RICHMOND, Va. – Voter-approved marriage amendments are under fire in several states now, including Virginia, where a federal judge struck down that state’s protection of traditional marriage by saying it violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
Fifty-seven percent of Virginia voters approved the amendment in 2006, defining marriage as between one man and one woman, but U.S. District Judge Arenda Allen, an Obama appointee, ruled Thursday (Feb. 13) that the right to marry is a rigorously protected fundamental right” for all Americans.
“The right to marry is inseparable from our rights to privacy and intimate association,” Allen wrote.
The judge also concluded, “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…. We have arrived upon another moment in history when We the People become more inclusive, and our freedom more perfect.”
Mat Staver, chairman of Liberty Counsel, called the decision “outrageous and legally flawed.”
“The Constitution cannot be changed by the stroke of a judge’s pen, nor does it bow to a judge’s personal ideology. The overwhelming majority of Virginia voters who make up ‘we the people’ voted to affirm natural marriage,” Staver said.
On appeal, Liberty Counsel will file an amicus brief in the case.
Allen’s decision follows a turnaround by Virginia’s attorney general, Mark Herring, who as a state senator eight years ago supported the marriage amendment but now says he will not defend the law in federal court.
A spokesman for Equality Virginia called the judge’s ruling “an historic day in Virginia,” according to the Richmond Times-Dispatch, and said Virginians “are no longer asking if the freedom to marry the person you love will be a reality, but instead we are asking when.”
Victoria Cobb, president of the Family Foundation of Virginia, lamented the ruling, which, if upheld, could make Virginia the first Southern state to legalize same-sex marriage.
“Regardless of one’s stance on marriage, the people of Virginia were disenfranchised by this ruling as our voice and our vote that amended our Constitution have been rendered meaningless by a judge with the aid and assistance of our own Attorney General,” Cobb said, according to the Times-Dispatch.
“Protecting a timeless institution for the well-being of children was the will of the overwhelming majority of Virginians, and the ruling denies this important state interest as it places the desires of adults over the outcomes of children,” Cobb said.
Much like in the Kentucky case handed down this week, in Virginia language from the U.S. Supreme Court’s landmark decision last year in United States v. Windsor served as a guide.
Justice Anthony Kennedy’s opinion in Windsor “is, in a sense, a road map for the attack now being made by plaintiffs attacking bans on same-sex marriage in state and federal courts around the country,” A.E. Dick Howard, a constitutional law professor at the University of Virginia, told the Times-Dispatch.
Seventeen states allow gay marriage, and 33 have laws protecting marriage between a man and a woman.
Other actions against state marriage amendments include:
In Alabama, a civil rights group sued the state Feb. 13 on behalf of a gay man who says he should be allowed to claim the estate of his husband who died in a car crash. The man seeks the proceeds in a wrongful death case, but Alabama does not recognize him as a surviving spouse. The gay couple married in Massachusetts, Reuters reported.
In Louisiana, four same-sex couples filed a federal lawsuit Feb. 12 challenging Louisiana’s refusal to recognize gay marriages performed in other states. The couples claim Louisiana, by restricting marriage to unions of one man and one woman, is violating the U.S. Constitution’s equal protection and due process guarantees, the Shreveport Times said. Part of their case involves the IRS recognizing same-sex marriages but the state of Louisiana recognizing only traditional marriages.
In Missouri, the American Civil Liberties Union filed a lawsuit asking a state court trial judge to force the state to recognize same-sex marriages from other states. Though the lawsuit does not specifically ask the court to invalidate Missouri’s marriage amendment, experts believe the legal argument used in the case will lead to its ification.
In Indiana, legislation protecting traditional marriage has been delayed by lawmakers who have changed their positions. “We had a number of legislators two years ago who supported this marriage amendment who changed,” Curt Smith of the Indiana Family Institute said. “… They had filled out questionnaires, signed written statements saying they would support this amendment and they flipped this year.”
(EDITOR’S NOTE – Compiled by Baptist Press assistant editor Erin Roach.)