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
You do accept the principle of evolution in the law, don’t you?
I most certainly do believe in evolution in science and law, but the courts are supposed to enforce the law, not write new laws when they feel the urge to do so. We have legislatures to change and reflect that evolution. I am concerned that those who live by the judge can also die by the same means in the future, especially when they change the meanings of the words in the law. I thought that most folks here would have learned that lesson from Mr Yoo and his ruling that waterboarding is not torture.
Randy: I would have expected better of you. The question has nothing to do with business licenses or licenses for driving, fishing, or hunting. The question is about whether the concept of freedom of choice will embrace more than Pepsi or Coke.
The judge made it clear that the laws have evolved beyond the traditional, historical rationale. You do accept the principle of evolution in the law, don’t you?
As an observant from a planet far away I have a different perspective on marriage. I am here to study ants and humans. Ants are ahead of the game in that they do not put too much importance on doubling up. Ants on the other hand take care of the offspring. Humans don’t. America is a nation state that seems to treat child care as that of the state, fatherhood as that of some notion of come round once in a while and motherhood as get knocked up at age fifteen and then apply for your monthly check and a food credit card (formerly describes as a Stamp). To me, whether you are gay, are what ever, the union thing does not mean much. Who is supporting the children? If it is the government then so beit. But America is full of apCray. Either own up to socialism or make the father pay for the support of the child. One way or the other or fess up to the fact that it is the other. The system of paying 15 year old girls to go out and get knocked up so they can get the monthly check is a bit dumb. But, America: went in dumb, come out dumb too. Shufflin round Atlanta in the alligator shoes. etc.
One has to ask Alice, why do you feel a threat from people who love each other and simply want that relationship acknowledged by the State? You might want to read the words of Mildred Loving who understood the linkage between those who punished her for loving outside of her race with those who punish because of loving outside of the doctrine of their religion.
Another looneytune judge! Didn’t notice that Africa has brown Arabs in the north, black Bantus & others blacks south of that with a smattering of whites in the south. Eurasia, the only logical division of this continent, has white whites in the northwest, brown whites in the west, further south, brown Arabs in the Middle East, brown Asians & white too in the southern middle & southeast, yellow Chinese in the east & it goes on & on like that. Next thing, these guys will be telling us Halle Berry didn’t look cute in her twenties…. As a kid I visited South Africa twice, very briefly, in the sixties. I found the segregation so strange; many years later I was amazed to discover the level of enduring discrimination in the USA around 1970. Even today there are so many in Wyoming that prefer to call Obama by the N word, instead of the deserving A word.
Alice Galeotti (@rtthinkingmom) “…automatically labels anyone opposing gay marriage a small-minded bigot.”
Yes, I’d say that pretty much covers it.
Kraaken,
Glad to see that you think that the Democratic Party is the party of bigots and Kerry is that as well since our platform in that contest and in 2008 was NOT in favor of gay marriage. By the way, I hope that you are in favor of reparations to all Black Americans. If you are NOT, YOU ARE A SMALL MINDED BIGOT!
Charlton Stanley
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I have been told that Florida law requires such sentences to run consecutively instead of concurrently. Is that correct?
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I think so: Williams v. State, __ So. 3d __, 38 F.L.W. D912 (4th DCA 4/24/2013).
Not to be accused of overstating merely for the sake of emphasis, I should add one other news item about Virginia (specifically Virginia Beach): As Congressman Scott Rigell proclaimed before the House last May, the Seatack community, at over 200 years old, is “the oldest African-American community in the United States.” http://www.c-span.org/video/?312851-1/morning-hour&start=1058 [ Apologies for previous posting error. Here is the correct URL: http://www.norfolkchapter.org/Provenance_of_a_Nation.html#provenance_video ]
“When a message from the LORD came to Hosea, the LORD told him, “Go marry a prostitute and have children with her, because the land is prostituting itself by departing from the LORD.” – Hosea 1:2
What up wid dat?
Bravo! 50% of heterosexual marriages end in divorce. Maybe gay marriages will show those heteros how to stay together… And, frankly, I don’t care if you want to have numerous wives or husbands. As long as all are consenting and do so willingly at appropriate ages, who cares. Recall biblical history where Abraham, David, Solomon, and others all had multiple wives. If those guys could do it, then why not modern ‘Christians’?
In the dark days of 2004, when more than half of the states explicitly and usually with an overwhelming majority changed their constitutions by popular vote to explicitly exclude marriage between loving couples of the same sex, Mildred Loving’s words were so welcome. Her married name of Loving, she clearly recognised, was a powerful weapon against fear. She clearly expressed the power of love, just the wish of two people who wanted to be together, no matter what the state of Virginia said at that time.
I’ve seen the world transformed. In 2004, in my own country Civil Partnerships passed into law and were implemented in 2005. They were explicitly non-religious, but inevitably some sects, particular the Quakers, asked the government to allow them to celebrate all weddings fully in their own church rites. So–get this, my American friends–a group of churches campaigned successfully for gay marriage. It wasn’t the secularists, or the atheists, or the religiously disaffected, who won marriage equality in the UK: it was the religions who fought for and secured gay marriage in the UK.
I’m an atheist, so I don’t think anybody is watching from above. But we are certainly carrying out the last will and testament of Mildred Jeter Loving, bless her.
To ridicule the lack of science regarding the “status” of homosexuality, then offer the phrase “traditional, common sense values” in support of the status quo is remarkable in the duplicity exhibited. Might as well say, “l just know what is right and that is the end of the issue.”. Reasoning level, not viewpoint is the basis for any scoffing Alice might receive. Straw dog anyone?
Whoa, there, Professor. Not every cloud lacks a silver lining. While the Old Dominion, the First Colony, may indeed be charged with sentencing the first indentured servant to a lifetime of slavery under British law (John Punch was punished for having fled to Maryland and, according to Wikipedia, is believed to be the 11th maternal grandfather of President Obama), the Commonwealth more proudly boasts claim to the very first African-American hero of the Revolutionary War, in Billy Flora, a member of the Norfolk Militia (12-09-1775). Additionally, many historians believe Virginia, by virtue of the Virginia Company (1606) and the treaties of peace (1783), all of which survive today, is, itself, the genuine, representative and legal benefactor of America’s independence. If nothing else, it most accurately reflects the historical evolution of our nation. http://www.norfolkchapter.org/Provenance_of_a_Nation.html#provenancevideo and http://www.norfolkchapter.org/Provenance_of_a_Nation.html#takeoverclause
Randy,
There is a difference between conferring human or civil rights that did not exist before, and removing artificial barriers to those rights.
I would like to know what people think the Warren court would say about this perversion of the Loving decision. Is there any rational person who can say they meant to include gay marriage? Now the question then arises, how can any judge rule against what they meant and cite that as precedent? Marriage as used in the Loving decision, incontestably referred ONLY to one man/one woman legal contract granted by the state. Now if one can show me that Warren meant gay marriage, then I will agree with the judges decision. Absent that, there is no legal leg to stand on.
I would say that times do change, but under our system of government the place to change that is the legislature. Otherwise, by allowing the courts to basically write new law, we fall into a judicial dictatorship It is my understanding that the law is what confers those rights that the state has to observe. If women have the RIGHT to vote, then why did we need the 19th Amendment when all that was really needed was a Federal court to make a ruling granting them that right?
The other problem is that if the proponents of this method of making law agree with this decision, then they must also agree with removing the impediments to plural marriage as well since at one time plural marriage was legal in the US in Utah. It also has LONGER historical tradition than gay marriage. So why is not plural marriage allowed under this decision, since marriage can also mean plural marriage and in some places does mean that?
Great decision Mark. Love is all around us and now all can love whomever they want to in Virginia. It amazes me that some still think being gay is a choice of lifestyle.
It is simply illogical to use the Loving decision since it is clear legally and historically that marriage was meant exclusively to one man, one woman unions sanctioned by the state. Any rational honest person has to agree with that. Unless of course, one thinks that marriage used in the decision meant gay marriage or plural marriage which under current fads can now be subsumed under the term marriage. There is nothing in the historical record that would support such a thing since at the time gay marriage was not even thought of, much less deemed to be legal.
So what interest does the state have in denying the rights of Muslims and Mormons to have more than one wife? Their rights are being trampled as much as gays according to this line of “reasoning”
I also fail to see any violation of the rights of gays to marry since millions of gays have successfully married others of the opposite sex under the current law. What the plaintiffs want is to use the court to act as the legislature which power it clearly does not have. If one wishes to have gay marriage, there are current remedies for that as New York has done by legislation. I could see a violation of the right to marry if the law had a requirement to prove that one is straight and take a gayness test in order to get a marriage license. THEN gays would have a legitimate case in my view, since it would deny gays the same right to marry others of the opposite sex.
Then the question is can the state grant preferences to certain businesses and not others? Do such subsidies or preferences mean that those who do not get them in the legislature and laws suffer a denial of their rights too? This applies to marriage since that is a license created by the state for its purposes as well as that of the parties.
Alice,
I wouldn’t think of ridiculing you. You do a fine job of that all by yourself.
There is breaking news out of Florida. Michael Dunn, the real estate guy who killed a black teenager, Jordan Davis, over the loud music coming from Davis’ SUV. Dunn also shot three other of the teens but they survived.
Dunn was convhttp://wordpress.com/read?b=1541371&_wpnonce=7efc07b1e8icted of attempted murder for shooting the three teenagers. The jury deadlocked on the murder charge for killing Davis.
The judge accepted the three guilty verdicts, and declared a mistrial on the murder charge. The prosecutor apparently plans to retry the Davis killing. I haven’t heard what the jury vote was on that count. One blogger said they heard there was only one holdout who deadlocked the verdict, but that may just be rumor.
On the three attempted murder convictions, the judge is known as a tough judge, and will probably give Dunn the maximum of 20 years on each charge. I have been told that Florida law requires such sentences to run consecutively instead of concurrently. Is that correct?
The parents left the courtroom in tears. I would too. At least we know Dunn is going away for a long time.
This article is a glaring example of the effective technique of “jamming,” nullifying through ad hominem attacks aimed at anyone with an opposing opinion about the legalizing and codifying of gay “marriage.” Correlating the legal and social process of mixed-race marriage acceptance with the current campaign to do likewise for homosexuals wanting marriage and all its accompanying benefits automatically labels anyone opposing gay marriage a small-minded bigot. The two issues are apples and oranges, not similar at all when examining the faulty premise that homosexuality is inherent as a trait and therefore deserving of “rights” in the civil sense. No scientific or socialogical studies have ever proven the inherency of homosexuality, period. This lack of empirical evidence is why the movement has been gaining ground through sympathetic courts and complicit entertainment media producers rather than the scientific community. Those of us sitting out side the gay marriage bandwagon are aghast at the speed at which traditional, common-sense values of marriage between one woman and one man are paraded as bigoted idiocy to the greater public, and more insidiously, propagandized to our children in public schools and colleges as “the way things are now,” along with daily encouragement to put teachers’ obviously superior opinions over the “old school” thinking of parents. How many have read articles like this and refrained from commenting due to fear of retaliatory comments? Or, even bypassed commenting on a family member’s social media post that talked about gay marriage as a civil right because of fear of ridicule? I would bet good money a majority of people still believe in traditional values and marriage, but are cowed into silence by the jamming techniques employed quite successfully to this point. I am speaking up at every opportunity to defend what is truly right about marriage between one man and one woman; I hope more like me will do the same regardless of ridicule sure to follow.
Excellent observations and reporting on this Valentine’s Day weekend Mark.
As for our own local color, the pastor of the Happy Valley Church of Jesus Christ is a guy named Donny Reagan. The church is located between Johnson City and Elizabethton, TN. His sermons are recorded, and a member of his church sent a sermon from last year to the American Jesus blog. Wow!
Reagan rails against biracial babies from the pulpit. I really don’t know what to say. The sermon is below, but the American Jesus blog warns to not stand too close to the screen because you will want to punch it out. I don’t want to be responsible for any sane person having to buy a new monitor.