Constitutional Law, Politics, Society

19: Pennsylvania Federal Judge Strikes Down Ban On Same-Sex Marriage

161px-JudgejohnjonesMomentum 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:

WhitewoodsLynn&Fredia

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.

323 thoughts on “19: Pennsylvania Federal Judge Strikes Down Ban On Same-Sex Marriage”

  1. Just GOOGLE “Sharia councils in UK that perform polygamous marriages” and you will have an embarrassment of riches. Or you can GOOGLE “Sharia councils in UK”.

  2. iconoclast:

    You can easily verify for yourself the existence of 85 Sharia councils in the UK. That is what I would do before I questioned the source.

    1. Karen – Muslims have taken over several public schools in the UK The government has swooped in and taken over the schools.

  4. Paul Schulte

    I do not agree with the decision on Sharia law and hope the state will appeal the decision.
    =================
    WordMess stole and kidnapped my reply comment to you.

  5. I would feel more comfortable with your sourcing re: plural marriage in the UK if you cited a more credible source than a blog with a particular point of view. I don’t like blogs to the left or to the right. They take a shred of a fact and extrapolate in order to reach their own tight conclusions.

  6. Pennsylvania’s governor says he won’t appeal a court decision that struck down the state’s gay marriage ban.

    Governor Tom Corbett’s decision Wednesday means that same-sex marriage will remain legal in Pennsylvania, without the threat that a higher court will reinstate the ban.

    On Tuesday, US district court Judge John Jones struck down Pennsylvania’s 1996 law banning recognition of gay marriage, calling it unconstitutional.

    Corbett’s decision goes against his political beliefs. He opposes same-sex marriage and supported thus-far unsuccessful efforts to amend the state constitution to ban gay marriage. But he said Wednesday an appeal would be “extremely unlikely to succeed.” (Guardian).

  8. Karen S

    With the well-publicized abuses under Sharia Law, the UK stands as a warning to the US. It allowed Muslims to have their own Sharia Law councils, and as predicted, it does not treat women fairly, as was uncovered by the BBC.
    ========================
    The U.S. has had the same constitutional law since before cocky right-wingers ever heard of the term Sharia law:

    The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.

    Watson v Jones, 80 U.S. 679 (1871).

    1. Dredd

      I retrieved a comment I found in the wordpress vortex of doom

      Folks, Dredd’s comment can be read at 4:53

  9. With the well-publicized abuses under Sharia Law, the UK stands as a warning to the US. It allowed Muslims to have their own Sharia Law councils, and as predicted, it does not treat women fairly, as was uncovered by the BBC.

  10. Hi Karen W:

    http://www.thedailybeast.com/witw/articles/2013/08/05/britain-s-muslim-communities-see-rise-in-multiple-marriages-as-career-women-seek-part-time-husbands.html

    Bigamous or polygamous marriages are performed under one of Britain’s 85 semi-official Sharia councils. These Sharia councils have the authority to arbitrate family disputes and financial disagreements, and critics fear the expansion of Sharia Law in the UK. Undercover British journalists discovered judges on these councils pressuring abused wives to return to their husbands. Critics rightly believe that there should be one legal code in the country.

    The UK does not officially recognize plural marriage, but it does confer welfare status to polygamous wives. It has been discovered that there are two categories of plural wives. One is the educated, middle class group of women who marry later in life, and have difficulty finding a Muslim husband at that age. And the other live a Taliban-like existence.

  11. John

    The SCOTUS and Judicial Branch have been the singular American failure for two centuries. Decisions of the entire Judicial Branch have been ideological not jurisprudential.
    …
    ======================
    Bull.

  12. Paul Schulte

    Jonathan – if … it is taking federal judges to overrule the will of the people in the states … I think it should be the will of the people of the state, not some federal district judge who decides.
    ===========================
    Your view is mistaken.

    Our constitutional republic’s supreme law has placed certain decisions into the jurisdiction of the Judicial Branch:

    It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

    Marbury v Madison, 5 U.S. 137 (1803).

    For example, a certain state attempted to make “Sharia Law” illegal by amending their constitution.

    Aside from not knowing what they were talking about, they violated our supreme law with their supreme hubris:

    The state of Oklahoma has been ordered to pay more than $300,000 to the plaintiffs who sued after the “Save Our State Amendment” banning Sharia law was overwhelmingly approved by voters in 2010.

    Defenders of the amendment claimed that it was intended to prevent Islamic Sharia law from being used in Oklahoma courtrooms. Muneer Awad, the director of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR), claimed that a law specifically banning Sharia law would violate the First Amendment’s prohibition on the government favoring one religion over another.

    He argued that the “Save Our State Amendment” would prevent his will from being probated because it contained references to Islam and Islamic law, and the courts agreed with him.

    The Oklahoma Legislature approved the constitutional amendment in 2010 and the statewide referendum garnered 70 percent of the vote later that year. Republican state Rep. Rex Duncan, who authored the resolution, described the proposed ban as a “preemptive strike” against Sharia law.

    In November of 2010, a federal judge in Oklahoma City barred the amendment from going into effect, and in 2012, the U.S. Tenth Circuit Court of Appeals upheld the lower court’s injunction, claiming that “[w]hile the public has an interest in the will of the voters being carried out…the public has a more profound and long-term interest in upholding an individual’s constitutional rights.”

    (Oklahoma to pay $300,000 in legal fees after ‘preemptively’ banning Sharia law). When the people of a state violate the constitution en masse it is still a violation.

    1. I do not agree with the decision on Sharia law and hope the state will appeal the decision.

  13. The SCOTUS and Judicial Branch have been the singular American failure for two centuries. Decisions of the entire Judicial Branch have been ideological not jurisprudential.

    Picture the blindfolded justice with the scale in one hand and a sword in the other. Now picture subjective ideologues presiding. How is it possible that the Judicial Branch was allowed to lose objectivity and nullify the Constitution? Who did that; allowed that? Where are America’s constitutional authorities and leaders?

    “All that is necessary for the triumph of evil is that good men do nothing.”

    more accurately,

    “When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”

    The Executive and Legislative Branches were expected by the Founders to be irrational and zealous. The Judicial Branch was expected to redirect them into alignment with the literal words of the Constitution; objective, untwisted and not spun.

    It is a crime.

    When is justice administered to the Judicial Branch?

    1. John – one thing I have learned over time is that for every SCOTUS decision I like, there is another I dislike. I guess if you make everybody mad you are doing your job. 😉

  14. I do not see how it is “a basic right” for a man to marry another man. Why have marriage to begin with? Marriage is a device that control freaks invented to get us to go to church and fork over money. Divorce should be “a basic right”. Marriage should be seen as a basic dumb move that one gets behind them at some point. Lawyers who specialize in doing divorces are like plumbers who clean outhouses.

  15. Paul Schulte

    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 …
    ============
    More like the will of the ALEC led right wing legislators.

  17. The gay strategies are working. Dan Savage knows the bible. And how to tickle the ear.

  18. David puts most of my thoughts down better than I can. I do find it interesting that because I have the view of traditional marriage, the “tolerance preaching ” crowd jumps on the straw man of Jim Crow laws, blah, blah, blah. But they never seem to point that same logic back at themselves as being child haters who wish to kill children because they believe in abortion.

    Anyway, for me, I follow the money on this one. Since most of these “rights” issues boil down to money. If the govt. didn’t have marriage in the tax code, would anyone care? If is was removed, it would fall back onto religion and not the state. Then, I could care less who does what, I could only recognize marriages that fall within my belief and others could do likewise and the first amendment would protect that religions definition. Every time the govt. plays social engineer with the tax code, it makes a mess for all of us.

    For all of those who don’t believe in the majority, do you feel the same for elections? Maybe only a “select wise” should vote for us.

  19. davidm2575,
    Can you demonstrate HOW Gay Marriage has ruined your Straight Marriage?
    You can give as many anecdotes about “family” you want… As a gay child growing up in an oppressive overtly Catholic and Homophobic family, I can tell you lacking a positive role model in my life, as a child, it did hurt. Are you for that kind of emotional pain bestowed upon children?

    1. Max-1 – I am not sure what you are asking for as a positive role model in your life really consists of? Did you want father to be gay?

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