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.
Help please, I just had a comment devoured. Thanks.
Mike – if you got into same sex divorce and custody disputes, you could be on the cutting edge of a burgeoning field.
MikeA, My cynical side caused me to surmise part of the shift in thoughts on gay marriage was fueled by a new market for billable hours. If you remember not long ago, the gay community saw marriage as a silly institution of the straight world. Their derision for marriage was palpable. Usually a paradigm shift in something as fundamental as this is gradual. However, the push for same sex came quickly. The push for change was quite organized and well supported by the legal profession. I’m not saying a new market for billable hours was the primary factor. But, I believe it was/is part of the mix.
Paul Schulte:
Another good reason not to take domestic relations cases.
Chuck Stanley:
LOL. I don’t expect to see people rushing to switch gender preferences. The grass is never greener.
However, we will indeed develop case law concerning all aspects of same-sex marriage. But I stopped handling domestic relations cases many, many years ago, and I’m not about to take on same-sex marriage dissolutions.
Paul Schulte:
Marriages are already legal partnerships by statute. As a practical matter, I believe that we need to have laws in place to define rights and duties in marital partnerships for the same reason that we have them for commercial partnerships. So I cannot endorse a purely libertarian stance on the issue.
Mike – I only speak for myself. I am sure my wife does not agree with my stand. 🙂 BTW there is an interesting custody dispute with 3, count them 3, lesbian parents coming down the pike.
Mike, just think. For lawyers, same gender marriages are going to be a boon to business, with all the straight marriages exploding because of teh gay. Blogger jawille has the scoop on it in his story BREAKING: Divorce Lawyers Expect Surge of Clients as “Opposite Marriages” Become Meaningless
Karen S:
I understand your concerns about polygamy, and it is not a form with which I would feel personally comfortable. But I believe that the abuses frequently associated with polygamous marriages are reflective of their origin as relationships imposed under patriarchal societal and religious structures. No contract is entitled to legal recognition if it is not freely and voluntarily entered into by competent adults. Were polygamy to receive the endorsement of the law, legal structures could be developed which would grant polygamous partners the same rights and duties afforded those entering monogamous marriages. And frankly, I do not believe that polygamy would ever become a particularly popular marital choice.
Right you are Mike. Its a battle cry for the tea party and conservative GOP.
Let’s not kid ourselves. The battle over same-sex marriage is a religious war, and it should not be. Those who reject the contractarian basis of marriage do not understand its history under the common law. Those who argue the concept of complementarity are raising a natural law argument which is also religious at bottom and which does not hold up under rational analysis for reasons I will address at another time. And the suggestions that same-sex marriage is a capitulation to licentiousness and destructive of traditional marriage are specious and demeaning. But rather than repeat what I’ve said on this issue in the past, I’ll just refer to the following and be done with it:
http://jonathanturley.org/2012/05/27/marital-dischord/
http://jonathanturley.org/2013/07/14/same-sex-marriage-and-the-new-dominionist-manifesto-2/
Mike – the original purpose of marriage was to legitimize children and legally pass property to heirs. There is no need for this any more. We have tests that will decide who is a legal heir or not. Actually, there is no legal reason for marriage at all, except that the government requires it for certain purposes.
I think we should abolish marriage all together. We can replace marriage with legal partnerships.
Karen, You are making some superb points and you do so w/ class and grace. Kudos.
on 1, May 22, 2014 at 4:26 pmKaren S
” My concern is that you may not have thought beyond the good intentions of a position, such as legalizing polygamy.”
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Karen do you think Professor Turley didn’t think beyond his good intentions in the Brown case?
Who decides who is making errors in judgements? Why do we all think we know best? Rhetorical question.
Dagnabbit! My quotation mark finger slipped.
Yes indeed”
There should be no comma in my 4:27 comment. My comma finger slipped.
I am uninterested in making this discussion personal in any way. If you find someone disagreeing with you to be condescending, then let’s move on to another more enjoyable topic.
But isn’t it the most common argument, even displayed here on this thread, that opposing putting gays into a protected class equates to hatred and discrimination?
Why does that mode of thought not hold true if I don’t want to legalize polygamy, or make obesity a protected class?
I am trying to point out an error in thinking that gets perpetuated with viral speed.
Karen your assumption that I haven’t thought beyond, my good intentions is condescending. 🙂
on 1, May 22, 2014 at 4:16 pmKaren S
“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.”
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Speaking only for myself, I have no earthly idea if you hate gays or polygamists. I don’t really care. I do care however, that they aren’t denied their Constitutional rights.
Annie wrote: “I have no earthly idea if you hate gays or polygamists. I don’t really care. I do care however, that they aren’t denied their Constitutional rights.”
Do you mean the Constitutionally protected right for individuals to marry members of the same sex and to marry multiple partners? Would you please quote for me exactly where in the Constitution these rights are protected?