Monday, July 01, 2013

Why Virginia's Gay Marriage Ban Violates the 14th Amendment

One should never expect modern day Virginia to do the right thing willing.  At least not so long as the Virginia Republican Party is controlled by far right Christian extremists and their equally self-centered Tea Party cousins, the vast majority of whom describe themselves as "conservative Christians."  Lobotomized Christians might be a more apt description, in my opinion.  While the recent U. S. Supreme Court rulings did not directly impact Virginia's foul anti-gay Marshall-Newman Amendment (which amended the Virginia Constitution's Bill of Rights to take away rights), language in United States v. Windsor has set the stage for a constitutional challenge under the 14th Amendment to the U. S. Constitution which - contrary to what Ken Cuccinelli believes - DOES supersede Virginia's Constitution.  A column by Delegate Scott Surovell sketches out why Virginia will eventually see its anti-gay marriage ban fall.  Here are highlights:

There are two important issues.  First, whether Virginia allows gay marriages to take place in Virginia.  Second, whether Virginia recognizes gay marriages performed in other states.  The Supreme Court has not addressed Virginia's power to ban gay marriage.  However, United States v. Windsor puts Virginia in violation of the 14th Amendment.

The way the law stands today, the Supreme Court has not told Virginia that it must legalize gay marriage nor has it said Virginia's gay marriage ban is constitutional.  But it has effectively told Virginia that we must recognize gay marriages created in other states.  Virginia's Constitution specifically prohibits this and  puts Section 15-A of the Constitution of Virginia in violation of the 14th Amendment of the United States Constitution.

United States v. Windsor makes clear that government must recognize unions created in other states.

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.   The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. . . .

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose in equality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.  

The due process and equal protection provisions of the 14th Amendment explicitly apply not only to the Federal Government, but also to the states. 

No state may abridge the privileges and immunities of any of its citizens, or deny them due process of law or equal protection of the laws.
The 14th Amendment contained this language to prevent southern state legislatures from economically and politically disenfranchising freed slaves after the Civil War through the Black Codes which restricted black's movement, required year-long labor contracts, prohibited gun ownership, and made Blacks incompetent witnesses in court.  Virginia can no longer marginalize gay residents. 

There is an entire moral, religious, ethical backdrop to all of this which could fill ten articles.  I'm only focusing on the basic constitutional analysis above in this article.  Aside from the legal issues, I also believe it's morally wrong to marginalize people for who they love. 
I agree with his analysis and the only question is how long it will be before a federal lawsuit is filed challenging the constitutionality of the Marshall-Newman Amendment under the United States Constitution.  For me, that day cannot come soon enough.

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