Gay couples to sue for the right to marry in Pennsylvania

Hundreds of people gather outside the US Supreme Court building in Washington, DC on June 26, 2013 in anticipation of the ruling on California's Proposition 8, the controversial ballot initiative that defines marriage as between a man and a woman. AFP PHOTO / MLADEN ANTONOVMLADEN ANTONOV/AFP/Getty Images
Hundreds of people gather outside the Supreme Court building on June 26 in anticipation of the ruling on California's Proposition 8, the controversial ballot initiative that defines marriage as between a man and a woman. (AFP PHOTO / MLADEN ANTONOVMLADEN ANTONOV/AFP/Getty Images)

Less than two weeks after the Supreme Court ruled the U.S. government could not deny federal benefits to legally-married same sex couples, the American Civil Liberties Union filed a challenge to Pennsylvania's ban on same-sex marriage in federal court.

The ACLU is representing 23 plaintiffs --10 gay couples, two children of one of the couples, and the surviving widow of a same-sex couple that was together for 29 years -- in a lawsuit it filed Tuesday in Harrisburg, Pa. James Esseks, who directs the ACLU's Lesbian Gay Bisexual Transgender & AIDS Project, said the group hopes to secure the right for gay couples to marry in Pennsylvania, force the state to recognize same-sex marriages performed elsewhere and ratchet up the legal pressure on the Supreme Court to ultimately rule on the question of whether same-sex marriage should be legal across the nation.

Noting that about half the couples in the lawsuit got legally married elsewhere in the United States, Esseks noted, "Pennsylvania recognizes straight people’s marriages from Maine and New York, but it doesn’t recognize gay people’s marriages from Maine and New York. The question is, why?"

Opponents of same-sex marriage questioned why activists were seeking redress in court, as opposed to through a ballot initiative in Pennsylvania. Under Pennsylvania law the state legislature has to approve resolutions before they can be put on the ballot for a direct vote, and no resolution endorsing gay marriage has passed at this point.

"We think it’s very telling gay marriage advocates are using the courts so heavily," said Thomas Peters, communications director for the National Organization for Marriage. "They only support the voice of the people when they think it go their way."

Peters said his group is focused on Indiana, where Gov, Mike Pence (R) has urged the legislature to pass a constitutional amendment banning same-sex marriage so it can be put before the voters as a ballot initiative in 2014, as well as the ongoing legislative fight in Illinois over whether to legalize gay marriage.

The ACLU is also amending a suit it has filed in North Carolina challenging the state's ban on second-parent adoption, where one partner in an unmarried couple adopts the other partner’s biological or adoptive child. The amended suit will argue that the six gay couples who are the plaintiffs in the case should be allowed to marry. In addition, Esseks said, the ACLU plans to file a suit challenging Virginia's ban on same-sex marriage "quite soon."

"The issue is getting back to the U.S. Supreme Court," Esseks said, noting that there are more than half-a-dozen other legal challenges to same-sex marriage bans already pending in federal court.

The new lawsuits came the gay rights group Freedom to Marry announced Tuesday it was spending $500,000 on state initiatives to legalize same-sex marriage, including $250,000 on an effort to reverse Oregon's ban through a ballot initiative next year. It said it had hired Richard Carlbom, who spearheaded the successful effort to legalize gay marriage in Minnesota, as its director of state campaigns.

Peters said even though Oregon is "a deep blue state," the National Organization for Marriage would work to uphold the state's same-sex marriage ban. "We welcome free and fair votes of the people," he said.

The new flurry of lawsuits is not only aimed at securing legal victories but at winning over the American public to the idea of expanding gay marriage nationwide, by highlighting the stories of committed same-sex couples who are not recognized by the state. Helena Miller and Dara Raspberry met in Brooklyn in 2006 and got legally married in Connecticut in 2010, because at the time New York did not allow same-sex marriage. They moved to Philadelphia in the fall of 2011, in part to be closer to Miller's family as they prepared to have children of their own.

"We have a wonderful family and we get wonderful support from our family and friends," Miller said in an interview. "Unfortunately by moving to Pennsylvania, we effectively became unmarried."

Miller gave birth to the couple's daughter Zivah on May 28; while Raspberry would have automatically been named on the birth certificate as the other parent in a state where gay marriage is legal, the couple has had to hire a lawyer and go through the process of second-parent adoption in order to secure Raspberry's status as the other legal parent. The couple also had to hire a lawyer to get powers of attorney for each other last year -- when Raspberry underwent a major surgery -- to ensure Miller could have the rights ordinarily awarded to legally-married spouses.

Miller said that while she is not an expert in either federal law or Pennsylvania politics, she is "eternally optimistic" the suit will succeed. "I’m sure I’m biased, but it’s hard to look at these good, normal -- as we like to call ourselves, boring -- people and the court of justice won’t see that’s it’s fair, and equality is due to all of us."

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Ed O'Keefe · July 8, 2013