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The Compassion and Humanity of Judge Jones (PA Gay marriage decision - extended excerpt)
Last edited Wed May 21, 2014, 11:18 PM - Edit history (2)
After reading the entirety of Judge Jones' decision striking down Pennsylvania's gay marriage ban, what really stood out for me was that, although the technical, legal and precedent aspects are all very solid and well worth reading, it was the depth of the Judge's understanding of, and compassion for, the plaintiffs who brought the suit, and of how their lives had been affected by the ban on gay marriage. So I've created a selective excerpt of his decision, intentionally omitting some of the more technical parts of the opinion, in order to demonstrate the depth of the judge's compassion and humanity that shines so clearly in the decision. I was particularly moved by his use of phrases from the traditional wedding vows as subheadings.
There is a particular school of thought with regard to jurisprudence―one that is especially popular among conservatives―which holds that values such as empathy and compassion, and consideration of real-world impact of laws upon the lives of those who must live under them, have no place in judicial rulings. But I would counter that true justice operates on two planes, an ethical plane and a legal/technical plane; and it is the ethical plane that informs the legal/technical plane, not the other way around. And values such as empathy and compassion are integral to any kind of ethical consideration. I think Judge Jones' ruling stands as a wonderful example of a jurist allowing his ethics to inform his technical legal scholarship. Would that we had more liike him.
Here is the excerpt. The case is Whitewood, et al. v. Wolf, Case No. 1:13-cv-186.
MEMORANDUM OPINION
May 20, 2014
Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth's laws to the contrary are unconstitutional. We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.
< . . . .>
B. The Plaintiffs
Plaintiffs are Deb and Susan Whitewood, and their teenage daughters, A.W. and K.W.; Maureen Hennessey; Lynn and Fredia Hurdle; Fernando Chang-Muy and Len Rieser; Julia Lobur and Marla Cattermole; Dawn Plummer and Diana Polson; Dara Raspberry and Helena Miller; Ron Gebhardtsbauer and Greg Wright;
Sandy Ferlanie and Christine Donato; Heather and Kath Poehler; Angela Gillem and Gail Lloyd; and Edwin Hill and David Palmer. Five of the couples are unmarried, seeking to wed in Pennsylvania, and six of the couples, as well as Maureen Hennessey, desire to have their valid, out-of-state marriages recognized by the Commonwealth.
As a group, they represent the great diversity of the Commonwealth of Pennsylvania. They hail from across the state, making their homes in Allegheny, Dauphin, Centre, Northampton, Delaware, Chester, and Philadelphia Counties. 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.
For better, for worse
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 - at 15 percent, the highest rate.
For those couples who have had children, like Dawn Plummer and Diana Polson, 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., despite that, together, she and Diana dreamed of welcoming him to their family, prepared for his birth, and functioned as a married couple long before having him. Christine Donato, who together with Sandy Ferlanie completed a second-parent adoption in similar circumstances, describes the process as "long, expensive, and humiliating." The couples choosing to adopt, like Fernando Chang-Muy and Len Rieser, had to undergo a two-step process, incurring double the costs, in which one became their child's legal parent and, later, the other petitioned for a second-parent adoption. For the children of these couples, it can be difficult to understand why their parents are not married or recognized as married. In the words of Deb Whitewood, "It sends the message to our children that their family is less deserving of respect and support than other families. That's a hurtful message."
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." Further, the married couples must still identify themselves as single in Pennsylvania, for example, on their state income taxes. Many have remarked on the pain this causes them, describing that it feels "terrible," "wrong," and "like a denial of [their] relationship" to tick the box marked "single."
For richer, for poorer
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]."
In sickness and in health
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. Various of the plaintiffs express anxiety at the possibility that they would not be allowed to comfort or gain information about their partner's condition in the event of an emergency, despite the fact that they have prepared powers of attorney. 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.
Until death do us part
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. Towards the end of her life, Mary Beth required Maureen's help to get out of bed and to the bathroom, and to assist in self-care and administer medications. 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.
< . . . . >
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 now rightfully discarded doctrine of "separate but equal." See Brown v. Board of Education, 347 U.S. 483 (1954), overruling Plessy v. Ferguson, 163 U.S. 537 (1896). In the sixty years since Brown 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.
May 20, 2014
Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth's laws to the contrary are unconstitutional. We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.
< . . . .>
B. The Plaintiffs
Plaintiffs are Deb and Susan Whitewood, and their teenage daughters, A.W. and K.W.; Maureen Hennessey; Lynn and Fredia Hurdle; Fernando Chang-Muy and Len Rieser; Julia Lobur and Marla Cattermole; Dawn Plummer and Diana Polson; Dara Raspberry and Helena Miller; Ron Gebhardtsbauer and Greg Wright;
Sandy Ferlanie and Christine Donato; Heather and Kath Poehler; Angela Gillem and Gail Lloyd; and Edwin Hill and David Palmer. Five of the couples are unmarried, seeking to wed in Pennsylvania, and six of the couples, as well as Maureen Hennessey, desire to have their valid, out-of-state marriages recognized by the Commonwealth.
As a group, they represent the great diversity of the Commonwealth of Pennsylvania. They hail from across the state, making their homes in Allegheny, Dauphin, Centre, Northampton, Delaware, Chester, and Philadelphia Counties. 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.
For better, for worse
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 - at 15 percent, the highest rate.
For those couples who have had children, like Dawn Plummer and Diana Polson, 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., despite that, together, she and Diana dreamed of welcoming him to their family, prepared for his birth, and functioned as a married couple long before having him. Christine Donato, who together with Sandy Ferlanie completed a second-parent adoption in similar circumstances, describes the process as "long, expensive, and humiliating." The couples choosing to adopt, like Fernando Chang-Muy and Len Rieser, had to undergo a two-step process, incurring double the costs, in which one became their child's legal parent and, later, the other petitioned for a second-parent adoption. For the children of these couples, it can be difficult to understand why their parents are not married or recognized as married. In the words of Deb Whitewood, "It sends the message to our children that their family is less deserving of respect and support than other families. That's a hurtful message."
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." Further, the married couples must still identify themselves as single in Pennsylvania, for example, on their state income taxes. Many have remarked on the pain this causes them, describing that it feels "terrible," "wrong," and "like a denial of [their] relationship" to tick the box marked "single."
For richer, for poorer
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]."
In sickness and in health
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. Various of the plaintiffs express anxiety at the possibility that they would not be allowed to comfort or gain information about their partner's condition in the event of an emergency, despite the fact that they have prepared powers of attorney. 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.
Until death do us part
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. Towards the end of her life, Mary Beth required Maureen's help to get out of bed and to the bathroom, and to assist in self-care and administer medications. 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.
< . . . . >
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 now rightfully discarded doctrine of "separate but equal." See Brown v. Board of Education, 347 U.S. 483 (1954), overruling Plessy v. Ferguson, 163 U.S. 537 (1896). In the sixty years since Brown 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.
5 replies
= new reply since forum marked as read
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. . . that he is the judge who delivered a perfectly brilliant smackdown to creationists who tried to insert 'Intelligent Design' as part of the curriculum in the Dover, PA school district (Kitzmiller v. Dover). 
