‘Virginia Is for Lovers’ State Slogan May Be Extended to Gays

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.