Add Pennsylvania and Oregon to marriage equality states

Wow! I didn't think same-sex marriage would come to Pennsylvania so quickly! My native state never would have taken the initiative through legislative action, but a federal judge was not so hesitant. 

"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," District Judge John E. Jones III ruled.

Judge John E. Jones III

Judge Jones took aim at the state's Defense of Marriage Act: "We are a better people than what these laws represent, and it is time to discard them onto the ash heap of history."

The state had 30 days to appeal the ruling, but Governor Tom Corbett, a Republican who is facing a difficult re-election battle, decided it wasn't worth the trouble filing an appeal. Had he to do so, he would have antagonized young voters and suburban moderates. And, of course, an appeal would have given liberals one more reason to campaign aggressively against him.

Same-sex couples already are marrying in the state. My ex-partner and his partner are planning for a September wedding in their local church. Another friend and his husband, who were married in Connecticut, now have the benefits of marriage in Pennsylvania, their state of residence.

Not all reaction has been positive. The Catholic Church said it disagrees with the ruling. Extreme right-wing conservatives are apoplectic. My local newspaper has had to delete some of the remarks made in the paper's comments section because the statements were so vicious.

I'm sure the opponents will wear down. Many eventually will realize that they are on the wrong side of history.

Opinion in Pennsylvania on same-sex marriage is split, but proponents lead on the issue. A Robert Morris poll of 506 residents completed one week prior to the ruling found that 49.5 percent of those surveyed support the state allowing same-sex marriage, while 40.7 percent oppose.

(By the way, Judge Jones was appointed to the court by President George W. Bush.)

Judge writes personal decision in Oregon case

Let's not forget Oregon. Federal District Judge Michael J. McShane ruled on May 19 that Oregon's ban on same-sex marriage violated the federal constitutional right to equal protection.

"Because Oregon's marriage laws discriminate on the basis of sexual orientation without a rational basis to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution," Judge McShane said. His ruling took effect immediately.

Judge Michael J. McShane

"At the core of the Equal Protection Clause ... there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities," he said.

Judge McShane appended an unusually personal opinion to the ruling. He is one of nine openly gay members of the federal judiciary, according to Human Rights Campaign.

"Generations of Americans, including my own, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder or a mortal sin," Judge McShane, who was raised a Catholic, said. "I remember that one of the more popular playground attitudes of my childhood was called 'smear the queer' and it was played with great zeal and without thought of political correctness."

In that context, he said, it doesn't surprise him that Oregonians would seek to protect the traditional view of marriage. "But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them," he said.

"I believe that if we can look for a moment beyond gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in the closets or the stereotypes of what was once believed; rather we see families committed to the common purpose of love, devotion and service to the greater community."

Governor John Kitzhaber, a Democrat, praised the ruling. "No longer will Oregonians tolerate discrimination against the gay, lesbian and transgender community," he said.

(Judge McShane was appointed by President Obama.)

Trend in marriage rulings

In the wake of the U.S. Supreme Court's ruling in the United States v. Windsor case 11 months ago, opposition to same-sex marriage has been falling like dominoes. Since Windsor, 12 federal and state judges have ruled that state-initiative restrictions on same-sex marriage violate the United States Constitution. Pennsylvania and Oregon are the only ones of those states that decided not to appeal the rulings.

Nineteen states and the District of Columbia now allow same-sex marriages.

Critics of same-sex marriages argue that the changes are being imposed by "judicial fiat." Actually, prior to the Supreme Court's ruling in Windsor, they're mostly wrong. Only since Windsor have the federal courts gotten involved. For those keeping score, here are the facts.

Prior to Windsor, 12 of the 17 states adopted same-sex marriage either through state legislation or voter referendum. Delaware, Hawaii, Illinois, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island and Vermont used the legislative process. Maine, Maryland and Washington went directly to the voters. Same-sex marriage came to five states through the states' highest courts. These are New Mexico (where the justices are elected) and California, Connecticut, Iowa and New Jersey (where the justices are appointed).

Since Windsor, however, federal judges have become chiefly responsible for lifting same-sex restrictions. Federal judges acted in 11 states. In each case, they relied on guidance from the U.S. Supreme Court's Windsor decision, which overturned the federal Defense of Marriage Act as unconstitutional. Rulings in nine of the 11 states are on appeal; only in Pennsylvania and Oregon have post-Windsor decisions taken effect. In Arkansas, an elected state circuit court judge invalidated the state's anti-marriage law; the decision has been stayed pending an appeal.

So if you take all states into account, the tally is 14 by direct or indirect voter involvement and 15 by appointed judges.

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