Virginia Marriage Ban Unconstitutional

The ruling was accompanied by a stay, meaning same-sex couples can not yet begin marrying in Virginia.

BY Sunnivie Brydum

February 14 2014 12:30 AM ET

Pro-equality supporters rallied outside the federal courthouse in Norfolk, Va., on February 4.  

A federal court just declared Virginia's ban on performing or recognizing same-sex marriages unconstitutional — the latest in a fast-moving stream of pro-marriage equality rulings delivered by federal courts this year, and the first such ruling to strike down a southern state's marriage equality prohibition. 

The U.S. District Court for the Eastern District of Virginia agreed with the plaintiffs, two same-sex couples represented by the American Foundation for Equal Rights, that Virginia's refusal to recognize their relationships violated the promise of equal protection guaranteed to all citizens by the 14th Amendment to the U.S. Constitution. Virginia's prohibitions on marriage equality were codified in both statute and the state constitution and not only forbade gay and lesbian Virginians from marrying, but also expressly invalidated same-sex marriages performed in other states when the couple entered Virginia. 

While the decision in Bostic v. Rainey ordered that Virginia cease enforcing its unconstitutional prohibition on marriage equality, the ruling also included a stay, pending appeal and final resolution by a higher court. Since the newly appointed Virginia attorney general dropped the state's defense of the law, representatives of the antigay group Alliance Defending Freedom stepped in as defendant-intervenors and are expected to appeal today's decision. 

"The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry," wrote U.S. District Judge Arenda L. Wright Allen. "Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family."

Allen's ruling dismissed claims from the defendant-intervenors, who argued that same-sex couples were attempting to "create and exercise a new (and some suggest threatening) right" to marriage. In reality, "plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia's adult citizens," Allen wrote. 

The ruling also outright rejects defendants' arguments that Virginia has a "legitimate state interest" in preserving the "tradition" of opposite-sex marriage. "Tradition is revered in the Commonwealth, and often rightly so," wrote Allen. "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."

Allen's decision also rejeced defendants' arguments that reserving marriage for opposite-gender couples somehow protects children. "The purported 'for-the-children' rationale fails to justify Virginia's ban on same-sex marriage because recognizing a gay individual's fundamental right to marry can in no way influence whether other individuals will marry, or how other individuals will raise families," wrote Allen. "The 'for-the-children' rationale rests upon an unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents," concludes Allen.

While Allen stopped short of determining that Virginia's laws are based in direct animus toward LGBT people, she does acknowledge that the effect of such prohibitions is to demean same-sex couples. "The goal and the result of this legislation is to deprive Virginia's gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life," she writes.

Allen's ruling opened with a quote from a defendant in another historic marriage case that came from Virginia — Mildred Loving, an African-American woman who in 1967 successfully sued the state to marry her white husband, Richard Loving. As it reached the U.S. Supreme Court, Loving v. Virginia became a landmark case that struck down anti-miscegenation laws nationwide. Justice Allen included a quote from a pro-equality address Mildred Loving delivered on June 27, 2007, the 40th anniversary of the landmark ruling in her favor:

"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 ofRichard 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."

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