The push toward full marriage equality took another big step forward in Virginia on Thursday evening, just in time to make Valentine’s Day that much more happy for LGBTs and their allies. In a very readable, very well-written 41 page opinion, US District Judge Arenda L. Wright Allen (Eastern District of Virginia) struck down various Virginia laws and the 2006 constitutional amendment that prohibited same sex couples from getting married in Virginia and those who were married elsewhere from having their marriages recognized within the state.
[Musical Accompaniment to this post is here. Open it in another tab, then come back to finish reading]
Wright Allen is a gifted writer, and prefaces her judicial opinion in Bostic v Rainey in an unusual manner — she included a quotation on the title page from Mildred Loving, one half of the couple that brought the landmark suit Loving v. Virginia that ended the ban on interracial marriage:
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.
– Mildred Loving, “Loving for All”
As if that wasn’t a strong enough signal about where this opinion was headed, Wright Allen makes it plain in the very first paragraph:
A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Declaration of Independence recognizes that “all men” are created equal. Surely this means all of us. While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary’s noblest endeavors is to scrutinize laws that emerge from such roots.
Before this Court are challenges to Virginia’s legislated prohibition on same-sex marriage. Plaintiffs assert that the restriction on their freedom to choose to marry the person they love infringes on the rights to due process and equal protection guaranteed to them under the Fourteenth Amendment of the United States Constitution. These challenges are well-taken.
You can read the opinion for yourself, or the various write-ups about it that tell you What It All Means. For me, the most powerful parts of her opinion are where she makes a powerful point in the text itself, and then adds to it with a footnote. Unlike footnotes that merely identify sources, legal footnotes often give an additional take on the main text — a little tangent, a little background, or (most delightfully) a little skewering of someone or something the author deems to need skewering.
I delight in the footnotes of legal opinions, and Judge Wright Allen did not disappoint.
From p 24, where she goes after the “we’re defending tradition!” nonsense put forward by the opponents of equality:
At oral argument, counsel for Intervenor-Defendant McQuigg contended that “[m]arriage is not constitutional because it’s ancient. It’s ancient because it is rational and it [has] animated the laws in this country and in this Commonwealth since the very beginning.” Tr. 52:1-4, ECF No. 132. While no one disputes that some persons have enjoyed the right and privilege to marry since ancient times, beliefs based on ancient roots that this exercise should properly remain limited to one portion of our population, however dearly held, contribute little to the judicial endeavor of evaluating whether the purported state interests in such timelines are sufficiently important to rationalize the impact of the Marriage Laws under current scrutiny. Other profound infringements upon our citizens’ rights have been explained as a consequence of heritage, and those explanations have been found wanting. Interracial marriage “was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.” Casey, 505 U.S. at 847-48; see also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010) (recognizing that the Supreme Court rejected race restrictions despite their historical prevalence because the restrictions “stood in stark contrast to the concepts of liberty and choice inherent the right to marry”).
For a lawyer to stand up in a federal courtroom in Virginia of all places and argue that the state cannot reshape its definition of marriage is about the stupidest legal argument a lawyer could make, as Wright Allen gently but firmly points out here. (Of course, the way things are going in Kansas these days, I would not be surprised to see their state AG argue in the near future that Brown v. Board of Education was wrongly decided and should be overturned. But that’s another post . . . )
That reference to Perry — not to the final SCOTUS opinion, but to the brilliant district court opinion written by Vaughn Walker — is a powerful one as well. When Perry made its way up the appellate ladder, bmaz noted that while the case moved ahead, Walker’s opinion was stripped of much of its power by the ruling of the 9th Circuit Court of Appeals:
By basing [their ruling] on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.
At the time, I agreed with bmaz, and the later SCOTUS handling of Perry only reinforced my agreement. After reading Judge Wright Allen’s opinion, however, it is clear that Vaughn Walker’s meticulous work did not go unnoticed elsewhere in the legal community. She repeatedly cites his district court opinion, and she went to the same equal protection basis for her ruling that Walker did. I’m glad to see Walker get his due.
Another beauty of a footnote is on the bottom of page 31, taking on the assertion put forward (poorly) by the opponents of equality that children are better in opposite sex households. Indeed, she says that they’ve missed the point:
See, e.g., Brief for Amici The Am. Psychological Ass’n, et al. at 18-26, Windsor v. United States, 133 S. Ct. 2675 (2013) (No. 12-307); Brief for Amici The Am. Psychological Ass’n, et al. at 22-30, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144); Brief for Amicus The Am. Sociological Ass’n at 6-14, Windsor v. United States, 133 S. Ct. 2675 (2013) (No. 12-307); Brief for Amicus The Am. Sociological Ass’n at 6-14, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144). This Court notes that the Amici Professors in this case did not refute this research, but represented only that more research would be beneficial.
That last sentence is priceless. “You can assert whatever you want,” she tells them, “but you’ve got to deal with facts.”
Near the end she writes “Justice has often been forged from fires of indignities and prejudices suffered” and then in a footnote lays out some of the landmark legal cases where that justice was forged:
See Powell v. State of Ala., 287 U.S. 45 (1932) (guaranteeing legal counsel in criminal proceedings in state and federal courts); Shelley v. Kraemer, 334 U.S. 1(1948) (prohibiting courts from enforcing “restrictive covenants” that prevent people of a certain race from owning or occupying property); Brown v. Board of Ed. of Topeka, 347 U.S. 483 (1954) (allowing desegregation of schools); Gideon v. Wainwright, 372 U.S. 335 (1963) (finding defendants in criminal cases have an absolute right to counsel); Heart of Atlanta Motel, Inc. v. United Slates, 379 U.S. 241 (1964) (finding that any business participating in interstate commerce would be required to follow all rules of the federal civil rights legislation); Loving v. Virginia, 388 U.S. I (1967) (finding prohibition on interracial marriage unconstitutional); Reed v. Reed, 404 U.S. 71 (1971) (finding for the first time that a law that discriminates against women is unconstitutional); Frontiero v. Richardson, 411 U.S. 677 (1973) (striking down a federal statute that automatically granted male members of the uniformed services housing and benefits for their wives, but required female members to demonstrate the “actual dependency” of their husbands to qualify for the same benefit); Craig v. Boren, 429 U.S. 190 (1976) (adopting a “heightened scrutiny” standard of review to evaluate legal distinctions based on gender); Dothard v. Rawlingson, 433 U.S. 321 (1977) (invalidating Alabama’s height and weight requirements for prison guards that have the effect of excluding the majority of female candidates); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (finding affirmative action unfair if it resulted in reverse discrimination); United States v. Virginia, 518 U.S. 515 (1996) (ruling that the all-male Virginia Military Institute’s discriminatory admissions policy violated women’s equal protection rights).
That’s quite a roll call no matter where you live, but that last one (the VMI admission case) really twists the knife in the hearts of the traditionalists, conservatives, and Tenth Amendment lovers in The Commonwealth of Virginia.
And to borrow a phrase, it gets better. The very next sentence in the opinion is “Our triumphs that celebrate the freedom of choice are hallowed,” and she followed this again with a lengthy list of cases in a footnote:
See Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (implying a right to privacy in matters of contraception between married people); Loving v. Virginia, 388 U.S. 1 (1967) (protecting an individual’s choice to marry the person he or she loves); Roe v. Wade, 410 U.S. 113 (1973) (finding an implied right to privacy protects a woman’s choice in matters of abortion); Cruzan by Cruzan v. Dir., Missouri Dept. of Health, 497 U.S. 261 (1990) (finding that while the Constitution protects a person’s right to reject life-preserving medical treatment (their “right to die”), states can regulate that interest if the regulation is reasonable).
Again, that’s quite a list, with three of the four cases are among those that the Catholic church (and increasingly the Baptists and other fundies) absolutely hate. (Only Loving escapes their wrath.) And as the press release issued by the Virginia Catholic Bishops [pdf] makes clear, they are not at all happy with this ruling. (Who knew that Catholic Bishops were such lovers of the tenth amendment? I don’t think I’ve ever seen that in a Roman Catholic bishops’ press release before.)
Back in 2009, Iowa Supreme Court Chief Justice Mark Cady wrote a brilliant opinion for a unanimous state supreme court, striking down similar prohibitions in that state. On Thursday, Wright Allen followed in Cady’s steps, building on the work of Vaughn Walker, and helped bring Mildred Loving’s call for marriage equality one step closer to reality for all.
It gets better.
Step by step, footnote by footnote, judicial opinion by judicial opinion, it just keeps on getting better. Thank you Judge Wright Allen, and now I think I’ve got to sing . . .
h/t for the photo to Roger Sayles aka Serfs Up! and used under Creative Commons Attribution-NoDerivs 2.0 Generic license.