The State of LGBT Rights in Pennsylvania

Brian Sims, Esq. on 06/07/2009

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Staff Counsel for Policy & Planning at the Philadelphia Bar Association

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Issues of LGBT rights and marriage equality have taken a front row seat in news cycles lately. While a few years ago, major initiatives across the country saw states amending their constitutions to prevent marriage equality, the tide now seems to be turning.

It was 2003 when Massachusetts joined a handful of foreign countries and provinces in recognizing same-sex marriage. But the movement toward state recognition of same-sex marriage rights seemed slow until 2008, when the momentum of the presidential election seemed to revive Democrats and political activists around the country.

Last October, Connecticut became the second state to recognize full marriage for same-sex couples -- expanding its civil union statute, which had been in effect since 2005. This was followed by the surprising state Supreme Court decision in Iowa six weeks ago, granting full marriage equality as well.

Joining those three states will be Vermont, where marriage equality goes into effect on September 1, and Maine, where it goes into effect in mid-September when the legislature adjourns. Additionally, on June 4^th, the New Hampshire Senate and House passed a marriage bill that was signed by the state’s governor, despite his opposition to marriage equality.

Importantly absent from this list is California, which saw full marriage equality for a brief time after its state Supreme Court also ruled that denying same-sex couples the right to marry violated its state constitution. In a well-known referendum passed last November by California voters (and bolstered by an unprecedented amount of money and campaigning by the Mormon Church), the state lost marriage equality. The referendum was upheld last month.

Several states in the U.S. do offer some type of legal recognition and protection for same-sex couples. New Jersey, for example, offers unions providing for the same rights and protections of marriage. To lesser degrees Maryland, Oregon, Washington, Maine, Hawaii, Colorado -- and now Washington, D.C. and Nevada -- offer some type of legal recognition and protection as well.

The question for most Pennsylvanians has been: What type of legal protection does the Commonwealth offer for same-sex taxpayers, and how have our legislators approached the issue of marriage equality? The answer is not surprising to the hundreds of thousands of gay activists across our Commonwealth. Sadly, Pennsylvania is one of only a handful of states in the Northeast that offers virtually no statewide protections to gay people and LGBT families.

This despite the fact that all 27 of the Fortune 500 companies based in Pennsylvania include sexual orientation, and despite the fact that 14 municipalities within the Commonwealth have ordinances preventing discrimination based on sexual orientation or sexual identity (source: Equality Advocates of Pennsylvania, the only statewide LGBT advocacy group in Pennsylvania).

In fact, the Pennsylvania Human Relations Act provides absolutely no protections for sexual orientation, gender identity, or gender expression. That’s in direct contrast to 20 states that have amended their civil rights laws to protect against discrimination in housing, employment and public accommodations, including three neighbors: New York, New Jersey and Maryland.

That’s why House Bill 300 was introduced earlier this year by Rep. Dan Frankel (D-Allegheny) with unprecedented support. An effort to bring Pennsylvania up to date in protecting its citizens and to make Pennsylvania more attractive to employees and employers, the bill was voted out of the State Government Committee through the work of Committee Chair Babette Josephs (D-Philadelphia) and the deciding vote of local State Representative Brendan Boyle (D- Philadelphia/Montgomery).

Unfortunately, perhaps due to Pennsylvania’s budget crisis, combined with strong support and lobbying by supporters of marriage discrimination, the bill has since languished in the General Assembly. It is not likely to see a vote until the fall.

While supporters are confident that they can work to receive majority support in the State House, the State Senate is led 30-20 by Republicans, and a similar bill at the Senate level is not likely to receive enough support to pass.

On April 30, the Philadelphia Bar Association overwhelmingly passed a resolution in support of HB 300 and in support of Pennsylvania’s LGBT families. This resolution, which had the backing of the Public Interest Section, the LGBT Rights Committee and the Civil Rights Committee, noted that existing Pennsylvania law provides basic legal protections against discrimination on the basis of race, color, religion, ancestry, age, national origin, handicap or disability, education and the use of a guide dog, but not “sexual orientation” or “gender identity or expression.”

Additionally, the resolution states that the Philadelphia Bar Association has “a long-standing history of support for equal treatment under the law for all citizens of the Commonwealth; and, specifically, of support for equal rights for LGBT persons.”

Increasingly important on the local front is the introduction of two pieces of legislation regarding marriage equality in Pennsylvania. Despite a 1996 law which defined marriage as solely between a man and a woman, several weeks ago State Senator John Eichelberger (R-Blair) of western Pennsylvania introduced an amendment to Pennsylvania’s constitution that would ban gay marriage. Such an amendment must pass both the State Senate and State House in two consecutive sessions before being sent to the voters in a statewide ballot.

A week later, State Senator Daylin Leach (D- Delaware/Montgomery) made clear his intentions to introduce legislation before the Senate that would legalize same-sex marriage and bring marriage equality to all Pennsylvanians.

Supporters of Leach do feel that his bill will bring much-needed attention to the estimated one million gay Pennsylvanians who currently do not have a right to marry, while also showing legislators statewide that Sen. Eichelberger’s proposed constitutional amendment is anti-family and anti-Pennsylvanian. Yet most also believe that neither bill has a strong chance of succeeding.

In the end, at least in terms of legislation, marriage equality for all Pennsylvanians is several years away. In the meantime, the struggle for Pennsylvania to join those states that recognize their responsibility to protect the rights of all their citizens continues. Thus, the vote on HB 300 will be watched closely by activists across this state and the country.