The Washington Post recently reported, “The race to get the Supreme Court to decide whether it is unconstitutional for states to ban same sex couples from marrying runs through Virginia.” Don’t cha just love the reporting? As this battle zigs and zags across the country, defining marriage as it’s always been defined is now deemed a ban on same sex marriage, an unconstitutional one at that.
Much of the low-hanging fruit has been picked. Same sex marriage has been declared legal in some of the bluest states: Massachusetts, all of New England, New York, Maryland, Washington, and California and in a few purple states like Iowa and New Mexico. But in 33 states, marriage is what it’s always been in this country, between a man and a woman. The Supreme Court struck down part of the Defense of Marriage Act last year, but left the states free to define marriage as they wish. Then, advocates for same sex marriage took a sharp pivot and went after marriage laws in the reddest states in the country, Utah and Oklahoma. Amazingly, these cases ended up before judges who found the laws upholding traditional marriage unconstitutional. The combined cases are before the Federal Appeals Court for the 10th Circuit and could end up at the Supreme Court. Meanwhile, the challenge to marriage is heading to the South.
Two cases challenging Virginia’s constitutional amendment protecting marriage are moving quickly and some lawyers see them as vehicles to get the Supreme Court to quickly consider redefining marriage for the entire nation.
One case concerned four lesbians, but has now been expanded to a class action suit on behalf of an estimated 15,000 gay couples in Virginia who might want to marry.
The other is the result of the lawless act by the state’s brand new attorney general, Mark Herring. Mr. Herring barely won his election last fall after having promised, during his campaign, to defend Virginia’s constitutional amendment protecting marriage as the union between one man and one woman. 57 percent of Virginia voters approved it in 2006. Now Mark Herring says he won’t defend the law because — guess what? — he thinks it’s unconstitutional. He joined two same-sex couples in asking U.S. District Judge Arenda Wright Allen to overturn Virginia’s marriage law. The case is on a fast track. Judge Wright Allen concluded the proceedings in Norfolk, telling the lawyers who addressed her, “You’ll hear from me soon.”
Celebrity lawyers, Ted Olsen and David Boies, who argued California’s Proposition 8 case before the Supreme Court, have jumped into this case. Mr. Olsen compared Virginia’s Marriage Amendment to the state’s prohibition on interracial unions overturned by the U.S. Supreme Court in 1967.
Supporters of the idea of changing marriage in Virginia say that since ’06, public opinion has moved to their side. Probably not. But in any case, voters, or the legislature, not the courts, should make that decision.