Virginia’s Gay Marriage Ban Struck Down: Analysis of the Ruling

Is this even a matter for a federal court?

Of course it is. State laws can violate the federal constitution. But back in 1971, it wasn't. The U.S. Supreme Court's refusal to hear a case called Baker v. Nelson, a marriage ban challenge, for "lack of a federal question," is constantly raised by marriage equality opponents. To them, the Baker v. Nelson case means that the challenge should the thrown out. Not true. Judge Wright Allen quoted WindsorRomer, and even Judge Shelby's decision declaring Utah's marriage ban unconstitutional to prove that much has changed since 1971. Since then, gays not only stopped being presumptive criminals under the law, but also received protected status under Lawrence and Windsor.

OlsonDoes marriage discrimination violate the Due Process Clause?

Yes. Back in 2012, when Ted Olson and David Boies were arguing the Prop 8 case, Olson made a point of saying that "the Supreme Court has stated fourteen times that marriage is a fundamental right." Judge Wright Allen recounted most of those times in her decision, arguing that all the plaintiffs wanted to do was be able to join this important and essential institution. Notably, she concluded that they did not want to create a new right — a right to same-sex marriage — but just to exercise an existing right — a right to marry — like everyone else.

Plaintiffs are not, as one of the defendants tried to argue, suggesting that "mothers and fathers [do not] matter." Judge Wright Allen had little patience for this argument. It relied, she said, on outdated stereotypes that you need one man and one woman to have a good family. In fact, you need two loving parents, of whatever gender, and we have countless studies to prove she is correct.

States cannot restrict fundamental rights, which are rights so important to what it means to be an American, unless they provide a "compelling interest" and "narrowly tailor" their actions to result in the least restriction possible. That is strict scrutiny, and Virginia's arguments could not even come close.

Tradition could not do it. Just because Virginia has traditionally restricted marriage to opposite-sex couples, that does not mean that tradition should be revered above all else. Indeed, the legal, political, and social context has changed also so dramatically over the last 50 years that Virginia's traditions have changed.

Federalism could not do it, either. Sure, Virginia should have the power to regulate its marriage laws, but that power cannot exceed the powers granted to the states in the Constitution. That is, the states cannot violate the law of the land even while regulating an area of law normally left to state governments.

Does marriage discrimination violate the Equal Protection Clause?

Yes. Up until this point in Judge Wright Allen's decision, she relied exclusively on the Due Process Clause. There is something to this: Judge Kennedy's decisions in Romer and Lawrence and even Windsor, to some extent, have all been due process cases. But relying on strict scrutiny has not been Kennedy's tradition, so it may not have been the most successful strategy to rely on that alone.

Here enters the fact that banning gays from marrying discriminates and violates equal protection. And for this section, the judge did not need to rely on heightened or strict scrutiny; rather, the ban failed even under rational basis. That is, there is no rational reason to restrict gays from marrying in Virginia. Gay couples are just like opposite-sex couples and no justification offered by the state made sense. Moral condemnation of homosexuality is not, and is never, enough. The desire to promote "responsible procreation" is not enough, either: Just because heterosexuals can accidentally have children is no reason to prevent gays from joining the institution of marriage. If anything, it is a reason to encourage heterosexuals to marry!

But this part of the decision took only a few pages. We see clearly where Judge Wright Allen's true sympathies lie: marriage is a fundamental right and bans on same-sex marriage interfere with that right. Period.

What happens next?

The order to allow gays to marry in Virginia was stayed given that the Supreme Court stayed the orders in Utah and orders have been stayed elsewhere. You may recall that the Commonwealth of Virginia declined to participate in this case anymore after the election of a Democratic governor and attorney general. But a county clerk is still a party to this lawsuit, which would allow him, defended by a far right legal organization, to appeal the decision up to the Fourth Circuit and then, perhaps, to the Supreme Court. 

The Supreme Court may indeed rule on this case eventually. In fact, a ruling might be forced upon the justices. Marriage equality cases were just filed in Louisiana and Texas, both part of the deeply conservative Fifth Circuit. If a decision at that appellate court upholds marriage discrimination, then there would be a split among the circuits, assuming we also get an appellate court to reject marriage discrimination either in the Fourth Circuit or the Tenth Circuit or elsewhere. That split would basically require the Supreme Court to address the issue head on. Stay tuned.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. Lifesart says

    Yay! As my husband and I think about retiring to Virginia, I’m glad that the state will be brought into the 21st century in some respects, at least.

  2. DC Insider says

    My only comment is the possibility that SCOTUS may decide not to hear appeals from circuits where marriage equality is upheld, thus adopting the decision without granting cert or weighing in. I believe UNTIL a circuit court of appeals denies marriage equality will we see SCOTUS agree to hear a case.

    In other words, in the absence of disagreement among the circuits, I would expect SCOTUS to continue to decline to hear marriage equality cases for the foreseeable future.

  3. jamal49 says

    “….although the Fourth Circuit has for years been a deeply conservative court, President Obama’s recent appointees have tipped the balance…”.

    Remember this. Elections have consequences. Vote in 2014 and 2016. Rid America of the Republican pestilence.

  4. Howard B says

    @DCInsider, I’ve been thinking the same thing too. I don’t think SCOTUS really wants to get involved in any marriage decisions until they have to. They would rather have this percolate through different states and circuit courts before they have to weight in on this issue again. If they get involved anytime soon, it will be because there is a conflict between two or more circuit court decisions.

  5. Pablo says

    They’re going to wait for a few circuits to knock down several bans and then the Supreme Court will hear it. They don’t want to seem activist.

  6. Christopher D. says

    This case reminds me of another important court decision in Virginia.
    Loving vs. Virginia.

  7. Jim says

    You keep getting the judge’s name mixed up. It is Arenda L. Wright Allen, not Allen Wright or Write Allen. Fix this!

  8. Derek says

    I think the supremes wont touch unless they have a disagreement amongst the circuits. If it happens look for it to come from the fifth district. I live two blocks from the fifth circuit here in New Orleans. Curious to see where the texas cases goes. My expectation is the Louisiana case and the texas case will combined at the appellate level in the fifth circuit in New Orleans. Is there a case filed in Mississippi? If not someone should file one just to cover all the states in the circuit. Obama appointed some judges to the court recently but I dont think its enough. Curious to see how many repub appointed judges my crossover and support marriage equality!

  9. steven says

    Derek: as in the GWHBUSH appointed judge recommended by Mitch McConnell for the Kentucky case? I think that despite the complaints of activist judges made by the FRC that many of the judges (whether politically R or D) recognize discrimination when they see it (of course Scalia and Thomas– other wise known as Tweedledee and Tweedledummer) wouldn’t recognize discrimination if it was printed on a broadside with neon lights pointing at it. I definitely agree. The SCOTUS will not touch this with an eleven foot pole, until there is a definite disagreement between circuits, but even then they could send the differing case back for reconsideration based upon the other circuits’ findings and only get involved if the disagreeing circuit case doesn’t get changed. The SCOTUS under Roberts and Scalia doesn’t want to engage us.

  10. anon says

    The problem for the SC is if they wait too long to weigh in there will be all these marriages out there that everyone will have to deal with. It’d be very messy.

  11. says

    Of course @Anon, the both right and constitutional way to solve the messiness is for gay couples to be guaranteed equal protection, equal marriage. It is only a matter of when …

    Undoing legal marriages–well, already too late for that.

  12. Buster says

    The (assumed) reluctance of the Supreme Court to address equal marriage again anytime soon is not necessarily a bad or negative thing in the long run. As Justice Ginsburg noted last year, many people reasonably believe that one of the reasons the abortion issue continues to be a national issue may be that the Court’s ruling in Row v. Wade was rendered before there was a substantial national consensus on the issue.

    The same may be true for equal marriage. If the Court were to rule, say, next year that equal marriage is constitutionally required throughout the country, the many states (and people) that are still far from understanding that fact are likely to do all they can to fight and restrict the ruling. Whereas if the Court waits 5+ years, allowing equal marriage to expand piecemeal in individual states (or circuits), the thought is that equal marriage will be more commonly accepted. So if the Court make a ruling at a time when only 15-20 states still prohibit equal marriage, it would “soften the blow” of the Court’s ruling.

    Of course, in the meantime, many couples in conservative states will suffer from being unable to marry. But the Court’s reasoning in these matters sometimes take a long-term perspective, whether for good or ill.

  13. Neil says

    @Grego, if you follow the link in the first paragraph, the entire text of the decision is there in the first post about this.

  14. TKinSC says

    “Since then, gays not only stopped being presumptive criminals under the law”

    It has never been a crime to be gay, in any state.

    “but also received protected status under Lawrence and Windsor.”

    No. Lawrence upheld the right to sexual privacy, not homosexuality in particular. Windsor — as did Romer — upheld a right not to be targeted by the government for no reason other than membership in a class. With Romer, the targeting was done through a state constitutional provision that basically said “homosexuals can’t sue”. With Windsor, the targeting (says the Court; I disagree) was done by denying recognition to same-sex marriages sanctioned by the state in which the couple lived.

    I sympathize with Scalia’s fears, and can’t predict for certain whether they will come to pass, but he is incorrect in saying that logic requires it. States control marriage, and Windsor neither says nor implies that they have to change the definition of it in order to comply with the Constitution.

    “Notably, she concluded that they did not want to create a new right — a right to same-sex marriage — but just to exercise an existing right — a right to marry — like everyone else.”

    Great. Then they can all find people of the opposite sex to pair up with, and Virginia will approve the marriage under current law. There were 2 women plaintiffs and 2 men plaintiffs, right? Well, there ya go!

  15. says

    TKINSC, your interpretation of the law is very dumbfounding. Thank goodness you’re not in the legal profession. I know this because it shows. Have a good weekend.

  16. Randy says

    On Feb 13 the Opinion and Order was released (Doc 135).
    On Feb 14, an Amended Opinion and Order was released (Doc 136).

    What changed?