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Posts for June, 2014

Meanwhile down in Louisiana

Timothy Kincaid

June 25th, 2014

Today Judge Martin Feldman (a Reagan appointee) was expected to rule on whether same-sex marriages conducted in other states should be recognized by the state of Louisiana. He did not. Rather, he said that he wanted to determine whether the state could ban same-sex marriages at all. (nola)

After hearing more than an hour of argument, only on the question of whether Louisiana must recognize same-sex marriages from other states, Feldman told attorneys and a packed courtroom he wants to address the pending legal questions in one ruling, rather than decide the disputes in a “piecemeal” fashion. That means attorneys must file more legal briefs with the court during the next month. Feldman might hear oral arguments.

Sue Collins endorses marriage equality

Timothy Kincaid

June 25th, 2014

sue collins
Senator Susan Collins (R – Maine) has announced that she supports marriage equality. (Bangor Daily News)

“A number of states, including my home state of Maine, have now legalized same-sex marriage, and I agree with that decision,” Collins said in response to a question from the BDN.

This shocks exactly no one. Collins has been a long-time ally of the community and was instrumental in overturning the ban on open service in the military.

She joins only three other GOP Senators in openly supporting marriage equality: Senators Rob Portman of Ohio, Mark Kirk of Illinois and Lisa Murkowski of Alaska. It is, nevertheless, an important addition and a step in the long road of changing the position of the Republican Party.

It will be interesting to see the response. I suspect the usual loons in the anti-gay special interest groups will whine, but I’m betting that no one in the party leadership is in anyway critical of Sen. Collins.

We are winning. Today was a good day.

Boulder Colorado starts issuing marriage licenses

Timothy Kincaid

June 25th, 2014

Utah is not, of course, the only state impacted by the decisions of the Tenth Circuit Court of Appeals. Also in the Tenth Circuit are Colorado, Kansas, New Mexico, Oklahoma, and Wyoming.

And the Boulder County Clerk and Recorder, Hillary Hill, has decided that this decision gives her the authority to act. (Fox 31)

“Because 10th Circuit decisions are binding in the State of Colorado, the precedent established by Kitchen v. Herbert is applicable to the same-sex marriage ban contained in the Colorado Constitution,” said a statement from the Clerk and Recorder’s Office.

“Couples across Colorado have been waiting a long time to have their right to marry the person they love recognized,” said Hall in a statement. “I want to act immediately to let them carry out that wish.”

The decision of the Tenth Circuit was stayed, and likely the move by Hall will be halted. But it will be fascinating legal drama in the meanwhile.

Add Indiana to the list

Timothy Kincaid

June 25th, 2014

KWQC

U.S. District Judge Richard Young ruled Wednesday that the state’s ban violates the U.S. Constitution’s equal-protection clause in a mixed ruling involving lawsuits from several gay couples.

Details are a bit sketchy so far, but the ruling is here.

Update: Here are the details.

Methodists reinstate Schaefer

Timothy Kincaid

June 24th, 2014
Rev. Frank Schaefer with his son Tim

Rev. Frank Schaefer with his son Tim

Last year a regional court of the United Methodist Church expelled Frank Schaefer from ministry.

Schaefer was a pastor of a small church in rural Pennsylvania when he officiated at his son’s wedding to another man. He didn’t make a big statement about it, and no one seemed to know or care until years later. But right before the statute of limitations on violations of the church rules ran out, a disgruntled parishioner complained to his Bishop and Schaefer was brought on trial.

There a jury of 13 pastors found him guilty of “conducting a ceremony that celebrates same-sex unions” and “disobedience to order and discipline of the Methodist Church.” They sentences him to a 30 day suspension, and insisted that he promise to never officiate at same-sex weddings again.

But Schaefer has two more gay children and refused to promise to reject their future marriages, and so he was defrocked.

This didn’t actually decrease Schaefer’s ministry. He was invited by serve in a quasi-pastoral role by the Los Angeles Diocese and has been in much demand around the country as a guest minister in Methodist (and other) Churches who wished to show support for inclusion and equality.

And Schaefer has never agreed that his action was contrary to the spirit of his faith. Nor has he taken the ruling lying down. Schaefer appealed the decision to a higher Methodist court, insisting that a failure to promise is not a punishable offense. The court agreed (NYTimes)

A United Methodist Church appeals committee — a nine-member panel made up of laypeople and clergy members — said Tuesday that it had decided to overturn the ouster of the Rev. Frank Schaefer, who with three gay children and a determination to celebrate their relationships has become an unexpected champion of gay men and lesbians in church life.

The panel deemed the defrocking to be an illegitimate effort to punish Mr. Schaefer for his refusal to promise not to preside at another same-sex wedding.

The decision is likely less based in the language of the Book of Order and more in the increasing refusal of American Methodists to be held to the anti-gay votes of international members of the global denomination. And it does suggest that at some point the US’ second largest Protestant denomination was schism.

The next assembly of the United Methodist Church is in 2016. Supporters of gay equality will push hard for a change in the denomination’s rules, and conservatives will continue to rally support from Asia and Africa in hopes of holding to anti-gay positions. It seems increasingly unlikely that anyone can stand outside the debate or not select sides. And irrespective of the outcome, a separation seems likely.

As for Schaefer, now that he has been “refrocked” he will be serving as pastor of a UMC church in Santa Barbara, California.

Ninth Circuit confirms heightened scrutiny

Timothy Kincaid

June 24th, 2014

In January, a drug pricing dispute between GlaxoSmithKline and Abbott Laboratories had an unexpected consequence; as part of its ruling, the Ninth Circuit Court of Appeals determined that laws which discriminate on the basis of sexual orientation are to be held to heightened scrutiny. This was based on principles implied – though not directly stated – in the Windsor ruling.

What this means in layman’s terms is that any law which discriminates against gay people is viewed askance, and the lawmakers need to bring a damned good reason as to why it doesn’t violate the US Constitution’s promise of fairness and equal treatment. Something tangible and provable and measurable. Things like “promoting the family” or “tradition” or fears about what might possibly happen are simply not going to fly anymore.

And there are few laws which can stand up to such scrutiny, certainly not the vague and ambiguous assertions presented in opposition to marriage equality. In fact, based on the decision, the Republican Governor of Nevada ceased defending that state’s anti-gay marriage ban, finding the conclusion to be pre-determined and any further defense to be a waste of public resources.

Noting the importance of this ruling, Abbott Laboratories, the losing party in the lawsuit, announced that they would not appeal, fearing that the Supreme Court might reverse this decision. They preferred a multi-million dollar loss rather than risk a hasty overruling.

This seemed to have sealed the decision for all western states, those in the Ninth Circuit.

However, in a rare move, one of the justices on the Ninth Circuit challenged the Court’s ruling. Justice Diarmuid O’Scannlain called for an en banc ruling, a hearing by eleven of the circuit’s 45 judges, to determine whether indeed the idea that anti-gay discrimination merits heightened scrutiny could be found in the Windsor ruling.

And now the results are in. The majority of the justices on the Ninth Circuit upheld the court’s ruling. In fact, only two went on record as agreeing with Justice O’Scannlain.

This appears to mean that the issue is – for the time being – determined. Within the Ninth Circuit, anti-gay laws must meet a higher level than most laws. And, in practical terms, this pre-determines the Ninth’s response to appeals to rulings overturning anti-gay marriage bans.

It may be a matter of hearing, but based on heightened scrutiny, it is nearly impossible for anti-gay legislators, lawyers, or activists do defend such bans.

Presbyterian Church (USA) votes to allow marriages

Timothy Kincaid

June 19th, 2014

With 2.8 million members, the Presbyterian Church (USA) is the eighth largest Protestant denomination in the United States. And as we reported yesterday, the denomination is meeting this week in Detroit, where its Marriage Committee passed recommendations that the denomination clarify their support for marriage equality. They have now done so.

Detroit News

The U.S. Presbyterian Church’s highest council Thursday voted to sanction same-sex marriage.

The assembly approved an amendment to the church constitution that would redefine marriage as between “two people” instead of “a man and a woman.” It also approved allowing its ministers to perform marriage ceremonies for same-sex couples in states where same-sex marriages are legal.

The amendment to the Book of Order will require ratification by the presbyteries. But, for all practical effect, same-sex marriages may now be officiated and blessed within Presbyterian churches.

A liveblog of the proceedings is provided by More Light Presbyterians.

Presbyterian committee approves change to specifically allow marriage

Timothy Kincaid

June 18th, 2014

The Presbyterian Church (USA) is meeting this week in Detroit for its biennial assembly. One of the items up for consideration is whether the church will change language so at to clarify that Presbyterian ministers are free to conduct same-sex marriages.

One method by which pro-gay Presbyterians are requesting this clarification is by means of Authoritative Interpretation, a way not of changing the Book of Order, but of interpreting what its language means. At present, the Book of Order does not specifically prohibit same-sex marriages, though a 1991 Authoritative Interpretation finds within the existing language a disallowance. A new Authoritative Interpretation could find otherwise. Specifically, 10-03 would allow individual pastors to follow their conscience when deciding whether to officiate at same-sex weddings.

The supporters also are seeking to amend the Book of Order to change language that describes (though not necessarily defines) marriage as between “a man and a woman” to be “two people”. This is 10-02.

Yesterday the marriage committee met and supported both positions. (More Light Presbyterians)

AI 10-03 passed with 51 in favor and 18 opposed. If approved at plenary, this AI would give teaching elders (pastors) immediate relief and authority of conscience in states with civil marriage equality.

The other AIs were considered and voted as being answered by the committee’s response to the first AI, thus making 10-03 the piece of business the committee recommends to the larger assembly.

Next under consideration came 10-02, which would be an Amendment to the Book of Order changing the description of marriage. As the afternoon hours progressed at a good clip, movement was swift to get a motion on the floor and seconded to approve 10-02. Next came the amendments to protect conservative PCUSA pastors who may choose not to perform same-gender ceremonies.

The committee voted with 49 in favor and18 opposed to amend the Book of Order of PCUSA to change marriage language allowing inclusion and equality for same-gender covenants and a freedom of conscience amendment, allowing pastors who oppose same-gender marriage as a matter of faith, the discretion to not preside at said marriages.

Both positions will be brought up before the General Assembly later in the week. Should the Amendment to the Book of Order pass the General Assembly, it will need ratification by a majority of presbyteries (regional bodies).

Luxembourg legalizes same-sex marriage

Timothy Kincaid

June 18th, 2014

From rtl.fr

Ce pays de tradition catholique, qui avait reconnu en 2004 le droit à l’union civile aux couples du même sexe, est ainsi le 11e pays européen à reconnaître le mariage gay. “Le Luxembourg deviendra plus solidaire et plus juste”, s’est félicité le ministre de la Justice, Félix Braz, à l’issue des débats à la Chambre des députés ce mercredi. Les premières unions devraient être célébrées au début de l’année 2015 , la loi devant entrer en vigueur six mois après son vote.

in English (google translation)

The Luxembourg Parliament voted by a large majority in favor of marriage and adoption for gay couples, this Wednesday, June 18. This traditionally Catholic countries, which in 2004 had recognized the right to civil unions for same-sex couples, so is the 11th European country to recognize gay marriage. “Luxembourg become more inclusive and just” is congratulated the Minister of Justice Felix Braz, following debates in the House of Representatives on Wednesday. First unions should be celebrated at the beginning of 2015, the Act to come into force six months after the vote.

Earlier, opponents of equality had attempted to derail – or at least delay – the long anticipated vote. But they were unable to rally the minimum opposition. They needed 4,500 signatures on a public petition (about eight tenths of one percent of the population) but were only able to collect 3,187 signatures.

Michigan GOP former Speaker of House calls for equality

Timothy Kincaid

June 17th, 2014

A number of formerly prominent Republicans have signed a brief urging the Sixth Circuit Court of Appeals to affirm the ruling that Michigan’s ban on same-sex marriage is in violation of the US Constitution. (ClickOnDetroit)

The Republicans include former House Speaker Rick Johnson and former House Majority Leader Chris Ward.

Former U.S. Rep. John “Joe” Schwartz has signed on, along with former state lawmakers Leon Drolet, Doug Hart, Dave Honigman and Susan Grimes Gilbert.

It seems to me that in some parts of the country we have now reached the stage in our quest for equality wherein former GOP leaders or power-players are beginning to champion our cause. And while most of those currently in power do not yet appear to be willing to be publicly supportive, many have elected to adopt language such as “let the judicial system decide” or even “it is inevitable, so we should focus on respecting each other”.

While Republicans are not speaking in harmony with not the fully supportive language of the Democrats, I think that these shifts in the political stance of Republicans leaders, both current and former, foretell a time not so distantly ahead in which civil equality is assured and not even terribly controversial.

SCOTUS: no stay on Oregon decision

Timothy Kincaid

June 4th, 2014

In April Federal Judge Michael McShane was presented with testimony as to why the State of Oregon’s constitutional amendment banning same-sex marriages was in violation of the US Constitution. The state chose not to defend the law and agreed that the law was unconstitutional, leaving no defenders of the ban.

At the last moment, the National Organization for Marriage sought to intervene in the case in support of the ban. Judge McShane found that they had no standing to intervene. He subsequently found that the law was in violation of the US Constitution and opened the state to same sex marriages.

NOM has appealed the decision rejecting standing to the Ninth Circuit Court of Appeals. They also requested that the Ninth Circuit stay McShane’s ruling until they could argue as to why they should have had standing. The Ninth declined.

Then NOM appealed the Ninth’s decision on stay to the Supreme Court of the United States. Judge Kennedy, who handles such matters for the Ninth Circuit requested that each side submit briefs. Buzzfeed

Kennedy, who hears procedural matters brought to the court from the 9th Circuit, referred the request to the full court, which denied the request without comment on Tuesday.

NOM’s appeal of the denial to intervene is the only matter left pending in the case because Oregon state officials had not fought the lawsuit, having agreed with the plaintiffs that the ban is unconstitutional They had said that they would not appeal the decision if U.S. District Court Judge Michael McShane struck down the ban.

Of course you cannot extrapolate from a commentless denial, but it would seem to be that if SCOTUS sees no need to stay it is because they see little likelihood that NOM will prevail in their petition to be heard.

Oregon United drops ballot measure (updated)

Timothy Kincaid

May 23rd, 2014

In July 2013, Oregon United for Marriage began the process of collecting signatures to place a proposition on the ballot to reverse the state’s 2004 constitutional amendment banning same-sex marriage. With significant high-profile political support and large contributions from some of Oregon’s corporate giants like Nike, they reached their goal of 116,000 signatures with an extra 50,000 to allow for errors or duplicates.

Earlier this year, in a brief submitted to the court, Oregon United stated that if Judge McShane ruled the ban unconstitutional by May 23rd, they would drop their ballot effort. The judge ruled earlier this week and the state will not appeal his ruling. So today Oregon United announced that they are discontinuing the process.

Today is May 23—and following Judge Michael McShane’s ruling that extended the freedom to marry to all loving, committed couples in Oregon, a ballot campaign to address the same issue is no longer needed. “We are confident that the freedom to marry is secure in Oregon and that we do not need to move forward with the ballot measure,” said Oregon United for Marriage deputy campaign manager Amy Ruiz. “It is time to celebrate this victory for Oregon.

UPDATE

Oregon United had accumulated hundreds of thousands of dollars in anticipation of needing a media campaign for the proposition. Now they are giving it back. (Statesman Journal)

That money came in large part from donations from other organizations like Basic Rights Oregon, the ACLU of Oregon, SEIU Local 503, Human Rights Campaign, Freedom to Marry, Gill Action Fund and the American Unity Fund.

And those groups will be getting some of that money back.

The marriage campaign’s executive committee has decided to return its remaining resources to its major donors in proportion to what they gave to the campaign.

Classy move.

Pennsylvania’s Marriage Equality Is Here To Stay

Jim Burroway

May 21st, 2014

No appeals, no stay. Pennsylvania Gov Tom Corbett (R), who is facing an uphill climb for re-election later this year, has announced that he will cut his losses in his defense of the state’s marriage laws which prohibited marriage equality for same-sex couples:

I have thoroughly reviewed Judge Jones’ opinion in the Whitewood case. 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.

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. 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. 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.

“We Are A Better People Than These Laws Represent”

Jim Burroway

May 20th, 2014

The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still bea racially segregated nation according to the now rightfully discarded doctrine of “separate but equal.” … In the sixty years since Brown was decided, “separate” has thankfully faded into history, and only “equal” remains.” Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage.

We are a better people than these laws represent, and it is time to discard them into the ash heap of history.

– Federal District Judge John E. Jones III, in striking down Pennsylvania’s ban on same-sex marriage.

As Timothy already noted, Federal District Judge John E. Jones III, who was appointed to the bench by President George W. Bush in 2002 with Sen. Rick Santorum’s recommendation, has declared Pennsylvania’s ban on same-sex marriage unconstitutional. The ban this time was in Pennsylvania’s 1996 marriage statute, rather than a constitutional amendment. Jones found that Pennsylvania’s statues violated both the Due Process and the Equal Protection Clauses of the U.S. Constitution. He also declined to stay his decision, which means that Pennsylvanians can apply for marriage licenses today. Pennsylvania imposes a mandatory three-day waiting period, which pushes the earliest marriages to Friday afternoon.

(Update: Ordinarily it’s pretty difficult to get a waiver for the three-day waiting period. But a number of judges are granting those waivers and the first marriages have now taken place.)

Jones begins his 39-page rather succinctly:

Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth’s laws to the contrary are unconstitutional. We now join the twelve 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.

Jones opened his ruling by describing, in considerable detail, the many ways that Pennsylvania’s denial of equal marriage have rendered same-sex couples and their families vulnerable. He notes that unmarried couples face as much of a 15 percent inheritance tax if one of them dies, that parents are force to spend thousands of dollars for second-parent adoptions, that some couples have spent over $10,000 in legal fees to prepare legal documents for wills, powers of attorneys, and other legal documents to protect their assets and partnerships, and couples have remained legal strangers to each other in life and in death because of Pennsylvania’s ban. It was that discrimination that this particular case was brought to address:

Writing for the majority in Windsor, Justice Kennedy opined that discrimination caused by the non-recognition of same-sex couples’ marriages “impose[s] a disadvantage, a separate status, and so a stigma upon” same-sex couples in the eyes of the state and the broader community. Id. at 2693. Not only are these stigmatizing harms cognizable, they are profoundly personal to Plaintiffs and all other gay and lesbian couples, married or not, who live within the Commonwealth of Pennsylvania and thus are subject to the Marriage Laws. Additionally, and as discussed in greater detail above, see discussion supra Part I.B., Plaintiffs suffer a multitude of daily harms, for instance, in the areas of childrearing, healthcare, taxation, and end-of-life planning. With the Plaintiffs’ stories in mind, we easily find that Plaintiffs have sufficiently established that they suffer actionable harms, and Defendants’ argument to the contrary is rejected.

In his discussion of the Due Process clause, Jones hit on what I think is a key insight. The bolding is mine for emphasis:

With the weight and impetus of the foregoing Supreme Court jurisprudence in mind, this Court is not only moved by the logic that the fundamental right to marry is a personal right to be exercised by the individual, but also rejects Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry. The right Plaintiffs seek to exercise is not a new right, but is rather a right that these individuals have always been guaranteed by the United States Constitution. As aptly explained by the Supreme Court in Lawrence:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

…we specifically hold that the fundamental right to marry as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution encompasses the right to marry a person of one’s own sex. We further hold that this fundamental right is infringed upon by 23 Pa. C.S. § 1102, which defines marriage as between one man and one woman and thus precludes same-sex marriage. Accordingly, 23 Pa. C.S. § 1102 is unconstitutional.

Jones also declared that the Pennsylvania statute that barred the state from recognizing same-sex marriages from other states also violated the Due Process clause and was therefore unconstitutional.

Jones then went on to examine the Equal Protection Clause, which meant that he needed to determine the appropriate level of scrutiny to apply. Because the Third Circuit has never ruled on the level of appropriate scrutiny on cases based on sexual orientation, Jones was free to consider the arguments. Here, he gets a little bit of help from U.S. Supreme Court justice Antonin Scalia:

While Windsor, the most recent apposite pronouncement by the Supreme Court, offers little concrete guidance, we glean from it and other Supreme Court jurisprudence that heightened scrutiny is, at minimum, not foreclosed. Indeed, in the tea leaves of Windsor and its forebears we apprehend the application of scrutiny more exacting than deferential.

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. …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)…

Jones notes that four factors are needed to determine if heightened scrutiny is to apply: “(1) the class has been subjected to ‘a history of purposeful unequal treatment,’ … (2) possesses a characteristic that ‘frequently bears no relation to ability to perform or contribute to society,’ … (3) exhibits ‘obvious, immutable, or distinguishing characteristics that define them as a discrete group[,]‘ … and (4) is ‘a minority or politically powerless. Of the four factors, the first two are most meaningful.”

On the first point, Jones noted that “the gay and lesbian community has endured historical discrimination at the national level is uncontested” and “we find that this consideration points strongly toward the application of heightened scrutiny. On the second point, “We need not linger on this criterion: it is axiomatic that sexual orientation has no relevance to a person’s capabilities as a citizen. For the third point, “Whether sexual orientation constitutes a sufficiently discernible characteristic is also little in debate and, for our purposes, undisputed by Defendants.” (He also dismissed the “immutability” test: “the test is broader, encompassing groups whose members can hide the distinguishing trait and where the characteristic is subject to change.”) And on the question of political power, Jones found that the failure of the state legislature to enact a marriage equality bill or an anti-discrimination bill amounts to “a weak positive in favor of heightened scrutiny.” All of which means that he found in favor of applying heightened scrutiny:

In terms of state interests served by Pennsylvania’s Marriage Laws, Defendants advance the following: the promotion of procreation, child-rearing and the well-being of children, tradition, and economic protection of Pennsylvania businesses. Defendants appear to defend only the first two aims, stating that numerous federal and state courts have agreed that responsible procreation and child-rearing are legitimate state interests and providing extensive authority for that proposition. Significantly, Defendants claim only that the objectives are “legitimate,” advancing no argument that the interests are “important” state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further. Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.

In sum, Defendants have failed to carry their burden, and we conclude that the classification imposed by the Marriage Laws based on sexual orientation is not substantially related to an important governmental interest. Accordingly, we hold that the Marriage Laws violate the principles of equal protection and are therefore unconstitutional.

There is no word yet on whether Gov. To Corbett intends to appeal or seek a stay from the Third Circuit.

Radical Militant Activist Judge Jones

Timothy Kincaid

May 20th, 2014


Anti-gay activists like to pretend that the only way marriage equality is obtained is through the machinations of radical militant activist judges who impose their leftist agenda against the will of the people. So it’s always nice to know a little about who these judges are and how they came to hold their position.

Judge John E. Jones III, whose ruling found that Pennsylvania’s ban on same-sex marriage (legislative, not a constitutional amendment) is in violation of the US Constitution, is a bit hard to sell as a radical militant activist with a leftist agenda. But he’s certainly had that accusation thrown at him before, when he found that intelligent design could not be part of a school curriculum.

Before Jones became a jurist, re ran for Congress for the Sixth Congressional District seat and then, when unsuccessful, was co-chair of the transition team for Governor-elect Tom Ridge. He considered a run for Governor in 2001. As a Republican.

Jones was appointed by President George W. Bush as federal judge on the United States District Court for the Middle District of Pennsylvania in February 2002 and was unanimously confirmed by the United States Senate on July 30, 2002.

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