Poor sad delusional NOM
May 21st, 2014
The National Organization for Marriage (theirs, not yours) is all upset with Republican Pennsylvania Governor Tom Corbett for choosing not to appeal federal Judge John Jones III’s ruling that the state’s same-sex marriage ban violates the US Constitution. Whatever.
But the part that is truly worth a giggle – especially after being slapped down this week by Oregon’s Judge McShane – is this:
Brown said that the National Organization for Marriage is itself evaluating whether it could intervene in this case on behalf of its Pennsylvania members. It is also looking into what other options might exist to work with people or groups in the state who have standing to mount the strong defense of marriage called for in this case.
Pennsylvania’s Marriage Equality Is Here To Stay
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”
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
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.
Pennsylvania ruling: marriage ban unconstitutional
May 20th, 2014
Pennsylvania has become the latest state in which a Federal judge has ruled that marriage bans which exclude same-sex couples are in violation of the US Constitution. As of yet, there is no stay on the ruling. (WaPo)
In the wake of last June’s Supreme Court decision striking down part of the federal Defense of Marriage Act, U.S. District Court Judge John Jones III said the commonwealth’s state version of the law was unconstitutional. The suit was brought on behalf of 23 plaintiffs by the American Civil Liberties Union.
“[W]e hold that Pennsylvania’s Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution,” Jones wrote in his ruling, uploaded by equalitycasefiles.org.
Pennsylvania Attorney General Kathleen Kane (D) had refused to defend the law, so attorneys for the Office of General Counsel, which reports to Gov. Tom Corbett (R), stood in for the state.
At present, including Oregon and Pennsylvania, there are 19 states and the District of Columbia in which same sex couples may marry. There are an additional nine states in which a marriage ban has been found to be unconstitutional but in which the ruling has been stayed on appeal.
It’s election day (primary) in Pennsylvania and Governor Tom Corbett has yet to comment on the decision. His history with the case has been one of embarrassment, including his rejection of the arguments made by his legal team. I’m certain that he’s hoping that the election results will allow him to keep as low a profile on the ruling as possible.
I expect an appeal, but would not be shocked by “the courts have spoken”.
Pennsylvania marriage ban may not get trial
April 22nd, 2014
The ACLU, which is challenging Pennsylvania’s ban on same-sex marriage, and Governor Tom Corbett (R), who is defending the ban, have both called on Judge John E. Jones III to not schedule a trial. (ACLU)
A trial became unnecessary after the commonwealth stated that it will not call any experts to counter the plaintiffs’ argument that there is no rational reason why lesbian and gay couples are excluded from marriage, nor does it plan to dispute the specific harms caused to the plaintiffs by the marriage ban. All legal papers in the case will be filed by May 12, meaning a ruling could come at any time after that date.
Both sides have presented written briefs and asked the judge for summary judgment.
Corbett’s defense of the ban has been tortured and troublesome.
On July 24, 2013, the county clerk in Montgomery County began issuing marriage licenses. And after the state Attorney General Kathleen Kane (D) said that she was not defending the ban, Corbett took nearly a week before he announced that he would do so.
Then when his legal team filed a brief comparing same sex marriage to a union between 12 year olds, Corbett refuted the comparison and apologized. And then he provided a comparison of his own, marriage between siblings. And then found himself apologizing again.
Since that time, Corbett has tried to keep his defense of the ban mostly about “because it’s my job to defend the law” and has come out in support of a non-discrimination bill.
Oh yeah, cuz that’s sooooo much better
October 4th, 2013
Pennsylvania Governor Tom Corbett objected to his own legal team’s court filing in opposition to marriage equality for comparing same-sex marriage to marriage between children. Here he gives us his “better” comparison.
UPDATE: And Corbett has “apologized” for his “better analogy”:
During a recent interview, I was asked to comment on the ruling by Judge Pellegrini that the Montgomery County Clerk of Courts did not have the power to decide the constitutionality of state laws.
My words were not intended to offend anyone. If they did, I apologize.
I explained that current Pennsylvania statute delineates categories of individuals unable to obtain a marriage license. As an example, I cited siblings as one such category, which is clearly defined in state law. My intent was to provide an example of these categories.
The constitutional question is now before a federal court and that is the venue in which same-sex couples wishing to legally marry have standing to intervene and be heard. Same-sex marriage is an important issue and the question of its legal status is one that will be heard and decided upon its merits, with respect and compassion shown to all sides.
It seems Corbett not only has no clue about what offends gay people or anyone who has ever met any, he also hasn’t the faintest idea how to craft an apology.
There, He Said It: PA Gov Thinks Same-Sex Marriage Is More Like “Brother and Sister”
October 4th, 2013
Pennsylvania Gov. Tom Corbett (R) in August distanced himself from state lawyers which justified the state’s ban on same-sex marriage by saying there’s no discrimination involved because marriages between twelve-year-olds are also illegal. Corbett called that reasoning “inappropriate.” What is an appropriate argument? How about comparing same-sex marriage to a union between brother and sister?
Anchor Sherry Christian of Harrisburg’s WHP-TV didn’t know quite how to handle this exchange:
CHRISTIAN: There was a controversial remark made by a member of your legal team comparing gay marriage to the union of twelve-year-olds, saying both are illegal, which you called inappropriate.
CORBETT: It was an inappropriate analogy. I think a much better analogy would have been brother and sister. Don’t you?
CHRISTIAN: [Awkward pause] … I don’t know. [Nervous laughter]
CORBETT: Well we…
CHRISTIAN: I don’t know. I’m going to leave the comments to you and your team, but you did say it was inappropriate, and you have a better phrasing that you think…
The Commonwealth of Pennsylvania is defending its marriage equality ban in Whitewood v. Corbett, which was filed in July in Federal District Court by the ACLU. The Commonwealth is also suing in state court to try to halt Montgomery County from issuing marriage licenses to same-sex couples.
PA Gov Hires Law Firm To Defend State’s Ban on Same-Sex Marriage
September 6th, 2013
Gov. Tom Corbett (R) has hired a Chester County law firm to represent the Commonwealth in a marriage equality suit filed in U.S. District Court. The case, Whitewood v. Corbett, was filed in July by the ACLU and challenges the state’s law banning same-sex marriage. (Pennsylvania does not have a constitutional banning same-sex marriage.) William Lamb, who is described as a “super lawyer” by the Philadelphia Inquirer’s Commonwealth Confidential blog, is a former state Supreme Court Justice and district attorney for Chester County:
Corbett’s general counsel James Schultz said the “unique circumstances” of this case compelled the Office of General Counsel to retain expert assistance in this case. “The Office of General Counsel provides comprehensive legal services to numerous state agencies and executives, but we do not typically defend cases that solely challenge the constitutionality of a statute,” Schultz said. “Who better than a former Supreme Court Justice and his firm to assist in addressing this type of fundamental question?”
Schultz continued, “Legal arguments concerning the constitutionality of any state law are a pressing matter for the commonwealth, along with all concerned parties, and it is important that these cases receive a comprehensive defense,” he said. “Justice Lamb and his firm bring a unique set of legal experience and skills to this case.”
The action comes after Pennsylvania’s Attorney General Kathleen Kane announced that she would not defend Pennsylvania’s law restricting marriage to opposite-sex couples, saying that she does not believe the statute is constitutional. The ACLU welcomes the move:
“We appreciate having good counsel on the other side because generally it improves presentation of the competing arguments, which helps the judge reach a sound decision,” (ACLU of Pennsylvania legal director Vic Walczak) said.
PA’s court considerations
August 22nd, 2013
The Pennsylvania Commonwealth Court has issued the list of issues which it will consider in relation to the issuance of same-sex marriage licenses. (Observer-Reporter)
The court wants lawyers to focus on whether the court has jurisdiction, given that Hanes is a judicial officer.
Other questions are whether issuing marriage licenses are a judicial act and whether the constitutionality of Pennsylvania’s marriage law can be raised as a defense in the case.
Also at issue are whether the Department of Health has standing to sue, and if not, the effect of Democratic Attorney General Kathleen Kane’s delegation of defense of the law to Republican Gov. Tom Corbett’s legal staff.
Do Brethren marry?
August 20th, 2013
There is an article on centredaily.com about the mayor of State College, Pennsylvania, hosting same sex marriages for licenses issued by Montgomery County clerk Bruce Hanes. It’s a nice piece, but I did a double-take when I read the following:
The couple, from Bushkill, Pike County, were married Monday morning at the home of State College Mayor Elizabeth Goreham. They received a marriage license in Montgomery County on Thursday and immediately made arrangements for the ceremony.
Davis and Scalzo were married by the Rev. Ken Kline Smeltzer, from a local Church of the Brethren.
This caught me by surprise. It was not my impression that ministers with the Church of the Brethren could officiate at same-sex marriages.
The Church of the Brethren is one of the three historic pacifist churches (Quakers and Mennonites being the other two). There are about 1,000 churches with about a quarter of a million congregants, mostly in Pennsylvania and the Virginias. They believe in simplicity in worship and life, service to others, sole adherence to the New Testament, and originate from an evangelical tradition.
They also are non-hierarchal and believe in a “priesthood of all believers”. Yet even though congregations tend to be autonomous, this is a rather aggressive step outside the proclaimed shared doctrine. It will be interesting to see if Rev. Smelter’s decision is accepted as a matter of “unity in diversity” or whether some within the denomination will seek to restrain the officiation at same-sex marriages.
PA Gov. Says Montgomery Co.’s Issuing Marriage Licenses “Risk Causing Serious Harm”
August 14th, 2013
In a legal filing on Monday by lawyers for the Pennsylvania’s state Health Department and Gov. Tom Corbett (R), lawyers argued that the actions of Montgomery County Clerk D. Bruce Hanes’s decision to begin issuing marriage licenses “risks causing serious and limitless harm” and is a violation of the separation-of-powers in the state of Pennsylvania. The Corbett administration is asking the court to order a halt to the issuing of marriage licenses to same-sex couples.
“There is no limit to the administrative and legal chaos that is likely to flow from the clerk’s unlawful practice,” the administration’s lawyers wrote.
The administration said Hanes has a duty to follow state law that defines marriage as between a man and a woman – and argued that county officials who flout the law “may be guilty of a misdemeanor for each act of neglect or refusal.”
…”Ours is a government of laws, not one of public officials exercising their will as they believe the law should be or will be,” the administration argued, adding that only courts can declare a law unconstitutional and suspend it.
Hanes began issuing marriage licenses to same-sex couples following the Supreme Court’s decision striking down the Defense of Marriage Act and State Attorney General Kathleen Kane’s (D) announcement that she wouldn’t defend the state’s ban on marriage equality in court. The state’s statute limiting marriage to opposite-sex couples is being challenged in court by the ACLU.
Pennsylvania marriages to continue for a while
August 7th, 2013
The Court has set August 12th as the deadline for the administration to filea brief in support of its suit, and the following Monday August 19th is the date by which the county must file its brief in response.
After briefs are filed, the court says it will schedule arguments on an expedited basis. A court spokesman says a judge will be assigned to the case after the briefs are filed, as well.
Pittsburgh-area Mayor Officiates Gay Couple’s Wedding
August 6th, 2013
Two weeks ago, the Clerk Bruce Hanes of suburban Philadelphia’s Montgomery County began issuing marriage licenses to same-sex couples. Pennsylvania’s Health Department is suing to halt those marriages. Now the mayor of the Pittsburgh-area suburb of Braddock, Mayor John Fetterman, has joined the fray by marring a same-sex couple who obtained one of those Montgomery County licenses. John Kandray and Bill Gray were married last night after eleven years together:
“I just think it’s time people in Pennsylvania say, Mr. Corbett, you know, tear down this law,” Fetterman said. “DOMA is a fundamentally unjust piece of legislation.”
“We pay the same taxes, we do everything the same, but we don’t have the same rights,” Kandray said.
“It felt like, you know what, let’s stand up for ourselves and do this,” he added.
The ACLU is currently challenging the state’s 1996 law banning same-sex marriage in Federal Court. Pennsylvania does not have a constitutional ban on marriage equality.
PA Health Dept. sues to stop marriage licenses in Montgomery County
July 30th, 2013
The state Health Department filed a lawsuit Tuesday in Commonwealth Court against D. Bruce Hanes. He oversees the granting of marriage licenses in Montgomery County, just outside Philadelphia.
The lawsuit asks the court to prevent Hanes from giving them to gay couples because it violates state law.
So it appears that Governor Tom Corbett (R) has finally decided to act… and to do so in a way as far removed from himself as possible.
While it is sad to see a challenge, it is a necessary part of the process. Until a court hears the case, there is no certainty for those couples who have married using the licenses issued by Montgomery County.
It will be interesting to see the mechanics of the lawsuit. The Attorney General will not be representing the Health Department (as would usually be the case) and while I suppose that the Health Department has inhouse counsel, I don’t know if it has a great deal of trial experience. Perhaps the Governor’s office will get involved, but so far he’s done his best to pretend as if nothing unusual is happening.