Meet the Bush-Appointed Judge Who Just Brought Marriage Equality to Pennsylvania

The law, lawyers, and the court.
May 30 2014 7:11 AM

“There Have Been No Direct Threats, I’m Delighted to Say”

Meet the Bush-appointed judge who just brought marriage equality to Pennsylvania.

John E. Jones III.
U.S. District Court Judge John E. Jones III, a Republican loyal to the Constitution, not his party.

Nine years ago, crazed creationists across the country vowed to murder U.S. District Court Judge John E. Jones III. The death threats arose after Jones stopped the Dover Area School District from teaching “intelligent design” in schools in 2005. They arrived in a torrent of hateful emails, letters, and faxes, mostly from the Christian right, assailing Jones as a turncoat and an activist.

Now Jones is famous for a second time: He’s the judge who made same-sex marriage legal throughout Pennsylvania earlier this month. And he’s having a much smoother ride.

“There have been no direct threats, I’m delighted to say,” Jones told me in an interview Wednesday. “The reaction with Kitzmiller [the intelligent design case] was visceral and immediate. ‘Nasty’ isn’t a tough enough word to describe it.” But with marriage equality, Jones noted, “you just don’t get that.” Instead, about 80 percent of the callers to the judge’s chambers have praised him for his courage.

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This placid reaction to a ruling that instantly brought same-sex marriage to a big purple state is a measure of rapid progress. Just four years ago, Iowa voters ousted three state Supreme Court justices who had voted to legalize gay marriage. Last week Pennsylvania Republican Gov. Tom Corbett, an outspoken homophobe, decided not to appeal Jones’ ruling. Yes, some red states are still rushing to enshrine anti-gay discrimination into law to counteract the purported gay threat. But the judiciary has given gay couples an unbroken streak of wins since the Supreme Court overturned the Defense of Marriage Act last year. Jones’ ruling, arriving just one day after another federal judge slew Oregon’s gay marriage ban, seemed to represent a historic turning point: the moment marriage equality became inevitable in America.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

The man who sounded the death knell is a lifelong Republican. Jones worked for years as a practicing attorney before jumping into state GOP politics, first as a House candidate in 1992, then as co-chairman of Pennsylvania Gov.-elect Tom Ridge’s transition team. In 1995, Ridge appointed Jones to the Pennsylvania Liquor Control Board, where he served for seven years. Then, with the strong endorsement of both Ridge and Rick Santorum, the Christian right’s favored presidential candidate last time around, Jones was appointed to be a U.S. District Judge by President George W. Bush in 2002. 

During his first few years on the bench, Jones handled mostly routine cases with minimal political implications. That changed after a group of parents in Dover, Pennsylvania, sued to halt a plan, adopted by the town’s school board, to teach intelligent design in public schools. The case wound up on Jones’ docket, and his low-profile courtroom soon transformed into, in Margaret Talbot’s words, “the biology class you wish you could have taken.”

Following a bench trial of 40 days and 40 nights—“not by design,” Jones quipped—featuring hours of expert testimony by respected biologists, Jones struck down the intelligent design lesson plan as a violation of the First Amendment’s Establishment Clause—in other words, the Dover schools couldn’t teach ID because of the separation of church and state. In a 139-page opinion, Jones castigated the school board’s “breathtakingly inanity” and bemoaned the “utter waste of monetary and personal resources” created by the “legal maelstrom.” The conservative backlash was swift and merciless, centering on Jones’ alleged betrayal of the people who elevated him to the bench. Phyllis Schlafly said that “this federal judge, who owes his position entirely to those voters and the president who appointed him, stuck the knife in the backs of those who brought him to the dance.”

“Ms. Schlafly knows better,” Jones told me when I brought up her now-notorious jeremiad. “I use her as a foil because of the vituperative nature of her comments. She’s an intelligent woman, and I’m not sure she believes that in her heart of hearts.”

What about Schlafly’s underlying claim—the notion that Jones betrayed his patrons?

“I’m not responsible to the person who appointed me, and I’m not responsible to any other benefactors,” Jones said. “I’m responsible to the law and the Constitution and the Bill of Rights.”

That, of course, is an answer virtually every federal judge would give, no matter his background or ideology. What separates Jones from the pack is how cleanly he’s broken from the partisanship of his days as a Republican politician. Joking that, after the intelligent design ruling, his title “switched from ‘a federal judge’ to ‘a Bush-appointed federal judge,’ ” Jones seemed genuinely surprised that anyone would expect him to cleave to the ideology of his presidential sponsor. He’s part of a small but influential group, also including former Justices John Paul Stevens and David Souter, of GOP-appointed judges who appear to move to the center. (Or maybe they’re actually standing still and it’s their party that has moved to the right.)

Jones’ willingness to buck expectations gives his two blockbusters much of their power. When an Obama-appointed judge—let alone an openly gay one—strikes down a same-sex marriage ban, conservatives frequently cry bias. Jones’ reasoning is harder for conservatives to dismiss. Still, they tried. Brandon McGinley, writer for the conservative magazine First Things, accused Jones of simply “piling cliché upon cliché,” dismissing his efforts as “pathetic.” Jason Richwine made the sour claim that his opinion was shot through with “cutesy” rhetoric and “philosophical bombast.” Ed Whelan of National Review howled that the judge “displays a frighteningly Jacobin temperament” and sighed, “What incredible hubris.”

Jones isn’t letting this get to him either. “When you disagree with the premise or conclusion of a particular judge—well, we’re an easy mark, aren’t we?” he said. “You can extract or mine opinions and take things out of context and describe us as something that we’re not, but that goes with the territory. Sure, I’ve been called an activist judge plenty of times. But as Sandra Day O’Connor once said, an activist judge is simply a judge with whom you disagree.”

Chief among conservatives’ gripes over Jones’ recent marriage ruling was his sympathy for the plaintiffs: They pointed to Jones’ use of traditional marriage vows as subheadings to his analysis. I asked Jones about this unusual stylistic flourish. “When you’re looking at testimony of plaintiffs,” he told me, “it looks dry on the page. And yet a lot of this deposition was quite compelling. My clerks and I thought it appropriate to try to feature that as a precursor to legal analysis, to be a bit more expansive.” Plus, the decision was certain to be widely read outside the legal world, so Jones hoped to make it “understandable to a broader audience.”

As Adam Serwer has pointed out, judges who find gay marriage cases on their dockets know they’re writing for more than a few lawyers. This is their opportunity to teach the country why equality is a constitutional mandate—and make history in the process. To a point. Judge Jones’ son happens to be getting married this summer. I couldn’t resist asking: Would he be marrying a man or a woman? Jones laughed: His son is marrying a woman. No need for him to stand on his father’s judicial shoulders.

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