Judge named to handle case trying to legalize gay marriage in Pennsylvania

He rejected an obscene frog, threw "intelligent design" out of public schools, and now Judge John E. Jones III faces perhaps the ultimate culture war balancing act as he takes on a challenge to the state ban on gay marriage.

Judge Jones, of the Harrisburg-based Middle District of U.S. District Court, was assigned Tuesday to handle the case of Whitewood v. Corbett. The case, brought by the American Civil Liberties Union, pits 10 same-sex couples and one widow against the governor and other officials and aims to force the state to allow gay marriage.

For some on both sides of the political spectrum, the random assignment to Judge Jones will stir memories of his 2005 ruling in the famed Kitzmiller case. He found that the Dover Area School District could not teach the religiously tinged intelligent design theory of the universe.

"When a judge has a high-profile case like Kitzmiller, and turns it into a big thing, that tells us something about the judge," said Arthur D. Hellman, a law professor at the University of Pittsburgh.

To conservatives, the decision was a betrayal. After all, this was the same man who, as chairman of the state Liquor Control Board under Gov. Tom Ridge, kept Bad Frog Beer out of the state because the amphibian on the label had his middle finger raised. His nomination was backed by then-Sen. Rick Santorum, and advanced by his fellow Republican President George W. Bush.

Conservative or not, Judge Jones found in the Kitzmiller case that the school's aim was to "impose a religious view of biological origins into the biology course" despite the Constitution's ban on establishing a state religion. "Those who disagree with our holding will likely mark it as the product of an activist judge," he wrote in a 139-page opinion. "If so, they will have erred as this is manifestly not an activist Court."

The questions in the Whitewood case will be different, focusing on whether the state has any rational basis for reserving marriage to man and wife.

"I take every case as it comes, but beyond that, anybody who is familiar with the Kitzmiller case understands that I gave both sides ample opportunity to present their cases, and I'll certainly do that in this case as well," Judge Jones said Wednesday.

Ted Martin, the executive director of Equality Pennsylvania, said that though Judge Jones is a Bush appointee, the facts of the case should still ensure the lawsuit is settled on the side of marriage equality.

"When fair minded jurists really think about the facts, they see the hollow nature of the facts against marriage equality," Mr. Martin said. "I know for a fact that he is a smart, thorough, fair, jurist and that's all we can ask for."

Robert Power, a law professor at Widener University, cautioned against making assumptions.

"I think attorneys who are strong political conservatives will agree that he has turned out to be an excellent judge. They might not like his decisions in certain cases," Mr. Power said, "but he's turned out to have a good temperament, to be a hard worker, and to be interested in confronting interesting intellectual challenges. And this case will be one of those."

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Rich Lord: rlord@post-gazette.com, 412-263-1542 or Twitter @richelord. Monica Disare: mdisare@post-gazette.com or 412-263-1852. First Published July 10, 2013 9:00 PM


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