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Virginia: Recognition of same-sex relationships and LGBT equality

Part 6: 2014-FEB: More reactions to ruling in
Bostic v. Rainey. Comparing case to Loving v.
Virginia.
A legal opinion of Bostic.

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"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
SSM refers to same-sex marriage

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This topic is a continuation from the previous essay

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LGBT symbol 2014-FEB: Reactions to Judge Arenda L. Wright Allen's ruling in Bostic v. Rainey:

Virginia Attorney General Mark Herring (D) issued a statement stating:

"The legal process will continue to play out in the months to come, but this decision shows that Virginia, like [the rest of] America, is coming to a better place in recognizing that every Virginian deserves to be treated equally and fairly." 1

Many religious and social conservatives were outraged at the ruling:

  • Tony Perkins is president of the Family Research Council -- a conservative Christian para-church organization, which has been designated by the Southern Poverty Law Center as an anti-gay hate group. 2 He said:

    "It appears that we have yet another example of an arrogant judge substituting her personal preferences for the judgment of the General Assembly and 57 percent of Virginia voters. Our nation's judicial system has been infected by activist judges, which threaten the stability of our nation and the rule of law."

Perkins may be unaware of the article published in 2014-FEB by David S. Cohen and Dahlia Lithwick in Slate magazine. 3 They found that in the eight months since the U.S. Supreme Court's 2013-JUN-26 decision in Windsor v. United States:

"A survey of publicly available opinions shows that ... 18 court decisions [by 32 different judges appointed by Democratic and Republican Presidents] have addressed an issue of equality based on sexual orientation. And in those 18 cases [and among those 32 judges], equality has won [unanimously] every single time."

It seems very unlikely that all 32 out of 32 judges were "arrogant" individuals who "... threaten the stability of our nation and the rule of law."

Perkin's 57% value refers to the vote by the public on the Marshall-Newman Amendment to the state Constitution in 2006. This was the amendment that banned SSM in Virginia. It was passed by a vote of 57% in favor and 43% opposed, indicating strong opposition to SSM at the time. However Perkins may be unaware that three polls taken by three different polling companies during 2013 show that SSM is now supported by an average of 54% of the voters and opposed by only 37%. Thus, if the Marshall-Newman Amendment were voted on today, it would almost certainly be defeated.

  • Victoria Cobb, president of the Family Foundation of Virginia, described Judge Allen's ruling as:

    "... an emotional outburst. [Its release on the eve of Valentine’s Day] reeks of political show [and a] personal political agenda." 4

  • Byron Babione is a lawyer for Alliance Defending Freedom -- a conservative Christian legal advocacy group that assisted in the defense of the SSM ban. He said:

    "The people of Virginia understand that men and women bring distinct, irreplaceable gifts to family life, especially for children who deserve both a mom and a dad. Understanding that truth, the voters of Virginia approved a constitutional amendment to affirm marriage as the union of a man and a woman. The court’s reasoning, however, would permit nearly every relationship to be a marriage so long as it is grounded in choice and emotion, yet that’s not what marriage or true liberty has ever been." 5

  • Delegate Robert G. Marshall (R), who co-authored the SSM ban, delivered a speech in Virginia's House of Delegates. He called for the judge’s impeachment. He said:

    "Legislating through the courts against the will of the people is lawless disregard for our representative form of government."

Almost everyone -- political, social. and religious conservatives and liberals agree -- that it is the responsibility of the individual states to define who is eligible to marry, and who is not. However, it is a very common belief among political conservatives that Legislatures can pass any legislation -- and that voters can pass any state Constitutional amendment -- to ban SSM and have it pass a constitutional challenge in court. According to their thinking, It doesn't matter if the state laws or amendments violate the U.S. Constitution; they remain binding. If their belief were to become widespread, then we might as well tear up the U.S. Constitution because it would become largely worthless on matters related to individual rights.

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Comparing Loving v. Virginia with Bostic v. Rainey cases:

Comparisons between these two cases are being cited by many observers. In "Loving," the U.S. Supreme Court legalized interracial marriage throughout the U.S. in 1967 in opposition to the opinions of the vast majority of American adults.

In both cases, Virginia law had prohibited marriage based on a long tradition in the state of:

  • Opposition to marriage equality for persons of different races in Loving, and

  • Opposition to marriage equality for persons of the same sex in Bostic.

In both cases, such marriages were legalized by the courts because the state laws violated the equal protection and due process clauses of the 14th Amendment of the U.S. Constitution which require the federal government and state governments to treat people equally.

Judge Allen commented in her ruling:

"Tradition is revered in the Commonwealth, and often rightly so. 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."

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2014-FEB-14: A legal opinion:

David S. Cohen is a law professor at Drexel University. Dahlia Lithwick is a contributing editor at Newsweek and senior editor at Slate Magazine. They wrote an article in Slate.com with the rather enthusiastic title:

"It’s Over: Gay Marriage Can’t Lose in the Courts: A perfect record for equality post-Windsor."

They commented that Judge Allen:

"... joined a unanimous and ever-expanding collection of federal judges who have chosen to answer the question left up in the air by the Supreme Court last Spring: Did the Windsor decision — striking down the federal Defense of Marriage Act — pretty much strike down gay-marriage bans as well? ..."

"Insofar as there was confusion about what Windsor meant at the time it was decided, the lower courts across the country have now effectively settled it. A survey of publicly available opinions shows that in the eight months since Windsor, 18 court decisions have addressed an issue of equality based on sexual orientation. And in those 18 cases, equality has won every single time. In other words, not a single court has agreed with Chief Justice Roberts that Windsor is merely about state versus federal power. Instead, each has used Windsor exactly as Justice Scalia 'warned' — as a powerful precedent for equality. ..."

"This hasn’t all been about marriage. Twelve decisions have addressed a substantive aspect of marriage equality since Windsor, and equality has won in all 12 -- with the Virginia decision now joining decisions from Kentucky, New Mexico, Oklahoma, Utah, and West Virginia, and two decisions each in Illinois, New Jersey, and Ohio. But six other cases since Windsor have addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits, and the side of equality has won in all six of those cases as well.

"The tally is even starker when you look at the number of judges who have considered the issue.  Since Windsor, in these 18 decisions, 32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed. 3

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Brock Vergakis, "Judge: Va. Same-Sex Marriage Ban Unconstitutional," ABC News, 2014-FEB-14, at: http://abcnews.go.com/
  2. David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at: http://dailycaller.com/
  3. David S. Cohen and Dahlia Lithwick, "It’s Over: Gay Marriage Can’t Lose in the Courts: A perfect record for equality post-Windsor," Slate, 2014-FEB-14, at: http://www.slate.com/
  4. Robert Barnes & David A. Fahrenthold, "Who’s the judge who ruled on Va.’s ban on gay marriage? A seeker of ‘more perfect’ freedom," Washington Post, 2014-FEB-14, at: http://www.washingtonpost.com/
  5. Brock Vergakis, "Judge: Va. Same-Sex Marriage Ban Unconstitutional," ABC News, 2014-FEB-14, at: http://abcnews.go.com/

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How you got here

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Virginia > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-FEB
Latest update: 2014-APR-12
Author: B.A. Robinson

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