States Face Same-Sex ‘Marriage’ Fallout
Lawsuits Filed Against Defense Amendments
BY Brian Fraga
July 28-Aug. 10, 2013 Issue | Posted 7/23/13 at 3:05 PM
HARRISBURG, Pa. — Same-sex "marriage" proponents are attacking constitutional amendments and laws in states that still define marriage as the union of one man and one woman.
The American Civil Liberties Union and its allies have filed lawsuits or indicated they plan to file lawsuits in Pennsylvania, North Carolina and Virginia to force those states to recognize same-sex "marriage" in the wake of the U.S. Supreme Court’s June 26 rulings that struck down the federal Defense of Marriage Act (DOMA) and opened the door for same-sex "weddings" to resume in California.
Additional legal challenges are brewing in Nevada, Colorado, New Jersey, Hawaii, Oregon and Wisconsin, according to published reports.
In those cases, the ACLU and other lawyers pushing for same-sex "marriage" will likely cite the Supreme Court’s majority opinion in the DOMA case — written by Justice Anthony Kennedy — that said lawmakers who supported the 1996 federal legislation, which was signed into law by President Bill Clinton, were motivated by animus and a willingness to stigmatize a politically unpopular group.
"That’s why the Supreme Court decision was so bad," said Father Michael Orsi, chaplain and research fellow in law and religion at Ave Maria School of Law in Naples, Fla.
Father Orsi told the Register that same-sex "marriage" proponents will also likely cite a federal judge’s 2010 ruling in California that struck down that state’s 2008 constitutional amendment — enacted through a public referendum and known as Proposition 8 — that defined marriage as the union of one man and one woman. The Supreme Court declined to judge the case on its merits after determining that the coalition of marriage supporters defending the law did not have legal standing to argue the case in court.
Former California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown — the current governor — declined to defend the voter-passed amendment when two same-sex couples sued in federal court for the right to "marry" in California.
In February 2011, President Barack Obama instructed the U.S. Department of Justice to no longer defend Section 3 of DOMA that prohibited the federal government from recognizing same-sex "married" couples for the purposes of federal benefits.
The Republican-controlled House of Representatives stepped in to take up the defense of DOMA. On June 26, however, the Supreme Court ruled that a part of the federal law defining marriage as between one man and one woman violated the Fifth Amendment’s protection of due process.
In Pennsylvania, Attorney General Kathleen Kane, a Catholic Democrat who supports legalized abortion, announced on July 11 that she would not defend her state’s Defense of Marriage Act law from a lawsuit filed July 9 by the ACLU on behalf of 23 plaintiffs seeking to "marry" their same-sex partners.
"I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA, where I believe it to be wholly unconstitutional," Kane said.
Kane’s announcement continues a trend of executive-level officials announcing that they will not enforce laws defending traditional marriage. Thomas Peters, a spokesman for the National Organization for Marriage, which defends the institution of marriage, called the attorney general’s announcement a "pocket veto" that seeks to nullify the will of the electorate.
"It’s an offense against federalism," Father Orsi added. "It’s unconscionable that the representatives of the people refuse to defend the will of the people. The only recourse that the people have is to vote them out of office."
Pennsylvania Gov. Tom Corbett, who is also named as a defendant in the lawsuit brought forth by the ACLU, has not indicated if his administration will defend the law. General counsel James Schulz said in a statement that he and his colleagues were "surprised" by Kane’s announcement that she would not defend a law "merely because of her personal beliefs."
Kane said in prepared remarks that Pennsylvania’s DOMA has "no legitimate purpose" other than to disparage and insult same-sex couples. She framed the issue as a civil-rights matter.
"I know that in this state there are people who don’t believe in what we are doing, and I’m not asking them to believe in it. I’m asking them to believe in the Constitution," Kane said.
"We have always stood strong in the face of discrimination, which in its various forms has never withstood the test of time," Kane said. "It is our duty, each and every one of us, to protect the constitutionality, to protect the rights and dignity of others, and to protect the equality of all men and women in this commonwealth."
"It is disappointing that Pennsylvania Attorney General Kathleen Kane said that she and her office would not defend the constitutionality of Pennsylvania’s 17-year-old Defense of Marriage Act," said Amy Hill, a spokeswoman for the Pennsylvania Catholic Conference.
Hill told the Register that her organization is not surprised by the lawsuit, given the Supreme Court’s DOMA ruling. She said the conference in past legislative sessions has put "considerable effort" into passing a constitutional amendment to define marriage as the union of one man and one woman.
"Interestingly, one of the reasons often cited by legislators about why they were not ready to support the marriage amendment was they did not perceive a threat to Pennsylvania’s DOMA," Hill said, adding that the conference will be posting advocacy alerts and updates on its website.
The ACLU, in a prepared release, said it will amend an existing adoption lawsuit in North Carolina to fight to legalize same-sex "marriage" in that state, where voters approved a constitutional amendment in 2012 to define marriage as the union of one man and one woman.
The ACLU said it will also file a lawsuit in the coming weeks in Virginia — where a constitutional amendment also protects traditional marriage — as co-counsel with Lambda Legal, a legal organization that represents homosexual persons and people with HIV/AIDS.
Thirteen states, including the District of Columbia, have legalized same-sex "marriage." Thirty-five states have constitutional amendments or laws defining marriage as the union of one man and one woman.
In Colorado, where voters in 2006 approved a state constitutional amendment to define marriage as the union of one man and one woman, a law professor at the University of Denver has told local media outlets that she intends to challenge the law after "marrying" her partner in New York, where same-sex "marriage" is legal.
Colorado Gov. John Hickenloooper, a Democrat, has been noncommittal as to whether his administration will defend the state’s amendment from a legal challenge.
Jenny Kraska, executive director of the Colorado Catholic Conference, told the Register that she expects it is only "a matter of time" before a lawsuit is filed in Colorado, given the other legal challenges emerging around the country.
Kraska added that she also saw a "disturbing trend" in elected officials not defending the laws on marriage.
"I don’t think the public would allow this to happen on any other issue," Kraska said. "Imagine [politicians] saying that they were not going to defend the Civil Rights Act. It’s absurd. [Politicians], I hope, would understand that they’re going to have to enforce laws that they might not agree with. That’s why we live in a democracy."
Brian Fraga writes from
Fall River, Massachusetts.
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