For the second time in two days a federal judge has struck down a state ban on same-sex marriage, adding momentum to what is fast becoming a landslide of judicial opposition to state efforts to protect the traditional definition of marriage as a union of husband and wife.
Tuesday’s decision came in Pennsylvania, where US District Judge John Jones invalidated two provisions of that state’s laws, one that restricted marriage to one man and one woman and one that refused recognition of valid same-sex marriages performed in other states.
“We are a better people than what these laws represent,” Judge Jones declared, “and it is time to discard them into the ash heap of history.”
Lawyers for the state are expected to file an appeal and to request that the decision be stayed to allow time for the courts to decide the issue.
Jones is the eighth federal judge in the past six months to strike down as unconstitutional a state law or a state constitutional amendment restricting marriage to heterosexual unions. No federal judge has upheld a similar ban during the same period.
Eighteen states and the District of Columbia currently recognize same-sex marriages. Thirty-two states have banned gay marriage either by passing a statute or enacting a constitutional amendment.
The decision in Pennsylvania is significant because Pennsylvania was the only state in the Northeast not to recognize same-sex marriages. The decision is also significant because Jones was appointed by a Republican president, George W. Bush.
On Monday, a federal judge in Oregon struck down that state’s ban on same-sex marriage. Federal judges in Utah, Oklahoma, Texas, Virginia, Michigan, and Idaho have issued similar rulings in recent months. All the judges behind those rulings were appointed by Democratic presidents, with the exception of the magistrate judge in Idaho, who was appointed by a judicial selection committee.
In addition to the action in federal court, a state judge in Arkansas recently declared that state’s same-sex marriage ban unconstitutional.
Federal judges in three other states – Kentucky, Tennessee, and Ohio – have invalidated parts of state laws that barred legal recognition of the marriages of same-sex couples who were wed in other states. One of those judges was appointed by a Republican president.
Gay rights advocates praised the ruling in Pennsylvania and expressed optimism about future court action.
“This is yet another win in a long line of rulings finding that denying same-sex couples the protections and dignity of marriage is unconstitutional,” Leslie Cooper of the ACLU Lesbian Gay Bisexual and Transgender Project said in a statement. “Across the country, Americans are embracing the idea that same-sex couples and their families deserve to be treated the same as other families.”
In a statement, Evan Wolfson, president of the group Freedom to Marry, said: “Today’s win in Pennsylvania finally brings the freedom to marry to the entire Northeast.”
“Loving and committed couples and their families in the nation’s sixth largest state will be able to share in the joy, security, and dignity that come with the freedom to marry,” he said. “The stone that was once left out has become the keystone, and now it’s time to finish the job nationwide.”
In his decision striking down the Pennsylvania marriage provisions, Judge Jones said that by his reading the US Supreme Court’s jurisprudence had evolved and “clarified the boundaries of the fundamental right to marry when tested by new societal norms.”
The judge rejected claims by lawyers for the state that the right to marry could be restricted by concepts of history and tradition. History and tradition are the starting point but not in all cases the ending point in constitutional cases, he said.
“We specifically hold that the fundamental right to marry as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution encompasses the right to marry a person of one’s own sex,” he said.
Any attempt to restrict that right by defining marriage in gender-specific terms, he said, is unconstitutional.
The decision stems from a lawsuit filed in July 2013 by the ACLU Foundation of Pennsylvania on behalf of 11 same-sex couples, five of whom want to get married in Pennsylvania and six of whom are already married but want the state to recognize their marriages as valid and equal to any other marriage.
The plaintiffs also include a widow who is being denied survivor benefits after the death of her partner of 29 years.
The suit had asked Jones to invalidate two provisions of Pennsylvania’s marriage laws passed in 1996. One defined marriage as a union of one man and one woman. The other provision declared that Pennsylvania would not recognize same-sex marriages conducted in other states.
The judge declared both measures invalid in his ruling on Tuesday. He said they violated both the due process clause and the equal protection clause of the Constitution’s 14th Amendment.
“The issue we resolve today is a divisive one,” Jones said in his 39-page decision.
“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,” he wrote. “Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection.”
The judge made a prediction: “In future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage.”