“Now that the weight has lifted/Love has surely shifted in my way”
The Valentine’s Day presents just keep coming: One day after a federal court in Kentucky held unconstitutional the state’s refusal to recognize marriages same-sex couples validly entered in other states (discussed on CruzLines here), a federal trial judge ruled late on February 13 that Virginia’s laws denying recognition of same-sex couples’ marriages and barring same-sex couples from marrying violate the U.S. Constitution. Judge Arenda L. Wright Allen held in Bostic v. Rainey that Virginia’s discriminatory marriage laws violated same-sex couples’ fundamental right to marry protected by the Due Process Clause as well as their rights under the Equal Protection Clause (both under the Fourteenth Amendment to the Constitution). This makes “A perfect record for equality post-Windsor” (referring to the Supreme Court’s June 2013 decision in United States v. Windsor striking down part of the federal “Defense of Marriage Act” or DOMA), as David Cohen and Dahlia Lithwick have detailed.
The suit was pursued by two long-term, same-sex, Virginia couples, two men who were denied a marriage license in Virginia and two women who married in California but have not been able to have Virginia recognize their marriage. This is the Virginia marriage case whose legal team Ted Olson and David Boies joined; another, certified as a class action, is being litigated by the ACLU. Here, the district court granted the plaintiffs summary judgment, agreeing with the parties that a full trial was unnecessary.
Rightly rejecting a potpourri of mildly to extremely desperate arguments advanced by the county clerk defendants to try to get the case dismissed (such as the counterfactual claim that the male plaintiffs had not sought a marriage license), the trial judge turned to the merits of the plaintiffs’ constitutional arguments. Quoting the federal judge who held Utah’s marriage ban unconstitutional, she rejected the argument that the plaintiffs were seeking a new right to same-sex marriage: “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.’” Because marriage is a fundamental right, the court then applied strict scrutiny to review Virginia’s laws.
The judge dismissed a curious appeal to tradition as a way to keep people from marrying not out of love but just to qualify for benefits because the argument lacked even a rational basis. “Virginia’s purported interest in minimizing marriage fraud is in no way furthered by excluding one segment of the Commonwealth’s population from the right to marry based upon that segment’s sexual orientation.” More generally, the court found tradition inadequate because it read Justice Kennedy’s opinion in Lawrence v. Texas (which cited Loving v. Virginia for this point) as denying that “that a prevailing moral conviction can, alone, justify upholding a constitutionally infirm law.” The trial court saw that “[n]early identical concerns about the significance of tradition were presented to, and resolved by, the Supreme Court in its Loving decision.” Recognizing “the undeniable value found in cherishing the heritages of our families, and many aspects of the heritages of our country and communities,” the court nonetheless appealed to the opinion for the Court jointly authored by Justice Kennedy (with Justices O’Connor and Souter) in Planned Parenthood v. Casey, which reaffirmed “the essential holding” of Roe v. Wade and taught, the district court believed, that “the protections created for us by the drafters of our Constitution were designed to evolve and adapt to the progress of our citizenry.”
The court also denied that federalism and respect for states’ prerogatives should insulate Virginia’s marriage laws from judicial invalidation. It noted that Windsor insisted that “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons,” a proposition for which the Supreme Court cited Loving v. Virginia. This citation, the trial court here agreed with the federal judge who held Oklahoma’s marriage law unconstitutional, was “a disclaimer of enormous proportion.” And the trial court joined those judges who have approvingly cited Justice Scalia’s dissent in Windsor for the proposition that the logic of Windsor renders state marriage laws excluding same-sex couples as unconstitutional as the provision of DOMA at issue in Windsor.
Judge Allen then rejected the suggestion that she should stay out of the matter to let the legislature or people of Virginia to act to open marriage to same-sex couples such as the plaintiffs. “The proposal disregards the gravity of the ongoing significant harm being inflicted upon Virginia’s gay and lesbian citizens. Moreover, the proposal ignores the needless accumulation of that pain upon these citizens, and the stigma, humiliation and prejudice that would be visited upon these citizens’ children, as they continue to wait for this possibility to become realized.” Because constitutionalism is supposed to restrain majorities, she found judicial intervention warranted here.
The trial court also concluded that the variety of arguments offered by defendants and some professor amici (“friends of the court” interested in the matter and offering their views) that excluding same-sex couples from marriage for the sake of children failed not only strict scrutiny but even much more lenient rational basis review. Regardless of the possible legitimacy of the various interests, the court did not see any way in which Virginia’s marriage exclusion was rationally related to those interests. Agreeing with the federal courts that recently found Utah’s and Oklahoma’s discriminatory marriage laws unconstitutional, the court here appreciated that “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.” And Judge Allen sharply rebuked the county clerk who chose to intervene to defend the state’s marriage laws for contending that the plaintiffs were asking the court to “make a policy in this state that mothers and fathers [do not] matter.” “This is a profound distortion of what Plaintiffs seek. Plaintiffs honor, and yearn for, the sacred values and dignity that other individuals celebrate when they enter into marital vows in Virginia, the judge wrote, “and they ask to no longer be deprived of the opportunity to share these fundamental rights. Like other judges, she found the procreation-focused arguments inadequate to justify the exclusion from marriage. (It helped, as the court noted in its equal protection analysis, that the discriminatory marriage law “itself … declared that marriage should be limited to opposite-sex couples “whether or not they are reproductive in effect or motivation.”)
Under the Equal Protection Clause, the court did as others have recently: it suggested that heightened scrutiny should apply to sexual orientation discrimination – in part because of a variety of anti-gay actions in Virginia’s recent (and, one could add, older) history – but it did not have to embrace or reject the plaintiffs “compelling” arguments on this score because, as the judge had already concluded, “Virginia's Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny.”
Accordingly, the trial court “conclude[d] that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. 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.” The court enjoined enforcement of the laws, but taking an understandably cautious approach stayed her judgment to allow time for an appeal to be completed in the U.S. Court of Appeals.
Although relatively new Judge Allen’s prose might at points benefit from being taken down a notch on the purple spectrum, she opened her opinion movingly with these beautiful words from Mildred Loving (of Loving v. Virginia fame), with which I’ll close here:
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.