By Rich Lord, Pittsburgh Post-Gazette

PITTSBURGH — There may be no need for a trial to decide whether Pennsylvania’s same-sex marriage ban is constitutional, according to court filings Monday which indicated that the facts aren’t contested, though the law still is.

The plaintiffs, who include a widow, 11 gay couples and two teenage children of one of the pairs, argued in motions for summary judgment that the state isn’t disputing their facts and hasn’t even identified an expert witness, so a judge can toss the ban out without a trial.

“Would I love to have gone to trial? Yes. And I think some of our plaintiffs would have liked to go to trial,” said Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, one of the lead attorneys for the plaintiffs. But, he added, the benefits of having the judge decide it exceed the pluses of holding “largely a one-sided trial.”

“It is undisputed that marriage — as traditionally defined — is a fundamental right,” countered attorney William Lamb, representing state Secretary of Health Michael Wolf and state Secretary of Revenue Dan Meuser, in their own motion for summary judgment. “The United States Supreme Court has never recognized that the fundamental right to marry includes the right to marry a person of one’s choice.”

The case, in which the lead plaintiffs are Deb and Susan Whitewood of Bridgeville, is scheduled for trial on June 9 before U.S. District Judge John E. Jones III of the Middle District of Pennsylvania. If the judge opts to decide the case on the motions, he could do so any time after the May 12 deadline for reply briefs.

A judge’s decision would have the same legal weight as a trial verdict.

If the judge sees some factual question that neither side discerns, he could insist on a trial or a hearing.

The state’s 18-year-old Defense of Marriage Act defines marriage as between a man and a woman.

The ACLU and Hangley Aronchick Segal Pudlin & Schiller filed their lawsuit in July, targeting Gov. Tom Corbett. The filing followed by weeks the U.S. Supreme Court’s decision in United States v. Windsor, which nixed the federal Defense of Marriage Act, but did not mandate state recognition of same-sex marriage.

State Attorney General Kathleen Kane declined to defend against the Whitewood lawsuit, kicking that responsibility to the Office of General Counsel. The plaintiffs agreed to swap Corbett out as a defendant in return for Wolf and Meuser. In November, Jones denied state motions to dismiss the lawsuit.

Walczak said that over five months of discovery the state has gotten documents and depositions from the plaintiffs but hasn’t done much, if anything, to undermine their contentions. He said it has been hard for the state’s attorneys to argue against the couples’ convictions.

“Fredia and I love each other, have lived our lives as if we were married, like any other American couple, and we want the Commonwealth of Pennsylvania to acknowledge that our relationship counts and is respected by the law,” plaintiff Lynn Hurdle was quoted as saying of her life with Fredia Hurdle, on the 84th and final page of their motion. The two Crafton Heights women have been together for more than two decades and have raised several children.

Lamb countered that though the plaintiffs “may disapprove of the interests expressed by members of the Pennsylvania General Assembly when it enacted the amendments to the Marriage Law at issue here, mere disagreement with legislative judgment does not render those interests illegitimate or the law irrational.”

He wrote that legislators in 1996 spoke of “promotion of procreation … child rearing and the well-being of children … tradition” and their concern that “redefining marriage would detrimentally affect Pennsylvania businesses economically.”

The plaintiffs have assembled six experts, all current or former professors, who have prepared reports on the lack of legal protection for gay couples, history of discrimination against homosexuals, history of marriage, viability of same-sex couples and parents, and economic consequences of the ban.

Among those uncontested reports is one by Lee Badgett, an economics professor and specialist in sexual orientation law at the University of Massachusetts Amherst.

Based on the results in other states in which same-sex marriage has been legalized, Badgett estimated that between 7,940 and 11,168 such weddings would occur annually for several years if the ban were lifted here. That would translate to $65 million to $99 million in wedding-related business over three years, and $4.2 million to $5.8 million in resulting taxes, he wrote. That and other losses the state suffers due to its ban “far outweigh” any fiscal benefit the government could claim from the law, he wrote.

Badgett also cataloged the costs the couples bear because the state doesn’t recognize them as married.

“One study estimates that the average same-sex couple in Pennsylvania would pay $812 less in federal taxes if they could marry” and filed jointly, he wrote. The unmarried partners also pay higher state income taxes, may face realty transfer and inheritance taxes that married couples don’t, and can’t get time off to help each other under the Family and Medical Leave Act, he wrote.

“The state has no reason to deny that there is harm to persons who are not able to marry,” said Bruce Ledewitz, a law professor at Duquesne University.

“I think (the state will) have to show that it was not motivated by ill will or by any sort of hostile animus,” said Walczak. That, he said, could be difficult, since “the whole purpose of the law was to not allow a certain group of people to marry.”

Jules Lobel, a University of Pittsburgh law professor, said the state faces “rough sledding.”

“The rational basis test has not proven in the last 10 years or so to be a savior for the states” that are defending bans on same-sex marriage, he said. Courts have tended to rule that “pandering to the prejudices of the citizenry is not a rational basis for legislation.”

Since the Supreme Court decided the Windsor case, 11 federal judges have ruled in favor of plaintiffs demanding that states either legalize same-sex marriage, or recognize gay marriages sealed in other states. None of the circuit courts, though, have yet decided appeals, and Lobel said the issue will finally be decided by the Supreme Court, perhaps as early as next year.

Photo by Guillame Paumier/Flickr