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View Diary: Oral Argument in PA Same-Sex Marriage License Leaves Big Questions Unanswered (27 comments)

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  •  is the state DOMA unconstitutional? (1+ / 0-)
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    ccyd

    it seems to be a matter of opinion. But there's a seperate lawsuit underway about that in Federal Court.

    I honestly don't expect for marriage equality to come to PA any time soon, but at the same time, a constitutional ban will never get the requisite 4 exact passages in the House and Senate, despite both being held by Republicans.

    Dawkins is to atheism as Rand is to personal responsibility- mperiousRex.

    by terrypinder on Thu Sep 05, 2013 at 11:34:22 AM PDT

    •  This case won't make that determination (1+ / 0-)
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      terrypinder

      The federal case you reference is a direct attack on the constitutionality of the statute.

      This case is a bit of an end-around and is really about whether the recorder of wills has the power to determine the constitutionality of any given law.  There were two questions regarding the intervenors that I didn't discuss because they are less interesting to me from a legal/academic point of view.  Those relate to the standing of the putative intervenors' right to interject themselves into the case.

      While I am a strong supporter of marriage equality, this case has ripples that will be felt far outside those confines and I am not sure that allowing Hanes to make his own decisions on constitutionality is the best legal outcome here.

      I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

      by ccyd on Thu Sep 05, 2013 at 11:45:51 AM PDT

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      •  right. I actually agree with you (1+ / 0-)
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        ccyd

        even though I'd directly benefit if my county's Recorder of Wills decided he was going to pull a Hanes.

        (they won't. the office here is held by Republicans.)

        Dawkins is to atheism as Rand is to personal responsibility- mperiousRex.

        by terrypinder on Thu Sep 05, 2013 at 11:50:54 AM PDT

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      •  There are some fine points (0+ / 0-)

        and while I'm not a legal expert by any means I have the understanding that I have, after following all of these cases for a number of years.

        I suspect your concern is that, by allowing a recorder of wills to determine the constitutionality of marriage laws and thus determine who may or may not marry, there is the potential for others similarly situated but in marriage equality states to decide that they don't have to issue a license to, or marry, a gay or lesbian couple. I think there is a significant difference. Generally speaking those county officials who've claimed for themselves the right to refuse to marry gay/lesbian couples are using some sort of non-existent conscience clause as their justification, which is a very different matter from making a determination that the US constitution would find a restriction on marriage to fail and to consent to issue marriage licenses on that basis (or as others might have it, that the Constitution affords them the right to refuse to issue a license to a couple legally entitled to receive one). The basis of the conclusions is different and, to me at least, virtually irreconcilable. In addition there is the fact that Pennsylvania appears to give people in positions such as Hanes judicial authority; most other states don't do that. And absent the ability to make a judicial determination, a county clerk, or equivalent, has no basis on which to refuse to do his or her job. I realize there may be enormous holes in my reasoning here but I actually feel at least somewhat confident that I have the general outlines correct.

    •  Currenty Marriage Equality lawsuits in PA (6+ / 0-)

      and some recent decisions, from Marriage Equality USA

      Pennsylvania #1  On 10 May 2012, in Marie Himmelberger v. Commonwealth of Pennsylvania, et al., a 3-judge panel of the PA intermediate appellate court upheld a lower court ruling that a woman who inherited her deceased civil union partner’s home in 2010 still must pay PA $108,538.83 in inheritance taxes because her partner is not her spouse, because their 2007 New Jersey civil union, obtained when they lived in NJ, carries no weight in PA, where they lived at the time that the first partner died. [Loss for ME in state court]

      Pennsylvania #2  On 4 January 2011, in Cozen O’Connor v. Jennifer Tobits, et al., a surviving wife sued to obtain death benefits denied by DOMA.  The most recent hearing was on 12 March 2012.  This is one of 14 cases in which the Republican-controlled House of Representatives was defending the Defense-of-Marriage Act, and charging taxpayers for the cost.  On 18 July 2013, Speaker of the U.S. House of Representatives John Boehner announced that the Republican-controlled Bipartisan Legal Advisory Group had ceased defending DOMA in all 14 of the federal lawsuits on which it wasted $3 million in taxpayer funds, including this one.  On 29 July 2013, the U.S. district court ruled that Jennifer Tobits is entitled to her deceased spouse’s pension benefits because in Canada they had gotten married and in Illinois (where they lived) they had a civil union. [Win for ME in Federal court; hooray for Rs abandoning DOMA suits]

      Pennsylvania #3  On 9 July 2013, in Deb & Susan Whitewood v. PA Governor Tom Corbett et al., 23 people (a widow, 10 same-gender couples, 4 of which were legally married in other states, and 2 of their teenage daughters) filed a federal lawsuit challenging the PA law that bans same-gender marriage for residents, and that ignores out-of-state same-gender marriages. [In progress in state court]

      Pennsylvania #4  On 22 July 2013, in Tim Hare & Earl Ball v. Pennsylvania, a gay male couple challenged the PA ban on same-gender marriage, and requested an immediate injunction allowing them to marry. [In progress in state court]

      Pennsylvania #5  On 9 July 2013, in Ed Hill & David Palmer v. Pennsylvania, a retired gay couple, together for over 25 years, sued to have their ME marriage recognized in PA. [In progress in state court]

      Pennsylvania #6  On 30 July 2013, in Pennsylvania Health Department v. Montgomery County Court Clerk Bruce Hanes, PA sued a county clerk who has issued 135 same-gender civil marriage licenses.  Clerk Bruce Hanes and Attorney General Kathleen Kane both say that the state marriage ban is unconstitutional.  On 2 August 2013, county attorneys asked the state court to transfer the case to the state Supreme Court.  Briefs from both sides are due 19 August, and a conference is scheduled for 4 September.  On 19 August 2013, 32 same-gender couples who received licenses from Hanes asked the court for permission to join Hanes as defendants. [In progress in state court]

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Thu Sep 05, 2013 at 11:58:00 AM PDT

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