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Same-sex marriage (SSM) In Pennsylvania

Part 6: 2014-MAY: District Court judge
legalizes SSMs. Some negative reactions.

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This topic is continued from a previous essay.

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HRC symbol 2014-MAY-20: Federal District Court issues ruling in Whitewood v. Wolf favoring marriage equality:

On this day, Pennsylvania became the final northeastern state in the U.S. to attain marriage equality --apparently on a permanent basis.

U.S. District Court Judge, Hon. John E. Jones III issued a ruling very similar to 13 other decisions that have been issued by District Courts since mid-2013. He stated that the existing marriage laws of Pennsylvania violate the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. They are thus unconstitutional and unenforceable.

Judge Jones was an appointee of George W. Bush (R) in 2002. Former Senator Rick Santorum ((R) from Pennsylvania, who has been a long-time national leader in opposing equality for the LGBT community, played a major role in promoting him as District Court Judge. At the time, Santorum described Judge Jones as:

"... highly qualified to assume the important role of Judge and the duty of protecting the Constitution and ensuring the effective operation of our judicial system." 1

Igor Volsky, writing for Think Progress, noted that Rick Santorum has had absolutely nothing to say about Judge Jones' ruling. Volsky wrote:

"... some Republican strategists suggest that Santorum’s choice to remain silent is indicative of the GOP’s decision to de-emphasize its rhetorical opposition to gay rights in an effort to attract younger and more moderate voters. ..."

"Following the party’s defeat in 2012, the Republican National Committee urged members to adopt a more inclusive tone on gay rights, describing the issue as a 'gateway' for young voters. And although Republicans still spent millions defending law that prohibited the federal government from recognizing same-sex unions, wide cracks appear to be forming in the party’s anti-gay armor." 1

He said that he kept all of the previous opinions by other District Court judges on his desk for reference as he was deciding this case. 2

In the past, Judge Jones had been best known for his decision in Dover, PA, where he ruled that the teaching of intelligent design in public schools violated the principle of separation of church and state as contained in the First Amendment to the U.S. Constitution. In reaction to that ruling, he and his family received death threats. Although he prepared for "incoming fire" over his SSM decision, he said that "... the response has been muted."

The dozen or so decisions by District Courts -- the lowest level in the federal court system -- do not establish precedents. That is reserved for the U.S. Circuit Courts of Appeal and particularly the U.S. Supreme Court. However, as constitutional expert Professor William Baude, at the University of Chicago, commented

"... there has to be some kind of momentum effect" 2

caused by the series of nearly identical rulings based on the same clauses of the 14th Amendment of the U.S. Constitution.

James Esseks, director of the Lesbian Gay Bisexual Transgender & AIDS Project at the American Civil Liberties Union said:

"This is how the country is understanding this issue now. When judge after judge after judge says the Constitution requires it, that makes a difference to Americans who know this country is governed by the Constitution and the law." 2

Judge Jones wrote that his court:

"... now join[s] 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." 3

Of course, faith groups have an absolute right to deny marriage to same-sex couples if that is their wish. That right is defined in the 1st Amendment to the U.S. Constitution.

Judge Jones did not apply a stay to his ruling, so same-sex couples were legally able to obtain their marriage licenses immediately.

Ron Donatucci, the Philadelphia Register of Wills, began issuing marriage licenses to same-sex couples very shortly after the ruling was delivered.

The City of Philadelphia announced that the Register's office would stay open until 5:30 that day and would observe extended hours from 8 AM to 7 PM during the next day to handle the expected surge of applicants.

In his ruling, Judge Jones included following remarkable, bold, and moving statements:

"The fundamental right to marry has been historically and repeatedly recognized by the Supreme Court and was perhaps most eloquently described in the concluding lines of Griswold v. Connecticut:

'We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions'."

"... we hold that Pennsylvania’s Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Because these laws are unconstitutional, we shall enter an order permanently enjoining their enforcement. 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.

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 be a racially segregated nation according to the now rightfully discarded doctrine of 'separate but equal...' In the sixty years since Brown [v. Board of Education] 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 what these laws represent, and it is time to discard them into the ash heap of history." 3

The state had 30 days to appeal the decision. Although Judge Jones did not impose a stay, the state was free to request one from the District Court or Court of Appeals in order to halt same-sex marriages once more.

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thumb down image2014-MAY-20: Some negative reactions to the arrival of marriage equality in Pennsylvania:

  • The Family Research Council is a conservative Christian para-church organization, which has been designated by the Southern Poverty Law Center as an anti-gay hate group. 4 Its president, Tony Perkins, issued a press release on MAY-20, saying:

     "Judge Jones ruling has no basis in Supreme Court precedent, and lacks any foundation in the text of the Constitution, or in the history or traditions of our country. Instead, he substituted his own personal dogmatic ideology as he proclaimed that any recognition of natural marriage should be thrown 'into the ash heap of history.'

    Perkins may have misunderstood Judge Jones' ruling. The District Court decision does not impact "natural marriage" which Perkins defines as a marriage between one woman and one man. The state will continue to issue marriage licenses to opposite-sex couples and will continue to register their resultant marriages. The ruling merely made marriage more inclusive by allowing same-sex couples to be married.

Perkins continued:

What is inevitable is that male-female unions will continue to be uniquely important to society.  The only question is whether Government will acknowledge that fact or attempt to deny the truth about marriage. 

Oddly, Judge Jones made reference to reading the 'tea leaves' of the Supreme Court's Windsor decision.  Shouldn't we expect judges to read the Constitution and the law -- not 'tea leaves'?

Marriage is rooted not only in the history of man, but also in his very biological being.  Nature and Nature's God cannot be usurped by the edict of the courts.  Just as the country has never accepted the Supreme Court's declaration of a 'right' to destroy unborn human life in Roe v. Wade, we will never accept the Court's assertion of a 'right' to change the definition of our most fundamental social institution.  The courts can ignore natural law, or even suppress it, but they will never succeed in subduing it." 5

  • The American Family Association issued a press release on MAY-20:

    "Judge John Jones’ decision today to declare Pennsylvania’s Defense of Marriage Act (DOMA) unconstitutional comes as no surprise. He made the same type mistake in his 2005 decision in the Dover Area School District intelligent design case forbidding even the mention of an alternative theory to the theory of evolution. The American Family Association of Pennsylvania (AFA of PA) condemns Jones’ continued judicial activism as he steps out of line with other judges who are redefining marriage with their wrong-headed decisions. We call on Governor Tom Corbett to appeal this outrageous decision." 6

  • John Eastman is a law professor at Chapman University and is the chairman of the board of the National Organization for Marriage -- a group whose sole aim is to make marriage unavailable to every American same-sex couple. He downplayed the importance of Judge Hill's decision, saying:

    "They can have all the district judges they want. ... I quite frankly think they’re building up a big head of steam for the Supreme Court to slap them down." 7

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Igor Volsky, "Pennsylvania Just Legalized Same Sex Marriage And Rick Santorum Has Nothing To Say," Think Progress, 2014-MAY-22, at: http://thinkprogress.org/
  2. HRC Staff, "BREAKING: Ban on Marriage Equality Struck Down in Pennsylvania," Human Rights Campaign, 2014-MAY-20, at: http://www.hrc.org/
  3. "Federal Judge Strikes down PA’s Ban on Marriage for Same-Sex Couples," American Civil Liberties Union, 2014-MAY-20, at: https://www.aclu.org/
  4. David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at: http://dailycaller.com/
  5. Tony Perkins, "Pennsylvania Federal Judge Cannot Eradicate Truth About Marriage," Family Research Council, 2014-MAY-20, at: http://www.frc.org/
  6. "News Release – Jones’ DOMA Decision Wrong, American Family Association, 2014-MAY-20, at: http://afaofpa.org/
  7. Robert Barnes, "From a diverse group of judges, a unanimous opinion on same-sex marriage," Washington Post, 2014-MAY-26, at: http://www.washingtonpost.com/

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Copyright © 2014 by Ontario Consultants on Religious Tolerance 
Originally written: 2014-MAY-21
Latest update: 2014-MAY-28
Author: B.A. Robinson

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