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    Virginia’s same-sex marriage ban unconstitutional, federal judge says

    Elected last November, Attorney General Mark Herring brought the issue of gay marriage to the forefront of public debate in Virginia in January when he announced the commonwealth would side with two same-sex couples in a lawsuit challenging the commonwealth’s ban. Photo Courtesy/Facebook
    Same-sex couples and friends of the LGBT community received a couple-hours-early Valentine's Day present Feb. 13 when a federal district judge declared Virginia's ban on same-sex marriage to be unconstitutional.

    U.S. District Court Judge Arenda Wright Allen ruled same-sex couples in Virginia have been denied their rights to due process and equal protection guaranteed under the 14th Amendment of the U.S. Constitution.

    Gay couples can't yet be married, however, because Ms. Wright Allen issued a stay with her injunction pending appeal, according Virginia Attorney General Mark Herring.

    "This decision is a victory for the Constitution and for treating everyone equally under the law. It is the latest step in a journey towards equality for all Virginians, no matter who they are or whom they love." Mr. Herring said Feb. 13 in a prepared statement. “When we announced the decision to change Virginia's legal position in Bostic v. Rainey, I said that the case presented fundamental questions that need to be decided by a court, and may ultimately need to be decided by the Supreme Court. That remains true today.

    A spokesman for the attorney general's office said Feb. 17 it's expected the defendants in the landmark case will appeal, but that determination had yet to be announced.

    "A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America," Ms. Wright Allen noted in her opinion. "America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Constitution declares that 'all men' are created equal. Surely this means all of us."

    Virginia voters approved the Marshall-Newman Amendment – the same-sex marriage ban – 57 percent to 43 percent in 2006, but a Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it, according to the Associated Press.

    Seventeen states currently allow same-sex marriage.

    Elected last November, Mr. Herring brought the issue of gay marriage to the forefront of public debate in Virginia in January when he announced the commonwealth would side with two same-sex couples in a lawsuit challenging the commonwealth's ban. The state's previous position, established by former attorney general Ken Cuccinelli, a Republican, was to defend the ban and argue against the same-sex couples.

    "As Virginians, we have much to be proud of," Mr. Herring said. "But too many times in our history our citizens have had to lead the way on civil rights, while their leaders stood against them. This will not be another instance. It's time for the commonwealth to be on the right side of history and the right side of the law."

    The first attorney general elected from Loudoun County, Mr. Herring told the Times-Mirror last year he believes the gay marriage ban in Virginia goes against the U.S. Constitution, despite a 2006 vote supporting the gay marriage restriction in the commonwealth's constitution.

    Democratic Gov. Terry McAuliffe echoed Mr. Herring's message of equal rights and praise for Judge Allen Wright's ruling.

    “In order to grow our economy and attract the best businesses, entrepreneurs, and families to Virginia, we must be open and welcoming to all who call our commonwealth home,” Mr. McAuliffe said. “As this case continues through the judicial process, I will enforce the laws currently on the books, but this decision is a significant step forward in achieving greater equality for all of our citizens.”

    State Del. Bob Marshall, a Manassas Republican who helped author the same-sex marriage ban, quickly lashed out against Ms. Allen Wright's opinion.

    “The decision issued by federal district Judge Wright Allen appropriately issued in the cover of darkness is a syllabus of errors, a compendium of ineptitude, and a farce claiming authority,” Mr. Marshall noted in a statement. “Legislating through the Courts against the will of the people is lawless disregard for our representative form of government.”

    Loudoun County resident and vocal LGBT activist David Weintraub said he “knew back in 2006 that [Ms. Allen Wright's ruling] would be the eventual result.” The Marshall-Newman Amendment “was unconstitutional the day it was enacted,” Mr. Weintraub said.

    “I thought the ruling might come on Valentine's Day - so it's a bit early, and a wonderful gift,” he noted. “There's a good chance this is the one that will end up before the Supreme Court, which is fitting.”

    Mr. Weintraub and his partner Jonathan have been together for more than 30 years and held “several religious [marriage] ceremonies of different faiths,” he said.

    “And for those of us who fought this battle and were on the losing side for so many years, this is pretty sweet vindication."


    Click here to read the judge's ruling.

    --

    This story has been updated from an earlier version. More updates, reaction to come.

    Contact the writer at .(JavaScript must be enabled to view this email address).



    Comments

    Jehovah Jireh | Report this comment

    westLOUDOUNer:  your line of reasoning fails because if it’s OK to “redefine” marriage so that two men who “love” each other can get married, why can’t that apply to other situations?  Why wouldn’t you be clamoring for a polygamist’s right to marry more than one woman, or marriage between a grown man and a 13-year old girl

    —————————————————

    Polygamy is in the bible; we however made it a crime because it leads to abuse of women by men.

    Minors cannot consent to have sex or marry so any comparison there is idiotic. However you can marry a minor in most states with the parents consent and that does go as low as 13 in some states.

    However what you did is compare two crimes to a thing that is legal. Gay sex has not been illegal anywhere in the USA for over 11 years now.

    Society changes and already gays have the small minority but gain ground every year.


    drellis

    “Also the “redefine marriage” argument is horse poop.”

    You wish to nullify a law that defines marriage as a “union between one man and one woman” so isn’t that the same thing as trying to redefine marriage?

    ——————————————————————-

    Why did the anti gay marriage need to rush out and make such laws in the mid 2000s, oh that’s right because there was not definition of man and woman before then in place and they wanted to unconstitutionally block gays from being included. Now these laws are getting over turned one by one in federal court.


    westLOUDOUNer:  your line of reasoning fails because if it’s OK to “redefine” marriage so that two men who “love” each other can get married, why can’t that apply to other situations?  Why wouldn’t you be clamoring for a polygamist’s right to marry more than one woman, or marriage between a grown man and a 13-year old girl (as long as they “love” each other)?  Where do you draw the line at what is love, and what is perversion?  In your own words, “the US is a diverse country”—so surely you would extend your viewpoint to include Muslim men who want to marry young girls and Mormons who want to marry more than one wife?  I am not being glib—I’m merely carrying your rationale out.


    Definition:  Domestic Union or Domestic Contract, the legal joining of two or more individuals.  You can call it whatever you like.


    drellis

    “You keep defining marriage as it is defined in the Bible…”

    So if we don’t base the definition of marriage on the Bible, what do we base it on?  The institution of marriage has been in existence about 3000 years and marriage has always been between a man and a woman.

    ———————————————————————-

    Marriage is a word meaning to merge two things, that is all.

    You are talking about what society sees as a proper marriage, that has changed over and over and over again even in the bible. No longer is it okay to rape a woman so long as you agree to marry her after. Men cannot take multiple wives. Men are not required to marry the widow of our brothers. The church did not even evolve themselves in weddings until the 14th century in western Europe. Before then a couple just got together. In Viking culture one just said we are married, they could also divorce just as easy.

    Welcome to the 21st century, societies in the first world are allowing gays to form households now.


    “support of gay equality is growing at a rapid pace.”

    Sadly I agree with you but in my opinion, that still doesn’t make it right.

    “Also the “redefine marriage” argument is horse poop.”

    You wish to nullify a law that defines marriage as a “union between one man and one woman” so isn’t that the same thing as trying to redefine marriage?


    “You keep defining marriage as it is defined in the Bible…”

    So if we don’t base the definition of marriage on the Bible, what do we base it on?  The institution of marriage has been in existence about 3000 years and marriage has always been between a man and a woman. From now on, should we whimsically “define” marriage according whatever the latest generation wants to say it should be?


    drellis | Report this comment

    “Jeanne T. Thanks for spamming us with hateful nonsense. People in 50 years will see the folks fighting against gay equality as they see the people who use the bible to fight against racial equality.”

    Another spurious and ignorant comment.  Approximately half of the population of the United States oppose legalizing same-sex marriage; you have absolutely no idea how all these millions and millions of people will be “judged” 50 years from now!

    ————————————————————————

    Less than 16% wanted it in 1993 now its 52% as up Gallups 2013 pool and only 43% oppose nation wide.

    Even Quinnipiac (conservative university polls, if you don’t know) finds that in VA 50% support gay marriage while only 43% oppose up from 57% against to 43% for in 2006. The numbers don’t lie support of gay equality is growing at a rapid pace.

    Also the “redefine marriage” argument is horse poop. The definition of marriage is simply merging to things. You don’t like culture shifting to accept gay marriages. Marriage is not owned by religion or by heterosexuals. Its a word meaning to merge things in the human context households and can apply just as easy to a man and woman as to a woman and woman or man and man.


    “Actually, I think a lot of us have a pretty good idea as to exactly how that’s going to go.”

    No, I don’t think you do…and frankly neither do I.


    JJ & drell - This is a Constitutional issue, not a Bible issue.  You keep defining marriage as it is defined in the Bible and it has no place in interpreting the Constitution which separates religion & state.  The US is a diverse country with multiple religions or non/no religions and the laws are enacted to apply equally to all, not the few, not the majority, but all. Do you have a problem with using the term Domestic Union in place of marriage?  Would you agree with equal treatment under a domestic order regardless of gender or familial relationship?


    “Approximately half of the population of the United States oppose legalizing same-sex marriage.”

    When my high-school cafeteria took pepperoni out of its pizza recipe to save money, the weekly menu changed from “pizza” to “pizza with cheese!” You’re doing the same thing, by pointing to 50% of the population taking a view you like, while ignoring that the trend has been consistently down (from about 70% with that view) over the last 20 years. And still falling, btw.

    “you have absolutely no idea how all these millions and millions of people will be ‘judged’ 50 years from now!”

    Actually, I think a lot of us have a pretty good idea as to exactly how that’s going to go.


    Agreed, drellis.  Just because you’re attracted to a member of the opposite sex does not give you the “right” to redefine marriage.  Homosexuality is not the same as race or gender.  Legalizing inter-racial marriage was absolutely the right thing to do because it was still keeping marriage between one man and one woman.  (And if you read the Bible then you know that we are all descended from one race anyway.)


    As I read some of the “pro-gay” comments here there seems to be this notion that if you support Virginia’s constitutional amendment prohibiting same-sex marriage, then you must be a bigot or a homophobe or whatever.  That’s quite a cognitive “leap” to make!  I am not a bigot and I certainly do not hate gays for being gay, yet I am staunchly opposed to any efforts on the part of gays to redefine marriage to accommodate their peculiar lifestyle(and I mean peculiar in a literal sense, not a pejorative one).


    “Jeanne T. Thanks for spamming us with hateful nonsense. People in 50 years will see the folks fighting against gay equality as they see the people who use the bible to fight against racial equality.”

    Another spurious and ignorant comment.  Approximately half of the population of the United States oppose legalizing same-sex marriage; you have absolutely no idea how all these millions and millions of people will be “judged” 50 years from now!


    Jeanne T. Thanks for spamming us with hateful nonsense. People in 50 years will see the folks fighting against gay equality as they see the people who use the bible to fight against racial equality.


    “Antigone went forth with giving her brother a proper burial at the cost of her life. Thoreau went to jail for not paying taxes to support the Mexican-American War. He only spent one night there, and so comparatively got off easy, but that is only because the tax was paid by someone else over Thoreau’s objections. Both Gandhi and King were assassinated. There is a price to pay for bucking the system, and this the business owners exercising their right to conscience know well. Death threats, intimidation and court-levied fines are the order of the day, and more may yet come.

    “But even as those who are pushing the gay rights and gay marriage agenda tout the successes of the Civil Rights movement, harnessing it for their own purposes and own ends, they do it a disservice. By appealing to government to coerce businesses and individuals they undermine the most dramatic achievements of that very movement. They prove themselves utterly divested from the classical liberalism that is their heritage and which espouses the very methods that the A&T Four pursued in Greensboro, and that the boycotters of the Montgomery Bus System used. The respect for King’s appeal to a law higher than that of man is completely disregarded.”

    http://www.americanthinker.com/2014/02/gay_marriage_and_the_next_round_of_civil_disobedience.html


    Yet in the Loving vs Virginia case, SCOTUS used “the 14th’s Due Process Clause and Equal Protection Clause to strike down the VA law prohibiting interracial ‘‘couples’’ from marrying. There is precedence.”

    Perhaps, but a lot depends on whether the Supreme Court will accept the Warren Court’s overly broad interpretation of 14th Amendment “due process” AND whether the Court will find any legal distinction between same-sex marriage and interracial marriage.


    drellis: “A person and a couple are not the same thing! The 14th Amendment says “any person” but does not say anything about couples, married or otherwise.  Why is that so difficult for you to understand?”

    Yet in the Loving vs Virginia case, SCOTUS used the 14th’s Due Process Clause and Equal Protection Clause to strike down the VA law prohibiting interracial ‘‘couples’’ from marrying. There is precedence.


    “Who makes up a married couple? Two persons”

    Wrong answer again west!  Virginia’s constitution says “one man and one woman.”


    westLOUDOUNer, I’m sure you are sincere in your beliefs even if your judgment and reasoning are ill-served by them.


    “Your argument that a person has the right to marry someone of the opposite sex, even though they wish otherwise is laughable.”

    I was trying to illustrate a point that you obviously failed to grasp. Under the law, neither a straight person nor a gay person can marry a person of the same sex…EQUAL protection.


    “Therefore any person other than a hetero married couple is not treated equally, which is contrary to the 14th.”

    A person and a couple are not the same thing! The 14th Amendment says “any person” but does not say anything about couples, married or otherwise.  Why is that so difficult for you to understand?


    “It’s a sad day for the Commonwealth of Virginia when one liberal, activist judge can overturn a state constitutional amendment with the stroke of a pen.”

    Am I the only person here that has a problem with a Philadelphia lawyer using her position as a federal judge to impose her own ideologically-perverse will on the good citizens of Virginia??


    14A provides equal access to all, the VA law creates a discriminated group. That is not only how the federal judge in this case ruled but how they ruled on 16 other cases including Prop 8 in CA and how the supreme court ruled on DOMA. Have you read either ruling?


    drell - Who makes up a married couple? Two persons

    What benefits/rights do each of those persons receive that are not afforded any other couple (either in marriage or domestic union)?  They receive reduced taxes, protection of property, pension benefits, health & death benefits, etc.

    Therefore any person other than a hetero married couple is not treated equally, which is contrary to the 14th.

    PS:  Your argument that a person has the right to marry someone of the opposite sex, even though they wish otherwise is laughable.


    Where in the 14th is marriage mentioned or married to someone of the opposite sex?  It doesn’t

    That’s right, it doesn’t but you seem to contradict yourself.  YOU are the one trying to argue that the 14th Amendment should apply to married couples and not just individuals but then you point out that the 14th Amendment doesn’t mention anything about marriage.  Completely illogical.


    drell - I think you are the one that needs to read the 14th:”

    west, I’ll rephrase the question for you:  Under the law each and every person has the right to marry a person of the opposite sex, so how is “any person” being denied equal protection?


    “It’s your prejudice to same-sex marriage that gets in the way of you thinking clearly.  You are imposing your views on the interpretation of the 14th.”

    west, your whole argument seems to be predicated on a belief that same-sex relationships have already been established to comport with the definition of marriage…nothing could be further from the truth! The very definition of marriage as it relates to same-sex couples is the unresolved issue at the heart of this debate. An amendment to Virginia’s state constitution (which was approved by both houses of the General Assembly and the majority of Virginia citizens)defines marriage as a “union between one man and one woman.” And one liberal judge from Pennsylvania says otherwise.

    I believe that your ideological bias is interfering with your ability to think logically in this case.


    “I think you are the one that needs to read the 14th: “Under the law, how is “any person” denied equal protection if EVERY person has the right to marry another person of the opposite sex?” Where in the 14th is marriage mentioned or married to someone of the opposite sex?  It doesn’t”

    west, the 14th Amendment doesn’t mention anything about marriage one way or the other but that’s not the point.  Under Virginia’s law, same-sex couples may not have the same rights as heterosexual couples, but each and every person has exactly the same rights as every other person in accordance with the Equal Protection clause. 


    drell - I think you are the one that needs to read the 14th: “Under the law, how is “any person” denied equal protection if EVERY person has the right to marry another person of the opposite sex?” Where in the 14th is marriage mentioned or married to someone of the opposite sex?  It doesn’t.  It’s your prejudice to same-sex marriage that gets in the way of you thinking clearly.  You are imposing your views on the interpretation of the 14th.


    David, to add to my last comment to you, since Judge Allen cited the Loving case in her opinion, I suppose the Supreme Court may view the Loving case as a controlling precedent assuming they don’t find any legal distinction between same-sex marriage and interracial marriage (which they probably won’t).


    “That’s not equal protection.”

    west, please go back and read the 14th Amendment and then answer this one, simple question: Under the law, how is “any person” denied equal protection if EVERY person has the right to marry another person of the opposite sex?


    “drellis, I’m sorry; I don’t mean to be condescending. You had made an argument that Loving clearly refutes. I have heard all of these arguments before, and the fact is that they no longer survive constitutional scrutiny, for exactly the reasons Justice Scalia predicted. It was inevitable and only a matter of time.”

    No worries David. As you know, the Supreme Court’s decision in the Loving case was based on how they interpreted 14th Amendment “due process.”  Ultimately the Supreme Court, in deciding a “same-sex marriage” case, will have to determine if the Loving case provides a controlling precedent and if so, whether there is any legal distinction between same-sex and interracial marriages.

    My original point though was that Virginia’s law does not violate the Equal Protection clause of the 14th Amendment.


    “You want to be lawyers are cracking me up, you all know better than the supreme court and the federal court system, LOL. The bigots have lost and all that is left is the gnashing of teeth and wailing.”

    Ignorant statement, period.


    Jehovah Jireh | Report this comment

    David—I think the root of the problem here is how you classify homosexuality.  “drellis” is making the argument that homosexuals have the exact same rights as heterosexuals:  the right to marry a person of the opposite sex (which is the definition of marriage).  You want to change the definition of marriage to mean “a union between a man and a woman OR a union between a man and a man, woman and a woman.”
    —————————————————————————

    Marriage only means to merge two things, in the context of humans that is two households. It is not defined as man and woman except by social ideals which have changed.

    Also those comparing to polygamy are making a false comparison as polygamy is specifically outlawed and homosexuality has not been illegal since 2003 thanks to Lawrence vs Texas.

    You want to be lawyers are cracking me up, you all know better than the supreme court and the federal court system, LOL. The bigots have lost and all that is left is the gnashing of teeth and wailing.


    drellis: From your last two comments, I infer that you think Loving was wrongly decided because it interpreted the 14th Amendment as protecting interracial couples rather than the individual people who comprise those couples.

    Although this has been addressed already several times, I will try again. The SCOTUS has on several occasions affirmed that marriage is a fundamental right, a right associated with the very meaning of individual liberty. As such, marriage wouldn’t mean the same thing if, say, the government could choose your spouse for you. You would still have the “right” to get married, but it would have little meaning as an expression of your individual liberty.

    In Loving, the proponents argued that the plaintiffs, Richard and Mildred Loving, had an equal right to get married - just to other people. They argued that there was no violation of equal protection under the 14th Amendment because Richard and Mildred each had the right to marry someone, as long as that “someone” was of the same race. That is precisely - unless you would like to correct me - what you are arguing here with regard to the plaintiffs in Bostic.

    What the court said is that it’s not good enough for people to only have the right to marry “someone,” and that marriage is stripped of its individual liberty meaning if it doesn’t include the right to marry the partner you choose. That is the reasoning, and why it does apply to individuals under the 14th Amendment. It’s a long standing and well established doctrine, which is why, coupled with the more recently affirmed doctrine that there is no legitimate state interest that justifies classifying people on the basis of sexual orientation for the purpose of unequal treatment under the law, there is such unanimity on these cases.


    “I think the root of the problem here is how you classify homosexuality.  “drellis” is making the argument that homosexuals have the exact same rights as heterosexuals:  the right to marry a person of the opposite sex (which is the definition of marriage).  You want to change the definition of marriage to mean “a union between a man and a woman OR a union between a man and a man, woman and a woman.”

    Excellent point.  Opponents of the law are attempting to redefine marriage “to make it fit” into whatever interpretation of the Constitution they believe best furthers their own ideological point-of-view.


    So a person that marries get special tax, health, pension, etc treatment but a person that can’t marry under the current law doesn’t get the same Fed, State, County or City benefits.  That’s not equal protection.


    Jehovah, I understand why you would feel that way - because marriage has “always” from your perspective been “defined as” you see it, it seems as if there must be a good reason for it to be that way. But - and this is why the recent federal rulings refer so frequently to Loving - that is the way those who opposed interracial marriage felt about it, too. They felt that it was a violation of God’s plan to allow “race mixing,” and that it would fundamentally change the purpose of marriage as a mechanism for “pure” procreation. In other words, they would and did insist that there was a legitimate state interest in its traditional definition as racially segregated, even though that definition did not actually prevent interracial relationships and procreation. I’m sorry, but I don’t quite understand what you mean by the way I “classify homosexuality.” Can you be more specific?

    drellis, I’m sorry; I don’t mean to be condescending. You had made an argument that Loving clearly refutes. I have heard all of these arguments before, and the fact is that they no longer survive constitutional scrutiny, for exactly the reasons Justice Scalia predicted. It was inevitable and only a matter of time.


    west, it simply is not a valid argument to claim that Virginia’s law denies “equal protection” to a gay person even if it is does deny it to same-sex couples.  The language contained in the 14th Amendment is clear and unambiguous: “any PERSON.”


    drellis, see if you can answer this…

    David, please don’t be condescending either.  I am fully aware that the Supreme Court (in the Loving case) mostly relied on the 14th Amendment Due Process clause in rendering its decision.  I will take back what I said earlier though about this case not being a valid comparison, I agree with you that it probably is but I do believe the Court made a bit of a constitutional “stretch” in formulating their opinion.  While I may personally disagree with the so-called Racial Integrity Law, I am not entirely convinced that it should have been declared unconstitutional.


    David—I think the root of the problem here is how you classify homosexuality.  “drellis” is making the argument that homosexuals have the exact same rights as heterosexuals:  the right to marry a person of the opposite sex (which is the definition of marriage).  You want to change the definition of marriage to mean “a union between a man and a woman OR a union between a man and a man, woman and a woman.”


    drellis, I know there are a lot of comments on this article, but it would benefit you to read them all before commenting yourself. Your question regarding rights and classes has already been answered.


    west, that is simply incorrect.  A gay person has exactly the same rights under the law as a straight person whether either of them chooses to be married or not.  And you are still confusing the rights of individuals with your imaginary rights of gay couples. The 14th Amendment says “any person”...it says noting about gay couples or polygamist sects or anything else you might want it to say.


    “David, please don’t take my statement out of context.”

    I didn’t.

    “And just because you don’t agree with a law doesn’t make it unconstitutional.”

    I agree. It’s the discriminatory effect and intent of the law that makes it unconstitutional. Every judge who has considered the question since last summer’s Supreme Court opinion striking down the Defense of Marriage Act, a total of 32 judges appointed by both Republicans and Democrats, has reached the same legal conclusions as Judge Wright Allen: There is no legitimate government reason for classifying people on the basis of sexual orientation for the purpose of unequal treatment.


    “The 14th Amendment guarantees individuals ‘equal protection of the laws’ but it does NOT protect relationships formed between individuals..”

    drellis, see if you can answer this: Why was Virginia’s “Racial Integrity Act” found unconstitutional; what part(s) of the U.S. Constitution did it violate, and what was the reasoning?

    westLOUDOUNer, I know you get it. It’s just amazing to me that anyone can actually make the argument drellis made with a straight face, and I’m glad we each answered that argument in a different way.


    drellis | Report this comment

    Legal challenges (such as this) to laws prohibiting same-sex marriage are primarily based on the Equal Protection clause of the 14th Amendment which says, “no state shall…deny to any person…the equal protection of the laws.”  Gays contend that they are being unfairly denied “equal protection of the laws.”  Simple enough.  The only problem with this argument is that a gay person has exactly the same or equal rights under the law as any other person. 
    ———————————————————————

    The Supreme Court disagrees. There are many parts of our law directly connected to marriage and they do not have equal access to those items lacking the ability to marry who they want to marry. That is why gay equality is winning in every state its being challenged in now and why the high court struck down DOMA and refused to rule again on Prop 8.


    Drellis - You are mistaken.  A gay individual (“married or domestic union”) does not have the same rights as a straight individual that is “married” under the current Va Law - hence the judges decision and protection under the 14th.


    David - I do get it.  Unless a gay couple can either legally marry or be joined in a domestic union recognized by the State & Feds, they will not receive the same rights as those other couples.  Therefore the ban should be reversed.


    David, please don’t take my statement out of context.  And just because you don’t agree with a law doesn’t make it unconstitutional.


    west, I believe you are the one who is mistaken.  The 14th Amendment guarantees individuals “equal protection of the laws” but it does NOT protect relationships formed between individuals such as “gay couples” or “same-sex couples.”  Big difference.


    David, that’s not a valid comparison as this case has absolutely nothing to do with race, etc.


    “A gay person cannot marry a person of the same sex but neither can a straight person!”

    Get it, westLOUDOUNer? Counsel for the plaintiffs described this as like holding someone’s head underwater while explaining that they have the right to breathe, just not air.


    drellis - You couldn’t be more wrong.  A gay couple does not have the same tax benefits, they do not have same beneficiary benefits (pensions, health, etc.), they cannot be afforded the same visitation rights in hospitals because they are not recognized as relatives, they cannot make the decision on life support, etc., etc. etc.  So no, they are not afforded the same rights as heterosexual married couples.


    drellis: I’m afraid that exactly the same argument was offered by the proponents of Virginia’s “Racial Integrity Act” in the Loving v. Virginia case; that the law didn’t discriminate against anyone because both black and white people were equally free to marry someone of the same race. The argument was and is an insult to marriage.


    David, the truth is that Judge Wright-Allen was compelled to rule as she did by her own constitutionally-flawed interpretation of the law.


    Legal challenges (such as this) to laws prohibiting same-sex marriage are primarily based on the Equal Protection clause of the 14th Amendment which says, “no state shall…deny to any person…the equal protection of the laws.”  Gays contend that they are being unfairly denied “equal protection of the laws.”  Simple enough.  The only problem with this argument is that a gay person has exactly the same or equal rights under the law as any other person.  A gay person cannot marry a person of the same sex but neither can a straight person!  A straight person can marry a person of the opposite sex and so can a gay person.  Each and every person is afforded the same protection under the law.  Therefore Virginia’s law prohibiting same sex marriage is not in violation of the 14th Amendment.

    Had Judge Allen actually read the Constitution as its written, without inserting her own personal/ideological beliefs, she would have rightfully concluded the same.


    drellis, I’m sure it makes you feel better to imagine that. The truth is somewhat different: As for the “claim that Judge Wright Allen ruled the way she did because of a ‘personal political agenda’: The judge, when she was confirmed, was accompanied by her pastor, who she described as, other than her husband, ‘probably the closest man in my life.’ She attends a rather conservative church, one whose tenets of faith include the infallibility of scripture and that marriage is designed by God for a man and a woman.”

    Judge Wright Allen was compelled to rule as she did by the law.


    “So is there room for disagreement, or not?  If one refuses to capitulate to a secular view of sexuality, what then?”

    Jeanne: You asked, I answered. If what you want is a world in which people with sexual orientations different from your own are treated as second-class citizens and don’t get to enjoy the same civil rights as everyone else, if that is what it means to you to “refuse to capitulate to a secular view of sexuality,” well, you aren’t going to get that. If you meant something different by your words, tell us what it is.


    It’s a sad day for the Commonwealth of Virginia when one liberal, activist judge can overturn a state constitutional amendment with the stroke of a pen. I have no doubt that Judge Allen, a liberal democrat appointed by Obama, opposed the law for purely ideological reasons and then contrived a highly dubious legal argument for declaring it unconstitutional. I just hope that the 4th Circuit Court of Appeals exercises good judgment and common sense and will reverse Judge Allen’s erroneous decision.


    “Jeanne, if you consider sharing the public square with other members of the public as equals to be “capitulating,”

    No, I don’t.

    “then I’m afraid you’re in for a dark ride.”  Meaning what?  And why? Is that some kind of threat?


    “Homosexuality is a behavior, not a skin color or a gender.”

    While Mr. Jehovah was no doubt being glib here, there is some truth to this worth discussing. “Homosexuality” itself is of course not a behavior, it’s an orientation (obviously teenage boys and everyone else has one, regardless of whether they go on dates). But what he’s trying to get at is the idea of pretending that you have a different orientation than the one you actually have. That *is* a behavior or a choice.

    It’s certainly possible to behave that way; people used to do it all the time, and some still do. People have the right to behave in a way that’s in conflict with their natural orientation, for whatever reason they would want that. However, even the most vocal advocates for the availability of so-called “conversion therapy” will tell you that their goal is only to shape behavior, not to change the person’s underlying orientation. Those with the most experience providing such therapy are adamant that changing orientation itself is not possible.

    While everyone has the right to behave in a way that conflicts with their actual orientation, even if it ends up being harmful to their health and wasting their time, it becomes more complicated when the behavior involves other people. Denying yourself a whole and natural intimate relationship is one thing, but denying it to a spouse as part of a behavioral program of pretending to be “heterosexual” seems grossly unfair to that spouse. And any children brought into such a situation are at risk from an unhappy, unstable, and ultimately broken family, something that the social science shows to have significant negative outcomes for children when compared to those raised by intact two parent families.

    So yes, behavior matters, a lot.


    Jeanne, if you consider sharing the public square with other members of the public as equals to be “capitulating,” then I’m afraid you’re in for a dark ride.


    Jeanne T. | Report this comment

    How do children actually benefit from being deliberately raised without a parent of the opposite sex? I’m not talking about children who are in a single parent home due to divorce or death of a parent.  What are the advantages for children of not developing a relationship with a parent of the opposite sex?
    ————————————————————————-

    Actually its been shown in studies that two parents, gay or straight, are better than single or divorced. A gay couples kids are likely to be more stable than a divors3ed straight couples kids.

    Also kids are better off where the parents have more money, so a well to do gay couple’s kids are better off than a poor straight couples.

    In other words having gay parents are not the real risk factors in life to be worried about. Poverty and divorce are far more negative. Funny that the bible belt is rife with divorce and poverty and evangelicals are the highest divorce rate group in the nation.


    How dare VA treat people with equality promised in our federal constitution!


    How do children actually benefit from being deliberately raised without a parent of the opposite sex? I’m not talking about children who are in a single parent home due to divorce or death of a parent.  What are the advantages for children of not developing a relationship with a parent of the opposite sex?


    “By definition ‘normal’ means ‘conforming to a standard; usual, typical, or expected.’”

    It is normal for about 10% of humanity to be left-handed.

    And it is normal for 1-2% of humanity to have red hair.

    You do see where I’m going with this, right?


    “Meanwhile, we’re all part of “the public,” we share “the public square,” and we are all entitled to the same civil rights and liberties guaranteed by our Constitution.”

    So is there room for disagreement, or not?  If one refuses to capitulate to a secular view of sexuality, what then?


    No, I’m saying we are all individuals with diverse characteristics and it should be celebrated (especially here in the US of A) instead of ridiculing one part of it - that’s the same a bullying.


    Sounds like y’all don’t have much to worry about then, Jehovah. Glad to hear you realize that. Meanwhile, we’re all part of “the public,” we share “the public square,” and we are all entitled to the same civil rights and liberties guaranteed by our Constitution. Even those left-handed people.


    westLOUDOUNer:  not sure what your point is, but yes, left-handed people and redheads are not the norm.  They are a small statistical pool in the majority of right-handers and brunettes.  Do you disagree that homosexuality is not the norm?  Otherwise, again, I’m not sure what point you’re making, other than to imply that I’m calling homosexuals “outcasts,” which I’m not.  But I AM saying that homosexuality, compared to heterosexuality, is outside the norm.  And thank goodness, else the human race would become extinct.


    Jehovah Jireh - Here are a few more to add to your list of outcasts:  Left handed people (10%), Red haired people (1-2%) and heaven forbid you find a left handed red head.


    “Homosexuality is a behavior, not a skin color or a gender.”

    So no teenaged boy is straight until after his first date with a girl?


    Equity:  Correct.  By definition “normal” means “conforming to a standard; usual, typical, or expected.”  Homosexuality is not usual. It’s not typical.  (LGBT community likes to quote the 10% population number—so fair to say that 10% is not typical)  I can understand wanting to “fit in” and not be demonized.  No one wants to be considered an outcast.  And no one should be treated ill because of a proclivity—unless it’s one that’s harmful to innocents (like pedophilia).  However, carving out new laws to “normalize” abnormal behavior like homosexuality is not the same thing as extending civil rights to women, African Americans, etc…  Homosexuality is a behavior, not a skin color or a gender.


    work: Why don’t you offer your legal expertise to Mr. Nimocks of the Alliance Defending Freedom, who will likely be continuing to defend the amendment in court? I’m sure he’d appreciate the help in constructing his arguments, especially since you know better than all 32 judges who have considered this question since the June SCOTUS opinion striking down DOMA. It’ll be a game-changer.

    Seriously, maybe another example will help you to understand the difference between a class and a right. In one of the many instances in which the SCOTUS has affirmed that marriage is a fundamental *right*, the *class* being discriminated against was prisoners. A prisoner sued because he was required to get approval from a warden in order to marry. Non-prisoners don’t have to seek special permission to marry, so the state was required to show justification for treating the *class* of prisoners differently with regard to the already existing *right* to marry (it couldn’t). The ruling didn’t create a “new” right of “prisoner marriage,” it overturned an unconstitutional policy excluding the class “prisoners” from that right already enjoyed by other classes.

    There is currently no existing right to plural marriage anywhere in the U.S., so there can’t be a case in which one class of person is denied that right while other classes enjoy it. NO class of person enjoys it, so there’s no basis for claiming that any one class is treated differently.

    If this weren’t the case, and since there are religious traditions that encourage the practice, there would have long ago been successful lawsuits overturning laws banning plural marriage.


    The judge was wrong as were the others, Impeach!


    So ultimate goal of anti-gays is: make US citizens & Virginians feel less than normal? decide who has legitimacy to love? discriminate in workplace, public & in economic matters?

    “Fine. Still doesn’t make it right.”

    Be sure to ask 6 yr olds about Olympics - most aren’t Weir worried.


    LOL at all the angst from “conservatives” (quotes, because REAL conservatives know when to mind their own business) who just control their hate and bigoted ways. Imagine all the well heeled bigots sending contributions to Orange, er, DelGaudios bigot website right now.


    “You are wrong Stevens Miller. Dead wrong.”

    Well, you said it, so it must be so.

    Meanwhile, you are confused about the difference between rights and classes. Every single federal judge (even the Bush appointee in Kentucky) who has considered this issue has been able to see the difference, and has ruled the same way on it. But, they’re all wrong, I guess. All dead wrong.

    Or you are.


    Nice explanation Stevens.  It really isn’t hard to grasp. 

    Meanwhile the radical social conservatives are already crying about legalized child marriages, polygamy, and I’m sure they’ll get to relations with animals soon like Rick Santorum theorized during the GOP Presidential primaries.  Apparently we need the gay marriage ban to make sure some sicko doesn’t marry 3 children and a sheep.


    The ultimate goal of the LGBT activists has been achieved.  It was never about marriage but all about “normalcy.”  Being able to “marry” grants homosexuals legitimacy to their behavior.  Fine.  Still doesn’t make it right.  Because just ask any six-year old to watch Johnny Weir broadcasting the Olympic figure skating and they’ll all say the same thing, “Mommy, why is that boy wearing lipstick and jewelry?”


    Chris N,

    I was raised Jewish and growing up, my rabbi joined the Freedom Ride and was beaten. He taught us to live our faith in the public square. We were also taught mitzvah; good deed, justice. When we moved to Loudoun, we sought out a faith community and found many that welcomed us.

    But the so-called “marriage amendment” put a government stamp of approval on prejudice, and then, welcoming communities really wanted to marry us. They popped up everywhere. Faith communities wanted to consecrate our unconstitutional marriage, in defiance of the state.


    “Why not just end the ban today?”

    Two reasons: First, there are two active defendants, the clerk of the Prince William Circuit Court, and the clerk of the Norfolk Circuit Court. There are also two amici whom the court allowed to file briefs in support of the ban. Collectively, the court’s opinion refers to all four as the “Proponents” of the ban. They can all move forward to the appeal. Second, a court can make its own ruling on the law, even if no one briefs or argues for that ruling.

    These are both points that people claiming AG Herring left Virginia without a voice in court have either chosen to overlook or were not aware of.


    Donna P, it needs to go through the appeals process. It should never have been on the ballot in the first place, and I know that it’s frustrating to have things take this long while they do real harm to people, but that’s how our system works. We want to have a solid resolution based on a full and fair hearing of all the arguments, which will very likely be before the Supreme Court. It’s been nearly 50 years in the making.


    We are an interfaith family.


    Mr. Weintraub and his partner, Jonathan, have been together for more than 30 years and held “several religious ceremonies off different faiths,” he said.

    Serious question, David, as I know you frequent this board—Has your faith evolved so much that you had to have your relationship blessed by several faiths, or are you cherry-picking religions that fit your lifestyle?

    I’m not trying to be snarky, that was just a weird paragraph in the story that begs for elaboration. Thanks for any context you can lend.


    Why not just end the ban today?  The Governor and Attorney General were not going to defend the current law in Virginia.


    so a polygamist isn’t a class of person and a homosexual is? Hey if a man can marry a man and a woman can marry a woman, why can’t a polygamist marry who he wants. He or she is protected under the equal protection clause just like a homosexual. You are wrong Stevens Miller. Dead wrong.


    “Because of the 14th Amendment, section 1 Polygamy is legal in this country!!!”

    No.

    The Equal Protection clause requires that a state give some rational reason why a right available to one class of persons is not available to another class of persons and, when the state cannot do that, then all persons of both classes must be allowed to enjoy that right.

    Virginia allowed those who wished to marry one person of the opposite sex the right to marry that one other person.

    Virginia did not allow those who wished to marry one person of their own sex the right to marry that one other person.

    Taken together, these two facts violated the Equal Protection clause. As there is no right for anyone to marry more than one person in Virginia, the Equal Protection clause does not grant a right to polygamy.

    Polygamy is no more imminent today than it was in 1967, when bigots then were screaming that the Supreme Court’s decision to strike down Virginia’s ban on interracial marriage by reliance on the Equal Protection clause meant group marriages were right around the corner.

    Those who think otherwise do not understand how the Equal Protection clause works. It does not empower judges to decide what rights we get and what rights we do not get. It only requires the government to grant the same rights to everyone when it cannot show any reason not to. Because some Virginians had the right to marry one person, but others did not have that right, the Equal Protection clause required Virginia to show there was some good reason for the unequal treatment. Virginia couldn’t do that (because, see, there wasn’t any good reason for it). At that point, the judge simply ruled as the constitution required: equal rights for everyone, whether anyone likes those rights or not.


    Besides those with their head in the sand hoping to keep homosexuals as second class citizens, I think most people with a clue knew that the equal protection clause would end these gay marriage bans eventually.

    As Vince said, this is not a theocracy.  “The Bible says…” isn’t good enough. 

    An interpretation of the Bible has even less standing.  Plenty of religious folks believe the merciful Jesus would welcome LGBT people as part of his flock, while a vocal sect apparently thinks he would want them burned at the stake. 

    I hope all the gay couples who get married in the coming years send a invitation to Eugene Delgaudio, Bob Marshall and the others who think stopping them is so important.


    This is a great ruling, I’m so happy. Now I can marry both women that I love. Because of the 14th Amendment, section 1 Polygamy is legal in this country!!! They have no idea the can of worms they are opening!!!!!


    Although it may seem counterintuitive, we owe thanks to Mr. Delgaudio, Dick Black, Bob Marshall, Ken Cuccinelli, and all others of their persuasion. Their open displays of anti-gay animus made showing the unconstitutionality of Virginia’s marriage laws a slam dunk.


    I’m going to de-ice my driveway with salt from Eugene Delgaudio’s tears.


    There are 4 sections to the 14th Amendment and this ruling seems to apply to only Section 1: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    I’ll be very surprised if anyone can argue against this amendment particularly in the case of Gay Marriage. We’re a secular nation, so the bible can’t be applied, no matter how hard folks try in that regard.  I suspect it’s time for the Supreme Court to weigh in fully and resolve this issue, once and for all.  Vince in Leesburg

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