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Pennsylvania’s Marriage Law Overturned

This is somewhat outside the normal topic for this blog, but I felt I should note that a federal court tossed Pennsylvania’s marriage law that excluded gays. I agree with the end result, but I’m skeptical that having the courts implement gay marriage will be healthy for the Republic over the long run. But regardless of that, the best thing the PA GOP could do for its future is to decline to appeal this ruling.

Given that it’s an election year, I think the chances of Corbett declining to appeal are zero. He has too much trouble with his base in general to just walk away from this. But here’s what’s going to happen: at some point, the Appeals Court will probably overturn the District Court ruling, restoring Pennsylvania’s original marriage law. It might take getting to the Supreme Court for this to happen, but unless the Supreme Court changes in the next three years (for the sake of gun rights, pray that it does not) it’s likely this ruling gets overturned.

And then what? Well, you have a whole generation of young people out there willing to vote on the issue of gay marriage, and to whom it will become quickly apparent that the only way to get gay marriage in Pennsylvania legislatively is to end Republican control of the House, Senate and the Governor’s mansion. I said originally that this is somewhat off topic. When the Republicans eventually fall on the issue of gay marriage, our gun rights are likely to go right along with it. It sucks, and it’s unfair, but Millennials are going to vote on gay marriage over gun rights, and a lot of Gen Xers will too. This is a hopeless struggle the GOP would do better to just give up on.

43 Responses to “Pennsylvania’s Marriage Law Overturned”

  1. Dano says:

    Yeah, and 13 hours of working at the polls today…. Millennials and Gen X don’t vote. They don’t care. They don’t come out for anything other than presidential elections. Of the few Gen X’ers and Millennials who did come out today, 2/3 of them were Republican. They came out to vote in an uncontested race while the so called throngs of millennial dems stayed home in a highly contested race.

    • Chase says:

      I don’t vote? The hell you say!

      I know I’m not every millennial, though. I do not know what voting statistics look like for people my age.

      • Dano says:

        It’s not good. They’re presidential only voters.

        • Geodkyt says:

          Yeah, generally speaking, MOST voters are “presidential only” voters — and of the percentage of millenials that actually vote, they are even MORE likely to be “presidential only” voters.

          • HSR47 says:

            This.

            While I’m not someone who spends a lot of time at polls, I do tend to vote often.

            The primary yesterday was the first election in several years where I didn’t vote relatively early in the day (Typically I’m through before 9 in the morning). Typically, I get a sub-10 ballot (party or otherwise) when I vote that early. In the 2012 election I voted a bit before 8, had to wait in line, and ended up being voter 69. Yesterday, I voted about 90 minutes before the polls closed and fewer than 115 people had voted prior to me at that location.

            Interestingly, given my ballot number, there were only about 40 Democrats who voted at my location, meaning that there were roughly twice as many active Republican voters.

  2. Courts overturning state’s marriage laws will have the same effect as when the Supreme Court overturned abortion in Roe v Wade. The legitimacy of the courts to make decisions about controversial social issues will be questioned and there will always be a group that opposes it.

    If it had come up through the legislature where you have give and take with constituents feeling as though they had been listened to, then the legitimacy of gay marriage or abortion rights would be on more stable ground.

    • Jack (not Markell) in Delaware says:

      There are gradations in that, too. Here in Delaware we just went through the exercise of our Democrat-dominated legislature and Democrat governor ramming through first a civil-unions bill and then, two years later, a gay-marriage bill. I guarantee you there was no give and take and constituents of the opposite party weren’t listened to. The debate was very short, prompted protests on both sides outside legislative hall (protests on one side being led by, um, the governor and the legislators sponsoring the bill, which was a bit weird), and seats in the gallery for the votes were allocated by the majority to make sure they got an ovation instead of boos and rotten vegetables. The proponents bloviated about hatred and diversity, the opponents bloviated about sin and AIDS, and the whole thing was done in a week both times. Nobody’s mind was changed. And the same thing happened the same year in a bunch of other states with unified Democratic control of state government, because the whole thing was orchestrated by the national party. It was transparently an exercise in using power to effectuate change on which there was no consensus, because the party happened to have the power to do it today and because it would be hard to undo in the future; kind of like Obamacare. (And yes, Republicans do this kind of stuff too, although as the party mostly opposed to radical change, it’s harder to point to big-ticket social items on which they do it; abortion restrictions in the Bible belt might be a good example, although those are a lot easier to undo through the magic of the black robe.)

      And I do agree with our esteemed host that the same exercise is going to happen in PA as soon as the Dems get unified control in Harrisburg, unless the winds of fashion shift between now and then.

  3. So there’s a constitutional right to have an abortion or get gay married, but universal CCW reciprocity and even “shall issue” (much less Con Carry) are right out? I’d love to hear one of these judges explain to me why we have to honor marriage licenses from other states but not extend full faith and credit to, say, Utah (regardless of PA AG’s latest shenanigans). And at the federal level, let’s not even go into Kelo…

    I tend to agree with our host on this one. Decent outcome, but a shitty way of getting there. When you treat invented rights born out of a penumbra as more serious than specifically enumerated ones it reduces my respect for the courts as an institution. Either contracts (including statutory laws and Constitutions) mean something, or they don’t. If they don’t mean what is written down in them, then it undermines one of the fundamental reasons for having a State (and I mean that in the broadest sense) in the first place.

    • Sebastian says:

      At least this judge reached it through intermediate scrutiny, which is actually the way the courts have traditionally decided on equal protection cases involving sex (that’s actually where the idea originally came from, if I recall). The court just found that the government couldn’t justify the restriction sufficiently.

      • Patrick Henry, the 2nd says:

        And yet with a right clearly spelled out, there is little they disagree with the governments justification.

        That just pisses me off. Courts play word games for their own results.

        • Yup. Intermediate Scrutiny is a joke. It seems to mean “whatever result the court wants to reach for social or political purposes.” The 2A case law is just making a mockery of the concept of “intermediate scrutiny,” probably to the point that the SCOTUS will need to create a category for “intermediate plus” if they want to restore what intermediate should be.

          • Sebastian says:

            It’s not a joke if you use it what it was meant for, which is a means to deal with sex discrimination under the 14th Amendment. There are cases where situating men and women differently under the law violates equal protection, and cases where it doesn’t. If you applied strict scrutiny, you’d have to make men cover their breasts in public, etc.

            The reason we all hate intermediate scrutiny is because the courts have chosen to apply it in an area where it’s manifestly inappropriate, and in most of those cases, actually misapplying the techniques of intermediate scrutiny to use it to disguise rational basis review.

            • It is a serious originalist problem, because the equal protection clause of the 14th Amendment was not intended to treat men and woman equally. The Supreme Court heard challenges to state laws prohibiting women from being lawyers (because of concern that the practice of law was too degrading for women) shortly after ratification, and concluded that equal protection did not mean equality of the sexes. Even into the 1940s, the Supreme Court was upholding state laws that prohibited women from being bartenders, unless they were the owner or married to the owner of the bar.

              A study of equal protection case law will show that it has not historically meant that everyone is exactly equal, but that individuals of similar situations and characteristics enjoy equal protection of the laws.

              Of course, few people would support silly discrimination based on sex today, but that’s because attitudes were changing on this matter in the 1960s and 1970s.

      • Jack (not Markell) in Delaware says:

        The “traditional” there dates back to roughly the 1990s, with leading cases being the Virginia Military Institute case (state can’t operate a male-only military academy) and the granddaddy of gay-rights cases, Romer v. Evans (state can’t adopt a constitutional provision prohibiting affirmative action for gays). Like basically all equal protection / due process law, it is legal b.s. Abortion jurisprudence is legal b.s. in much the same way; so is desegregation jurisprudence, and so now is gun-control “intermediate scrutiny” jurisprudence.

        It is b.s. in the sense that, while you may per accidens approve of the results on some or all of these issues, it is unprincipled and result-driven. It is not law. It is just judges making stuff up as they go along to suit their agenda this week. And next week, their agenda will be different; again, maybe in ways we like, maybe in ways we don’t. But it isn’t law.

        • Yup. Any argument for gay marriage applies at least as well to polygamy, or lowering the marriage age to 9 (the age of Mohammed’s wife A’isha when they consummated their marriage).

          • Jake says:

            The bit about polygamy I get, but how do you get lowering the marriage age to 9? Is a 9 year old a consenting adult?

            • AndyN says:

              It’s already legal for minors to marry with parental or judicial consent in every state. In at least one the minimum is already 13, and a handful have no hard minimum with judicial consent. At this point it’s just a difference in degree, and I wouldn’t be at all surprised to see a sympathetic judge agree that the cutoff is culturally insensitive and discriminatory.

            • The courts have been very sympathetic to minors getting abortions without parental consent (sometimes even without parental notification). How dare you suggest that someone who is capable of making the very adult decision to choose an abortion lacks the capability of making the very adult decision to choose whether to have sex?

          • Geodkyt says:

            I can make arguments against both, without affecting gay marriage rulings:

            1. The state can generally implement stricter rules for minors than for consenting adults.

            2. Governmental recognition of marriage includes financial implications, property rights, etc. Limiting it to two persons per marriage is a fraud-avoidance scheme, to prevent a whole apartment complex from claiming spousal benefits amongst all residents.

            However, gay marriage rulings DO leave open other forms of marriage that some people find “icky”. Like adult incestous marriages — with gay marriage, the idea that governmental recognition of marriage is for the children has gone by the wayside.

            Arguments about the state interest in preventing inbreeding are suspiciously like the now-discredited eugenics arguments — frankly, the odds of a noticeable birth defect even in a first order incestuous relationship are lower than between two known carriers of the same recessive birth defect. By teh time you get to first cousin marriages (which are still normal in most of the world), the odds of noticeable birth defects are lower than having two unrelated persons from a high risk group (say Ashkenazi Jews and Tay-Sachs Disease) marrying.

            • Sebastian says:

              Genetically there’s issues with long term inbreeding. It’s really not healthy for the gene pool. First Cousins are generally not a problem as long as it’s not frequent in a family line. One benefit from Parliament allowing Royals to marry commoners is that it will allow the Royal Family to bring in fresh genetic stock that will hopefully weed out a lot of genetic problem resulting from inbreeding.

        • Sebastian says:

          Intermediate scrutiny was first used in Craig v. Boren, which is a 1976 case challenging Oklahoma’s law restricting males 18-21 from purchasing alcohol, but not women. It’s not that old, but the courts only recently started taking equal protection seriously for sex discrimination at all.

          • Jack (not Markell) in Delaware says:

            A cynic would say the courts started taking equal protection against sex discrimination seriously after the Equal Rights Amendment failed and the judiciary decided to implement it anyway. It’s just as foreign to the original intent of the 14th amendment as the rest of the wax-nose uses to which it’s been put, as any woman who wanted to vote in most of the country between 1868 and 1920 would have found out. Maybe it’s the right, just, socially optimal result, but it isn’t law.

      • As Chief Justice Roberts pointed out during oral arguments on Heller, the whole standards of scrutiny idea is quite modern. It is: it was an attempt for the left to come up with a way to find some things that are not ever explicitly stated (a right to marry whoever you want, to collect welfare as soon as you move into a state) to be constitutional rights, while largely ignoring rights that are explicit (right to keep and bear arms).

        The fact is that the way courts are finding a right to gay marriage (an idea that would have been considered incomprehensibly bizarre when the 14th Amendment was ratified) but coming up with all sorts of limitations on the right to keep and bear arms (which was explicitly listed as a primary reason for the 14th Amendment) just shows the fundamental dishonesty of federal judges.

        • Sebastian says:

          I agree that you can’t arrive at gay marriage through the 14th Amendment, but if judges are going to arrive at it, there are damaging ways to arrive at it, that could open the door to all kinds of mischief, and less-damaging ways consistent with what’s been done in this area before. The Third Circuit ruling seems to be among the less-damaging ways.

          At some point the SCOTUS will hear this, but your guess is as good as mine as to what Kennedy will do. Or Roberts for that matter.

        • Sebastian says:

          I should revise that, you can’t arrive there and claim to be a good originalist :)

    • And a right to collect welfare as soon as you move into a state, and a zillion other rights that have been spun out of thin air, with no textual origin or historical roots in the 14th Amendment’s jurisprudence — but a right that is textually present and well-defined in the historical record is a bit uncertain….

      During my presentations at law schools in November, I heard several progressive sorts arguing that the whole idea of a Bill of Rights should be dropped, and unlimited democracy allowed instead — even at the risk of states prohibiting abortion, or criminalizing homosexuality — they are THAT upset about the Second Amendment being taken seriously.

      Of course, they say this, but they know that even a complete repeal of the Bill of Rights would still have judges finding some mysterious basis for all the liberal essentials, while upholding democracy for gun control.

  4. RP says:

    I’m just so sick of social issues defining politics. We have massive problems with our government yet millions and millions of Americans see politics and elections as nothing more than fights over gay marriage and abortion.

    • Ian Argent says:

      Politicians MAKE elections about gay marriage and abortion for their own gain. Those are topics that are easy to sound-bite.

    • I agree. If you want same-sex marriage, persuade the voters that it is a good idea. Some state legislatures have done it that way. I disagree with the result, but that is really the way to do this, especially when there is no constitutional right to it. On what basis will this farce be okay, but not a right to polygamous marriage, or child brides? When Muslims become as large a fraction as evangelical Christians, you can be sure that Democrats will decide that these are constitutionally protected rights, too.

      • alcade says:

        Bingo! And when that happens everyone today cheering this ruling and denying there is a slippery slope will be labeled hateful bigots. I suppose that’s only fitting.

  5. Joe_in_Pitt says:

    Do we have a post-primary roundup to look forward to? I wouldn’t mind discussing a couple observations I had from last night.

  6. Renegade_Azzy says:

    You know, there is an easy out… Sorta.

    Have the Repubs put a bill up for a vote, that changes all marriage in PA to civil unions. If you want a marriage, go see who is doing the joining. No house of worship can be told it has to offer the ceremony outside its doctrine, or recognize anything past the consent of the legally binding protections in a civil union.

    Have it called “getting the State out of Marriage Act” and you will get support, and eliminate lots of issues. Wont make everyone happy, but its a try.

    • Sure, but gay activists will insist that repealing marriage laws is aimed at them (and they would be right), and the courts will prohibit such repeals. Worse, they might order the states to provide marriage for gay couples, but not for straight couples. It’s no sillier than the rest of the jurisprudence on this.

    • SJ says:

      Is there a way we can gin up a Separation of Marriage and State Alliance”?

      (Can we get the Americans United for Separation of Church and State to attack the concept that religious ministers can perform civil ceremonies?)

      Or is that group politically powerless now?

      It might actually be a battle that most of the traditional-marriage advocates may not want to support, but I feel safer separating religious marriage from civil-law structures for the long term.

      Because the legal status of marriage is being used in something that looks like “Establishment of Religion”, in the sense that the First Amendment forbids Congress to do. (And the Supreme Court has forbidden to most Federal and State government agents.)

      • Zermoid says:

        I was thinking along the same lines, as marriage was originally a religious institution, isn’t the govt barred from making any laws of this kind, either for, against or regulating in any way as it cannot interfere in the freedom of religion?

        Separation of church and state and all that?

        • The short answer is that marriage in New England was actually a civil matter in the colonial period. (The decision to cut down the seven sacraments of the Catholic Church to just two in Lutheranism is part of this. And marriage wasn’t one of them.) For that matter, while Anglican ministers did marriages in Virginia, there was a pretty large set of laws that treated this as a civil matter as well.

  7. AndyN says:

    This is a hopeless struggle the GOP would do better to just give up on.

    I don’t spend much time on social conservative blogs or reading social conservative commentary, but I’d be willing to bet that this exact same sentiment has been expressed regarding the rights of gun owners. You know… 90% of people want sensible gun safety laws, even the majority of gun owners want to close the gun show loophole, gun rights absolutists walking into Starbucks with assault rifles will drive otherwise conservative voters away from Republican candidates who they see as being in the pocket of the gun lobby.

    Pat Toomey isn’t anybody’s idea of a squishy RINO, but after Sandy Hook it apparently occurred to him that he could help himself and his agenda by making the government’s infringement on the right to keep and bear arms just a tiny bit bigger. I guess we’ll have to wait until 2016 to see if it makes more sense for a senator in a purple state to pander to traditional marriage adherents than to gun rights advocates.

    • Sebastian says:

      Except RKBA is quite easily not in the realm of lost causes. Objectively, if there was such the tide of shifting public opinion on the gun issue that there is on gay marriage, along with one monster of a generation gap on the issue, I would agree that RKBA is a lost cause. I wouldn’t like it, but that would be the objective fact.

      • AndyN says:

        I’m not sure where one draws the line on an issue being a lost cause. If the GOP can’t cobble together a coalition to take back the White House in 2016, it’s almost a dead certainty that Clinton or whoever the Democrats run will get to pick the replacement for at least one of the older Supreme Court Justices. How do you like the odds for the next Heller or McDonald with another Kagan or Sotomayor casting Scalia’s vote? Scalia, Kennedy, Ginsburg and Breyer will all be at least well into their 80s by the time our next president finishes her second term. If she sticks to the trend of appointing justices who are in their 50s, the left will have a 6-3 majority on the USSC for a long long time.

        • Sebastian says:

          I think if we lose in 2016 there will be no judicially enforceable Second Amendment. But we lived without that until 2008 and did just fine politically. The point at which a cause is lost is when public sentiment is sweeping against your issue, and you end up with fewer and fewer people willing to stand up for it in all three branches of government.

          Additionally, the people pushing gay marriage are extremely organized and motivated. They are willing hearts and minds very quickly. In truth the generational divide is the biggest problem for the GOP on the issue of gay marriage.

  8. Burnt Toast says:

    I get that nobody, except the fringes, really cares about gay marriage – so why the courts do something productive – like rule that gasoline with ethanol (E10, etc) has the same energy content as straight up gas, or that everybody gets an ‘A’ in algebra from no on?

  9. Gray Peterson says:

    Well, looks like Governor Corbett followed your advice, Sebastian:

    Statement from Governor Corbett

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