unconstitutional violation of the 14th amendment.Following in the footsteps of judges in Utah and Oklahoma, a federal judge has ruled that Virginia’s ban on same-sex marriage recognition is an
U.S. District Judge Arenda Wright Allen opened her ruling with a quote from Mildred Loving — of the famous Loving v. Virginia case that overturned laws forbidding interracial marriages — that she made in 2007, a year after voters approved the state’s ban on gay marriage recognition:
“We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is? . . . I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. . . . I support the freedom to marry for all. That's what Loving, and loving, are all about.”
In the ruling, Wright Allen rejects the argument that gay couples are trying to establish a new right. Marriage, she notes, is treated as a fundamental right:
Just as there can be no question that marriage is a fundamental right, there is also no dispute that under Virginia's Marriage Laws, Plaintiffs and Virginia citizens similar to Plaintiffs are deprived of that right to marry. The Proponents' insistence that Plaintiffs have embarked upon a quest to create and exercise a new (and some suggest threatening) right must be considered, but, ultimately, put aside.
The reality that marriage rights in states across the country have begun to be extended to more individuals fails to transform such a fundamental right into some "new" creation. Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia's adult citizens. They seek "simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” … “This right is deeply rooted I the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference.”
She goes on to invoke the Loving decision to reject the state’s marriage recognition ban on the grounds of upholding “tradition.” She rejects federalist arguments because the civil liberties arguments involved permit federal constitutional review. And she rejects the “for the children” argument (which she actually titles “The ‘for-the-children’ rationale”), stating that, while the state has a compelling interest in protecting the welfare of children, “needlessly stigmatizing and humiliating children who are being raised by the couples targeted by Virginia’s marriage laws betrays that interest.”
The full ruling can be read here. No doubt to avoid the post-ruling ruckus in Utah that resulted in some gay couples getting legally married before a stay was put in place for appeals, the judge has put a stay in place already so the state can appeal the ruling.
This case might not be one to end up before the Supreme Court. Like California, Virginia’s attorney general has announced he will not defend the ban. The Supreme Court notably bounced the California gay marriage ban back to the state last year, arguing that the proponents of the initiative did not have standing to defend it in federal courts. But Utah is defending its gay marriage recognition ban, so keep an eye on where that case goes.
Also this week, a federal judge in Kentucky ruled that the state cannot refuse to recognize gay marriages that were performed in other states where it’s legal. He didn’t rule that Kentucky must recognize gay marriages performed in the state. But if, for example, a gay couple gets married and New York (where it’s legally recognized) and moves to Kentucky, the state is obligated to recognize it, too.