Loving For All In Virginia: Getting It Right The Second Time Around

By Mark Esposito, Weekend Contributor

Mildred_Richard_Loving_1967Somewhere 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.
Judge Allen ruled that same-sex couples were unreasonably discriminated against based on sexual orientation and denied due process and the equal protection of laws:
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

126 thoughts on “Loving For All In Virginia: Getting It Right The Second Time Around”

  1. davidm:

    You can use the thoughts of racist and senile Stephen Justice Field to support your proposistion that marriage was more than a contract in 1888, but you’d do well to recall that you’re judged by the company you keep.

  2. Before getting carried away with all of the flowery dictum about marriage in Maynard v. Hill, it is useful to remember that that case was not about the eternal bonds of matrimony; it involved the far less spiritual subject of property rights. I do not know whether the Babylonian king Hammurabi represented the last step of barbarism or the first step of incipient civilization, but I do know that section 128 of his famous Code reads, “If a man has taken a wife and has not executed a marriage contract, that woman is not a wife.”

    Further, the suggestion that the societal interest in reproduction endows heterosexual marriage with a special status superior to homosexual marriage relies upon a logically flawed natural law analysis that artificially restricts the concept of marriage as a basic good.

    I expressed my views on homosexual marriage in a comment on this site almost two years ago. http://jonathanturley.org/2012/05/27/marital-dischord/

    Judge Allen got it right.

    1. Mike Appleton wrote: “I do not know whether the Babylonian king Hammurabi represented the last step of barbarism or the first step of incipient civilization, but I do know that section 128 of his famous Code reads, “If a man has taken a wife and has not executed a marriage contract, that woman is not a wife.”

      Very clever of you to anticipate my response ahead of time. There have been quite a few comments going back to truly barbaric societies to justify changing marriage. Hammurabi… it is indeed questionable how to categorize it, but one thing I know is that marriage in our society is not done by executing a marriage contract. Did you execute a marriage contract? Most couples simply obtain a marriage license, and the officiate and witnesses sign it and files it with the State.

      Mike Appleton wrote: “Further, the suggestion that the societal interest in reproduction endows heterosexual marriage with a special status superior to homosexual marriage relies upon a logically flawed natural law analysis that artificially restricts the concept of marriage as a basic good.”

      I’m not sure where you are getting that perspective about the endowment of “special status superior to homosexual marriage.” That certainly is not what I have in mind at all.

      As a matter of natural law, I recognize no marriage other than opposite sex unions. It has to do with different biological equipment and functioning of the equipment and the purpose of gender diversity and all those things that we discussed ad nauseum in the past. My perspective is simply that civil institutions ought to properly acknowledge the marriage relationship according to natural law. Positive law should reflect natural law. The governing authority adds NOTHING to the marriage relationship. It does not empower the marriage to work or not work. Civil government simply acknowledges its existence.

      Now when the governing authority attempts to treat roommates the same way as marriage, it misses the mark. Suppose you have two young nineteen year old teenagers of the opposite sex who want to live together for the rest of their lives in platonic love, never to engage in sexual intercourse with each other, but they plan to engage in sex with others and raise children outside this relationship. Should the State acknowledge that relationship of permanent roommates as marriage? I don’t think so. It falls under contract law instead of marriage.

      In any case, these questions are the realm of the State to decide and not the Constitution. The Constitution says NOTHING about marriage. The closest it comes is denying the State legislature power to impair contractual obligations. I just don’t buy the argument about the Constitution guaranteeing privacy somehow equating to denying the States the right to legislate a definition of marriage. Even in Windsor, as bad as it was, the SCOTUS reiterated that marriage was in the domain of the States to regulate as they saw fit.

    1. The article is an obvious spoof on reactionary attitudes toward same-sex marriage, the legalization of which in certain states (including California) has been met with the argument that it’s a slippery slope to legalized polygamy, parent-child marriage, and interspecies marriage.

      Elaine this is what you wrote.
      I would be happy to change my opinion if any person can show me any reference which will show that the SCOTUS meant to include gay marriage as part of the word marriage in the Loving decision. Absent that, I see that you have no legal leg to stand on. I will also change my opinion on a state interest in marriage for persons of the same sex marriage when gay sex will result in children. Absent those points, I will still keep to the National Democratic party platform of 2008 which was not in favor of gay marriage, but would sanction civil unions. I hope, a faint one of course, that pro-gay marriage folks will call Obama a bigot for endorsing that platform too.

  3. randyjet,

    “Elaine, I see that you do not read many of the posts here. Most of the people who are for gay marriage also are for polygamy.”

    *****

    I didn’t mention anything about polygamy. Don’t know why you’re addressing that comment to me. What has reading posts on this blog got to do with the subject? Do you suppose that because I support gay marriage that I also support polygamy?

    1. Elaine
      In one of your posts you did mention polygamy as part of the slippery slope that opponents use to argue against gay marriage. You imply that is not a slope, which I had to correct you on since many if not most pro-gay marriage folks DO think is covered under the Loving decision. In fact, that is the official ACLU position. Logically and legally, if one can convert the word marriage as used in the 1967 Loving decision, to mean gay marriage, then polygamy is also a legitimate use of that term since polygamy was legal at one time. Gay marriage had not even been THOUGHT of in 1967, and to use it in that time and place is delusional or an outright fraud.

      Virtually all of the arguments you use to support gay marriage have even more force for polygamy. I think that the state has every right to define the term marriage as long as it applies to all legally. If the law prohibited gays from marrying others of the opposite sex, THEN it would be discriminatory and it would deny gays their rights with no legitimate state interest.

  4. Mespo – “DavidM, our resident baiter, knew that. Of course he did, but any prevarication will do when you have the short side of the argument..”

    You could say he is a master at what he does

  5. Oh my gosh, my morning coffee is all over my screen. My parakeet does look adorable this morning. 🙂

  6. davidm:

    “This was only part of his reasons, …”

    ***************
    Thanks for confirming exactly what I said yet implying I did otherwise. You must have gone to school at the School of the Americas.

  7. Elaine M:

    DavidM, our resident baiter, knew that. Of course he did, but any prevarication will do when you have the short side of the argument..

  8. National Report’s Disclaimer:

    *DISCLAIMER: National Report is a news and political satire web publication, which may or may not use real names, often in semi-real or mostly fictitious ways. All news articles contained within National Report are fiction, and presumably fake news. Any resemblance to the truth is purely coincidental . The views expressed by writers on this site are theirs alone and are not reflective of the fine journalistic and editorial integrity of National Report. Advice given is NOT to be construed as professional. If you are in need of professional help (and you may be if you are on this page), please consult a professional. National Report is intended for a mature audience and not for children under the age of 18.

    http://nationalreport.net/disclaimer/

  9. davidm,

    Regarding that man dog marry story: It’s fake! Do you also get your news from The Onion?

    Calif. Allows State-Recognized Human-Animal Marriage? No, It’s Satire.
    http://urbanlegends.about.com/od/Fake-News/ss/Calif-Allows-State-Recognized-Human-Animal-Marriage.htm

    Excerpt:
    Example:
    Via NationalReport.net, Dec. 3, 2013:

    California Allows First-Ever State Recognized Human-Animal Marriage

    San Francisco, CA — On Monday history was made at the Chapel of Our Lady at the Presidio in San Francisco as the first-ever state recognized human-animal marriage took place.

    Local resident 35-year-old Paul Horner was the groom during the ceremony. Joining him was his faithful dog Mac who is 36-years-old in dog years. Mac also decided to be the groom but ended up wearing a white veil at the last moment.

    Analysis: If you’ve seen the above article before, you may have encountered it on any number of cut-and-paste blogs that replicate material from other sites, but the text actually originated on a satirical website call National Report. As the site’s disclaimer page clearly stipulates, “All news articles contained within National Report are fiction, and presumably fake news. Any resemblance to the truth is purely coincidental.”

    The article is an obvious spoof on reactionary attitudes toward same-sex marriage, the legalization of which in certain states (including California) has been met with the argument that it’s a slippery slope to legalized polygamy, parent-child marriage, and interspecies marriage.

    1. Elaine M wrote: “Regarding that man dog marry story: It’s fake! Do you also get your news from The Onion?”

      Oh, man, they fooled me good. Thanks for setting the record straight.

      I was looking for the story about the woman from London marrying a dolphin back in 2005, and when I saw this one, I thought, wow, in our own backyard just a few months ago. I looked at the URL to make sure it wasn’t on the Onion, and then I looked for a disclaimer but did not find it. I obviously did not look hard enough. I will mentally put nationalreport.net on my list of websites to avoid reading. I hate fake stories. Thank you.

      Here is a more reliable source of the desire some people have to marry their pets:

      http://en.wikipedia.org/wiki/Human%E2%80%93animal_marriage

    2. Elaine, I see that you do not read many of the posts here. Most of the people who are for gay marriage also are for polygamy. The FACT is that the Loving decision does allow for polygamy since if you take the word marriage to include gay marriage, you have no right to exclude polygamy. While gay marriage had not even been thought of back when Loving was decided, polygamy had at one time been legal in parts of the USA and has a long thousands of years tradition and is allowed in Islam today.

  10. David:

    Marriage isn’t a ceremony. It’s a contract. Animals have no capacity to contract hence there can be no marriage. Plucking one silly example from one city does not a movement make. You might well as argue that permitting any marriage puts us on the slippery slope to animal-human marriages. Silly.

    1. mespo wrote: “Marriage isn’t a ceremony. It’s a contract. Animals have no capacity to contract hence there can be no marriage.”

      Defining marriage as merely a contract is part of how gays are changing the definition of marriage. It is part of the new modern definition being fought for. Traditionally, marriage has been much more than a mere contract.

      From Maynard v. Hill:

      “Marriage is something more than a mere contract … a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation. … Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. … The only inconsistency suggested is that it impairs the obligation of the contract of marriage. Assuming that the prohibition of the federal Constitution against the impairment of contracts by state legislation applies equally, as would seem to be the opinion of the supreme court of the territory, to legislation by territorial legislatures, we are clear that marriage is not a contract within the meaning of the prohibition. … They are of law, not of contract. It was a contract that the relation should be established, but, being established, the power of the parties as to its extent or duration is at an end. Their rights under it are determined by the will of the sovereign, as evidenced by law. They can neither be modified nor changed by any agreement of parties. It is a relation for life, and the parties cannot terminate it at any shorter period by virtue of any contract they may make. … “It is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”

      If the definition of marriage is changed to be a mere contract, it is not that big a leap to say that the definition can be changed to allow non-consent marriages. As was pointed out before, many have arranged marriages, not only in other countries, but here in our country. They are not illegal. If two sets of parents arrange to have their minor children marry, it is legal.

  11. George: I’d have to think carefully about this but you may have convinced me…that maybe concealed carry laws might not be such a bad idea after all.

    To think that there people like you walking around thinking such garbled angry thoughts is rather scary.

  12. George,
    When you have no idea what you are talking about, it would be much wiser to do some research before building such monumental straw men on a legal blog. Consent in this context infers “ability” to consent. In fact, to enter into any contract one must be competent legally in order for the contract to be valid. That is why kids who have not reached the age of consent cannot get married. It is also why an adult who has sex with a kid below the age of consent is guilty of felony rape, even if it was consensual.

    As for arranged marriages, that is a cultural thing, not a legal one. I am also aware of shotgun marriages where the groom may be singularly unenthusiastic about the matter. That does not make him incompetent, legally.

    Want to try again?

  13. George:

    BTW the Romans ruled about a million square miles for over a thousand years and brought peace to the tribes and civilization to the uncivilized. Ruthless in their hegemony they still gave us the foundation of modern law and democracy along with their cousins the ancient Greeks. I’d say they did ok as civilizations go and you might recall that Gibbon said one of the reasons for its demise was the rise of Christianity.

    1. Mesp wrote: “I’d say they did ok as civilizations go and you might recall that Gibbon said one of the reasons for its demise was the rise of Christianity.”

      This was only part of his reasons, which he said was because Christianity made people look to the hereafter which diminished their desire to sacrifice for the government of Rome. Gibbons placed more blame on the loss of civic virtue and Romans becoming more effeminate.

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