HARRISBURG, Pennsylvania — Lawyers for Gov. Tom Corbett's administration are urging a state judge to uphold Pennsylvania's ban on gay marriage by throwing out a lawsuit brought by more than two dozen same-sex couples that challenges its constitutionality.
Attorneys for Health Secretary Michael Wolf filed a brief Tuesday in Commonwealth Court, opposing the lawsuit brought by 28 same-sex couples who obtained marriage licenses from a suburban Philadelphia court clerk last year.
They drew distinctions between the case and last year's landmark gay marriage ruling by the U.S. Supreme Court, saying the ruling did not say states must allow or recognize same-sex marriage or say it would be a constitutional violation to limit marriages to between a man and a woman.
"Same sex marriage is not deeply rooted in our nation's history so as to be implicit in the concept of ordered liberty and, therefore, cannot be considered a fundamental right," the attorneys argued, adding that a majority of states still limit marriages to between a man and a woman.
"The very recent developments among a minority of states do not transform same-sex marriage into a 'deeply rooted' historical and traditional right," the state's lawyers said.
The Pennsylvania suit is one of several court challenges to the ban.
Alexander Bilus, who represents the couples who filed the lawsuit, called the administration's briefs unconvincing and said his side would produce a response for the court. Bilus said judicial decisions that have been generated in the wake of the United States v. Windsor case that resulted in the landmark ruling have tended to support his clients' position.
"Windsor stands for the proposition that a state law like Pennsylvania's marriage law is based on an animus against a particular group, and for that reason violates both the United States and the Pennsylvania constitutions," Bilus said.
The filing by the Corbett administration was a brief in support of its preliminary objections as it attempts to have the case thrown out at an early stage. The plaintiffs have several weeks to respond. A trial date has not been set.
The government's lawyers said that the Windsor case concerned the New York law that permits same-sex marriage and that the section of the federal Defense of Marriage Act the Supreme Court declared unconstitutional was on grounds that "the federal government failed to follow New York's definition of marriage."
"While New York, by its definition of marriage, chose to afford same-sex couples specific protection and to recognize same-sex couples as validly married, the Pennsylvania General Assembly chose instead to preserve the traditional meaning of marriage," they argued.
The plaintiffs obtained marriage licenses last year from Bruce Hanes, an elected court clerk in Montgomery County, before a state judge ordered him to stop the practice. Hanes had issued 174 licenses between the time when the Windsor case was decided in June and the state court's order in September. He is appealing that decision.