Thoughts in a Haystack

I have been remiss in keeping up with the developments in marriage equality.

Since I last discussed it, a state judge in Arkansas and Federal judges in Idaho and Oregon have overturned bans on same-sex marriages as well.

But now it's the turn of an old friend: Federal District Court Judge John E. Jones III of Kitzmiller v. Dover fame.

As I've said before, the stories of the plaintiffs in these cases are far more compelling than the legal arguments. Here's some of what Judge Jones described. It's long, but everyone should read it:

As a group, they represent the great diversity of the Commonwealth of Pennsylvania. They hail from across the state ... They come from all walks of life; they include a nurse, state employees, lawyers, doctors, an artist, a newspaper delivery person, a corporate executive, a dog trainer, university professors, and a stay-at-home parent. They have served our country in the Army and Navy. Plaintiffs' personal backgrounds reflect a richness and diversity: they are African-American, Caucasian, Latino, and Asian; they are Catholic, Baptist, Methodist, Jewish, Quaker, Buddhist, and secular. In terms of age, they range from a couple in their 30s with young children, to retirees in their 60s. Many of the couples have been together for decades.

As plainly reflected in the way they live their lives, the plaintiff couples are spouses in every sense, except that the laws of the Commonwealth prevent them from being recognized as such. ...

The plaintiff couples have shared in life's joys. They have purchased homes together and blended their property and finances. They have started families, welcoming children through birth and adoption. Some of them have celebrated their commitment to each other through marriage in other states, sharing their wedding day with family and friends.

Yet, with each of these joys there has been concomitant hardship resulting from the Marriage Laws. In terms of property ownership, all of the couples face the payment of Pennsylvania's inheritance tax – including on half of the value of jointly-owned homes and bank accounts ...

For those couples who have had children ... the non-biological parent has had to apply for a second-parent adoption. Dawn expresses that she and Diana are presently saving money so that she can legally adopt their second son, J.P. Until the adoption is complete, she has no legal ties to J.P. ...

For the children of these couples, it can be difficult to understand why their parents are not married or recognized as married. ...

In addition, for the couples who have chosen to marry out-of-state, they are acutely sensitive that their marital status changes when they cross state lines. Edwin Hill describes driving home to Pennsylvania after wedding David Palmer in Maine in 2013, elated to be traveling through all of the northeastern states that recognize their marriage. "And then we crossed the Delaware River into Pennsylvania," he recalls, "and we looked at each other and said, 'We're not married anymore.' And that hurt." ...

The plaintiff couples share their resources and support each other financially. But Plaintiffs commonly echo a sense of legal and economic vulnerability because of Pennsylvania's Marriage Laws. Many of them have paid lawyers to draft protective documents, like wills and powers of attorney, in efforts to emulate some of the protections afforded to couples recognized as married. Susan Whitewood estimates that her family has spent over $10,000 in legal fees for the preparation and maintenance of such documents, which would not have been necessary if the Commonwealth acknowledged their marriage.

Angela Gillem and Gail Lloyd describe feeling particularly insecure. Angela is a clinical psychologist and the primary bread-winner, while Gail is an artist who does not draw a steady paycheck or contribute to Social Security. Angela expresses that she has "taken every step [she] can to ensure [Gail's] financial security" but that they still cannot duplicate all of the protections married couples receive, and she "live[s] every day with the fear that the steps [she has] taken will not be enough to protect Gail if something should happen to [her]." ...

The plaintiff couples have supported each other through illness and medical emergencies. Yet, because Pennsylvania considers them legal strangers, they may be left vulnerable in times of crisis. ... Lynn Hurdle remembers feelings of fear and helplessness when her partner, Fredia, was admitted to the hospital for unexpected surgery. Doctors began operating earlier than planned, and when Lynn discovered Fredia's hospital room to be empty, staff would not tell her why Fredia had been taken early or where she was.

The plaintiff couples demonstrate an intention to live out their lives together. Plaintiff Maureen Hennessey and her partner of 29 years, Mary Beth McIntyre, present a powerful example. When Mary Beth was diagnosed with inoperable Stage 4 lung cancer, Maureen left her job to care for her and to help run Mary Beth's business until her death. ... They were married in Massachusetts after Mary Beth fell ill, but because Pennsylvania does not recognize their marriage, the line for "surviving spouse" was left blank and Mary Beth was identified as "never married" on her death certificate. Maureen was listed as the "informant."

Wishing to have their relationships recognized for what they are in the state they call home, and by doing so to transcend the pain, uncertainty, and injustice visited by the Marriage Laws, Plaintiffs brought this suit.

Shorter version: these people have loving relationships, commitments, aspirations and a will to overcome the slings and arrows of life just like the rest of us do. All they want is to have the same support heterosexuals have under our law and to be free of the fear that the law, enacted in spite and bigotry, will actively seek to destroy those relationships, commitments and aspirations.

Judge Jones ended his opinion well:

The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. 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 rightfully discarded doctrine of "separate but equal." ... In the sixty years since Brown [v. Board of Education] was decided, "separate" has thankfully faded into history, and only "equal" remains. Similarly, in future generations the label 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 into the ash heap of history.

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Update: Both Oregon and Pennsylvania have decided not to appeal the court decisions and have become the 18th and 19th states in which there is marriage equality.