1:13-cv-01861 #124

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 Page 1 of 26

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 3

I. Plaintiffs Suffer Profound Cognizable Harms Due to the
Marriage 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 States Regulation of Marriage From
Constitutional Scrutiny and Windsors Reasoning Applies Here. ...........13

V. Pending General Assembly Measures Only Support Plaintiffs Case. ....15

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


- ii -
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

- iii -
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


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 J udgment,
1
Pennsylvanias
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 Commonwealths 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 J udgment
(Dkt. 113-115), filed April 21, 2014, and Defendants Motion refers to the
Motion for Summary J udgment 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 Commonwealths 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 lawbecause harms do
not need to be economic or substantial to be cognizable and redressableand
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 Commonwealths 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

- 4 -
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 harmswhether 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 Pennsylvanias
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 Plaintiffs
due to the States application of its income tax is not a genuine issue of material
fact precluding summary judgment in Plaintiffs favor. This is so because
pecuniary harm is not a requirement for an injury redressable through Section
1983, 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. Dept 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
Revenues own admission, having to file separate Pennsylvania income tax returns
is an inconvenience to Plaintiffs that married opposite-sex couples may avoid. (Pa.
Dept 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 States 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.
Intl 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 on
the hiring-office door, his victims would not be limited to the few who ignored the
sign 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 applying
for a marriage license comply with Pennsylvanias 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 the
Certificate 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 and
financial harms to the married Plaintiffs by prohibiting them from filing their state
income taxes jointly and as married. (Pa. Dept 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 Courts 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 Nations 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 J ustice Scalias dissenting opinion.
7
Paradoxically, Defendants cite Loving for the proposition that marriage
as traditionally definedis a fundamental right. (Defs. MSJ Br. 15.) Of course
marriage 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 governments interests
in procreation or the well-being of children or Pennsylvanias 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 from
holding that interracial couples are within the protection of this fundamental right.
8
Although arguing that heightened scrutiny does not apply to Plaintiffs Due
Process 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 any
applicable heightened scrutiny analysis.
Although the amici brief filed by certain former and current Pennsylvania
legislators in support of the Marriage Exclusion (Dkt. 121-2) offers no pertinent
arguments that were not thoroughly addressed in Plaintiffs Motion, that briefs
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.

- 11 -
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 former
governor 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 Californias Proposition 8 banning marriage for same-sex couples in
California violated couples fundamental rights and also fails rational basis
review); 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 no
evidence 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 the
subject 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 States Regulation of Marriage From
Constitutional Scrutiny and Windsors Reasoning Applies Here.
Defendants reading of Windsor to mean that states effectively have
unreviewable authority to regulate marriage and that Windsors impact is limited to
federal attempts to regulate marriage (Defs. MSJ Br. 18-19, 25-26) cannot be
squared with the Windsor Courts holding or reasoning.
First, although states have considerable freedom to define marriage,
Defendants Motion ignores the Windsor Courts 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 rejected
arguments 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 to
Dismiss (Dkt. 67) and denied Defendants Motion for Permission to Appeal (Dkt.
87). Plaintiffs incorporate here their prior memoranda and briefs in opposition to
Defendants motions (Dkts. 54, 80) and further note that all federal courts
addressing this issue since this Courts November 15, 2013 Order have rejected
other 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. J an. 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 unpublished
opinion referenced in this footnote is attached to Plaintiffs Motion.

- 14 -
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 Courts 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, DOMAs
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 J ustice 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 states traditional sovereign
sphere is required to conclude that impermissible animus is at work. That was just
one 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. J ustice
Scalias 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
Courtlike any federal courthas 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)

- 16 -
([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. J ohn
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 thatbillsnone 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, Pennsylvanias 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 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 echoesthough without the
same hateful wordsthe suggestion of a state legislator in 2009 that lesbians and

- 18 -
gays should just be thankful to the State for allowing them to exist (PX-56).
13

The Constitution demands far more than that. In J ustice J acksons 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 withdraw
certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to
be applied by the courts. Ones right to life, liberty, and
property, to free speech, a free press, freedom of worship
and assembly, and other fundamental rights may not be
submitted 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 Commonwealths 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 and
child, 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 Courts decision in Windsor and a
core point of this lawsuitPlaintiffs and their children deserve respect, always.

- 19 -
CONCLUSION
For the foregoing reasons, the Motion for Summary J udgment of Defendants
Michael Wolf and Dan Meuser should be denied.
Respectfully submitted,

Dated: May 5, 2014 HANGLEY ARONCHICK SEGAL
PUDLIN & SCHILLER

By: /s/ Mark A. Aronchick
Mark A. Aronchick
J ohn S. Stapleton
Dylan J . Steinberg
Rebecca S. Melley
One 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 OF
PENNSYLVANIA

By: /s/ Witold J . Walczak
Witold J . Walczak
313 Atwood Street
Pittsburgh, PA 15213
(412) 681-7736

Mary Catherine Roper
Molly Tack-Hooper
P.O. Box 40008
Philadelphia, PA 19106
(215) 592-1513

- 20 -

J ames D. Esseks
Leslie Cooper
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 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


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 J udgment 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. Aronchick
Mark A. Aronchick

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 J udgment by
Defendants Michael Wolf and Dan Meuser to be filed electronically using the
Courts 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. Aronchick
Mark A. Aronchick


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