Momentum continues to grow across the country as another federal judge, this time in Pennsylvania, struck down a state ban on same-sex marriage. The decision of U.S. District Judge John E. Jones III brings the number to 19 states where such marriages are now legal. Such court-ordered changes do not necessarily reflect as significant change in public opinion though a recent polls shows a record 55 percent in support of this basic right. Twelve district courts have now struck down such laws. The case is Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68937 (May 20, 2014) (M.D. Penn.).
The Pennsylvania Marriage Laws define “marriage” as “[a] civil contract by which one man and one woman take each other for husband and wife.” 23 Pa. C.S. 1102. “Marriage between persons of the same sex” is addressed as follows:
It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage [*3] shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.
The attorneys did an excellent job in picking a group of diverse plaintiffs, as noted by the Court:
As a group, they represent the great diversity of the Commonwealth of Pennsylvania. They hail from across the state, making their homes in Allegheny, Dauphin, Centre, Northampton, Delaware, Chester, and Philadelphia Counties. They come from all walks of life; they include a nurse, state employees, lawyers, doctors, an artist, a newspaper delivery person, a corporate executive, a dog trainer, university professors, and a stay-at-home parent. They have served our country in the Army and Navy. Plaintiffs’ personal backgrounds reflect a richness and diversity: they are African-American, Caucasian, Latino, and Asian; they are Catholic, Baptist, Methodist, Jewish, Quaker, Buddhist, and secular. In terms of age, they range from a couple in their 30s with young children, to retirees in their 60s. Many of the couples have been together for decades.
The court uses the marriage oath as headings like “For Better Or Worse,” “For Richer for Poorer,” “In Sickness And In Health,” and “Until Death Do Us Part.”
23 Pa. C.S. 1704.
The problem with such polls of course is that they do not reflect strong support and opposition in geographical areas of the country. Opponents of same-sex marriage are not going to react well to the language of the opinion. Jones wrote “[w]e are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” It was a resounding victory for equal rights, but as a judicial change as opposed to a political change it will likely infuriate opponents further. Nevertheless, federal judges appear to be coalescing around a view that these laws are facially unconstitutional.
Jones followed the growing trend of courts to adopt a broad interpretation of United States v. Windsor, 133 S. Ct. 2675 (2013), even though it did not recognize an equal protection right to marriage:
As Justice Scalia cogently remarked in his dissent, “if [Windsor] is meant to be an equal-protection opinion, it is a confusing one.” Windsor, 133 S. Ct. at 2706 (Scalia, J., dissenting). Although Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not representative of deferential review. See id. (Scalia, J., dissenting) (observing that “the Court certainly does not apply anything that resembles [the rational-basis] framework” (emphasis omitted)). The Court did not evaluate hypothetical justifications for the law but rather focused on the harm resulting from DOMA, which is inharmonious with deferential review. See, e.g., McGowan v. State of Md., 366 U.S. 420, 425-26 (1961) (explaining that, under rational-basis scrutiny, legislatures are presumed to have acted constitutionally “despite the fact that, in practice, their laws result in some inequality,” and “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it”). Indeed, far from affording the statute the presumption of validity, Windsor found DOMA unconstitutional because “no legitimate purpose overcomes the purpose and effect to disparage and to injure.” Windsor, 133 S. Ct. at 2696 (emphasis added); see SmithKline Beecham Corp. v. Abbot Labs., 740 F.3d 471, 480, 483 (9th Cir. 2014) (examining “what the Court actually did” in Windsor and concluding that the decision requires heightened scrutiny) (citation and internal quotation marks omitted).
Notably on Monday, an Oregon federal court struck down the state’s same-sex marriage ban.
The bios and decision can be reviewed here.
John Edward Jones III happens to be a Republican appointed by President George W. Bush. He previously attracted national attention for his ruling in Kitzmiller v. Dover Area School District case, where he ruled that a state law requiring the teaching of intelligent design in public schools was unconstitutional.
What-ever the nation decides as equality for the hundreds of thousands of children being raised in the plural families across America can be extended to the children of same sex couples and that will be OK . .
D I will respond to the sentence that to me personally is the mpost lack of empathy , i.e. that civil union and domestic partnership is just fine. Your reduction to my relationship, for if I recall you are married and evidently (I forget if you have said) do have children. I never married. I am in my 60’s so to you it would be just fine for me to be denied the ceremony and legal status that marriage gives. By the way my parents were first cousins, illegal in one state when they married so they got married in another. My father and grabdfather died of ALS. Pray G-d I don’t develop it but I could carry the gene, have only a 50% chance of developing it but I could pass that horrendous gene and possibility on to a 4th generation. Better I guess I would have been denied the right of marriage then choose childlessness so that I did not potentially pass this horror on further down the line.
You see things as long as they do not have to go past your own nose. Your lack of empathy in this discussion is appalling. You would choose for many to be denied the benefits that you have had through a specific legal ceremony.
It is no longer understood as an institution establishing a human relation that cannot be changed without an act of law.
But David, it has been changed by law whether you like or approve of it or not.
leejcaroll wrote: “You would choose for many to be denied the benefits that you have had through a specific legal ceremony.”
I’m not sure what you mean by lack of empathy. In California, the Domestic Partnership basically has all the benefits that a marriage has. That’s what the the Supreme Court there declared. What benefits are you lacking?
leejcaroll wrote: “It is no longer understood as an institution establishing a human relation that cannot be changed without an act of law.”
I’m not sure if you understood what I meant by this. It is a reference from common law (Maynard v. Hill) that points out that marriage is more than a contract. When a man and woman marry, it is the formation of a family relation, hence traditionally the woman taking the name of the man. Unlike other contracts, it cannot be dissolved simply the two parties deciding to change their minds and dissolve the contract. It takes an act of law to dissolve it. That’s why they must go to court and file for divorce. Not so with other contracts.
When this concept is approached by Natural Law Theory, it leads one to conclude that we are going in the wrong direction on this. It took hundreds of year for civilized man to elucidate the concept of marriage that we have had handed to us, of one man and one woman, coming together in a union that cannot be broken except by death. The direction now is to undo this concept and lead us backwards toward becoming uncivilized. Clearly, as you say, it is no longer understood this way, and that is because rational understanding has been replaced by emotionalism over a concept of equality that really does not apply to this situation. Men and women are not equal in the sense of being the same. They are equal in status, equal before the law, they have equal opportunity, but to pretend that they are equal in all aspects of life and biology and then claim that because they are equal it matters not whether it is two men who marry instead of a man and a woman is to build a case upon faulty premises.
And in Idaho where a Federal Judge did the same, we have an incumbent Governor who will likely get reelected that wishes to be buried under that ash heap of history. He touts himself as a Libertarian(sic), yes indeed, a libertarian that believes in freedom as long is it is on his terms. Hopefully Idaho will be dragged out of that ash heap by a Federal Judge and we can leave our “libertarian” Governor burried.
Have seen many not same couples not produce children together. As to the question the same should be asked then of opposite sex gender. If brother cant marry sister then brother cant marry brother, just makes sense.
Karen S,
Being English I’m surprised to hear that polygamy is legal here. Cos it definitely isn’t. There may be some crazy relationships within some communities but we do not allow polygamy.
Karen W
Very exciting. At this rate, the SCOTUS need not tip a toe back in these waters. There has been no victory for opponents when it mattered.
Next up: a rapid-fire consensus on the need for war crimes tribunals. Hey, when I was a teenager, the thought of coming out was impossible to say nothing of getting hitched. One can dream, and times do change. Prolly have to wait for Poppy CIA Bush to pass at this point.
Karen S, we already have a legal way for more than two people to join together. They’re called corporations.
Schulte:
“Should the federal courts decide those for us?”
Yes. Especially when the majority in a state are violating people’s human and civil rights. By your reasoning, we could just let the states go back to Jim Crow.
David, see if you can guess which of these quotes is about interracial marriage, and which is about gay marriage. Follow the link for the answers.
“They cannot possibly have any progeny, and such a fact sufficiently justifies” not allowing their marriage.
This relationship “is not only unnatural, but is always productive of deplorable results … [Their children turn out] generally effeminate … [their relationship is] productive of evil.”
State legislators spoke out against such an “abominable” type of relationship, warning that it will eventually “pollute” America.
“It not only is a complete undermining of … the hope of future generations, but it completely begins to see our society break down … It literally is a threat to the nation’s survival in the long run.”
This type of marriage is not allowed “because natural instinct revolts at it as wrong.”
This type of marriage is “regarded as unnatural and immoral.”
This type of relationship is “distasteful to our people, and unfit to produce.” Such marriages would lead to “a calamity full of the saddest and gloomiest portent to the generations that are to come after us.”
“Although there is no verse in the Bible that dogmatically says [this marriage should not occur], the whole plan of God as He has dealt with [humanity] down through the ages indicates that [this] marriage is not best for man.”
“A little-reported fact is that [these types of relationships] are far more violent than are [insert single-race or heterosexual] households.”
“I believe that the tendency to classify all persons who oppose [this type of relationship] as ‘prejudiced’ is in itself a prejudice,” a psychologist submitted to the court. “Nothing of any significance is gained by such a marriage.”
http://www.mediaite.com/online/bet-you-cant-tell-the-difference-between-these-actual-anti-interracial-and-anti-gay-marriage-quotes/#10
David if I recall the post has had this disagreement with you before, if same sex marriage is treated differently because of the biological difference, and the biological difference is I have to presume because of the ability to procreate then it should be illegal under your logic, for those who cannot have children for reasons, of health, age, infertility for them to also for these people also to get married.
leejcaroll – From the ACLU website:
“The lawsuit alleges that Pennsylvania’s Defense of Marriage Act and refusal to marry lesbian and gay couples or recognize their out-of-state marriages violates the fundamental right to marry as well as the Equal Protection Clause of the Fourteenth Amendment.”
What they are not telling you is that the common law cases which define marriage as a fundamental right do so only by connecting it to reproduction. It is based on dictum in the Skinner case dealing with sterilization by the state. Nobody would argue against the idea that it is a fundamental right to reproduce, and because marriage is the institution by which that is done, the right to marry cannot be infringed upon by the State.
Same sex unions have nothing to do with reproduction, so they are taking certain concepts out of context and misapplying them. Same sex unions also are a right, but they should not fall under traditional marriage law which were passed without any concept of same sex unions. Same sex unions rightly fall under contract law and the right of association. So the acceptance of same sex unions under the label marriage causes a change to the definition of marriage. It is no longer understood as an institution establishing a human relation that cannot be changed without an act of law. It also is no longer understood as a powerful civil vehicle for reproduction. Rather, marriage now becomes simply a mere contract of association between two individuals who love each other.
In answer to your suggestion that sterile couples should not be allowed to marry: There are other reasons for marriage besides reproduction that have to do with gender diversity. It involves the concept that males and females are different from one another and complement one another when coming together in marriage. There is the sense of a completion of creation if you will, that male and female are actually one whole being, a unified whole that is greater than the sum of its parts.
Traditionally, marriage has been understood as being based upon these two principles:
1) Gender Diversity
2) Reproduction.
I’d advise against marriage for those who are not going to reproduce. Civil unions and domestic partnership should be fine for such situations. Nevertheless, such relations should not be outlawed either. The primary reason being legal parsimony. Most people probably have an innate sense that such marriages, between say two very old individuals, are less of a marriage than the ideal one between young individuals who reproduce and create additional family relations. Nothing is wrong with that sense.
The negative effect of this legal direction toward embracing same sex unions as equivalent to opposite sex unions is that it will create a wider schism in society between rationalists who understand the traditional institution of marriage and the emotional activists who are changing our laws about marriage. People assume that the gap will narrow and unity will be reached, just as it did when anti-miscegenation laws were abolished, but that will not happen because the rationale is different. With the anti-miscegenation laws, there was no need to change the definition of marriage. There was simply the enlightenment that racial division in marriage was immoral. It had nothing to do with political activists seeking government’s imprimatur for their sexual behavior.
To the extent that dishonesty of one form or another is actually possible, and to the extent that dishonesty imposed on people may result in people becoming deceived, how is it possible to actually and accurately measure “the will of the people”?
Which people?
Was the will of the German people the genocide of gypsies, Jews, Jehovah”s Witnesses, autistic people, people identified as being mentally ill or as having mental illness?
If, as I am wondering, everyone has a tad of mental illness or is at least slightly mentally ill, who, among us, is so perfectly free of any trace of dishonesty or deception as to be genuinely capable of sorting out which people deserve to live and which people deserve to die?
Oh! Sorry!
My limited sense of biology informs me that all people surely deserve to die, unless it can be shown that one or more people now ordinary humans, has already lived for an infinitude of eternities in the same physical body.
If I am totally accountable to some external authority for every aspect of my life, who controls my life when I am not controlled by that external authority?
J. Brian – opinion changes. If opinion changes then the will of the people changes. Elections are the will of the people, at least some of them. Should the federal courts decide those for us?
The entire reasoning that same sex marriage is an equal right is flawed from the start. Same sex unions and opposite sex unions are different biologically, and it is foolish for any laws to treat them identically. The trend apparently will continue because society has become more licentious, and as we do, we become less rational and more emotional about the subject. In the end, the long standing institution of marriage will be destroyed, being reduced to a mere contract between parties. Marriage will never have the same meaning to society that it once did. The repercussions of this will lead to a decline in civilized society. The building block of a strong society, the family, will be mostly destroyed as people choose more and more to have children out of wedlock. Soon the obituary will be written about the Decline and Fall of Western Civilization.
Apparently Schulte is confused as to what a right is…
“if only 19 states have same-sex marriage and it is taking federal judges to overrule the will of the people in the states, then it is hardly a “basic right” as you put forth.”
A whole bunch of states made people use different bathrooms and water fountains for years because “the will of the people in the states” wanted it that way. Those people had a right to swim in the public pool, to use the same bathroom, the same waiting room for transporation…
The “will of the people” in the states allowed slavery. Does this mean that slaves didn’t have the right to be free?
The “will of the people” in the states prohibited interracial marraige (and almost half of Mississippi Republicans would outlaw interracial marriage right now) for many years. Did those mixed race couples not have the right to marry?
“I think it should be the will of the people of the state, not some federal district judge who decides.”
So you disagree with Brown v Board of education, then?
I like Rabbi Shmuley’s take on same sex marriage. He states that the government should get out of the marriage business, and only do civil unions. Leave “marriage” to religious institutions, and do not interfere with how they define it. But allow civil unions between two consenting adults.
But here is my problem. I DO oppose plural marriage/polygamy. Such a practice, if it became wide spread, would mathematically leave fewer partners for men. This is why they had the Lost Boys in Yearning For Zion and other places where this was practiced. Older men with more standing in the temple had more arranged marriages, and the young boys were forced out. I have other issues with polygamy, as well, and find it to inevitably be unfair to women.
If we change the definition of marriage from one man to one woman to one person to one person, what is to say it would not set a precedent for the number of individuals to change, too? In the UK, they already allowed polygamy, and it is common to see a man trailed by his group of wives, as well as arranged marriages.
Jonathan – if only 19 states have same-sex marriage and it is taking federal judges to overrule the will of the people in the states, then it is hardly a “basic right” as you put forth. And there are some legal commentators who think that these district court judges have gotten the law wrong and are going to be overturned, which is going to be a hell of a mess for everybody.
Let me say, before everyone piles on, that I support same sex marriages, however, I think it should be the will of the people of the state, not some federal district judge who decides.
The shrinking of the crowd who need others to do as they do to feel confident that they are in the right, god’s grace, on the money, etc. is always a delight.
Funny how it is the party of “fiscal responsibility” and “smaller government” that keeps wasting taxpayer dollars to get into the most private aspects of our lives,
Lol. But you still have to wait three days.
Glad to be living in a state where same sex marriage is legal because a democratic legislature approved the bill and a democratic governor signed it.
19-0. Do I see a trend? According to the religious crowd it’s just an anomaly. Silly me!