Pennsylvania Will Not Appeal Same-Sex Marriage Ruling
In a move that comes as somewhat of a surprise, Pennsylvania Governor Tom Corbett has announced that he will not pursue an appeal of the ruling issued yesterday striking down the state’s ban on same-sex marriage:
WASHINGTON — Pennsylvania Gov. Tom Corbett will not be appealing Tuesday’s ruling bringing marriage equality to the Keystone State.
Judge John E. Jones III decided Tuesday that the statutory ban violates the due process and equal protection clauses of the U.S. Constitution.
“I have thoroughly reviewed Judge Jones’ opinion in the Whitewood case,” Corbett said in a statement Wednesday. “Given the high legal threshold set forth by Judge Jones in this case, the case is extremely unlikely to succeed on appeal. Therefore, after review of the opinion and on the advice of my Commonwealth legal team, I have decided not to appeal Judge Jones’ decision.
Pennsylvania Attorney General Kathleen Kane, a Democrat, refused to defend the ban because she viewed it as unconstitutional, leaving Corbett, a Republican, to defend the state’s 1996 statute banning same-sex couples from marrying and barring the state from recognizing marriages of same-sex couples from elsewhere without support from the AG’s office. He did so at the trial court, but, following Tuesday’s opinion from Jones striking down the law, he has decided not to take his defense further.
The news comes more than 24 hours after Jones declared the ban unconstitutional and after a night of celebrations in the state over the ruling and the licenses for which same-sex couples can now apply.
The move not to appeal, however, highlights the speed with which the marriage equality movement has rushed ahead of the fight for basic employment protections. Pennsylvania now is the first state in the country in which same-sex couples can marry, but could be fired for being gay with no recourse under state law.
In Corbett’s statement, he noted that his personal position on the issue is unchanged.
“As a Roman Catholic, the traditional teaching of my faith has not wavered. I continue to maintain the belief that marriage is between one man and one woman, he said, adding, “My duties as Governor require that I follow the laws as interpreted by the Courts and make a judgment as to the likelihood of a successful appeal.”
“Throughout the debate on this important and meaningful issue, I have maintained that Commonwealth officials and agencies would follow the provisions of Pennsylvania’s marriage law unless or until a court says otherwise,” he said. “The court has spoken, and I will ensure that my administration follows the provisions of Judge Jones’ order with respect for all parties. It is my hope that as the important issue of same-sex relationships continues to be addressed in our society, that all involved be treated with respect.”
The fact that Corbett is in a tight re-election race no doubt played a role in his decision here. If he is going to pull out a victory here, and that is by no means certain, he will have to win the support of the politically moderate swing voters in areas around Philadelphia and Pittsburgh and, as polling has increasingly shown, those voters increasingly support marriage equality. While it may not have been an issue that decided the election, an appeal of a decision that is likely popular with Pennsylvania voters would have been yet another albatross for a re-election bid that already has enough problems. Unstated in all of this is whether there is any provision of Pennsylvania law that would allow a party other than the Governor to pursue the appeal, of course. Even if that were the case, though, such an appeal would likely face the same standing problems that the Appellants in Perry v. Hollingsworth, the case that challenged the Constitutionality of California’s Proposition 8. As you will recall, last June the Supreme Court ruled that those Appellants had no standing to pursue an appeal under Federal Law, thus leaving the initial District Court decision striking down the law as the final ruling on the matter and legalizing same-sex marriage in the nation’s most populous state.
Corbett’s decision makes Pennsylvania officially the 19th state to legalize same-sex marriage. Thanks to some judicial rulings, there have been a handful of others states that have claimed this title for a time, but that claim ended when the various stays were put in place by appeals courts. It also means that same-sex marriage is now legal in ever state from Maine south to Maryland and the District of Columbia and west to the Pennsylvania-Ohio border. While that doesn’t necessarily have an legal significance, it is yet another indication of how quickly the state of the law and public opinion have changed on this issue.
There well be some consternation regarding Corbett’s decision not to appeal here, just as there was consternation when the Obama Administration decided to no longer defend the Defense of Marriage Act against Constitutional challenges. As I noted at that time, though, there’s nothing improper with an Executive determining that it is not in the state’s interest to pursue a legal argument that is not likely to prevail in Court, both because of the resources that would be wasted and because of the fact that continuing to support an unpopular law would undermine the state’s credibility. Indeed, there is a long history of Presidents doing exactly that, and even more of a history of Governors and State Attorneys General making the same decision. In this case, both a Democratic Attorney General and a Republican Governor have determined that it is not worthwhile to appeal this case. That seems to be good enough for me.