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In legal brief, Pennsylvania governor argues he can’t be sued in federal court

LGBT Legal Cases Marriage equality Marriage Equality Trials

Pennsylvania state sealIn a brief filed in a district court in Pennsylvania this week, a lawyer for the state’s Republican governor, Tom Corbett, argued that the governor cannot be sued in a federal court with respect to the state’s law banning marriage equality.

Citing the U.S. Constitution’s Eleventh Amendment, Corbett’s lawyers argue that the federal constitution “prohibits suits against States–and, by extension, state officials–in federal court without their consent.”  In addition, the brief asserts that the plaintiffs in the suit have not articulated a federal question that the court must answer, arguing that the Supreme Court’s 1972 decision in Baker v. Nelson, “which holds that there is no federal subject matter jurisdiction over claims like those raised in this case–is binding on this Court.”

In making its arguments surrounding the Baker decision, in which the Supreme Court chose not to hear a challenge to Minnesota’s refusal to grant a same-sex couple’s request for a marriage license for lack of a “substantial federal question,” Corbett argues that the Pennsylvania lawsuit (known as Whitewood v. Corbett) presents the same questions.  The brief cites the 2012 decision by a Hawaii district court in Jackson v. Abercrombie upholding the state’s marriage equality ban because of Baker, as well as a similar decision out of Nevada in a case called Sevcik v. Sandoval.

The plaintiffs in the Pennsylvania case have argued that Baker should no longer be seen as controlling precedent in light of the Supreme Court’s decision in U.S. v. Windsor this month, which invalidated Section 3 of the Defense of Marriage Act.  Refuting that argument, Corbett’s lawyers write:

Windsor did not hold that a fundamental liberty interest in marriage extends to same sex couples; it did not hold that states must allow or recognize same sex marriages; it did not hold that the issue of whether same sex marriage should be permitted is subject to strict scrutiny; and it did not hold that reserving marriage to one man and one woman violates the Equal Protection Clause of the Fourteenth Amendment. Moreover, and more importantly, Windsor did not overrule the long-standing precedent of Baker. In fact, the Supreme Court majority in Windsor does not even address or mention Baker.” [emphasis in original]

In its conclusion, Corbett’s brief urges the court not to allow the plaintiffs a “full-blown trial” but instead suggests that the case be decided only as a matter of law.  By relying on Baker as binding precedent, the brief argues, the court should dismiss the claims against Gov. Corbett and Pennsylvania Department of Health Secretary Michael Wolf in their entirety.

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