Whitewood v. Wolf

992 F.Supp.2d 410

Deb WHITEWOOD, et al., Plaintiffs,

v.Michael WOLF, in his official capacity as Secretary, Pennsylvania Department of Health, et al., Defendants.

No. 1:13–cv–1861.

United States District Court, M.D. Pennsylvania.

Signed May 20, 2014.

Held Unconstitutional

23 Pa.C.S.A. §§ 1102, 1704.

Dylan J. Steinberg, John S. Stapleton, Mark A. Aronchick, Hangley Aronchick Segal Pudlin & Schiller, Mary Catherine Roper, American Civil Liberties Union of Pennsylvania, Molly M. Tack–Hooper, ACLU of Pennsylvania, Rebecca S. Melley, Segal Pudlin & Schiller, Seth F. Kreimer, Philadelphia, PA, James D. Esseks, Leslie Cooper, American Civil Liberties Union Foundation, New York, NY, Witold J. Walczak, American Civil Liberties Union of PA, Pittsburgh, PA, Helen E. Casa, Hangley Aronchick Segal Pudlin & Schiller, Norristown, PA, for Plaintiffs.

Joel L. Frank, William H. Lamb, Lamb McErlane P.C., West Chester, PA, Thomas J. Jezewski, Swartz Campbell, LLC, Pittsburgh, PA, Frank A. Chernak, John P. McLaughlin, Ballard Spahr Andrews & Ingersoll LLP, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

JOHN E. JONES III, District Judge.

Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth's laws to the contrary are unconstitutional. We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.

I. BACKGROUND

Plaintiffs in this action protest the constitutionality of two provisions of Pennsylvania's Domestic Relations Code, which limit marriage to opposite-sex couples and prohibit the recognition of same-sex marriages legally entered into in other jurisdictions (collectively, “the Marriage Laws”).

A. The Marriage Laws

In 1996, Pennsylvania was one of 14 states to amend its laws to add anti-ceremony and anti-recognition provisions applicable to same-sex couples. The proliferation of such laws across the country—another 11 states added similar provisions the following year—was in response to litigation in Hawaii, in which the Hawaii Supreme Court had held the state's ban on same-sex marriage to be presumptively violativeof the state's equal protection clause. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993).

In Pennsylvania, Representative C. Allan Egolf of Perry County sponsored the marriage amendment and described it as “an expression of Pennsylvania's traditional and longstanding policy of moral opposition to same-sex marriages ... and support of the traditional family unit.” (Doc. 115–18, p. 27). Ultimately, both houses passed the legislation by overwhelming majorities, the House by 177 to 16, and the Senate by 43 to 5.

The Pennsylvania Marriage Laws define “marriage” as “[a] civil contract by which one man and one woman take each other for husband and wife.” 23 Pa.C.S. § 1102. In addition, a provision entitled “Marriage between persons of the same sex” states as follows:

It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

23 Pa.C.S. § 1704. As stated, the Marriage Laws have the effect of preventing same-sex couples from marrying in Pennsylvania and nullifying the marriages of same-sex couples legally married elsewhere for purposes of recognition in the Commonwealth.

B. The Plaintiffs¹

Plaintiffs are Deb and Susan Whitewood, and their teenage daughters, A.W. and K.W.; Maureen Hennessey; Lynn and Fredia Hurdle; Fernando Chang–Muy and Len Rieser; Julia Lobur and Marla Cattermole; Dawn Plummer and Diana Polson; Dara Raspberry and Helena Miller; Ron Gebhardtsbauer and Greg Wright; Sandy Ferlanie and Christine Donato; Heather and Kath Poehler; Angela Gillem and Gail Lloyd; and Edwin Hill and David Palmer. Five of the couples are unmarried, seeking to wed in Pennsylvania, and six of the couples, as well as Maureen Hennessey, desire to have their valid, out-of-state marriages recognized by the Commonwealth.

As a group, they represent the great diversity of the Commonwealth of Pennsylvania. They hail from across the state, making their homes in Allegheny, Dauphin, Centre, Northampton, Delaware, Chester, and Philadelphia Counties. They come from all walks of life; they include a nurse, state employees, lawyers, doctors, an artist, a newspaper delivery person, a corporate executive, a dog trainer, university professors, and a stay-at-home parent. They have served our country in the Army and Navy. Plaintiffs' personal backgrounds reflect a richness and diversity: they are African–American, Caucasian, Latino, and Asian; they are Catholic, Baptist, Methodist, Jewish, Quaker, Buddhist, and secular. In terms of age, they range from a couple in their 30s with young children, to retirees in their 60s. Many of the couples have been together for decades.

As plainly reflected in the way they live their lives, the plaintiff couples are spouses in every sense, except that the laws of the Commonwealth prevent them from being recognized as such.

For better, for worse

The plaintiff couples have shared in life's joys. They have purchased homes together and blended their property and finances. They have started families, welcoming children through birth and adoption. Some of them have celebrated their commitment to each other through marriage in other states, sharing their wedding day with family and friends.

Yet, with each of these joys there has been concomitant hardship resulting from the Marriage Laws. In terms of property ownership, all of the couples face the payment of Pennsylvania's inheritance tax—including on half of the value of jointly-owned homes and bank accounts—at 15 percent, the highest rate.

For those couples who have had children, like Dawn Plummer and Diana Polson, the non-biological parent has had to apply for a second-parent adoption. Dawn expresses that she and Diana are presently saving money so that she can legally adopt their second son, J.P. Until the adoption is complete, she has no legal ties to J.P., despite that, together, she and Diana dreamed of welcoming him to their family, prepared for his birth, and functioned as a married couple long before having him. Christine Donato, who together with Sandy Ferlanie completed a second-parent adoption in similar circumstances, describes the process as “long, expensive, and humiliating.” The couples choosing to adopt, like Fernando Chang–Muy and Len Rieser, had to undergo a two-step process, incurring double the costs, in which one became their child's legal parent and, later, the other petitioned for a second-parent adoption. For the children of these couples, it can be difficult to understand why their parents are not married or recognized as married. In the words of Deb Whitewood, “It sends the message to our children that their family is less deserving of respect and support than other families. That's a hurtful message.”

In addition, for the couples who have chosen to marry out-of-state, they are acutely sensitive that their marital status changes when they cross state lines. Edwin Hill describes driving home to Pennsylvania after wedding David Palmer in Maine in 2013, elated to be traveling through all of the northeastern states that recognize their marriage. “And then we crossed the Delaware River into Pennsylvania,” he recalls, “and we looked at each other and said, ‘We're not married anymore.’ And that hurt.” Further, the married couples must still identify themselves as single in Pennsylvania, for example, on their state income taxes. Many have remarked on the pain this causes them, describing that it feels “terrible,” “wrong,” and “like a denial of [their] relationship” to tick the box marked “single.”

For richer, for poorer

The plaintiff couples share their resources and support each other financially. But Plaintiffs commonly echo a sense of legal and economic vulnerability because of Pennsylvania's Marriage Laws. Many of them have paid lawyers to draft protective documents, like wills and powers of attorney, in efforts to emulate some of the protections afforded to couples recognized as married. Susan Whitewood estimates that her family has spent over $10,000 in legal fees for the preparation and maintenance of such documents, which would not have been necessary if the Commonwealth acknowledged their marriage.

Angela Gillem and Gail Lloyd describe feeling particularly insecure. Angela is a clinical psychologist and the primary bread-winner, while Gail is an artist who does not draw a steady paycheck or contribute to Social Security. Angela expresses that she has “taken every step [she] can to ensure [Gail's] financial security” but that they still cannot duplicate all of the protections married couples receive, and she “live[s] every day with the fear that the steps [she has] taken will not be enough to protect Gail if something should happen to [her].”

In sickness and in health

The plaintiff couples have supported each other through illness and medical emergencies. Yet, because Pennsylvania considers them legal strangers, they may be left vulnerable in times of crisis. Various of the plaintiffs express anxiety at the possibility that they would not be allowed to comfort or gain information about their partner's condition in the event of an emergency, despite the...