Federal Judge Makes Landmark Gay Marriage Ruling

A federal judge in Virginia made a significant contribution to the legal community this week by taking a road less traveled to reject the State’s ban on gay marriage.  U.S. District Judge Arenda L. Wright Allen found that Virginia’s marriage laws “unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry,” and overturned a long-standing ban on same-sex marriage.  Judges rejecting laws that limit or ban gay marriage is nothing new, however, the legal strategy Judge Allen employed attaches constitutional protection that, if adopted by the Supreme Court, would overturn all laws prohibiting gay and lesbian couples from getting married.

Recent Cases Overturn Gay Marriage Bans

The Supreme Court’s notable decision to reject provisions of the Defense of Marriage Act (DOMA) that limited federal benefits to homosexual couples in last year’s United States v Windsor stands out as a significant ruling to gay rights activists, however, the Justices hesitated to grant constitutional protection to same-sex couples that would apply to state law.  Although the majority opinion in Windsor provided compelling verbiage to support the notion that gay marriage deserves federal protection, the foundation for Windsor was built on federalism, leaving the question of whether or not gay and lesbian unions are legal up to each individual state.

In December of 2013, a federal court in Utah and the New Mexico Supreme Court issued legal rulings that went further than Windsor by extending a measure of constitutional protection to same-sex marriage under the Equal Protection Clause.  The Equal Protection Clause of the constitution protects Americans from discriminatory government action, and ensures that laws cannot single out or mistreat populations because of their race, gender, or religious affiliation.  As applied to the gay marriage decisions, the Utah and New Mexico courts reasoned that marriage laws which denied the benefits of marriage did so based on the gender of the participants, and were therefor protected by the constitution.  Embracing gay marriage under the Equal Protection Clause is a sensible legal argument, however, it is not the foundation of Judge Allen’s recent decision to overturn Virginia’s anti-gay marriage law.

Gay Marriage a “Fundamental Right”

In ruling against Virginia’s ban on same sex couples, Judge Allen conferred upon gay marriage the protections owed a “fundamental right” protected by the Due Process Clause of the Constitution – the same protection afforded the institution of marriage generally.  Although Windsor was grounded in federalism and did not provide constitutional protection to same sex marriage, Judge Allen took note of the language the Supremes used in support of gay marriage and quoted the Court’s decision to justify her position.  Believing that the constitution grants upon every citizen the right to make private decisions such as marriage, Judge Allen created a new fundamental right that no other court has yet recognized. 

Classifying same-sex marriage as a fundamental right is a strong step, and it will not easily withstand review by a higher court.  The Supreme Court has defined fundamental rights as those “deeply rooted in this Nation’s history and tradition,” and, fairness questions aside, gay marriage is not so firmly entrenched.  In fact, the opposite is more likely to be the case.  Virginia has not allowed same-sex marriages since it became a colony over 400 years ago, and states across the country have a similarly exclusionary history – a pattern of discrimination that the Equal Protection Clause is tailor made to overcome.  Judge Allen's decision notes that American principles are, and historically have been, ones that grant equality of treatment to all citizens, however, the historical approach to gay marriage and the legal definition of fundamental rights sows a tough road for her decision to hoe when higher courts review the decision further.

Legal Questions Remain on Gay Marriage Laws

Deciding which provision of the constitution protects gay marriage may seem semantic, and in practice either the Equal Protection Clause or the Due Process Clause may be able to provide sufficient basis to overturn any ban on same-sex marriages that states can come up with.  However, the distinction between the two is legally significant because a particular state law can survive an Equal Protection review when it allegedly discriminates based on gender whereas it is all but impossible for a law to survive constitutional review when it denies a fundamental right.  The Supreme Court has different standards when it reviews laws to determine whether or not they pass constitutional mustard, and fundamental rights are given a more strict level of scrutiny than laws that have a discriminatory effect across gender lines.  By declaring the right to marry someone of the same gender is fundamental, same-sex marriage will effectively be impervious to any attempt at a legal ban.

Of course, the Virginia decision will not influence federal law, or the law of any other state, unless it is affirmed by the Supreme Court – which will inevitably will have more to say on the question of gay marriage, but may find its vessel elsewhere.  The decision is still significant because the unique protection afforded gay marriage stands as the strongest affirmation of same-sex unions, and it could set a trend adopted by other jurisdictions.  As it stands, Judge Allen’s ruling serves as yet another measure of support for gay marriage from the judiciary, and raises last legal questions that will need to be addressed by the Supreme Court sometime in the future.

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