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.
Are addicts a protected class because theyay have a gene that predisposes them to addiction to smoking, alcohol, and drugs?
Because right now Obamacare penalizes smokers. But if it’s because of a gene us that fair?
If you make obesity a protected class it sets a precedent.
There is a claim being made that pedophilia is genetic. Under this concept they could become a protected class.
Annie:
Just to clarify, you support the legalization of polygamy in the US, and apply the “human decency” argument towards polygamy as well as gay marriage?
Jim, there probably isn’t an increase of the incidence of the obesity gene, but who knows? It’s more likely that the increase of processed foods and cheap fast foods have exacerbated the propensity for the fat gene, FTO, to be expressed. As for discrimination against young male drivers, perhaps it is because the incidence of them being involved in risky behavior and numerous accidents have indicated that they are indeed a greater threat. Evidence based knowledge.
Paul,
The question becomes one of how come those laws are on the books in the first place. Second, in most states, it is the Attorney General, not the Governor who makes the decision to defend laws on the books. It is not without precedent for an AG to refuse to defend a patently unconstitutional law. It is the duty of the Attorney General’s office to advise the legislative body if a proposed law is unconstitutional or not. They do not have to follow the AG’s advice, but in turn, the AG may well decide against litigating if a legal challenge is brought.
I have a very good friend who is a senior Assistant Attorney General for his state. Years ago, he told me the way they handled such matters was when somebody brought a lawsuit against the State his office knew they were going to lose, they simply filed a brief “admitting error.” That’s the end of that. Instead of wasting tens of thousands of dollars, it costs an hour of a paralegal’s time to write a boilerplate brief, five minutes for one of the lawyers in the AG’s office to proofread and sign it, then another thirty minutes for the paralegal to walk across the street and file it with the clerk of the court. Cost? Probably a couple of hundred dollars, tops.
These people do not give up trying to promote their own religious agenda on the unwilling. If they can’t succeed at the national level, they have another operation in place, which is to proceed at the local level, one small step at a time. Here is a single example from today’s news:
http://talkingpointsmemo.com/news/school-board-tries-for-bible-based-curriculum
I am sure you have heard the parable of the camel getting his nose in the tent.
Sharia just happens to be an Arabic name for (Islamic) religious ideology with the force of law. Sharia may go by other names, in other languages, but it is being promoted in other countries, with varying degrees of success.
Annie – So you do believe it OK to discriminate against males? The gene here is being male not driving. Also, how do you know that smokers don’t have an addictive disorder?
Why the increase in the obesity gene over the years?
Dredd – you did NOT read what I wrote and then you quoted back to me. I cannot continue if you cannot follow the debate.
Dredd – your example is too long. I have ADD. If you have a point to make, make is short and sweet. Or at least short.
Paul Schulte
Dredd – … I am hard-pressed to think of any law with a Satanist backing … you are mixing apples and oranges again. There is a difference between protecting a religion and incorporating its precepts into American jurisprudence.
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No, you are failing your reading comprehension exercise as usual.
American jurisprudence protects every religion’s right to have its own religious laws, its own religions courts, and that includes Sharia law and Satanist laws as my comment that is now posted shows.
Thanks Chuck Stanley, I think, for releasing it from WordMess.
Paul, sorry the shopping gene hasn been discovered yet.
Paul,
This is how you come across as a messenger: http://wapo.st/1iVCZFS
Annie – I have discovered it. We just need to find it in the DNA sequence. I am currently looking for grant money.
Chuck – when a state has laws on its books and it uses public funds to defend those laws it is doing what the attorney general is supposed to do. Now, some governors of some states have decided to take a legal dive. That is up to that state and that governor. And that basic right you keep hammering about, not so long ago was not only considered a crime, but a mental illness. The basis for the legal opposition is that the attorney general of the state is supposed to defend the laws of the state, it has nothing to do with religion.
Paul,
You misread what I wrote. I did not say these tenets were law already, but that powerful people and groups would like them to be. Such as the example of banning same-gender marriage. Non-discrimination in marriage is a concept that Dominionists steadfastly oppose, and some of their supporters have expended public money in lawsuits opposing what should be a basic right. The basis for that opposition is religious, despite claims of outrage to the contrary. On this very blog, we have commenters claiming to not be religious, all the while spouting the latest Dominionist talking points. As you know, there are many more examples; far too many to encompass in a single comment.
Sharia-like in their basis, and the reason they are not (yet) laws is certainly not for lack of trying.
Chuck wrote: “On this very blog, we have commenters claiming to not be religious, all the while spouting the latest Dominionist talking points.”
I assume you are talking about me. I am not religious in the sense that I do not belong to any religion. I am not part of any sect of Christianity, Judaism, or Islam. However, that does not mean that I do not agree with some tenets of the various religions found in all three groups. Muslims don’t believe in same sex marriage either. Why say that that I am spouting Dominionist talking points instead of saying that I am spouting the latest Islam talking points?
The answer is that the word “Dominionist” is very easy to hijack because it is a relatively modern invention and most people cannot even define it. Your purpose in using the word is the same purpose that bigots against blacks have for using the n* word. It has become a pejorative used simply to discredit those who are different from you.
Paul, sorry. That made absolutely no sense, was it a joke? 😕
Annie – if the obese are going to claim protected status because, according to your article, obesity has a genetic causation (obesity gene), I was wondering if my wife, who has the shopping gene could become a protected class as well?
Annie – just being a young male is the gene needed for the driving gene. It is nice to have a gene to blame things on, but that is no reason to make it a protected class. For instance, my wife has the shopping gene as does her niece. Should they be a protected class?point
http://news.uchicago.edu/article/2014/03/14/researchers-identify-fat-gene-associated-obesity
Genetics determines the majority of obesity. A smoking gene and young male driver gene hasn’t been discovered yet.
Annie – Is it OK to discriminate against smokers? Better yet, what about young MALE drivers?
Darren or Jonathan, etc.
WordMess ate my reply to Paul.
Paul Schulte,
My comment in reply to you was consumed for breakfast by WordMess.
Paul Schulte
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.
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So what part of (“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.”) did you not understand?
Satan is the god of this world, and is worshiped [compare 2 cor 4:4 (In whom the god of this world hath blinded the minds of them which believe not, lest the light of the glorious gospel of Christ, who is the image of God, should shine unto them) with Matt 4:8-9 (Again, the devil took him to a very high mountain and showed him all the kingdoms of the world and their splendor. “All this I will give you,” he said, “if you will bow down and worship me”)
Thus, in American law Satanism is as protected as the other religions are.
Dredd – you are mixing apples and oranges again. There is a difference between protecting a religion and incorporating its precepts into American jurisprudence.
I have no issue with polygamy. If women and children are being abused in polygamous sects that’s a different story.