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Federal Judge Strikes Down Pennsylvania’s Same-Sex Marriage Ban

Dont Tread On Me Rainbow Flag

Just one day after a Federal Judge in Oregon struck down that state’s voter-imposed ban on same-sex marriage, a Federal District Court Judge who was appointed by George W. Bush, and endorsed by none other than Rick Santorum, has done the same with Pennsylvania’s ban enacted in 1996:

Continuing a rush of rulings that have struck down marriage limits across the country, a federal judge in Pennsylvania on Tuesday declared the state’s ban on same-sex marriage to be unconstitutional.

“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history,” wrote Judge John E. Jones III of Federal District Court in a decision posted on Tuesday afternoon.

Judge Jones, who is based in Harrisburg, Pa., was appointed by President George W. Bush in 2002.

Judge Jones did not issue a stay, writing, “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.”

Pennsylvania is the last of the Northeast states with a ban on same-sex marriage. Gov. Tom Corbett did not immediately say whether he would ask the Federal Circuit Court in Philadelphia to delay enforcement pending an appeal, and gay rights advocates said they hoped that marriages would start as early as Tuesday afternoon.

(…)

The lawsuit in Pennsylvania, brought by the American Civil Liberties Union on behalf of 11 couples, a widow and two teenage children of one couple, is one of more than 70 cases filed around the country since the Supreme Court struck down parts of the Defense of Marriage Act last June.

“It’s kind of overwhelming, and wonderful at the same time,” said James D. Esseks, director of the union’s gay rights programs, who is involved in 11 marriage cases at once. Mr. Esseks said he expected decisions within the next few weeks on similar challenges in Wisconsin and Florida.

After the Pennsylvania case was filed last summer, state’s attorney general, Kathleen Kane, announced that she would not defend the restrictive marriage law, which was adopted by the legislature in 2006. Mr. Corbett, a Republican, hired private lawyers to argue on behalf of state officials named in the suit.

The state put forth arguments that have repeatedly been rejected by the courts. It argued that the legislature had chosen to protect traditional heterosexual marriage and that nothing in the Constitution established a fundamental right to same-sex marriage, which is not rooted in history and tradition.

The state also argued that a 1972 decision, Baker v. Nelson, in which the Supreme Court declined to review a challenge to a state gay-marriage ban, remains the guiding legal case and that last year’s ruling in Windsor v. United States, holding that the federal government must recognize same-sex marriages performed legally in the states, was actually an endorsement of states’ rights.

But a succession of federal judges, now including Judge Jones in Pennsylvania, have instead relied on the Supreme Court’s finding last year that same-sex marriage bans were fueled by animus and inflicted stigma on gay and lesbian families.

“The plaintiff couples have shared in life’s joys,” Judge Jones wrote in Tuesday’s decision, one of several in federal courts recently that have elicited soaring prose from the judges. But the couples have also shared financial, legal and personal hardships resulting from state discrimination, he went on to say.

He quoted one plaintiff, Deb Whitewood, who told the court: “It sends the message to our children that their family is less deserving of respect and support than other families. That’s a hurtful message.”

Judge Jones, in his ruling, said: “We now join the 12 federal district courts across the country, which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.”

Lyle Denniston provides his usual succinct summary of Judge Jones’s decision:

U.S. District Judge John E. Jones III, in a thirty-nine-page opinion, commented:  “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”  This was the twelfth federal trial court ruling in a row — decisions spread across the country — to nullify a state ban on same-sex marriages.  The judge also ruled that the state must recognize same-sex couples who live in the state but who were legally married elsewhere.

Judge Jones examined all of the legal issues on whether to provide greater constitutional protection for gays and lesbians against official discrimination, and found that they were entitled to it.  So he applied the middle-level constitutional test — “heightened scrutiny” — and found that the Pennsylvania laws do not meet that test.

In a separate order implementing his decision, he told state officials that they were permanently barred from enforcing the state laws.  His order did not mention any delay or postponement of that command.  State officials have the option of asking Judge Jones or the U.S. Court of Appeals for the Third Circuit to issue a stay of the ruling if they were to decide to appeal.

The ruling came in the case of Whitewood v. Wolf (District Court docket 13-1861).  It was filed by eleven couples — six seeking to marry, five seeking to have their out-of-state marriages officially recognized, a widow of a same-sex marriage seeking widows’ benefits, and two children of one of the suing couples, claiming that the state laws deny them social recognition and respect for their family.

Meanwhile, Dale Carpenter notes that Judge Jones’s decision differs from those that have come from other Courts in important ways:

Unlike other district courts recently, Judge Jones held that same-sex couples have a fundamental right to marry.  He held that the Pennsylvania couples were not seeking a “new” right but only participation in an old one, the right to marry.

He also ruled that the state’s ban on same-sex marriage violates the Equal Protection Clause, but also in a way that differs from the other recent district courts. First, like every other state and federal court to consider the issue since 1993, he rejected the contention that bans on same-sex marriage are a form of sex discrimination. Second, unlike most other district courts, he determined that sexual-orientation discrimination triggers intermediate scrutiny.  He was free to reach this conclusion because the Third Circuit is one of the few appellate courts that had not yet decided the issue.  Under intermediate scrutiny, the state could not justify the ban, he reasoned.

This intermediate-scrutiny approach seems to me to be the most doctrinally grounded way to strike down bans on same-sex marriage. It leaves in place the deferential caste of rational-basis review. It also makes clear what every court seems to have recognized recently: that there is a long history of discrimination against gays and lesbians, that sexual orientation is unrelated to individual merit, that it continues to be difficult for homosexuals to get legal protection through the political process in many areas of the country, and that there is not an “exceedingly persuasive” reason to exclude gay couples from marriage (even if there is a jurisprudentially “rational” one).

There isn’t really a whole heck of a lot that can be added to the discussion of Judge Jones’s decision here, to be honest. These rulings striking down same-sex marriage bans have become so commonplace over the past year or so that they hardly qualify as news anymore, especially when you have two in the same week as we’ve had here. Carpenter is correct, though to point out the novelty in his approach to the issue, and it’s important because it is potentially the best avenue by which the Circuit Courts of Appeal and the Supreme Court will ultimately proceed on this issue. Other Federal Judges have used the so-called “rational basis test,” which is the lowest level of review under the Equal Protection Clause and typically is very deferential to state action since all that the government generally has to show is some rational basis for unequal treatment. While the argument that there is no rational basis for barring same-sex marriage does have appeal, it may not be an argument that appeals courts will find persuasive because of the potential that it could unleash a torrent of Equal Protection Clause litigation on unrelated issues, all of which would attempt to pick apart government policy on a rational basis ground. Given that Courts are generally loath to strike laws down without a compelling reason, that’s something Courts would likely want to avoid. Utilizing the fundamental rights/heightened scrutiny argument that Jones does here would allow the appellate courts to strike down same-sex marriage bans without undermining more than a half century of case law on “rational basis” review.

Of course, this case itself may not make it to an appellate court, or could see any appeal cut short. Pennsylvania’s Attorney General, Democrat Kathleen Kane, refused to defend the case at the District Court level and said she would not defend it on appeal either. Instead, defense of the case has been handled at the direction of Republican Governor Tom Corbett, who is up for re-election this year. Corbett has not said yet whether he would seek to appeal the case to the Third Circuit Court of Appeals, however there is still plenty of time for him to make that decision. Even if Corbett does appeal the case however, it’s worth remembering that he is currently trailing all of his prospective Democratic opponents in the polls and is considered one of the most vulnerable Governors on the ballot in November. Should he lose, then the new Democratic Governor would presumably seek to withdraw the appeal. In the meantime, though, there has been no stay issued against Judge Jones’s ruling, which means that gay and lesbian couples across Pennsylvania are free to get married. That’s something worth celebrating.

Here’s the opinion:

Whitewood Et Al v. Wolf Et Al by Doug Mataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. JohnMcC says:

    It is so wonderful that Justice Scalia’s dissent in Lawrence will probably go down in U.S. history as the legal genius that pointed the way to full acceptance of same-sex marriage.

    Like or Dislike: Thumb up 6 Thumb down 0

  2. Paul L. says:

    Quoting the opinion Citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love.

    Does the “right to marry the person they love” apply to persons who are already married or related?

    I would guess the answer is no. Noting the use of the word couples in the opinion
    “have concluded that all couples deserve equal dignity in the realm of civil marriage.”

    Bigot.

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 18

  3. Neil Hudelson says:

    @Paul L.:

    Does the “right to marry the person they love” apply to persons who are already married or related?

    Who is stopping married people from getting a divorce and marrying the person they love? This is the best you have?

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 0

  4. Paul L. says:

    @Neil Hudelson:
    You know what I mean.
    Still waiting for a pro gay marriage marriage equality argument that can not be applied to polygamy.

    Like or Dislike: Thumb up 1 Thumb down 15

  5. An Interested Party says:

    I wonder if the people who argued against interracial marriage threw around scary arguments about how if that was allowed, polygamy and marriage between blood relatives would have to be permitted too…this all or nothing argument is more than a little silly…

    Still waiting for a pro gay marriage marriage equality argument that can not be applied to polygamy.

    Also still waiting for an anti-gay marriage argument that doesn’t involve heterosexuals having the icky feelings about gay sex or the silly slippery slope argument about polygamy and legalized incest…

    Like or Dislike: Thumb up 7 Thumb down 0

  6. anjin-san says:

    @ Paul L

    Damm. You are right!

    I am off to marry my 13 year old cousin who is already married. And I may engage in beastealty at the bachelor party.

    With the gay agenda now firmly in place, I don’t really have a choice.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 0

  7. C. Clavin says:

    Freedom marches on…in spite of Republican efforts to stop it.

    Like or Dislike: Thumb up 3 Thumb down 0

  8. Hal_10000 says:

    I’m not surprised. Judge Jones was also the ruling judge in the Dover case on intelligence design and wrote a rousing opinion on that one.

    This debate is ending very rapidly. In ten years, gays will be able to marry anywhere in America. And in twenty, we’ll wonder what the big fuss was about. And maybe in thirty years, the Republicans will be able to undo the damage opposing gay marriage has done to their brand.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  9. Ron Beasley says:

    @Hal_10000: Indeed, you are indeed in trouble when your base is old and dying.

    Like or Dislike: Thumb up 2 Thumb down 0

  10. Matt Bernius says:

    @Paul L.:

    Still waiting for a pro gay marriage marriage equality argument that can not be applied to polygamy.

    Right, except for the fact that in America (and most of the Western World) the contractual aspect of mainstream, modern marriage has always been between only *two consenting* parties. And that entire *two party* thing is far more important than the gender thing from a conceptual, legal standpoint.

    In other words, extend marriage rights to same sex couples is appending some words into a sentence. The contractual/partnership aspect of marriage doesn’t change.

    Opening “marriage” up to three or more individuals fundamentally changes just about all the marriage and related laws in very profound ways.

    BTW, to head bad arguments off at the pass, the entire “consenting” thing is also why gay marriage arguments don’t work for people marrying under age children *or* people marrying animals *or* people marrying inanimate objects. None of those things are able to give legal consent.

    That’s, btw the way the problem with Paul L’s general snark (and similar arguments) — it pretends that marriage equality proponents are basing their argument on pure appeals to emotion versus the reality that they have to make them on actual legal theory.

    Like or Dislike: Thumb up 14 Thumb down 0

  11. Rafer Janders says:

    @Paul L.:

    Still waiting for a pro gay marriage marriage equality argument that can not be applied to polygamy.

    And I’m still waiting for a pro mixed-gender marriage argument that can not be applied to polygamy. After all, if you let one man marry one woman, what’s to stop one man from marrying two women? Three women from marrying two men?

    Like or Dislike: Thumb up 13 Thumb down 0

  12. de stijl says:

    Justice Scalia’s dissent in Lawrence

    Ha ha ha ha ha!

    Oh my golly, I am so happy that Scalia’s half-assed dissent has bitten him on the butt. Instead of just being the third worst SC justice of the last hundred years, he’s now the third worst SC justice who inadvertently made marriage equality the law of the land against his expressed beliefs.

    Karma, I don’t really believe in you, but in this case, you came through big-time. Ineptitude and hubris are such a satisfying combination. Enjoy Hell, sucka.

    Like or Dislike: Thumb up 5 Thumb down 0

  13. DrDaveT says:

    For those of us who only went to law school vicariously, could you expand on the whole “intermediate scrutiny” thing? Is this something that only applies when there is a history of discrimination?

    Like or Dislike: Thumb up 1 Thumb down 0

  14. OzarkHillbilly says:

    @Hal_10000:

    And maybe in thirty years, the Republicans will be able to undo the damage opposing gay marriage has done to their brand.

    Boy, are you optimistic!

    Like or Dislike: Thumb up 0 Thumb down 0

  15. mantis says:

    @Paul L.:

    Still waiting for a pro gay marriage marriage equality argument that can not be applied to polygamy.

    If you’re waiting for things that have already long since arrived, you’re just the crazy guy who sits at the bus stop all day. Do you need help getting home, sir?

    Like or Dislike: Thumb up 3 Thumb down 0

  16. KM says:

    @Matt Bernius:

    Opening “marriage” up to three or more individuals fundamentally changes just about all the marriage and related laws in very profound ways.

    Yes, it does and that might not necessarily be a bad thing. Marriage laws work from a contractual mindset; by being in this business arrangement, certain rights, privileges and responsibility are conferred upon the two individuals. I’ve always felt this was a little odd – other then serving as a legal reward for being in a socially desirable relationship, what is the point of the government doing this? Why should married couples be able to file jointly? Why should they get all these other “special rights” (I believe the number is something like 1,100)? It’s hard enough to make this work with two people – the red tape 3+ will make is nightmare inducing. Add divorce and custody battles in…. oi vey!

    Perhaps the government should reduce its influence or even get out of marriage period. Things like hospital visiting rights and the like can be addressed separately by law to codify across the board. Removing financial-related rights would certainly help towards slimming and streamlining the Tax Code (a Conservative fav). This could be a great way to trim down government involvement in daily life and help shrink the government by getting rid of a TON of rules and regulations.

    But somehow I don’t think that’s on the anti’s mind when they bring up going poly…..

    Like or Dislike: Thumb up 2 Thumb down 0

  17. Rafer Janders says:

    @KM:

    Perhaps the government should reduce its influence or even get out of marriage period.

    Government’s not really in the marriage business — it’s actually in the dissolution of marriage business. Divorce, and the decision as to how to allocate assets and housing and children and pets and visitation etc., are when government — by necessity — steps in.

    Like or Dislike: Thumb up 2 Thumb down 1

  18. Paul L. says:

    @Matt Bernius:
    The definition of Marriage is now open.
    You want to change the Genders.
    Why can’t I change the number.
    @KM:

    But somehow I don’t think that’s on the anti’s mind when they bring up going poly…..

    Maybe it is just a “let it burn” attitude.

    Like or Dislike: Thumb up 1 Thumb down 3

  19. DrDaveT says:

    @Paul L.:

    You want to change the Genders.
    Why can’t I change the number.

    Feel free to make your case. Just don’t pretend that the same arguments necessarily apply.

    Like or Dislike: Thumb up 3 Thumb down 0

  20. DrDaveT says:

    @Rafer Janders:

    Government’s not really in the marriage business

    You clearly do not live in Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah, Texas, the District of Columbia, New Hampshire, or (possibly) Oklahoma. Read up on “common-law marriage”, and the bizarre consequences that can ensue. Inadvertent bigamy (with associated criminal liability) is just one of them.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. Grewgills says:

    @Paul L.:
    Polygamy is much easier to defend biblically. Old Testament God hates the gays, but he loves him some polygamy and concubines. Then again OTG condemns probably at least 5 things you’ve done today. New Testament God doesn’t mention either (Paul mentions gays a couple of times, but those references are open to interpretation). The Romans gave us what you consider traditional Christian marriage to limit the franchise of citizenship. That’s right, the feeding Christians to lions, orgy loving, tickling their throat with a feather so they could yak and eat more Romans are who you look to for teaching on what a traditional Christian marriage is and should be.

    Like or Dislike: Thumb up 4 Thumb down 0

  22. Grewgills says:

    @Paul L.:
    Still waiting for a pro biblical marriage argument that can not be applied to polygamy.

    Like or Dislike: Thumb up 4 Thumb down 0

  23. Matt Bernius says:

    @Grewgills:

    New Testament God doesn’t mention either (Paul mentions gays a couple of times, but those references are open to interpretation). The Romans gave us what you consider traditional Christian marriage to limit the franchise of citizenship.

    Correct on point one. On point 2 — though some argue that Paul wasn’t the marrying type — it’s pretty clear that he favored a single spouse system (the passages you alluded two are pretty anti-polygamy/orgy as I remember

    Like or Dislike: Thumb up 0 Thumb down 0

  24. Matt Bernius says:

    @Paul L.:

    The definition of Marriage is now open.

    Right. Let’s redefine marriage to mean a piece of food, constructed by putting fillings between two pieces of bread!

    No wait, that doesn’t make sense. Marriage’s definition might be *more* open, but not *wide* open.

    You want to change the Genders.
    Why can’t I change the number.

    Changing the number requires an actual argument. I’ve present the legal rationale for why adding *same sex* marriage make sense and why adding multiple spouses *doesn’t make sense.*

    Let’s see you do the same. And, btw, since you’re the one who said any rational for same-sex marriage works for polygamy, you should find a way to do it under the same “equal protection” argument that sex marriage has used.

    Like or Dislike: Thumb up 3 Thumb down 0

  25. KM says:

    @Rafer Janders:

    Government’s not really in the marriage business

    Then why is my marital status necessary information on government documents, not as a statistical data point but something that results in categorization and differing treatment by that agency? Why does my marital status affect my tax return?

    Why do I get priority rights as my spouse’s next-of-kin over their own flesh and blood? The right to make medical decisions as inherent, rather then something that needs to be granted via a signed legal document?

    Why is there tax-free transfer of property between spouses and other tax exemptions?

    What about spousal privilege in court? I’d say the right to not be forced to testify against my spouse or consider our conversations as privileged communication is definitely government business.

    Like or Dislike: Thumb up 1 Thumb down 0

  26. Matt Bernius says:

    @Rafer Janders:
    While there’s a lot more law surrounding dissolution of marriage, it’s pretty clear for all the reason’s cited above that the Government is very clearly in the marriage (or at least “civil union”) business and has been for all of modern history.

    Like or Dislike: Thumb up 1 Thumb down 0

  27. Ebenezer_Arvigenius says:

    Changing the number requires an actual argument. I’ve present the legal rationale for why adding *same sex* marriage make sense and why adding multiple spouses *doesn’t make sense.*

    No you didn’t. You pointed to the fact that a multiple-party contract is likely more complex than a two-party contract. Since none of the relevant arguments for same-sex marriage rest on the notion that it is “equally easy” that tells us little.

    The main notion in favour of – “consenting adults” – also applies to polygamy.

    I’m as pro gay marriage as they come but the insistence that its defence is completely different from a defence of polygamy is just bonkers. Not necessary legally (where you can easily argue that multi-party is sufficiently different from dual-party) but morally (where the real discussion happens). In the end this is little more than an attempt to divorce a currently still widely morally detested practice from a no longer widely morally detested practice to give the latter better press coverage.

    Like or Dislike: Thumb up 2 Thumb down 0

  28. Matt Bernius says:

    @Ebenezer_Arvigenius:
    Oops, you’re completely correct sir. I got two threads confused and I thought I’d written about Equal Protection here.

    I should have said that the legal argument for Same Sex Marriage hangs — in the US — on the Equal Protection clause — and the fact that special privileges are extended to heterosexual couples based on their ability to get married, which are (for the moment) simultaneously withheld from same sex couples.

    I have nothing against polyandry, but I can’t see a solid argument for the extension of equal protection to folks who *want* to be in a three-or-more marriage. But to your point, I am approaching this from a primarily *legal* perspective. As you agreed:

    Not necessary legally (where you can easily argue that multi-party is sufficiently different from dual-party)

    I’m also not personally convinced that in terms of drive or wiring, polyandry is in any real way equivalent to homosexuality.

    Like or Dislike: Thumb up 1 Thumb down 0

  29. Gavrilo says:

    @Matt Bernius:

    So, it’s your argument that the equal protection clause only applies to relationships involving two people? Why?

    Like or Dislike: Thumb up 0 Thumb down 0

  30. Matt Bernius says:

    @Gavrilo:

    So, it’s your argument that the equal protection clause only applies to relationships involving two people? Why?

    It’s not so much that it applies to relationships involving two people so much as — for the moment — I have yet to see a convincing argument that polygamists qualify for equal protection under these situations. In part, I admit this is because the entire (civil) marriage system is currently set up for for couples.

    It’s much easier for me to see how excluding one class of couples (i.e. same sex) is a clear equal protection violation.

    That said, put forward a strong argument and I’m willing to listen. I’ve been wrong/changed opinions in the past. I’m sure I will do it again.

    Like or Dislike: Thumb up 3 Thumb down 0