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Quicker ruling sought in Pennsylvania gay marriage ban case

| Monday, April 21, 2014, 12:09 p.m.

The state concedes that its law banning same-sex marriages harms gay couples, so the only question left in a federal lawsuit challenging the law is whether it is constitutional, lawyers for the plaintiffs argued Monday.

They're asking a federal judge to answer that question quickly instead of sending the case to a jury trial in July.

“The state has made it pretty clear that they're depending on legal defenses,” said John Stapleton, one of the lawyers.

The plaintiffs — a widow, 11 couples and one couple's two teenage daughters — have lined up six expert witnesses to testify about the financial, legal, social and emotional impact of the ban, Stapleton said. The state has decided not to put up any witnesses of its own, he said.

Joshua Maus, spokesman for the Office of General Counsel, declined comment. The office is expected to file its own motion asking the judge to uphold the ban, but hadn't done so by Monday evening. It had until midnight Monday to file its brief or ask for a new deadline.

Gov. Tom Corbett, appearing in Pittsburgh to talk about his education funding proposal, declined comment.

Susan Whitewood of South Fayette said it's exciting a decision could come soon. She spent most of a year digging up documents and sitting through depositions.

“If this can expedite the process a little quicker, that's wonderful,” she said.

She and Deb Whitewood are legally married in Maryland but their marriage isn't recognized by Pennsylvania.

When Susan Whitewood collapsed a few months ago, Deb carried her power of attorney form into the hospital so that she could find out Susan's condition.

“That's the first thing I thought about when I heard my wife had passed out,” Deb Whitewood said.

The incident shows how their marriage is treated as “second class” in the state, since other spouses don't have to carry their marriage licenses into a hospital to find out how a loved one is doing, she said.

Susan Whitewood, who works while Deb Whitewood stays home with their children, said they also pay a financial penalty.

“I have to pay more for health care (than married spouses),” she said. “I have to pay more in taxes.”

Every state in the Northeast, except Pennsylvania, recognizes same-sex marriages. In all, 17 states give legal status to gay marriage.

Bans on same-sex marriage are living on borrowed time, but they're more likely to get overturned in voting booths than through legal briefs, said Duquesne University law professor Bruce Ledewitz.

Though both sides in the Pennsylvania case are quoting from U.S. Supreme Court Justice Anthony Kennedy's opinion that overturned a federal ban on same-sex marriages, the key point in that 5-4 opinion is that Kennedy believes states exclusively hold the right to define marriage, he said.

Consequently, if a case reaches the Supreme Court, it will likely result in another 5-4 opinion, but one that upholds the state law, Ledewitz said.

Most law professors and other court watchers don't agree with that interpretation of Kennedy's opinion, he added.

Whether his prediction is put to the test depends on whether any of the federal circuit courts of appeal overturn a state ban. If they don't, then he doesn't see the justices accepting an appeal.

“The Supreme Court has not shown any great willingness to reach out and rule on gay marriage,” Ledewitz said.

On the other hand, if a circuit court overturns a ban, the Supreme Court will have to take up the issue, he said.

Even if that doesn't happen, opinion polls show an increasing number of voters, particularly younger voters, favor legalizing same-sex marriage, so the real question isn't whether the state will recognize it but when, Ledewitz said.

Though proponents and opponents seem to be waiting for a court ruling, a legislative solution “would be much healthier for everybody,” he said.

Brian Bowling is a staff writer for Trib Total Media. He can be reached at 412-325-4301 or

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