Posted on 05/20/2014 5:44:30 PM PDT by SeekAndFind
Yesterday’s ruling striking down Oregon’s gay-marriage ban came from an Obama appointee. Today’s ruling striking down Pennsylvania’s ban comes from a Bush appointee, one whose confirmation was backed by Rick Santorum no less. Different judges, different political leanings, a slightly different legal posture (Oregon’s ban was part of the state constitution, Pennsylvania’s was merely a state statute, although each state’s AG refused to defend the law in court), but none of it mattered.
Like McShane in Oregon, Jones provided for no stay of his ruling, meaning it goes into effect immediately — and same-sex couples should be able to apply for marriage licenses immediately, although there is a three-day waiting period to get the license…
As to his legal conclusion, Jones wrote, “[W]e hold that Pennsylvania’s Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Because these laws are unconstitutional, we shall enter an order permanently enjoining their enforcement. By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.”…
In the order, filed moments later, Jones wrote the state defendants are “permanently enjoined” from enforcing the ban. He provided for no stay of his order, meaning it is effective immediately.
Lest you think this was a case of a judge grudgingly applying precedent with which he disagrees, Jones concluded his opinion by writing, “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” You can read the entire opinion here, but look: The precise rationale doesn’t much matter at this point. If you follow these cases, you know how the due process and equal protection arguments go by now. The significance of the Oregon and Pennsylvania rulings isn’t their legal reasoning, it’s the dramatic dual reminder that the controversy surrounding this issue is all but done as a matter of federal jurisprudence. You may yet see a very conservative appellate judge somewhere in the system uphold a gay-marriage ban over the next few years as SSM makes its way back up to the Supreme Court, but that’ll be an outlier. Judge after judge will continue to strike down these bans, from the northwest to the northeast to the deep south. You know why? Because Anthony Kennedy left them little choice. Remember the key passages from last year’s Windsor decision, in which the Court ruled a part of DOMA unconstitutional:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…
What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
Technically that ruling applied only to DOMA, a federal statute, and not to any state marriage bans. Technically you can read Kennedy as saying that it’s up to each state to decide whether gay couples should enjoy the “dignity and integrity of the person” that comes with having their marriage formally recognized. If a state wants to ban those marriages, so much for dignity and integrity. In reality, though, it’s a snap for lower-court judges to extend Kennedy’s logic to state bans on gay marriage too. If the Constitution protects gays’ moral and sexual choices, as Kennedy affirms, then their choice to marry logically is also constitutionally protected. Which means, by definition, that state bans are unconstitutional. Scalia, dissenting in the Windsor case, saw it coming from a mile away:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status…
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
In other words, said Scalia, the takeaway from the Windsor decision for lower-court judges wouldn’t be “the states can do what they like and the feds must comply with what each state decides,” it would be “gays have a fundamental liberty interest in marriage that no government, federal or state, may infringe.” What you’ve seen over the past few months in the drumbeat of pro-SSM federal rulings is Scalia being proved right. By the time the Supreme Court is asked to decide whether states can bay gay marriage, Kennedy will have a few dozen lower-court precedents implementing his Windsor reasoning to cite as support when he inevitably decides that gay marriage must be legal everywhere. Which, to give him his due, is tactically clever: He was understandably reluctant to be the deciding vote that makes SSM legal coast to coast in one fell swoop, so instead he planted a seed in Windsor which he knew lower courts would nurture for him. When this issue finally lands on his desk again, gay marriage will already be a court-enforced reality in dozens of states, with the public having had several years to adjust to it. All SCOTUS will have to do is rubber-stamp the lower courts. Minimal upheaval, minimal heat for Kennedy.
I think the people are getting what they want. I mean maybe the courts are a few years ahead of the people but the people will catch up. This is the kind of thing that happens when you lose a culture war. We’re like the French guy in that pic as the Germans were marching through Paris.
“Disappointing that a Pro Gay Marriage judicial nominee would get past Santorum, Bush and a GOP Senate.”
The Federal injustice system is a machine of Lobbyist, lairs and to be honest layers indoctrinated into a way of legal thinking invented, taught, and continually redefined in our “law schools” which are themselves of course run by liberals.
As We have the notion that conservative “judges” must be lawyers then they must also come from a lot that is indoctrinated into following the Left’s set of rules. Theses Rules as we have seen time and time again dictate lawlessness in favor of ideologically defined principles.
The present printable which is as much based upon a perception or “feeling” of injustice by one defined minority is used to impose real injustices upon other minorities and even majorities.
If you want a Good judge he must never have been a lawyer, and he must be a man who reads law for its plain English, and makes his judgment’s consistent in respect to the plain English of that law.
This is judicial prudent as orgianly defined, and it will not be found in any ‘federal court’ in theses united States.
The sad Reality is theses federal injustices are so wholly corrupted by this lawless system they will have to be removed.
Exactly how I feel. And who paid the price for that German victory? I fear America's children are about to be engulfed in a new Holocaust.
I can’t think of anything that proves you wrong. You can look at the results of the actual popular votes on the issue and see that the trend isn’t good, in my opinion.
When the courts imposed abortion 40+ years ago on the states that didn’t already have it, nothing happened. Hard to think it will for ‘gay marriage.’ One thing is that the punishments for not buying into whatever impossibility the state is currently calling marriage are going to be more visible than the effects of abortion. The actual victims will be able to holler about it.
Freegards
Yes, perhaps. I do see this whole vile fag-marriage insanity as a larger symbol that America is in the process of genuinely embracing evil. That the country’s end-stages are coming into view. Via both the tyranny used to spread it, and the degeneracy it represents.
It’s just beyond jarring to have to alter one’s lifelong perspective that his own country is becoming something that is no longer worth protecting or fighting for, but something to fight against. My values and beliefs are in accordance to what America used to be, and used to represent. Not the sick, perverted travesty that it is now becoming.
“I think the people are getting what they want. I mean maybe the courts are a few years ahead of the people but the people will catch up. This is the kind of thing that happens when you lose a culture war. We’re like the French guy in that pic as the Germans were marching through Paris.”
I don’t believe that, as for the people. When folks who speaks out against their edict are ostracized such as is increasingly the case in certainty jurisdictions. Debate and open discussion on this matter is thus increasingly shut down in public order.
The very edits of theses courts is to condemn us who don’t support their notion their perverse Sodomy is somehow natural and dignified rather than self-destructive and sinful.
When even Liberals can make such pronouncement we have lots the couture war for sanity, and may be force to endure the long winter until theses people either die off or see the futility of embracing the dangerous dead-end sterility of sodomy.
Anthony Kennedy, Reagan appointee.
From a related thread ...
Politically correct, pro-gay interpretations of the 14th Amendment's Equal Protections Clause by activist judges aside, the states have never amended the Constitution to expressly protect so-called gay rights. So regardless that activist judges are claiming that anti-gay marriage state laws are unconstitutonal, it remains that the states are free to make laws which discriminate against gay marriage as long as such laws don't also unreasonably abridge constitutionally enumerated rights imo.
A key Supreme Court case which clearly indicates that the states are free to discriminate on the basis of sex regardless of the Equal Protections Clause is Minor v. Happersett . In that case Virginia Minor used the Equal Protections Clause to argue that her citizenship gave her the right to vote regardless that she was a woman. However, the Court did not buy her argument but clarified that the 14th Amendment did not add new rights to the Constitution, that it only strengthened existing protections.
“3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had [emphasis added].” — Minor v. Happersett, 1874 .
And since the states hadn’t amended the Constitution to expressly protect woman suffrage before the 14th Amendment was ratified, women still didn’t have the right to vote after 14A was ratified, regardless of the Equal Protections Clause.
Note that the states subsequently ratified the 19th Amendment which effectively gave women the right to vote.
But it remains that the states have never amended the Constituiton to expressly protect gay agenda issues, including gay marriage.
What patriots need to do stop activist judges in their tracks with respect to legislating from the bench is the following. Patriots need to work with state and federal lawmakers to make punitive laws which require judges to promptly, clearly and publicly specify any constitutional clauses to substantiate their decisions. And if the Constitution is silent about a particular issue, then judges need to clarify that it is a 10th Amendment-protected issue. And if the states ultimately don't like honest interpretations of the Constitution then the states can always exercise their unique, constitutional Article V option to amend it.
Patriots also need to start making sure that their children are being taught the federal government's constitutionally limited powers, including the difference between legislative and judicial powers.
Judicial Tyranny.
Sodomite sympathizers, who knowing the judgment of God, that they which commit such things are worthy of death, not only do the same, but have pleasure in them that do,them.
Welcome to the United Socialist States of Amerika. Elections have not mattered in years and I have voted in my last election. Republicans are no better than democrats. All are sodomite-loving pieces of human garbage. This country is dead.
“heteros don’t marry anymore and now homos are going to get married...is this world crazy or what....”
The only good thing about sodomites is they can’t produce off-spring. But they can destroy Christian morality of a country and that is exactly what they have been allowed to do in this country, courtesy of run-away, unelected morons in office that think they are kings and the people are nothing.
“It’s just beyond jarring to have to alter one’s lifelong perspective that his own country is becoming something that is no longer worth protecting or fighting for, but something to fight against. My values and beliefs are in accordance to what America used to be, and used to represent. Not the sick, perverted travesty that it is now becoming.”
I don’t know what this is, but its not America not anymore.
Yep pick and choose, like a Chinese buffet.
They don’t really want to marry either.
The more apathetic Americans are the more these people can get away with............it works.
Roberts, Bush appointee.
And the robed tyrant today that ruled sodomite “marriage” was legal in PA was appointed by little Georgie Bush and recommended by Santorum..........but by and large the tyrants that have forced this immoral garbage on Americans have been democrat-appointees, most appointed by Barry Sinclair Obama.
Russia looks better and better all the time.
You are probably right.
Exactly. The only thing they are after is the complete and total mocking and destruction of the meaning of marriage....and the mocking of God and His people. That is their end game. The churches are next.
“What patriots need to do stop activist judges in their tracks with respect to legislating from the bench is the following. Patriots need to work with state and federal lawmakers to make punitive laws which require judges to promptly, clearly and publicly specify any constitutional clauses to substantiate their decisions. And if the Constitution is silent about a particular issue, then judges need to clarify that it is a 10th Amendment-protected issue. And if the states ultimately don’t like honest interpretations of the Constitution then the states can always exercise their unique, constitutional Article V option to amend it.”
I agree but this will only force all judges to admit what many judges already shamelessly do. That their edicts have nothing to do with the written Federal Constitution.
Of course no Federal judge will actually say that in the interest of providing lip service to the old republic but the effect of their words being wholly disconnected from the text. A self-evident fact that is already apparent to those of us who actually care enough to read their edicts and the Constitution.
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