By Rebecca Glenberg, Legal Director

Just a few hours ago, Judge Arenda L. Wright Allen of the U.S. District Court in Norfolk delivered to Virginia the best Valentine’s Day present it has received in forty-seven years.   Her ruling proclaimed that every person in Virginia has the right to marry the person he or she loves.

But, the fight is not over—in Virginia or nationally.  Judge Wright Allen’s ruling is stayed pending an expected appeal, so it will still be a while before same-sex couples in Virginia will see the constitutional rights recognized in the opinion fully realized.   The class action lawsuit brought by the ACLU, ACLU of Virginia, and Lambda Legal in Harrisonburg is still pending; Judge Wright Allen’s ruling in Norfolk makes us even more optimistic that we will soon have a positive result in that case as well.   Ultimately, the Supreme Court will have to decide this issue.  But last night’s ruling out of Norfolk is a major step forward in the inexorable march to equality.

Legally, Judge Wright Allen’s determination that Virginia’s laws prohibiting marriages for same-sex couples followed a now familiar pattern.  She noted that the Supreme Court has long held marriage to be a “fundamental right” under our Constitution, and that such fundamental rights may not be denied to any person without a compelling justification.   The government has not come up with any such justification in this case.  The notion of “tradition” is no basis for denying important constitutional rights to groups of people; our country has had many long traditions (e.g. denying interracial marriage) that we have later understood to be both morally repugnant and unconstitutional.   The judge also rejected the argument by defenders of the laws that limiting marriage to opposite sex couples somehow protects children.  Even if there were some factual basis to the claim that children are better off when raised by a mother and father—which there absolutely is not—Virginia’s marriage bans do nothing to make it more likely that children are raised in such families.  Instead, they impose severe legal penalties and social stigma on the thousands of children raised by two mothers or two fathers who are unable to marry, or whose marriages are not recognized.

Judge Wright Allen further observed that refusing to extend marriage to same-sex couples violates the Fourteenth Amendment guarantee of equal protection of the law.  Because same-sex couples are the same in every relevant way as opposite-sex couples—in the depth of their attachment, their care for their children, and their need for legal protections—there is no valid reason for treating them differently.

Beyond the legal analysis, the opinion has special resonance for Virginians because it draws extensively on Virginia’s historic anti-miscegenation laws, which the Supreme Court overturned the 1967 ACLU case Loving v. Virginia.  The opinion opens with a long quote from Mildred Loving’s statement on the fortieth anniversary of the Loving case.  She said:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry.  I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. . . . I support the freedom to marry for all. That's what Loving, and loving, are all about.

As Judge Wright Allen’s opinion repeatedly points out, many of the same arguments against allowing marriage between people of the same sex were made decades ago against allowing marriage between people of different races.  The opinion explains that just as some now fear that marriage equality will “dilute” the sanctity of marriage, opponents of interracial marriages cited a need "’to preserve the racial integrity of its citizens,' and to prevent 'the corruption of blood,' 'a mongrel breed of citizens,' and 'the obliteration of racial pride.’”  As our understanding of the freedoms protected by our Constitution progresses, such old fears and prejudices must be cast aside.  As Judge Wright Allen eloquently put it, “Our nation's uneven but dogged journey toward truer and more meaningful freedoms for our citizens has brought us continually to a deeper understanding of the first three words in our Constitution: we the people. ‘We the People’ have become a broader, more diverse family than once imagined.”

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