Gay Marriage

'Virginia Is for Lovers' State Slogan May Be Extended to Gays

Federal judge strikes down marriage recognition ban


Oh. I see others have already made that connection.
Credit: Markita Bee / Foter / CC BY-NC-ND

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 unconstitutional violation of the 14th amendment.

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.

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  1. U.S. District Judge Arenda L. Wright Allen issued a sweeping 41-page opinion that mentioned at length Virginia’s past in denying interracial marriage and quoted Abraham Lincoln.

    With all due respect, do these judges get paid by the word?

    1. …and what does the state’s “past” have to do with the present?

      Oh – I forgot – the South wasn’t punished sufficiently for the Civil War, per that asshole comment yesterday in some paper.

      Fuck this judge anyway.

      1. Well, it was the state that raised as a reason in defense of the bill ‘tradition.’

    2. With all due respect, do these judges law clerks get paid by the word?

      1. 41 pages is not that long for a district court opinion. They have to go through the facts and procedural history, decide standing, and then there can be challenges on several grounds, each which might be addressed. They also are not single spaced and a third of each page is taken up by the notes at the bottom.

        1. Thank you for explaining why opinions are written the way they are. I guess I never figured that out when I was in school or out here in the world of private practice.

          1. So which parts would you cut to make it shorter?

            1. I was merely making a joke about who does the heavy lifting.

              1. Fair enough, I withdraw my response.

            2. So which parts would you cut to make it shorter?

              The parts that mentioned at length Virginia’s past in denying interracial marriage and that quoted Abraham Lincoln.

              1. What would that be like, half a page?

  2. Interesting discussion of this (along with the Nagin case) on the Mike Church Show this AM. He posits (and backs it up with pretty compelling argument rich in historical context of constitutional law) that neither case should involve the Feds at all – it’s overreach of their powers, can’t do it, shouldn’t let them do it, etc. etc.

    Of course, it alllll goes back to “boatloads of Federal money” – you take the jack, now their noses are under the tent, etc. etc.

    Pretty interesting.

    Otherwise? Meh – all gaiz and abortion all the time! Can’t get enough!

    1. Get back in your cage, pervert.

      1. I told you to use a combination lock. Al is very handy with wire coat hangers, but no. You said he wouldn’t be able to pick padlock.

  3. It is not the courts’ job to uphold the precise will of the majority of the people. That’s what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of “equality,” and I have yet to see anyone dispute that on a rational level. Therefore, it is not “activism” on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.

    Laws passed by the legislative branch get struck down as unconstitutional all the time. It really doesn’t matter whether a law is popular or not. What matters is whether it conforms to the Constitution of the United States. And unless the Constitution only applies to people who are Straight (i.e. heterosexual), there is no justification for denying law-abiding, taxpaying Gay couples the same legal benefits and opportunities that Straight couples have always taken for granted.

    1. It is a little frustrating though that everyone seems to have waited for public opinion to change first, right?

      If restrictions on gay marriage were unconstitutional today, they were unconstitutional 10, 20, 30 years ago.

      The President waited until 50%+ of the public supported gay marriage before he decided to “evolve” on the issue.

      I’m glad it’s happening now, finally, but I do feel at least a little resentful at some of these politicians.

      1. Public opinion and changes to law have been feeding each other. It’s only natural. In the Prop 8 case I believe, Justice Kennedy openly fretted about whether the court was moving too fast. Sure, ideally it would treat the issue as if it existed in a constitutional vacuum, but at least now we have a perfect record of lower court rulings to buttress a future case.

        If you think about it, in our system the courts can’t get too far ahead of public opinion. If enough of a majority is outraged it is entitled to change the entire system of government.

  4. But now what is legal basis to uphold necessary, wholesome laws prohibiting Warty-Human marriages?


  5. Just as there can be no question that marriage is a fundamental right…

    Tell that to the polygamists.

    1. Sexual orientation and how many partners one can tolerate are two different issues. I’m bisexual but I couldn’t handle more than one partner.

      The vast majority of people using polyamorist rights to argue against same-sex marriage don’t give a damn about polyamory they’re just being contrarian assholes. It’s like saying “well what about the rights of heroine users” to argue against legalizing marijuana and marijuana only. I think heroine USE (though not the sale of because i’m not ideological) should be legal but i’m not going to yell “hey what about the poor oppressed methheads” at a marijuana legalization rally.

      1. The issue is “a fundamental right.”

        Legalizing pot is not the same as declaring a fundamental right to it. If there is a fundamental right to a soft drug, then there is a fundamental right to heroin too. I don’t think the state can then make a distinction based on a substance being too hard, etc.

        Similarly, if there is a fundamental right to marriage, then why must it be restricted to a contract between two people? Because of tradition? You’ve already upended that with same-sex marriage.

        I am being a bit of a contrarian asshole here, not because I have a problem with same-sex marriage or heroin. I would prefer the state to get out of the marriage business altogether.

        But I think process and an understanding of rights is important here. These judges are finding a right to marriage now because it meets their personal preferences, but they are going to have to tie themselves up in knots later to justify why a fundamental right to marriage does not confer that right to three or more people.

        1. First off polygamy is more traditional than monogamy so heterosexual couples are doing the same thing.

          I have nothing against people in polyamorous relationships, but not recognizing polyamorous relationships was not a reason to oppose interracial marriage.

          And define “personal preferences”. The vast majority of same-sex marriage supporters are heterosexual.

  6. The judge is an intellectual prodigy. From the first page of the opinion: “Our Constitution declares that ‘all men’ are created equal.”

    No, actually, it’s the Declaration of Independence.

    No wonder she is so dismissive of tradition. She can’t tell the difference between the words of the Constitution and the Declaration.…..quigg/796/

    1. Was she perhaps referring to the Virginia constitution, which does include the “all men” language in Article 1 Section 1?

      1. Since the immediately-preceding sentences refer to “the United States of America” and “America,” I’m guessing no.

        Good try, though.

        1. The Judge is also a Federal Judge not a State Judge and so refering to “our Constitution” would refer to the Federal one.

          Plus as a Federal Judge her job is to enforce the Federal Constitution.

    2. Who cares about tradition? Time to ditch the old constitution and have the ACLU and the Cato Institute craft a new constitution that doesn’t give local governments as much power to create laws. For example no single state should be allowed to force it’s citizens into government healthcare or labor unions, in fact no state should be allowed to have either in any form.

      1. When you say “labor unions” are you referring strictly to public sector unions, or private sector unions as well?

        1. All of the bastards. Unions shouldn’t exist. Period.

    3. The opinion has been corrected, it is not uncommon for a draft the public gets to not be the final one.…..riage/809/

      1. Smite that straw man! Show no mercy!

        1. Bottom line: This is a judge who has to be reminded that the preamble of the Declaration of Independence isn’t in the Constitution. And who thinks a letter from Abraham Lincoln conciliating a Know-Nothing leader can be quoted in favor of fairness to minorities.

          I know this much – it’s a good thing the judge is on the right side, because if her ruling was the other way, her errors would be all over the media.

          1. The Lincoln quote is still in there.

        2. Er, do you know what a ‘straw man’ is?

          1. Yes – claiming that I was unaware that federal judges corrected their opinions.

            1. Where did I claim that?

              You said ‘she got this wrong!’ I said ‘well, that draft is not the official one, they have changed it.’

              That is not a straw man at all. A straw man is an exaggerated version of an argument which no one is making which one argues against. I was simply informing you that the error you were seizing on seems to have been in a less than final draft of the opinion.

              1. Yes, I loved it when I was in school and after turning in a paper I realized I’d made an embarrassing error, so I could just contact the professor and say, “that wasn’t a final draft – I want to make a few corrections.”

                1. Ooh, the SoCons have picked this up:

                  “Surely no elected official would be spared from late night talk show monologues had they made the same mistake.”


  7. The judge’s Abraham Lincoln quote from p. 40 is, accidentally, very revealing. In her truncated excerpt, it’s simply a paean to “fairness.”

    She probably thought this was just some generic inspiration quote. In fact, Lincoln was writing to one of his political lieutenants, Leonard Swett, about getting the support of one James O. Putnam for his presidential bid in 1860. And who was James O. Putnam? Only “the great high priest of Knownothinigism,” i.e., a Catholic-baiter and immigrant-basher:


    1. And here’s Lincoln’s letter:

      “Hon. L. Swett: Springfield, Ills.
      “My dear Sir May 30. 1860

      “Your letter, written to go to N.Y. is long, but substantially right, I believe. You heard [New York Republican Thurlow] Weed converse with me, and you now have Putnams letter. It can not have failed to strike you that these men ask for just, the same thing—fairness, and fairness only. This, so far as in my power, they, and all others, shall have. If this suggests any modification of, or addition to, your letter, make it accordingly. *Burn this,* not that there is any thing wrong in it; but because it is best not to be known that I write at all. Yours as ever

      “A. LINCOLN”

      [emphasis added]…..w=fulltext

      Not that I blame Lincoln too much from seeking the support of a Know-Nothings leader, but it’s a bit much to turn around and quote this letter as if it supported “fairness” to persecuted minorities!

      And given the judge’s frequent citation of the *Loving* case, in which the bishops of the Jim Crow states *supported* a right to interracial marriage, it’s not very nice to cite Lincoln’s political courtship of a Catholic-basher.

  8. Bottom line – despite her disclaimers, the judge does invoke tradition – she simply gets basic historical facts wrong.

    And if she were truly courageous and tradition-defying, why not say that judicial precedents don’t matter, and that she’s going to just rule without reference to what the Supreme Court said in the past?

    But I’m sure her interpretation of judicial precedent is just as reliable as her understanding of other historical materials.

    1. As the opinion notes, the Supreme Court has held that tradition alone cannot justify upholding an unconstitutional law.

      1. Is this the slow class? I said the judge *invokes* tradition despite her disclaimers.

        1. Tradition matters in establishing whether a right is fundamental for due process purposes, but tradition alone cannot be the state’s compelling interest in restricting any such right. So it is perfectly coherent for her to invoke tradition in the first instance and dismiss it in the second.

          1. Got it – tradition is a one-way ratchet. It’s fine when I use it, and illegitimate when the other guy uses it.

            And since tradition doesn’t matter, blatant historical errors are OK, so long as the judge uses the errors to promote her own side.

            1. Rights under due process are not enumerated, so how do we know what they are? The court (and it was the conservatives on the court) came up with the idea that only those rights that are of longstanding tradition will be recognized.

              When a fundamental right is at stake the government must offer a compelling interest in order to restrict it. It makes perfect sense to me that ‘we have done it this way for a long time’ alone does not cut that.

              1. In other words, a one-way ratchet.

                1. If you will, but a ratchet that makes eminent sense in how it works (tradition can be used to invoke an unenumerated right, but not restrict it), especially to a libertarian.

                  1. A one-way ratchet is OK when libertarians do it!

  9. As commenters put it in other contexts – it doesn’t matter whether the judge’s opinion conforms to bourgeois standards of factual accuracy, what matters is the FEELZ!

  10. Virginia’s proffered compelling interests in discriminating against same sex couples in granting marriage licenses and recognition were “1. tradition, 2. federalism and 3. ‘responsible procreation’ and ‘optimal child rearing.'” The first is no good reason to discriminate, the second in this context is just a statement of ‘we want to do this,’ and the third is no justification a libertarian should respect.

    1. Agreed. There is no legitimate justification for the state policing people’s marriage preferences, therefore the laws which aim to do so need not be respected by anyone, and there is no reason why the courts should be obliged to uphold them, either.

    2. So, to Bo, federalism is an empty pretext, and the states should not be able to deny anything to the Feds.

      Color me usurprised.

      There is no legitimate justification for the state policing people’s marriage preferences,

      I agree. Of course “not licensing” is not the same as “policing.” Unless you have drunk deep at the well of the Total State, of course:

      Nothing outside the State; ergo, if the state doesn’t license your relationship, it doesn’t exist at all.

      1. Except the Virginia ammendment in question also banned private contracts that create “legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage”. So your “we don’t actually ban gay marriages; we just don’t give them state approval” straw man doesn’t apply here.

        1. Also, I would add that licensing some marriages and not others is “policing.” The entire reason Virginia created marriage licenses (I believe they were actually the first state to do so) was to stop “miscegenation.”

  11. There is a reason the original constructionists of the Constitution didn’t feel the need to address gay marriage as a right for all. Because Common Sense was an entity alive and well then.

    Have there been gays since the beginning of time? Yes. Is it normal? No. It is abnormal. It is deviant by definition. And the almighty Progressive would like to propagate homosexuality as if it is normal. Because it makes him feel evolved. It makes him feel intellectual.

    You have a society that is crumbling. There are school shootings in almost regular occurrence. The Knock Out game is what your teens do for fun. A fourteen year old girl stabbed her sister forty times because she felt unappreciated. None of these things happened thirty years ago when Common Sense was a strolling young man, not the dead and buried corpse he is today. And since that time we have propagated every type of moral relativism the Progressive could think of. And I’m sure none of this has affected us at all Mr Progressive. These regular horrific stories on the news every time we turn it on. There is no correlation whatsoever. Right.

    So continue on. Keep putting forth deviance and celebrating it as norm. And when we finally collapse as my fiction and history predicts,remember, Mr Progressive, you were the one jumping on the roof over our heads. Because history never repeats itself does it.

    Charles Hurst. Author of THE SECOND FALL. An offbeat story of Armageddon. And creator of THE RUNNINGWOLF EZINE

    1. Lumping same-sex attraction with murder and randomly punching people? That makes no sense at all. I don’t believe unions or the minimum wage law should exist, therefor i’m not a liberal, but i’m bisexual and I can’t help that i’m attracted to scents put off by both the same and opposite sexes.

      Oh wait I remember you. You were posting a bunch of protectionist/collectivist nonsense on another story. The motto of Reason is Free Minds and Free Markets, not Schizophrenic Minds and Closed Markets.

  12. Yea Yea let’s give them a ribbon for being gay ! They come out of the woodwork like it’s something to be proud of. Its not their fault nothing they can do about it!!

    1. Whatareya black or something?

    2. drunk ass

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