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Virginia’s Same-Sex Marriage Ban Ruled Unconstitutional by Federal Judge

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We have seen it happen in Utah and Oklahoma. Now the cleansing hand of justice has come to Virginia.

With homophobic former Attorney General Ken “Oral sex is of the devil” Cuccinelli out of the way, Virginia’s new Attorney General Mark R. Herring, a Democrat who himself once voted against same-sex marriage, said, in January, that he believed his state’s same-sex marriage ban was unconstitutional. As The Washington Post reported, he said that he would ask a federal court “to strike it down.”

On Thursday night, a federal Judge did just that, ruling that Virginia’s same-sex marriage ban was unconstitutional. In her decision, Judge Arenda L. Wright Allen of the United States District Court for the Eastern District of Virginia, in Norfolk, pointed out that the United States Constitution declares that ‘all men’ are created equal.” She asked, “Surely this means all of us.”

While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary’s noblest endeavors is to scrutinize laws that emerge from such roots.

Take that, Republican Party.

Judge Wright Allen, a 2011 Obama nominee, said for everyone to hear that marriage is a “rigorously protected fundamental right” protected by the 14th Amendment and that “the right to marry is inseparable from our rights to privacy and intimate association.” She rejected Republican claims that gay rights activists are somehow creating a new and “threatening” right and pointed out that,

Plaintiffs ask for nothing more than to exercise the right that is enjoyed by the vast majority of Virginia’s adult citizens. They seek ‘simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.

It is of profound importance that the Republican Party claims to reject government interference in our lives, because Judge Wright Allen pointed out that anti-marriage equality laws “interject profound government interference into one of the most personal choices a person makes” and that “such interference compels careful judicial examination.”

She rejected claims that the same-sex marriage ban was a means of combating fraud committed with the intent of qualifying for benefits “for which they would otherwise not qualify” and pointed out that “Virginia’s purported interest in minimizing marriage fraud is in no way furthered by excluding one segment of the Commonwealth’s population from the right to marry based upon that segment’s sexual orientation.” Nor, she ruled, was appeal to long-standing tradition a justifiable defense of “a constitutionally infirm law.”

Next to go was the claim that marriage is for the children and that banning same-sex marriage protects the children from being taught that gay couples are as good as heterosexual couples. The judge pointed out that the marriage of gay couples won’t influence “whether other individuals will marry, or how other individuals will raise families.” She ruled that “The ‘for-the-children’ rationale rests upon an unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents,” and dismissed the claim that marriage is for children alone, writing that,

Finally, the ‘for-the-children’ rationale misconstrues the dignity and values inherent in the fundamental right to marry as primarily a vehicle for ‘responsibly’ breeding ‘natural’ offspring. Such misconstruction ignores the profound non-procreative elements of marriage, including ‘expressions of emotional support and public commitment,’ ‘spiritual significance,’ and ‘expression of personal dedication.’

Yes, Virginia, people do get married for reasons other than having children. My best friend and his wife are two of those people. This Republican claim begs for state constitutional amendments banning any marriage in which children are not planned and clearly this was realized, as the judge pointed out then that the legislation “marriage should be limited to opposite-sex couples ‘whether or not they are reproductive in effect or motivation’ ”

Nothing like the old Republican double-standard.

Probably more infuriating still for Republicans is that the judge called marriage “a sacred social institution” in her conclusion, while, of course, conservatives claim that marriage is a religious institution – one apparently belonging exclusively to aberrant Christians like themselves.

In her ruling Judge Wright Allen appealed more than once to the Constitution, saying that “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.”

Intended or not, this is a slap at Tea Party pretensions that “We the People” applies only to certain people, namely, white Christians.

Thus, in striking down Virginia’s 2006 constitutional amendment against same-sex marriage, Judge Wright Allen said that the United States has “arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.”

Well, almost at the moment. As The Washington Post reports, Judge Wright Allen stayed her decision “pending appeal to the U.S. Court of Appeals for the 4th Circuit in Richmond,” which means no same-sex marriages for the moment. Virginia Attorney General Mark R. Herring will meanwhile continue to enforce the ban on same-sex marriage.

Victories like that just won in Virginia are stepping stones in smashing the absurd conservative arguments raised against marriage equality. Bigots, of course, say they will fight on, even as they continue to lose in state after state. For the record, at the moment, same-sex marriage is legal in 17 states (not counting Utah and Oklahoma, whose cases are pending appeal), and courts in New Jersey and New Mexico have said that gays and lesbians in those states have a right to be married.

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Hrafnkell Haraldsson

Hrafnkell Haraldsson, a social liberal with leanings toward centrist politics has degrees in history and philosophy. His interests include, besides history and philosophy, human rights issues, freedom of choice, religion, and the precarious dichotomy of freedom of speech and intolerance. He brings a slightly different perspective to his writing, being that he is neither a follower of an Abrahamic faith nor an atheist but a polytheist, a modern-day Heathen who follows the customs and traditions of his Norse ancestors. He maintains his own blog, A Heathen's Day, which deals with Heathen and Pagan matters, and Mos Maiorum Foundation www.mosmaiorum.org, dedicated to ethnic religion. He has also contributed to NewsJunkiePost, GodsOwnParty and Pagan+Politics.

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