Add Virginia to the list. A federal judge last night overturned Virginia’s ban on same-sex marriage, saying that marriage is a fundamental right and that withholding it from some infringes upon the due process rights of those denied access to marriage.
U.S. District Judge Arenda L. Wright Allen, in her decision, dismissed state claims that legalizing same-sex marriage would create a new right, a key component of the anti-marriage-equality argument. And she demolished the patently false and offensive claims that children of same-sex couples are unfit to be parents, calling it an “unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents.”
Allen addressed another key element — that the state’s constitution had been amended by public referendum to define marriage narrowly as being between a man and a woman. That, she said, violates both the Declaration of Independence proclamation that “all men are created equal” and the constitutional responsibility of courts to act when individual rights are under assault — whether that assault comes from laws crafted by the government or by the people themselves.
While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary’s noblest endeavors is to scrutinize laws that emerge from such roots.
When “state law discriminates impermissibly against members of a class in violation of the Equal Protection Clause,” the courts have a responsibility to step in unless the state law is “substantially related to an important governmental objective.” And the effort to limit the rights of same-sex couples is not “an important governmental objective” and, in fact, violates everything we purport to stand for as Americans.
Responses to the ruling on the right have included a call by state Delegate Bob Marshall for Allen to be impeached, but the right has to know this game is all but over. History is moving ahead on this issue without a right wing committed to antigay bigotry. As David S. Cohen and Dahlia Lithwick point out on Slate, there have 18 court rulings since the June 2013 Windsor decision gutted the federal Defense of Marriage Act, a decision that conservative Supreme Court Justice Antonin Scalia said in dissent would open up a floodgate of equality-based claims.
A survey of publicly available opinions shows that in the eight months since Windsor, 18 court decisions have addressed an issue of equality based on sexual orientation. And in those 18 cases, equality has won every single time. In other words, not a single court has agreed with Chief Justice Roberts that Windsor is merely about state versus federal power. Instead, each has used Windsor exactly as Justice Scalia “warned”—as a powerful precedent for equality.
This hasn’t all been about marriage. Twelve decisions have addressed a substantive aspect of marriage equality since Windsor, and equality has won in all 12—with the Virginia decision now joining decisions from Kentucky, New Mexico, Oklahoma, Utah, and West Virginia, and two decisions each in Illinois, New Jersey, and Ohio. But six other cases since Windsor have addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits, and the side of equality has won in all six of those cases as well.
What is striking is not so much the volume, though 18 in nine months is remarkable, but the geography as Virginia joins conservative states like Kentucky, Oklahoma, Utah and West Virginia in the parade.
The momentum is clear, but the right remains a force and many of these decisions will wind their way to the high court. The question is whether Justice Kennedy will backtrack and buy into the state’s rights arguments made by Chief Justice Roberts — an unfortunate and easy out that could stall all of this. The volume of federal and state-level decisions, and the obvious shift in public opinion make that seem unlikely, which goes to show how far we have moved on this issue in so short a period of time.
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Hank Kalet 