New Castle News

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February 24, 2014

Mitchel Olszak: Legislative inaction puts Pennsylvania marriage in the courts

NEW CASTLE — In defending Pennsylvania over a lawsuit regarding gay marriage, commonwealth lawyers are falling back on what little they have.

They note that last year’s Supreme Court decision involving the federal Defense of Marriage Act did not order states to require gay weddings. And that is indeed true.

But the court absolutely made it clear that rules denying gay couples basic rights and benefits are constitutionally flawed. And that is where Pennsylvania is running into a big problem and almost certain to lose court challenges against the status quo.

Pennsylvania does not simply reject gay marriage. It offers no alternative to gay couples that would allow them to exercise various economic and social rights.

Given this situation, we all know how this is going to play out. The courts are going to rule against Pennsylvania. There will be lengthy legal appeals, combined with political campaigns and solicitations for contributions from both sides.

And because of the court decisions, there will be gnashing of teeth and rending of garments over activist judges who are legislating from the bench. The truth, however, is that these judges are simply stepping into a vacuum created by the Pennsylvania Legislature.

Whenever lawmakers fail to address an issue, it opens the door for judges to get involved when cases land in front of them. While the courts sometimes overstep their boundaries, more often than not they are merely responding to a constitutional obligation to render justice.

It didn’t have to be this way. The Legislature could have seized the initiative and revised state law. Instead, lawmakers imitated ostriches and hoped nothing would happen.

Well, it did.

There are a variety of options on this issue available to the Legislature. It could, for instance, legalize gay marriage. Conversely, it could craft a law allowing civil unions that assure participants the rights and privileges traditionally granted to couples.

But this hasn’t happened, because of opposition to gay marriage among Republicans who control the Legislature. So, like fools standing on the railroad tracks, they are about to get run over by a speeding train.

Lawmakers also could have pursued a more dramatic option that would have given gay marriage critics little reason to complain. Why not privatize marriage, turning it over completely to churches and other entities?

If a particular church granted or refused a marriage, so be it. But that decision would carry absolutely no legal weight.

Instead, couples seeking protection of the law would have to file for recognition of their unions through the state. It wouldn’t be marriage, but it would be perfectly legal.

Eventually, the Pennsylvania Legislature will have to step up and deal with this issue. But for now, the heads remain firmly in the sand.

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