A federal judge has ruled that Pennsylvania’s state law banning same-sex marriage is unconstitutional, bringing the total number of state marriage amendments to be overturned in the federal courts over the past year to over a dozen. Pennsylvania is one of the five states that does not have marriage equality but only has a state law banning it — not a state constitutional amendment. The decision did not include a stay, which means couples could possibly begin applying for marriages immediately immediately. Pennsylvania law, however requires a 3-day waiting period between when an application is filed and when a license can be issued, which could prevent any marriages from being finalized should the 3rd Circuit issue an emergency stay.
According to Judge John E. Jones III, a George W. Bush appointee who was recommended by then-Sen. Rick Santorum (R), Pennsylvania’s ban — like the many other bans that have fallen recently — violates same-sex couples’ equal protection under the law. “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history,” he concluded.
Jones reflected on the experience of the various plaintiffs’ life experience, using headings borrowed from traditional marriage vows. Under “For better, for worse,” he noted how the couples have “shared in life’s joys” together. Under “For richer, for poorer,” he highlighted how they have combined their finances and placed legal trust in each other. Under “In sickness and in health,” he worried about how the marriage laws forces them to be “legal strangers” who are “left vulnerable in times of crisis.” Under “Until death do us part,” he acknowledged that the couples “demonstrate an intention to live out their lives together,” explaining that they brought the suit “to transcend the pain, uncertainty, and injustice visited by the Marriage Laws.”
The decision dismisses the state’s claims that same-sex marriage is a “new right.” Instead, Jones ruled, “the fundamental right to marry is a personal right to be exercised by the individual,” one that “these individuals have always been guaranteed by the United States Constitution.”
Another important aspect of Jones’ ruling is the designation of sexual orientation as a “quasi-suspect class.” Unlike in other Circuits, the 3rd Circuit has no precedent for whether or not to consider sexual orientation with what’s called “heightened scrutiny” — i.e. a characteristic deserving of protection from laws that might discriminate against it. Other Circuits have jurisprudence dictating that sexual orientation is not a suspect class, but Jones was free to consider the question for himself. There are four factors generally used to determine such a classification: is there a history of discrimination against the group, does the identity impact individuals’ capabilities as citizens, is the identity a distinguishing characteristic (i.e. is it “immutable”), and has the group experienced political powerlessness. After weighing the criteria, Jones concluded that sexual orientation warrants at least quasi-suspect scrutiny, meaning that laws that appear to discriminate based on such identities must meet a higher level of justification in order to be upheld.
The ACLU suit, filed last July, was the first challenging Pennsylvania’s ban, but at least three others are continuing to play out. Because state Attorney General Kathleen Kane (D) refused to defend the ban, Gov. Tom Corbett (R) hired private lawyers to step in, at the taxpayer cost of $400 an hour.
An October poll found that 54 percent of Pennsylvanians supported legislation to allow same-sex couples to marry. Jones speculated that the notion of “separate but equal” marriage will fade in future generations, such that “the label same-sex marriage will be abandoned, to be replaced simply by marriage.”
Update:
18 same-sex couples obtained marriage licenses in Philadelphia Tuesday afternoon, but they still must wait three days before they can solemnize their marriages.