1:13-cv-01861 #124

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http://slidepdf.com/reader/full/113-cv-01861-124 1/26

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF PENNSYLVANIA

WHITEWOOD, et al.,

Plaintiffs,

v.

WOLF, et al.,

Defendants.

Civil Action

No. 13-1861-JEJ

________________________________________________________

PLAINTIFFS’ BRIEF IN OPPOSITION TO THE MOTION FOR

SUMMARY JUDGMENT OF DEFENDANTS MICHAEL WOLF

AND DAN MEUSER

________________________________________________________

Case 1:13-cv-01861-JEJ Document 124 Filed 05/05/14 of 26

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TABLE OF CONTENTS

INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................3

I. Plaintiffs Suffer Profound “Cognizable Harms” Due to theMarriage Exclusion and Defendants’ Enforcement of It. ..........................3

II. The Marriage Exclusion Violates Plaintiffs’ Fundamental Right

to Marry. .....................................................................................................9 III. Defendants Do Not and Cannot Show that the Marriage Exclusion

Survives Even Rational Basis Review. ....................................................10 IV. Windsor Does Not Shield a State’s Regulation of Marriage From

Constitutional Scrutiny and Windsor ’s Reasoning Applies Here. ...........13 V. Pending General Assembly Measures Only Support Plaintiffs’ Case. ....15

CONCLUSION ........................................................................................................19


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TABLE OF AUTHORITIES

Page(s)

CASES

Bishop v. U.S. ex rel. Holder ,962 F. Supp. 2d 1252 (N.D. Okla. 2014) ........................................................... 13

Bostic v. Rainey,Civil Action No. 2:13cv395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ....... 13

City of Cleburne v. Cleburne Living Center ,

473 U.S. 432 (1985) ........................................................................................... 12

Danvers Motor Co. v. Ford Motor Co.,

432 F.3d 286 (3d Cir. 2005) ................................................................................ 4

De Leon v. Perry,Civil Action No. 13-CA-982, 2014 WL 715741 (W.D. Tex. Feb 26,

2014) ................................................................................................................. 13

DeBoer v. Snyder ,Civ. A. No. 12-cv-10285, 2014 WL 1100795 (E.D. Mich. Mar. 21, 2014) ....... 13

Fair Housing Council of Suburban Philadelphia v. Montgomery

Newspapers,

141 F.3d 71 (1998) ............................................................................................... 4

Friends of the Earth, Inc. v. Laidlaw Environmental Services,528 U.S. 167 (2000) ............................................................................................. 4

General Instrument Corporation of Delaware v. Nu-Tek Electronics,

197 F.3d 83(3d Cir. 1999) ................................................................................... 4

Heckler v. Mathews,465 U.S. 728 (1984) ..................................................................................... 4, 5, 6

Heller v. Doe,509 U.S. 312 (1993) ........................................................................................... 12

International Brotherhood of Teamsters v. United States,

431 U.S. 324 (1977) ............................................................................................. 7


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Kitchen v. Herbert ,961 F. Supp. 2d 1252 (D. Utah 2013) ................................................................ 13

Loving v. Virginia,

388 U.S. 1 (1967) ................................................................................... 13, 14, 17

McNeese v. Board of Education,373 U.S. 668 (1963) ........................................................................................... 16

Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981) ........................................................................................... 12

New Orleans Public Service, Inc. v. Council of the City of New Orleans,491 U.S. 350 (1989) ..................................................................................... 15, 16

Plyler v. Doe,457 U.S. 202 (1982) ........................................................................................... 12

Romer v. Evans,

517 U.S. 620 (1996) ........................................................................................... 14

Sammon v. New Jersey Board of Medical Examiners,66 F.3d. 639 (3d Cir. 1995) ................................................................................. 7

United States v. Carolene Products Co.,

304 U.S. 144 (1938) ........................................................................................... 12

United States v. Windsor ,

133 S. Ct. 2674 (2013) ................................................................................passim

West Virginia State Board of Education v. Barnette,319 U.S. 624 (1943) ........................................................................................... 18


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INTRODUCTION

The parties agree that there are no genuine disputes of material fact between

them and that the case is ripe for disposition. Discovery is closed. It is time for

the parties to put all of their arguments and proofs on the table. Plaintiffs already

moved for summary judgment on their claims; Defendants have now cross-moved.

As shown in Plaintiffs’ Motion for Summary Judgment,1 Pennsylvania’s

exclusion of same-sex couples from marrying or having their marriages recognized

(the “Marriage Exclusion”) fails on both the law and the facts. Although

heightened scrutiny is warranted, the Marriage Exclusion actually fails any level of

scrutiny because the Commonwealth’s asserted rationales for the Marriage

Exclusion either are impermissible bases for unequal treatment or are not logically

advanced in any way by the law. Indeed, in an unbroken chain of decisions since

United States v. Windsor , 133 S. Ct. 2675 (2013), federal courts have struck down

state marriage bans as lacking even a rational basis. Plaintiffs’ Motion is further

supported by six uncontradicted expert reports by preeminent scholars and

professionals in their respective fields and twenty-five declarations, including

twenty-four by individual Plaintiffs.

1 “Plaintiffs’ Motion” refers to Plaintiffs’ Motion for Summary Judgment

(Dkt. 113-115), filed April 21, 2014, and “Defendants’ Motion” refers to the

Motion for Summary Judgment of Defendants Michael Wolf and Dan Meuser(Dkt. 116-18), filed April 21, 2014. All page references are references to the

Motions’ supporting Briefs.


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In stark contrast to Plaintiffs’ Motion, which is supported by extensive case

law and a well-developed factual record, Defendants’ Motion relies on stale

precedents and the rationales offered in support of the Marriage Exclusion in 1996

by members of the General Assembly. The statements from the legislative record

on which Defendants rely not only fail to provide even a rational basis for the

Marriage Exclusion, they actually support Plaintiffs’ Motion because they show

that the “purpose and effect” of the law was and is to unconstitutionally

disadvantage and injure same-sex couples. See Windsor , 133 S. Ct. at 2693.

Defendants attempt to avoid the constitutional issues by arguing that

Plaintiffs have failed to show that they were harmed by Defendants. This

argument is dumbfounding. Plaintiffs’ voluminous declarations detail the

dignitary, social, financial and other personal harms experienced by them and their

families due to the Commonwealth’s refusal to allow same-sex couples to marry or

have their marriages recognized.

Defendants’ Motion thus fails to provide any basis to uphold the Marriage

Exclusion. This Court should reject Defendants’ Motion and grant Plaintiffs’

Motion, finally opening the door to marriage in Pennsylvania for Plaintiffs and

thousands of other loving and committed same-sex couples.


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ARGUMENT

Defendants’ arguments in support of the Marriage Exclusion should be

rejected by this Court, just as similar arguments have been rejected by other courts.

I. Plaintiffs Suffer Profound “Cognizable Harms” Due to the

Marriage Exclusion and Defendants’ Enforcement of It.

Defendants’ lead argument that Plaintiffs have not shown “cognizable harm”

(Defs. MSJ Br. 9) or “significant or substantial economic harm” (id . at 10)

resulting from the Marriage Exclusion misapprehends the law—because harms do

not need to be economic or substantial to be cognizable and redressable—and

ignores the voluminous evidence that Plaintiffs have suffered, do suffer, and will

continue to suffer social, dignitary, and various tangible harms.

This is a case challenging discrimination. As the Windsor Court declared,

the discrimination caused by the non-recognition of same-sex couples’ marriages

“impose[s] a disadvantage, a separate status, and so a stigma upon” same-sex

couples in the eyes of the state and the broader community. 133 S. Ct. at 2693.

The Commonwealth’s non-recognition of out-of-state marriages causes the same

harms to the married Plaintiffs as in Windsor , and the harms to those Plaintiffs who

are not yet married but are excluded from marrying are indistinguishable.

The Supreme Court has “repeatedly emphasized” that “discrimination itself,

by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of

the disfavored group as ‘innately inferior’ and therefore as less worthy participants


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in the political community, can cause serious noneconomic injuries.” Heckler v.

Mathews, 465 U.S. 728, 739-40 (1984) (citations omitted). Thus, discriminatory

classifications are actionable as constitutional violations even in the absence of a

denial of a corresponding state benefit. Heckler , 465 U.S. at 739 (“[T]he right to

equal treatment guaranteed by the Constitution is not coextensive with any

substantive rights to the benefits denied the party discriminated against.”).

The law also is clear that cognizable harms under Section 1983 can be non-

pecuniary. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.

167, 183 (2000); Fair Housing Council of Suburban Phila. v. Montgomery

Newspapers, 141 F.3d 71, 81 (3d Cir. 1998). Indeed, harms do not even need to be

significant or substantial: “an identifiable trifle will suffice.” Gen. Instrument

Corp. of Del. v. Nu-Tek Elecs., 197 F.3d 83, 87 (3d Cir. 1999) (internal quotes

omitted); see also Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 294 (3d

Cir. 2005) (“The contours of the injury-in-fact requirement, while not precisely

defined, are very generous. . . . Injury-in-fact is not Mount Everest.”).

Consequently, de jure discrimination is in and of itself actionable.

Here, the harms caused to Plaintiffs by the Marriage Exclusion are real and

significant. Plaintiffs, through their declarations and the expert reports, have

shown numerous tangible and intangible harms. Tangible harms include higher tax

burdens, costs associated with obtaining legal documents to replicate protections of


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marriage where possible, the inability to file income taxes jointly as a married

couple, and substantial end-of-life tax penalties that burden surviving spouses and

partners. The Marriage Exclusion also profoundly stigmatizes Plaintiffs by

relegating them to an inferior status and harms their children by sending the

message that their families are not true families deserving of the same respect as

other families. (See Plfs. MSJ Br. 7-13; Plfs. Stmt. Uncontested Facts ¶¶ 62-100.)

These harms—whether they are large or small and whether they are financial,

emotional, or dignitary— plainly are cognizable injuries.

The only attempt in Defendants’ Motion to specifically refute any one of the

mountain of harms identified by Plaintiffs is the bald assertion that Pennsylvania’s

flat rate for personal income tax means that the married Plaintiffs are not

significantly or substantially impacted financially by being denied the right to file

their income tax returns “jointly” and therefore allegedly suffer no harm. (Def.

MSJ Br. 10-11.) This is wrong as matter of law and fact.2 Simply relegating

same-sex couples to a different tax filing status is actionable discrimination,

regardless of whether it imposes financial harm, because it “stigmatiz[es] members

2

Any dispute here regarding the financial impact to the married Plaintiffsdue to the State’s application of its income tax is not a genuine issue of materialfact precluding summary judgment in Plaintiffs’ favor. This is so because

pecuniary harm is not a requirement for an injury redressable through Section1983, and Plaintiffs have demonstrated numerous harms that Defendants do not

dispute.


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of the disfavored group as ‘innately inferior.’” Heckler , 465 U.S. at 739-40. And,

as Plaintiffs’ Motion shows, the Marriage Exclusion denies the married Plaintiffs

the dignity, respect, and convenience of filing their state income taxes “jointly”

and as “married,” instead forcing them to deny their own marriages and

paradoxically commanding them to declare themselves to be “single” under

penalty of perjury. (Stipulation ¶¶ 19-20, PX-64; Pa. Dep’t of Revenue, 2012

Pennsylvania Personal Income Tax Return 7, PX-42; D. Whitewood ¶ 15; S.

Whitewood ¶ 9; Hill ¶ 12; Palmer ¶ 6; H. Poehler ¶ 9; K. Poehler ¶ 6; Gillem ¶ 11;

Lloyd ¶ 5; Miller ¶ 6; Raspberry ¶ 16; Gebhardtsbauer ¶ 6; Wright ¶ 11;

Cattermole ¶ 7; Lobur ¶ 12.)

Moreover, while pecuniary harm is not legally required for Plaintiffs to

prevail, the undisputed evidence shows that forcing Plaintiffs to file separate state

income tax returns does in fact tangibly harm them. By the Department of

Revenue’s own admission, having to file separate Pennsylvania income tax returns

is an inconvenience to Plaintiffs that married opposite-sex couples may avoid. (Pa.

Dep’t of Revenue, 2012 Pennsylvania Personal Income Tax Return 7, PX-42.)

Having to file separate Pennsylvania income tax returns costs Plaintiffs not only

the inconvenience of additional time in preparing the second return, but also can

obviously cause additional financial consequences. (See, e.g., Lobur ¶ 12

(describing complexity of trying to file federal taxes jointly but state taxes


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separately: “We went in endless loops for four hours that day, and it took another

couple of weeks for our tax preparer to figure out how to file our Pennsylvania

return”); cf. Plummer ¶ 15 (“Each year . . . we have to pay separate preparation

fees.”).) Therefore, Defendants’ argument regarding the harms to Plaintiffs due to

the State’s refusal to let them file taxes “married” and “jointly” fails.

Defendants also advance a causation-type argument that Plaintiffs allegedly

“cannot demonstrate a connection between their” claims and “specific conduct

undertaken by a particular Commonwealth official,” and they allegedly “have not

identified any benefit or right they sought in Pennsylvania that a government

official or agency denied them.” (Defs. MSJ Br. 9-10.) However, Defendants

concede in the same paragraph that there are some “exceptions” where Plaintiffs

have demonstrated that connection, but Defendants do not specify these

“exceptions.” ( Id.) 3

This argument makes little sense. Plaintiffs seek vindication

3 To the extent Defendants’ Motion suggests that injury can only be

demonstrated if Plaintiffs sought and were denied benefits by a state agency, it is

wrong. Given the unambiguous language of the Marriage Exclusion, any attempts by Plaintiffs to marry or have their marriages recognized by state agencies in

Pennsylvania would be futile and, thus, not required to challenge the law. See

Sammon v. N.J. Bd. of Med. Examiners, 66 F.3d 639, 643 (3d Cir. 1995)(“[L]itigants are not required to make . . . futile gestures to establish ripeness.”); cf. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365 (1977) (“If an employer

should announce his policy of discrimination by a sign reading ‘Whites Only’ onthe hiring-office door, his victims would not be limited to the few who ignored thesign and subjected themselves to personal rebuffs.”).


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of their right to marry or have their marriages recognized in Pennsylvania through

this lawsuit. Every day, Pennsylvania, including through Defendants Wolf and

Meuser, denies them that very right. (See Plfs. Stmt. Uncontested Facts, ¶¶ 32-38

(Wolf) and ¶¶ 39-43 (Meuser).)4 And every day the denial of that right brings with

it a series of social, dignitary, and financial harms, including the denial of state

benefits and protections afforded to different-sex spouses. (See id. ¶¶ 62-100.)

In sum, Defendants’ argument that Plaintiffs have somehow not shown

cognizable harms caused by state actors must be rejected. The Marriage Exclusion

inflicts countless legally cognizable harms on virtually every aspect of Plaintiffs’

lives, and those harms are caused, in part, by the two individually named

4 The Department of Health, led by Defendant Wolf, denies the not-yet-

married Plaintiff couples the ability to marry by requiring that a couple applyingfor a marriage license comply with Pennsylvania’s marriage laws and, thus,

include a “bride” and a “groom,” i.e., one male and one female. (Stipulation ¶ 8,PX-64.) It also denies Plaintiff Maureen Hennessey, in her time of grief, the

respect and dignity of being acknowledged as the surviving spouse on theCertificate of Death of her late spouse, Mary Beth McIntyre. (Hennessey ¶¶ 12-13,

PX-27; Stipulation ¶ 14, PX-64.) This same harm will befall all of the married

Plaintiff couples if either spouse dies in Pennsylvania. (Stipulation ¶¶ 11, 13, PX-64.) The Department of Revenue, led by Defendant Meuser, causes dignitary andfinancial harms to the married Plaintiffs by prohibiting them from filing their state

income taxes “jointly” and as “married.” (Pa. Dep’t of Revenue, 2012

Pennsylvania Personal Income Tax Return 7, PX-42; see also Stipulation ¶¶ 19-20,PX-64.)


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Commonwealth Defendants who are charged by law with enforcing those aspects

of the Marriage Exclusion administered by their agencies.5

II. The Marriage Exclusion Violates Plaintiffs’ Fundamental Right to

Marry.

Defendants’ argument that Plaintiffs’ Due Process claim for deprivation of

the fundamental right to marry fails because lesbian and gay couples historically

have not been permitted to marry (Defs. MSJ Br. 13-19) is at odds with the

Supreme Court’s jurisprudence on fundamental rights, including the fundamental

right to marry.6 In response to Defendants’ Motion, Plaintiffs respectfully

incorporate here Point I of Plaintiffs’ Motion, which discusses how the scope of

the fundamental right to marry (like all fundamental rights) is not limited to those

who historically have been permitted to exercise that right, and Plaintiffs fit within

the protection of the same fundamental right to marry enjoyed by other couples.7

5 Defendant Petrille, another official operating under color of state law who

has denied and continues to deny Plaintiffs Sandy Ferlanie and Christine Donato a

marriage license solely because they are of the same sex, has not moved for

summary judgment. (Dkt. 102, ¶ 9.)

6 Defendants cite Windsor for the position that “[t]he right of same-sex

couples to marry is not ‘deeply rooted in this Nation’s history and tradition’ and,therefore, is not a fundamental right.” (Defs. MSJ Br. 16.) They fail to note, presumably inadvertently, that the citation is to Justice Scalia’s dissenting opinion.

7 Paradoxically, Defendants cite Loving for the proposition that “marriage—

as traditionally defined—is a fundamental right.” (Defs. MSJ Br. 15.) Of coursemarriage was traditionally defined in Virginia and many other states as a union of

(continued...)


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III. Defendants Do Not and Cannot Show that the Marriage Exclusion

Survives Even Rational Basis Review.

Defendants’ Motion does not and cannot demonstrate that the Marriage

Exclusion can survive rational basis review, let alone heightened scrutiny.8 While

Defendants identify certain state interests that purportedly are related to the

Marriage Exclusion, they fail to explain how excluding same-sex couples from

marrying or having their marriages recognized promotes the government’s interests

in procreation or the well-being of children or Pennsylvania’s economy and

businesses, and they offer no argument as to how “tradition” justifies the

continuation of discriminatory treatment. In response, Plaintiffs respectfully

________________________

(continued...)

two individuals of the same race, but that did not prevent the Supreme Court fromholding that interracial couples are within the protection of this fundamental right.

8 Although arguing that heightened scrutiny does not apply to Plaintiffs’ DueProcess claim, Defendants’ Motion makes no attempt at this time to demonstrate

that heightened scrutiny does not apply to Plaintiffs’ Equal Protection claims,expressly declining to address in the Motion whether sexual orientation

classifications are suspect or quasi-suspect or whether the Marriage Exclusion

creates gender based classifications. (Defs. MSJ Br. 12 n.5.) Further, Defendants’

Motion makes no attempt to argue that the Marriage Exclusion could survive anyapplicable heightened scrutiny analysis.

Although the amici brief filed by certain former and current Pennsylvanialegislators in support of the Marriage Exclusion (Dkt. 121-2) offers no pertinentarguments that were not thoroughly addressed in Plaintiffs’ Motion, that brief’s

description of Pennsylvania law as requiring a “gendered institution” or “gendered

marriage” (id. 2, 3, 7) further supports the application of heightened scrutiny because the Marriage Exclusion imposes a gender-based classification.


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incorporate here those sections of Plaintiffs’ Motion that extensively discuss (i)

each of the state interests identified by Defendants and demonstrate how none of

them support the Marriage Exclusion under any level of scrutiny (Plfs. MSJ Br. 39-

55 (concerning procreation and child-rearing); id. 55-60 (concerning economic

impacts); id. 60-63 (concerning tradition); see also Plfs. Stmt. Uncontested Facts

¶¶ 144-80), and (ii) how the “purpose and effect” of the Marriage Exclusion was

and is to disparage and injure same-sex couples and their families (Plfs. MSJ Br.

63-70).

Rather than addressing the purported rationality of the Marriage Exclusion,

Defendants’ Motion instead focuses on the fact that the Egolf Amendment was

passed pursuant to proper procedure in 1996,9 and then greatly overstates the

9 Plaintiffs have never argued that the Marriage Exclusion was passed

through improper legislative procedures. This argument in Defendants’ Motion,which twice highlights the role of then-Governor Ridge in the passage of the

Marriage Exclusion in 1996 (Defs. MSJ Br. 1, 5), is notable because the formergovernor has since publicly denounced the Marriage Exclusion and other similar

bans as unconstitutional. See, e.g., Brief of Amici Curiae Kenneth B. Mehlman, et

al. Supporting Respondents, Hollingworth v. Perry, No. 12-144 (U.S. Feb. 28,

2013) (with Governor Ridge as signatory to an amicus brief of Republicans

arguing that California’s Proposition 8 banning marriage for same-sex couples inCalifornia violated couples’ fundamental rights and also fails rational basisreview); Chris Geidner, Tom Ridge Pushes Back On Gay Issues in GOP with Plea

for “Practical” Tolerance, Buzzfeed (Oct. 23, 2013), available at

http://www.buzzfeed.com/chrisgeidner/tom-ridge-pushes-back-against-tea-party-ideology-with-plea-f (last accessed May 5, 2014).


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deference owed to legislatures by equating it with absolute judicial acceptance of

all legislative pronouncements. That is not the law.

Even under rational basis review, a law cannot stand unless it rationally

furthers a legitimate state interest. See, e.g., City of Cleburne v. Cleburne Living

Center , 473 U.S. 432, 446 (1985) (“The State may not rely on a classification

whose relationship to an asserted goal is so attenuated as to render the distinction

arbitrary or irrational.”). While a state might not have the initial burden of proof,

that is not the end of the inquiry because “parties challenging legislation under the

Equal Protection Clause may introduce evidence supporting their claim that it is

irrational.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981).10

Plaintiffs’ Motion shows that the Marriage Exclusion fails rational basis review as

a matter of logic and presents undisputed expert testimony providing additional

reasons that the law does not rationally further any of the asserted state interests.

10 See also United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938)

(“Where the existence of a rational basis for legislation whose constitutionality is

attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry . . . .” ); Plyler v. Doe, 457 U.S.

202, 228-30 (1982) (rejecting asserted rationale after noting that “[t]here is noevidence in the record” supporting it); Heller v. Doe, 509 U.S. 312, 321 (1993)

(“[E]ven the standard of rationality. . . must find some footing in the realities of thesubject addressed by the legislation.”).


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Defendants’ Motion offers nothing to refute these legal or factual arguments and

therefore must be denied.11

IV. Windsor Does Not Shield a State’s Regulation of Marriage From

Constitutional Scrutiny and Windsor’s Reasoning Applies Here.

Defendants’ reading of Windsor to mean that states effectively have

unreviewable authority to regulate marriage and that Windsor’s impact is limited to

federal attempts to regulate marriage (Defs. MSJ Br. 18-19, 25-26) cannot be

squared with the Windsor Court’s holding or reasoning.

First , although states have considerable freedom to define marriage,

Defendants’ Motion ignores the Windsor Court’s repeated admonition that “state

laws defining and regulating marriage, of course, must respect the constitutional

rights of persons.” Windsor , 133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S.

11 Footnote 4 to Defendants’ Motion incorporates its previously rejectedarguments based on Baker v. Nelson, 409 U.S. 810 (1972). The Court should

reject those arguments here for the same reasons it denied Defendants’ Motion toDismiss (Dkt. 67) and denied Defendants’ Motion for Permission to Appeal (Dkt.

87). Plaintiffs incorporate here their prior memoranda and briefs in opposition toDefendants’ motions (Dkts. 54, 80) and further note that all federal courts

addressing this issue since this Court’s November 15, 2013 Order have rejectedother states’ reliance on Baker just as this Court did. See, e.g., Kitchen v. Herbert ,

961 F. Supp. 2d 1181, 1194-95 (D. Utah Dec. 20, 2013); Bishop v. U.S. ex rel.

Holder , 962 F. Supp.2d 1252, 1274-77 (N.D. Okla. Jan. 14, 2014); Bostic v. Rainey, Civ. A. No. 2:13cv395, 2014 WL 561978, *9-*10 (E.D. Va. Feb. 13,2014); De Leon v. Perry, Civ. A. No. 13-CA-982, 2014 WL 715741, *8-10 (W.D.

Tex., Feb. 26, 2014); DeBoer v. Snyder , Civ. A. No. 12-cv-10285, 2014 WL

1100794, *15 n.6 (E.D. Mich. Mar. 21, 2014). A copy of each unpublishedopinion referenced in this footnote is attached to Plaintiffs’ Motion.


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1, 87 (1967)); id. at 2692 (noting that “[t]he states’ interest in defining and

regulating the marital relationship” is “subject to constitutional guarantees”); id.

(noting that state incidents of marriage are “subject to constitutional guarantees”).

Second , Defendants’ attempt to define and limit Windsor as a federalism

decision finds no support in the Court’s opinion. The Court struck down DOMA

as a violation of Due Process and Equal Protection, and the Court was clear that

states’ “power in defining the marital relation is of central relevance in this case

quite apart from principles of federalism.” Id. As the Court explained, DOMA’s

departure from the historical deference to state law defining marriage led it to

conclude that the law amounted to “discrimination[] of an unusual character” that

“suggest[ed] careful consideration to determine whether [it is] obnoxious to the

constitutional provision.” Id. (quoting Romer v. Evans, 517 U.S. 620, 633

(1996)).12

Indeed, as Justice Scalia observed, the Windsor majority “formally

disclaimed reliance upon principles of federalism.” Id. at 2705 (Scalia, J.,

dissenting).

12 The legislators’ amici brief in opposition to Plaintiffs’ Motion

misunderstands Windsor to mean that intrusion into a state’s traditional sovereign

sphere is required to conclude that impermissible animus is at work. That was justone factual circumstance that has led the Court to deem a law a “discrimination[]

of an unusual character” suggesting “careful consideration.” Windsor , 133 S. Ct.at 2692; see also Romer , 517 U.S. at 633 (concluding that state constitutional

amendment barring civil rights protections for lesbians and gay men was a“discrimination[] of an unusual character” suggesting “careful consideration.”).


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Rather than relying on federalism, Windsor invalidated DOMA because the

“purpose and practical effect of the law . . . [was] to impose a disadvantage, a

separate status, and so a stigma upon” same-sex couples. Id. at 2693. Justice

Scalia’s dissent acknowledged this holding and recognized that it logically extends

to state DOMAs. Id. at 2709 (Scalia, J., dissenting). As Part V of Plaintiffs’

Motion (incorporated here) explains, since the purpose and effect of the Marriage

Exclusion mirrors the federal DOMA, it is unconstitutional for the same reasons

(in addition to failing ordinary rational basis review).

V. Pending General Assembly Measures Only Support Plaintiffs’ Case.

Threaded throughout Defendants’ Motion is the long-discarded idea that

Plaintiffs’ constitutional rights are subject solely to the whim of the legislature and

that Plaintiffs’ claims do not belong in federal court. (See, e.g., Def. MSJ Br. 15

(“Plaintiffs are asking this Court” to act “in place of the legislature . . . .”). As

support for this flawed premise, Defendants’ Motion highlights, though hardly

discusses, some bills that have been introduced in the General Assembly to protect

the LGBT community. ( Id. 6-7, 25 n.10). This entire notion is without merit.

It is axiomatic that under Article III of the United States Constitution, this

Court—like any federal court—has the both the authority and the obligation to rule

upon claims of deprivation of constitutional rights. See, e.g., New Orleans Pub.

Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 358-359 (1989)


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(“[W]herever the Federal courts sit, human rights under the Federal Constitution

are always a proper subject for adjudication . . . .”); McNeese v. Bd. of Educ., 373

U.S. 668, 674 n.6 (1963). Or, as even Governor Corbett said, “The constitutional

question is now before a federal court and that is the venue in which same-sex

couples wishing to legally marry have standing to intervene and be heard.” John

L. Micek, Corbett Apologizes For Remarks About Same-Sex Couples, PennLive,

Oct. 4, 2013, PX-63.

The bills referenced in Defendants’ Motion, while irrelevant to whether

Plaintiffs’ claims are properly before this Court, actually reinforce the need for

same-sex couples to seek relief from federal courts. Defendants’ incomplete and

barebones listing of legislative bills that might benefit the civil rights of lesbians

and gay men (Def. MSJ Br. 6-7, 25 n.10) omits crucial context. The bills listed in

Exhibit C to Defendants’ Motion are just that—bills—none of which have even

been voted out of committee. (Chauncey ¶ 102.) Using recent history as a guide,

these bills will likely die in committee. Indeed, Pennsylvania’s General Assembly

has not passed any laws extending protections against discrimination in

employment, housing, or public accommodations to lesbians and gay men, nor

have they even voted out of committee bills that would repeal the Marriage

Exclusion. The General Assembly has, on the other hand, considered measures

that would harm lesbians and gay men, including a constitutional amendment to


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enshrine the Marriage Exclusion. And leading elected officials, including the

Governor, continue to promote these anti-gay measures and to use rhetoric hostile

to lesbians and gay men. (See id. ¶¶ 102-104 (identifying recent anti-gay

initiatives, and hostile rhetoric and stereotypes perpetuated by Pennsylvania

legislators and other officials).)

Defendants’ Motion seems to argue for the proposition that Pennsylvania,

and especially the General Assembly, has the sovereign and absolute power to

determine when it will dignify same-sex couples and when it will not. For

example, Defendants’ Motion would have this Court hold that Pennsylvania may

decide to respect lesbians and gays for adoption rights (Stipulation ¶¶ 21-22, PX-

64) and domestic partnership benefits for state employees when it is the

economically smart thing to do (PX-54, PX-55, PX-57), but it may also

simultaneously withhold from them marriage, which is a “vital personal right[]

essential to the orderly pursuit of happiness by free men.” Loving, 388 U.S. at 12.

This position should be rejected.

This idea of an à la carte menu from which the State may choose one-by-

one when it will bestow equal rights and protections upon same-sex couples and

the LGBT community and when it will not hauntingly echoes—though without the

same hateful words—the suggestion of a state legislator in 2009 that lesbians and


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gays should just be thankful to the State for “allowing them to exist” (PX-56).13

The Constitution demands far more than that. In Justice Jackson’s immortal

words, constitutional rights are not and cannot be subject to the whim of political

branches of government:

The very purpose of a Bill of Rights was to withdrawcertain subjects from the vicissitudes of political

controversy, to place them beyond the reach of majoritiesand officials and to establish them as legal principles to

be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship

and assembly, and other fundamental rights may not besubmitted to vote; they depend on the outcome of no

elections.

W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Plaintiffs have

properly raised federal constitutional claims, and they are entitled to a timely

decision by this Court on whether the Commonwealth’s exclusion of them and

other loving, committed same-sex couples in Pennsylvania from the institution of

marriage offends the United States Constitution.

13 The legislators’ amici brief in opposition to Plaintiffs’ Motion repeats this

notion of respecting gays and lesbians and their families sometimes but not others.But, tellingly, even they now concede that “the loving bond between parent andchild, regardless of sexual orientation, lifestyle, and belief must always be

respected. And all Pennsylvania children deserve respect.” (Dkt. 121-2, at 7.)Precisely! That is a core point of the Supreme Court’s decision in Windsor and a

core point of this lawsuit—Plaintiffs and their children deserve respect, always.


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CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment of Defendants

Michael Wolf and Dan Meuser should be denied.

Respectfully submitted,

Dated: May 5, 2014 HANGLEY ARONCHICK SEGALPUDLIN & SCHILLER

By: /s/ Mark A. AronchickMark A. Aronchick

John S. Stapleton

Dylan J. SteinbergRebecca S. MelleyOne Logan Square, 27th Floor

Philadelphia, PA 19103(215) 568-6200

Helen E. Casale

401 DeKalb Street, 4th Floor Norristown, PA 19401

(610) 313-1670

ACLU FOUNDATION OFPENNSYLVANIA

By: /s/ Witold J. Walczak

Witold J. Walczak313 Atwood Street

Pittsburgh, PA 15213

(412) 681-7736

Mary Catherine Roper

Molly Tack-HooperP.O. Box 40008

Philadelphia, PA 19106(215) 592-1513


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James D. EsseksLeslie CooperAMERICAN CIVIL LIBERTIES

UNION FOUNDATION125 Broad Street, 18th Floor

New York, NY 10004(212) 549-2500

Seth F. Kreimer

3400 Chestnut St.Philadelphia, Pa. 19104

(215) 898-7447

Counsel for Plaintiffs


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CERTIFICATE OF WORD COUNT

I, Mark A. Aronchick, hereby certify pursuant to Local Civil Rule 7.8(b)(2)

that the text of the foregoing Plaintiffs’ Brief in Opposition to the Motion for

Summary Judgment of Defendants Michael Wolf and Dan Meuser contains 4,599

words as calculated by the word-count function of Microsoft Word.

Dated: May 5, 2014 /s/ Mark A. AronchickMark A. Aronchick


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CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of May, 2014, I caused the foregoing

Plaintiffs’ Brief in Opposition to the Motion for Summary Judgment by

Defendants Michael Wolf and Dan Meuser to be filed electronically using the

Court’s electronic filing system, and that the filing is available to counsel for all

parties for downloading and viewing from the electronic filing system.

/s/ Mark A. AronchickMark A. Aronchick


1:13-cv-01861 #124

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