Civil and Human Rights

Commonwealth can learn from its own history

When it comes to marriage discrimination, the Commonwealth of Virginia has a great deal to learn from its own history. Specifically, it took a ruling by the United States Supreme Court in 1967 to put an end to the state’s odious laws prohibiting interracial marriage. In the serendipitously named case of Loving v. Virginia, our nation’s highest court held that such laws were racially discriminatory in violation of the Equal Protection Clause of the 14th Amendment. In addition, the court held that such laws impermissibly denied Virginians their fundamental right to marry, a core aspect of personal liberty also protected by the 14th Amendment.


Unfortunately, Virginia did not fully learn its constitutional lessons from Loving. Thus, today, Virginia is back in court once again because of marriage discrimination, this time against its gay and lesbian citizens. In Bostic v. Rainey, the United States Court of Appeals for the 4th Circuit, sitting in Richmond, is hearing oral argument in a lawsuit challenging Virginia’s state constitutional amendment and statutes that prohibit same-sex couples from marrying and that deny recognition of same-sex marriages entered into in other jurisdictions. In a historic ruling in February, U.S. District Judge Arenda L. Wright Allen — citing Loving, among other cases — held that this discriminatory regime also violates the 14th Amendment.


As a matter of constitutional text and history, Wright Allen’s ruling was unquestionably correct, and should be upheld by the 4th Circuit. The 14th Amendment expressly prohibits any state from denying to “any person” the equal protection of the laws. And when the framers of this amendment wrote “any person,” they meant it; they repeatedly rejected proposals to limit the amendment to a prohibition only of racial discrimination. Instead, they wrote into our Constitution the ideal of equality set out in the Declaration of Independence, using broad language that guarantees the equal protection of the laws to every person — male or female, black or white, gay or straight, immigrant or native. The amendment’s framers also recognized that the freedom to marry is an important component of personal liberty, a fundamental right that the Supreme Court in Loving described as “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”


Measuring Virginia’s discriminatory marriage laws against the guarantees of the 14th Amendment, Wright Allen concluded that the laws come up woefully short — the state has no legitimate reason for denying its gay and lesbian citizens the equal right to marry the person of their choice. Across the country, judges in other jurisdictions have reached similar conclusions about their own state’s discriminatory marriage laws. These recent rulings flow not only from Supreme Court precedent protecting the fundamental right to marry, but also from the court’s decision last June in United States v. Windsor. In that case, the high court held that the provision of the “Defense of Marriage Act” denying to married same-sex couples the important federal rights and benefits provided to all other married couples violated the equal protection rights of gay men and lesbians.


As a lawyer whose organization has filed a brief in Bostic urging the 4th Circuit to affirm Wright Allen’s ruling, and as a gay Virginian, I have a professional as well as a very personal stake in the outcome of this case. My spouse and I have lived together in Virginia for nearly 35 years; we were married in Canada a decade ago. Nonetheless, Virginia still considers us to be legal strangers, treating us as second-class citizens and depriving us of the protections and benefits of marriage. I am hopeful, however, that this wrongful situation is coming to an end. Just as the Supreme Court in 1967 consigned Virginia’s laws against interracial marriage to the dustbin of history, I think it’s only a matter of time before the same happens to the state’s most recent set of discriminatory marriage laws. How much time, I’m not quite sure. But in Bostic, the 4th Circuit should help do away with these laws. The Constitution requires no less.

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