Judge Jones Strikes Down PA Marriage Law

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.

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  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    YES! Good to hear / read and hopefully a precedent that will apply everywhere.

    Go Judge Jones. More power to him. (Raised beer salute.)

    Plus sucked in Frothymix!

  • colnago80

    In fairness, Santorum at the time said he was going on Jones’ reputation and did not know him personally very well. In fact, Jones is a protegee of former Pennsylvania Governor Tom Ridge, a member of the now non-existent breed of moderate Rethuglicans. The teabaggers would consider both Ridge and Jones RINOs.

  • Michael Heath

    Judge Jones:

    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.”

    Sputter!!!! Judge Jones and the tyrannical and liberal Supremes are ignoring the disparagement and injuries to conservative Christians when gay people are treated as human beings with rights deserving of equal protection.

  • John Pieret

    I have long maintained that the important thing to read in these decisions is not the legal arguements or even the sometimes soaring rhetoric of the judges. It is the stories of the perfectly normal and normally heroic people who want and have forged, against all odds, loving relationships, commitments, aspirations and a will to overcome the slings and arrows of life just like the rest of us do. All they want is to have the same support heterosexuals have under our law and to be free of the fear that the law, enacted in spite and bigotry, will actively seek to destroy those relationships, commitments and aspirations.

    Judge Jones’ recitation of these facts is particularly moving. I recommend that everyone read pages 3-9 of the decision.

  • Taz

    I’m tired of these Republicans forcing evolution and gay marriage on us!

  • frog

    John Pieret@4: Yes, that was the part where I might have gotten something in my eye. :)

    The judgment is put together with the legal necessities, but the real meat is where Judge Jones pretty much says, “These people are living exactly as any married couple, but are denied the benefits our culture gives to hetero marriages. That’s bullshit.”

    (I may have, er, translated his words a bit.)

  • John Pieret

    (I may have, er, translated his words a bit.)

    From what I know of Judge Jones, he might not have put it down on paper but I strongly suspect that was his attitude.

  • flyv65

    Ahh, I savored the sweet, sweet tears of the Creationists when the Judge pimp-slapped the Dover BofE. This is at least as delicious, and seems to reinforce my initial impression of him as not being ruled by political dogma.

  • Pen

    Wow, that is some confusing language they use there. Much obliged for the translation of ‘suspect class’.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @StevoR, #1:

    hopefully a precedent that will apply everywhere.

    What? Have you learned nothing about the legal system from Ed? The man knows a lot more about many US constitutional issues than I do, and hasn’t spent day one in any law school. Maybe you should pay closer attention.

    Plus sucked in Frothymix!

    Ewww. You and I have very different ideas of what constitutes something to celebrate.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @Pen…and Ed.

    Wow, that is some confusing language they use there.

    yeah, you should see how “reasonably foreseeable” is used. “Suspect class” is damn near transparent by comparison.

    Much obliged for the translation of ‘suspect class’.

    Not Ed’s fault, but note that “quasi-suspect class” (which was actually used in the opinion is different from “suspect class”. “Suspect class” has to do with classifications that receive explicit reference in the constitution, even though they are not mentioned per se in the constitution.

    A group might be a suspect class if it is defined by religion, historically suffering widespread discrimination, currently experiencing lingering effects of that discrimination including being subject to stereotyping and still suffering at least occasional, individual discrimination, and which is, to some significant degree, disadvantaged in the political process either by pure numbers or through marginalization.

    This is so because race, through references to “freed slaves” and “slaves” and by explicit mention with respect to voting rights in the 15th’s language of “race…or color”, and religion – not least in the first amendment – are clearly categories that were intended at the time of the adoption of the 14th to deserve special scrutiny and protection.

    Quasi-suspect classes are groups that were not clearly intended at the time of ratification of the 14th to deserve special scrutiny in their different treatment.

    more later

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Women are the quintessential suspect class, because the plain language of the 14th applies without an exception for gender or legal sex, but just as clearly, the 14th was adopted without any clear expectation that it would forbid laws providing differential voting rights, for example. [There were quite a number of people that argued that it would, either immediately or eventually, make constitutionally untenable the differential legal treatment of women, but not all of them thought it was a good thing and quite a number of people thought that there was no way it would be interpreted in such a way by the courts, at least in the short term. They were right in that.]

    By virtue of women’s ongoing political disabilities, the history of discrimination against women, the existence of contemporary episodic and private-party discrimination, and legacy effects of de jure discrimination all make the differential treatment of women analogous to the differential treatment of racial and religious minorities (see for example the horrendously shameful abuse of the early Mormons by the non-Mormon majority. There’s a reason a salt desert where the largest reserve of water is non-potable felt like the promised land: no one else would go out of there way to get there, not even to persecute the Mormons.)

    But analogous is not the same. For better or for worse, US jurisprudence has closed entry to the group of “suspect classes”. “Quasi-suspect classes” were developed in jurisprudence specifically because rational review was entirely insufficient to protect the important rights and values at stake in the 14th’s language:

    nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    While in every day language, since “quasi” modifies “suspect”, “suspect classes” would be inclusive of any “quasi-suspect class”.

    In the legal realm, in US rights jurisprudence, they are entirely different categories. One does not encompass the other.

    More than confusing, I know.

  • colnago80

    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. The judge, in his opinion, referred to this level of scrutiny as rational basis with bite.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden


    rational basis with bite.

    yeah, I’ve heard that, though I’ve more commonly heard “rational basis with teeth” which amounts to the same metaphor.

    Either way, the existence of a consistent metaphor goes to show how this is a real phenomenon, an existing, distinct “level of review” (I prefer method of review, but LoR is long since established).

    It’s funny how you can say that there are three levels or standards of review and everyone will nod along as if you’re stating the truth when we only had 2 before Reed v Reed and by the time “administrative convenience” was tossed aside as a justification gender had been reviewed under multiple different standards/levels/methods in just 6 or 8 years. Then we seem to establish something stable with “quasi-suspect classifications” but then you read Ginsburg in VMI and you get something like “heightened scrutiny with teeth” at about the same time you start getting the Amendment 1 case Romer v Evans coming up through the courts and reestablishing the “rational basis with teeth” that was so briefly the response to de jure gender discrimination after Reed v Reed.

    It’s a mess. I’m frankly mystified that anyone tries to hang on to the idea of 3 tiers anymore as anything other than a simplistic soundbite for rolling cameras.