Gay marriage ban to be tested

State attorneys are working to develop a legal brief in response to a federal lawsuit that challenges the commonwealth’s ban on same-sex marriage. A response is due next Monday.

“Our mission is to present a thorough legal argument in the hope that a definitive ruling from the court will bring clarity to this issue,” Pennsylvania General Counsel James D. Schultz said.

The Office of Attorney General typically handles this type of constitutional challenge, but Attorney General Kathleen Kane announced in July 2013 that she would not defend the state’s marriage laws.

This case is not to be confused with the case involving Montgomery County Register of Wills D. Bruce Hanes’ decision to issue marriage licenses to gay couples, which deals mainly with the issue of “who decides” if laws are to be enforced.

Instead, this case alleges that the 1996 Pennsylvania law banning gay marriage violates the civil rights of gay couples. The case was filed by 10 gay couples in July in the U.S. District Court in Harrisburg.

Attorneys from the Office of General Counsel, as well as the Pennsylvania Department of Health, are coordinating the defense. The Office of General Counsel has also hired Chester County lawyer and former Republican Pennsylvania Supreme Court Justice William Lamb to represent the state.

“The Office of General Counsel provides comprehensive legal services to numerous state agencies and executives, but we do not typically defend cases that solely challenge the constitutionality of a statute,” Schultz said. “Who better than a former Supreme Court Justice and his firm to assist in addressing this type of fundamental question?”

Vic Walczak, the ACLU of Pennsylvania’s legal director, is representing the plaintiffs.

A trial date has yet to be set.

— Ted Bordelon