Fordham Law

Will gay marriage gain foothold in the South with pending Virginia ruling?

Elizabeth Cooper in Daily Press, February 08, 2014

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Virginia's centuries-old ban on same-sex marriage now hangs in the balance as a federal judge in Norfolk weighs whether to strike it down on constitutional grounds.

A ruling against the prohibition would mark the first major foothold by gay marriage proponents in a Southern state, with some scholars saying such a ruling could hold special significance as activists press to undo such laws across the nation.

"If the court strikes down the ban in Virginia, that will have particular resonance given the state's history," said Elizabeth Cooper, an associate professor of law at Fordham University in New York.

That history, for example, includes that the state barred interracial marriages until the U.S. Supreme Court reversed that law in 1967.

"In some ways Virginia doesn't mean anything more than any other state, but it feels like Virginia serves sort of a bellwether kind of function," Cooper said. "Virginia is among the most northern of the Southern states, but it's also often very proudly part of the Old South."

Last summer, two gay couples filed suit, asserting that Virginia's longstanding prohibition on same-sex marriage violates the federal constitution. Since Virginia's formation as a colony more than 400 years ago, only marriages between one man and one woman have been recognized under law.

On Tuesday, U.S. District Judge Arenda L. Wright Allen heard nearly two hours of oral arguments in that case.

Wright Allen, a former federal public defender and federal prosecutor appointed by President Barack Obama, did not give any inkling at the hearing on how she would rule, but promised a decision "soon," emphasizing that word.

Any undoing of the gay marriage ban in Virginia, Cooper said, would not have seemed possible just a few short years ago. Nor would it have seemed possible in Utah and Oklahoma, where judges have recently struck down such laws.

"I think that some people think of marriage between gay people as not necessarily applying to their communities," she said. When the restrictions fall in those states, "it makes people stop and pause and pay attention in a different kind of way."

But Lynn D. Wardle, a law professor at Brigham Young University in Utah, contends that if Virginia's ban is struck down by a federal judge, the mere fact that it's Virginia doesn't hold any special meaning.

Rulings from unelected judges with lifetime appointments don't necessarily reflect the will of the people in those states, Wardle said. The same holds for the Utah and Oklahoma decisions, he said.

"When you have some isolated federal judge with an itch for attention who single-handedly strikes down (Utah's ban), it's hardly the same as saying the people or government of Utah believe that," Wardle said. "It's not a legitimate process for the creation of law."

Gay marriage isn't addressed in the federal constitution, Wardle said, and the document's protections shouldn't be "stretched to cover every political cause that comes along." From the Federalist Papers on, he said, marriage regulation has been left to the states.

"The framers didn't give the national government the authority to regulate marriage," Wardle said. "Marriage laws are a patchwork quilt that varies significantly from region to region around the country. That was by design. It reflects the values of the people at a much more local level, not just in the Beltway around Washington, D.C."

But same-sex marriage proponents, for their part, contend the federal government should protect gay citizens from the whims of the majority. And there have been cases over the years where high courts have delved into states' marriage laws.

A 1967 U.S. Supreme Court decision, Loving v. Virginia, invalidated a state law under which an interracial couple in Caroline County was charged with "cohabitating as man and wife, violating the peace and dignity of the Commonwealth." The court's ruling tossed interracial marriage bans in Virginia and 15 other states.

The gay rights movement is hoping for a similar landmark ruling that would instantly invalidate same-sex marriage bans in dozens of states.

According to the Washington Post, 33 states now ban same-sex marriage, while 17 states — four more than a year ago — and Washington, D.C., allow it.

The recent decisions in Utah and Oklahoma, where federal judges have overturned those states' gay marriage bans, are now in a sort of limbo. That is, the rulings have been "stayed," or delayed, until higher courts weigh in.

Beyond that, Cooper said, there are more than three dozen constitutional challenges pending in some 20 additional states. Those numbers include the Norfolk case and a similar federal case in Harrisonburg, in Virginia's western district.

Experts predict that the U.S. Supreme Court will weigh in on the matter in the next two years or so, and is likely to select one or more of the current cases to hear.

In the end, the high court could decide that the traditional structure — in which states have been free to define marriage — is perfectly constitutional.

With such a decision, states would be allowed to continue to limit marriage to one man and one woman. And the main battleground, over such things as what's good for children, would shift back to state legislatures.

Or, the high court could rule that same-sex marriage is a "fundamental right," and that, under federal constitutional protections on equal protection and due process, states cannot strip that right from their citizens.

In Virginia, of course, states' rights — the idea that states should be able to mostly run their own affairs free from federal intrusion — has been a rallying cry since the Civil War. Still, Virginia's views on gay marriage appear to be changing sharply.

In 2006, a state constitutional amendment to define marriage as between one man and one woman carried 57 percent of the vote.

But seven years later, a poll from Christopher Newport University indicated a reversal. The October 2013 poll found that a majority of Virginians, or 56 percent, opposed the state's gay marriage ban.

Virginia Attorney General Mark Herring reflects that swing.

As a state senator in 2006, he backed the state constitutional amendment on the definition of marriage. Three weeks ago, however, the newly-elected Herring said the Attorney General's Office will no longer defend the ban, asserting that the state prohibition violates the federal constitution.

That was a change from his predecessor, Ken Cuccinelli, who had strongly defended the gay marriage ban.

According to University of Virginia law professor A.E. Dick Howard, Virginia's shift reflects "a shift in the mood of the country at large."
"It's especially pronounced among younger people," he said. "They take a much more relaxed attitude. There's a growing sense that the (decisions) that people make — who you live with, who you marry, whether you marry or not — are a matter of personal choice … It's a live and let live kind of philosophy about personal choice."

But the changes have gone beyond young people, Howard said. The shift has come, he surmised, because more states have allowed gay marriage without apparent negative repercussions — such as on child-rearing and opposite-sex marriage.

"Things are shifting rather markedly," Howard said. "I can't think of (an issue) where sentiment has shifted so markedly in such a short time."

The plaintiffs in the Norfolk case are being represented by the American Federation of Equal Rights, which successfully challenged California's gay marriage ban. Two nationally prominent attorneys are spearheading the effort: Ted Olson, the former solicitor general under President George W. Bush, and David Boies.

With Herring not defending the state's same-sex marriage ban, the traditonal marriage cause has been taken up by the Alliance Defending Freedom, a Christian-based rights group in Arizona that is representing a Prince William County Circuit Court clerk who intervened in the case.