George A. Nation is a professor of finance and law in Lehigh’s College of Business and Economics. He is a frequent contributor to the Morning Call on topics of constitutional law, odd practices in hospital billing, and preventing another Sandy Hook tragedy.
Nation provided this legal analysis of the recent federal court decision to overturn the Commonwealth’s ban on same-sex marriage.
As of May 20, 2014, gay and lesbian couples finally have the right to marry as well as have their marriages recognized in Pennsylvania.
The decision by the district court for the Middle District of Pennsylvania was written by Judge John E. Jones III and does an excellent job of analyzing the issues surrounding gay marriage. Judge Jones concluded, as has virtually every other federal court that has looked at this issue, that banning gay marriage violates the U.S. Constitution.
How? Jones found that Pennsylvania’s ban on gay marriage violates both the Due Process Clause and the Equal Protection Clause of the U.S. Constitution.
Under the Due Process Clause of the Fourteenth Amendment there are certain fundamental rights included within the concept of liberty, upon which the states may not infringe. Judge Jones concludes that both the right to marry and the right to marry the person of one’s choice, regardless of gender, is part of the fundamental liberty interest that is protected by the Due Process Clause. In reaching this conclusion, the opinion cites previous Supreme Court precedents, most importantly Loving v. Virginia, in which the Supreme Court struck down similar bans on interracial marriage.
Judge Jones also concluded that Pennsylvania’s ban violates the Equal Protection Clause of the Fourteenth Amendment. A state is forbidden from denying to any person within its jurisdiction the equal protection of the law. The Court found that the effect of the ban on gay marriage was to apply the law differently to people based solely on their sexual orientation. The opinion cites various Supreme Court precedents regarding the proper standard of review to be applied to unequal treatment based on sexual orientation, and concludes that sexual orientation is a quasi-suspect class and that heightened scrutiny is appropriate.
Heightened scrutiny means that for Pennsylvania to uphold its ban on gay marriage, it would have to show that the ban is substantially related to an important government interest. Quasi-suspect classifications are subject to heightened scrutiny because the preeminent characteristic that defines the class, in this case being gay or lesbian, provides no sensible basis for unequal treatment.
Pennsylvania officials argued that there are interests served by a ban on gay marriage, including the promotion of procreation, child rearing and the well-being of children, tradition, and the economic well-being of Pennsylvania businesses. However, according to Judge Jones, Pennsylvania officials failed to explain how the ban on gay marriage furthered any of these interests. That is, Pennsylvania failed to establish a relationship between the classification and the governmental interests served. Judge Jones noted that no such relationship exists. The court concluded that banning gay marriage—that is, limiting marriage to the union of one man and one woman—is not substantially related to an important government purpose. Therefore, banning gay marriage violates the Equal Protection Clause.
While it is hard to overestimate the importance of this decision, there’s still more work to be done in Pennsylvania in order to protect the rights of gay and lesbian citizens. Nothing in this federal court opinion, and nothing currently in Pennsylvania law, prevents discrimination against gays and lesbians in other contexts, like the workplace for instance.
It is very unlikely that Pennsylvania’s ban on gay marriage will ultimately be upheld. Jones was clear in his ruling. It is regrettable that the U.S. Supreme Court has not provided such clear and compelling direction concerning marriage.