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.
Gay marriage should be legal. Gay divorce, illegal.
Paul,
I don’t care what anything is called verbally. I am referring solely to the legal side, which is the written contract. The marriage contract is unique in all its complex aspects. To try and create a parallel universe and call it something else makes absolutely no sense, either legally or economically.
Back when I worked in the engineering department on the Titan II program, there were notices posted on every bulletin board warning people to create a memo for everything. The exact wording of the bulletin board notice was: “If it is not in writing, it does not exist.” That was before the internet was invented and there were no such things as email. Our memo forms were about half the size of a sheet of paper, with an original and two carbons. The original white copy to the recipient, the yellow copy kept by the sender and the pink copy to the main office for filing. .
Same thing applies to getting married. The primary purpose of a marriage license is so the state can keep a record in their vital statistics. Additionally, if the marriage is on record, then a whole array of benefits become available to the couple, including immigration status, insurance (all kinds), hospital visitation, inheritance rights, and if you live in Idaho, the right to be buried in a National Cemetery with a spouse. Seems that Idaho has a law giving them part control of the National Cemetery; said law disallowing married same-gender couples to be buried together.
My main point is that we already have the whole marriage thing in writing, established in both statutory and case law, and there is zero reason to create another kind of marriage. Just because it makes some people nervous is no reason to deny a statistically significant portion of the general population an important contractual right available to everyone else. Methinks the “anti” folks spend way too much time worrying about how LGBT couples have sex.
Some comic cracked a joke on TV about legalizing gay marriage. He said, “There is no reason we straight people should not allow gays to be as miserable as the rest of us.”
Chuck – would you like to whip me out one of those complex marriage contracts?
Chuck – the same effort to add LGBT to the married eligible is the same effort needed to keep them off the roles. Not sure where you think it takes more effort unless you think they are going to be storming the gates of the court houses.
I do not know how much work you do with couples, but socially, like groups hang together. Singles hang out with singles, marrieds hang out with marrieds and the engaged are somewhat in between. When you change your social status you move to a new social group, often losing friends from the first group. And when that status changes (divorce, death) you move back to the first group. When couples divorce their fiends are forced to take sides, often. Now we add LGBT couples to the mix. Who do they hang with? Other couples who are LGBT? Straight couples? Mixed bag? And when they break up, and they will and are, who gets the friends. Now this is an inconvenience to any marriage, trying to decide which partner in the dissolving marriage to side with. And now we have added a new layer of married couples who we can worry about.
There was a black comedian who stated that blacks would not be truly equal until they stated being convicted of white collar crimes. And he was right. To riff on his statement, LGBTs will not be equal until they can divorce and pay child support. Now, this is going to mess with one of Sheriff Joe’s favorite activities, his annual roundup of dead-beat dads on Father’s Day. Who is he going to arrest now?
Shall not suffer the child of the Plural Families to be as second class as to the child of the married
Darren – not sure how it is where you live, but an oral contract is Arizona is good for 1 year, if the terms of the contract are longer, you have to write it down.
I fail to understand all the mental and logical gymnastics people undertake in order to keep people from getting married who want to get married. Marriage laws provide a unique kind of contract with both obligations and privileges that other forms of unions don’t have. Period.
Based on my observations on this and other opinion blogs, it seems that most of the anti-gay marriage group are the same cohort of people who are in favor of small government. How is it, that the same small government folks want to create a complex set of new rules in a herculean effort to keep LGBT couples from getting married. From simply going down to the courthouse or the church/synagogue/temple of their choice and get married legally. That mechanism is already completely in place, has the legal bugs worked out, and is time tested. Why then, do the antis want to create more legal complexity and more layers of bureaucracy when they can give the LGBT community the right to use the legal system already in place. It is not logically possible to believe both things at once.
In all of these discussions, some of them quite heated, I have yet to hear a clear explanation from anyone as to exactly how straight marriages will be destroyed–or even inconvenienced–by same sex marriage being legalized. I hear the claims all right, but not a single logical explanation as to how straight unions will suddenly be vaporized if the gay couple down the street gets married.
Chuck,
According to some, oral contracts are a threat to written contracts. If oral contracts are allowed to become pervasive it will be a slippery slope and soon people can enter into binding oral contracts with jackalopes and wheat stalks. God mandated written contracts when He sent Moses down with the Ten Commandments, which of course were written in stone. Because of which, oral contracts are an abomination and therefore invalid.
Darren Smith wrote: “God mandated written contracts when He sent Moses down with the Ten Commandments, which of course were written in stone. Because of which, oral contracts are an abomination and therefore invalid.”
Darren, I’m not sure what your point is, but the foundation of it is off. There was both a written and an oral law given by Moses. The oral law is called the Talmud. The written law is the Torah. Jews venerate and ardently study both forms of the law.
Chuck wrote: “I hear the claims all right, but not a single logical explanation as to how straight unions will suddenly be vaporized if the gay couple down the street gets married.”
I have made it clear in other threads that my marriage is not affected by a gay couple getting married down the street. The problem is the long term effect of changing the definition of marriage in law, and the effect of that upon future generations.
Monte,
anyone else getting married or not getting married does not impact YOUR marriage in any way, shape or form.
I don’t see why some feel the need to become involved in the management of others’ love lives. Seems like quite a headache at the very least.
There is something to be said about just letting your troubles go.
Darren Smith wrote: “I don’t see why some feel the need to become involved in the management of others’ love lives. Seems like quite a headache at the very least.”
I don’t think anybody wants to become involved in the management of others’ love lives. The Institution of Marriage really does not have much to do with romantic love. It does have to do with agreement to love through action, duties, and responsibilities. It is a rational and legal structure for determining relationships, duties, and obligations, primarily due to the natural law of the man and woman coming together in coitus and producing children. There was a time when just the act of coitus between a man and woman demanded they be immediately married. Our hedonistic society has drifted far away from that perspective.
For the last decade, a political group has fought to destroy the Institution of Marriage through specious arguments. Granting gay marriage is changing the definition of marriage, and that ultimately leads to its destruction. If you don’t value the institution of marriage, you will support gay rights because that is the selfish response. It is no skin off your nose, so why not just support it. It is much more difficult to be supportive of a value that does not affect your individual life but will affect society in general as well as future generations.
I shared this video before, but here it is again. This is a long time gay activist named Masha Gessen acknowledging that fighting for gay marriage involves lying, and that the real intent is to change the institution of marriage by actually destroying it. She was married to another woman in Massachusetts. She wants her children to be allowed to have five parents. I think the real headaches will happen to future generations who adopt the gay philosophy. If you watch this video and think otherwise, you might need to explain why because to me this conclusion seems rather self evident in this audio clip.
http://youtu.be/n9M0xcs2Vw4
Our marriage is “Husband and Wife” a change of marriage to mean husband or wife and Our marriage is no longer OUR Marriage
RTC: We agree. My post indicated that there are religious denominations that perform same sex ceremonies, so marriage would be an option. And if the government only performed civil unions for couples, regardless of gender, then it is treating everyone the same.
The civil union would have the same status as a marriage; the only difference would be that the term “marriage” would be used only for religious ceremonies. But “husband” and “wife” would apply to civil unions and marriages.
It was Rabbi Shmuley who wrote about this idea a while ago. What I liked about it was that it both preserved religious freedom and seemed to solve the “separate but equal” issue. Of course, there could be problems with its implementation.
Karen:
Forgive me if someone pointed this out already but many heterosexual couples opt to get married outside the purview of any church, preferring the proverbial justice of the peace, or other duly vested official, to do the honors. Many gay couples are choosing that route.
In addition, there are some religions that do allow gay marriage, and their ministers are free to perform marriage vows for gay couples. Allowing even a single religion to perform gay marriages would upset the compromise you propose.
A further complication is that tax and estate laws have been built up around the marital relationship, as have the structure of insurance policies and the notion of beneficiaries.
So it’s not as simple as dividing provinces.
DavidM:
Men and women are biologically different and yet the law treats them identically in essence. Ironically, women were denied suffrage on the basis of their biological difference.
RTC wrote: “Men and women are biologically different and yet the law treats them identically in essence. Ironically, women were denied suffrage on the basis of their biological difference.”
Men and women have equal standing before the law and equal opportunities in life. Homosexuals, bisexuals, and heterosexuals all share this same legal equality. It has never happened in this country, that when applying for a marriage license, nobody checks to see whether you are gay or not, and then denies the marriage license based upon the fact that you are gay.
Suffrage is much more complex than what you put forward here in claiming women were denied the vote based upon their biological differences. Originally, some of the colonies did allow women to vote. There was nothing in our Constitution that restricted any State from allowing women to vote until the Fourteenth Amendment was ratified after the civil war. There it prohibited States from restricting the right to vote for any males 21 years of age and older. Prior to this time, some of the voting was restricted to property owners only, meaning many males were excluded. Women who were property owners could vote. So I fail to see consistency in your perspective.
Paul,
That’s ok, even Jack Benny had bad days, Rochester.
Um…..David, I don’t mean to embarrass you or anything, but YOU were the one who said “Domestic Partnerships and marriage” were “basically the same.” Those were YOUR words.
Chuck wrote: “David, I don’t mean to embarrass you or anything, but YOU were the one who said “Domestic Partnerships and marriage” were “basically the same.” Those were YOUR words.”
More poor reading and understanding on your part. I never said that. I said that the Supreme Court in California said in their opinion that the Domestic Partnership laws there confer virtually the same benefits.
Furthermore, in another post I reiterated that there is more to marriage than just benefits. I have repeatedly said they are not the same. The point is that arguing that someone has no compassion for same sex couples, that for some reason he hates them and wants them not to receive benefits, is a red herring for California couples since they can get those benefits through Domestic Partnership.
David sez: “That is the crux of the problem, the destruction of the institution of marriage.”
******************************************************
There you go again with a logical fail. Whose marriage would be destroyed? Yours? I don’t think so. Let’s try again? Anyone here whose marriage would be destroyed by two people who love each other getting married? Anyone? Bueller….Bueller? Nope.
Chuck Stanley wrote: “There you go again with a logical fail. Whose marriage would be destroyed?”
Read more carefully, please. I said the INSTITUTION of marriage would be destroyed. Of course, you probably already do not see marriage as an institution despite the requirement of law to obtain permission from government through the form of a license.
There also is an effect upon the understanding of marriage by future generations. They will not see traditional marriage as the best vehicle for creating children and a family. Instead they will have a romanticized perception that perceives marriage simply as a contract between two people who love each other. Their attitude will likely be, why bother with it? And as society leaves the traditional family structure, we become more uncivilized and barbaric in our approach to life, leading to a diminished society which will easily be outcompeted if another country decides to define marriage properly. Expect more domestic disputes and infighting among young people as they become confused about the duties and obligations that should be assumed when have sexual relations and creating children. Just watch an episode of Jerry Springer for an idea of the discord that happens with a woman who has five children through five different fathers with some fathers claiming to be the real father and other fathers claiming not to be the father. The woman then complains about who she wants in her household and who she doesn’t want. Of course the taxpayer gladly picks up the tab to pay for all these households because the rules say if you are not married to someone (meaning not in relationship with someone who is expected by law to take responsibility for providing for you), you get money from government to provide for the needs of your children. It will not take too many generations to bankrupt such a system as the consumers exceed the producers.
Or vote GOP no witch in control.
Paul,
I just thought it was funny, like friends don’t let friends vote republican.
Keebler – some people are funny and some are not. You are currently in the latter category.
Spinilli,
You’re right. I try my best.
Keebler, You’re absolutely correct. The Dems are truth personified. They care, work hard and they’re smart. Rep lie all the time. They are heartless, lazy, and stupid. Do you realize what a caricature you can be @ times?
Thank you, sir.
Nick S:
I found your comment in the spam machinery. It’s above.
Just thought of this: if you don’t like the truth, the GOP may be for you.
Keebler – even as the Democratic commander-in-chief racks up another four Pinocchios for one of his almost daily lies, you want to hammer on the GOP as liars.