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 – sorry if I’m getting on your last nerve. That’s not my intention. You have made an argument. There are some points on which we disagree. But it is certainly not personal. My concern is that you may not have thought beyond the good intentions of a position, such as legalizing polygamy.
Do you not find your comments about conservatives to be prejudiced or condescending?
Can someone with a disfigurement not model clothes? Isn’t it supposed to be about the clothes? If the clothing line comes in plus sizes, isn’t it reasonable to assume that an overweight person could model a dress just fine? I am trying to illustrate the slippery slope.
Karen, you have a tendency to be condescending, it’s not a disability, but it’s not a great trait. I’m sure I have some traits that get on your nerves also. 🙂
It’s not a legal disability to be unattractive, but I bet if a person with a facial deformity sued because of being denied employment in a field in which beauty was not a requirement, they would have a fighting chance in winning their case.
Annie:
“Karen, it’s pretty obvious that I’m not talking about a job in which beauty would be a requirement, such as modeling.” So it’s OK to discriminate for a modeling job? What about any job where appearance is intrinsic to the job? What is your criteria for when this discrimination for classes you want to protect should be allowed?
Because it is critical that we not satisfy ourselves with intentions. We must look beyond the self-congratulatory pat on the back and look at results.
If someone opposes legalizing polygamy, do they hate polygamists? If someone opposes making obesity a protected class, do they fear or hate overweight people? If someone does not think it is necessary to make facial disfigurement a protected class, does he hate those people?
It is an interesting discussion whether or not to make gays a protected class. But what I object to is this inflammatory line of reasoning where any disagreement is construed as hatred.
I oppose legalizing polygamy, but I do not hate polygamists. And if people realize that legalizing polygamy will be the logical next step, not everyone is going to agree. And not all of those people “hate” polygamists.
If we make hundreds of protected classes, it’s going to make it very difficult to function without turning into a Fahrenheit 451 dystopia. In the efforts of tolerance, we can become a very intolerant society.
Karen S wrote: “… what I object to is this inflammatory line of reasoning where any disagreement is construed as hatred.
I oppose legalizing polygamy, but I do not hate polygamists. And if people realize that legalizing polygamy will be the logical next step, not everyone is going to agree. And not all of those people “hate” polygamists.
If we make hundreds of protected classes, it’s going to make it very difficult to function without turning into a Fahrenheit 451 dystopia. In the efforts of tolerance, we can become a very intolerant society.”
What a perfectly logical analysis. Too bad we will hear crickets afterward from those who love to call everyone who does not think like them haters.
Karen, it’s pretty obvious that I’m not talking about a job in which beauty would be a requirement, such as modeling. If an unattractive person were to be denied a job such as nursing or teaching, or clerking in a store, etc. that would be discriminatory because beauty would not be a requirement of the job, because of the nature of the job. In nursing if one is so disabled they cannot do they physical work, they can’t do the job, it’s not considered discrimination. If a person has a job in which they need an accommodation for their disability, and can do that job WITH the accommodation, and the employer still discriminates against them, I believe it’s a violation of the ADA.
Karen, You obviously were not “gifted” w/ empathy. Maybe you can take some lessons you heartless Republican!
Annie:
“Should a person with a facial disfigurment be discriminated against when he seeks a job?”
What if that job was modeling? Then, yes, anyone who is not stunningly beautiful with perfect skin and young is discriminated against when hiring for talent agencies and modeling jobs.
They discriminate against age, gender, race, ethnicity, weight, and anything less than their subjective view of beauty. If they’re looking for an African-American, that’s what they’ll hire. If they want a Caucasian for a certain look, that’s what they’ll hire.
Are you saying that the modeling industry should no longer be allowed to discriminate against any of these classes?
Then we should disfigure beautiful people in order to find that “fairness” that some seem to think attainable. Most folks know life is unfair, then you die.
Empathy is a gift. It’s a well known fact that beautiful, healthy people have a huge advantage.
Paul,
What bet?
That you can spell theatre?
Max-1 – try your post at 2:31. How soon we forget.
This thread is getting very Fahrenheit 451.
In the book only clumsy people were allowed to be ballerinas, only stutterers gave the news …
I think if we looked hard enough we could all qualify as a protected class.
Dredd, are you unable to address my salient points?
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…
=====
My bad, I forgot to put gender in there. The “back of the bus” talk is still a straw man argument.
Same-Sex Marriage Support Reaches New High at 55%
http://www.gallup.com/poll/169640/sex-marriage-support-reaches-new-high.aspx
Max-1 – when are you going to pay off that bet?
Paul Schulte
Max-1 – I am a top, not a bottom.
= = =
That statement belongs on grinder…
Paul,
I AM in theater…
Paul,
Why are you afraid of gay marriages, then?
Paul,
Can my class of person sit up front on your buss…
… Or do we have to sit in the back, out of your eyesight?
Classicists are the ones posturing equality as a form of CLASS PROTECTION. They need people to be in certain seats on their bus. This way, they know who’s in charge.
Max-1 – you are not in theatre if you spell it theater. Max-1 you can drive my bus if you want (as long as you have a valid permit). I just drove 600 miles to go to a gay wedding in California for a gay friend of almost 50 years. I was delighted that she and her partner finally came out of the closet and got married. Could not have been more pleased to celebrate their wedding with them.
Paul,
I personally have no fear of you.
= = =
You have fears of teh GAY.