DN Editorial: Pa. should OK same-sex marriage by legislature vote, not court rule

JUSTICE ANTONIN SCALIA predicted this. In his dissent last month to the Supreme Court's ruling striking down the federal Defense of Marriage Act, the crotchety conservative justice demonstrated how the logic that the court used to find DOMA unconstitutional could also be applied to state-level gay-marriage bans, and warned that opponents of such laws would have new means to bring challenges.

Well, here we are. Last week, the ACLU filed suit against the state of Pennsylvania, challenging the constitutionality of our gay-marriage ban and using much of the logic of the DOMA decision to do so.

So Scalia was right. But what he didn't say (because he doesn't believe it) is that the logic of the DOMA decision applies so well to state bans because both are discriminatory in similar ways. The problem here wasn't an overbroad decision; it's just two crappy kinds of law that deserve the same fate.

But let's back up. Because, although we believe that state gay-marriage bans are unconstitutional, we are also sensitive to the fact that whenever possible, it is preferable for a legislature to pass constitutional laws rather than have a judiciary strike down unconstitutional ones. The best way to protect against the tyranny of the majority is to skip the tyranny in the first place.

And so, while we applaud the ACLU for challenging Pennsylvania's gay-marriage ban and admire the principled stand that state Attorney General Kathleen Kane has taken in declining to defend it, we'd much rather see Pennsylvania do the right thing through more traditional democratic channels.

Pennsylvania's gay-marriage ban was passed in 1996. Many of the people who voted for it are not in the Legislature anymore; still others may have changed their minds in the last decade and a half.

The law no longer clearly represents the views of most Pennsylvanians, with recent polls suggesting that a majority of residents now support same-sex marriage. (Remember this when someone complains about the courts thwarting the "will of the people.")

Unfortunately, there are those in Harrisburg who don't want to revisit the issue. State Sen. Daylin Leach has been introducing legislation that would allow same-sex couples to marry in Pennsylvania since 2009, but his bills haven't even been brought to a vote in the Judiciary Committee.

The day after the DOMA decision came down, Rep. Brian Sims announced his intention to introduce a similar bill in the House, but it seems even less likely to make progress there. When Sims tried to discuss DOMA on the House floor, he was stopped by an objection from far-right Rep. Daryl Metcalfe, who explained to WHYY that Sims' comments represented "open rebellion against God's law."

It's time for this nonsense to stop. The Pennsylvania Legislature ought to do the right thing and take same-sex marriage to a vote, and then do the right thing again and vote in favor of it. This has always been the moral thing to do; now it represents the will of the people. All same-sex marriage in Pennsylvania needs is the support of our Legislature. Or else eventually - it's "inevitable," as Justice Scalia wrote - it will have the backing of the Supreme Court.