Who’s the judge in Va. gay-marriage ban case? A seeker of a ‘more perfect’ freedom.

Arenda L. Wright Allen made history in 2011 by becoming the first black woman nominated to serve as a federal district judge in Virginia. On Thursday, she cemented her legacy with a sweeping decision striking down Virginia’s ban on same-sex marriage in a moment she said makes “our freedom more perfect.”

The 53-year-old jurist, nominated by President Obama, joins an unbroken string of federal judges to side with same-sex marriage proponents since the Supreme Court delivered gay rights victories on the subject in June.

But her forceful and sometimes grandiose 41-page ruling — issued on the eve of Valentine’s Day and including an unapologetic defense of a federal judge’s duty to strike down a democratic decision that may intrude on constitutional rights — seemed to draw special attention.

Victoria Cobb, president of the Family Foundation of Virginia, labeled the ruling “an emotional outburst.” The release of the ruling the night before Valentine’s Day, she said at a news conference, “reeks of political show” and a “personal political agenda.”

The ruling prompted Del. Robert G. Marshall (R-Prince William), co-author of the ban, to call for the judge’s impeachment.


Judge Arenda Wright Allen (AP)

“Legislating through the courts against the will of the people is lawless disregard for our representative form of government,” Marshall said in a speech on the House of Delegates floor.

But Washington lawyer Theodore Olson, who with David Boies has led the campaign to secure a constitutional right to marriage that states may not deny to gay couples, called it “a beautiful opinion.”

“I hope everyone in this country will read it,” Olson said.

The attention is new for Wright Allen, who is just starting her judicial career.

The Philadelphia native spent decades as a government lawyer: first for the Navy’s Judge Advocate General’s Corps, then as a federal prosecutor and finally as a public defender. She is married to a retired professional soccer player from Jamaica and has two children — one of them named for the Greek musician Yanni.

When Wright Allen testified about her career before the Senate Judiciary Committee, she brought her pastor from the 300-year-old First Presbyterian Church in Norfolk. Besides her husband, Delroy Anthony Allen, the prospective judge said the Rev. Jim Wood was “probably the closest man in my life.”

“I first have to thank God, because it’s clear to me that if it weren’t for him, I would not be here,” Wright Allen said then.

But in her judicial opinion, she noted the difference between religious faith and secular laws.

No doubt Virginia’s laws limiting marriage to a man and a woman “were rooted in principles embodied by men of Christian faith,” Wright Allen wrote. “However, although marriage laws in Virginia are endowed with this faith-enriched heritage, the laws have nevertheless evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia, with protections and benefits extended to portions of Virginia’s citizens.”

Much of Wright Allen’s legal career, as a lawyer and a judge, has been spent working on the gritty details of criminal cases. She prosecuted weapons smugglers. She defended accused murderers. She sentenced child pornographers.

After graduating with a law degree in 1985 from North Carolina Central University, a historically black university in Durham, N.C., Wright Allen served in the Navy’s legal corps until 1990. She remained in the Navy Reserve, retiring in 2005 with the rank of commander.

Wright Allen spent 15 years as a federal prosecutor in Virginia, based mainly in Norfolk. She became a federal public defender in 2005, also based in Norfolk. Over five years, Wright Allen told the Senate Judiciary Committee, she represented about 500 people facing felony charges.

During that Senate hearing, Wright Allen said she’d met her husband when they both were students at Jacksonville University. “We were pen pals for 12 years before we dated for two months, and then married for seven years before we had our two children. So he is a friend, then a brother, then my boyfriend, my husband and now the perfect father of my two children,” she testified. She said that her husband had left his job to stay home with their younger son after the boy was found to be autistic.

Wright Allen was confirmed by the Senate by a vote of 96 to 0 in early 2011. Since then, she has handled the same kind of low-profile cases that she’d handled as a lawyer. As a judge, Wright Allen has a conversational style, often talking to defendants without the solemn distance that many judges favor.

Wright Allen seemed to show little empathy for a man convicted in a child-pornography case. The man, who had been accused of luring underage girls into making lurid videos, told the judge that he didn’t need jail. “All I need is the Lord, some good Christian fellowship and my family,” he said.

Wright Allen gave him 30 years.

“You mentioned wanting Christian fellowship. You can have that while you’re in BOP [the Federal Bureau of Prisons],” Wright Allen said, according to the Daily Press newspaper in Virginia.

Wright Allen’s opinion on the same-sex marriage ban, on the other hand, seemed to be written with the history books in mind.

It began with an extended quotation from 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.

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 Loving and her white husband, Richard, were convicted of violating Virginia’s Racial Integrity Act.

“Tradition is revered in the Commonwealth, and often rightly so,” she wrote. “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.”

After quoting Lincoln that men ask 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.”

(Wright Allen also issued an amended ruling Friday morning, after several commentators pointed out the mistake, 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 Anthony M. Kennedy, the justice who has authored the court’s most important victories for gay rights — 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 that 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.

Alice Crites, Rachel Weiner and Laura Vozzella contributed to this report.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
David A. Fahrenthold covers Congress for the Washington Post. He has been at the Post since 2000, and previously covered (in order) the D.C. police, New England, and the environment.
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