Friday, February 14, 2014


Now, Virginia Is Really for Lovers!

U.S. District Judge Arenda L. Wright Allen has struck down Virginia's voter-approved constitutional amendment banning same-sex marriage and recognition of such unions performed elsewhere.

In a nice touch, Judge Allen opened her opinion with a quote:
We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is? ... I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. 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.

- Mildred Loving, "Loving for All," Public Statement on the 40th Anniversary of Loving v. Virginia (June 12, 2007).
Once again, there are people at the heart of the case:

Plaintiffs Timothy B. Bostic and Tony C. London live in Norfolk, Virginia, where they own a shared home. Mr. Bostic is an Assistant Professor of English Education in the Department of English at Old Dominion University in Norfolk, Virginia. He teaches English Education to undergraduate students.

Mr. London is a veteran of the United States Navy. He also worked as a real estate agent in Virginia for sixteen years.

Mr. Bostic and Mr. London have enjoyed a long-term, committed relationship with each other since 1989, and have lived together continuously in Virginia for over twenty years. They desire to marry each other, publicly commit themselves to one another, participate in a State sanctioned celebration of their relationship, and undertake the solemn rights and responsibilities that Virginia's Marriage Laws confer presently upon other individuals who marry. ...

Plaintiffs Carol Schall and Mary Townley live in Chesterfield County, Virginia, with their fifteen-year-old daughter, E. S.-T. Ms. Schall is an Assistant Professor in the School of Education at Virginia Commonwealth University ("VCU") in Richmond, Virginia. She specializes in research on teaching autistic children.

Ms. Townley is the Supervisor of Transition at Health Diagnostic Laboratory, Inc. ("HDL"). She trains individuals with significant disabilities so that they may work at HDL.

Ms. Townley and Ms. Schall have enjoyed a committed relationship since 1985. They have lived together continuously in Virginia for almost thirty years.

In 2008, Ms. Schall and Ms. Townley were legally married in California. ...

Ms. Townley gave birth to the couple's daughter, E. S.-T., in 1998. During her pregnancy, she was admitted to the emergency room at VCU's Medical Center due to complications that left her unable to speak. Ms. Schall was denied access to Ms. Townley, and could obtain no information about Ms. Townley's condition, for several hours because she is not recognized as Ms. Townley's spouse under Virginia law. ...

Since E. S.-T.'s birth, Ms. Schall has yearned to adopt her. Virginia law does not permit second-parent adoption unless the parents are married. Because Ms. Schall is not considered to be Ms. Townley's spouse, Ms. Schall is deprived of the opportunity and privilege of doing so.
Judge Allen then details a rather long list, on page 6 and 7 of the decision, of the benefits that same-sex couples are given that are denied to Ms. Schall and Ms. Townley and the emotional and economic tolls they suffer as a result.

Good, decent, loving couples, loving parents, loving people, should not be so burdened. As Judge Allen put it:
Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: "It can not have failed to strike you that these men ask for just ... the same thing—fairness, and fairness only. This, so far as in my power, they, and all others, shall have. "

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.

Any chance this will get to the Supreme Court?
There is such a flood of these cases that it is hard to see how SCOTUS can ignore them. The cases have to make it through the Circuit Courts of Appeal first and should one Circuit disagree with another, SCOTUS will be all but required to take it up. Even if the Circuits all agree, it seems likely that SCOTUS will take it on either in the 2015 term or, at the latest, the 2016 term.

I'm still predicting that Kennedy, despite his reluctance in Windsor to "go all the way," will bite the bullet and find a due process and equal protection right to SSM. I think he could be joined by Roberts, who is, reportedly, very concerned with the legacy of "his" Court. Given the prevailing winds, Roberts might be loathe to have, in the future, his name mentioned in the same breath as Roger B. Taney and Dred Scott.
Could it be one of those cases where the Court decides it is outside their remit and that it is for Congress to make new law?
Could it be one of those cases where the Court decides it is outside their remit

Theoretically, the Court could say that the definition of "marriage" is up to the states and there is some language in Windsor in support of the idea. But, then, there is strong language in Windsor to the effect that a government cannot discriminate against people in terms of the benefits and responsibilities of marriage just because those people are in a marriage that the government does not recognize. SCOTUS couldn't really defer to Congress because Windsor already says that Congress doesn't have the power to determine who is or isn't married if it involves due process and equal protection rights under the Constitution.

Absent some truly bizzare ruling, at worse the Court would wind up creating de facto gay marriages everywhere, whereby gays would just have to go to a state that allows such marriage and then return to their state where they would have to be given all the rights of marriage.

As I noted, but think it is unlikely, another thing SCOTUS could do, especially if all the Circuit Courts of Appeal hearing the lower court cases agree ... one way or the other ... is continue to duck the question.
Post a Comment

<< Home

This page is powered by Blogger. Isn't yours?

. . . . .


How to Support Science Education