QUEER QUOTE: Attorney General Holder Declares DOJ Will Affirm Marriage Bans Are Unlawful

Attorney General Eric Holder has made news saying that if (really, at this point, the question is when, not if) the United States Supreme Court hears a case questioning whether a state ban on same-sex marriage violates the federal constitution, the Department of Justice will weigh in on  the side of marriage equality. This is important (and encouraging) news because the U.S. Supreme Court often wants to know what the position of the federal government is on questions of the U.S. constitution, even if a state law is under consideration.

This is what Holder said on a Sunday Talk show last week which is today's Queer Quote:

"When you have differentiations on the basis of sexual orientation they should be heightened scrutiny. That being the case, I think that a lot of these measures that will ultimately come before the Court will not survive a heightened scrutiny examination."

Holder also answered "Yes" when asked whether he thought it was unconstitutional to discriminate against same-sex couples in marriage.

I think there's really no doubt about whether marriage bans survive heightened scrutiny and there's less doubt that sexual orientation should receive heightened scrutiny. Several judges have ruled that marriage bans do not even survive rational basis review. If the Supreme Court (and the Department of Justice) took that position, that would basically end the marriage equality question once and for all.

19 And Counting! Federal Judge Strikes Down Pennsylvania Ban On Marriage Equality

For the second time in two days, a federal judge has brought marriage equality to a blue state. Yesterday, openly gay federal judge (nominated by President Barack Obama in 2013) Michael McShane ruled that Oregon's marriage laws were unconstitutionally prohibiting same-sex marriage. Today federal judge John E. Jones II (nominated by George W. Bush in 2002) struck down Pennsylvania's state ban on marriage equality. The attorney general of Pennsylvania refused to defend her state's statutory ban on same-sex marriage. Pennsylvania does not have an LGBT non-discrimination law or a constitutional ban on recognizing or invalidating same-sex marriages.

In the case of Whitewood v. Wolf the judge concluded that

Based on the foregoing, we hold that Pennsylvania’s Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Because these laws are unconstitutional, weshall enter an order permanently enjoining their enforcement. By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in theCommonwealth.  

The issue we resolve today is a divisive one. Some of our citizens are madedeeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibitionconstitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would  still be a racially segregated nation according to the now rightfully disregarded notion of "separate but equal." [citations omitted] In the sixty years since Brown was decided "separate" has faded into history, and only "equal" remains. Similarly, in future generations the term same-sex marriage will be abandoned, to be replaced simply by marriage. 

We are a better people than what these laws represent, and it is time to discard them to the ash heap of history.

Since no stay was issued and it is unlikely (but possible) that the 3rd Circuit Court of Appeals will issue a stay in the near future, Pennsylvania becomes the 19th marriage equality state!

Important 9th Circuit Gay Rights Ruling May Not Be Permanent

Uh-oh! Although the date passed on March 7, 2014  by which the parties involved could appeal the 9th Circuit's important ruling in SmithKlinBeacham v Abbott in which the federal appellate court ruled earlier this year that sexual orientation must receive heightened scrutiny when laws are being analyzed for equal protection purposes, now comes word that the ruling may not be final and that an en banc hearing on the case may be in the works.

"A sua sponte en banc call having been made, the parties are instructed to filewithin 21 days of the filing date of this order simultaneous briefs setting forth theirrespective positions on whether the case should be reheard en banc. See G.O.5.4c(3). An original and fifty copies shall be filed. See Ninth Cir. R. 35-4(b)."

The court published an order today (excerpted above) which gives interested parties 21 days to file briefs as to why or why not a panel of 11 judges should hear the case, and possibly reverse it. What happens now is that after 21 days the entire 9th Circuit (which has something like 26 judges) will vote as to whether an en banc hearing should occur. If a majority votes in favor, then there is a possibility that a randomly selected 11-judge panel or the U.S. Supreme Court could reverse the ruling.  The current 3-judge panel that issued the unanimous ruling has some of the most liberal members of the circuit on it (Berzon, Reinhardt and Schroeder).

SmithKline is incredibly important ruling and the question of whether marriage equality will come sooner or later to atleast two states in the 9th Circuit's jurisdiction (namely Nevada and Oregon) depends on whether the idea that sexual orientation is indeed a suspect class, which is a key corolary of the SmithKline Beacham decision.

MadProfessah will be watching developments in this case very closely!

Hat/tip to Equality on Trial