Is Gay Marriage Beyond The point of No return and Bans the way of the asteroid?
Gay marriage advocates across the country have reason to celebrate this week. On Monday, a U.S. district court judge struck down a same-sex marriage ban in Oregon, while a federal judge on Tuesday declared Pennsylvania’s gay marriage ban unconstitutional. Gay couples can now marry in 18 states and the District of Columbia.
“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,” wrote Pennsylvania Judge John E. Jones III in his 39-page opinion. “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history,” he added. Republican Gov. Tom Corbett, who defended the ban, may appeal the ruling and said he is “thoroughly reviewing the decision of the court.”
The latest ruling marks the 14th state victory for gay marriage rights since the Supreme Court overturned parts of the Defense of Marriage Act, or DOMA, last year in U.S. v. Windsor. In Windsor, the court held that restricting the federal definition of marriage to heterosexual couples was unconstitutional under the due process clause. “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,” the court wrote.
Some say the real clincher wasn’t the high court’s decision in U.S. v. Windsor, but Supreme Court Justice Antonin Scalia’s dissent. Scalia warned that it wouldn’t be long before the landmark federal ruling would be implemented at the state level. "How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," he wrote. "No one should be fooled; it is just a matter of listening and waiting for the other shoe."
Looking at the long trail of recently overturned gay marriage bans, that shoe seems to have dropped. U.S. District Judge Robert Shelby (in what The Week’s Jon Terbush calls “judicial trolling”) referenced Scalia’s dissent in striking down Utah’s gay marriage law in December of last year. “The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law,” he wrote.
Judith E. Schaeffer, vice president of the Constitutional Accountability Center, says recent state-level rulings in favor of gay marriage are not surprising. "The lower court decisions you're seeing now post-Windsor ... are a logical extension of the core equal protection principles," she told Talking Points Memo. Andrew M. Koppelman, a law professor at Northwestern, says attitudes on gay marriage have also changed significantly. “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots,” he told the New York Times.
Utah, Oklahoma, Texas and a number of other states have already begun appealing decisions to strike down gay marriage bans. Last month, defense attorneys in Oklahoma argued before the court that “the sex of the spouse is directly relevant to the government’s interest in procreation and child rearing.” Whatever ruling comes down, it is likely to be appealed.
Brian Brown, president of the National Organization for Marriage, condemned the decision in Pennsylvania. “The ruling unilaterally makes an end-run around the democratic process and places the capricious will of one man above the desires of millions of citizens,” Brown said in a statement. “We know from the stay granted in the case in Utah that the Supreme Court believes these matters should be thoroughly debated and legally argued, and that there is nothing ‘inevitable' about marriage redefinition.”
By Rachel Brody
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