Same-sex couple asks Erie judge to validate marriage

July 21--Same-sex marriage is legal in Pennsylvania in the wake of the landmark federal court ruling in the Whitewood v. Wolf case in May.

Less clear is the legal status of marriage licenses a Montgomery County official issued to nearly 200 same-sex couples during a brief period in 2013 in the wake of a U.S. Supreme Court ruling that also dealt with gay marriage.

A Lake City couple, Tiffany Jo Titus and Wendy Allison Titus, who obtained their marriage license in 2013 in Montgomery County and were subsequently married by a minister in Erie County in August, have gone to court to ask an Erie County judge to declare their marriage valid.

With the Whitewood decision, a U.S. District Court judge based in Harrisburg overturned key parts of Pennsylvania's marriage law, clearing the way for future same-sex marriages. He also said same-sex marriages from out of state must be recognized.

But the decision did not address the status of same-sex couples who had married with the Montgomery County licenses in 2013 amid an earlier dispute over the state's gay marriage ban.

The Tituses' lawyer, Alison Scarpitti, said because no court has specifically addressed the 2013 Montgomery County marriage licenses, marriages of those like the Tituses remain in "limbo."

Having the Titus' marriage validated would address obvious practical and legal concerns, such as taxes and health insurance benefits, she said.

"At the same time, there is almost a transcendent quality," she said. Equality is "a right, not a privilege. They stood before friends and family and said the same vows everybody else says. In a way it is dehumanizing to say the commonwealth does not recognize that," she said.

The case has been assigned to Erie County Judge Robert A. Sambroak Jr., who has scheduled a hearing for Sept. 15.

Scarpitti said she has notified several state officials of the filing, including the state attorney general and the governor's office. She does not know if anyone intends to oppose her petition. If Sambroak rejects the petition, the Tituses might have to apply for a new marriage license and wed again, Scarpitti said.

The uncertainty surrounding the Montgomery County licenses began in June 2013 when the U.S. Supreme Court struck down the federal Defense of Marriage Act, or DOMA. The American Civil Liberties Union then filed the Whitewood complaint on behalf of several same-sex couples, seeking to overturn Pennsylvania's ban on same-sex marriage.

In July 2013, Attorney General Kathleen Kane said she would not defend Pennsylvania's gay marriage ban. That triggered Montgomery County Orphans' Court Clerk D. Bruce Hanes to begin issuing marriage licenses in Montgomery County to same-sex couples, even though the Whitewood case was not yet decided.

Hanes said his decision was based on the advice of his solicitor, his understanding of the law and Kane's belief that Pennsylvania's marriage law was unconstitutional.

The state Commonwealth Court forced Hanes to stop issuing the licenses in September after the state Department of Health took legal action. In the wake of the Whitewood decision in May, Hanes again began to issue the licenses to same-sex couples.

The ACLU of Pennsylvania on its website reports that litigation is still pending to determine whether the Montgomery County licenses are valid. Even if they are found not to be valid, the couples should be able to reapply for them, the ACLU said.

LISA THOMPSON can be reached at 870-1802 or by e-mail. Follow her on Twitter at twitter.com/ETNthompson.

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