Panic Street Lawyer: Driving me backwards

Sunday, 07 July 2013 06:00 AM Written by  Jay Hornack

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Although direction is a theme of this week’s PSL, I will not be previewing tomorrow’s performance in Pittsburgh by British boy band One Direction. However, the band’s scheduled July 19 performance in Kansas City produced a hate-filled statement this week that, in its own way, connects to another PSL theme: freedom.

It is the celebrations in Pittsburgh for two leading historians that makes “reverse” my one direction this week. Today is David McCullough Day in the city, and yesterday was Charles McCollester Day here.

20130707 davidmccullough 150David McCulloughMr. McCullough, called “Western Pennsylvania’s best ambassador and America’s favorite historian” by the president of the Heinz History Center, is having a 1923 bridge located near the center named after him today. After the dedication, he will give a talk at the center, entitled “Bridging the Past and Present.”

Mr. McCollester -- called Charlie by me during our thirty-two years of friendship -- is the author of “The Point of Pittsburgh” (2008), the definitive history of the city up to 1960. He gave a talk at the Carnegie Library of Homestead yesterday, entitled “The Imagination (and Realization) of a Better World.”

20130707 charliemccollester 150Charles McCollesterMr. McCullough is the author of Pulitzer Prize-winning “John Adams” (2001) and “1776” (2005) -- perfect timing, since this past week was also the 237th birthday of the thirteen colonies in North America declaring freedom from the British Empire. Also, in “The Point of Pittsburgh,” Mr. McCollester devoted a section to events in the city around the time of the signing of the Declaration of Independence by delegates to the Second Continental Congress, who met in that city at the other end of Pennsylvania.

I mention all this fully aware that the United States was not the only country on this continent that had a holiday this week. On July 1, 1867, the British North America Act united three colonies into a single country called Canada within the British Empire. Although Canada did not obtain complete freedom from Great Britain until 1982 – and although the day was originally called Dominion Day – July 1 was Canada Day, and this year was the celebration of that country’s 146th birthday.

How was Canada Day 2013 relevant to you U.S. citizens in Pittsburgh, Pennsylvania? For starters, some of your neighbors may be Canadians and you may be a neighbour to someone who is a Canadian -- hopefully best wishes were exchanged. Plus, some of your Canadian neighbors are engaged in highly taxed employment which provides Pittsburgh sports fans with seasonal entertainment: Sidney Crosby, Chris Kunitz, Kris Letang, and Pascal Dupuis came first to my mind last week. If you say that you are a Pirates fan more than you are a Penguins fan, then you cheered for Russell Martin last week and will some week soon cheer for Jameson Taillon.

On a serious note, my earlier link to the hateful free speech directed at One Direction’s free musical expression by the Church of Backwards Picketing [not its real name] made me think of that church’s real target. And that made me think of the recent demise of a similarly targeted U.S. law, which was brought about by the laws of Canada.

20101010supremecourtbuilding 150The U.S. law in question, Section 3 of the 2006 federal Defense of Marriage Act (DOMA), was declared unconstitutional this past June 26 by the Supreme Court in the case of United States v. Windsor. The facts of that case that have received the most attention were that it was a dispute over $363,053 in federal estate taxes which Edith Windsor had to pay for inheriting upon the death of Thea Spyer, who the IRS did not recognize as Windsor’s spouse but who New York (their state of residency) did. As Justice Anthony Kennedy framed the issue when he delivered the opinion of the Court:

“The Federal Government [in DOMA] uses [the class of same-sex couples] … to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

Justice Kennedy concluded that there was such a deprivation, stating:

“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriage, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”

In language which captures one of my stated themes this week, Justice Kennedy concludes (with underline supplied):

“As the title and dynamics of the bill indicate, [DOMA’s] purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted.”

20130707wap windsorspyer 150Edith Windsor talks about travels with her spouse, Thea Spyer, pictured at left.
Richard Drew/Associated Press
What is left unclear from the above-quoted text of the Court’s opinion in Windsor was that Windsor and Spyer were not married in New York. They were married in 2007, and the State of New York did not permit same-sex marriage until 2011. Windsor and Spyer had instead traveled to be married in Ontario, Canada in 2007 (New York, as a result of state court decisions and a governor’s directive before 2011, recognized same-sex marriages performed elsewhere).

Canada legalized same-sex marriage nationwide with the enactment of the Civil Marriage Act on July 21, 2005. But court decisions had already legalized same-sex marriage in most Canadian provinces, including Ontario immediately after the June 10, 2003 Court of Appeals ruling in Halpern v. Canada.

Ten years later, a number of court cases in the United States put on hold pending our Supreme Court’s decision in Windsor can be decided. One 2011 federal case out of the Eastern District of Pennsylvania -- summarized in the Post-Gazette this week -- involves the pension plan of a Philadelphia-based law firm, a couple which resided in Illinois up until the time of one partner’s death in 2010, and a same-sex marriage which took place in … Ontario, Canada in 2006.

If you are in agreement with Justice Kennedy and the four other justices in the majority in Windsor, Canada says “you’re welcome” (ou “de rien” en Quebec). If you are in agreement with the opinions of the four dissenting justices in Windsor, just look at this situation as Canada’s 200-year-old payback for the Battle of York.

This piece is dedicated to my aunt, Rita Toth, who died on Friday.

(Top image: The 16th Street Bridge, now renamed for author and Pittsburgh native David McCullough. Darrell Sapp/Post-Gazette)

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

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