Divorce case in Pennsylvania reaches constiutional question of scope of right to marry

04/06/10 update: Kern v. Taney, slip, op., No. 09-10738 (Pa. Berks County Ct. Com. Pl. Mar. 15, 2010) (summarized here)

A Pennsylvania judge has decided that he can not grant a divorce petition involving two women who married each other in Massachusetts. The state DOMA provides that same-sex marriages validly licensed elsewhere are void. (23 Pa.C.S.A. § 1704) Petitioner Carole Ann Kern claimed that this ban on recognition violated the state and federal constitutions. (Reading Eagle) Her attorney, Lisa D. Gentile, had argued that the right to marriage requires a government restriction to sustain the highest level of constitutional scrutiny, or strict scrutiny. Gentile had also argued that this right extends to same-sex couples, and that the state DOMA fails the test of strict scrutiny.

Berks County Common Pleas Court Judge Scott E. Lash ruled that same-sex couples have no federal or state constitutional right to marry. He found that the constitutional right to privacy does not guarantee a right to marriage for same-sex couples, and that the fundamental right to marry does not apply to same-sex couples. The voidance provision of the state DOMA "represents a reasonable protection and a proper and lawful exercise of the police power of the Commonwealth, which is available to preserve the public health, safety, welfare, and morals of its citizens." The case is Kern v. Taney, No. 09-10738-2, slip op. (Berks County C.P. Mar. 15, 2010) (Legal Intelligencer / AP / Leonard Link)