While the Far Right is up in arms about Phil Robertson’s constitutional right to have a TV show, the big LGBTQ news of the week surrounds judicial decisions in New Mexico, Utah, and Ohio which may set the stage for same-sex marriage to become legal in Pennsylvania. With Pennsylvania’s ban on same-sex marriage headed towards a June court date, these judge’s opinions could have an impact.
For me, one of the most interesting aspects of what is happening around marriage equality, is watching our democracy at work. While states have passed legislation (like Pennsylvania) to restrict same-sex marriage, and some have even written this discrimination into their constitution, the reality is that all laws must be constitutional and may not violate the US Constitution. The hate groups fighting Marriage Equality don’t want to think about that. They use “the peoples’ voice” in an election as the final word. But our democracy uses three branches of government on purpose as a check and balance system. One would think that legislators wouldn’t pass laws that are unconstitutional, but that is why the Judicial branch exists to evaluate the constitutionality when it is asked.
Three court rulings in a week is huge, in and of itself, but that alone doesn’t set the stage for any impact on Pennsylvania. What does lay the ground work, however, is what each of these decisions say, and each is an important piece when added together.
The New Mexico ruling is important for a few reasons. First, it sets out why marriage law matters:
We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property.
Indeed, one of the primary strategies used by the anti-LGBT groups has been to isolate and make it hard for gay and lesbian couples to find legal stability for their relationships. And the ruling makes clear that discriminating against same-sex couples is unconstitutional according to New Mexico law because it discriminates based on sexual orientation. Although I don’t think it is too far of a stretch to say that the law also discriminated based on gender:
Historically, county clerks have denied marriage licenses to same-sex couples because state statutes include a marriage license application with sections for male and female applicants.
In Pennsylvania, while our constitution does not provide any protections based on sexual orientation it does provide protections based on gender.
The Utah decision is crucial because not only does it grant same-sex marriage to Utah residents, it is the first case since US v Windsor where the decision in that case has been used. Windsor overturned parts of DOMA, but didn’t overturn state laws. ThinkProgress put it this way describing Judge Shelby’s decision:
explained not only why Windsor applied, but why the state’s arguments against same-sex marriage fell flat.
But Shelby’s ruling goes further than any previous ruling by determining the level of scrutiny that must be supplied when considering a State’s case for discrimination. The Supreme Court has side-stepped this question, and now a Federal Justice has ruled creating a precedent that will be cited in future cases. Perhaps most importantly ids the way Shelby’s decision addresses each of the State’s rationale for discrimination and can find none of them with merit.
The Ohio decision may seem the least powerful, but in my opinion has great potential for Pennsylvania. The decision is limited to death certificates, but even this restriction adds to the potential power of the decision. In the case, Ohio argued that if Ohio must honor all marriages from out of state, then it is as if other states are dictating Ohio law when it comes to marriage requirements. But Ohio already recognizes out-of-state marriages that do not fit Ohio requirements for marriage.
Black referenced Ohio’s historical practice of recognizing other out-of-state marriages even though they can’t legally be performed in Ohio, such as those involving cousins or minors.
While the US Supreme Court’s ruling didn’t force states to accept marriages from other states, this Ohio ruling sets the stage for that to happen since no state has been able to successfully argue that the State has a legitimate reason to refuse same-sex marriages. Further litigation begin in Ohio, but it isn’t too much of a stretch believe this ruling effectively means that a state must recognize marriages legal in other states in all ways.