Bench Memos

Dumping Marriage into the “Ash Heap of History”

I’ve barely skimmed today’s ruling by federal district judge John E. Jones III (a Bush 43 appointee) striking down Pennsylvania’s marriage laws, but I’ll offer two quick comments:

1. Jones’s closing exhortation that “it is time to discard [Pennsylvania’s marriage laws] into the ash heap of history” displays a frighteningly Jacobin temperament. What incredible hubris.

2. Jones broadly concludes that “all couples deserve equal dignity in the realm of civil marriage all Pennsylvanians have the right to marry the person of their choice.”* If he somewhere distinguishes away laws against incestuous marriages, my quick skim (supplemented by a word search) missed it. If he somewhere explains why his principle should be limited to couples, I also missed it. (Update: To be clear, I am of course not contending that Jones has held that state laws banning incestuous marriages or polygamy are invalid; I am merely observing that his reasoning doesn’​t provide grounds for avoiding those conclusions.)

* On my initial quick skim, I mistakenly quoted a passage in which Jones is summarizing what plaintiffs are asking him to declare. Although I think it is clear that he understands himself to be giving them exactly what they ask for, I shouldn’​t have put those precise words in his mouth. (His reference to “​couples” is of course substantively equivalent to the ​“​marry the person” language that I quoted.) ​

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