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.
david,
my money is on Mike Appleton.
David says:
“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.”
This is not the most specious thing you’ve ever said, but it’s close. Only fifteen states allowed women to have full voting rights.
The issue for the Woman’s Suffrage Movement around the turn of the last century until it culminated with the passage of the 19th Am was discrimination on the basis of a biological difference, the same reason you want to discriminate against gay couples.
RTC wrote: “The issue for the Woman’s Suffrage Movement around the turn of the last century until it culminated with the passage of the 19th Am was discrimination on the basis of a biological difference, the same reason you want to discriminate against gay couples.”
You seem stuck on the concept of biology being an inappropriate basis for analyzing relationships. Many companies does not give men maternity benefits because biologically, they do not get pregnant. The NFL teams tend to hire more blacks than whites, because biologically, blacks are better athletes. Are these examples of discrimination wrong because they are based upon biological differences? I don’t think so.
What you fail to acknowledge is the distinct biological difference between normal sexual relations between a man and a woman, and that kind of sexual activity that occurs between two members of the same gender. Same sex couples cannot achieve coitus, and because traditional marriage is based upon coitus, same sex couples must change the definition of marriage in order to be included in it. What you support is basically theft and perversion of the law in order to claim that you are a good person who does not discriminate based upon a person’s sexual behavior. You would allow the hijack of thousands of years of jurisprudence because of a decade long fad of activism promoting sexual deviancy. I do not consider that wise.
What if I want to change the definition of marriage so that it does not include anything to do with sex? Maybe I just want to garner some of the benefits, so I argue that it is unfair for the law about marriage to discriminate against me and someone with whom I want to have a long term platonic relationship. At what point does marriage cease to be marriage? I think marriage ceases to be marriage once it has nothing to do with coitus.
Gallup Editor-in-Chief Frank Newport, gives the latest Gallup numbers on same gender marriage. The report was posted yesterday, showing that 55% of Americans support same-sex marriage. That is the highest on record so far. These numbers reflect Americans’ changing opinions on gay marriage.
This video was also posted yesterday with Dr. Newport giving the report himself.
https://www.youtube.com/watch?v=gtI7br12psU#t=74
Link below is to the Gallup report of May 21, which includes trend lines and breakdown of the demographics.
http://www.gallup.com/poll/169640/sex-marriage-support-reaches-new-high.aspx
I think a better term would be “same gender marriage” instead of “same sex marriage.”
And the 19th Amendment should be changed from:
to
I think a better term would be same gender marriage.
Paul Schulte
Dredd – and what does that have to do with anything. I spent my entire life with educated people. One of the things I learned about Ph.D.s is that they actually know a lot about a little. And a little about some things.
==============
And I am sure that the scientist (you don’t trust scientists) who told you that you have a genetic defect / ADD also mentioned that such defects make you a little smarter than scientists, Phd folk, and everyone else.
That is why you can’t read long comments.
Yeah, that’s the ticket.
Dredd – I am not sure if ADD is a genetic defect, although it is possible, I was actually speaking of another one, which I will not mention, mostly to annoy you.
I was actually referring to the 30 minute video you had posted. Some long posts I do read, some I find that after the first paragraph or so I am disinterested, so I stop and move on.
None of my defects make me smarter than anyone. Although, from my personal experience, I know that I am smarter then some Ph.Ds. I also know from personal experience that there are people smarter then me. However, that makes no difference. I know that the professors in my Masters program were generally terrified to have me in their classroom. They never knew what question I would ask that day that might make them look bad.
You are right, I do not trust scientists. However, my distrust has only come in the last ten years or so. And it saddens me.
Paul,
Regarding your last three comments in this thread. Do you have a point relevant to the discussion?
Chuck – don’t we get to change the thread as we want. Isn’t like a real conversation? Don’t conversation ebb and flow through different subjects? Each of my comments was directed to a comment someone else made, including you. BTW, if a proverb is wrong, it is wrong.
The views of those who insist that recognition of same-sex marriages will destroy the “institution” of marriage reflect continuing confusion regarding the distinction between marriage as a religious rite and marriage as a legal relationship. The interest of the state is solely in the latter.
“Our law,” wrote Blackstone,” considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law; the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience… . And, taking it in this civil light, the law treats it as it does any other contracts.”
As is the case with many lawyers, I am a notary public. In that capacity I have performed a number of marriages over the years. In no instance have I presumed to call down the blessings of the Almighty on the happy couple. I have not anointed them with holy oil or declared their mutual pledges indissoluble except by God. I have instead gathered the necessary witnesses, confirmed the validity of the marriage license, recited the required language and filed the paperwork in accordance with Chapter 741 of the Florida Statutes. The result is the creation of a civil union with a specific set of rights and obligations dictated by statutory and common law.
That the law grants the clergy the same right to perform marriages does not mean that the state has endowed marriage with a sacramental character. It merely means that priests and ministers, as well as county clerks, are authorized to solemnize the relationship by law. And if and when a marriage is terminated, the same law prescribes the methods to effect the termination and defines the legal consequences.
The legal relationship of marriage does not implicate religious freedom in any manner. All religions are free to set their own rules and no religious institution has ever been compelled by the state to perform a marriage ceremony. And extending these contract rights to same-sex couples will have no effect other than a salutary one for those same-sex couples who wish to enter into the contract. It is high time to ratchet down a hysteria a notch.
Mike – Blackstone died in 1780. I think we have moved on.
Mike Appleton wrote: “The views of those who insist that recognition of same-sex marriages will destroy the “institution” of marriage reflect continuing confusion regarding the distinction between marriage as a religious rite and marriage as a legal relationship. The interest of the state is solely in the latter.”
This certainly does not describe my perspective. I do not consider marriage as a religious rite at all because I am not tied to any religion. I recognize that religions create their own doctrine and rules about marriage, but that is of little concern to me. The Council of Trent decided that a marriage is only valid if done by a priest. I don’t feel any compulsion to recognize this doctrine of the Catholic church.
I consider the institution of marriage from the perspective of Natural Law, considering things like the biology of the persons involved, the property rights, the rights, duties and obligations to children, to each spouse, and such as that. My interest is in discovering through rational thought what marriage is and how the law ought to consider it, regulate it, and oversee it.
You brought up a quote from Blackstone. I really do appreciate that because he is a favorite read of mine and I consider him to be highly influential in the minds of the framers of our country (howbeit, it should be noted that Blackstone objected to the right of the American colonies to rebel against England and seek independence). It also gives me opportunity to comment on the specific quote you offer, which is often quoted out of context in an effort to mislead readers.
William Blackstone wrote:
“Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law; the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience… . And, taking it in this civil light, the law treats it as it does any other contracts.”
The problem I have with the use of this quote is that it cuts out an important part that makes it clear that his government is one that recognizes spiritual courts in addition to the civil courts. The civil courts recognize and rely upon the ecclesiastical courts.
Here is the excised sentence:
“The punishment therefore, or annulling, of incestuous or other unscriptural marriage, is the province of the spiritual courts; which act pro salute animæ.”
In other words, his point was the the civil authorities bowed to the religious authorities concerning the nature of who can enter into the contract, what punishments are appropriate, what conditions are appropriate for annulment, etc. Remember that this civil authority sometimes executed people for violating church law. It is hardly appropriate to yank his statement out of context and apply it to a government like ours which has modified our form of government so that it does not recognize the authority of any church concerning marriage. Much of Blackstone’s commentary following this quote explains the manner in which civil law relies upon ecclesiastical law. Here is just one quote that gives a clear example of this:
“These canonical disabilities being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII. c. 38, it is declared, that all persons may lawfully marry, but such as are prohibited by God’s law;4 and that all marriages contracted by lawful persons in the face of the church, and consummated with bodily knowledge, and fruit of children, shall be indissoluble. And, because in the times of popery, a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money, it is declared, by the same statute, that nothing, God’s law except, shall impeach any marriage, but within the Levitical degrees;5 the furthest of which is that between uncle and niece.”
So what he means by the quote offered is clearly that civil courts merely treat marriage as a contract, even though it is much more than a contract. They defer to the ecclesiastical authority to define it. Such is not very workable in our system of government because our Constitution does not recognize the power of ecclesiastical courts. In rejecting religious authority, it is of utmost importance, if we have any hope of our government succeeding, to recognize Natural Law and craft our laws accordingly.
Paul,
Having lived all my life next to the Mississippi, Arkansas and Missouri rivers, I can assure you they are not stopped. They can be diverted….for a time. But never stopped. The water will always flow. Always.
Nice try, but no cigar. Beside the point anyway, because unless you are more concrete-minded than I believe you are, then you understood exactly what was meant by the proverb.
Chuck – the vaunted Corps of Engineers has stopped the Salt River that used to flow into and through Phoenix then feed the Colorado. Except during times of extreme winter rains when the dams are likely to overfill, the river bed is dry as a bone. When they release the water from the dams, it has taken out bridges, freeways, streets, etc. I once saw a water storage tank floating down the flooded Salt River, which was running at its historic level.
David,
Poor Lydia, does not even get honorable mention. And you better not mess with Ruth.
LOL. Mr Keebler, you are so right!
North Dakota the last state not sued over its same-sex marriage ban – – North Dakota Attorney General Wayne Stenehjem filed a legal opinion confirming that the state does not recognize out-of-state same-sex marriages, allowing a woman [man] married to another woman [man] to come to North Dakota and marry a man [woman] without divorcing her [his] wife [husband].
That relaxing of the bigamy law – the expansion of the marriage right which dovetails nicely with Mr. Turleys position will be a hard one to overcome without attempting to having that expansion ruled unconstitutional –
Shall not suffer the child of the Plural Families to be as second class citizens
Paul, David, et al.
I see a great deal of dancing around the core issue. From my vantage point, the crux of the matter is that a fantastic amount of energy, time and money are being expended to keep same-gender couples from getting married.
There is an old saying, “You can’t push the river.” The corollary to that is, “You can’t stop the river.” After all the money is spent on lawyers. After all the hyperbole and frustration. Just as desegregation was inevitable. Just as miscegenation laws were thrown out by the courts, same-gender marriage is coming. Nationwide, not just in a few states.
Marriage won’t be destroyed. The institution of marriage won’t be destroyed; in fact, it won’t even be dented. As a basic truth, the institution of marriage is being damaged more by those who would prevent committed and loving couples from getting married. No one in the LGBT community is asking for “special privileges.” They are asking for EQUAL rights. They want the right to marry, to be left alone, to be able to use the rest room without being arrested or assaulted, and to be treated as equals. No better and no worse than anyone else.
Seems to me there are a lot of pressing social problems which need addressing far more than trying to deny a sizable percentage of the population equal access to a segment of the legal system they are currently denied.
That is not going to be the case much longer. Get used to it. This is the 21st century. When people as diverse as Dick Cheney, Bill Clinton, Jimmy Carter, Lisa Murkowski, Mark Begich, Alan Simpson, Clint Eastwood, Willie Nelson and Dan Hazeltine are all on record as supporting equal marital rights for the LGBT community, one has to ask just who is it that’s marching out of step in the parade?
Chuck – think you need to talk to the Corps of Engineers. They have both bent and stopped rivers.
“separate but equal” is no issue when “Spouse” is defined as equal as Washington State has done with it’s domestic partnership law – some argue over the “label” marriage assuming a degree of legitimacy will follow along with that label – the legitimacy follows the label “spouse” a term the federal government still denies the equal recognition of when that term is applied to domestic partnerships – – e.g. spouse box on the 1040
Shall not hold as second class any “Spouse” of Americas Plural families
Paul,
I am reasonably certain you know the marriage contract is not a single law, but a whole mass of laws. Also, I am certain you know it would be painfully expensive and needlessly complex to try and reinvent the wheel to create a “separate but equal” relationship for LGBT people when the mechanism is already in place for marriages. In all states, provinces and territories. And for what point? This country already tried that “separate but equal” thing in another setting. How did that work out in the end?
As for state law, just because a legislature passes a law does not make it constitutional or just. As a former Mississippi Attorney General told me, “That’s why they build courthouses.”
There used to be state laws that black people could not marry white people. And the races could not be mixed in cemeteries. How did that work out?
Chuck – when you signed your marriage contract did it have all that other stuff you cited? Or was it just a marriage contract. The other stuff you mention you have no control over. Either the state or the feds control that. The only thing you have control over is whether you stay in that contract with your partner.
Our marriage is “Husband and Wife” as it was for our parents and their parents before them – as is told to our children – – a change of marriage to mean husband or wife, mother or father – – a marriage of that type down the street remains in the closet of down the street . . .
Marriage is One Man One Woman as evidenced by Natural Law, the joining into one, the two separate and distinct halves of humanity – Male and Female – for without tool or device of any kind, without paper or pen, with no more than natural law, create from the joined square of equal black and white, two squares, each exactly half the size of, each uniquely separate and distinct from the other, 1 of black and 1 of white [Male and Female]. See my Son, you can never prove Natural Law from the square of black or a square of white.
Marriage as nothing more then a civil contract – – Shall not suffer the children of the Plural families to be as second class as to the child of the married .
David, take it up with Professor Turley or read his article and the decision on the Brown case. That should answer your questions.
Annie wrote: “David, take it up with Professor Turley or read his article and the decision on the Brown case. That should answer your questions.”
LOL. Some people wonder why there was a time when women were not allowed to vote. Here’s your answer. I have seen many similar responses from Elaine in the past. Never from Karen S though. She is an enigma, more like Judge Deborah in the Bible. There must always be equal opportunity for women so those like Karen can rise up to the top just like Deborah, Miriam, and Esther did in the Bible.
David, I’m not a Consitutional scholar, so I won’t discuss the nuts and bolts of the Constitutionality of it, but it doesn’t take a scholar to know that denying some Americans their Constitutional rights is clearly wrong. Perhaps I should suggest Dominionists be denied voting rights. Again argue your case with Professor Turley, I’m pretty sure he would “school” you in the matter.
Annie, the Constitution is a very small document. You don’t have to be a scholar to understand the rights that it protects.
Regarding Idaho:
*
https://www.youtube.com/watch?v=bRHMZC-Ppqo
*http://www.cbsnews.com/news/gay-veteran-74-denied-burial-with-spouse-because-of-idaho-law/
Late news is that U.S. District Magistrate Judge Candy Dale ruled the law unconstitutional on May 13, but the Governor and Attorney General applied for and got a stay this past week. The intend to appeal Judge Dale’s ruling. The case is being fast tracked for arguments in September.
Chuck – if it is the state law then it is the state law. I, personally, do not get to decide which laws I like and will follow and those I don’t and won’t, without making myself liable to some reaction from authorities.
David,
Why does what someone else does hurt you? Don’t you think you’re being judgmental? Have you ever read the Delphic Maxims?
Paul,
Glad to give you a list of only a few of the complexities of laws relating directly to the marriage contract that do not exist for unmarried couples. Many of these are not even available to legally married couples in states which refuse to recognize same-gender marriage:
Here goes. This is only a partial list which I snagged out of one of my saved PowerPoint presentations. I probably missed a few and this is not intended to be a comprehensive list.
Tax Law:
Filing joint income tax returns with both the IRS and state taxing authorities.
Creating a “family partnership” under tax laws, allowing you to divide business income among family members.
Estate Planning Law:
Inheriting a share of your spouse’s estate.
Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.
Creating life estate trusts that are restricted to married couples only, including QTIP trusts, QDOT trusts, and marital deduction trusts.
Obtaining priority if a conservator must be appointed for the spouse in order to make financial and/or medical decisions the spouse’s behalf should the husband or wife become incompetent for any reason.
Government Programs at both State and Federal levels:
Receiving Social Security, Medicare, and disability benefits for spouses.
Receiving veterans’ and military benefits for spouses, such as those for education, medical care, or special loans.
Receiving public assistance benefits.
Employment Law:
Obtaining insurance benefits through a spouse’s employer.
Taking family leave to care for your spouse during an illness.
Receiving wages, workers’ compensation, and retirement plan benefits for a deceased spouse.
Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.
Medical and HIPAA related laws and regulations:
Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.
Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.
Death Benefit Law:
Consenting to after-death examinations and procedures.
Making burial or other final arrangements.
Family Law:
Filing for stepparent or joint adoption.
Applying for joint foster care rights.
Receiving equitable division of property if you divorce.
Receiving spousal or child support, child custody, and visitation if the marriage ends in divorce.
Housing and Shelter Law:
Living in neighborhoods zoned for “families only.”
Automatically renewing leases signed by your spouse.
Consumer Law:
Receiving family rates for health, homeowners’, auto, and other types of insurance.
Receiving tuition discounts and permission to use school facilities.
Other consumer discounts and incentives offered only to married couples or families.
Miscellaneous Legal Protections Available only to married couples:
Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.
Receiving crime victims’ recovery benefits if your spouse is the victim of a crime.
Obtaining immigration and residency benefits for noncitizen spouse.
Visiting rights in jails and other places—both public and private–where visitors are restricted to immediate family.
Chuck – I asked for a complex marriage contract. You were kind enough to send me stuff I already knew but did not answer the question.
Paul,
About gays getting divorced and paying child support. That is already a big issue. Same gender couples who got married in states where it is legal, then move to states where such unions are not recognized have a major problem. They are married, but only have the rights of being married in states where it is recognized. I read the other day that such married couples in Texas (and states with similar laws) who wanted divorces were told they were out of luck. Since Texas law does not recognize such marriages, they can’t get a divorce, file for spousal support, or get child support. However, they can still be on the hook for all kinds of legal obligations in the state where they were married.
And we go back to the issue in Idaho where the spouse was told she could not be buried with her deceased spouse in the National Cemetery. That is allowed in Arlington but not Idaho.
Chuck – the Idaho issue would be a federal issue. And Arlington, because it is starting to run out of room, has changed its criteria as well.