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 – “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.”
So the next logical thought for me to throw your way is, then I should be able to discriminate against black youth using evidence based knowledge?
Karen S
Dredd:
Maybe you missed my post. The law in the US does not interfere with the practice of a religion with the exception if human sacrifice, polygamy, and a few other areas.
But religious laws do not replace secular laws. The Church may punish a murdering priest by excommunication, but that priest us still subject to prosecution in secular court.
In the US you can leave property according to Sharia Law for example leaving adopted children out of your will. But the law allows you to dispose if your property however you like. In no instance does religious law replace secular law.
Sharia Law actually replaces secular law when it becomes codified. In the UK it actually replaces secular law under specific circumstances.
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I don’t consider you competent to lecture on this subject.
Dredd – yes a scientist did.
What if the job was sales where appearance is critical?
“disfigurement”
How would you police if a person w/ facial discrimination was discriminated against?
Nick – what bothers me about the cleft palate one is that if they became a protected class, Jesse Jackson would be protected. 😉
I’ve just started down the slippery slope. Is my point taken or should I continue listing groups of people who suffer discrimination and ridicule, through genetics, and are not covered under anti discrimination laws?
Should a person with a facial disfigurment be discriminated against when he seeks a job? Should that be legal? Really? Human decency is a standard that some just can’t live up to, sadly.
I think people w/ a cleft palate should be a protected class.
I think stutterers should be a protected class.
I think people w/ bad acne, particularly females, should be a protected class.
I think short men should be a protected class. They get more ridicule than just about any group.
http://jonathanturley.org/2013/12/13/federal-court-strikes-down-polygamy-law-in-utah/
I suggest asking Professor Turley these questions about he legality of polygamy in the US.
I am against discrimination based on physical DISABILITY, which obesity is an example of and discrimination based on physical appearance. Should we allow discrimination against an unattractive person?
I think people w/ port wine stain birth marks should be a protected class.
I have a genetic disease that I share with 4 brothers. It is a markedly visible disease at my age. Should I be part of a protect class?
Annie:
You said that overweight people cannot get away from food. But you also said that the affected genes have not increased in incident rates. Rather access to processed foods exacerbate expression if the gene.
Do you believe that any person with a gene that makes then look and act different should be in a protected class?
Because that could incorporate just about everyone.
Karen says:
Sharia Law actually replaces secular law when it becomes codified. In the UK it actually replaces secular law under specific circumstances.
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We don’t agree on US law. We know far too little of Sharia law (other than the usual fear mongering) and UK law to begin to assess the validity of the above vague statement.
Yes, I understand the action of genes on health.
Are you saying that obesity should be a protected class because it can have a genetic cause but addiction should not, even though it can have a genetic cause?
Annie:
Does the law against polygamy discriminate?
Do you understand that legalizing polygamy would change the public benefits system?
Since the spouse if an American citizen is eligible for citizenship, one could marry thousands of people specifically to confer citizenship and benefits.
We have an overpopulation problem but polygamy statistically increases the number of offspring.
If we allow marriage between one person of one sex with multiple people of a different sex, then we would also have to allow marriage with a group of one sex with a group of another sex.
And this could be a precedent for other unions. If the sky is the limit will there be an effect on society? We have already learned that children pay the price when they grow up in broken homes. What will happen to them if you allow a very casual definition of marriage?
I do not oppose gay marriage. But I do oppose polygamy. And my concern is precedent.
Obesity is much more than an addiction, gjere are powerful hormonal and biochemical processes at work here. Look up the hormones Ghrelin and Leptin. If one has the 2 copies of the FTO gene the incidence of becoming obese is somewhere within the 80% likleyhood. The FTO gene is now thought to be far more prevalent in fat people then was suspected before the discovery was made. Researches suspected there was a strong genetic predisposition to obesity, now hey KNOW there is. This is a new discovery, made in 2013, IIRC.
Fat people can’t get away from food, they need it to live, unlike those addicted to substances.
Dredd:
Maybe you missed my post. The law in the US does not interfere with the practice of a religion with the exception if human sacrifice, polygamy, and a few other areas.
But religious laws do not replace secular laws. The Church may punish a murdering priest by excommunication, but that priest us still subject to prosecution in secular court.
In the US you can leave property according to Sharia Law for example leaving adopted children out of your will. But the law allows you to dispose if your property however you like. In no instance does religious law replace secular law.
Sharia Law actually replaces secular law when it becomes codified. In the UK it actually replaces secular law under specific circumstances.
I applied the human decency caveat to discrimination against fat people. It could be applied to polygamy as well as gay marriage. Is it decent to discriminate against what other’s do if their behavior does not affect anyone else negatively? What business is it of ours if other’s want to marry numerous people? Or people of the same sex? It’s none of our business, unless abuse is happening and then it’s a criminal matter, no?
Yes I support the legalization of polygamy and gay marriage.