HARRISBURG, Pa. — A federal court challenge to Pennsylvania‘s 17-year-old law banning the recognition of same-sex marriages took an important step toward a trial Friday when a judge rejected two different attempts to block the lawsuit and said high court treatment of cases involving sex and sexual identity have undergone a “sea change.”
It is a strong sign the case is headed to trial and, potentially, the U.S. Supreme Court. In a note at the end of his 10-page decision, Jones set a Nov. 22 conference and advised lawyers in the case to be “fully prepared” to discuss the starting date of a trial.
Every northeastern state except Pennsylvania allows gay marriage. The lawsuit, filed July 9 by civil rights lawyers on behalf of a widow, 10 couples and one of the couples’ two teenage daughters, was the first-known challenge to a 1996 Pennsylvania law that effectively bans same-sex marriage and recognition of such marriages from other states. An 11th couple was added last week to the list of plaintiffs.
Since the lawsuit was filed, at least five more legal challenges to Pennsylvania’s law have surfaced in state and federal courts, including one in which a Montgomery County official is defending his decision to issue 174 marriage licenses to same-sex couples.
In his ruling, Jones disagreed with what he called the defendants’ predominant argument that his court lacks the power to hear the case.
The defendants had cited the U.S. Supreme Court’s 1972 decision that it lacked the jurisdiction to hear an appeal to a Minnesota court ruling that a state law banning same-sex marriages did not violate the Constitution’s equal protection and due process clauses.
However, Jones said that decision is weakened by the Supreme Court’s evolving treatment of constitutional challenges based on sex or sexual identity in the past four decades.
“The jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972,” Jones wrote.
A new Hawaii law makes it the 15th U.S. state to allow same-sex marriage, along with the District of Columbia. The governor of Illinois is expected to sign a bill into law next week legalizing same-sex marriage there.
“The important thing is we are moving toward having our clients get their day in court and we look forward to demonstrating why our clients’ loving families are no different than any other and are entitled to equal dignity under the law,” said Witold J. Walczak of the ACLU.
A spokesman for Gov. Tom Corbett said administration lawyers were reviewing the decision and he could not immediately say whether they will seek an appeal to Jones’ decision. The spokesman, Joshua Maus, called the 1972 ruling “longstanding, binding precedent which has been accepted in federal courts across the country.”
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