Judicial victories for gay marriage are coming almost daily now. In a decision breaking new doctrinal ground, Pennsylvania District Court Judge John E. Jones today struck down the sate’s ban on same-sex marriages. In the decision, Whitehead v. Wolf, Judge Jones held that the ban violated both the Due Process and Equal Protection Clauses, but in ways that other recent district courts have not ruled.
The judge entered an order permanently enjoining enforcement of the ban on same-sex marriages. He did not enter a stay. The governor, a Republican, took up the defense of the law when the state attorney general, a Democrat, refused to do so. It’s likely the state will seek a stay, and that the district court or higher court will eventually enter one.
Unlike most other district courts recently, Judge Jones held that same-sex couples have a fundamental right to marry. He held that the Pennsylvania couples were not seeking a “new” right but only participation in an old one, the right to marry.
He also ruled that the state’s ban on same-sex marriage violates the Equal Protection Clause, but also in a way that differs from the other recent district courts. First, like most of the state and federal courts to consider the issue since 1993, he rejected the contention that bans on same-sex marriage are a form of sex discrimination. Second, unlike most other district courts, he determined that sexual-orientation discrimination triggers intermediate scrutiny. He was free to reach this conclusion because the Third Circuit is one of the few appellate courts that had not yet decided the issue. Under intermediate scrutiny, the state could not justify the ban, he reasoned.
This intermediate-scrutiny approach seems to me to be the most doctrinally grounded way to strike down bans on same-sex marriage. It leaves in place the deferential caste of rational-basis review. It also makes clear what every court seems to have recognized recently: that there is a long history of discrimination against gays and lesbians, that sexual orientation is unrelated to individual merit, that it continues to be difficult for homosexuals to get legal protection through the political process in many areas of the country, and that there is not an “exceedingly persuasive” reason to exclude gay couples from marriage (even if there is a jurisprudentially “rational” one).
Judge Jones concluded his opinion with the following:
The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. 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.” … In the sixty years since Brown was decided, “separate” has thankfully faded into history, and only “equal” remains. Similarly, in future generations the label ‘same-sex marriage’ will be abandoned, to be replaced simply by ‘marriage.’
We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.
Jones was nominated by President George W. Bush in 2002. Previously, he was best known for striking down a school district’s mandate for teaching “intelligent design” in classrooms.