Hardly a day goes buy without a marriage equality victory, and the latest was a doozy: Virginia! Not only is it the state for lovers, it’s also home to the historic Loving v. Virginia case that overturned interracial marriage.
And now it’s also home to the historic Bostic v. Rainey case that twice found that banning marriage for gay and lesbian couples is unconstitutional.
The Fourth Circuit Court of Appeals issued its decision today in AFER’s case. (Remember AFER? The group that won marriage back in California? Yeah they’ve been hard at work on the other coast for the last year, racking up more wins.) The next stop is probably the U. S. Supreme Court — the losing side has two weeks to petition the Fourth for a reheating, or three months to petition the Supreme Court. The state should follow the advice of the North Carolina attorney general, who today said he would not appeal the ruling because “There’s really no argument left to be made.”
We’ve collected some of our favorite quotes below. This win is a big, big deal, beyond just Virginia’s state lines. Because it came from the Fourth Circuit, it also covers North Carolina, South Carolina, and West Virginia. North Carolina capitulated immediately, and this win makes victory in those cases far more likely. (The Fourth Circuit also includes Maryland, but they’ve had marriage equality for the last year and a half.)
In North Carolina, a coalition of religious groups sued the state, claiming that the ban known as Amendment One violates their religious freedom to solemnize weddings. That’s a pretty novel argument, and it must be delightfully galling to anti-gay fundamentalists that our side can cite religious as urgently as they can.
Both West Virginia and South Carolina have cases that were effectively put on pause by judges who were waiting for the Bostic ruling. So, now that we have it, and it’s awesome, it’s very likely that those cases will start back up again. And we’ll probably have more victories very soon — possibly within the next few days. Or possibly in a few months. The judicial system is totally unpredictable, like a colony of drunken bats!
Until we have those wins (or, possibly, but probably not, losses), let’s take a look at the highlights from today’s ruling.
Oh, Right, the Constitution
Here’s our favorite quote:
The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.
First of all, this is awesome because of the retro use of “countenance,” like one of the Brontë sisters wrote this ruling.
But it’s also great because it gets to the real meat of the case: Does the U. S. Constitution protect LGBT couples? And yes, yes it does, says the court. This isn’t a huge shock, since around two dozen other courts have issued similar rulings in the last year. But it’s still nice to hear.
It’s also important because a recent brief by the Attorney General of Wisconsin, J. B. Van Hollen, claimed that the U. S. Constitution can’t protect LGBT citizens by discrimination by the state. That’s obviously a nutty argument, and we’re glad to see that courts aren’t giving it any credibility.
In fact, the court also wrote,
“[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” … states must exercise their authority without trampling constitutional guarantees.
That’s pretty much a direct rebuke of lawyers who argue that the Constitution doesn’t apply to them in these cases.
Think of the Kids
Here’s another good line:
“there is no scientific evidence that parenting effectiveness is related to parental sexual orientation.” … “the parenting abilities of gay men and lesbians—and the positive outcomes for their children—are not areas where most credible scientific researchers disagree.”
Our opponents tried to claim that kids need a biological mom & pop in order to grow up properly, and that gay and lesbian parents are sub-optimal. That’s just not true, according to every single real medical organization in the country. (The American College of Pediatricians disagrees, but — surprise! — they’re a phony medical group, recently founded by bigots for the sole purpose of disguising their bigotry as science.)
Fortunately, the Fourth Circuit recognized that real doctors are happy with gay and lesbian parents. In fact, the above quote wasn’t even written by the court; it was written in an amicus brief by medical groups, and the court liked it so much that they simply included it in their decision, calling it “extremely persuasive.” Nice work, docs!
Comparing LGBT marriage cases to other marriage cases can be tricky business. Nobody wins when you play the “which disenfranchised group has suffered more” contest.
But there are plenty of similarities between recent marriage cases and ones that have come in decades past. The Fourth Circuit compared Bostic to cases like Loving (interracial marriage) and Zablocki v. Redhail (marriage for alimony violators):
These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.
This is some pretty flowery language, but the meaning is clear. It doesn’t matter who you are, or what characteristics define you; the freedom to marry extends to all people.
Obviously, the court doesn’t intend to say that all people should be allowed to marry whoever or whatever they want. (Relatives, kids, multiple partners, animals, etc.) That would be so insane that it goes without saying. But our crazier opponents love to pretend that letting gay and lesbian couples marry justifies opening marriage up to all kinds of weird relationships. In the future, we’re hoping that court decision qualify that “broad right to marry that is not circumscribed” by adding that they’re not talking about “outside the box” relationships like, you know, Clint Eastwood talking to a chair. Because apparently some people really think that’s the next step.
None of Your Business, Bigots
Check this line out:
…allowing loving, committed same-sex couples to marry and recognizing their out-of-state marriages will strengthen the institution of marriage. … Prohibiting same-sex couples from marrying and ignoring their out-of-state marriages does not serve Virginia’s goal of preventing out-of-wedlock births. … barring same-sex couples’ access to marriage does nothing to further Virginia’s interest in responsible procreation.
In other words, stop harassing gay and lesbian couples, you crazy bigots. They’re not hurting anyone, no matter how much you claim that they are. In fact, the court is saying, gay and lesbian couples are actually good for marriage.
We can only imagine (with great glee) the gnashing of teeth that must be happening at the National Organization for Marriage right now. That is, if they’re not all passed out drunk at this point.
Stop Talking Crazy
Let’s expand on that “good for marriage” argument from the last quote. Gay and lesbian couples can make the institution of marriage stronger, the court is saying. And at the very least, they won’t make it worse.
There is absolutely no reason to suspect that prohibiting same-sex couples from marrying and refusing to recognize their out-of-state marriages will cause same-sex couples to raise fewer children or impel married opposite-sex couples to raise more children.
Got that? Anti-gay weirdos love to claim that somehow, letting us marry will cause straight couples to break up, or stop having babies. This is, to put it nicely, nuts. Or as one court recently wrote, “these arguments are not those of serious people.”
Gays are not Straight, and This Matters Somehow
Let’s also take a peek at the dissent, written by Judge Paul Niemeyer. He doesn’t make a compelling argument, and his whole dissent boils down to “gay and lesbian couples are different from straight couples, and this is important for reasons I can’t fully explain.”
In previous marriage cases, he writes, “The type of relationship sought was always the traditional, man-woman relationship to which the term ‘marriage’ was theretofore always assumed to refer.”
Okay, sure, that’s true. But who cares? What difference does it make? Yeah, sure, Loving v Virginia was about a straight couple, because it had to be. Straight culture had oppressed LGBT couples for so long and with such thoroughness that no gay couple could possibly have brought that case and won. That doesn’t mean that there weren’t lots of interracial same-sex couples at the time. Gay and lesbian couples are similarly situated to any other loving heterosexual couple.
It’s likely that all of the previous cases were about right-handed couples. Or couples who dislike broccoli. Or couples raised in a religious faith tradition. None of these things matter or have any bearing on the constitutional question.
Niemeyer also points out,
Only the union of a man and a woman has the capacity to produce children and thus to carry on the species.
Yeah, again, who cares? This is true, but so what?
Niemeyer is trying to say that gay marriage is simply too novel an experiment to judge in the same way as interracial marriage. (We’re sure that judges had the same thing to say about interracial marriage, back in the day.)
But this is a claim that only a straight person who has totally isolated himself from the world could make. Gay couplehood is not at all novel to us. Or to our families. Or to anyone who’s made an effort to get to know the gay people in their lives.
His argument doesn’t hold water, and at the end of the day, it’s clear why two of his colleagues ruled in our favor. Watch out Antonin Scalia, on to the U. S. Supreme Court!