WHAT IS rapidly becoming a cavalcade of federal judges has been unable to find any legal, constitutional, rational or moral basis for upholding state bans on same-sex marriage. Taking their cues both from the Supreme Court, which last year ordered the federal government to recognize such unions from states where they are legal, as well as from challenges brought by same-sex couples in committed relationships, the judges are reaching the conclusion that many other Americans have: Gay men and lesbians have the same fundamental right as heterosexuals to marry whom they choose.
The latest ruling, by Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia, was poignant. Judge Wright Allen, an African American, drew a parallel between Virginia’s long-standing ban on interracial marriage, which was struck down by the Supreme Court in 1967, and the state’s constitutional amendment, adopted in 2006, which defined marriage as exclusively between a man and a woman.
“Tradition is revered in the Commonwealth, and often rightly so,” wrote the judge. “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.”
Public opinion has shifted with incredible speed in favor of allowing same-sex couples to marry; according to a Gallup poll, the percentage of Americans who believe such unions should be valid has more than doubled since 1997 and now constitutes a clear majority. Nonetheless, a hodgepodge of conflicting state laws and constitutional amendments across the country has resulted in an untenable legal status quo whereby marriages and parental rights sanctioned in one state are invalid in another.
In its decision in U.S. v. Windsor last year, which required the federal government to recognize such marriages, the Supreme Court dodged the question of whether the Constitution allowed states to ban them. In his dissent, Justice Antonin Scalia predicted that the court’s half-a-loaf ruling made it “inevitable” that lower courts would apply the same standard to state laws that the Supreme Court had set at the federal level. He was right. That voters in some states do not favor same-sex marriage — or rather, did not favor it some years ago — is losing relevance in the face of a constitutional imperative the high court itself has moved toward.
In the weeks before Judge Wright Allen’s ruling Thursday, federal judges in Utah and Oklahoma reached nearly identical decisions. In Kentucky, a federal judge ruled that the state must honor same-sex marriages performed in other states — even though the state’s constitution prohibits them in Kentucky. In Nevada, the legislature last year took a first step toward repealing that state’s ban on such marriages, which has been in place since 2002. The edifice of discrimination is collapsing, and the legal momentum is gaining strength.
In all likelihood, the Supreme Court will face this issue again relatively soon. Challenges to other states’ bans are working their way through the judicial system; the Virginia decision will likely be appealed to the U.S. Court of Appeals for the 4th Circuit in Richmond, whose jurisdiction extends through much of the South, where state constitutional bans are common. Assuming the Supreme Court eventually weighs in on the question, its decision will be a landmark; by then, it may also come across as something of an inevitability.