Tuesday, May 20, 2014
While same-sex couples, and the people who support their right to be married, are celebrating a federal judge's decision upholding same-sex marriage rights, the ruling by John E. Jones III may bring some uncertainty too -- at least in the short term, and at least in some parts of the state.
Jones didn't just rule that gay marriage was a constitutional right: He also ruled that his decision would take effect immediately, without a stay. Such stays can keep rulings from becoming effective until after appeals play themselves out: While they delay a ruling's impact, they may also ensure couples don't end up in legal limbo, should future court action not go their way. Such a fate befell some 1,300 same-sex married couples in Utah earlier this year, when the US Supreme Court halted a ruling upholding marriage equality until an appeal could be heard.
But yesterday, a federal court judge ruled that Utah had to recognize those marriages performed during a 17-day window before the stay was issued, when same-sex marriage was legal. And what that means, said the ACLU in a late-afternoon press call, is that a precedent has been set: If Gov. Tom Corbett appeals today's ruling at some point, marriages conducted in the meantime will still be binding … even if future marriages are put on hold during the appeal. "Once you're respected as married by the Commonwealth, they can't take it away," said James Esseks, director of the ACLU's Lesbian Gay Bisexual Transgender & AIDS Project. The state will have to "respect" licensee issued by county officials in the days ahead, he said -- "even if the Supreme Court issued a stay until next week." (ACLU attorneys were somewhat less certain, though still optimistic, about whether marriages that were consecrated in other states would be recognized.)
The ACLU has, in fact, already posted news of a Philadelphia couple that received a marriage license this afternoon. (Philadelphia, apparently, doesn't shut down its entire government on Primary Day, the way Allegheny County does.)
Pennsylvania ordinarily requires a three-day waiting period before issuing a license, though a judge can waive the requirement. During the conference call, ACLU attorneys surmised that happened in Philadelphia, but while media there confirmed the issuance of a marriage license, it did not explain how the process had been expedited.
And some officials elsewhere, meanwhile, are counseling a bit more caution -- even if they support marriage equality.
"We're kind of waiting to see what the governor is going to do,"says Mike Pipe, a Democratic County Commissioner from Centre County. "If he says, 'I want to challenge this,' then I would prefer to wait, because I don't want our residents to be in limbo."
Corbett has not made his intentions clear: So far, his office has said only that it is reviewing the decision. The state has 30 days to appeal the judge's ruling, but it could seek an emergency stay at any time. And the state's three-day waiting period might hinder couples trying to get in under the wire.
"To say to [same-sex couples], 'Wait for 30 days' isn't fair. I hate saying that," says Pipe. But eventually, he says, the state's ban "will be overturned completely" -- and acting before that happens, he says, means that "from a legal standpoint, you may be caught in limbo." And he's not sure what will happen if same-sex couples seek marriage licenses before then:
"From experiences in other states, I know the entity that issues the licenses has been hesitant to go ahead if there's going to be stay or a challenge," Pipe says. "I wouldn't be surprised if there wasn't a cautionary approach that the Register of Wills wants to take."
The register of wills in Centre County, as in other counties, is an independently elected office. It had closed for the day by the time City Paper began making calls on the matter. City Paper was also unable to reach David Cleaver, the solicitor for an association representing Registers of Wills across the state.
Pipe says that he's unaware of plans to seek out same-sex marriage licenses in his jurisdiction: "The people I know who have been active on this issue have already gotten married in other states. Maybe I need more gay friends." But he isn't alone in worrying about a potential legal limbo: Local LGBT blogger Sue Kerr has voiced similar concerns.
Allegheny County Executive Rich Fitzgerald, who has already sent out a release advising same-sex couples of the process for seeking a license, said he wasn't sure what would happen if a stay was granted after the licenses were issued. He also said he didn't think he could waive the standard three-day waiting period. But in any case, he says, Jones' ruling is "good news -- it's the right thing to do for the state."
Anthony Infanti, an associate dean and professor at the University of Pittsburgh School of Law, agrees that there may be wrinkles if the Corbett Administration appeals the decision. An appeal, or an emergency request for a stay, could put couples who are married in a position where the federal government recognizes their marriage … but Pennsylvania does not.
But Infanti -- whose own out-of-state same-sex marriage is legally binding in Pennsylvania under Jones' ruling -- still calls it "a great decision."
One important element of the ruling, Infanti says, is the level of scrutiny the judge used in reaching the conclusion that the Pennsylvania marriage ban infringed on the civil rights of gay people. Jones ruled that "heightened scrutiny" -- the intermediate standard of review in deciding whether the government can infringe on the civil liberties of a specific class of people -- should be applied to laws that affect people on the basis of their sexual orientation.
That's "basically the same that applies to gender-based discrimination," Infanti says. And it could have implications for a range of other civil rights issues affecting LGBT people across the state by placing a higher burden on laws that disproportionately affect gay people.
And despite possible future uncertainty, Infanti says, the fact that Jones didn't issue a stay is good news: "If they issue a stay immediately, it's like, 'That's a nice decision, but it won't have a practical impact right away'. But without a stay, it does have a practical impact."