NEW YORK — The Supreme Court returned the battle over same-sex marriage to the states last month, and Deb and Susan Whitewood are among the first to pick up the fight.
A couple for 22 years with two teenage daughters and a young son, the Whitewoods filed suit Tuesday to overturn Pennsylvania’s ban on gay marriage, one of the first of an expected outpouring of cases across the country to cite the court’s majority opinion that same-sex couples are denied a “status of immense import” and their children deprived of “the integrity and closeness of their own family.”
The suit, carefully assembled by the American Civil Liberties Union, was filed in US District Court in Harrisburg with the aim of adding Pennsylvania to the column of 13 other states permitting same-sex marriage, plus the District of Columbia. The 23 plaintiffs come from many walks of life, including a doctor, college professors, a truck driver, a veteran, and a woman who lost her partner of 29 years.
The legalization of same-sex marriage has primarily come through the political process, with lawmakers and voters approving it in six states in just the past year. But earlier victories were achieved through state courts, including in Massachusetts. The ACLU acknowledged it was bringing suit in Pennsylvania because overturning the marriage ban in the Republican-controlled legislature is a near-term impossibility.
Pennsylvania’s law defines marriage as between a man and a woman and it denies recognition to same-sex marriages legally performed elsewhere. Gay marriage opponents say using the courts undermines the will of the voters. Michael Geer, president of the Pennsylvania Family Institute, which opposes same-sex marriage, said that in 1996 when the state passed its law, fewer than 25 out of some 240 legislators opposed it.
“The fact the ACLU is turning to the courts to try to redefine marriage takes it out of the hands of the people,” he said.
The ACLU plans to file suit shortly in Virginia and North Carolina. In Michigan, a federal judge blocked a state law denying domestic partner benefits to public employees, citing the US Supreme Court rulings.
James Esseks, director of the LGBT Project at the ACLU, said, “No question this issue will get back to the US Supreme Court over the next several years.”
At the heart of many of the cases is the issue the Supreme Court ducked in one of its two recent rulings: If a state prohibits same-sex couples from marrying, does it trample the guarantee of equal protection in the US Constitution?
Supporters believe enlarging the map of states that allow same-sex marriage will ultimately influence the Supreme Court when it next takes up the issue of a constitutional right to same-sex marriage, as it is expected to do in the next few years.
“We think what the map of the country looks like is going to make a big difference to how the issues in the case feel to the Supreme Court,” Esseks said. “Will we have the 13 states plus D.C., or will we be at 20 or more?”
Opponents are fighting back under the same logic. They believe they have an opportunity to add Indiana to the 29 states with constitutional bans on same-sex marriage.
Justice Anthony M. Kennedy, who wrote the 5-4 majority opinion striking down a key part of the federal Defense of Marriage Act, didn’t say whether there was a constitutional right to same-sex marriage, leaving it up to the states, but he defined the terms of battle.