A Fantastical Decision on Marriage in Virginia

Even if you brush over the fact that U.S. District Judge Arenda L. Wright Allen confused the Declaration of Independence with the United States Constitution in the first paragraph of her opinion, the rest of the opinion is still sloppy.

The case was Bostic v. Rainey, where two same-sex couples challenged Virginia’s constitutional definition of marriage. Wright’s 41-page opinion is full of emotion but little legal substance.

While recognizing a “spirited and controversial debate is underway” in our nation on the issue of marriage, Judge Wright undercuts that debate by turning her prejudices into facts and concluding that the state’s definition of marriage is unconstitutional because it is “rooted in unlawful prejudice.”

Credit: AP 

You would think such a conclusion would require careful consideration of the facts, especially when this case is about the 1.3 million people who voted to define marriage as the union between one man and one woman in the state’s constitution.But Judge Wright’s feelings of historical significance seem to undercut those efforts.

The Judge’s personal views color every detail of the opinion. She considers this a challenge to Virginia’s “same-sex marriage ban.” But the Commonwealth has no such ban any more than it has a polygamy ban or a ban on any other relationship outside of the state’s definition.

Just by reading the judge’s recounting of the facts you can see where she stands. One couple has “lived together continuously in Virginia for almost 30 years.” Would it make a difference if they’d been together for 30 hours? One plaintiff is a veteran of the U.S. Navy. Good to know. And another even “specializes in research on teaching autistic children,” an indispensable fact in the case, apparently.

You get the picture.

Army Capt. Michael Potoczniak, at left, and Todd Saunders, right, of El Cerrito, Calif., exchange rings as they are married by deputy marriage commissioner John Loschmann, center, at City Hall in San Francisco, Saturday, June 29, 2013. Credit: AP 

Wright equates “sexual orientation” with race because … well, because she can. There is no discussion of immutability or suspect classification, which would be the proper legal exercise to go through in order to make such a claim. She simply pronounces it “so” with great impact from quotes from Abraham Lincoln and Mildred Loving (from the famous civil rights case, Loving v. Virginia).

With little discussion, Judge Wright concludes Virginia’s constitutional definition of marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. She does not take time to evaluate Equal Protection at all. And on her anemic Due Process discussion, she dismisses the most important matters with a radical revisionist view of history.

In order to re-define marriage today, she re-defines marriage in history, therefore, proving that any departure from history violates the constitution.

To apply a strict scrutiny standard (the highest available), which she does in this case, the law must deal with a “fundamental right” that is “deeply rooted” in the nation’s history.

First, on the fundamental right question, she declares that since the Supreme Court has recognized a fundamental right to marry (notice this meant one man and one woman historically), there is a fundamental right to same-sex “marriage.”

But wait. There was no fundamental right to same-sex “marriage,” she just added that to what the Court had already said in relation to traditional marriage.

And deeply rooted in the nation’s history?

Again, if you re-define marriage in history (to include same-sex couples), then yes. But, of course, we all know that this is preposterous. Marriage in the U.S. has always been between one man and one woman. You can’t change history to use it as proof that history supports your theory.

Unless you’re a judge. Then you get to do what you want in order to bring “progress” to the nation.

Let us hope the appellate court sees through this flawed reasoning and, whatever their personal feelings on the issue, strikes down this fantastical decision.

Mario Diaz serves as Concerned Women for America's (CWA) Legal Counsel and leads CWA's Legal Studies Department. Mr. Diaz is a Constitutional Law scholar who focuses on cases and legislation dealing with CWA's core issues: religious liberty, sanctity of human life, defense of the family, sexual exploitation, education, national sovereignty, and support for Israel. He also directs CWA's amicus briefs and our work on judicial nominations and judicial activism. 

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