Huffingtonpost.com:

A federal judge ruled Virginia’s ban on gay marriage unconstitutional late Thursday.

From the ruling:

The Court finds Va. Const. Art. I, § 15-A, Va. Code §§ 20-45.2, 20-45.3, and any other Virginia law that bars same-sex marriage or prohibits Virginia’s recognition of lawful same-sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution.

U.S. District Judge Arenda L. Wright Allen wrote that the constitutional right to equality should apply to all, including same-sex couples seeking marriage licenses.

“Our Constitution declares that ‘all men’ are created equal. Surely this means all of us,” wrote Allen, an Eastern District of Virginia judge in Norfolk.. “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 law that emerge from such roots.”

The decision can be appealed so Virginia will not start issuing marriage licenses just yet.  According to the Washington Post:

“Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships,” Wright Allen wrote. “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.”

Wright Allen opened her decision with a quote from Mildred Loving, who was at the center of the Virginia case that the Supreme Court used in 1967 to strike down laws banning interracial marriage.

Wright Allen added: Tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.

This court decision is a starting point.  Virginia has a long history of not being on the right side of history.  It’s ‘separate but equal’ laws certainly are a blemish as were its laws on miscegenation that  were overturned by Loving v Virginia.  Finally, it doesn’t matter what you and I think or whether we are grossed out.  It is a matter of civil rights.  One group can’t be denied a right everyone else has.  I believe the judge made the right decision.

Meanwhile, Senator Ted Cruz has introduced an anti-gay marriage bill.

39 Thoughts to “Unconstitutional: Virginia ban on gay marriage overturned in federal court”

  1. Scout

    Did this judge really say that the Constitution declares that “All men are created equal”? If so, God help us.

    If the press quote is accurate, she may be one of those people who also thinks that America the Beautiful was the national anthem.

    The Virginia marriage amendment strikes me now, as it did when it was proposed and voted on, as almost certainly unconstitutional. But it would help if jurists reviewing these things packed together opinions that reflect solid scholarship and reasoning.

  2. Starryflights

    This is good.

  3. @Scout

    Ooooops! Good catch, Scout.

    I have to agree with you.

  4. George S. Harris

    Now the question will be, “Will Attorney General Mark Herring appeal this ruling?” In Bostic v. Rainey, AG Herring agreed that the Virginia ban was unconstitutional. He is Virginia’s sole representative when it comes toeing the voice of Virginia when it comes to legal matters. It is his duty to defend those laws that are “constitutional” and he has said he will not do so in those cases where a higher court has determined a Virginia law is unconstitutional. He believes the SCOTUS would strike down Virginia’s ban and thus he won’t pursue the issue. Interestingly enough, The Virginia House of Delegates voted 65-32 Monday morning to pass HB706, a bill that would amend the Code of Virginia to allow the General Assembly as a whole, either chamber of the Assembly, or any current member of the General Assembly to intervene as party to defend the constitutionality of a law passed by the Legislature if the governor and attorney general choose not to do so. Thirty-two Delegates wrote the Governor Terry McAuliffe asking him to appoint a special counsel to defend the ban but McAuliffe declined to do so. Bob Marshall, Tim Hugo and Rich Anderson were among those who signed the letter to the governor. The bill was referred to the Senate Committee on Rules.

    1. Two people who I used to respect just lost the respect then. The other one I have no respect for to start with.

      How is gay marriage hurting anyone? Why is it legal to discriminate in Virginia?

  5. Steve Thomas

    If Mark Herring declines to defend the law, based on this ruling, that is one thing. Actively joining the lawsuit on the part of the plaintiffs, is quite another. He is using taxpayer funds to sue his own client, the Commonwealth.

    Please note that this is commentary on his actions, not the subject-matter of the suit. I would feel the same way if he joined any case where X v. The Commonwealth is on the suit.

  6. Starry flights

    Virginia voters must learn to respect our nation’s Constitution.

  7. Steve Thomas

    And the presiding judge needs to learn the difference between the declaration of independence, and the US Constitution. She should also look at previous case-law and supreme court decisions. Stare Decisis.

  8. George S. Harris

    @Steve Thomas
    Speaking of “Stare Decicics: Here is what AG Herring has to say about that:

    “There is considerable Supreme Court precedent stating that marriage is a fundamental right guaranteed by the U.S. Constitution and rulings stating that the federal government cannot discriminate against same-sex couples. There are also rulings from other federal courts striking down similar same-sex-marriage bans in other states.
    First, the Supreme Court’s 2013 decision in United States v. Windsor struck down section 3 of the federal Defense of Marriage Act. Justice Kennedy’s opinion for the Court made clear that the Due Process Clause in the Fourteenth Amendment to the U.S. Constitution is violated by laws treating same-sex married couples as second-class citizens. Justice Scalia’s dissent also made clear that the Court’s rationale would justify invalidating State bans on same-sex marriage. I agree with that assessment.

    Second, the Supreme Court’s 2003 decision in Lawrence v. Texas made clear that laws criminalizing homosexual conduct were unconstitutional, regardless of how such activity may traditionally have been viewed. Justice Scalia predicted then that the decision would justify invalidating laws that ban same-sex marriage.

    Finally, the Supreme Court has repeatedly held that the right to marriage — not a particular kind of marriage — is fundamental:

    In Loving v. Virginia, the Supreme Court upheld the right to marriage, not the right to interracial marriage.
    In Turner v. Safley, the Supreme Court upheld the right to marriage, not the right to prisoner inmate marriage.
    In Zablocki v. Redhail, the Supreme Court upheld the right to marriage, not the right of people owing child support to marry.
    As a fundamental right, the right to marriage cannot be denied unless (among other things) limiting that right serves a compelling State interest. The reasons offered in support of Virginia’s same-sex-marriage ban do not meet even the most deferential legal standard of review, let alone this heightened scrutiny.”

    The AG is NOT going to sue the Commonwealth, he is just not going to defend a law he believes is unconstitutional.

    The AG has gone on to say:

    “Based on these precedents, among others, the Attorney General has concluded that if the Supreme Court were to be presented with the facts of this case, it follows that it would again uphold the right to marry and find the exercise of that fundamental right may not be denied to these loving couples based solely on their sexual orientation. The two federal courts that have most recently considered this issue agreed, striking down the bans on same-sex-marriage in Utah and Oklahoma. ”

    Any questions Steve? The issue is the RIGHT to marry. Not who can get married. You wanted Stare Decicics-you got it.

  9. Steve Thomas

    “The AG is NOT going to sue the Commonwealth, he is just not going to defend a law he believes is unconstitutional. ”

    George,

    Who does state solicitor general Stuart Raphael work for? Answer: He works for the AG’s office. Mark Herring is his boss. The people of Virginia pay his salary.

    Who joined the suit on the side of plaintiffs (in order to have standing) at the February 4th hearing in front of Judge Allen, and actively argued plaintiff’s before the court? Answer: Virginia Solicitor General Stuart Raphael.

    The facts are a matter of public record. Your argument is invalid.

  10. Steve Thomas

    ‘Any questions Steve? The issue is the RIGHT to marry. Not who can get married. You wanted Stare Decicics-you got it.”

    And George, my comment was not on the constitutionality of the same sex marriage ban, or the morality of society permitting same-sex marriage. My comment was on the AG’s active involvement in suing the people of Virginia. This will be decided in the courts. If the AG wants to take himself out of the debate, fine. Let him recuse his office on moral grounds. But he shouldn’t be joining the case against the commonwealth, which he has done in a clear and demonstrable fashion. This, is misconduct and impeachable. His client, the commonwealth, is paying the bill to have itself sued by its own attorney.

  11. George S. Harris

    Well Steve, if it is impeachable, when will you or one of your legislative buds introduce a bill of impeachment? Better hurry up before the ink dries in the decision. The Solicitor General is required to join the case since the Commonwealth has an interest in the case; i.e., anyone who has a legitimate “interest” can only support that interest by joining the case. It does not necessarily mean the SG is actively participating in the case, simply stating the Commonwealth’s interest in the case.

    1. I just read where impeachment is in the works.

      That’s heavy duty dirty pool in my opinion.

      That act might just be awakening a sleeping giant.

  12. George S. Harris

    P.S. The AG has not mentioned anything about “moral grounds”, his point is the constitutionality of Virginia’s law.

  13. Interesting discussion, gentlemen.

    Steve, I see your point, I just don’t agree with it. George, I see your point also.

    I grew up, came of age, as it were, during the time Virginia had some fairly oppressive laws. I can’t get past seeing the ban on gay marriage as denying civil rights. I would say it is most closely related to Loving v. Virginia.

    I do not think that ministers should have to marry anyone (straight or gay) that they don’t want to. Those working for the state won’t have that option. If their morals are offended they will have to resign that post once marriage becomes available for everyone.

    I have been convinced for ten years that this question will be decided nationally by the courts. I can’t actually see any argument that would make Virginia’s status quo stand.

  14. George S. Harris

    If HB706 never clears the Senate Rules Committee, the Herring’s position will stand iI HB706 should be passed, I can’t believe the governor would cut the feet out from under his AG by signing the proposal into law. I see Steve’s, “misconduct” and “impeachable offense” a baseless threat. On what grounds is the SG’s joining a case misconduct or impeachable? Talk about Stare Decisis-please provide case law Mr. Thomas. How else would the Commonwealth express it’s interest in the case, when the AG says the law involved in the case is unconstitutional? They must join the case against the Commonwealth. That’s how the system works.

    1. Why even have an attorney general if the members of the peanut gallery get to make decisions.

      I am assuming the HB706 failed to make it out of committee?

  15. Scout

    Anyone who was half awake and knew anything about the United States and its Constitution knew that the Virginia anti-marriage amendment was unconstitutional when proposed and voted on. It was an electioneering gimmick used to drive certain voter segments to the polls. A few other states around the country used the same ploy. The Constitution has few friends in this country once someone figures out how to use an anti-constitutional position as a marketing tool. The sooner that piece of ugly graffiti on Virginia’s constitution is removed, the better.

    Having said that, Herring had a lot of choices about how he handled this situation. He could have reported to the Governor and the General Assembly the obvious – that the amendment was indefensible. He could have asked the Governor to appoint a special counsel to defend it. He could have recused himself personally. He could have recommended amendatory language that would have removed the amendment from the books. On and on. What he did do was, unfortunately, as bad as some of Cuccinelli’s abuses of the office. He took an activist, engaged position against the amendment in a lawsuit. In reading his statements at the time, I concluded that he saw that the door was about to fall off its nasty, rickety hinges and he wanted to be perceived personally as having charged at the door just at the critical moment. I further concluded that his motivations were largely personal and largely driven by hopes of political benefit.

    It is very hard to see how he could be impeached for this, particularly given the General Assembly’s remarkable tolerance for Cuccinelli’s use of the Office as a campaign annex. But it was not wise or prudent public service.

    By the way, Stuart Raphael is an excellent attorney. Herring did Virginians a great favour by placing him in the position of Solicitor.

  16. Kelly_3406

    I am no lawyer, nor do I pretend to be an expert. But my civic understanding of the legal system is that both sides are entitled to vigorous advocacy in Court from which the correct decision is presumed will emerge. For example, in a criminal case, a lawyer is obligated to defend his client even if he might be guilty. In this case, the citizens of Virginia are the “clients” of the AG. Even if the AG has a personal objection to Virginia’s stance, he has a legal obligation to defend his clients vigorously in Court. Otherwise he is not doing the job that he was sworn to do and his actions undermine the legal presumption that both sides get a fair hearing. If the AG cannot fulfill his legal obligations to the citizens of Virginia, then he should resign.

  17. Rick Bentley

    Of course this becomes political, by the nature of our system. We wouldn’t expect to see any states’ AG fighting to protect something unpopular, or to attack anything popular. Pedophiles have a pretty good argument that disseminating child pornography is free speech. Which state will take up that cause? Seems to me that mandating education for children is arguably unconstitutional. Does anyone want to fight that battle?

    It’s becoming increasingly obvious that the gay marriage issue is a decided issue. Because hardly anyone under the age of 35 objects to it. I’d just as soon we let this drop. And when the bill rolls around to allow gay marriage in Virgina, I would urge everyone to vote Yes, because to do otherwise is a senseless and bigoted act.

    1. Totally agree, Rick.

      Opposing gay marriage is like standing in the path of a runaway train.

  18. Very interesting discussion indeed. I see the validity from both points and I in my endeavor to remain fair, I think Scout is probably right on the manner in which the new AG could have dealt more “judiciously” in the reasoning not to purse defending the marriage Inequality. When George Harris defends the marriage equality based on law we know the worm has turned 🙂

    Rick,
    Are you comparing pedophilia to gay marriage? Pedophilia is illegal, being gay is NOT. Pedophiles do not have a “pretty good argument” trafficking in child pornography. Sexually abusing children has never and will never be protected under the first amendment.

    1. I don’t think Rick is comparing gay marriage to pedophilia. I also think he was making a point about free speech. I also don’t think he was defending child porn. He said that they made a valid argument about their interests being part of free speech. Community revulsion over child porn trumps their free speech. What’s the difference? Age of the subject.

      He is pointing out things that no one is going to defend or take on as a cause.

  19. Rick Bentley

    Am i comparing pedophilia to homosexuality … I’ve expounded on this before … I’ll do so again.

    I believe that pedophilia is often or at least sometimes an orientation that people are born with – not some deliberate choice. This is an ugly fact, so we as human beings choose not to think about it. No one wants to believe that other people are born cursed. But, if you think about it, this is certainly the case. Some people are born physically disadvantaged; some people are born developmentally challenged; some people are born with a pedophiilic orientation. (Whether that applies to 90% or 1% of pedophiles is irrelevant to my argument).

    So homosexuality and pedophilia are similar in that they are sometimes in-born, and in that they are literally a deviation from the norm. (Arguably, they are from the standpoint of biological science a defect, as is my near-sightedness or as is diabetes). They are different in that one is more dangerous to society, to the welfare of innocents.

    As to the child pornography argument – one could make an argument that there’s no harm for someone with such an orientation to look at prurient material that is already produced. I’m not making that argument. But the Greek and Roman thinkers probably would have; pedophilia had become commonplace in their society. The US Supreme Court has decided that if the pictures aren’t real, it’s okay and it’s free speech. I’m not looking to make this argument – just pointing out that it could be made, and that the arguments would be theoretically interesting, but we would not expect any Attorney General to make them. Because we as a society have a consensus on the issue.

    1. Well, so much for me defending your words. Ho ho ho.

  20. Rick Bentley

    I don’t want to be misunderstood – when i said “They are different in that one is more dangerous to society, to the welfare of innocents.”

    Had I been choosing my words carefully to express my beliefs, I would have said “They are different in that one is dangerous to society, to the welfare of innocents.”

  21. Rick Bentley

    And while I’m sitting here parsing semantics and arguing in favor of precision of language, when you say :

    “Pedophilia is illegal”

    Of course it’s not. No more so than ephebophilia (attraction to adolescents – extremely common in men), or gerontophilia (attraction to the elderly). And I’m assuming that you wouldn’t want it to be, that you want to punish and prohibit actions, not to punish someone for their orientation or state.

  22. Rick Bentley

    Within 100 years we’ll be mostly having sex with artificial proxies rather than each other, and we’ll be able to accuarately count orientations and we can all live in easier harmony. But I’m getting off-topic.

  23. Cato the Elder

    Rick Bentley :
    Am i comparing pedophilia to homosexuality … I’ve expounded on this before … I’ll do so again.
    I believe that pedophilia is often or at least sometimes an orientation that people are born with – not some deliberate choice.

    Hear, hear.

    I was born with a genetic predisposition to drink beer, smoke cigars, play cards, and chase tail.

    All this time I thought I was just a reprobate. Imagine my relief when I found out that I was “born this way” and couldn’t help myself.

    In fact, I demand not only acceptance but a subsidy as well.

  24. George S. Harris

    For once in my long life I must agree with Cato. Thanx for bailing me out!

    I totally disagree with Scout’s discussion. Look carefully at what AG Herrington has said. His argument is on the CONSTITUTIONALITY of Virginia’s law. He has said he will not defend any Virginia law he believes to be UNCONSTITUTIONAL. Nothing to do with his personal feelings, no issue of morality. He has stated that when presented with all the facts, the SCOTUS will find Virginia’s law unconstitutional. Thus, there is no reason to defend it.

    Rick–“…we’ll be mostly having sex with artificial proxies”–isn’t that what masturbation is all about? Or some battery powered “thing”?

  25. Scout

    I agree that the Virginia amendment will ultimately be found unconstitutional, George. It is, was, and always has been pretty much DOA. The issue is what obligations does an AG have if he is firmly convinced of that. He is under no personal or even institutional obligation to defend it, if his considered judgment is that the matter is indefensible or beyond his powers to defend. But he then can make institutional choices about orderly procedures for ensuring that the provision gets a fair hearing. In this case, there were ably represented plaintiffs and defendants. Herring could have stayed out of it altogether or could have secured outside counsel to defend. Either decision would have been defensible. But he entered the lists actively litigating against the amendment. When I read his opinion piece in the Washington Post, it struck me very clearly to be a calculated personal political position.

  26. Rick Bentley

    George, yes, in a sense once we invent suitable sex-bots or androids it’ll be analogous to masturbation.

  27. George S. Harris

    I think people are still missing the point that in order for Virginia to show its interest in the case, it must join the case. That was done throughout the office of the Solicitor General. Is this so hard to understand?

  28. Scout

    It’s not hard to understand in isolation, George. But it begs the question as to why, in a heavily lawyered-up case, the Commonwealth had to say anything or, alternatively, had to take a view against its own constitution (dreadful as the amendment is on any number of grounds). It also raises a process question as to why, if the Commonwealth had to have a say in that particular lawsuit, its position opposing its own Constitution should spring solely from the head of one official. I don’t doubt that Herring could do what he did. I also think his position, as advocated by our Solicitor General, will ultimately be proven correct. But I so chafed under Cuccinelli’s abuse of the office for campaign purposes, that I’m pretty highly sensitized to the idea that once one gets elected to that job, it’s off to the next race using litigating positions as soapboxes. I also find the argument of DJ Rippert at other sites compelling: if this is what Herring had it in his head to do, he should have campaigned on it. At least that would have provided a modicum of procedural legitimacy to his litigation position.

    Of course, because the underlying amendment is such a calculated piece of nonsense, motivated by peculiarly base electioneering considerations, I am more concerned about the orderliness of people doing the jobs they were elected to do. If Judge Wright Allen’s decision survives on appeal, I won’t be at all upset. (PS: they fixed the Declaration/Constitution cock-up in the decision).

  29. George S. Harris

    @Scout: “It also raises a process question as to why, if the Commonwealth had to have a say in that particular lawsuit, its position opposing its own Constitution should spring solely from the head of one official.

    Because that is the way the system is set up. It is the AG’s duty to render opinions and, if necessary, to act on those opinions. He rendered an opinion and now he is acting on that opinion. The legislature is already trying to turn the AG into a eunuch, please don’t further the cause. While it is not a legal opinion, I refer you to this Editorial Board opinion in the Washington Post:

    http://www.washingtonpost.com/opinions/virginias-extraordinary-gay-marriage-fight-allows-for-the-attorney-generals-position/2014/01/26/51c9cb10-853f-11e3-8099-9181471f7aaf_story.html

    I would ask that you pay particular attention to the last paragraph. They say it far better than I ever could. My suggestion: Get the knot out of your “step-ins” and get on with life.

    P.S. If this had been one of the points in his campaign, it is likely he would have won anyway since a Quinnipiac poll shows that at least 50% of Virginians approve of same-sex marriage while only 43% disapprove. The other 7%, waffling.

  30. ACTING upon Pedophilia is illegal Rick. You can think anything you want, you clearly know I was not advocating clockwork orange mentality.

    Being gay is NOT, I repeat, NOT the same as molesting, sexually abusing, assaulting children. Period.

    Equating being gay and pedophilia in the same sentence implies you can make a comparison of any kind, and I vehemently object to that.

  31. Rick Bentley

    I am not saying that pedophilia is analogous to homosexuality. I brought up pedophilia in the first place only as an example of something that definitely won’t happen (tolerance for child pornography), not for lack of a logical argument for it, but because it is unpopular.

    And then I went on further because I think that we will build a better world only if and when we are able to look the world in the eyes and understand it. More than any issue I can think of, people just don’t like to think about pedophilia. If you do think about it, it’s certainly not a chosen or learned orientation, but a God-given one.

    You, I, and Rick Santorum have a better chance of coming to consensus if we all speak from the same vocabulary. We should be able to acknowledge some validity to his arguments – that pedophilia, zoophilia, polyamory are indeed all sexual behaviors and all arguably ingrained. And then we could maybe talk further about what’s right and what’s wrong, and hopefully all agree that Rick doesn’t need to be so afraid of gay people.

  32. Rick Bentley

    Semantic traps bother me. The ones that keep people from seeing issues more clearly.

    Hearing endless discussions my whole life about whether white people should use the n-word, and whether black people need to react to it, bothers me.

    The way that people say racist when they mean bigoted bothers me. It’s a usage that creates a false narrative in people’s minds that you’re either not prejudiced, or you are – good or bad, not much in between. The ideal word that should be used for most social uses of “racist” is probably “bigoted”.

    If I’d been alive in the 1960’s when African-Americans went from ‘colored” to “black” I suppose I would have been upset then too. That one is insane …

    Hearing people take offense to Santorum’s well-known statements like a trap to me. If we just reflexively reject anyone comparing homosexuality to pedophilia, the issue remains collectively unexamined, and the fear remains in place of some people’s parts. And a stumbling block here is getting people to see that pedophilia is indeed an orientation, not a crime.

  33. Rick Bentley

    That last sentence sounds creepy, and I assure you that it’s not my pet issue. But, let’s look that issue straight in the eyes. It’s of benefit to us that we all understand the issue more than we did 40 years ago, when molesters were typically freed up from jail and thought to have just undertaken some bizarre act on a whim. It’s a compulsion.

    Perhaps as we collectively come to understand sexuality in more detail, it’ll enable us to build a better world. Seems like it can’t hurt.

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