<b><i>BREAKING NEWS:</i></b> First Challenge to Gay-Marriage Ban Headed for Trial

Developments in the law over the last 40 years have undercut the significance of that opinion, Jones ruled.

“We ultimately do not find it controlling due to the significant doctrinal developments in the four decades that have elapsed since it was announced by the Supreme Court,” Jones said.

The more-than-two-dozen plaintiffs who brought the case'”including couples who want to marry in Pennsylvania, couples who want Pennsylvania to recognize their out-of-state marriages, a widow and the children of one couple ' are making claims that the state's version of the federal Defense of Marriage Act violates the due process and equal protection clauses of the 14th Amendment.

“The jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972,” Jones said. “The Supreme Court has decided several cases sinceBaker'which demonstrate that it no longer views constitutional challenges based on sex or sexual identity classifications as unsubstantial.”

Using similar language in their brief in opposition to the motion to dismiss, the plaintiffs argued that'Baker'wouldn't preclude their case from proceeding in federal court because “both equal protection and substantive due process doctrine have undergone a sea change since 1972.”

The plaintiffs are represented by lawyers from the American Civil Liberties Union and Hangley Aronchick Segal Pudlin & Schiller. They issued a joint press release praising the opinion, quoting Mark Aronchick of Hangley Aronchick as saying, “We are delighted that our clients will have their day in court. These couples are married in every sense of the word, except one ' under Pennsylvania law. We are simply asking for the state to recognize their love and commitment.”

Joshua Maus, spokesman for the state's Office of General Counsel, said that the office is considering its options and stressed that there are several steps between now and any potential trial date.

John Culhane, a professor at Widener University School of Law who tracks cases affecting LGBT rights, said that most cases of this nature are resolved on summary judgment.

The judge's opinion, and his lengthier-than-necessary discussion of'Baker'and intervening law, signal that “he sees the claims as weighty,” Culhane said.

The emphasis on that issue and his treatment of the evolution in due process and equal protection jurisprudence is broader than it needed to be, Culhane said, adding, “What that portends for a decision on the merits will be interesting to see.”

In that discussion, Jones said that when'Baker'was decided, “governments could lawfully 'demean [homosexual persons'] existence or control their destiny by making their private sexual conduct a crime,'” quoting from the high court's 2003 decision in'Lawrence v. Texas.

The plaintiffs here filed their suit the month after the U.S. Supreme Court issued its landmark decision gutting the federal DOMA by declaring the definition of marriage as between one man and one woman as unconstitutional.

“In June of this year, the Supreme Court held that a federal statute defining marriage as only between heterosexual couples violated the equal protection and due process rights of same-sex couples who had married in states where same-sex marriage is legally recognized,” Jones said.

“The foregoing demonstrates significant doctrinal developments in the areas of due process and equal protection that eviscerate any utility or controlling effect that defendants posit'Baker v. Nelson'may have relative to the case at bar,” he said.

At a case management conference last month, Jones told lawyers that he'd expect to schedule a trial for some time in 2014 if any of the claims were to survive the motions to dismiss.

According to the opinion, Jones plans to set a trial date at a conference on Nov. 22 in Harrisburg.

In a footnote, Jones said, “In the court's view, it would be inappropriate to decide these significant legal issues in a vacuum, without the benefit of discovery to fully develop the claims and meaningfully inform the court's determination. Such arguments, should defendants elect to raise them, are appropriately reserved for the summary judgment phase of this case.”

Saranac Hale Spencer writes for The Legal Intelligencer, an ALM affiliate of The Matrimonial Strategist.

The first challenge to Pennsylvania's ban on same-sex marriage appears headed to trial now that it has survived motions to dismiss.'

U.S. District Judge John E. Jones III of the Middle District of Pennsylvania rejected the argument advanced by the state officials named as defendants that the suit has to be dismissed under the U.S. Supreme Court's 1972 opinion in'Baker v. Nelson'for lack of subject-matter jurisdiction.'Whitewood v. Wolf,'13-cv-1861.

That short opinion had dismissed an appeal from the Supreme Court of Minnesota that upheld a state law banning same-sex marriages, saying that it didn't violate the due process and equal protection clauses of the Constitution.

Developments in the law over the last 40 years have undercut the significance of that opinion, Jones ruled.

“We ultimately do not find it controlling due to the significant doctrinal developments in the four decades that have elapsed since it was announced by the Supreme Court,” Jones said.

The more-than-two-dozen plaintiffs who brought the case'”including couples who want to marry in Pennsylvania, couples who want Pennsylvania to recognize their out-of-state marriages, a widow and the children of one couple ' are making claims that the state's version of the federal Defense of Marriage Act violates the due process and equal protection clauses of the 14th Amendment.

“The jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972,” Jones said. “The Supreme Court has decided several cases sinceBaker'which demonstrate that it no longer views constitutional challenges based on sex or sexual identity classifications as unsubstantial.”

Using similar language in their brief in opposition to the motion to dismiss, the plaintiffs argued that'Baker'wouldn't preclude their case from proceeding in federal court because “both equal protection and substantive due process doctrine have undergone a sea change since 1972.”

The plaintiffs are represented by lawyers from the American Civil Liberties Union and Hangley Aronchick Segal Pudlin & Schiller. They issued a joint press release praising the opinion, quoting Mark Aronchick of Hangley Aronchick as saying, “We are delighted that our clients will have their day in court. These couples are married in every sense of the word, except one ' under Pennsylvania law. We are simply asking for the state to recognize their love and commitment.”

Joshua Maus, spokesman for the state's Office of General Counsel, said that the office is considering its options and stressed that there are several steps between now and any potential trial date.

John Culhane, a professor at Widener University School of Law who tracks cases affecting LGBT rights, said that most cases of this nature are resolved on summary judgment.

The judge's opinion, and his lengthier-than-necessary discussion of'Baker'and intervening law, signal that “he sees the claims as weighty,” Culhane said.

The emphasis on that issue and his treatment of the evolution in due process and equal protection jurisprudence is broader than it needed to be, Culhane said, adding, “What that portends for a decision on the merits will be interesting to see.”

In that discussion, Jones said that when'Baker'was decided, “governments could lawfully 'demean [homosexual persons'] existence or control their destiny by making their private sexual conduct a crime,'” quoting from the high court's 2003 decision in'Lawrence v. Texas.

The plaintiffs here filed their suit the month after the U.S. Supreme Court issued its landmark decision gutting the federal DOMA by declaring the definition of marriage as between one man and one woman as unconstitutional.

“In June of this year, the Supreme Court held that a federal statute defining marriage as only between heterosexual couples violated the equal protection and due process rights of same-sex couples who had married in states where same-sex marriage is legally recognized,” Jones said.

“The foregoing demonstrates significant doctrinal developments in the areas of due process and equal protection that eviscerate any utility or controlling effect that defendants posit'Baker v. Nelson'may have relative to the case at bar,” he said.

At a case management conference last month, Jones told lawyers that he'd expect to schedule a trial for some time in 2014 if any of the claims were to survive the motions to dismiss.

According to the opinion, Jones plans to set a trial date at a conference on Nov. 22 in Harrisburg.

In a footnote, Jones said, “In the court's view, it would be inappropriate to decide these significant legal issues in a vacuum, without the benefit of discovery to fully develop the claims and meaningfully inform the court's determination. Such arguments, should defendants elect to raise them, are appropriately reserved for the summary judgment phase of this case.”

Saranac Hale Spencer writes for The Legal Intelligencer, an ALM affiliate of The Matrimonial Strategist.