Here’s an interesting little tidbit of news on that front. Virginia — the state where a legal ban on interracial marriage gave rise to the landmark Supreme Court case of Loving v. Virginia, which resulted in the Court declaring such bans unconstitutional — will file a brief this week with the Court arguing that the same Constitutional protections should be applied to same-sex marriage, too.
In one sense, it isn’t that surprising that Virginia will now argue for a Constitutional right to gay marriage. The governor of Virginia, Terry McAuliffe, and its Attorney General, Mark Herring, are both Democrats. And Herring had previously reversed the state’s position by calling for the Courts to strike down the state’s own gay marriage ban.
But Virginia’s excursion into this Supreme Court battle could nonetheless have particular interest for legal and history buffs. That’s because Virginia’s brief will rehash the state’s own history of using federalism as a legal justification for segregation and discrimination — and turn that argument on its head by arguing that the same states-rights argument is being wrongly employed for gay marriage bans today.
Earlier this year, the Supreme Court announced that it would hear cases from four states where lower courts upheld state prohibitions on gay marriage, leading many to speculate that the Court is finally ready to settle whether the Fourteenth Amendment requires states to issue marriage licenses to gay couples, the question at the heart of the case. The Court will also decide whether states must recognize same-sex marriage performed legally in other states.
In 2013, the Court struck down the federal Defense of Marriage Act, which defined marriage as between a man and a woman, on the grounds that it constituted a deprivation of liberty under the Fifth Amendment, and “demeans the couple, whose moral and sexual choices the Constitution protects.” Though the Court stopped short of declaring that all state bans on gay marriage are unconstitutional, many lower-court judges have since relied on the High Court’s reasoning to strike down state bans, unleashing a flood of such decisions.
But a handful of lower-court decisions upheld such bans, leading the Supreme Court to agree to take up the larger question later this spring.
In its brief, Virginia will argue that the state has historically defended the wrong side in previous landmark cases, such as Loving v. Virginia, and Brown v. Board of Education, in which the Court overturned the “separate but equal” ruling in Plessy v. Ferguson. The brief will continue that the very same arguments the state made in defending laws prohibiting interracial marriage and segregating public schools are wrongly being employed in today’s battle over gay marriage:
The arguments offered to defend those unjust laws are the same arguments offered by marriage-equality opponents today. Virginia invoked federalism, arguing that education policy and marriage regulation are quintessentially State prerogatives that federal courts should leave alone. Virginia also invoked history and tradition to justify segregation and anti-miscegenation laws, arguing that such laws were acceptable to the founders because they were commonplace when the Bill of Rights and the Fourteenth Amendment were ratified. But Virginia’s government was wrong then, and the four States that reprise modern-day versions of those faiiled arguments are wrong here.
Virginia will further argue that what’s at issue in this case is the “right of two people to marry — not the right of same-sex couples to marry,” and castigate the state’s previous support for legalized discrimination to build its argument:
The right to marry cannot be restricted to the narrowest context in which it was historically practiced. Otherwise, the Court would not have recognized the right of interracial couples to marry…rejecting the narrowest-historical context theory is crucial to getting the right answer here. Virginia was on the wrong side of Loving and Brown precisely because interracial-marriage bans and segregation were commonplace when the Fourteenth Amendment was drafted. Applying the narrowest-historical-context theory in those cases yielded the wrong answer.
It’s another small indication of how quickly the cultural and legal terrain are shifting on gay marriage — a shift that could culminate in a historic Court decision enshrining a Constitutionally protected right to gay marriage within a few short months.