Thursday, 13 February 2014

Virginia is for lovers: Happy Valentine's Day

In the latest of a succession of federal court judgments that have overturned states' bans on same-sex marriage, a federal judge in Richmond, Virginia ruled that the state's constitutional ban on gay marriage is a violation of the United States Constitution.  Her decision has been stayed, pending an appeal.

Leaving little room, it has to be said, for doubt as to on which side of the fence she stands herself, Judge Arenda Wright Allen opened her judgment with a quotation from Mildred Loving, one of the plaintiffs in the now famous U.S. Supreme Court case of Loving v. Virgina that saw the state's ban on interracial marriage declared unconstitutional.
We made a commitment to each other in our love and our 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 generations's fears and prejudices have given way, and today's young people realise that if someone loves someone they have a right 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.
What has led to this growing stampede to have state bans overturned, as in Utah, Kentucky (where the issue was the state's refusal to recognise out-of-state same-sex marriages) and now Virginia's constitutional ban on gay marriage, is the U.S. Supreme Court decision of last summer that overturned the Defence of Marriage Act.

Although the Supreme Court declined to hear the merits of the arguments in the California case that directly challenged that state's gay marriage ban, in U.S. v Windsor, as some observers predicted at the time (including Justice Antonin Scalia, in his barnstorming dissent), the Court opened the path to state bans being declared unconstitutional.

The decision in Richmond flows seamlessly from the decision in Windsor.  As Linda Hershman wrote in The New Republic when Windsor was decided,
For those looking for an analogy to the race cases like Loving v. Virginia, which imposed strict scrutiny on Virginia’s anti-miscegenation law, Windsor continues the development of Kennedy’s equal protection jurisprudence. There is no talk in Windsor of discrete and insular minorities or strict or rational scrutiny or any of the other increasingly outdated legal language. Following the lead suggested in Romer by Harvard’s Larry Tribe, Kennedy simply reminds the country that it is not in our constitutional tradition to enact laws that meanly seek to make things worse for people trying to lead an ordinary human life. Regardless of how insular or discrete they are.
(It is of note that Judge Wright Allen did choose to apply "strict scrutiny" to the state's ban on same-sex marriage, impinging as it does on a fundamental right, giving the Supreme Court the opportunity to do the same.)

Nonetheless, the judgment (as in the Utah and Kentucky districts) recognised the prescience of Scalia Windsor, and quotes part of his dissent.
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.
And in a powerful conclusion to her judgment (setting aside the comparison between herself and Lincoln), Judge Wright Allen had this to say:
[Declaring Virginia's gay marriage ban unconstitutional] is consistent with our nation's traditions of freedom.  "The history of our Constitution… is the story of the extension of constitutional rights and protections to people once ignored or excluded."  Our nation's uneven but dogged journey toward truer and more meaningful freedoms for our citizens has brought us continually to a deeper understanding of the first three words in our Constitution: we the people.  "We the People" have become a broader, more diverse family than once imagined.
Justice has often been forged from fires of indignities and prejudices suffered.  Our triumphs that celebrate the freedom to choose are hallowed.  We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect...
Almost one hundred and fifty years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: "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 is in my power, they, and all others, shall have."
The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today also ask for fairness, and fairness only.  This, so far as it is in this Court's power, they and all others shall have. 

Happy Valentines Day.


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