Demonstrating a national sea change in views toward same-sex marriage, Pennsylvania is the latest state to see its ban on same-sex marriage ruled unconstitutional in federal court. This time the law was overturned by a Bush-appointed judge, a decision supported by the state's Republican governor, Tom Corbett. Corbett has even been outspoken in his views that marriage should be between one man and one woman.
The ruling also took an added step in striking down the law than other previous states.
Like most courts, Judge Jones argued that the ban violated the Equal Protection Clause. However, in Pennsylvania, the ruling also argued that same-sex couples both have a fundamental right to marry and discrimination based on sexual orientation triggers intermediate scrutiny. Tracing the long history of discrimination on this basis in the state, he argued that sexual orientation deserves a long-denied legal protection.
He famously ended his decision by stating, "We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”
Pennsylvania’s same-sex marriage ban dated back to a 1996 state statute, approved by the Pennsylvania Legislature, which prohibited the government from respecting or performing marriages or other forms of family status for same-sex couples. Philadelphia, though, had offered domestic partnership registries to residents of the city with at least one partner employed by the city, and Pittsburgh also allowed domestic partnerships, without the residency requirements, prior to the law being overturned.
The American Civil Liberties Union of Pennsylvaniabrought a lawsuit before the state in Whitewood v. Wolf in 2013 on behalf of a widow, 11 couples who wished to marry in Pennsylvania, and two teenage children of one of the plaintiff couples.
The state's attorney general, Democrat Kathleen Kane, declined to defend the state’s ban in court, and therefore the defense rested with the governor who was strongly in support of the ban.
Governor Corbett’s decision not to appeal the ruling was based on “the high legal threshold set forth by Judge Jones.” He appears to be leading the way of other GOP governors who have softened their stance on same-sex marriage bans.
In Wisconsin, for example, Governor Scott Walker acknowledged that he did not know if the state’s law violated the constitution and he would leave the issue to the judges, a shift from his strong stance against same-sex marriage.
In New Mexico, which also recently allowed same-sex marriage, Republican Governor Susana Martinez also conceded that she would not fight gay marriage since it is the “law of the land.”
Although the Supreme Court has been able to side-step actually ruling on same-sex marriage, its rulings on California's Prop. 8 and the Defense of Marriage Act in 2013 likely opened the door for many of the lower courts to begin overruling bans.
However, with the ambiguous rulings by the Supreme Court, some appeals courts have their own discretion to rule on these issues. Earlier this month, the Ninth Circuit allowed the ban to remain intact in Idaho while some appealed the state’s decision to issue marriage licenses based on a federal magistrate judge’s ruling in Boise that the ban was unconstitutional.
Despite a softening among some GOP governors and Oregon and Pennsylvania’s recent decisions to allow same-sex marriage, the news out of Idaho points to the challenges that same-sex marriage advocates still face.
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