“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.

Ben In Oakland

May 20th, 2014

Did someone just spank The Scali One again?



May 20th, 2014

It will take years to pick up the pieces of Rick Santorum’s exploded brain.

My husband just turned 91 years old one week ago and I’ve been reading these stories and decisions from the beginning, actually starting with the Lawrence case and then every other case that has occurred since them. They are as thrilling for him as the are for anyone. When the results of Prop 8 came in, he just plain skipped the proposal. “We’re getting married!’, he said. He was 85 when that happened.


May 20th, 2014

This is really a no-win situation for Corbett.

If he appeals, he loses even more support. If he doesn’t appeal, right-wing crazies will go berserk.

Even beyond the implications for the race, there is another element in play here:

If Corbett decides to appeal and then loses the election in November, the new Democratic governor will almost certainly drop the appeal.

I think the likelihood of appeal is 50/50 at best.

And I think Corbett losing is pretty likely, so marriage equality may be back in PA by the end of the year even if it is stayed now.


May 21st, 2014

Considering this was a challenge to a state statute rather than a constitutional amendment, does anyone know why it was brought to a federal court rather than a state court?

Timothy Kincaid

May 21st, 2014


It was argued as being in violation of the US Constitution. The proper place for such a challenge is federal court. If the argument was that it violated the state constitution (as in Arkansas) then state court.


May 22nd, 2014

That makes sense, Timothy. But why did they not argue that it violated the state constitution?

In fact, you have highlighted the weirdness of it. Through a unique twist in Arkansas law, a state constitutional amendment was challenged in a state court. Meanwhile, halfway across the country, a state statute, rather than a constitutional amendment, was challenged in federal court. Those two states got things backwards, darnit.

Timothy Kincaid

May 22nd, 2014


As to the “why”, well, I have no idea.

Eric Payne

May 22nd, 2014


If a law is found to be unconstitutional in regards to that state’s constitution, then one of the ways in which a state can “repair” that decision is to amend their constitution, thus making, implicitly, the “unconstitutional” constitutional.

That was exactly what happened in Hawaii — the state in which this all started. Their state law segregating marriage rights to heterosexual couples, only, was found by the state Supreme Court to be unconstitutional by the state’s constitution. Then came a ballot initiative to limit marriage rights to heterosexual couples via a state constitutional amendment. That amendment passed with 75% of the popular vote cast in that election.

The Ken Mehlman — a gay man, himself — took that ball and ran with it in the next Presidential election; while employed by GW Bush, Mehlman was single -handedly responsible for either the placement of, our drumming up support for, so-called “Marriage Protection” amendments in over 20 states. In each state, save one, those amendments passed by majority vote. Initially failing in Arizona, when the amendment was re-written and re-submitted to voters as a “gays only” initiative (the original’s language was vague; seniors “living in sin” would have lost, collectively, millions of dollars in state and federal benefits if passed), it passed… again, overwhelmingly.

Then Mehlman retired from political public life, took up residence in a marriage equality state, and released a statement saying, essentially, “Gee, people. I’m sorry. I was just doing my job to get my candidate elected. No hard feelings, okay?”

So the Pennsylvania case argued the state law violated the Federal Constitution, as no state’s individual laws or constitution may violate the United States’ Constitution.

Richard Rush

May 22nd, 2014

Sadly, I have to disagree with Jones’ contention that “We are a better people than these laws represent . . .”

If we were truly “a better people,” these laws (and laws/amendments in other states) would not have still been in place. It is precisely because we are NOT “a better people” that courts have been doing their job of undoing the tyranny of the majority against a minority.


May 23rd, 2014

Eric, if I read your excessive response correctly, you are suggesting that, in order to keep PA politicians from turning around and amending the state constitution over a state court challenge of a state law, the plaintiffs brought their case to a federal court? I can kind of see that, I guess. It seems like it could have been a gamble, though, if the case was appealed and ultimately lost at SCOTUS; PA does not seem poised to ever pass an anti-gay amendment.

At the same time, I wish other state constitutions had the mandate found in Arkansas requiring new amendments to be in harmony with certain basic rights.

Eric Payne

May 23rd, 2014


That’s exactly right, and the PA case was a gamble??? but a calculated one. PA is in the same Court of Appeals (the Third) as Delaware and New Jersey, and both those states are marriage equality states. Finding for PA could have changed law in two other states — and those two states have only recently made marriage equality the law, Delaware via the state legislature, and New Jersey via an unappealed state court ruling.


May 29th, 2014

You point out why a successful appeal for PA would NOT have changed laws in the other two states. Delaware is secured by legislative action and NJ by a STATE court ruling. Even if there is a finding that the US Constitution permits marriage discrimination against same-sex couples (and lets keep that straight – no matter how much discrimination the Constitution permits, it does not mandate such discrimination), that wouldn’t change what the NJ SC says the NJ constitution says, and would especially not undo a legislative action. Those states were secure, no matter what federal courts ruled, so the PA case was no threat to them.

Eric Payne

May 29th, 2014


I said “could,” intentionally. No, a ruling in Pennsylvania’s favor would not have automatically changed things for Delaware and New Jersey, but what it would do is give those in the states’ government of those states a template to use to re-create hetero-restrictive marriage amendments since, if Pennsylvania’s ban was constitutional in the Third’s opinion, then legislation/amendments that followed the wording of Pennsylvania’s law/amendment would also be constitutionally sound, at least in the Third Circuit. 2016 would have become another 2004.

Timothy Kincaid

May 29th, 2014

As both Delaware and New Jersey have strong popular support for equality and as both have legislatures that voted for equality, it seems very unlikely that any template for marriage restrictions will be utilized in those states.

The age of anti-gay marriage bans being newly instated has passed. North Carolina was, I believe, the last hurrah of those seeking such a ban.

As Senator Hatch said this week, “Let’s face it, anybody who does not believe that gay marriage is going to be the law of the land just hasn’t been observing what’s going on.”

Eric Payne

May 30th, 2014


You’re probably correct… but as we’ve seen in this fight, from year-to-year, who knows?

I was living in Arizona (Glendale, a suburb of Phoenix) when a “protect marriage” state constitutional amendment was rejected by voters. Election night, when all the political pundits were praising Arizona for being so progressive, I wrote (in a “Letter to the Editor” printed the next day in The Arizona Republic): “All this means is in the next election, this initiative will be re-written to say — “Hey, People! We mean “gays only” and not all the elderly straight people shacking up in Sun City!” Then, the measure will pass.”

Sure enough, that’s what happened. So if a Circuit Court would find any DOMA constitutional, at a political whim, all the advances we’ve made could be stopped, reversed, and have to be re-litigated, but with the added disadvantage a Circuit Court had found the wording of this new DOMA was constitutional.

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