“It’s a sorry state, I say to myself”
(photo: Richmond Law magazine, University of Richmond, 2009)
The Washington Post has reported that the Virginia House of Delegates has voted to close its session without voting on the proposed appointment to state District Court of Tracy Thorne-Begland, a prosecutor from Richmond, thus killing his nomination. The effort was spearheaded by Delegate Bob Marshall, who claims not to have objected to Thorne-Begland’s sexual orientation, which the state’s governor insisted should not be a factor, but because he was a “gay activist.” Thorne, as he was known at the time, publicly came out as gay while serving in the U.S. Navy and unsuccessfully challenged his discharge pursuant to the military’s “Don’t Ask, Don’t Tell” policy.
According to the Richmond CBS affiliate, “Marshall said that such gay rights advocacy is okay while serving in an elected capacity, but not as a judge–which calls for one to be impartial.” Of course, since Marshall had no basis for assuming Thorne-Begland would suffer from role confusion and as a judge act the way an elected policymaker would, he needed some other reason to oppose Thorne-Begland with a straight face (so to speak).
Marshall found that reason in the fact that Thorne-Begland had been married in another state to a man, with whom he was living and raising children. Virginia has a state constitutional amendment restricting civil marriage to male-female couples, which was enough for Marshall to conclude that “Thorne-Begland’s ‘life is a contradiction to the requirement of submission to the [state] constitution,’” according to the Post. This overlooks the fact that Virginia cannot control whether other states allow same-sex couples to enter legal marriages, nor may it consistent with the First Amendment prohibit such a couple from holding themselves out as married (regardless of whatever it may be able to do when they are completing state governmental forms, for example). Thus, there appears to be no legitimate basis for opposing Thorne-Begland beyond bare disagreement with his support for marriage equality, or because he is making a family life as a gay man. It’s a sorry state when civil rights advocacy – or being gay – can disqualify one for judicial office.
