In a decision that surprised me, a Southern federal judge overturned Virginia's constitutional ban on same-sex marriage. Judge Arenda L. Wright Allen also ruled that the state also had to start respecting the laws of 17 other states and Washington DC that permit the practice. This marks the first time a Confederate state has joined the bandwagon of equality. (Read the decision in Bostic v. Rainey
Of course, I support the decision. But I would like to briefly talk about my concern that some civil rights leaders are comparing this ruling to Loving v. Virginia which legalized interracial marriage in the US in 1967. This case was also referenced by Wright Allen.
I think the comparison is misplaced because the Loving case, along with similar laws in 14 other states (most of the other states, knowing how the High Court was going to rule, put an end to the nonsense themselves) was based on a law that was totally based on a racist conception of how the gene pool should operate, one that was completely misguided and later scientifically proven to be wrong. But the fact was the Court primarily cited the 14th Amendment, which put an emphasis on equal protection of the laws.
In the case of Bostic, Wright Allen went much further. She did agree that the 14th Amendment (equal protection of the laws) was violated, but far more fundamental in her analysis were two items: 1) the 1st Amendment which guarantees the right to peacefully assemble -- or we in Canada and most other democracies call the right to freedom of association; 2) Article IV, Section 1 of the original Constitution which requires, as I noted above, a state or territory to respect the decisions of other states -- which includes marriages, legal contracts filed in court (a fact even straight-sex couples often forget -- it is a legal contract!!!). The fact that the state amendment in question violated both of these clauses made the entire law invalid.
Opponents of the law will say, violated on a technicality. This is not a mere technicality. The law was designed to protect opposite sex marriages regardless of race. It prohibited even same sex opposite race marriages. And that took it to a whole new level. This wasn't about prohibiting certain kinds of sex. It was about prohibiting "different" kinds of families.
This isn't an enhancement of Loving, it compliments it -- big time. It's time for SCOTUS to rule in favour of common sense and ensure as its motto does, "equal justice for all". If they struck down DOMA and California Prop 8 then it's time to have equality across the United States. Heck, it's been made legal this year in each of England, Wales and Scotland (and even the very religious [on both sides] Northern Ireland has conceded to civil unions). Why won't America -- all of it -- join the train?
