Reminder from Pennsylvania: The Supreme Court has already basically legalized gay marriage
posted at 7:21 pm on May 20, 2014 by Allahpundit
Yesterday’s ruling striking down Oregon’s gay-marriage ban came from an Obama appointee. Today’s ruling striking down Pennsylvania’s ban comes from a Bush appointee, one whose confirmation was backed by Rick Santorum no less. Different judges, different political leanings, a slightly different legal posture (Oregon’s ban was part of the state constitution, Pennsylvania’s was merely a state statute, although each state’s AG refused to defend the law in court), but none of it mattered.
Like McShane in Oregon, Jones provided for no stay of his ruling, meaning it goes into effect immediately — and same-sex couples should be able to apply for marriage licenses immediately, although there is a three-day waiting period to get the license…
As to his legal conclusion, Jones wrote, “[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. 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.”…
In the order, filed moments later, Jones wrote the state defendants are “permanently enjoined” from enforcing the ban. He provided for no stay of his order, meaning it is effective immediately.
Lest you think this was a case of a judge grudgingly applying precedent with which he disagrees, Jones concluded his opinion by writing, “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” You can read the entire opinion here, but look: The precise rationale doesn’t much matter at this point. If you follow these cases, you know how the due process and equal protection arguments go by now. The significance of the Oregon and Pennsylvania rulings isn’t their legal reasoning, it’s the dramatic dual reminder that the controversy surrounding this issue is all but done as a matter of federal jurisprudence. You may yet see a very conservative appellate judge somewhere in the system uphold a gay-marriage ban over the next few years as SSM makes its way back up to the Supreme Court, but that’ll be an outlier. Judge after judge will continue to strike down these bans, from the northwest to the northeast to the deep south. You know why? Because Anthony Kennedy left them little choice. Remember the key passages from last year’s Windsor decision, in which the Court ruled a part of DOMA unconstitutional:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…
What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
Technically that ruling applied only to DOMA, a federal statute, and not to any state marriage bans. Technically you can read Kennedy as saying that it’s up to each state to decide whether gay couples should enjoy the “dignity and integrity of the person” that comes with having their marriage formally recognized. If a state wants to ban those marriages, so much for dignity and integrity. In reality, though, it’s a snap for lower-court judges to extend Kennedy’s logic to state bans on gay marriage too. If the Constitution protects gays’ moral and sexual choices, as Kennedy affirms, then their choice to marry logically is also constitutionally protected. Which means, by definition, that state bans are unconstitutional. Scalia, dissenting in the Windsor case, saw it coming from a mile away:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status…
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
In other words, said Scalia, the takeaway from the Windsor decision for lower-court judges wouldn’t be “the states can do what they like and the feds must comply with what each state decides,” it would be “gays have a fundamental liberty interest in marriage that no government, federal or state, may infringe.” What you’ve seen over the past few months in the drumbeat of pro-SSM federal rulings is Scalia being proved right. By the time the Supreme Court is asked to decide whether states can bay gay marriage, Kennedy will have a few dozen lower-court precedents implementing his Windsor reasoning to cite as support when he inevitably decides that gay marriage must be legal everywhere. Which, to give him his due, is tactically clever: He was understandably reluctant to be the deciding vote that makes SSM legal coast to coast in one fell swoop, so instead he planted a seed in Windsor which he knew lower courts would nurture for him. When this issue finally lands on his desk again, gay marriage will already be a court-enforced reality in dozens of states, with the public having had several years to adjust to it. All SCOTUS will have to do is rubber-stamp the lower courts. Minimal upheaval, minimal heat for Kennedy.
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