By Mark Esposito, Weekend Contributor

Somewhere out there Mildred Loving must be smiling and wondering how things could change so much since 1967.  You might recall Ms. Loving as the African-American and Virginia resident who had the audacity to marry a white man and then procreate in the Virginia of the 1960s. Charged with violating Virginia’s  Racial Integrity Act of 1924, an anti-miscegenation law which criminalized marriages between members of different races, the case was heard in Hanover Courthouse, where liberty’s most eloquent spokesman, Patrick Henry, once argued the famous Parson’s Case.  Circuit Court Judge Leon Bazile, whose portrait still hangs in the hallway of the new courthouse, sentenced the couple to one year in prison suspended upon the condition they would leave their home state. In doing so, he announced to the world that Virginia would not step so quickly away from its historical racism:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

The Virginia Supreme Court affirmed in that southern gentlemen way it perfected with soon-to-be Chief Justice Harry Carrico stating deftly that Virginia would not depart from state precedent notwithstanding a U.S. Supreme Court overruling discrimination based on race and that any change in social mores concerning marriage should come from the Virginia legislature. Fat chance of that Justice Carrico knew, given the state’s history of Massive Resistance to any kind of racial desegregation. Carrico passed the proverbial buck and it was up to the Warren Court to right the wrong.

Earl Warren did right the wrong and in so doing insured that love would be colorblind, saying flatly in Loving v. Virginia:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

On Valentines Day 2014, word spread that a federal judge in Norfolk had  issued an opinion reiterating the words of Chief Justice Warren and that was every bit as controversial to some in the Old Dominion. And the arguments involved were every bit as religious and tradition-based as the ones relied upon by Judge Bazile in denying Mildred and Richard Loving their rights as human beings.

Judge Arenda L. Wright Allen, appointed by President Obama, in a 41 page opinion struck down Virginia’s same-sex marriage ban on constitutional grounds despite a plebiscite in 2006 which amended the Commonwealth’s Constitution to read:

That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

~Va.Const,art.I,§15-A.

Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.

And what exactly were the justifications proffered by the Commonwealth (before recently elected Attorney General Mark Herring reversed course and joined the plaintiffs in the case) in defense of the indefensible?  Why the two most respected of Virginia traditions– the Christian religion and tradition itself.  No doubt Virginia’s laws limiting marriage to a man and a woman “were rooted in principles embodied by men of Christian faith,” Wright Allen wrote. “However, although marriage laws in Virginia are endowed with this faith-enriched heritage, the laws have nevertheless evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia, with protections and benefits extended to portions of Virginia’s citizens.”

Vanquishing the argument from religion, Wright Allen took on the most sacred of sacred cows in Virginia.  “The legitimate purposes proffered by the proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse ‘responsible procreation’—share no rational link with Virginia marriage laws being challenged,” wrote the judge, herself an African-American, who understands a thing or two about Virginia’s traditions in regards to its minority citizens.

And don’t think Judge Wright Allen was fooled for a moment by that old canard about marriage serving the purposes of the state in promoting procreation:

The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.

Judge Wright Allen thus joins the unanimous opinion of every other federal judge who has considered and ruled on this issue. That holds no sway for conservatives in the Commonwealth like the sponsor of the same-sex marriage ban, our very own Del. Robert G. Marshall (R-Prince William). Marshall, who once said that children born with handicaps after an abortion by their mothers were a “special punishment” from God, quickly called for the judge’ s impeachment. The Family Research Council said the decision “reeks of political show” and demonstrates  a “personal political agenda.”

Still most in the Commonwealth were smiling as attitudes about gay marriage have changed considerably since the 2006 ban garnered 57% of the vote of participating Virginians in favor of the amendment. Current polling shows that  50 percent of registered Virginia voters support same-sex marriage, while 43 percent oppose it.

Oh, and the real reason we know that Mildred Loving is smiling down on us:  Judge Allen Wright, began her historic opinion with a passage written by Mildred Loving in her essay, Loving for All, that says all that really needs to be said about denying people that which they are due simply for being people:

We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is? … I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. … I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Source: Washington Post

~Mark Esposito, Weekend Contributor