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Federal judge rules same-sex marriage ban in Pennsylvania is unconstitutional

By Greg Botelho, CNN
May 21, 2014 -- Updated 0006 GMT (0806 HKT)
  • NEW: Judge: "We are a better people than what these laws represent"
  • NEW: Group slams ruling, urges governor to "give marriage the defense it requires"
  • NEW: Governor is "reviewing the decision," expected to make statement Wednesday
  • Federal judges in several other states similarly struck down such bans

(CNN) -- A federal judge struck down Pennsylvania's ban on same-sex marriage Tuesday, making it the latest in a host of states in which such prohibitions have been declared unconstitutional in the past year.

As with many of those previous rulings, U.S. District Judge John E. Jones cited the constitutional touchstones of due process and equal protection in striking down the prohibition.

"In future generations, the label same-sex marriage will be abandoned, to be replaced simply by marriage," Jones wrote. "We are a better people than what these laws represent, and it is time to discard them into the ash heap of history."

Other courts' decisions have been stayed, pending appeals -- meaning gay and lesbian couples can't marry in those states until an appeals court weighs in. Same-sex couples in Oregon began getting marriage licenses Monday after a similar federal court ruling, which that state did not appeal though the National Organization for Marriage subsequently did.

April Dawn Breeden, left, and longtime partner Crystal Peairs are married by the Rev. Katie Hotze-Wilton at St. Louis City Hall on Wednesday, November 5. A Missouri judge on November 5 overturned the state's ban on same-sex marriages and ordered registrars to start issuing licenses to gay and lesbian couples. More than 30 states and the District of Columbia allow marriage for same-sex couples. April Dawn Breeden, left, and longtime partner Crystal Peairs are married by the Rev. Katie Hotze-Wilton at St. Louis City Hall on Wednesday, November 5. A Missouri judge on November 5 overturned the state's ban on same-sex marriages and ordered registrars to start issuing licenses to gay and lesbian couples. More than 30 states and the District of Columbia allow marriage for same-sex couples.
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Jones issued an order Tuesday permanently barring authorities in Pennsylvania from preventing same-sex couples from getting marriage licenses. That means people could apply for licenses right away, even if weddings don't happen so fast: Pennsylvania has a waiting period of three business days between applying for and obtaining a marriage license.

As Jones explained, "By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth."

Jones' ruling still can be appealed.

Gov. Tom Corbett tweeted early Tuesday evening that he "is in the process of thoroughly reviewing the decision of the court," adding that a statement is anticipated Wednesday.

Attorney General Kathleen Kane earlier made her own definitive statement, saying she will "not ... defend Pennsylvania's Defense of Marriage Act because I made a legal determination as to the unconstitutionality of this law."

"Today brings justice to Pennsylvanians who have suffered from unequal protection under the law because of their sexual orientation," Kane said.

LGBT advocates likewise praised Tuesday ruling. Those rejoicing include 11 couples who sued in July to overturn the 1996 Pennsylvania law restricting marriage to one man and one woman. Among those is Christine Donato, who has been with her partner for 17 years.

"We are overjoyed that we will finally be able to get married in our home state in front of our family and friends," said Donato, who has a 6-year-old son with her partner, according to a press release from the American Civil Liberties Union.

The National Organization for Marriage condemned Jones' decision, as well as the fact Pennsylvanians -- unlike those in other states -- have never been able to cast votes to enshrine a ban on same-sex marriage in the state constitution.

"The administration owes it to the people of Pennsylvania to pursue this matter vigorously through the court system, and give marriage the defense it requires and deserves," said Brian Brown, the group's president.

After being prohibited everywhere about a decade ago, same-sex marriage is now legal in 17 states -- 19 if you count Pennsylvania and Oregon -- and the District of Columbia.

This shift has paralleled significant movement in public opinion on the matter; an ABC News/Washington Post survey released in March indicated 59% of Americans favor allowing gay or lesbian couples to legally wed, a sharp turn from the wave of public opinion that led to a wave of voter-instituted constitutional amendments to the contrary in numerous states.

There's been significant movement in federal courts as well. The turning point was last June's landmark "Windsor" decision, which rejected parts of the federal Defense of Marriage Act in citing equal protection guarantees to conclude same-sex spouses legally married in a state may receive federal benefits, such as tax breaks.

This 5-4 ruling energized a push by same-sex marriage supporters, with about 70 such cases now making their way through U.S. courts.

A state judge in Arkansas has ruled against his state's restrictions on marriage based on sexual orientation, though a higher court later stayed his ruling pending the appeal. New Mexico's Supreme Court has issued a ruling allowing same-sex marriages there.

Still, most of the action has taken place in federal courts. And the decisions that have come have been one-sided, with judges again and again striking state same-sex marriage bans in states including Idaho, Utah, Oklahoma, Virginia, Texas and Michigan -- rulings that are all on hold, for now.

For several of these states, appeals courts already have begun hearing arguments for and against. Whatever their opinions are, University of California-Berkeley law Professor Jesse Chopper says, "the Supreme Court is ultimately going to decide."

In his ruling Tuesday pertaining to Pennsylvania, Jones echoed many assertions made recently by his federal court colleagues.

"The fundamental right to marry as protected by the due process clause of the 14th Amendment to the United States Constitution encompasses the right to marry a person of one's own sex," Jones wrote, adding that both Pennsylvania's banning of same-sex marriage within its borders and its failure to recognize such unions performed in other states are unconstitutional.

The judge added that there is no "important governmental interest" that would warrant preventing gay and lesbian couples from marrying.

"That same-sex marriage causes discomfort in some does not make its prohibition constitutional," Jones wrote. "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.'"

Federal judge strikes down Oregon's same-sex marriage ban

See where same-sex marriage is legal in the U.S.

CNN's Michael Pearson contributed to this report.

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