Editors’ Note:  Sidebar
is a new, occasional series exploring the work that Temple Law
faculty members take on outside of the classroom and the impact it
has on our community. 

Temple Law Professor Lee Carpenter recently submitted an expert
report in Whitewood v. Wolf, a case filed by the ACLU of
Pennsylvania to challenge 23 Pa. C.S.A. 1704, known generally as
Pennsylvania’s “marriage exclusion,” which defines marriage as
between one man and one woman.   We sat down with
Professor Carpenter and asked her to explain the issues, the
litigation, and her role as an expert.

TLS:  What is this case about? Why is it important?

Professor Carpenter:  Whitewood v. Wolf is a
direct challenge to Pennsylvania’s refusal to perform or recognize
same-sex marriages.  It was brought by the ACLU, along with
co-counsel Hangley Aronchick Segal Pudlin & Schiller, on behalf
of 12 same-sex couples who either wish to marry in the Commonwealth
or want to have their out-of-state marriages recognized by the
Commonwealth, 2 children of a same-sex couple, and a widowed
same-sex spouse.  It’s an important case because right now,
thousands of same-sex couples in Pennsylvania are denied basic
legal protections for their families based solely on their sexual
orientation.  That is harmful to couples and to the children
that they are raising in many ways; I tried to outline some of
those ways in my report.

TLS:  What about the Supreme Court’s decision in
Windsor? Didn’t that settle this issue already?

Professor Carpenter:  No.  Windsor decided
that the federal government could not refuse to recognize valid
same-sex marriages for federal purposes.  It didn’t squarely
address the question of whether states have to perform those
marriages in the first place, or recognize valid same-sex marriages
from other states.  So the Windsor decision created a
state of affairs that looks like this: If you can get a same-sex
marriage in your home state, the federal government will recognize
it for all federal purposes.  If you can’t get married in your
state of residence, but you get a same-sex marriage in a different
state, the federal government will recognize that marriage for some
purposes, but not all.  The question of whether states have to
perform or recognize same-sex marriages is still up in the air, and
that’s what Whitewood is trying to address.

TLS:  What are some of the state-based rights that
Windsor couldn’t address?

Professor Carpenter:  There are literally hundreds of
state-based rights and obligations that accompany marriage. 
My expert report outlined a few of the more serious state-law
effects of Pennsylvania’s ban on same-sex marriage.  For
example, if a member of a same-sex couple dies without a will,
their surviving partner will inherit nothing, no matter how long
they’ve been together – or even if they have an out-of-state
marriage license.  And even if that person does write a will
and leaves their entire estate to their partner, the surviving
partner will be taxed on their inheritance by the Commonwealth at a
15% rate, instead of the 0% inheritance tax rate that surviving
spouses receive. 

As another example, one of the most important things that people
tend to overlook when thinking about marriage is that it gives you
access to divorce court; in the event that things don’t work out,
married couples can go through a legal process of unwinding their
relationship that is specifically built to be fair and equitable,
and to leave both ex-spouses in a financially stable
position.  Same-sex couples don’t have the ability to access
Pennsylvania divorce courts, so they are left with a terrible,
financially destabilizing mess in the event that things don’t work
out.

TLS:  Tell us about this litigation.  What’s been the
process so far? Where does it stand now?

Professor Carpenter:  Right now, the parties are both in
the process of requesting that the court resolve the matter through
summary judgment, rather than having a trial.  At this point,
there is probably no need for a trial, since the Commonwealth has
chosen not to put on any expert witnesses to refute the expert
testimony of the plaintiffs’ experts.  If the court agrees
that no trial is required, we may see a final determination by the
trial court sooner than we thought – perhaps within the next couple
of months.

TLS:  You were asked to provide an expert opinion. 
How did you come to be an expert on these issues? What work have
you done in this area?

Professor Carpenter:  Before I started teaching at Temple,
I was the legal director of a nonprofit that provided legal
services to LGBT Pennsylvanians.  I spent several years trying
to help same-sex couples understand their legal rights and navigate
a system in which their relationships could not be legally
recognized.  The ACLU and Hangley asked me to provide an
expert witness report because they thought that, based on my
experience, I would be able to authoritatively explain to the court
what challenges Pennsylvania same-sex couples face when they are
not permitted to marry.

TLS:  What are the possible outcomes of this
litigation?

Professor Carpenter:  Well, the plaintiffs will either win
or they won’t, but within that realm of possibility there are a few
more specific possible outcomes.  The complaint alleges sexual
orientation discrimination, sex discrimination, and a violation of
the plaintiffs’ fundamental right to marry.  The court could
decide for or against the plaintiffs on any of those
theories. 

But with regard to the sexual orientation discrimination claim,
the court will also have to make a decision about what level of
scrutiny to apply, because that is not currently clear in our
circuit.  The court could decide that sexual orientation
discrimination should be subjected to heightened scrutiny, and that
under that level of scrutiny, the Commonwealth’s ban on marriage
can’t be upheld.  It could decide that sexual orientation
discrimination should only be subject to rational basis review, but
that even under that deferential standard, the ban can’t be
upheld.  Or, the court could decide that only rational basis
review applies, and that under that analysis, the Commonwealth
should be allowed to prohibit same-sex marriage. 

It’s also important to remember that there are several other
cases in Pennsylvania pending in both state and federal
court.  So while Whitewood is a very important case,
it’s not the only one of its kind, so we’re really in a state of
uncertainty in Pennsylvania right now.  It’s an exciting time
to be doing this work, and I’m very glad that I had the opportunity
to contribute to what I think is a really groundbreaking case.