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As Courts Consider Same-Sex Marriage, Professor David S. Cohen Assesses Outcomes and Arguments

David S. Cohen

May 21, 2014

The ruling that struck down Pennsylvania’s ban on same-sex marriage came as little surprise, Professor David S. Cohen said in an article in The Morning Call on May 21.

U.S. District Court Judge John Jones would have become the first federal judge to uphold a state’s ban on same-sex marriage, had he ruled otherwise, Cohen said. 

In the face of growing public support for marriage equality, Cohen added, Gov. Tom Corbett will face long odds if he appeals Jones’ ruling.

Meanwhile, Cohen took an attorney seeking to uphold Virginia’s ban on same-sex marriage to task in an essay published in Slate on May 16. 

The annals of legal battles over same-sex marriage feature many weak arguments, Cohen wrote, but the worst argument ever made on the topic occurred on May 13, when attorney David Oakley urged judges of the Court of Appeals for the 4th Circuit in Richmond, Va., to uphold Virginia’s same-sex marriage ban, citing Pocahontas’ nuptials in the 1600s. 

Oakley, representing a local court clerk who refused to issue a marriage license to a same-sex couple, argued that the 1614 marriage of Pocahontas to John Rolfe established a tradition of interracial marriage that fit within the fundamental right of marriage guaranteed under the constitution. 

The attorney was attempting to distinguish between same-sex and interracial marriage, which was affirmed by the U.S. Supreme Court's 1967 Loving v. Virginia ruling that barred the state from prohibiting couples of different races to wed and identified marriage as a constitutionally protected fundamental right.

Among several problems with Oakley’s logic, Cohen noted, is the fact that the United States did not exist in 1614, nor had the constitution been ratified.