Boy, if Judge John E. Jones thought the far right attacked him for his ruling in the Dover trial, this is really going to open the floodgates. He has now struck down Pennsylvania’s ban on same-sex marriage, the latest in a long string of legal defeats for the opponents of equality. His ruling begins:
Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth’s laws to the contrary are unconstitutional. 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.
One interesting thing about the ruling is the discussion of what standard of review should be applied, rational basis or heightened scrutiny. Justice Kennedy has three times written rulings that hinted at the idea that laws that affect sexual orientation should get heightened scrutiny, but has not explicitly done so. He has instead ruled that the laws being struck down cannot survive even the rational basis test. Judge Jones highlights that history:
Thus, we must consider and determine whether gay and lesbian persons comprise a quasi-suspect class for
purposes of an equal protection analysis of the Marriage Laws. While Windsor, the most recent apposite pronouncement by the Supreme Court, offers little concrete guidance, we glean from it and other Supreme Court jurisprudence that heightened scrutiny is, at minimum, not foreclosed. Indeed, in the tea leaves of Windsor and its forebears we apprehend the application of scrutiny more exacting than deferential.
As Justice Scalia cogently remarked in his dissent, “if [Windsor] is meant to be an equal-protection opinion, it is a confusing one.” Although Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not representative of deferential review. The Court did not evaluate hypothetical justifications for the law but rather focused on the harm resulting from DOMA, which is inharmonious with deferential review. Indeed, far from affording the statute the presumption of validity, Windsor found DOMA unconstitutional because “no legitimate purpose overcomes the purpose and effect to disparage and to injure.”It has been observed that other of the Supreme Court’s equal protection cases purporting to apply deferential review have also, in practice, probed more deeply, especially where the subject group has suffered historic patterns of deprivation. Notably, the Court’s sexual orientation jurisprudence has generally afforded considerably less deference than would be expected under usual rational-basis review.
This is correct. The court — meaning Justice Kennedy specifically — has pretended to apply a rational basis review, but in reality it has subjected the law to some form of heightened scrutiny in cases involving sexual orientation. I don’t know why they haven’t just gone all the way and declared the LGBT community to be a “suspect class” (legal term of art; it does not mean they themselves are suspect, it means they are a group that has historically been discriminated against), but they haven’t. Still, the standard of review they’ve applied has clearly been more strict than the standard rational basis test, which typically guarantees that the law will be upheld.
You know what makes this all the sweeter? Judge Jones almost certainly would not be on the federal bench if not for Rick Santorum recommending him as a nominee. That’s gotta sting for Santorum. You can read the full ruling here.