Gay Wedding Exchanging Rings
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Gov. Tom Corbett on Wednesday decided not to appeal the decision of a federal judge who struck down the state’s ban on same-sex marriage.

That move solidifies Pennsylvania’s place as the 19th state to grant marriage rights to same-sex couples.

Just one day after U.S. District Judge John E. Jones III of the Middle District of Pennsylvania declared Pennsylvania’s marriage ban unconstitutional, Corbett cited the difficult legal threshold he would have to meet on appeal and said that his administration wouldn’t pursue the case. The Corbett administration had 30 days to make a decision but acted swiftly.

“In state after state, federal judges have found the marriage bans unconstitutional,” said Terry Madonna, director of the Floyd Institute’s Center for Politics and Public Affairs at Franklin & Marshall College. He was referring to the rulings that have come from judges across the country over the last year since the U.S. Supreme Court gutted the federal Defense of Marriage Act, which had defined marriage as being between one man and one woman, when it ruled that definition was unconstitutional in United States v. Windsor last June.

Pennsylvania was among the states that passed its own law modeled on the federal DOMA, which became known as “mini-DOMA.”

Jones’ decision dispatched with Pennsylvania’s mini-DOMA, saying, “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Three other cases involving Pennsylvania’s marriage law are at various stages in both state and federal court, all of which the Corbett administration expects to be “rendered moot” and “resolved accordingly,” said Joshua Maus, spokesman for the state Office of General Counsel.

The “cases will be rendered moot as same-sex marriage is the law in Pennsylvania,” Maus said.

Corbett’s choice in the same-sex marriage litigation comes on the heels of another one that dropped the appeal of another politically-charged legal case—defending the state’s voter ID requirement. Political observers see Corbett, a Republican facing an uphill fight to secure reelection this fall, as clearing the tables of hot-button issues.

“There’s an inevitability here,” Madonna said of the trajectory of the courts.

Beyond that, Madonna said, Corbett is “getting the hot-button issues off the table.”

Corbett is coming into the fall election as an underdog, Madonna said, and by getting voter ID and same-sex marriage out of the discussion, he is taking away issues around which his Democratic opponent, Tom Wolf, can galvanize voters.

Public opinion has changed more quickly on the issue of same-sex marriage than on any other social issue in recent decades, Madonna said. Since he started polling on the topic in 2006, public opinion in Pennsylvania has changed 26 percentage points. In January, 56 percent of Pennsylvanians supported same-sex marriage.

Pennsylvania has 3 million registered Republicans and 4 million Democrats, so Corbett has to appeal to the independent voters around the Philadelphia suburbs and the Lehigh Valley, he said.

In his statement on the decision not to seek appeal, Corbett said, “Given the high legal threshold set forth by Judge Jones in this case, the case is extremely unlikely to succeed on appeal.”

Neither the U.S. Supreme Court nor the U.S. Court of Appeals for the Third Circuit has clearly established which of the three levels of scrutiny judges are to apply when looking at equal protection claims based on sexual orientation.

“Indeed, in the tea leaves of Windsor and its forebears we apprehend the application of scrutiny more exacting than deferential,” Jones said, effectively dismissing the use of the lightest level of scrutiny, rational basis, which is highly deferential to the legislature for its passage of laws.

He examined the state’s marriage law under the intermediate level of heightened scrutiny after finding that the classification of people based on their sexual orientation is quasi-suspect.

In that discussion, the judge offered an overview of the officially-sanctioned discrimination faced by gay and lesbian people since the Eisenhower administration. In the 1950s, the Philadelphia Police formed a “morals squad” that arrested 200 gay men a month, Jones said in a footnote, and state legislators have sponsored bills to amend the constitution to include the restriction of marriage to heterosexual couples in every session since 2006.

Under the heightened scrutiny standard, the Corbett administration would have to argue against the four criteria that qualify a group as quasi-suspect, which includes the first touchstone of whether the group has been subjected to “a history of purposeful unequal mistreatment.” That means that they would have to argue that gay and lesbian people haven’t historically suffered injustice.

“Indeed, it is unsurprising that defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the marriage laws from being invalidated under this more-searching standard,” Jones had said, adding in a footnote that several states’ marriage bans have fallen under the more relaxed standard of rational basis review.

The case had initially been set for trial in June, but last month both sides agreed to ask the judge to decide the issues as a matter of law on the briefs.

All the cases that have been decided in the year since Windsor have been decided on the briefs except for the federal challenge in Michigan. That trial, held earlier this year, included testimony from expert witnesses on behalf of the state who said that children raised by heterosexual couples generally fare better than children raised by same-sex couples.

One such expert, Dr. Mark Regnerus, who is an associate professor of sociology at the University of Texas at Austin, prompted his employer to issue a statement following his testimony. The university said that Regnerus’ “opinions are his own. They do not reflect the views of the sociology department of the University of Texas at Austin. Nor do they reflect the views of the American Sociological Association, which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed.”

In the Pennsylvania case, the Corbett administration offered no expert witnesses and didn’t depose any of the plaintiffs.

The challengers—11 couples, two teenage children who belong to one of those couples, and a widow—offered six expert reports, 23 depositions from the plaintiffs, and documents.

Mark Aronchick of Hangley Aronchick Segal Pudlin & Schiller, who was on the legal team with the American Civil Liberties Union challenging the law, had stressed the importance of building a full and complete record in order to shore up the case if it moved through appeals.

He called Corbett’s decision to forgo appeal a “principled” one. Aronchick said the administration most likely had “looked at it, evaluated it, and decided it was time to move on.”

“So, it looks like the victory is complete,” said John Culhane, a law professor at Widener University, adding a “small cautionary note, though.”

About half-a-dozen similar cases are on appeal in various circuits and he expects that one of them will go to the U.S. Supreme Court in the next two years. Although highly unlikely, given that court’s opinions in the last decade, if it were to find that states’ mini-DOMAs are constitutional, Pennsylvania’s ban could be reanimated.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.