By Peter Galuszka
It’s happening faster than anyone could have imagined.
Virginia’s constitutional ban on gay marriage by defining marriage as only between “a man and a woman” seems heading very rapidly down the hole. That was the upshot from U.S. District Court Judge Arenda L. Wright Allen in Norfolk yesterday. After a two-hour hearing The Obama nominee said to expect a decision “very soon.”
What some lawyers think that means is that she will declare the Virginia ban unconstitutional and issue a preliminary injunction forcing corrective action for two gay couples in Norfolk and Chesterfield Count who were denied marriage licenses by the state last year. It could happen in a matter of days.
Similar lawsuits are pending in Pennsylvania, Florida, Michigan and Utah. Gay marriage is now permitted in 17 U.S. states and in the District of Columbia. Lawyers on all sides see the issue as headed eventually for a decision by the Supreme Court. A Norfolk ruling likewise is expected to move very swiftly up the appeals ladder.
The hearing in Norfolk’s darkly paneled chamber oozed glamor and politics. Lead attorneys for the plaintiffs are Ted Olson and David Pies, regarded as rock stars for their high profile cases. They beat back California’s anti-gay marriage Proposition 8 in the U.S. Supreme Court last year. They were on opposite sides when the 2000 election between George W. Bush and Al Gore ended up in the highest court.
Said Olson in Norfolk, “What the Commonwealth of Virginia is doing is taking away a fundamental right. It’s the right of individuals, not the right of state, that’s what’s being taken away.”
The other side has some politically charged counsel as well. One is Austin Nimock, a lawyer for the defense who is part of the conservative advocacy group Alliance Defending Freedom. He said that that a ruling against the ban would “change the basic concept of marriage in Virginia” and that the institution has been a state tradition “for 400 years.”
Virginia’s new and controversial Attorney General Mark Herring was there as well. He shocked state conservatives by refusing to defend the marriage ban. And despite all the gnashing of teeth among Baconauts and other right wingers about Herring’s supposed dereliction of duty, another attorney general has done the same. Pennsylvania’s Kathleen Kane refused to defend that state’s gay marriage ban last July.
Basically, the arguments break down in two ways. The plaintiffs argue that the Virginia law is unconstitutional and smacks of the state’s dark history of racist and wrong-headed laws. Among them are its support for segregation, a ban on interracial marriage and denying women spots at the Virginia Military Institute, which gets state funding.
The defense says that marriage is traditional and is important for procreation. Attorney Nimock pounded that theme over and over, claiming that 99 percent of all children in this country are the product of interaction between men and women. Another defense lawyer, David Oakley, claimed that if political opinion is changing, then the decision should be made by the General Assembly and voters.
The problem is, said the plaintiffs’ lawyers and I wholeheartedly agree, the Bill of Rights and the constitution are designed precisely to protect the rights of minorities. If voters or their legislators could strip away individual rights at the whim of the majority, we’d live in fascism. You would think that for all their posturing with the “Founders” and the three-cornered hats, the right wings, especially the Tea Party people, would get that. As for procreation, plenty of 80-year-olds get married and probably aren’t entering the union to have children.
Anyway, it’s all happening very fast. It is way out of the control of the state’s conservatives and some church groups. Better get ready for a huge change.
Note: for a richly reported account on the evolution of Richmond’s gay community check out this story in Style Weekly
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