Challenges to Same-Sex Marriage Laws

Jenkintown Family Law Attorney

Across the country, proponents of same-sex marriage have claimed victory: news stories covering legal battles in state after state have portrayed same-sex marriage in a favorable light, as an evolutionary moment whose time has come. What has gone largely unnoticed in all of this, however, is an emerging divide between the courts (judges) and lawmakers.

In general, judges have ruled in favor of same-sex marriage on constitutional grounds, citing equal protection considerations under the Fourteenth Amendment. This has resulted in a series of court decisions that require states to treat same-sex couples in the same way they treat heterosexual couples.

Lawmakers and Challenges to Same-Sex Marriage

A number of lawmakers have responded to what amounts to the legalization of same-sex marriage by introducing bills rooted in constitutional principles related to freedom of conscience and freedom of speech. For example, in North Carolina, legislators have introduced a bill that allows officials to opt out of providing wedding services to same-sex couples.

Critics of the bill argue that magistrates (or other qualified government officials) serve the people. As such, unlike a certified private citizen or clergy member, they are not in a position to opt out of providing the very services they are paid to render to the public in the first place.

This view, however, assumes magistrates and other officials are not allowed any sort of discretion in the execution of their duties: the police officer who is paid to enforce the law must write a ticket for those caught speeding – there is no room for giving a driver “a break;” the doctor who works at a public health facility must perform an abortion if called upon to do so. But neither of these constitutes a reasonable expectation just because one “serves the public.”

New Laws and the Emerging Cultural War Battle Line

Proponents of same-sex marriage claim public sentiment towards same-sex marriage (and homosexuality in general) has shifted from one of disapproval to one of support. Consequently, activists warn politicians that any attempt to circumvent recent legal decisions through new anti same-sex marriage laws will only result in a backlash against legislators who propose them.

However, if the number and distribution of proposed bills is any indication, such thinking might be little more than wishful thinking on the part of activists. Politicians, a notoriously self-interested and pragmatic group, often avoid upsetting their constituents if it means being run out of office. If lawmakers were really worried about running afoul of a new pro-homosexual trend, they wouldn’t be introducing these kinds of bills at the rate they are.

Same-Sex Marriage: Where do We go from Here?

It’s unlikely that the war over same-sex marriage has ended. Despite what is often portrayed in a triumphalist tone in a predominantly sympathetic media, many Americans remain skeptical regarding the wisdom of making same-sex marriage and homosexuality normative. For this reason, legal challenges and battles are likely to continue for some time surrounding the issue of same-sex marriage.

For more information regarding Pennsylvania law regarding same sex marriage, contact family law attorney Us Joanne Kleiner and Associates today.

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Montgomery County Bar Association
Pennsylvania Bar Association
International Academy of Collaborative Professionals