HOW HE SEES IT Pennsylvania looks to define marriage

The gay and lesbian movement has reason to celebrate. Last week the United States Senate voted against a constitutional amendment to ban gay marriage, despite the support of President Bush, the Vatican, Senate Majority Leader Bill Frist and a majority of the Senate membership.
The celebration may be short lived. While Congress failed to constitutionally define marriage, Pennsylvania's effort to do so is just getting started. Last week the Pennsylvania House of Representatives passed an amendment to the state constitution that would define "marriage" as a union between a man and a woman.
Same sex marriage began to appear prominently in the news several years ago as a number of state legislatures and appellate courts began addressing the complicated issues confronting same-sex couples.
On Feb. 4, 2004, Massachusetts became the first state to grant the right of marriage to same-sex couples. Other states have granted same-sex couples the right to join in civil unions. A civil union is not recognized as a legal marriage, but extends certain rights to same sex couples. Vermont, Connecticut, Hawaii, Maine and California have civil unions and New Jersey has a new domestic partnership law. Massachusetts remains the only state to grant unto same-sex couples the right to be married.
Although Massachusetts is leading the way in providing for same-sex marriages, 19 states, including Ohio, have adopted constitutional amendments banning the practice and 43 states have enacted statutes banning same sex marriage. Pennsylvania is one of those 43 states. Former Gov. Tom Ridge signed a same-sex marriage ban, the Defense of Marriage Act, in 1996. That same year President Clinton signed the Federal Defense of Marriage Act, which defines marriage as a union between a man and a woman.
The current law in Pennsylvania defines marriage as a civil contract between a man and a woman, which is the "strong and longstanding public policy" of the Commonwealth of Pennsylvania. Pursuant to the Federal Defense of Marriage Act, Pennsylvania is under no obligation to recognize same sex marriages consummated in another state.
In Pennsylvania trying to get around the Defense of Marriage Act has some consequences. A public official who issues a license to a same sex couple or performs a same sex marriage could be subject to criminal prosecution, punishable by up to two years in prison and a $5,000 fine.
Legislative action
Although some Pennsylvania lawmakers have cited activist judges as the rationale for a constitutional amendment, the appellate courts in Pennsylvania have consistently found that only the legislature can amend the marriage law. The Commonwealth Court has held:
"We have no doubt under our marriage law it is impossible for two persons of the same sex to obtain a marriage license. If, under the guise of expanding the common law, we were to create a form of marriage forbidden by statute, we should abuse our judicial power: our decision would have no support in precedent, and its practical effect would be to amend the marriage law -- something only the legislature can do."
The law as it currently exists begs the question, if Pennsylvania has a statute banning same sex marriage, why is the legislature seeking a constitutional amendment? Republican state Rep. Scott Boyd, said the amendment would ensure that the existing Defense of Marriage Act would not be susceptible to legal challenge. However, there has been no significant challenge to the law in its 10 year existence.
In Pennsylvania a constitutional amendment is not quick or easy. An amendment must pass the General Assembly in each of two successive two-year sessions, then be passed by the voters through a statewide referendum, not to mention the legal challenges that could derail the amendment process.
Would voters support such a referendum? According to a recent ABC News poll only 40 percent of Americans support amending the U.S. Constitution to ban same sex marriages, but 58 percent support states enacting laws to make such unions illegal. Is the Pennsylvania legislature on the right track? Voters will have to wait awhile before they have a chance to decide. It is unlikely that an amendment question could be on the ballot before 2008.
X Matthew T. Mangino is the former district attorney of Lawrence County, Pennsylvania and a feature columnist for the Pennsylvania Law Weekly.