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Sidebar: Professor Lee Carpenter on Marriage Equality Litigation in PA

Editors' Note:  Sidebar is a new, occasional series exploring the work that Temple Law faculty members take on outside of the classroom and the impact it has on our community. 

Temple Law Professor Lee Carpenter recently submitted an expert report in Whitewood v. Wolf, a case filed by the ACLU of Pennsylvania to challenge 23 Pa. C.S.A. 1704, known generally as Pennsylvania's "marriage exclusion," which defines marriage as between one man and one woman.   We sat down with Professor Carpenter and asked her to explain the issues, the litigation, and her role as an expert.

TLS:  What is this case about? Why is it important?

Professor Carpenter:  Whitewood v. Wolf is a direct challenge to Pennsylvania's refusal to perform or recognize same-sex marriages.  It was brought by the ACLU, along with co-counsel Hangley Aronchick Segal Pudlin & Schiller, on behalf of 12 same-sex couples who either wish to marry in the Commonwealth or want to have their out-of-state marriages recognized by the Commonwealth, 2 children of a same-sex couple, and a widowed same-sex spouse.  It's an important case because right now, thousands of same-sex couples in Pennsylvania are denied basic legal protections for their families based solely on their sexual orientation.  That is harmful to couples and to the children that they are raising in many ways; I tried to outline some of those ways in my report.

TLS:  What about the Supreme Court's decision in Windsor? Didn't that settle this issue already?

Professor Carpenter:  No.  Windsor decided that the federal government could not refuse to recognize valid same-sex marriages for federal purposes.  It didn't squarely address the question of whether states have to perform those marriages in the first place, or recognize valid same-sex marriages from other states.  So the Windsor decision created a state of affairs that looks like this: If you can get a same-sex marriage in your home state, the federal government will recognize it for all federal purposes.  If you can't get married in your state of residence, but you get a same-sex marriage in a different state, the federal government will recognize that marriage for some purposes, but not all.  The question of whether states have to perform or recognize same-sex marriages is still up in the air, and that's what Whitewood is trying to address.

TLS:  What are some of the state-based rights that Windsor couldn't address?

Professor Carpenter:  There are literally hundreds of state-based rights and obligations that accompany marriage.  My expert report outlined a few of the more serious state-law effects of Pennsylvania's ban on same-sex marriage.  For example, if a member of a same-sex couple dies without a will, their surviving partner will inherit nothing, no matter how long they've been together - or even if they have an out-of-state marriage license.  And even if that person does write a will and leaves their entire estate to their partner, the surviving partner will be taxed on their inheritance by the Commonwealth at a 15% rate, instead of the 0% inheritance tax rate that surviving spouses receive. 

As another example, one of the most important things that people tend to overlook when thinking about marriage is that it gives you access to divorce court; in the event that things don't work out, married couples can go through a legal process of unwinding their relationship that is specifically built to be fair and equitable, and to leave both ex-spouses in a financially stable position.  Same-sex couples don't have the ability to access Pennsylvania divorce courts, so they are left with a terrible, financially destabilizing mess in the event that things don't work out.

TLS:  Tell us about this litigation.  What's been the process so far? Where does it stand now?

Professor Carpenter:  Right now, the parties are both in the process of requesting that the court resolve the matter through summary judgment, rather than having a trial.  At this point, there is probably no need for a trial, since the Commonwealth has chosen not to put on any expert witnesses to refute the expert testimony of the plaintiffs' experts.  If the court agrees that no trial is required, we may see a final determination by the trial court sooner than we thought - perhaps within the next couple of months.

TLS:  You were asked to provide an expert opinion.  How did you come to be an expert on these issues? What work have you done in this area?

Professor Carpenter:  Before I started teaching at Temple, I was the legal director of a nonprofit that provided legal services to LGBT Pennsylvanians.  I spent several years trying to help same-sex couples understand their legal rights and navigate a system in which their relationships could not be legally recognized.  The ACLU and Hangley asked me to provide an expert witness report because they thought that, based on my experience, I would be able to authoritatively explain to the court what challenges Pennsylvania same-sex couples face when they are not permitted to marry.

TLS:  What are the possible outcomes of this litigation?

Professor Carpenter:  Well, the plaintiffs will either win or they won't, but within that realm of possibility there are a few more specific possible outcomes.  The complaint alleges sexual orientation discrimination, sex discrimination, and a violation of the plaintiffs' fundamental right to marry.  The court could decide for or against the plaintiffs on any of those theories. 

But with regard to the sexual orientation discrimination claim, the court will also have to make a decision about what level of scrutiny to apply, because that is not currently clear in our circuit.  The court could decide that sexual orientation discrimination should be subjected to heightened scrutiny, and that under that level of scrutiny, the Commonwealth's ban on marriage can't be upheld.  It could decide that sexual orientation discrimination should only be subject to rational basis review, but that even under that deferential standard, the ban can't be upheld.  Or, the court could decide that only rational basis review applies, and that under that analysis, the Commonwealth should be allowed to prohibit same-sex marriage. 

It's also important to remember that there are several other cases in Pennsylvania pending in both state and federal court.  So while Whitewood is a very important case, it's not the only one of its kind, so we're really in a state of uncertainty in Pennsylvania right now.  It's an exciting time to be doing this work, and I'm very glad that I had the opportunity to contribute to what I think is a really groundbreaking case.

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