded stereotypes of gender and sex in the context of marriage. Thus, as with the marriage-related law in Orr, the Marriage Law here is unconstitutional.
8
The same is true for a gay male couple. If Intervenor Respondent Glen Loev were a woman, this fictional woman could marry Intervenor Respondent Youval Balistra. However, because Intervenor Respodnent Loev is a man, he is not entitled to do so by sole virtue of his sex.
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3.
The Marriage Law Has the Purpose and Effect to Disparage and Injure Same-Sex Couples and Cannot Satisfy Heightened Rational Basis Review.
A long line of cases have also invalidated laws under a heightened rational basis review, so-called rational basis plus, where the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. See Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1, 10 (1st Cir. 2012). In U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973), for example, the Supreme Court invalidated Congress decision to exclude from the food stamp program households containing unrelated individuals. The Court closely scrutinized the legislations fit and found both that the rule disqualified many otherwise-eligible and particularly needy households, and a bare congressional desire to harm a politically unpopular group. Id. at 534, 53738. Similarly, in City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), the Supreme Court overturned a local ordinance as applied to the denial of a special permit for operating a group home for the mentally disabled. The Court was unconvinced by the proffered interests supporting the legislation, such as protecting the inhabitants against the risk of flooding. The only remaining justifications were mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding. Id. at 448. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court struck down a provision in Colorados constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling unprecedented the disqualification of a class of persons from the right to seek specific protection from the law, chastised the provision as being inexplicable by anything but animus and as a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests. Id. at 63233.
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And most recently, in Windsor, the Supreme Court concluded that the federal Defense of Marriage Act was invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure same-sex couples. 133 S. Ct. at 2696. The same is equally true here: no legitimate purpose for Pennsylvanias Marriage Law overcomes its plain purpose and effect to disparage and injure same-sex couples in Pennsylvania. The legislative history of the law reflects this intent to injure. Supporters of the law relied on a moral opposition to same-sex marriages. 1996 Pa. Legis. J. (House), at 2017. Legislators also asserted: [T]he large majority [of Pennsylvanians] do not want our traditional marriage institution and our state of morals to be changed. Id. at 2019. In addition to characterizing same-sex marriage as immoral, legislators suggested that homosexual couples threaten family values and traditional beliefs. Id. at 2022. They contended that it is imperative that we in Pennsylvania should stand up for traditional marriage for the benefit of families and children in the Commonwealth and our future. Id. 2022. Much like the legislative history of DOMA at issue in Windsor, Pennsylvania legislators cast same-sex couples as an immoral other who threaten the future of the Commonwealth, indicating a deep-seated and long-standing animus against same-sex couples. The principle purpose of the Marriage Law, plainly, is to impose inequality and it demeans the couple, whose moral and sexual choices the Constitution protects. United States v. Windsor, 133 S.Ct. at 2694. By precluding the legal protection of the institution of marriage, same-sex couples have their lives burdened, by reason of government decree, in visible and public ways. Id. Accordingly, the Marriage Law is invalid. See id. at 2696. It is true that in Windsor, the Court also emphasized the role of states rights to define marriage. See id. Despite the majoritys focus on the federal government disrespecting that
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which several States have granted their citizens, see id. at 2694, the rationale behind the majoritys decision holds true in the State context as well.9 The Marriage Law and the federal Defense of Marriage Act are married in time and purpose. They were both part of a wave of laws defining marriage as between a man and a woman enacted across the country in 1996, the year Hawaii appeared to be on the verge of becoming the first state to recognize same-sex marriage. See Baehr v. Mike, No. 91-1394, 1996 WL 694235 (Cir. Ct. Hawaii Dec. 3, 1996). Both the federal Defense of Marriage Act and the Pennsylvania Marriage Law also had the same justification. See United States v. Windsor, 133 S.Ct. at 2693 (discussing interest in traditional marriage). The Courts decision found such a purpose: places same-sex couples in an unstable position, demeans the couple, whose moral and sexual choices the Constitution protects, and impose[s] a disadvantage, a separate status, and so a stigma. Id. The animus that drove the Defense of Marriage Act is equally present in the Commonwealths Marriage Law, and the Supreme Court of the United States has held that such animus does not survive any level of scrutiny. The rationale used by the Court applies equally to state laws which discriminate against same-sex couples and, although the Court confined its decision to the circumstances before it, nothing in the Windsor opinion prevents its rationale from applying to such state laws. Moreover, equally important in Windsor was the expansive effect of the federal law. The Court summarized that same-sex couples have their lives burdened, by reason of government decree, in visible and public ways. Windsor, 133 S.Ct. at 2694. The Court then surveyed the over 1,000 statutes and numerous federal regulations that are impacted by the federal law and the various ways that same-sex couples are deprived of rights related to family, healthcare,
9
Justice Scalia made this clear in his dissent. See United States v. Windsor, 133 S.Ct. at 2709-2711 (Scalia, J., dissenting) (demonstrating in detail how easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status).
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housing, benefits, taxes, criminal law, and more. Id. at 2694-95. Likewise, the Marriage Law at issue here burdens same-sex couples lives in very similar ways. In 1999, the Pennsylvania advocacy group the Center for Lesbian and Gay Civil Rights conducted an identical survey as the one the Windsor Court relied upon in citing to the over 1,000 federal statutes and regulations. Exhibit B to Motion to Intervene, Center for Lesbian and Gay Civil Rights, Survey of Statutory Rights Associated with Marriage in Pennsylvania (1999). The only difference was that the Center studied Pennsylvania law, not federal law. The study found 683 Pennsylvania statutory provisions that provide benefits or protections to married couples that are not, by virtue of the Marriage Law, available to same-sex couples. Id. at 1-6. Pennsylvania legal protections that are not available to same-sex couples span the gamut of legal topics, include consumer protections, criminal defenses, domestic relations, educational benefits, estate planning, family businesses, health care, parental rights, property rights, public assistance, public employment benefits, survivors rights, taxation, and others. Id. at 6-12. As the study concluded, marriage and the spousal relationship pervades almost every area of law, affecting the operation of the state and individual at every level. Id. at 13. Thus, the Marriage Law has the same expansive discriminatory effect as the Defense of Marriage Law struck down in Windsor. The difference from Windsor is only in the particulars of Pennsylvania law and not in the overarching effect. Like the laws in Windsor, Romer, Cleburne, and Moreno, the Marriage Laws sheer breadth is so discontinuous with the reasons offered for it that [it] seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Romer, 517 U.S. at 632. Accordingly, the Marriage Law is unconstitutional.
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4.
The Marriage Law Lacks Any Rational Basis.
Under any standard of review, the Marriage Law is unconstitutional because the asserted rationales for the Marriage Law are unavailing. The desire to protect traditional marriage is not sufficient to justify the governments discrimination against its citizens. See Heller, 509 U.S. at 326. Furthermore, the traditional definition of marriage has evolved as society has come to understand that laws surrounding purportedly traditional views of marriage are unconstitutional and based on patent discrimination. See Loving, 388 U.S. at 11-12. Likewise, the argument that withdrawing the designation of marriage from same-sex couples could promote heterosexual relationships lacks any such footing in reality. Perry v. Brown, 671 F.3d 1052, 1089 (9th Cir. 2012), vacated on other grounds, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Finally, the belief that same-sex couples can be excluded from marriage because marriage is based on a need to procreate or raise children does not hold water, as same-sex couples can and do have children together. See, e.g., In re R.B.F., 803 A.2d 1195 (Pa. 2002) (recognizing the right of same-sex couples to second-parent adoption). Petitioner cites two cases which upheld the Marriage Law when it was challenged by individuals who were married out-of-state. In Himmelberger v. Commonwealth, 47 A.3d 160 (Pa. Cwlth. 2012), the Commonwealth Court relied exclusively on the Court of Common Pleas rationale in upholding the Marriage Law. See id. at 162. The Court of Common Pleas did not, however, discuss the constitutionality of the Marriage Law. See Himmelberger v. Department of Revenue, No. 0610-0286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565 (Pa. Com. Pl. Sept. 28, 2011) (As appellant notes in her brief, this appeal is not meant to be a challenge of Pennsylvanias prohibition against same-sex marriage.). Kern v. Taney, 11 Pa. D. & C. 5th 558 (Pa. Com. Pl. 2010), was a Court of Common Pleas case that relied on the federal Defense of Marriage Act, did not analyze homosexuals as a suspect classification, and relied upon preservation of - 23 -
traditional marriage as providing a rational basis for the act. See id. at 566 (Importantly, she does not contend that section 1704 creates a legislative classification that is arbitrary or suspect.). The federal Defense of Marriage Act has since been found unconstitutional, and the Supreme Court of the United States found that it lacked a rational basis even where the purpose of the law was an interest in protracting the traditional moral teachings reflected in heterosexual-only marriage laws. United States v. Windsor, 133 S. Ct. at 2693. Thus, even under rational basis review, the Marriage Act cannot stand. B. The Marriage Law Violates Due Process
In addition, the protection of liberty embodied in the Due Process Clause of the Fourteenth Amendment prohibits states from depriving its citizens of fundamental rights without due process of law. See Loving, 388 U.S. at 12 (denying the fundamental freedom of marriage to some is surely to deprive all the State's citizens of liberty without due process of law). The Marriage Law plainly impinges Intervenor Respondents fundamental right to marry and thus violates due process under the Fourteenth Amendment. The right to marry is a fundamental right, subject to strict scrutiny. See Zablocki v. Redhail, 434 U.S. 374, 388 (1978). To survive strict scrutiny, a state must do more than assert a compelling state interestit must demonstrate that the law is necessary to serve the asserted interest. Burson v. Freeman, 504 U.S. 191, 199-200 (1992). Courts have repeatedly recognized the importance that marriage plays in our society: [T]he right to marry is considered a fundamental right by our Supreme Court, the major religions of the world, and the United Nations Charter. Constant A. v. Paul C.A., 496 A.2d 1,
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54 n.2 (Pa. Super. 1985).10 Indeed, the Commonwealth has previously acknowledged that the right to choose ones marriage partner is a fundamental right protected by the right of privacy. Commonwealth v. Shoemaker, 518 A.2d at 594 (acknowledging a right to marry a partner of ones choosing while asserting that marriage is not a fortress impervious to any legal action brought by one partner against the other). The Commonwealth has no compelling state interest in defining marriage as between one man and one woman. The policy articulated in the Marriage Law itself is longstanding public policy. Tradition, however, does not satisfy even rational basis review, let alone any heightened level of scrutiny. See Heller, 509 U.S. at 326 ([a]ncient lineage of a legal concept does not give a [law] immunity from attack). Moreover, the fundamental right to marry is not limited to traditional marriage, because statutes commensurate with a supposedly traditional view of marriage have been found to violate the fundamental right to marriage. See Loving, 388 U.S. at 12. Because tradition cannot withstand the rigors of strict scrutiny, the Marriage Law unconstitutionally deprives same-sex couples of the fundamental right to marry and all the States citizens of liberty without due process of law. Loving, 388 U.S. at 12. IV. The Marriage Law Violates Article I of the Pennsylvania Constitution. For largely the same reasons as discussed above, the Marriage Law also is unconstitutional under Article I of the Pennsylvania Constitution.
10
Even courts which have held that the Marriage Law is constitutional recognize that marriage is a basic civil right of man, fundamental to our very existence and survival. Kern v. Taney, 11 Pa. D. & C. 5th at 568 (citing Loving, 388 U.S. at 12).
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A.
The Marriage Law Violates the Equal Rights Amendment to the Pennsylvania Constitution.
The Marriage Law violates the Equal Rights Amendment, which prohibits the use of classification based on sex. The Equal Rights Amendment provides: Equality under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual. Pa. Const. art. I, 28. As the Supreme Court of Pennsylvania has held: In this Commonwealth, sex may no longer be accepted as an exclusive classifying tool. Commonwealth v. Butler, 328 A.2d 851, 855 (Pa. 1974). The Supreme Court elaborated in Henderson v. Henderson, 327 A.2d 60 (Pa. 1974): The thrust of the Equal Rights Amendment is to insure equality of rights under the law and to eliminate sex as a basis for distinction. The sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman. Id. at 62. Former Supreme Court Judge Phyllis Beck has called this level of scrutiny absolutist in its prohibition against all classifications based on sex. Phyllis W. Beck & Joanne Alfano Baker, An Analysis of the Impact of the Pennsylvania Equal Rights Amendment, 3 Widener J. Pub. L. 743, 745-46 (1994).11 The underlying principle behind the Equal Rights Amendment embodied in Article I, Section 28 is that ones sex should not define ones rights. In the Marriage Law, marriage is defined as a civil contract by which one man and one woman take each other for husband and wife. 23 Pa. C.S. 1102. The Law explains further that marriage shall be between one man
11
The Third Circuit Court of Appeals interpretation of the Pennsylvania Equal Rights Amendment in Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d 168, 179 (3d Cir. 1993) (noting that the Supreme Court of Pennsylvania has not determined what level of review to apply and applying heightened scrutiny) is not binding on this Court in the face of contrary statements from the states highest court that the Equal Rights Amendment eliminate[s] sex as a basis for distinction. Henderson, 327 A.2d at 62.
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and one woman. 23 Pa. C.S. 1704. Thus, the ability to marry within the state of Pennsylvania, depends exclusively on the sex of the participants. Under Pennsylvanias Equal Rights Amendment, such classifications are impermissible. See Butler, 328 A.2d at 855. B. The Marriage Law Violates the Equal Protection Principles of Article I of the Pennsylvania Constitution.
For similar reasons as stated above in discussing the federal constitution, the Marriage Law also violates the equal protection principles recognized in Pa. Const. art. I 1, 26.12 Article I, Section 1 recognizes inherent and indefeasible rights of mankind, which include the right of Pennsylvanians to pursu[e] their own happiness. Pa. Const. art. I 1. Section 26 further provides: Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right. Pa. Const. art. I 26. Pennsylvania equal protection principles are analyzed using the same standard as cases arising under the federal Equal Protection Clause. See Broaddus v. Pa. Bd. of Prob. & Parole, No. 416 M.D. 2009, 2010 WL 9519012, at * 4 (Pa. Cmwlth. Apr. 30, 2010) (discussing equal protection under Article I). The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly. DeFazio v. Civil Serv. Commn of Allegheny Cnty., 756 A.2d 1103, 1106 (Pa. 2000). The Marriage Law treats same-sex couples differently from heterosexual couples based on no more than animus and fear. For the reasons discussed above, no important governmental interest justifies the Marriage Laws discrimination based on gender and sexual orientation. Accordingly, the Marriage Law does not
12
For a discussion of equal protection principles under the Pennsylvania Constitution, see generally Russell Gerney, Equal Protection Under the Pennsylvania Constitution, 42 Duq. L. Rev. 455 (2004).
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satisfy the dictates of equal protection and must be struck down pursuant to Pa. Const. art. I 1, 26. C. The Marriage Law Violates the Due Process principles of Article I of the Pennsylvania Constitution.
Article I of the Pennsylvania Constitution recognizes a right to marry that is as fundamental as the right to life and liberty. See Commonwealth v. Shoemaker, 518 A.2d 591, 593 n.1 (Pa. Super. 1986); Constant A. v. Paul C.A., 496 A.2d 1, 54 n.2 (Pa. Super. 1985). When reviewing whether a state action unconstitutionally deprives a person of a protected interest, a substantive due process inquiry balances the rights of the parties involved subject to the public interests sought to be protected. Johnson v. Allegheny Intermediate Unit, 59 A.3d 10, 20 (Pa. Cmwlth. 2012). Because the right to marry is a fundamental right, the Marriage Law is subject to strict scrutiny. For the reasons discussed above, the Marriage Law cannot withstand strict scrutiny. However, should the Court conclude that marriage is not a fundamental right, Pennsylvanias Constitution provides for an even more restrictive rational basis test than provided for by the federal constitution under substantive due process under Article I. See Nixon v. Commonwealth, 839 A.2d 277, 288 n.15 (Pa. 2003). This Court has recognized the standard to mean that a law may not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Johnson, 59 A.3d at 21 (quoting Adler v. Montefiore Hosp. Assn of W. Pa., 311 A.2d 634, 640-41 (Pa. 1973)). For the reasons discussed above, by subjecting Intervenor Respondents to statesanctioned discrimination based purely on the sex of the individuals in their relationships, limiting their civil rights to marry, and abridging Intervenor Respondents ability to pursue their
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own happiness, the Marriage Law violates Sections 1, 26, and 28 of the Pennsylvania Constitution under any standard of review. V. Respondent Hanes Acted Within His Authority, and In Any Event, the Law Is Unconstitutional and Should be Struck Down. Mandamus is an extraordinary remedy. See Nickson v. Com. Bd. of Prob. and Parole, 880 A.2d 21, 23 (Pa. Cmwlth. 2005). It may be used to compel the performance of a duty only when a clear legal right exists in the plaintiff, there is a corresponding duty on the defendant, and there is no other appropriate or adequate remedy. See Nader v. Hughes, 643 A.2d 747, 752 n.13 (Pa. Cmwlth. 1994). Here, the Department of Health cannot satisfy its burden to show a clear right to relief because the Marriage Law patently violates same-sex couples rights to equal protection and due process under the United States Constitution and the Pennsylvania Constitution. Further, because the Marriage Law violates both Constitutions, Respondent Hanes acted within his constitutional duty by refusing to follow it. Courts are not the only branch of government that has the power to interpret the Constitution; executive officials must do so as well. In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. United States v. Nixon, 418 U.S. 683, 703 (1974) (emphasis added). This applies as strongly to state and local officials as to federal officials because the Supremacy Clause binds state and local officials as well. See U.S. Const. Art. VI ([A]ll executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution.). Executive officials cannot disobey a valid court order on an already-decided issue, see Cooper v. Aaron, 358 U.S. 1, 19-20 (1958), but they are entitled to interpret the Constitution and act
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pursuant to that interpretation in the absence of such an order. In fact, the Supremacy Clause of the U.S. Constitution commands that they do so. For this reason, Respondent Hanes acted within his authority when he decided that the Marriage Law was unconstitutional and issued licenses to Intervenor Respondents. He was not alone in this interpretation. As discussed above, on July 11, 2013, Pennsylvania Attorney General Kathleen G. Kane announced that her office would not defend the Marriage Law in a federal lawsuit because the law is wholly unconstitutional. Respondent Hanes followed her lead, as well as the Supreme Courts lead in Windsor. With the Commonwealths highest attorney concluding that the Marriage Law was unconstitutional, the United States Supreme Court striking down an almost identical federal statute, and Respondent Hanes reaching his own independent conclusion that federal and state constitutional doctrine with respect to equality and liberty requires the issuance of marriage licenses to same-sex couples, he was entirely within his constitutional authority to refuse to comply with the Marriage Law. Furthermore, Petitioner Department of Health cannot sustain its burden to show that is entitled to either a writ of mandamus or to summary relief because the Marriage Law, for the reasons stated above, is wholly and patently unconstitutional under the United States and Pennsylvania constitutions. CONCLUSION WHEREFORE, Intervenor Respondents respectfully request that the Court sustain these Preliminary Objections and dismiss the Amended Petition.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA ______________________________________ : : : : Petitioner, : : v. : : D. BRUCE HANES, in his capacity as the : Clerk of Orphans Court of Montgomery : County, : : Respondent, : and : : SASHA BALLEN, et al., : : Intervenor Respondents. ______________________________________ : COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH,
379 M.D. 2013
ORDER AND NOW, this ______ day of ______________, 2013, upon consideration of Intervenor Respondents Preliminary Objections, and any response or reply thereto, it is hereby ORDERED and DECREED that said Preliminary Objections are SUSTAINED and the Petition is DISMISSED. BY THE COURT:
________________________ J.

Final Motion To Intervene - Pa State Marriage Case

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Final Motion To Intervene - Pa State Marriage Case

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As the Supreme Court of the United States recently held, the goal of laws like the Marriage Law,

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Following the Supreme Courts decision in Windsor, Pennsylvania Attorney

Dated: August j (f ,2013

379 M.D. 2013

Lastly, rational-basis review applies to classifications based on distinguishing

Moreover, no interest in preserving the funds that would be spent to provide

INTERVENOR RESPONDENTS MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS

David S. Cohen (Pa. 88811) 3320 Market Street Philadelphia, PA 19104

Attorneys for Intervenor Respondents

The Marriage Law Violates Article I of the Pennsylvania Constitution ............... 25

The Marriage Law Lacks Any Rational Basis.

379 M.D. 2013

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