WASHINGTON — The ACLU on Tuesday announced a trio of lawsuits that will test the constitutionality of state laws barring same-sex marriage.
The suits, filed in Pennsylvania and North Carolina with another to come in Virginia, are part of a carefully crafted effort to capitalize on the Supreme Court’s recent same-sex-marriage ruling striking down the federal Defense of Marriage Act. That law, known as DOMA, barred the federal government from recognizing same-sex marriages.
Legal challenges to state same-sex-marriage bans have popped up in other places since the Supreme Court’s decision last month. But the ACLU was a central figure in the DOMA case, United States v. Windsor, and it has the resources to launch a coordinated, potent campaign in the states.
The lawsuit in Pennsylvania, the only Northeast state that bans gay marriage and does not allow civil unions, focuses on the state’s refusal to recognize other states’ legally performed same-sex marriages. Many said after the Supreme Court ruling that such a stance now might be legally vulnerable.
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An attorney involved in the case said it is about fairness and whether the government can justify continuing to treat same-sex couples differently from heterosexual couples.
“We believe that this law cannot stand under any level of scrutiny because excluding same-sex couples from marriage does not further any legitimate government interest,” attorney Mark Aronchick said in a statement. “It serves only to insult and hurt lesbian and gay couples and their families.”
Notably, Aronchick echoed Justice Anthony Kennedy’s opinion striking down DOMA. Kennedy wrote that DOMA ensured that “if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”
In North Carolina, the ACLU suit is on behalf of six families with same-sex parents. It challenges a state ban on so-called “second-parent adoption,” where one partner in an unmarried couple adopts the other’s child.
“North Carolina’s law denies children the permanency and security of a loving home simply because their parents are lesbian or gay,” said Jennifer Rudinger, executive director of the ACLU of North Carolina. “This is fundamentally wrong. No parent should have to worry about what will happen to their children if something happens to their partner.”
The Virginia suit is expected to be filed in the coming weeks, the ACLU said.
State officials in states with same-sex-marriage bans have vowed to defend their laws, especially those passed with overwhelming public support. They say the lawsuits seek to subvert the will of the voters.
In the lawsuit filed Tuesday in Harrisburg, Pa., the ACLU is representing 23 plaintiffs: 10 gay couples, two children of one of the couples, and the surviving partner in a same-sex couple who were together for 29 years.
James Esseks, who directs the ACLU’s Lesbian Gay Bisexual Transgender & AIDS Project, said the group hopes to secure the right for gay couples to marry in Pennsylvania, force the state to recognize same-sex marriages performed elsewhere, and increase pressure on the Supreme Court to ultimately rule on whether same-sex marriage should be legal across the nation.
“Pennsylvania recognizes straight people’s marriages from Maine and New York, but it doesn’t recognize gay people’s marriages from Maine and New York,” Esseks said. “The question is, why?”
Opponents of same-sex marriage questioned why activists were seeking redress in court rather than through a ballot initiative in Pennsylvania. Under Pennsylvania law, the state legislature has to approve resolutions before they can be put on the ballot for a direct vote, and no resolution endorsing gay marriage has passed at this point.
“We think it’s very telling gay-marriage advocates are using the courts so heavily,” said Thomas Peters, communications director for the National Organization for Marriage. “They only support the voice of the people when they think it will go their way.”
Peters said his group is focused on Indiana, where Republican Gov. Mike Pence has urged the legislature to pass a constitutional amendment banning same-sex marriage so it can be put before the voters as a ballot initiative in 2014. The organization is also involved in a legislative fight in Illinois over whether to legalize gay marriage there.
A pro-gay-marriage group called Freedom to Marry announced Tuesday that it would spend $500,000 on state initiatives to legalize gay marriage, including $250,000 on an effort to reverse Oregon’s ban through a ballot initiative next year. The group said it had hired Richard Carlbom, who spearheaded the successful effort to legalize gay marriage in Minnesota, as its director of state campaigns.
Helena Miller and Dara Raspberry, who are plaintiffs in the Pennsylvania lawsuit, met in Brooklyn in 2006 and were married in Connecticut in 2010. They moved to Philadelphia later that year in part to be closer to Miller’s family as they prepared to have children.
Miller gave birth to the couple’s daughter, Zivah, on May 28. While Raspberry would have automatically been named on the birth certificate as the other parent in a state where gay marriage is legal, the couple has had to hire a lawyer and go through the process of second-parent adoption in Pennsylvania.
“We have a wonderful family and we get wonderful support from our family and friends,” Miller said. “Unfortunately by moving to Pennsylvania, we effectively became unmarried.”
Includes material from The Washington Post