NPR Story
12:51 pm
Wed May 21, 2014

Pennsylvania Becomes Latest Gay Marriage State

Originally published on Wed May 21, 2014 1:28 pm

Pennsylvania’s Republican Governor Tom Corbett says he won’t appeal yesterday’s ruling from a federal judge striking down a state law that banned gay marriage.

Hundreds of gay couples are rushing to get married in the state, which as of today has become the 19th state where gay marriage is legal.

On Monday, a federal judge in Oregon struck down a voter-approved ban on gay marriage and a federal judge in Utah ordered state officials to recognize more than 1,000 gay marriages performed there in the two weeks before the U.S. Supreme Court issued an emergency stay.

Ultimately, the issue will wind its way back to the U.S. Supreme Court, because in its decision last year striking down part of the Defense of Marriage Act, the high court didn’t weigh in on whether state bans of same-sex marriage violated the Constitution.

Carl Tobias, professor of law at the University of Richmond School of Law, discusses this with Here & Now’s Jeremy Hobson.

Guest

  • Carl Tobias, professor of law at the University of Richmond School of Law.
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Transcript

JEREMY HOBSON, HOST:

It's HERE AND NOW.

And gay and lesbian couples are rushing to get marriage licenses in Pennsylvania today, a day after a federal judge struck down a state law banning gay marriage. Now Pennsylvania is poised to become the 19th state to recognize gay marriage, but many states are close to joining that list because of legal challenges to gay marriage bans.

And the fight is likely to move all the way to the U.S. Supreme Court. For more now on the legal battle for same-sex marriage, we're joined by Professor Carl Tobias who teaches law at the University of Richmond in Virginia. Professor, welcome.

CARL TOBIAS: Thank you.

HOBSON: Well, are you surprised that these rulings are coming in? It seems just week after week in different states around the country.

TOBIAS: No, that's true. In fact, there were two this week.

HOBSON: Yeah.

TOBIAS: Monday in Oregon, and then on Tuesday in Pennsylvania. So the pace of the rulings is surprising and seems to be picking up, as does the rhetoric the courts seem to be using in crafting the opinions.

HOBSON: All based on the Supreme Court's decision on the Defensive Marriage Act.

TOBIAS: Substantially based on Windsor last term, that's correct. All of the courts have invoked that important Supreme Court decision in validating Section 3 of DOMA.

HOBSON: And remind us what that decision said exactly.

TOBIAS: Basically it said that that constitutional provision in the 1996 statute basically violated the U.S. Constitution. And so the constitution had to trump that federal statute.

HOBSON: But importantly, when the Supreme Court made that decision, they also decided not to get involved in a particular gay marriage ban in California, right? They side-stepped that, and yet, courts around the country are using that DOMA ruling to justify striking down bans on same-sex marriage.

TOBIAS: That's true, because there's language in the Windsor opinion that courts have invoked and seems to point in the direction of invalidating these bans, even though, as you suggest, the Supreme Court majority did not explicitly say that in Windsor.

HOBSON: But do you think the Supreme Court envisioned this happening, and so quickly after that ruling that courts around the country, judges around the country would use that ruling to justify striking down gay marriage bans?

TOBIAS: Well, Justice Scalia in descent actually predicted this. And then a number of judges including the Pennsylvania judge yesterday, Judge Jones, invoked his language in the descent saying that this would be the next shoe that would drop. This is the next issues that would come before the court, and it does look like that is about to happen.

HOBSON: OK. Well, tell us about that. When might this all get to the Supreme Court?

TOBIAS: Well, what we've had is a string of federal district court rulings, about a dozen or so, all invalidating usually bans, sometimes statues, and there are a number of appeals in the federal appellate courts at this point.

The one that's on the fast track is in the Tenth Circuit in Denver. And there are appeals out of Utah and Oklahoma. There also is an appeal in Virginia. That was just argued on May 13. The 10th Circuit appeals were argued in April. So they seem likely to be the first ones to be decided.

HOBSON: And in some states, proponents of bans are not being allowed to argue their case, because they don't have standing. Tell us about that.

TOBIAS: Well, that's true. In some states, for example, Oregon was an example, and the opinion you talked about from the Supreme Court, the Perry opinion said the proponents may not have standing to appeal in certain situations. That means they cannot join the suit. And what has happened in some states is attorneys general have decided that the bans or the statues are unconstitutional, and decided not to defend them. For example, in Nevada, Oregon, Virginia, the attorneys general all made those similar decisions.

HOBSON: But if this were to get to the Supreme Court, it would be argued on both sides I would assume.

TOBIAS: Absolutely. At this point, whoever loses in the appeals courts will file petitions for certiorari. That's a grant of the appeal. And I expect that to happen maybe late summer or September. And then the Supreme Court would have to decide. You need four justices' votes for certiorari, and it may not take the first one, or even the third or fourth one.

I think what is likely is if there is division among the appeals courts, then you have a conflict among the circuits and it would be difficult for the Supreme Court to tolerate different legal regimes in different parts of the country.

HOBSON: So what would happen with these state rulings if the Supreme Court were to say it's a federalism issue, this should be left up to the states?

TOBIAS: Well, then I think each state then would have to make decisions. The lower court decisions would not stand, and then you might see ballot initiatives or legislation in a number of these states. For example, Oregon, I think the proponents of marriage equality did not choose to put the matter on the ballot because Judge McShane ruled in their favor the other day. But that's what would happen in those states, and I think relatively promptly.

HOBSON: And what do you expect the Supreme Court to do? What do you think they'll do once they get this issue before them?

TOBIAS: Well, I think they are likely to wait on several appeals courts and let it percolate up, and see what the reasoning is among those circuit courts, 4, 5, 6, and 10, and then probably grant certiorari. I think there are four justices who would grant certiorari, and then in the next term, there would be full briefing, oral argument, and a final decision probably in June of 2015.

HOBSON: Carl Tobias is a professor of law at the University of Richmond. Professor Tobias, thanks so much for joining us.

TOBIAS: My pleasure.

HOBSON: And just to bring you up to date on some of the things that are happening around the country on this, back in January, a federal judge struck down a ban in Oklahoma. In February, a Virginia gay marriage ban was ruled unconstitutional, same in Texas.

Tennessee and Kentucky have been told by federal judges that they have to recognize same-sex marriages from other states, same with Indiana and Ohio and Idaho. In Michigan, a ban was struck down in March. And that's not even all of them, Robin. So bottom line, this is, as the professor said, likely to end up at the Supreme Court.

ROBIN YOUNG, HOST:

Well, and there is a coda to this. We're learning today how difficult it once was to be a gay federal employee. Today's New York Times is reporting about government documents uncovered by a historian that reveal outdated policy, but also some pretty shocking language.

One document was written by a Civil Service Commission employee in 1964, this was during the Johnson administration. It asks a question of whether gay federal employees can be rehabilitated. At the time, the FBI under J. Edgar Hoover had a program to uncover gays in government with a network of informants. Quite something. We'll link you to that story at hereandnow.org.

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