Archives for May 2015

Federal Court Strikes Down Nebraska Law Banning Gay Marriage

Agreeing with the argument that the state’s constitutional ban on same-sex marriage was a violation of the provisions of the 14th Amendment of the U.S. Constitution, a federal district court in Nebraska struck down the provision, saying it illegally created a classification based on gender. Under well-established constitutional law, because the constitutional amendment was “discriminatory on its face,” it must be subjected to an intermediate level of scrutiny by the court. Such a level of review requires that the state demonstrate that the amendment serve an “important governmental objective.” The court held that it did not.

In the opinion of the court, it was irrelevant whether the discrimination violated the equal protection clause or the due process clause of the 14th Amendment—it amounted to discrimination based on gender. Constitutional experts say that, though this argument has not been the most frequent rationale in striking down same-sex laws and constitutional amendments, it may be the most effective one, and it appears to be gathering support among justices.

Here are the different legal theories that have been successfully used thus far to invalidate gay marriage bans:

• Banning same-sex marriage is an unconstitutional form of discrimination based on gender (the rationale used in Nebraska and Missouri)
• Prohibiting same-sex marriage illegally discriminates based on sexual orientation
• Bans on gay marriage violate a fundamental right to marriage pursuant to the due process clause of the 14th Amendment
• Laws banning gay marriage have no “rational basis,” the minimal requirement for laws that treat one person differently from another

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Oklahoma Lawmakers Seek to Limit Gay Marriage—Plan May Fail

In an attempt to restrict same-sex marriage in the state, Oklahoma’s conservative Republican House of Representatives enacted a law requiring that all marriages be performed by either judges, retired judges or licensed members of the clergy. The law defines “clergy” to include a preacher, minister, rabbi or ecclesiastical dignitary. The intent was to remove county clerks from the process, so that persons seeking to enter into same-sex marriage would find it more difficult to have the ceremony performed.

In response, though, gay marriage proponents have found a loophole that makes it likely that it will be easier for people of the same gender to get married—they have applied to become licensed ministers, so that they can perform the ceremonies. Sources say the Oklahoma laws are very vague on what is required to obtain a license to be a minister. Furthermore, constitutional experts say that any attempt by the Oklahoma legislature to narrowly define who may become a minister will likely run afoul of the 1st Amendment freedom of religion, and the prohibition of the establishment of any religion by the government.

Pro-marriage advocates say the law will likely have a more detrimental impact on heterosexual marriage applicants, particularly if the parties are agnostic or atheist. Under the prior law, a person needed no religious affiliation to get married, but could have the ceremony performed by the county clerk. Many fear that it will become very difficult for “non-believers” to find someone who will agree to conduct their ceremony. Calling the legislation “the marriage chaos” bill, Troy Stevenson, executive director of Freedom Oklahoma, a support organization for gay, lesbian, bisexual and transgender people, says the statute violates the constitutional separation of church and state.

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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.