A federal judge in Pennsylvania has given notice that he will issue a decision by close of business today (Tuesday, May 20, 2014) on the constitutionality of Pennsylvania’s gay-marriage-banning “Defense of Marriage Act” (DOMA), and on the state’s overall refuse to wed gay couples.
Because of the 17-court winning streak gay civil rights advocates have enjoyed since the Supreme Court’s momentous decision last June in US v. Windsor, a decision which struck down a section of the federal DOMA, hopes are high for an 18th victory today.
Just yesterday, a federal judge in Oregon legalized gay nuptials in that state, and gay couples immediately began to get married by the state.
The Pennsylvania suit, Whitewood, et al. v. Wolf, et al., was filed on behalf of 21 Pennsylvanians (one plaintiff is a woman whose wife died last year) who either want to marry in Pennsylvania or have their out-of-state marriages recognized by the state of the Pennsylvania. The ACLU, one of the counsels in the case, has more:
The lawsuit alleges that Pennsylvania’s Defense of Marriage Act and refusal to marry lesbian and gay couples or recognize their out-of-state marriages violates the fundamental right to marry as well as the Equal Protection Clause of the Fourteenth Amendment. This lawsuit comes in the wake of the ACLU’s victory before the U.S. Supreme Court in U.S. v. Windsor, which requires federal recognition for lesbian and gay couples who are married in their home states. Plaintiffs argue that the court should closely scrutinize this discriminatory treatment because the state’s Defense of Marriage Act burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation.
Eighteen states – CA, CT, DE, HI, IA, IL, ME, MD, MA, MN, NH, NJ, NM, NY, OR, RI, VT, and WA – plus Washington, D.C. now have the freedom to marry for same-sex couples.
I cannot overstate the brilliance that was the Supreme Court’s decision last year in US v. Windsor. While gay civil rights advocates were disappointed that the Windsor decision “only” struck down DOMA, rather than legalizing gay marriages nationwide, Windsor ended up being a brilliant move tactically. The decision was so broad that it basically required state and federal courts across the land to find in favor of gay-marriage advocates. But, the decision stopped short of simply declaring victory nationwide. Instead, it required advocates in each state to file suit, so that our victories would happen piecemeal, one by one, state by state. This made each individual victory, while still joyous, less threatening at the same time, as for most Americans it was happening “over there” in another state. This not only gave Americans time to let the victories sink in, to let the concept of “gay couples getting married” sink in, but it also is leading to a sense of inevitability, which will eventually make a 50-state victory on marriage a gradual long-drawn-out yawn rather than a casus belli for the majority of the population.
By ensuring that we win marriage in rather quick baby steps — we’ve had 17 consecutive victories in court since DOMA was struck down less than a year ago — the Supreme Court’s majority appears to have effectively avoided turning Windsor into Roe, at least so far.
The ACLU did a great job profiling the plaintiffs to the suit, here they are: