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On an otherwise-ordinary Wednesday morning this past June, however, the legal status of same-sex marriages—both in Pennsylvania and elsewhere—and federal recognition of those marriages, teetered on the precipice of change. After two suspense-filled mornings waiting for the United States Supreme Court to announce its opinions in Hollingsworth v. Perry (challenging the constitutionality of California’s Proposition 8 and same-sex marriage generally) and United States v. Windsor (deciding the constitutionality of Section 3 of the federal Defense of Marriage Act (“DOMA”), we waited to hear whether, to borrow from Justice Ginsburg, our nation’s “skim-milk marriages” would be made whole, further diluted, or end up somewhere in between. Here in Pittsburgh, supporters of marriage equality gathered downtown—enormous rainbow flag in tow— poised to either “riot or rejoice” the decisions. Coincidentally, or perhaps not, Wednesday, June 26, 2013 was ten years to the date since the Supreme Court had stricken down laws criminalizing sodomy, in an opinion emphasizing respect for individuals’ private sexual lives and choices. The Court did not make us wait long for the news. Shortly after 10 AM, we learned that two 5-4 votes had transformed our nation from one in which no same-sex marriage was valid in the eyes of the federal government, and where same-sex couples could not marry in California, to one in which at least some lawfully-married same-sex couples were deemed equal to their opposite-sex counterparts for federal purposes. What’s more, close to one-third of U.S. residents would soon be living in a state permitting, and performing, same-sex marriage. Many rejoiced that the days of skim-milk marriages were finally over. Not so fast. Certainly, DOMA’s timely death and the impending return of marriage equality to California gave cause to celebrate—particularly when considering the predominatelyconservative makeup of the Supreme Court. But, for those living in states, like Pennsylvania, that continue to prohibit same-sex marriage, and which do not recognize same-sex marriages validly entered into elsewhere, the celebrations were muted by the sobering reality that such marriages continue to be of the skimmilk variety. That Pennsylvanians, Arizonians, and Missourians in same-sex relationships need

drive only a few hours—maybe even just a few minutes—to lawfully wed, means little to those whose own state treats them as second-class citizens, excluding them from an array of state marital protections, rights, and responsibilities. Also souring the taste of victory is the uncertainty remaining over whether married same-sex couples living in states not recognizing such marriages are nevertheless deemed “married” for various federal purposes.

IF THE SUPREME COURT AGREES WITH THE ARGUMENT THAT PENNSYLVANIA’S LAWS PROHIBITING SAME-SEX MARRIAGE DISCRIMINATE ON THE BASIS OF SEX, THERE IS LITTLE DOUBT THAT ALL SIMILAR STATE LAWS WILL ULTIMATELY BE DEEMED UNLAWFUL. On the one hand, we know that all American citizens are now eligible to sponsor their (lawful) foreign same-sex spouse for a green card, regardless of where the couple will reside. Less clear is whether one partner in a same-sex married couple that lives in a state not allowing same-sex marriage is entitled to collect his or her spouse’s social security benefits. Although social security law has traditionally looked to the law of the wage-earner’s state of residence to determine the validity of one’s marriage, rather than to the law of the state where the marriage

was celebrated, President Obama has voiced his conviction that all lawfully-married samesex couples should receive the same federal benefits. For now, however, couples living in states not recognizing same-sex marriage must wait for the various federal governmental agencies to speak, and for their own state governments or courts to act. In Pennsylvania, the wait may not be long. On July 9, 2013, Pennsylvanians sent a clear message that it’s time to overturn the state’s 17-year-old law prohibiting same-sex marriage and join the ranks of those states permitting the same. Represented by attorneys from the American Civil Liberties Union (ACLU), and on behalf of all same-sex couples in Pennsylvania, (including more than 6,000 same-sex couples raising children), twenty-three Pennsylvania citizens filed Whitewood v. Corbett in a federal trial court in Harrisburg. The plaintiffs are ten same-sex couples, one of the couples’ two teenage daughters, and one widow. Of the ten couples, four have already legally wed and now seek Pennsylvania’s recognition of their marriage. The remaining six couples seek the ability to lawfully marry in Pennsylvania, the state they call home. Whitewood appears to be the first post-DOMA/ Prop 8 legal challenge to a state law forbidding same-sex marriage. The complaint alleges that Pennsylvania’s laws excluding samesex couples from marrying and refusing to recognize the marriages of same-sex couples celebrated in other states unconstitutionally deprive same-sex couple of the fundamental right to marry, discriminate on the basis of sexual orientation, and discriminate on the basis of sex (i.e. a man is not permitted to do the same thing a woman may do— marry a man—and vice versa). Key language from Justice Kennedy’s Windsor opinion is woven throughout the Whitewood complaint, most notably, the notion that same-sex Pennsylvania couples are denied a “dignity and status of immense import,” which, in turn, “makes it even more difficult for their children to understand the integrity and closeness of their own family.” Should Whitewood ultimately end up before the Supreme Court, it is the Court’s treatment of this third argument, sex discrimination, to which scholars will pay closest attention. In contrast to the uncertainty over the precise “level of review” (“rational basis,” “intermediate/


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