Before the movement for marriage equality began to gather steam Virginia, like a slew of other states, banned same sex-marriage either with laws or constitutional amendments or in the case of North Carolina, both.
For instance in 2006 through a referendum Virginians voted to amend their Constitution to outlaw same-sex marriage. Actually that amendment was rather sweeping, not only defining marriage as exclusively a union between a man and woman, but also prohibiting civil unions and all other contracts to “which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”
But some of those states’ constitutional amendments and laws, following the U.S. Supreme Court’s 2013 opinion in U.S. v. Windsor, are looking increasingly vulnerable.
The Virginia ban was challenged last year on the grounds of violating the Due Process and Equal Protection Clauses of the 14th Amendment by two couples. Tim Bostic and Tony London have been together for 24 years. Carol Schall and Mary Townley have been together for 30 years. Even though Schall and Townley were legally wed in California, Virginia’s constitutional ban meant it would not recognize those same-sex marriages. The couples’ challenge to the constitutional amendment was considered in the District Court for the Eastern District of Virginia earlier this month.
Judge Arenda Wright Allen on Thursday found Virginia’s ban to subvert the U.S. Constitution’s Due Process and Equal Protection Clauses. In her ruling, Wright Allen wrote, “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices – choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”
She added that Virginia state officials could not justify the ban on same-sex marriages without narrowly drawn compelling state interests. Instead, Wright Allen said Virginia’s prohibition on same-sex marriages deprived same-sex couples of choosing to wed “without furthering any legitimate state purpose.” The judge stayed her ruling, however, to allow for the appeals process to move forward. If the U.S. Court of Appeals for the Fourth Circuit were to uphold Wright Allen’s opinion it would apply to other states within the Fourth Circuit’s jurisdiction that prohibit same-sex marriage -- West Virginia, North Carolina and South Carolina.
A federal judge has also recently invalidated Kentucky law barring recognition of same-sex marriages for residents, even if their marriages were lawfully performed in other states. In Oklahoma and Utah, same-sex marriage bans were declared unconstitutional under the Due Process and Equal Protection Clauses. In Utah, more than 1,000 same-sex couples finally were able to enjoy the right to marry, until the Supreme Court abruptly ordered a stay of the ruling. Furthermore, those recently married couples found themselves retroactively stripped of recognition by the state. A glimmer of hope was provided by U.S. Attorney General Eric Holder, who stated that the Department of Justice would recognize the marriages now in limbo. As a result, the recently married same-sex couples are eligible for the same federal benefits opposite-sex married couples enjoy. To avoid a similarly harmful situation, the federal court in Oklahoma delayed its ruling. Both cases are now being reviewed by the U.S. Court of Appeals for the Tenth Circuit.
In Windsor, the high court dealt a blow to discrimination of same-sex couples by the federal government when it invalidated a major provision of the so-called Defense of Marriage Act or DOMA. Justice Kennedy’s majority opinion, however, made repeated reference to states’ rights in defining marriage, “By history and tradition the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” DOMA was declared unconstitutional in part because the federal government refused to recognize that Edith S. Windsor and Thea Spyer were legally wed in the state of New York. The majority opinion was a blend of federalism and Due Process Clause of the Fifth Amendment, which failed to provide an explicit Equal Protection analysis. As a result, gay individuals were not referenced as a “suspect class.” Thereby the standard of review was not raised to intermediate scrutiny, which would require laws targeting sexual orientation must be demonstrated to serve an important government interest.
The Windsor ruling thus was not conclusive on whether states violate federal constitutional protections by banning same-sex marriage. Yet federal courts across the country are moving in the direction of marriage equality, in part based on the Windsor ruling. The federal judge in Oklahoma voided the same-sex ban by declaring, “The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently… this Court knows a rhetorical shift when it sees one.” The federal judge had interpreted the ruling in Windsor and previous Supreme Court cases as signals that due process and equality cannot be easily trampled by states’ rights.
The tension between states’ rights and equality has not been clearly resolved regarding same-sex marriage. If we stand for equality for all, irrespective of sexual orientation, it must be for each and every United States citizen.
As Justice Kennedy eloquently wrote in the landmark case Lawrence v. Texas, the Constitution’s framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”