It’s Over: Gay Marriage Can’t Lose in the Courts
A perfect record for equality post-Windsor.
By David S. Cohen and Dahlia Lithwick
Last night, only days after hearing oral arguments in the case, a Virginia federal judge struck down the state ban on same-sex marriage, writing unequivocally that “tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.” The judge opened her opinion with the quote, above, from Mildred Loving, the plaintiff in the 1967 challenge to Virginia’s ban on interracial marriage. She thus joined a unanimous and ever-expanding collection of federal judges who have chosen to answer the question left up in the air by the Supreme Court last Spring: Did the Windsor decision—striking down the federal Defense of Marriage Act—pretty much strike down gay-marriage bans as well?
It didn’t have to play out this way. Once the elation of victory died down following the court’s Windsor decision in June, everyone found themselves asking the same question—what does this case mean for all of the other cases raising questions about gay and lesbian equality? The answer wasn’t 100 percent clear at the time. As he’s done in the past, Justice Anthony Kennedy authored a decision producing sweeping results, but rooted it in less than crystal clear reasoning. This was because Windsor has two independent parts that barely speak to one another.
The first part is all about federalism, not equality. Kennedy painstakingly explained that the federal Defense of Marriage Act offended basic principles of states’ rights because, historically, the states have always defined marriage and the federal government just goes along for the ride. By defining marriage for the federal government as only between a man and a woman, DOMA had infringed on the sovereignty of the states that define marriage otherwise, like New York did in Windsor, by including two women in its definition of marriage.
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http://www.slate.com/articles/news_and_politics/jurisprudence/2014/02/virginia_s_gay_marriage_ban_ruled_unconstitutional_a_perfect_record_for.html?
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