Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | News | Pennsylvania | Supreme Court

Marriage Equality Comes to Oregon and Pennsylvania: An Analysis, Part II



Earlier today, we discussed the decision by Judge Michael McShane (above, left) striking down Oregon's ban on same-sex marriage. I noted that the opinion was narrowly focused on equal protection, but also deeply personal. Judge McShane is openly gay and the decision clearly meant a lot to him. While Judge McShane was opening the doors of marriage to gay Oregonians, a conservative judge in Pennsylvania was about to do the same. The state's embattled Republican governor will not appeal the decision, so we know that after Pennsylvania's quixotic 3-day waiting period to get a marriage license, gay couples will be getting married.

Judge John Jones III (above, right), a George W. Bush appointee, was not to be outdone by Judge McShane's lyrical and personal approach to the case. To Judge Jones, bans on same-sex marriage, whether they be constitutional provisions or statutes (Oregon had a constitutional amendment; Pennsylvania just had a law), are the worst of us and not worthy of our traditions and our future.

The decision was a broad one, covering equal protection and due process. Judge Jones even called for the application of heightened scrutiny in an equal protection analysis when antigay discrimination is at issue.

But one of the opinion's final lines struck me as too simple, at best:

In the sixty years since Brown [v. Board of Education] was decided, "separate" has thankfully faded into history, and only "equal" remains.

It is true. We no longer condone the kind of overt discrimination common in the Jim Crow South. But inequality and separate-and-unequal still exist, especially when it comes to gay persons. The cavalier approach to inequality reminds me of Chief Justice Roberts's now famous line: "The best way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

I connect these two quotes AFTER THE JUMP...

First, let's briefly review the opinion. There were three elements to Judge Jones's opinion, all of which you will remember from previous columns.

1. Baker v. Nelson no longer applies. Aclu

Baker v. Nelson was a summary dismissal of an appeal from a Minnesota Supreme Court decision that said that Minnesota law did not allow gay couples to marry and that such a law did not violate the Federal Constitution. When the Supreme Court shoots down a "summary dismissal," it is almost like ignoring it, or saying that the case does not raise any issue for a federal court to address. Judge Jones said Baker is no longer good law. Significant doctrinal developments since Baker, which was decided in 1971, have changed the landscape of minority and gay rights, in general, and marriage rights, in particular. There was no such thing as intermediate scrutiny in 1971. Antigay discrimination did not even need a rational basis until 1996 (Romer v. Evans). And, until Lawrence v. Texas in 2003, gays were still presumptive criminals. Most importantly, Windsor proved that gays marrying raises substantial federal questions. 

2. Due Process guarantees an individual the right to marry.

Judge Jones noted that the Supreme Court had found that the right to marry was fundamental many times and that the right that the "courageous" plaintiffs were seeking was not a new right, but the same right as anyone else who wants to marry the person he or she loves.

The fundamental due process right to marry is not based in the heterosexual person; it is based in the individual, whatever his or her sexual orientation. And just because tradition and custom has restricted marriage to between one man and one man, that is no reason to continue discrimination. If it had been a valid reason, marriage rights would have never evolved to include those who wanted to marry persons of a different race.

Judge Jones went on to find that there are actually two due process rights here: the right to marry and the right to remain married after crossing state lines. The marriage right would mean nothing if it could be taken away by a work trip or a vacation or a trip to grandma's house. As a result, Pennsylvania's statutes banning gays from marrying and refusing to recognize out-of-state marriages were unconstitutional.

Pennsylvania3. Antigay discrimination merits heightened scrutiny and the ban on gays marrying violates Equal Protection under that, or any, standard.

The opinion includes a rather comprehensive consideration of the applicability of heightened scrutiny. Judge Jones first notes that even though the Third Circuit in which he sits has never explicitly articulated a scrutiny level of antigay discrimination, several other district and circuit courts (including the Ninth Circuit in Abbott Labs) have required heightened scrutiny. He then noted that the Supreme Court's gay rights opinions have, at a minimum, used a scrutiny level higher than simple rational basis. Then he went through the requirements of heightened scrutiny and ultimately found that gays do merit heightened scrutiny.

None of the purported justifications for this ban -- optimal parenting and promoting procreation -- met this standard. But there can be no connection between the ban and these ostensibly important objectives. Judge Jones joins the 14 federal or state judges who have struck down bans on same-sex marriage, all of whom have found no legitimate connection between the law and the supposed purposes.

Judge Jones is also one in a long line of conservative and Republican-appointed judges who have struck down bans on same-sex marriage. Marriage equality not only resonates with conservatives, it also is so obviously contrary to our constitutional tradition that both liberals and conservatives can agree that the bans must go.

But his conservatism did shine through toward the end of his opinion.

To Judge Jones, and to the justices in the conservative majority that eviscerated the Civil Rights Act and allowed Michigan to ban considerations of race in admissions, our country's wretched history of discrimination is over. In a way, they're right. We no longer have laws that designated "white only" restrooms and we no longer have laws that explicitly say "women cannot vote." But we do gerrymander our districts to dilute minority votes. Conservatives make it exceedingly difficult for immigrants to vote. We still allow employers to fire someone simply for being gay. We employ many tools to make our ultimate motive -- discrimination -- hidden from view. We delude ourselves when we say discrimination is a thing of the past. It's not. It's just more insidious, more sneaky, more hidden today.

Judge Jones's toss away line may be of little moment. It is entirely possible that he simply meant that the days of the law approving of "separate but equal" as true equality are over. But it does suggest a greater lesson: Our string of marriage equality victories should never obscure the fact that LGBT Americans are still the victims of hate, homophobia, and institutional discrimination in many ways. Just being able to get married is not the end of the fight; it is the beginning of a long journey.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. I love Towleroad's legal series. These cogent articles make up for those horribly vacuous MarkE Miller posts.

    Posted by: Sergio | May 21, 2014 8:27:16 PM

  2. A law professor who doesn't know the meaning of "quixotic". That's where I stopped reading.

    Posted by: Bill | May 21, 2014 11:29:34 PM

  3. I appreciate Ari's posts very much, for substance and style. I am going to quibble on the "Jim Crow South" note. In Brown v. Board of Education, the board of education was in Kansas, a free state, not part of the Confederacy and not part of the "Jim Crow South." Northern school systems also had separate but equal practices and had to desegregate. Racism is an American disease, not just a Southern one. Just as anti-gay discrimination has taken place throughout the country, not just in one region. Prop 8 did, after all, pass in California.

    Posted by: jpeckjr | May 21, 2014 11:31:22 PM

  4. I was thinking he misused quixotic to mean quaint....but actually thinking that waiting 3 days will somehow prevent a bad decision being.made is very quixotic thinking. You think you're doing good but you either are useless at best.

    Posted by: steve talbert | May 22, 2014 1:09:13 AM

  5. We seem to be at a moment: when we do not feel we need to sacrifice everything to win the marriage right--and we can acknowledge the still-sorry state of gay rights once we do have gay marriage nationwide.

    We still need to go full throttle to get this marriage bugaboo off our back; Marriage equality is essential for our people's basic dignity. To make a crude analogy, it's a little like Maslows hierarchy of needs: once we are allowed the most fundamental legal right of marriage, we then have some respect under the law for our very homes. In too many ways, only then do we have the strength as a people to then truly fight for basic rights to be treated equally in the workplace.

    Posted by: Just_a_guy | May 22, 2014 1:17:29 AM

  6. It says, "tradition and custom has restricted marriage to between one man and one man." What?? I think this is a typo because it doesn't make any sense.

    Aside from that I very much appreciate this analysis which I have been eagerly awaiting.

    Posted by: Neil | May 22, 2014 3:54:12 AM

  7. Am I missing something here? "Due process" is not the same thing as "equal protection." If there is a violation of due process, it generally means lack of a fair hearing/trial.

    Posted by: Caleb in SC | May 22, 2014 6:47:34 AM

  8. Hi Caleb. For starters you're correct in saying that Due Process violations normally refer to people being deprived a fair hearing/trial. However, due process is also triggered when laws impacting someone's "fundamental rights" are at play.

    The Fifth amendment states that "No person shall be . . . deprived of life, liberty, or property, without due process of law," the Supreme Court has defined this phrase to mean that “The Due Process Clause of the Fifth Amendment assures every person the equal protection of the laws, ‘which is essentially a direction that all persons similarly situated should be treated alike.’ ” The 14th Amendment applies this to the states.

    Bans on interracial marriage were overturned on the basis of Due Process, with the Loving court stating that “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." To "deny this fundamental freedom on so unsupportable a basis as racial classifications, is directly subversive of the principle of equality at the heart of the Fourteenth Amendment."

    In addition to Due Process, the 14th Amendment states that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." So under this system, equal protection analysis is triggered when people similarly situated are treated differently (ie, classified).

    In summary: Due process is violated when fundament rights are restricted, and Equal Protection when similarly situated people are classified and treated differently.

    Posted by: Matt | May 22, 2014 9:11:30 AM

  9. Neil:
    I think the judge is referring to the "traditional marriage" as defined by those right-wing opponents and the Catholic Church.
    It may sound ridiculous but the judge may buy it simply because he is a conservative. Or it is just a quote and not his own opinion.

    Posted by: rick | May 22, 2014 10:52:21 AM

  10. The three-day waiting period may be left over from a time when blood tests were required to get a marriage license. I don't know if PA did, but some states did. It would take three days to get the results. People were tested for sexually transmitted diseases as a public health measure to prevent them from being spread. It also had the effect of uncovering if your beloved was not a virgin. Premarital blood tests aren't done anymore, as far as I know.

    Posted by: jpeckjr | May 22, 2014 10:55:51 AM

  11. Thanks for the clarification, Matt! It's been a while since I took Con. Law.

    Posted by: Caleb in SC | May 22, 2014 11:01:32 AM

  12. Quick question Ari, how many states have removed all restrictions and are marrying same sex. My count is 18 or 19, and which states have stays after the case was decided, how many states still have cases and I think we're down to ND as the only state not in the legal process to overturn.

    Posted by: Steven Jaeger | May 22, 2014 3:10:56 PM

  13. You gotta give Judge Jones some credit for his opinion's tag line shaming the radical right: "We are better people than what these laws represent, and its time to discard them into the ash heap of history."

    Posted by: Marco Luxe | May 22, 2014 3:32:50 PM

  14. Not a problem. I still have my law school outlines in a drop box, so I basically copied and pasted lol.

    Posted by: Matt | May 22, 2014 4:06:19 PM

  15. I find the criticism of Judge Jones' comment about "separate but equal" to be harsh and unmerited. His opinion is an exceedingly compassionate (his discussion of all the ways that denial of marriage to gay couples are harmful and hurtful is very moving) and idealistic one. The opinion reflects an optimistic and idealistic view of American values and moral evolution. To criticize him for that final, hopeful statement and to compare him to the cynical Justice Roberts seems petty and unwarranted.

    Posted by: ajax28 | May 22, 2014 5:04:47 PM

  16. @Rick, I was just questioning why it said "one man and one man" rather than "one man and one woman" which I think is more traditional!

    @JPeckJr, I think there may still be blood tests in some states. I'm not sure. In Quebec, there is a waiting period, but it's to post your intention to marry on a public bulletin board in the courthouse for a few days, in case someone knows a reason why you should not be able to be married.

    Posted by: Neil | May 23, 2014 6:09:40 PM

  17. Less this more Mark E. Miller posts.

    Posted by: John | Jun 6, 2014 11:14:31 AM

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