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Post-Roe, What’s the Fate of Marriage Equality in PA?

‘Conservative members of the Supreme Court are on a faith-based mission, which includes ending marriage equality,’ Wayne Besen, of Truth Wins Out, said
Photo courtesy of the Philadelphia Gay News.

“What we’re seeing right now with the [U.S.] Supreme Court is what happens when people don’t pay attention, when they don’t vote, or when they achieve a victory then walk away,” Jim Obergefell told the Pennsylvania Capital-Star by phone last week after the U.S. House passed the Respect for Marriage Act 267-157 — which included 47 Republican votes.

Obergefell, a Democrat, whose 2015 same-sex marriage case before the high court established marriage equality, is running for Ohio’s 89th House District seat currently held by Republican Rep. D.J. Swearingen.

The U.S. House ‘saction is an effort to protect same-sex marriage before it could be wiped away by a legal challenge, same as abortion. If passed by the US Senate, the measure would codify federal protections for same-sex marriage.

All nine Democratic members of Pennsylvania’s House delegation voted in favor of enshrining same-sex and interracial marriages (also included in the bill) into federal law. They were joined by three of their Republican colleagues – U.S. Reps. Brian Fitzpatrick, R-1st District,  Dan Meuser, R-9th District, and Scott Perry, R-10th District,  – who crossed the aisle to vote in favor of the bill.

As background, Obergefell successfully argued (Obergefell v. Hodges) that same-sex marriage is protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Consequently, the nation’s highest court struck down same-sex marriage bans nationwide as unconstitutional. But what my political science professor always said remains true – the Constitution is what the Supreme Court says it is. And the reversal of Roe proves that changes over time.

Obergefell warned that, just as complacency allowed pro-abortion rights supporters to grow comfortable that access to abortion would stand as the law of the land forever, queer voters and their allies are now fearful that all sorts of gay civil rights protections established at the local, state, and national levels now are at risk.

They fear Justice Clarence Thomas’ suggestion in his concurring Roe opinion (not joined by any of his colleagues), that the high court should “reconsider” other rights that were put into place based on similar legal arguments that established access to abortion.

With abortion off the list, will right-wing, conservative, and religious organizations and churches now focus on attacking access to contraception, revive sodomy laws, and reverse same-sex marriage as the law of the land?

As feared, the pile-on against marriage equality and access to contraception has begun.

Not missing a political beat, U.S. Sen. Ted Cruz, R-Texas, has already said he believes the Supreme Court should overturn the landmark Obergefell decision that established marriage equality in all 50 states. He’s long criticized the ruling and when announced in 2015 said states should ignore it.

Like former President Donald Trump with his non-stop election lies, just ignore the law, invent a reality that suits you.

Regarding access to contraception established in the high court’s ruling Griswold v. Connecticut, Wendy Parmet, of the Center for Health Policy and Law at Northeastern University, told The Guardian: “If this [Roe draft] opinion becomes the opinion of the court, Griswold is imperiled – no question.”

Like clockwork, some states are already targeting birth control. NBC News reports that 13 states already have trigger laws designed to take effect and that could pave the way for states to restrict access to contraceptives to the general public and/or state-funded programs.

Last year, according to the Pew Charitable Trusts, conservative Republicans in Missouri’s legislature tried to block Medicaid funding from going to Planned Parenthood.

In the bill’s fine print was language to stop paying emergency contraceptives, often sold under the brand name Plan B, and intrauterine devices, known as IUDs. In their desired world for women, not only is a women blocked from getting an abortion, she also cannot protect herself from getting pregnant.

We fear that we’ll be pushed into poverty if our marriage is dissolved.

John Plummer

Foreshadowing Pennsylvania’s general election in November, Republican gubernatorial nominee and known January 6th insurrectionist Doug Mastriano’s positions on homosexuality, sexuality, and other positions on families triggered the ire of Pennsylvania LGBTQ leaders who gathered June 6 in Philadelphia.

“Doug Mastriano has proven that he is completely unfit for that office,” Ted Bordelon, of the Liberty City LGBTQ+ Democratic Club, said.

“He believes homosexuality is ‘aberrant sexual conduct’ and opposes LGBTQ+ couples from adopting. He believes protecting gender identity from discrimination is ‘madness.’ And at his core, he believes LGBTQ+ Pennsylvanians don’t deserve the same protections or freedoms as the rest of the state,” Bordelon, a Democratic activist, said. “We cannot let him win and take us backwards.”

In contrast, Democratic gubernatorial nominee Josh Shapiro’s campaign website has a separate landing page on queer issues says he “will continue to advocate for LGBTQ+ Pennsylvanians and fight for equality.”

His campaign notes that “Pennsylvania is the only state in the Northeast without comprehensive nondiscrimination protections for sexual orientation and/or gender identity. This means that LGBTQ+ individuals can be discriminated against across the Commonwealth in many sectors, including employment, housing, credit issuance, education, and various public accommodations.”

Keep in mind, Pennsylvania state lawmakers, only this month, removed depictions of homosexuality from the list of illegal sexual acts in Pennsylvania’s Crimes Codes. The measure was swiftly signed into law by Gov. Tom Wolf.

To help sort out what looks like a royal legal mess ahead, the we asked University of Pennsylvania law professor Tobias Barrington Wolff to sort out what could happen in Pennsylvania if Obergefell goes down in a future SCOTUS ruling.

He notes that Pennsylvania law still prohibits same-sex couples from getting married.

“That law is unenforceable after Obergefell, of course, but it is still on the Pennsylvania statute books,” he explained. “If Obergefell were reversed and any distinct court injunctions concerning the Pennsylvania statute were lifted, marriage would again become illegal for same-sex couples in the state,” he said.

So, what would happen to Pennsylvania couples who are already married?

“There is no clear answer to this question,” Wolff said. “The most likely result, I believe, is that Pennsylvania courts would only prohibit marriage prospectively and would not apply the newly revived law retroactively to couples who legally got married,”

Wolff thinks “the courts would probably rely on a concept often called ‘vested rights’ in arriving at that result.”

But even if that’s right, he wrote in an email, it still leaves open some big questions.

“Would Pennsylvania acknowledge that those same-sex couples are married but start prospectively denying them equal rights and benefits under Pennsylvania law? I don’t know,” he wrote. “Until and unless the legislature acts to guarantee their equality or the Supreme Court of Pennsylvania acts decisively, there would be no certainty for those couples.”

That’s not a good look if you’re in a same-sex marriage.

Wolff clarifies that the federal Defense of Marriage Act is still in the U.S. Code.

“If Windsor were overruled, that statute would go back into effect,” he said.

Decided in 2013 before the landmark 2015 Obergefell decision, Winsor is the related landmark marriage equality case in which SCOTUS decided that DOMA, which denied federal recognition of same-sex marriages, was a violation of the Due Process Clause of the Fifth Amendment.

If Windsor were reversed, Wolff explains that “married same-sex couples throughout the US would once again lose all recognition for their marriages under federal law — for federal taxes, Social Security, immigration law, everything — and they would be at risk for new and pernicious forms of discrimination by hostile states.”

That’s why the U.S. House’s passage of the Respect for Marriage Act this week is so important, especially since it has bipartisan support and a chance to pass in the U.S. Senate.

“That bill would repeal the federal Defense of Marriage Act once and for all and create some important non-discrimination principles for federal law and state-to-state full faith and credit,” Wolff said. Wolff advises people “who live in states with Republican Senators should be calling and writing to urge that they support the Respect for Marriage Act. Pressure from voters could make the difference.”

And that was Obergefell’s plea in our phone interview – don’t grow complacent during the current anti-gay, anti-women political environment.

Against a political environment nationally and in Pennsylvania that seems adrift in chaos, Capital-Star went street level to assess what impact reversal of same-sex marriage might have on real people in their day-to-day lives.

John Plummer, of Milford, Pa., has been with his partner, Steve, for 18 years.

They married in Pennsylvania in 2016. If their right to marry goes away, their life together changes drastically.

On Sept. 11, 2001,  Steve was at his job with a Wall Street firm across the street from the Twin Towers. He was injured in a serious stairwell fall as coworkers hastily left the building as the horrors of the attack unfolded. Due to his injuries, Steve’s medical condition continues to this day.

“Since we’re married, Steve is now on my insurance plan, his marriage is recognized by his Pike County employer,” Plummer said. “We fear that we’ll be pushed into poverty if our marriage is dissolved. I’ve spent 30 years writing to elected officials explaining that I don’t want any ‘special rights,’ only the same rights as everyone else.”

Voting for candidates is where Annise Parker comes into the picture.

The LGBTQ Victory Fund CEO, and former two-term mayor of Houston, told the us by phone that the 30-year-old organization “supports down ballot LGBTQ candidates all across the country through their ‘bundling PAC’ and with candidate training boot camps and, of course, endorsements.”

The LGBTQ Victory Fund, according to its website, works to elect pro-choice, pro-equality candidates who are out members of the LGBTQ community to public office.

In Pennsylvania, the organization has endorsed Democrat Izzy Smith-Wade-El who is running for the Lancaster County-based 49th House District. Smith-Wade-El is Lancaster City Council president, having just won reelection to his second term.

The fund doesn’t tell candidates what their policies and positions ought to be.

“Rather, we assist candidates in establishing for themselves where they stand on issues. In other words, we don’t recruit candidates,”  Parker said. “If they come forward, we provide tools for them to carry out how they see their role in public service on a wide range of issues, to develop their talking points and paths to victory as they see fit.”

The organization is poised for a louder voice in the electoral process.

“We’ve orchestrated a 50 percent growth in the last year, increasing staff from 24 to 36,” Parker said.

At this point it’s reasonable to ask if the fears expressed by the queer and other communities that could eventually be affected by more Roe-like reversals are overreactions? The Internet is now home to Reddit and subreddits I Want Out and AmerExit which offer ways to expatriate.

Wayne Besen doesn’t think current fears of a continuing retraction of many established civil rights is an overreaction.

Besen founded Truth Wins Out, whose mission is to work against anti-gay religious extremism.

He agrees that it’s time to express rage.

One way he does that is to close down faith-based “gay conversion therapy” programs. He sees many of his earlier successes to do so being overwhelmed by groups returning to use of the discredited practice.

“The Religious Right will do whatever they can get away with,” Besen told the Capital-Star in an email. “Ending marriage equality is a top priority and this hard-won right is an endangered species unless we wrest political power from these extremists.”

Besen said, “This radicalized Supreme Court no longer cares about public opinion or the institution’s reputation. The conservative members of the Court are on a faith-based mission, which includes ending marriage equality. Exercising raw political power in the service of their religious beliefs is all that matters.”

The question is will the queer community rise to the occasion by joining intersectionally with other groups – cisgender, straight women, reproductive rights organizations – to turn the tide through electoral politics?

Republished from the Pennsylvania Capital-Star where this article was originally published on July 24, 2022.

Frank Pizzoli
Frank Pizzoli is the former editor and publisher of the Central Voice, the former Harrisburg LGBTQ newspaper.