Why Virginia’s Gay Marriage Ban Is Toast

same-sex-marriage-hearing01.jpg w=560By Peter Galuszka

It’s happening faster than anyone could have imagined.

Virginia’s constitutional ban on gay marriage by defining marriage as only between “a man and a woman” seems heading very rapidly down the hole. That was the upshot from U.S. District Court Judge Arenda L. Wright Allen in Norfolk yesterday. After a two-hour hearing The Obama nominee said to expect a decision “very soon.”

What some lawyers think that means is that she will declare the Virginia ban unconstitutional and issue a preliminary injunction forcing corrective action for two gay couples in Norfolk and Chesterfield Count who were denied marriage licenses by the state last year. It could happen in a matter of days.

Similar lawsuits are pending in Pennsylvania, Florida, Michigan and Utah. Gay marriage is now permitted in 17 U.S. states and in the District of Columbia. Lawyers on all sides see the issue as headed eventually for a decision by the Supreme Court. A Norfolk ruling likewise is expected to move very swiftly up the appeals ladder.

The hearing in Norfolk’s darkly paneled chamber oozed glamor and politics. Lead attorneys for the plaintiffs are Ted Olson and David Pies, regarded as rock stars for their high profile cases. They beat back California’s anti-gay marriage Proposition 8 in the U.S. Supreme Court last year. They were on opposite sides when the 2000 election between George W. Bush and Al Gore ended up in the highest court.

Said Olson in Norfolk, “What the Commonwealth of Virginia is doing is taking away a fundamental right. It’s the right of individuals, not the right of state, that’s what’s being taken away.”

The other side has some politically charged counsel as well. One is Austin Nimock, a lawyer for the defense who is part of the conservative advocacy group Alliance Defending Freedom. He said that that a ruling against the ban would “change the basic concept of marriage in Virginia” and that the institution has been a state tradition “for 400 years.”

Virginia’s new and controversial Attorney General Mark Herring was there as well. He shocked state conservatives by refusing to defend the marriage ban. And despite all the gnashing of teeth among Baconauts and other right wingers about Herring’s supposed dereliction of duty, another attorney general has done the same. Pennsylvania’s Kathleen Kane refused to defend that state’s gay marriage ban last July.

Basically, the arguments break down in two ways. The plaintiffs argue that the Virginia law is unconstitutional and smacks of the state’s dark history of racist and wrong-headed laws. Among them are its support for segregation, a ban on interracial marriage and denying women spots at the Virginia Military Institute, which gets state funding.

The defense says that marriage is traditional and is important for procreation. Attorney Nimock pounded that theme over and over, claiming that 99 percent of all children in this country are the product of interaction between men and women. Another defense lawyer, David Oakley, claimed that if political opinion is changing, then the decision should be made by the General Assembly and voters.

The problem is, said the plaintiffs’ lawyers and I wholeheartedly agree, the Bill of Rights and the constitution are designed precisely to protect the rights of minorities. If voters or their legislators could strip away individual rights at the whim of the majority, we’d live in fascism. You would think that for all their posturing with the “Founders” and the three-cornered hats, the right wings, especially the Tea Party people, would get that. As for procreation, plenty of 80-year-olds get married and probably aren’t entering the union to have children.

Anyway, it’s all happening very fast. It is way out of the control of the state’s conservatives and some church groups. Better get ready for a huge change.

Note: for a richly reported account on the evolution of Richmond’s gay community check out this story in Style Weekly

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11 responses to “Why Virginia’s Gay Marriage Ban Is Toast

  1. While I still believe that it is the responsibility of the Attorney General to uphold the constitutionality of the state constitution, I do agree with some of what Peter says. The conservatives’ argument that marriage is all about procreation doesn’t hold water. If that were the defining attribute, no post-menopausal woman (over the age of 50 or so) would meet the standard, for 99.9 of them have no interest in bearing children. The fact is, marriage is an institution for domestic companionship as well as for procreation.

    But let’s be honest about one thing. Once you’ve declared that marriage is no longer between “a man and a woman,” there is no logical reason to confine it to only two people, of whatever gender. Upon what grounds would it be possible to deny Muslims or old-school Mormons the right to marry multiple spouses? I see none.

    Once gay marriage ceases to be an issue, the battle will shift to polygamous marriage. As long as those are relationships that people voluntarily enter into, I don’t have a problem with the idea. There may be a problem, however, if such marriages are made under duress, as some undoubtedly are.

  2. there is a misunderstanding here.

    the law can be arbitrary as hell – but it has to be applied equally.

    you can define marriage between two people and not 3 or 15 – as long as that law applies to everyone.

    but do expect a lawsuit from the Mormons!

    • Larry, back up the truck. It’s as arbitrary to define marriage as a union of only two people as it is to define it as a union of two people of the opposite sex. Moreover, human history is full of civilizations that recognized plural marriage. To allow gay marriage, while prohibiting polygamous marriage, is pure bigotry, IMO. I’d be happy to represent a Mormon or a Muslim (provided they paid my fees, of course). 😉

      • @TMT – true.. but the Constitution does not address “arbitrary” distinctions unless they apply un-equally… right?

        I give as an example.. say the death penalty.. which is pretty arbitrary in terms of how it is applied..

        but it’s not un-Constitutional even if it’s arbitrary UNLESS it is applied differently to different people…

        it’s the “equal treatment” equality (equal protection) clause that rules these issues… right?

        you can define marriage to be a number of different things but it has to apply equally to everyone – regardless of gender – because otherwise – there is an implication that gender is not equal.

        what say you?

        • But Larry, how does something that was accepted as constitutional suddenly become unconstitutional? (And keep in mind I am not arguing against the GA changing the law.) Laws regularly discriminate against some, while allowing others to benefit or to be forced to pay. Since I am married, I cannot also marry someone else. Ditto for my spouse. That is a significant and arbitrary restriction in the eyes of some. The law also presumes youth cannot consent to marry. That could be very arbitrary. I had great grandmother marry in her middle teens. Even if I were single, I could not marry a man in Virginia if I so desired.

          There is arbitrariness to all of these restrictions. Yet, you take the position that only one of these restrictions is unconstitutional. That sounds like voodoo to me.

          First, I don’t see how changing public opinion affects the constitutionality of a law. Second, if one arbitrary restriction is unconstitutional, why are others constitutional?

          • “But Larry, how does something that was accepted as constitutional suddenly become unconstitutional? (And keep in mind I am not arguing against the GA changing the law.) ”

            You’re a lawyer and I’m not so you probably have a better idea than me but we know that things get revisited – like civil rights, corporate money/free speech, etc.

            “Laws regularly discriminate against some, while allowing others to benefit or to be forced to pay.”

            not in equal circumstances.. like for instance, your tax rate cannot be different than your neighbors… right?

            ” Since I am married, I cannot also marry someone else. Ditto for my spouse. That is a significant and arbitrary restriction in the eyes of some. The law also presumes youth cannot consent to marry. That could be very arbitrary. I had great grandmother marry in her middle teens. Even if I were single, I could not marry a man in Virginia if I so desired.”

            the law can and is arbitrary but it is not supposed to treat people in the same class in a discriminatory manner. Sometimes discrimination is allowed to continue as part of a culture but ultimately – the right case with the right elements comes to the SCOTUS and they simply cannot find a rational way to continue the discrimination. But in this case – reading what Scalia had to say in opposition may be worth doing.

            “There is arbitrariness to all of these restrictions. Yet, you take the position that only one of these restrictions is unconstitutional. That sounds like voodoo to me.”

            arbitrary but equal to all.. not arbitrarily discriminatory

            “First, I don’t see how changing public opinion affects the constitutionality of a law. Second, if one arbitrary restriction is unconstitutional, why are others constitutional?”

            my view is that the founding fathers never intended for the Constitution to be unchangeable… and that’s why they created a SCOTUS. They knew that as time went by that conditions and views would change and the interpretation of laws might need to change.

            Remember, they’re not changing the Constitution here – they’re saying LAWS created to define marriage – are un-Constitutional… and we all know that some laws have existed for decades because the legal process pushed them up to the SCOTUS – finally.

            and we get currently laws, already vetted by earlier SCOTUS – re-examined by more recently appointed SCOTUS who do reflect changed thinking …. and not without strong disagreement…

            I will admit – that crossing over the gender line for marriage seems pretty radical to some of us, myself included – but when a SCOTUS as conservative as this court makes that determination.. I’m thinking that there must be something fundamental in their thinking – like the equal protection clause.

          • TMT – one pretty good example of how a country and it’s people and the Constitution can change is the phrase “cruel and unusual punishment”.

            Don’t you think – over the years that what people think is “cruel and unusual” might have changed?

            The question is – can everything else remain the same – the law, the Constitution – and the accepted definition for something – change?

            Would a lawyer argue in front of the SCOTUS that’s it’s wrong to adopt a more contemporary standard and the Constitution “requires” us to use the term as it was originally perceived?

            I do not pretend to be a lawyer much less someone who really has a deep education in the law and the Constitution but I simply observe how things end up changing including the “accepted” definition and standards…

            what say you?

  3. Peter, from a legislative perspective, you and I are pretty close. With appropriate protections for religious groups not to recognize Gay or Polygamous marriages and for individuals not to be forced to bake a wedding cake for such ceremonies, I would most likely vote for a change in the state constitution and law to include such unions as valid. I do think Muslims and old-school Mormons have equally good arguments in favor of their view of marriage.

    But I doubt any court opinion would be worth a bucket of warm spit, to quote John Nance Garner. Courts, for countless years, have held state law limiting marriage to one male and one female was constitutional. How did that change? We’ll be treated to some fuzzy-ass analysis that will not adequately explain how something constitutional suddenly isn’t. It will be made up law with a depth of analysis worthy of Fred Hiatt – or a third grader. (See, I can compliment Hiatt.) A change in public opinion is insufficient to effect constitutionality of a statute. It’s a good argument for changing the law – but not for a court to strike a statute. What is the good of a constitution if it changes with public opinion? It’s that very flexibility that threatens the rights of all, including those of minority groups. And let’s all keep in mind that the Supreme Court granted a stay to the State of Utah against the order declaring that state’s ban on gay marriage unconstitutional. Stays are rarely granted, and never based on frivolous arguments.

    We’ve already discovered Mark Herring is not a good attorney. He has no regard for the vote of the public in amending the constitution or the state constitution itself. He rather position himself with party activists than defend the constitution he swore to defend. A good attorney general would defend the law, even as he lobbies the GA to change it. I suspect the simplistic order the Virginia federal district court judge will write will be consolidated with other decisions for resolution by the US Supreme Court. Then we can have the matter decided where it should be decided and not by a 4th-rate attorney general.

  4. The problem with defining this issue using images or history of racism is if I’m a gay man and you’re a black man and we walk into a room together, everyone knows you’re black.

  5. I hope gay marriage becomes legal in Virginia. However, I also want our 4th rate Attorney General to fulfill his commitment to the Commonwealth of Virginia. He should defend the amendment (whether he likes it or not) until the 4th District Court of Appeals (or the US Supreme Court) rules on the matter. Until then, Herring has clear guidance from the Virginia Constitution and ambiguous guidance from the US Constitution.

    This more than procedural nit picking. There are many cases where any individual lawyer could decide that Virginia law violates the US Constitution. For example, in Kelso v. New London the US Supreme Court upheld the right of New London, Connecticut to sieze private property in the furtherance of economic development. This decision by the US Supreme Court was far more clear than any decision that court has made regarding gay marriage. Virginia voters overwhelmingly passed an amendment that prohibited such action over the objection of many Virginia municipalities. Is it right for a Virginia attorney General to use his or her personal view of the law to decide that Virginia’s prohibition against seizure of private property for economic development is unconstitutional? I think not. The Virginia attorney General should defend that law whether he or she likes the law or not. If a court with appropriate jurisdiction decides the law is unconstitutional – then that’s that. Until such a decision is rendered the Attorney General should defend Virginia’s law.

    Beyond Herring’s dereliction of duty there is also the question of his apparent lack of professional integrity and obvious dishonesty. Mr. Herring (I will no longer soil the term “Attorney General” by applying it to Herring) had an entire campaign to make his philosophy and planned actions clear to the voters. Not only did he fail to honestly present his plans to the voters he actively led the electorate to believe he would do the opposite of what he is now doing.

    Calling Herring a 4th rate Attorney General is an insult. It is an insult to 4th rate Attorneys General. Herring is a disgrace.

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