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.
Annie
Why should fat people be allowed to be discriminated against? Physical characteristics of people should not be a basis for discrimination.
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Indeed.
Annie:
My problem is not with gay marriage, but as I have stated, I have a problem with polygamy. Will the “human decency” argument hold true for multiple individuals to wed?
Karen – I have enough problems with one wife, not sure how I would survive two or more. ;).
Annie – “Jim 22, so is it OK to ban discrimination on the basis of race and gender, but not sexual identity? Why would that be? Aren’t homosexual people also American citizens?”
I think you have my thoughts backwards here. I don’t consider sexual identity to be a race (and to Paul’s post, I don’t consider over weight people to be either). So no, you can’t discriminate on race or gender. Again, the only reason this is an issue is because the govt. got involved with it and put a price tag on marriage through the tax code. Otherwise, why would you care if group “A” defines a marriage between “X” and “Y” and group “B” thinks marriage is between “W”, “H” and “Z” etc.? When I got married I could’ve cared less about the over reaching govt. and they had no presence at my ceremony. But my belief in my God and loved ones did and that is all that mattered.
What I find ironic is that the Left absolutely howls about “the war on women” at the drop of a hat. If Romney had a binder of qualified female candidates, because he specifically requested it to ensure he was addressing diversity in his hiring practices, he is ridiculed as somehow treating women as unequal.
And yet, there is no universal, open, loud condemnation of Sharia Law. Where it is practiced, women are NEVER treated as equals. They are killed for having sex outside of marriage, even when it is rape, given as child brides, veiled or at least wear hijabs, and in some regions are subjected to female genital mutilation, which requires a knife on their wedding night.
But what happens to the real war on women? The apologists dutifully step up and say that Christianity was just as bad, referencing texts from thousands of years ago, before the New Testament. People are so afraid of offending the PC police, they remain silent about the very real abuses against women going on here, and globally, in the name of radical Islam. We have no problem rightly proclaiming that the Catholic Church needs to clean up its act, but we remain silent about criticizing how Islam is often practiced.
I followed the Taliban War on Women before 2001, before it was cool. And I still care about the plight of women under Sharia Law.
I think you should not do it. Sorry typing way too fast.
Annie – I think you should do it, but I do not think there should be laws about it.
Paul, because it’s wrong. Human decency, ya know.
Annie – why should they become a protected class? And marriage, such as it is was originally a civil service only. The religious aspect came later. Still, no Western civilization until now has allowed same sex couple to marry.
Well, if the objections to gay marriage are religious, then that would be a solution, wouldn’t it?
The religionists don’t own the term marriage.
If the government only did civil unions, and left the term “marriage” to religious institutions, then the government would be treating everyone the same. There would be no “separate but equal” issue.
davidm:
One only has to see the plight of children born to single mothers, and the statistical outcomes of the children of divorce, to see the importance of a stable, happy nuclear family. One should choose a partner wisely, because divorce is tough on children. So, on the one hand, we see the difficulties most single mothers face when they try to raise a family on their own, and on the other hand, we see a movement that marriage does not matter at all.
To reiterate, I agree with Rabbi Shmuly on the same sex marriage issue: the government should get out of the marriage business and only do civil unions between any two consenting adults. Leave the term “marriage” to religious organizations, and don’t tell them how to define it. There are some religions who do same sex marriages, so that gives them options, and the civil unions would confer the same rights.
Karen, I retrieved your comment
Folks, Karen’s comment is above at 11:05
Paul Schulte
Dredd – you were asked a direct question. You have not answered it. We can all agree on the court case you cited, how ever that does not mean we have to accept Sharia Law. When you try to kill the messenger,it just goes to show that you cannot kill the message. 000
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What Chuck Stanley said.
You asked an ill informed question.
Baptist law, Catholic law, Jewish law, Islamic law, Methodist law, Satan worshipper lae, as well as the religious legislative bodies to craft them, and the religious courts to uphold them are all acceptable in American jurisprudence which “knows no heresy.”
Sorry if you right-wingers here do not like American law.
Deal with it.
Dredd – the courts to not incorporate all of the religious groups that you list. I am hard-pressed to think of any law with a Satanist backing.
Civil marriage itself is unconstitutional as it holds the children of the plural families to be second class citizens . . .
Paul,
RE: On whether the US populace has embraced Sharia law. I think many have and don’t even realize it. There are many aspects of Sharia law that are not much different from the Christian Dominionism being promoted by powerful groups in this country. Some such promoters are even found on this blog as frequent commenters. The whole notion of any single religious group imposing their world view (weltanschauungen) on everyone else as blackletter law is repugnant to any thinking person.
The key words here are “everyone else.” Any single person or group has the right to believe anything they want, no matter how nutty. There are a few things not allowed, such as human sacrifice, but otherwise pretty much anything can go on the INDIVIDUAL level.
Chuck – I think you’re totally wrong on this subject. If we were to adapt this style of law within our legal system we would have to get rid of same-sex marriages, reestablish adultery as a criminal offense, add stoning for punishment, etc. I have noticed many on this blog who are intent on sharing their worldview and who would like to impose their worldview on the rest of us.in general, they are called secular humanists.
What I find ironic at this point is that those who are against Christian religion as the dominant religion in the United States seem to be supporting Sharia Law as a supplement to our legal system.As you are probably aware, the precepts of the People of the Book are the guiding principles for the laws in the United States.
Help! My comment was probably too long, and got flushed down the Vortex of Doom.
Dredd:
The secular law does not intervene in questions of religious doctrine. For instance, if a church decides to defrock a priest for molestation, the law does not intervene. The law does not require gender equality in the admission of monks to a monastery, or nuns to a nunnery, as another example.
But the law does not allow religious organizations to impose their own penalty on lawbreakers instead of secular law. If someone murders another, he is subject to secular law. If his church wants to throw him out, they can do that, too, but it does not supplant secular law. A Catholic can have his marriage annulled to satisfy the church, but he still needs to go through a secular divorce to have that status recognized by law.
I always find it interesting that when people criticize Islamic extremists, there is always someone who will point out examples from thousands of years ago, in the Bible. What those people fail to understand is that Islam teaches that Allah Himself wrote the Qu’ran. It is not subject to any relevance to the times, and is considered an eternally perfect document. The Bible, on the other hand, is believed to be the word of God as written by people, and the New Testament specifically replaces the Old. Jesus instructed his followers to follow the new way, and He was sent to address how followers of the faith had gone astray, among other things. So, people in the US don’t call for stoning to come back as a punishment, because they understand that such mentions were in the context of thousands of years ago. And one is to remember that, specifically, Jesus stopped a stoning of an adulteress.
But stoning, cutting hands off, child brides, and the killing of apostates and adulterers has continually been practices in Islamic nations, because it is specified in the Qu’ran. There is no discussion about the relevance of the times, because it was written by a divine hand. There was no human intermediary. That was not the Prophet’s role, in their belief.
I hope this clarifies.
Jim 22, so is it OK to ban discrimination on the basis of race and gender, but not sexual identity? Why would that be? Aren’t homosexual people also American citizens?
Annie – we seem to be setting up a series of protected groups. I just read an article where they want to set up a new protected group, those who are overweight.
http://patterico.com/2014/05/13/a-new-protected-class/
Why should fat people be allowed to be discriminated against? Physical characteristics of people should not be a basis for discrimination.
Paul Schulte
Dredd – seems to think that Sharia laws should be allowed in the USA. And yet, no progressive has jumped on him yet.
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I am saying that most Americans do not even know that there are three branches of government.
There is not enough room to say what else they do not know.
Just read the comments for an example of the ignorance of right-wing officials for example.
Even if you can’t comprehend what is being said about American law as it has existed for longer than your daddy and mommie.
davidm2575
Dredd wrote: “Sharia law is one such valid system within American religions practices.”
What are you trying to say here? Do you want Sharia law to have the force of government? Are you okay with criminalizing adultery and homosexuality? Are you okay with criminalizing the conversion of a person from Islam to another religion?
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I am saying that most Americans do not even know that there are three branches of government.
There is not enough room to say what else they do not know.
Just read the comments for an example of the ignorance of right-wing officials for example.
Even if you can’t comprehend what is being said about American law as it has existed for longer than your daddy and mommie.
Dredd – you were asked a direct question. You have not answered it. We can all agree on the court case you cited, how ever that does not mean we have to accept Sharia Law. When you try to kill the messenger,it just goes to show that you cannot kill the message. 000