In 2006, Virginians voted to ban same-sex marriage with an amendment to the state constitution. Since then, however, support for marriage equality has rocketed into the mainstream. President Obama endorsed same-sex marriage during the 2012 presidential election, and he’s been followed by countless other Democrats, a few Republicans, and majorities of all voters.
The federal courts have picked up this change in public opinion, and have begun to act accordingly. In three states this year—Oklahoma, Ohio, Utah, and Kentucky—federal judges have struck down same-sex marriage bans. Last night, Virginia became the fourth.
In an expansive ruling—which opened with a quote from Mildred Loving of Loving v. Virginia, which ended restrictions on interracial marriages—U.S. District Judge Arenda L. Wright Allen overturned the state’s constitutional amendment and argued that the ban has any legitimate governmental interest. As she wrote:
“Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships.” […]
“Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”
Neither this, nor the rulings in other states, are the action of rogue judges. As Wright Allen makes clear, her judgment flows from the Supreme Court’s decision in Loving—where the it dismissed “tradition” as a reason to sanction discrimination in marriage–and its decision on the Defense of Marriage Act, where it overturned a ban on federal recognition of same-sex marriages.
In the case of the former, she writes that:
“The legitimate purposes proffered by the proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse ‘responsible procreation’—share no rational link with Virginia marriage laws being challenged.”
And in the case of the latter, she cites Antonin Scalia’s dissent, where he noted the extent to which the majority’s logic extends to the constitutionality of state bans on same-sex marriage:
As I have said, the real rationale of [the Windsor opinion] is that DOMA is motivated by “bare … desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status
Naturally, Virginia’s conservatives are outraged, especially as this comes just a month after newly-minted Attorney General Mark Herring declared that he would not defend the state’s gay marriage ban in court. Speaking on the Washington-area Kojo Nnamdi show, state Delegate Bob Marshall—a Republican—attacked Herring’s support for the ruling, as well as the ruling itself:
“[Herring’s stance] is to attack and undermine the most fundamental relationship between human beings that comes directly from the creator and ought to be protected by the laws of man,” Mr. Marshall said, adding the “bisexuals have to have at least one of each to be satisfied.”
With all of this said, same-sex marriages in Virginia are still on hold: Wright Allen has stayed the ruling, pending appeal.
