Judge on Va. gay-marriage ban: ‘When core civil rights are at stake, the judiciary must act’

A federal judge rules Virgina’s same-sex marriage ban unconstitutional - the first among Southern states. (Reuters)

U.S. District Judge Arenda L. Wright Allen asked no questions of the five lawyers who appeared before her last week to argue the constitutionality of Virginia’s ban on same-sex marriage.

It seems clear now that she had already made up her mind from the extensive briefing that came before the hearing.

Wright Allen’s 41-page opinion, which was issued Thursday night, began by quoting Mildred Loving, the wife in the Virginia case that brought an end to bans on interracial marriage, and closed by referencing Abraham Lincoln on fairness.

In between was an unapologetic defense of a federal judge’s role in striking down a democratic decision that may intrude on constitutional rights — in this case, the Virginia constitutional amendment approved by a solid majority of the state’s voters in 2006.

“When core civil rights are at stake, the judiciary must act,” Wright Allen wrote. “Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations, judicial vigilance is a steady beacon searching for an ever-more perfect justice and truer freedoms for our country’s citizens.”


From left, Robert Roman and Claus Ihlemann of Virginia Beach celebrate with Carol Schall, Mary Townley , Tim Bostic and Tony London, a ruling by federal Judge Arenda Wright Allen that Virginia's same-sex marriage ban was unconstitutional during a Friday news conference in Norfolk, Va. (Bill Tiernan/AP)

Such language led quickly to charges of judicial activism and even to calls on the floor of the General Assembly that she be impeached.

“Legislating through the courts against the will of the people is lawless disregard for our representative form of government,” said Del. Robert G. Marshall (R-Prince William), a sponsor of the constitutional amendment that was struck down.

On the other hand, it was a Valentine Day’s bouquet to the lawyers who have forged the legal crusade to have the Supreme Court find a constitutional right to marriage that states may not withhold from gay couples.

“A beautiful opinion,” said Washington lawyer Theodore Olson during a conference call with New York attorney David Boies. “I hope everyone in this country will read it.”

Wright Allen’s ruling repeatedly embraced the comparison the lawyers often made between the bans on same-sex marriage and the 1967 Supreme Court decision that banned interracial marriage after Mildred Loving and her white husband, Richard, were convicted of violating Virginia’s Racial Integrity Act.

Wright Allen’s work stood out for its forceful, sometimes grandiose prose. Quoting Lincoln’s line about men asking for “fairness, and fairness only,” Wright Allen added: “The men and women, and the children too, whose voices join in noble harmony with plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this court’s power, they and all others shall have.”

(After several commentators pointed out the mistake, Wright Allen issued an amended ruling to say that it was the Declaration of Independence, not the Constitution, that contained the proposition that all men are created equal.)

But prose aside, the legal reasoning fell in line with what other federal judges have now said about state bans on same-sex marriage in the wake of the Supreme Court’s June decision in United States v. Windsor, which struck down the part of the Defense of Marriage Act commanding the federal government not to recognize same-sex marriages conducted in the states that allow them.

That 5-to-4 decision, written by the justice who has authored the court’s most important victories for gay rights, Anthony M. Kennedy, had two parts. On the one hand, it noted the state’s role in defining marriage and questioned federal intervention.

But it also made striking references to equality and dismissed arguments that Congress advanced to favor marriage between a man and a woman and ban marriage between gay couples, such as tradition and the unique procreative capabilities of heterosexual unions.

Since that ruling, a unanimous line of federal judges in Utah, Oklahoma, Ohio, Kentucky and now Virginia have said the second part of Kennedy’s opinion trumped the first. All have sided with same-sex marriage proponents.

In fact, Drexel University law professor David S. Cohen wrote Friday in Slate, when other courts and other issues are taken into account, the victories for gay rights supporters are even deeper.

“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,” Cohen wrote with Dahlia Lithwick. “And all 32 of them have found for equality.”

This despite a dissent from Chief Justice John G. Roberts Jr., who said plainly that the court was not deciding whether state bans are unconstitutional.

But another dissent has been more influential. Justice Antonin Scalia, in fiery disagreement with the majority, said sarcastically that the message of the ruling was clear despite its author’s faux modesty, and that state bans would fall.

Wright Allen, like her judicial colleagues, quoted from “the Honorable Antonin Scalia” in her ruling.

Boies said the judges were properly interpreting the decision: “I don’t think you can come out two ways on this.”

Ken Connelly, litigation staff counsel for the Alliance Defending Freedom, the conservative legal group that will be defending Virginia’s law in future appeals, said he didn’t think the opinions of the district judges were “significant.”

When appeals court judges begin to look at the issue, he said, they will recognize the first part of Kennedy’s decision in Windsor: “It held that states still define marriage.”

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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