July 9, 2013 at 9:37 am EDT | by Chris Johnson
ACLU unveils trio of post-DOMA marriage lawsuits
Maureen, Mary Beth, gay news, Washington Blade

Maureen Hennessey (right) with her late spouse Mary Beth is a widow plaintiff in a Pennsylvania lawsuit seeking marriage equality (Photo courtesy of ACLU Pennsylvania).

For lesbian widow Maureen Hennessey, winning same-sex marriage in Pennsylvania isn’t just about obtaining Social Security and tax benefits, but the dignity of having her relationship with her late partner of 29 years recognized by her state.

“There are some financial changes that legalizing marriage in Pennsylvania would bring about, but even just the whole respect and relationship being validated, that’s the whole part of it,” Hennessey said. “That’s what really would make a difference.”

Hennessey, 53, is one of 11 plaintiff couples in a federal lawsuit that the American Civil Liberties Union was set to file on Tuesday asking the U.S. District Court for the Middle District of Pennsylvania to overturn the Keystone State’s statutory ban on same-sex marriage. The complaint can be found here.

Building off the win at the U.S. Supreme Court in the case it filed against the Defense of Marriage Act on behalf of lesbian widow Edith Windsor, the ACLU is filing the Pennsylvania lawsuit as part of a group of three new lawsuits that seek to advance marriage equality in different parts of the country.

In addition to the Pennsylvania lawsuit, named Whitewood v. Corbett, the ACLU is also undertaking cases seeking marriage equality in North Carolina and Virginia.

The North Carolina lawsuit is amending the complaint in the case of Fisher-Borne v. Smith, a lawsuit on behalf of six plaintiff couples who previously sought second-parent adoption rights. The ACLU was also set to amend its lawsuit in the North Carolina case on Tuesday, although a copy of the complaint wasn’t immediately available.

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Marcie and Chantelle Fisher-Borne (Photo courtesy of the ACLU)

Chantelle Fisher-Borne, a 38-year-old non-profit consultant and one-half of the lead plaintiff couple in the case, said there are many reasons why she wants her union to her partner of 15 years recognized as a marriage in North Carolina, which just last year passed a constitutional ban on same-sex marriage.

“Some of them involve benefits such as health insurance, or the same issues we have around the parenting things we have with our children, being able to really have the legal recognition we have in our hearts as a married couple,” Fisher-Borne said. “It provides a kind of safety that most couples and parents want and many have but we don’t.”

In Virginia, the lawsuit is still in its planning phases — no plaintiffs have yet been chosen for the case — although the ACLU anticipates filing it later this summer.

James Esseks, director of the American Civil Liberties Union’s LGBT Project, said his organization is filing the lawsuits to add its voice to the seven lawsuits already pending in federal court seeking a nationwide ruling in favor of marriage equality.

“We are adding our voices to those cases in bringing plaintiffs with compelling stories with decades of commitment and the ways in which they’re harmed by not being able to marry,” Esseks said. “And we’re hoping to bring their stories both to the American public and to courts that have a good shot at giving the issues a fair hearing.”

The Pennsylvania lawsuit, which challenges the state’s ban on same-sex marriage on the basis that it violates plaintiffs’ due process and equal protection rights under the Fourteenth Amendment, emphasizes the loss of benefits for the couples and their children.

The 52-page complaint in the Pennsylvania case also draws on the Supreme Court’s decision in United States v. Windsor as legal precedent for why the federal court should strike down state’s ban on same-sex marriage.

“The fact that a discriminatory law is long-standing does not immunize it from constitutional scrutiny,” the complaint states. “And the Supreme Court has made clear that the law cannot, directly or indirectly, give effect to private biases and has expressly rejected moral disapproval of marriage for same-sex couples as a legitimate basis for discriminatory treatment of lesbian and gay couples.”

The plaintiff couples can be broken down into two categories. Six are seeking the right to marry in Pennsylvania, including Deb and Susan Whitewood, who gave their names to the lawsuit. Five other couples — like Hennessey, who lost her spouse Mary Beth McIntyre to lung cancer after having wed in Massachusetts — are looking to have their legal marriages recognized in Pennsylvania.

The couples include lawyers, a truck driver, a doctor, veterans, a stay-at-home mom and retirees. One couple is represented in the lawsuit by their children who are still minors and designated as A.W. and K.W.

Hennessey, who had three children with McIntyre and is expecting a fourth grandchild soon, said she’s particularly seeking Social Security survivor benefits, which are still in question after the DOMA ruling because she lives in state that doesn’t recognize same-sex marriage.

“I’m 53 years old, and Mary Beth was the primary bread-winner in the family,” Hennessey said. “So, her Social Security would be way higher than mine, unless I win the lottery.”

For Marcie Fisher-Bourne, who works for the American Cancer Society, the need for the legal recognition of her union became particularly salient on the day she gave birth to her daughter five years ago. The couple encountered problems even though they were legally married in D.C.

“When I transferred to the unit for recovery at one in the morning, the nurse looks at Chantelle and says, ‘Why is she here? Where is her paperwork?’ Marcie Fisher-Bourne said. “So when you ask, why will it matter here in North Carolina, to me, that’s a really good example. On that day, on the day that our daughter was born, I would not have had to fish through my emergency suitcase to find health care power of attorney papers so my spouse could be beside me when our first child was born. So, yes, it matters.”

And there’s optimism in the air plaintiffs will able to win marriage equality, particularly in the wake of the Supreme Court’s decision finding DOMA unconstitutional. Hennessey predicted the lawsuit is “definitely going to succeed.”

“I don’t think it’ll happen overnight, but I know that the legislators in Harrisburg are probably want to drag their feet as much as possible,” she said. “But we’re going to push it forward, and I think that the people, I think that the population is ready to accept same-sex marriages, and I think that it will happen.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • If and when the ACLU finds plaintiffs in Virginia, it would be a very powerful historical reminder if the plaintiffs there included interracial gay and lesbian couples, as it was Virginia’s now-defunct law banning interracial marriages that was successfully challenged in the U.S. Supreme Court by Richard and Mildred Loving nearly a half-century ago.

    Should the Virginia case have interracial same-sex plaintiffs and reach the Supreme Court, it could put conservative Justice Clarence Thomas on the spot. As the court’s second black justice (after Thurgood Marshall), Thomas is in an interracial marriage of his own. His wife, Virginia, is white — and the Thomases live in the very state where the Lovings’ marriage was not recognized and the couple was even prosecuted.

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