Pennsylvania became the 25th state to have gay marriage declared legal by voters, lawmakers or courts when a judge struck down its ban, evenly dividing the nation almost a year after a U.S. Supreme Court ruling triggered a flood of lawsuits.
Pennsylvania joins 18 other states where same-sex marriage is currently available. In six other states, court rulings that such bans are unconstitutional have been stayed while appeals are pursued.
“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history,” U.S. District Judge John E. Jones in Harrisburg said yesterday in his ruling.
Proponents of same-sex marriage have won at least a dozen consecutive victories since the Supreme Court overturned part of the 1996 Defense of Marriage Act that said the federal government could only recognize heterosexual marriages. The high court also rejected an appeal of a decision that threw out a voter-approved California gay-marriage ban.
The twin decisions spurred challenges to state bans across the country. Oregon’s same sex-marriage ban, having gone undefended by state officials, was struck down on May 19. Yesterday’s ruling means same-sex marriage is available to 44 percent of the U.S. population, said Charlie Joughin, a spokesman for the Human Rights Campaign, a gay rights group.
Josh Maus, a spokesman for Pennsylvania’s Office of General Counsel, said in an e-mail the office is “reviewing all of the legal issues.” He declined to comment on whether Pennsylvania Governor Tom Corbett will seek a stay, or petition the U.S. Court of Appeals in Philadelphia. The state has 30 days to challenge the ruling, which allows marriages immediately.
In Texas, not counted among the 25, state officials are fighting to keep a gay marriage ban on the books as proponents seek an injunction while their suit proceeds.
Several other state cases where bans were struck down have reached federal appellate courts, which may send the issue back to the Supreme Court next year, said Susan Sommer, director of constitutional litigation with the gay-rights advocacy group Lambda Legal.
“We are seeing a steady drumbeat of rulings from federal as well as state courts saying that same-sex couples have the right to marry and to have their marriages respected wherever they live,” Sommer said in a phone interview.
Frank Schubert, a director at Washington-based National Organization for Marriage, which opposes same-sex marriage, said courts are misinterpreting the Supreme Court’s ruling and overstepping their authority.
“It’s very disappointing that these judges would assume for themselves the power to define marriage when the decision has been made by the people of their respective states,” he said in a phone interview. The Supreme Court “is going to have to decide whether the constitution recognizes same-sex marriage or leaves it to the states,” Schubert said. “We believe the court will rule our way.”
Like other federal judges across the country who have struck down similar bans, Jones likened the restrictions to laws from the previous century enshrining racial discrimination.
“That same-sex marriage causes discomfort in some does not make its prohibition constitutional,” Jones, appointed by Republican President George W. Bush, said. “Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of separate but equal.”
Philadelphia Register of Wills Ronald Donatucci said that his office would remain open yesterday after regular business hours to accommodate couples applying for marriage licenses.
In addition to Pennsylvania, same-sex weddings may be performed in California, Oregon, Washington, New Mexico, Minnesota, Iowa, Illinois, New York, New Jersey, Vermont, New Hampshire, Maine, Rhode Island, Massachusetts, Connecticut, Delaware, Maryland and Hawaii. The states where gay marriage bans have been thrown out, but the laws remain in place pending appeal, are Arkansas, Idaho, Utah, Oklahoma, Virginia and Michigan.
A federal appeals court in Richmond, Virginia, heard arguments May 13 on whether to revive that state’s ban. A U.S. appeals court in Denver in April heard arguments on bids to reverse judges in Utah and Oklahoma who struck down bans in those states. And a Detroit judge’s decision to invalidate Michigan’s ban is being appealed to a Cincinnati-based panel.
Pennsylvania was the last among northeast U.S. states to have a ban in place.
Mark Aronchick, an attorney for the plaintiffs, said the case was decided on the view that gays are a protected class under the constitution.
“Anyone reading it can understand if those vows are good enough for me, they’re good enough for anybody,” he said.
The ruling comes amid growing momentum for marriage equality nationwide in the decade since Massachusetts became the first state to allow such unions. More than half of Americans support same-sex marriage, according to a Bloomberg National Poll conducted in March by Selzer & Co.
The Pennsylvania litigation is among more than 70 marriage equality cases pending in 29 states and Puerto Rico, the Human Rights Campaign said. At least nine cases are seeking federal appellate review, HRC said.
At least four lawsuits were filed over the 1996 Pennsylvania law defining marriage as a union between a man and a woman. Jones’s ruling came in a case filed on behalf of 11 gay couples and a widow.
The ACLU dropped Pennsylvania Governor Corbett, a Republican, and Pennsylvania Attorney General Kathleen Kane, a Democrat, as defendants in its lawsuit in November. Kane said in July that she wouldn’t defend the ACLU’s challenge to the state’s ban, which she called unconstitutional.
Kane applauded yesterday’s decision as one that “brings justice to Pennsylvanians.”
“The constitution prevailed,” Kane said in an e-mailed statement. “Inequality in any form is unacceptable and it has never stood the test of time.”
In addition to prohibiting gay marriages, the Pennsylvania law also barred recognition of gay marriages performed elsewhere. Jones held that provision to be invalid.
His decision came as a Philadelphia federal judge was weighing a challenge by a lesbian couple seeking recognition of their 2005 marriage performed in Massachusetts.
Their lawyers argued last week that the state law is discriminatory and irrational and stigmatizes the couple, Cara Palladino and Isabelle Barker, and their 5-year-old son.
Barker, an assistant dean at Pennsylvania’s Bryn Mawr College, said yesterday’s ruling marked an “historic day” for her family.
“I didn’t expect to feel quite this excited and relieved,” Barker said in a phone interview.
The ACLU case is Whitewood v. Corbett, 13-cv-01861, U.S. District Court, Middle District of Pennsylvania (Harrisburg). The Philadelphia case is Palladino v. Corbett, 13-cv-05641, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).
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