I’m not a lawyer so I want to open this up to any lawyers in the audience to comment. How strong of a case does the ACLU have?
Chris Potter has a good first pass at some of the legal questions involved:
That’s why, from almost the moment Kennedy’s ruling was handed down, advocates on both sides of the issue expected follow-up litigation. The case being filed today is the first in the wake of Windsor. “We like to be ahead of the curve, says Vic Walczak, legal director of the Pennsylvania ACLU.
Walczak says the lawsuit takes tacks. On the one hand, it argues that gays and lesbians should be considered a “protected class” — a legally defined group who are entitled to special consideration because of historic prejudice against it. When laws affect such classes, courts are allowed to review those measures with “heightened scrutiny” — a tougher standard. But Walczak says that even if the court declines to consider homosexuality as a special category — the way it considers race — “There’s still no justification for this kind of discrimination. There’s no rational basis for banning same-sex marriage.”
The lawsuit, for example, observes that Pennsylvania already allows adoption by same-sex couples, and that judges “routinely grant adoptions to same-sex couples, recognizing that the adoptions are in the best interest of the child.” (One of the couples filing the suit, in fact, has adopted children.) Thus, the suit argues, “Any assertion that the Commonwealth does not consider same-sex couples equally effective parents cannot be credited given its own conduct.”
“I think Kennedy just couldn’t quite wrap his mind around the concept that marriage is a constitutional right,” says Walczak. Even so, he says, the majority opinion “comes awfully close to affirming what we need.” And with polls showing gay-marriage becoming increasingly accepted — even in famously hidebound Pennsylvania — Walczak says “we’re hoping to ride the wave of public opinion [in favor of marriage equality]. When this case is ripe for Supreme Court review in three or four years, it wouldn’t surprise me if Justice Kennedy gets there.”