The rules for enforcing Standard Condition No. 9, it turns out, include a blanket exception that allows a convicted felon on probation to associate with another convicted felon if they are spouses or blood relatives. Mangini and Roberts claimed this unfairly discriminated against them, violating their rights to "due process" and equal protection of the law under the Fifth Amendment.
"They considered, and still consider, themselves to be spouses," Judge Katz explained in his July 31 opinion. "Defendants were in every way a family."
The judge pointed out that the two men took in Roberts' niece as a foster child; and at one point in his opinion, he called them the niece's "two fathers."
Initially ruling on the case in January, Katz opined that the men's constitutional claim "may have merit," but that he could not rule on it because he lacked jurisdiction. Then in early July, the U.S. Court of Appeals for the Third Circuit ruled that Katz did have jurisdiction and sent the case back to him.
Katz now swung for the fences. Citing Lawrence v. Texas, the 2003 Supreme Court decision which absurdly held that the Constitution prohibits states from banning same-sex sodomy, he declared: "The Due Process Clause of the Fifth Amendment to the United States Constitution protects the right to intimate association."
Because of this, he argued, probation rules must treat two unmarried men who claim an "intimate association" just as if they were a married couple or a brother and a sister. "The Probation Office has violated defendants' Fifth Amendment right to equal protection by refusing to grant defendants permission to associate with each other, while maintaining a policy of granting such permission to similarly situated individuals in other kinds of family relationships (i.e., siblings, parent and child, and spouses)," he said.
Many Americans have been worried that a federal judge will declare same-sex marriage a right. In fact, Judge Katz's decision goes beyond that. It suggests that government must treat all claimed "intimate associations" equally.
If that becomes the law of the land, three drug dealers living together in the same apartment, or even a commune full of 1960s hippies, will become the legal equivalent of mom and dad.