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.
Paul,
That you need to put me into YOUR box… no pun intended… so as to define me ok enough to like still speaks more about YOU than it does those you need to compartmentalize for your own purposes… Treat me like a human being.
The same “CLASS” you see yourself… human being.
That you just can’t, won’t and refuse to treat others as YOU would like others to treat you… I bet you go to Church weekly.
Max-1 – ask around and see how much money you are going to owe me for that bet. I grew up in the theatre. Why would I be afraid of gays?
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.
Max-1 – am not trying to “school you” about your sexuality. I am debating whether you should be part of a protected class or not. The protection is yours not mine. I personally have no fear of you.
I have PHD.
Paul Schulte
Dredd – it is pretty much none of your business.
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Aha.
Paul Schulte
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.
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Now you tell me.
Noted.
Again,
Classism and bigotry is taught and learned.
Are you doing your children a favor by reinforcing class bigotry into society?
Let’s just say one group is straight while the other of gay…
… If you haven’t learned this much, you’re not paying attention.
Max-1 – I am a top, not a bottom.
ps Paul,
Don’t be silly enough to school me about my sexuality. Ask David how it looks when a self professed and overly proud straight man attempts school a gay man about his gayness…
Paul Schulte
Dredd – yes a scientist did.
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Interesting … in light of your losing faith in scientists or science.
Just what is this genetic data and its analysis?
If you don’t mind.
Or if you do not want to be anecdotal about it, a generic article somewhere.
Paul,
That you think you need protection from me speaks about your fear of me…
Paul,
The only protection I need from you is a condom…
Imagine a world where straights and straight marriages were equally associated with murders, rapists, beastiality, child molestation, etc.
Nick, would you want class protection or equality?
Dredd – it is pretty much none of your business.
Max-1 wrote: “Imagine a world where straights and straight marriages were equally associated with murders, rapists, beastiality, child molestation, etc. Nick, would you want class protection or equality?”
Nope. This already happens for every male. More males are in prison for crimes than females, and people tend to associate males more with being murderers, rapists, pedophiles, etc. I don’t feel any need for males to be a protected class in society.
Jimm22,
Max-1 – The women and Jim Crow laws are just straw men arguments. Those were based on race. This is not a race issue.
= = =
FYI
Women is not a race…
Protected Class arguments AGAINST LGBTQ are made by bigots afraid to treat others with common decency… usually they are the ones who complain that the riders in the back of ‘their’ bus aren’t good enough to sit up front and shouldn’t be seen or heard from because, you know, class.
Dear Nick,
What is so precious about classism that you need to protect it?
Jim, black youth cause more car accidents?
Max-1 – you are hardly a shrinking violet. Why do you need to be protected?
Paul if you are DISABLED because of it, yes. Or if you are discriminated against by not being served in an eating or shopping establishment, not hired for a job, prohibited from attending some public function, etc. yes indeed it should be illegal.
Paul Schulte
I have a genetic disease that I share with 4 brothers. It is a markedly visible disease at my age.
…
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Did a scientist tell you that?
Karen S
… Does the law against polygamy discriminate?
…
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It was held to be unconstitutional in JT’s Utah case (JT Kicks They Butt).
Stay awake.
Dredd – I think Arizona’s polygamy law is still on the books and they have enforced it from time to time. So, I would say, yes, the polygamy law discriminates against males. They never seem to arrest females.