HARRISBURG – Pennsylvania’s governor, its chief legal officer and its health secretary are asking to be released as defendants in a federal lawsuit seeking to overturn the state’s gay-marriage ban.
In papers filed Monday in U.S. District Court in Harrisburg, Gov. Tom Corbett’s legal team argued the U.S. Constitution provides state officials immunity from being sued in federal court without their consent. The governor’s lawyers also contend that Corbett and Health Secretary Michael Wolf should be dismissed as defendants because of a 1972 Supreme Court ruling that says the federal courts lack jurisdiction over state marriage laws.
In a separate filing, lawyers for state Attorney General Kathleen Kane argued she should not be a defendant because she is not enforcing the law.
In addition to Corbett, Kane and Wolf, two county officials are named in the lawsuit.
Lawyers in the case are scheduled to meet today with Judge John E. Jones III to discuss scheduling matters, including the timing of a trial.
Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, which is helping represent the plaintiffs, said Tuesday the latest defense motions amount to “nibbling around the edges” of issues crucial to gay couples in the state.
“We expect that the issue of whether our clients’ love and commitment deserves equal respect under the law will get to trial,” he said.
The federal lawsuit, filed in July on behalf of 23 men, women and children seeking to overturn the law, was the first in a growing number of legal challenges. At issue is a 1996 amendment to Pennsylvania’s marriage law that defines marriage as a civil contract between “one man and one woman.”
Thirteen states and the District of Columbia, representing about 30 percent of the U.S. population, have legalized gay marriages. Every other state in the Northeast allows same-sex marriage except New Jersey, which allows civil unions.
Kane, a Democrat who took office in January, has said she believes the gay-marriage ban violates the state and federal constitutions and she refused to defend it in court. Lawyers in the attorney general’s office are representing Kane in the federal case.
The Republican governor’s Office of General Counsel has hired a private legal team, headed by former state Supreme Court Justice William Lamb, who is being paid $400 an hour for his services.
The federal case is separate from a proceeding in Commonwealth Court in which the Department of Health is trying to stop a court clerk in Montgomery County, outside Philadelphia, from issuing marriage licenses to same-sex couples.
Corbett has been criticized in recent days for comparing gay marriage to marriage between siblings.
Corbett was asked last week in an interview with WHP-TV in Harrisburg about an August court filing in which his lawyers compared the marriage of gay couples to the marriage of children because neither can legally wed in the state.
“It was an inappropriate analogy, you know,” he told the interviewer. “I think a much better analogy would have been brother and sister, don’t you?” Same-sex marriage advocates condemned the comments.
Reporters repeatedly asked Corbett about the controversy Tuesday during an impromptu news conference after touring a Caterpillar Inc. facility in York, but he said he has already apologized and declined to discuss it further.
“I don’t make apologies just for the sake of making apologies,” he said. “It was heartfelt and I can’t control whether somebody accepts it or not.”