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The Next Gay Marriage Battle? ACLU Files First-Known Lawsuit Over State Bans on Same-Sex Unions


"It serves only to disparage and injure lesbian and gay couples and their families."

(Image: Getty)

HARRISBURG, Pa. (TheBlaze/AP) -- The battle over gay marriage forges on. Civil rights lawyers said they filed the first known legal challenge Tuesday on behalf of 23 men, women and children seeking to overturn a state law effectively banning same-sex marriage in Pennsylvania, the only northeastern state that doesn't allow it or civil unions.

The lawsuit, filed in federal court in Harrisburg, also will ask a federal judge to prevent state officials from stopping gay couples from getting married. It names Gov. Tom Corbett, Attorney General Kathleen Kane and three other officials. The plaintiffs are one widow, 10 couples and one of the couples' two teenage daughters, and they include four couples who were legally married in other states but whose marriages go unrecognized by the state of Pennsylvania.

A woman lies on a gay pride flag during a gay pride parade in Bogota, Colombia, Sunday, June 30, 2013. People paraded through the capital demanding laws that grant social security benefits and marriage rights for gay couples. Credit: AP

Pennsylvania would become the 14th state to legalize gay marriage if the lawsuit is successful. It also would force the state to recognize the legal marriages of all same-sex couples in other jurisdictions.

The plaintiffs, some of whom spoke during a news conference in the state Capitol after the lawsuit was filed, said their willingness to join was driven partly by a desire to have the same legal and financial protections afforded to opposite-sex couples, but mostly by the emotional satisfaction of seeking social justice.

"Everyone in our world recognizes us as a true family," said Deb Whitewood, 45, who lives in the Pittsburgh suburb of Bridgeville with her partner of 22 years, Susan Whitewood, and their three children. "We feel that it's time that the commonwealth of Pennsylvania did, too."

Another couple, Dara Raspberry and Helena Miller, who were cradling Miller's 6-week-old daughter, said they married in Connecticut before moving to Philadelphia to be closer to family, but, Raspberry said, they were forced "to become unmarried and less of a family" under Pennsylvania law.

Isabel Rieser, the 21-year-old adopted daughter of plaintiffs Len Rieser and Fernando Chang-Muy of Philadelphia, said her two fathers should be able to marry after 32 years of commitment.

"Besides, I am so over being a child out of wedlock," Rieser joked. "I look forward to my parents finally getting married. I have so many ideas for their wedding: food, location, decorations."

The plaintiffs are represented by American Civil Liberties Union lawyers working with the Philadelphia law firm of Hangley, Aronchick, Segal, Pudlin and Schiller. They expect the suit could ultimately arrive with similar cases from other states at the U.S. Supreme Court, which has not ruled on the core question of whether it is unconstitutional to deny same-sex couples the right to marry.

Corbett's office would only say that it is reviewing the lawsuit. The attorney general's office, which typically defends challenges to state laws, had no immediate comment.

In the lawsuit, the plaintiffs said banning gay marriage satisfies no legitimate government or child welfare concerns of the state, since Pennsylvania judges routinely grant adoptions to same-sex couples that are viewed as in the best interest of the child.

"It serves only to disparage and injure lesbian and gay couples and their families," the lawsuit said.

For instance, the suit says, same-sex couples do not have access to a long list of legal and financial protections as do opposite-sex couples.

Those include an inheritance tax exemption for widows; an automatic power of attorney for spouses in health care decisions; damages and legal recourse under workers' compensation laws for a spouse; assistance programs for same-sex widows and widowers of military personnel and veterans; pension and survivor benefits for widows and widowers of public employees; Family Medical Leave Act provisions; and a spouse's Social Security retirement benefits.

U.S. Air Force Senior Airman Shyla Smith and Courtney Burdeshaw hold hands while waiting to get married at the Manhattan Marriage Bureau the day after the U.S. Supreme Court ruling on DOMA on June 27, 2013 in New York City. The high court struck down the Defense of Marriage Act (DOMA) and ruled that supporters of California's ban on gay marriage, Proposition 8, could not defend it before the Supreme Court. The pair said they planned to get married today before the ruling came down. Credit: Getty Images

The lawsuit, in the works since January, was not spurred by the U.S. Supreme Court's three-week-old decision striking down part of the federal government's anti-gay marriage law that applies only to legally married same-sex couples seeking benefits from the federal government.

But the ACLU's legal director in Pennsylvania, Witold J. Walczak, said the nation's changing laws and evolving public opinion made it the right time to challenge the law after 17 years on Pennsylvania's books.

Federal courts in California are so far the only ones that have said a state same-sex marriage ban violates the U.S. Constitution. But federal challenges are popping up in other states, including Nevada, Hawaii and Michigan. In the coming days and weeks, the ACLU plans to lodge same-sex marriage challenges in North Carolina and Virginia.

It is also pursuing same-sex marriage legislation in several other states and referenda in Oregon and Nevada in the coming years, ACLU lawyers said.

Same-sex marriage is legal, or soon will be, in 13 states and the District of Columbia, representing about 30 percent of the U.S. population. Every state except Pennsylvania in the northeastern United States allows same-sex marriage except New Jersey, which allows civil unions.

A 1996 Pennsylvania law defines marriage as a civil contract in which a man and a woman take each other as husband and wife, and it says same-sex marriages, even if entered legally elsewhere, are void in Pennsylvania. State law does not allow civil unions.

In Pennsylvania, recent polls show a majority are in favor of gay marriage, even though bills to legalize gay marriage have gone nowhere in recent years in the Legislature. In 2012, the state voted for President Barack Obama, a Democrat who supports same-sex marriage, and in 2010 for Corbett, a Republican who supports a constitutional amendment to permanently ban it.

The 1996 law passed with overwhelming majorities in the state Legislature.


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