It’s quickly becoming a trend that I interrupt my planned posts with breaking news on marriage equality. This time two states in two days!

On Monday, U.S. District Judge Michael McShane ruled that Oregon’s ban on same-sex marriage was unconstitutional.  Then yesterday, U.S. District Judge John E. Jones III followed suit by striking down Pennsylvania’s ban.

With these rulings, nine states have had their constitutional amendments struck by a federal judge.

As always, I have my takeaways.

Let’s start with Pennsylvania:

1. The Coolest Introduction Ever: Judge Jones really put some thought into his opinion. He creatively gives the background on the the Plaintiffs in the case by going through the standard marriage vows – for better, for worse, for richer, for poorer, in sickness and in health, until death do us part. Nice touch.
2. The Family of District Courts: Jones refers multiple times to his “sister district courts” and use their decisions as the foundation for his. His point emphasizes how impactful all of these decisions have been and how, as a group, they make it difficult for gay-marriage opponents to gain any traction with these cases. My thought about the Supreme Court not needing to get involved seems more and more likely.
3. Gays and Lesbians are a Quasi-Suspect Class: Jones spends 14 pages of his 39 page opinion fleshing out what type of classification applies to gays and lesbians. The type of class is important because it determines the level of scrutiny that applies to the laws in question. (For a quick primer on scrutiny in equal protection cases see my takeaways from the Michigan Case.)  In analyzing whether the Pennsylvania ban meets the required scrutiny, Jones gives the Defendants a pretty good jab: “Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.” While most judges have held these laws don’t even meet the minimum level of scrutiny, having a detailed analysis of why gay and lesbians fall under a particular classification can provide good precedent for other cases.
4. Discomfort in Some Does Not Make Prohibition Constitutional: Jones ends as poetically as he started. He remarks that just because people may be uncomfortable with gay marriage doesn’t make its prohibition constitutional. Likewise, just because something has been “tradition” doesn’t mean that it “trumps due process or equal protection.” However, Jones outdoes himself with his last line: “We are better people than what these laws represent , and it is time to discard them into the ash heap of history.” Amen.

On to Oregon: 

1. No Legitimate Government Interest: I feel like I’ve repeated myself a thousand times on this one. Judge McShane became yet another judge to rule that these laws have no rational basis and thus fail to meet the minimum level of scrutiny required (although he seems to imply that gays and lesbians are not a suspect or quasi-suspect class). He wrote: “the state’s marriage laws unjustifiably treat same-gender couples differently than opposite-gender couples. The laws assess a couple’s fitness for civil marriage based on their sexual orientation: opposite-gender couples pass; same-gender couples do not. No legitimate state purpose justifies the preclusion of gay and lesbian couples from civil marriage.” This analysis seems so obvious as we continue to hear it in opinion after opinion. I do wonder, though, why it has taken so long to get judges to agree on such an apparent point.
2. AG not Defending the Case:  This case is somewhat unique because the Oregon’s AG is not defending the ban. Back in February, Attorney General Ellen Rosenblum decided that the state’s gay marriage ban could not withstand a constitutional challenge under any standard of review. Attorney generals in Virginia, Pennsylvania, California, Illinois, Nevada and Kentucky have also made the same decision. Virginia and Kentucky still appealed the rulings. A county clerk who was sued in Virginia is fighting that ban, and Kentucky hired outside attorneys. The National Organization for Marriage tried to argue in favor of the ban in Oregon, but McShane and the federal appeals court rejected the request.
3. Marriage Begins Immediately: Marriages in Oregon began immediately. Well, at least Oregonians could get their marriage license. Under state law, any couple has to wait three days to get married after they get their license. However, couples were so confident that the courts decision would be positive that they line up outside of the county clerk’s office in Portland before the decision was even made.  

These are the 13^th and 14^th victory in a row for same-sex marriage since Windsor was decided. You can read the opinions in their entirety here and here.

Can’t wait to see who falls next!