Court Challenge to PA Marriage Statute

[heythere]

What is the name of your state (only U.S. law)? Pennsylvania

I've recently been reviewing the PA Constitution ([url]http://sites.state.pa.us/PA_Constitution.html[/url]) and came across these two sections:

Section 1. All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Section 26. Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.

And then we have 23 Pa. Cons. Stat. § 1704 ([url]http://law.onecle.com/pennsylvania/domestic-relations/00.017.004.000.html[/url]), which prohibits marriage of two people of the same sex.

Section 1 of the Constitution (above) is pretty basic and universal, and might not withstand a court challenge when applied to this statute. But as I read Section 26, I feel something different. By any logical account, marriage is a 'civil right,' and by denying it two two people of the same sex, are they not both denying it and discriminating it against them?

I'm interested in challenging this law in court. What would be the proper procedure to do so? Would I have to try to obtain a marriage license to have standing? What court would I go to? Who would I sue?

Note: I'm looking to have this law declared unconstitutional under the PA Constitution. I am not interested in implicating the federal Constitution in any way.

[Stevef]

Originally Posted by heythere

What is the name of your state (only U.S. law)? Pennsylvania

I've recently been reviewing the PA Constitution ([url=http://sites.state.pa.us/PA_Constitution.html]Constitution of the Commonwealth of Pennsylvania[/url]) and came across these two sections:





And then we have 23 Pa. Cons. Stat. § 1704 ([url=http://law.onecle.com/pennsylvania/domestic-relations/00.017.004.000.html]Marriage between persons of the same sex - 23 Pa. Cons. Stat. § 1704 - Pennsylvania Attorney Resources - Pennsylvania Laws[/url]), which prohibits marriage of two people of the same sex.

Section 1 of the Constitution (above) is pretty basic and universal, and might not withstand a court challenge when applied to this statute. But as I read Section 26, I feel something different. By any logical account, marriage is a 'civil right,' and by denying it two two people of the same sex, are they not both denying it and discriminating it against them?

I'm interested in challenging this law in court. What would be the proper procedure to do so? Would I have to try to obtain a marriage license to have standing? What court would I go to? Who would I sue?

Note: I'm looking to have this law declared unconstitutional under the PA Constitution. I am not interested in implicating the federal Constitution in any way.

Rather than start from scratch, why not look to some of the other states where similar suits have succeeded?

[racer72]

Marriage is not a right. It is a privelige granted by the laws of each state. The laws can also legally restrict the rights granted by the state constitution. Gun ownership is a right. Minors are restricted by law and cannot own guns. There are many other examples. The rights of any constitution, whether federal or state, are not absolute. Also, discrimination, if you want to call it that, is legal in many cases.

[heythere]

Originally Posted by Stevef

Rather than start from scratch, why not look to some of the other states where similar suits have succeeded?

I'll do that. I want to make the soundest legal argument possible. What about the other questions of standing and how it would work?

[heythere]

Originally Posted by racer72

Marriage is not a right. It is a privelige granted by the laws of each state. The laws can also legally restrict the rights granted by the state constitution. Gun ownership is a right. Minors are restricted by law and cannot own guns. There are many other examples. The rights of any constitution, whether federal or state, are not absolute. Also, discrimination, if you want to call it that, is legal in many cases.

If it is not a civil right, is there a legal argument to be made here at all?

Also, if the state made a law saying that only heterosexual citizens could own guns, would that not be discrimination?

[cbg]

Yes, it would. However, it would be legal discrimination under both Federal and state law, since sexual orientation is not a protected characteristic under Federal law or in PA. There IS such a bill up in your state legislature, but as far as I have been able to tell, as of late September of this year it had not yet been signed into law. Someone is free to correct me if I'm wrong.

IF PA HB 300 passes, you will have an easier time making such a challenge. Depending on the wording of the bill, that in itself may take care of the issue.

If I recall correctly, when my state became the first in the nation to allow gay marriage, it was based on the wording in the state constitution that offered protection to state residents based on sexual orientation. Without SOME state-mandated protection, you'll have a hard time prevailing. But that would be the place to start.

Good luck to you- your cause is a just one, IMHO.

[heythere]

Originally Posted by cbg

Yes, it would. However, it would be legal discrimination under both Federal and state law, since sexual orientation is not a protected characteristic under Federal law or in PA. There IS such a bill up in your state legislature, but as far as I have been able to tell, as of late September of this year it had not yet been signed into law. Someone is free to correct me if I'm wrong.

IF PA HB 300 passes, you will have an easier time making such a challenge. Depending on the wording of the bill, that in itself may take care of the issue.

If I recall correctly, when my state became the first in the nation to allow gay marriage, it was based on the wording in the state constitution that offered protection to state residents based on sexual orientation. Without SOME state-mandated protection, you'll have a hard time prevailing. But that would be the place to start.

Good luck to you- your cause is a just one, IMHO.

Perhaps I'm naive, but I think you're wrong that something must be a protected class under the law to be protected in general. For example, if the state made a law saying that only people who had blue eyes could own guns, that would surely be voided as unconstitutional, even though there is no such provision anywhere that protects people based on eye color.

With regards to Massachusetts, the state has no such provision in its Constitution, nor can I imagine any state having such a provision. The MA Supreme Court legalized same-sex marriages on the basis of the equal protection clause of the MA Constitution (see: [url=http://en.wikipedia.org/wiki/Goodridge_v._Department_of_Public_Health]Goodridge v. Department of Public Health - Wikipedia, the free encyclopedia[/url]). The MA Constitutional provision concerned:

Article CVI. All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

See: [url=http://www.mass.gov/legis/const.htm]Massachusetts Constitution[/url]

This is pretty similar to Section 1 of the PA Constitution, which I posted above.

The MA decision also claims that marriage is a right, not a privilege granted by the state (with regards to what racer72 said above).

[cbg]

You're not quite understanding me, or perhaps I wasn't clear. Either is possible.

What I intended to say, and maybe didn't do so well at saying, is that in order to challenge the statute, he's going to need a basis to show that the statute is unconstitutional, or at least illegal. Most discrimination IS legal. In PA, at the present time (and hopefully not much longer) discrimination on the basis of sexual orientation is legal. So there's no basis to challenge it there. However, if the bill in question passes, a basis will be created.

MA interpreted the equal protection clause to cover sexual orientation, even if sexual orientation is not specifically listed in the state constitution. The difference between MA and PA, at least for now, is that sexual orientation IS protected by state law in MA, where it is not in PA. But if PA has a similar clause, then perhaps he can find a basis in that, though I think he'll find it more difficult than MA did because of the discrimination issue.

[heythere]

Originally Posted by cbg

You're not quite understanding me, or perhaps I wasn't clear. Either is possible.

What I intended to say, and maybe didn't do so well at saying, is that in order to challenge the statute, he's going to need a basis to show that the statute is unconstitutional, or at least illegal. Most discrimination IS legal. In PA, at the present time (and hopefully not much longer) discrimination on the basis of sexual orientation is legal. So there's no basis to challenge it there. However, if the bill in question passes, a basis will be created.

MA interpreted the equal protection clause to cover sexual orientation, even if sexual orientation is not specifically listed in the state constitution. The difference between MA and PA, at least for now, is that sexual orientation IS protected by state law in MA, where it is not in PA. But if PA has a similar clause, then perhaps he can find a basis in that, though I think he'll find it more difficult than MA did because of the discrimination issue.

I understand what you're saying, but once again I must say that I find your argument (as I understand it) flawed. You posit that in order to nullify a statute, there must be another supporting statute? I find this a little silly, because it seems ridiculous that with two co-existing statutes, you might use one to invalidate the other. They are both on the same level. (Whereas a Constitution is superior to any statutory law.) While I suppose this could hold true in some circumstances (perhaps even this one), I don't believe it's a necessity.

Can you point to MA's sexual orientation-inclusive anti-discrimination statute? I don't recall reading about one at all in the court decision, but perhaps I just missed that. (I only skimmed it.)

So far as I understand it, there is no need to have a supporting statute (here, an anti-discrimination statute) to invalidate a discriminatory statute (here, the anti-same-sex marriage statute) when you can interpret a superior law (here, the PA Constitution) as being sufficiently anti-discriminatory.

You yourself just stated that the MA Constitution was interpreted to include sexual orientation; this is something independent from any statutory provision. Is there any compelling reason that PA's similar provision cannot be applied in the same way?

I hope I don't sound too crass, I don't mean to be. I really do want to talk about this.

[cbg]

You really are misunderstanding me.

First of all, here is where the MA statutes protect sexual orientation. I never said that it was in the state constitution. I said that the equal protection clause in the constitution was interpreted that way given that sexual orientation is protected by state law.

[url]http://www.mass.gov/mcad/documents/MCAD%20Jurisdictional%20Summary%20-%20Employment%20&%20Education&%20Housing.pdf[/url]

There is no reason the equivalent clause in the PA constitution couldn't be interpreted the same way. IMO, however, it will be a much easier challenge to make if HB 300 passes. That is my opinion. I'm sorry if you feel that opinion is flawed.

[heythere]

Originally Posted by cbg

You really are misunderstanding me.

First of all, here is where the MA statutes protect sexual orientation. I never said that it was in the state constitution. I said that the equal protection clause in the constitution was interpreted that way given that sexual orientation is protected by state law.

[url]http://www.mass.gov/mcad/documents/MCAD%20Jurisdictional%20Summary%20-%20Employment%20&%20Education&%20Housing.pdf[/url]

There is no reason the equivalent clause in the PA constitution couldn't be interpreted the same way. IMO, however, it will be a much easier challenge to make if HB 300 passes. That is my opinion. I'm sorry if you feel that opinion is flawed.

I was confused, but rightfully so, because you did say it was in the state Constitution:

Originally Posted by cbg

If I recall correctly, when my state became the first in the nation to allow gay marriage, it was based on the wording in the state constitution that offered protection to state residents based on sexual orientation. Without SOME state-mandated protection, you'll have a hard time prevailing. But that would be the place to start.

I understand your argument now and have no qualms with it.

[cbg]

I agree that I worded it badly. What a difference a comma makes.

[mommyof4]

May I take a second to point out one fact?

ALL adults have the exact same rights re: marriage. The restriction is placed on whom he or she may legally marry. That restriction is in place for everybody (not counting the states that have allowed and recognized marriage between same sex partners), ergo, no discrimination based on sexual orientation in the case of marriage (technically, anyway).

A gay man is no more barred from entering a legal marriage than a straight man.

OP, I already know what your response will be to my statement and, for the record, I agree with you. I fail to see how 2 people who love and support each other being recognized as legally married will bring the downfall of all civilization.

I'm just throwing that fact out there.

[Stevef]

Originally Posted by mommyof4

May I take a second to point out one fact?

ALL adults have the exact same rights re: marriage.

Actually, all unmarried adults have the exact same rights re: marriage.

Here's another question: If the equal rights amendment passes (It's been reintroduced), would that eliminate all bans on same sex marriages?

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

[Stevef]

How about this argument:

[e]quality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” PA. CONST. art. I, § 28.

My argument is:

Dick and Jane do not have the same rights to marry Tom, because of their sex.