An Analysis of the Decision to Overturn Virginia's Marriage Laws

I knew the Bostic v. Rainey opinion would be a doozy before I even got to its substance. Excerpted at the very beginning—before the “Introduction” even—was this quote from Mildred Loving, the plaintiff in Loving v. Virginia (in which the Supreme Court struck down laws forbidding interracial marriage):

“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.”

This quote (part of a slightly longer excerpt) was troubling to me for two reasons. First, I have read hundreds—maybe thousands—of court opinions, and I have never seen one begin with a layperson’s analysis of fundamental rights. Second, the quote was a clear indication that the federal judge was in tune with this mushy, over-simplified construct of civil marriage being all about “me and the person I love.”

My suspicion was confirmed shortly into the substance of the opinion.

The judge explicitly framed the issue of the case as “who may enjoy the right to marry.” (Actual answer: “Anyone who is of the proper statutory age can enjoy the benefits of the relationship the Commonwealth defines as marriage.”). But the issue actually decided in the opinion was “may the State restrict marriage to the kinds of unions that effectuate its purpose for regulating marriage?” Answer of the court: No. Another way of phrasing it would be, “does the State have to endorse my relationship with whomever I love as a “marriage” upon my request?” Answer of the court: Yes.

Listening to some people talk, one would think that Virginia law actually forbade a homosexual person to marry. Of course, it doesn’t. But it also doesn’t guarantee to anyone a right to “marry the person he or she loves.” What if the person I love doesn’t want to marry me; is already married; is 11 years old; is my brother; is actual three persons, or is a cat? While I might prefer to marry my first cousin, I will have to settle for someone else. In short, if I want to qualify for the benefits that flow from a government-recognized marriage, I have to make a selection that qualifies. The State—as the entity conferring benefits—gets to decide which type of familial relationships to incentivize based upon its assessment of their benefits to society.

So, some will ask next, what about the old laws forbidding inter-racial marriage? Weren’t they unjust? The answer is: yes, they were unjust, because the color of skin of the respective spouses has nothing whatsoever to do with the kind of relationship formed. The requirement of racial sameness was both arbitrary and animus-based. Not so with the requirement of sexual complementarity, which is neither.

At one point in the opinion, the judge correctly states, “[Virginia’s] laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse.” Well…yes. And also to “only those Virginia citizens willing to choose” a non-family-member, a person of suitable age (again, by the Commonwealth’s standards), a person who is not already married, and a human.

She goes on to conclude from this that “These laws interject profound government interference into one of the most personal choices a person makes.” Wait a minute! Government interference? Who is seeking a marriage license from whom?

Curiously, Judge Wright Allen goes on to acknowledge that Virginia specifically allows all religious persuasions to adopt their own regulations for solemnizing marriages. She does not allege (nor could she) that anyone is being precluded from forming intimate personal relationships with the person(s) of his or her choice.

And yet, troublingly, the decision to strike down Virginia’s marriage laws is unmistakably couched in terms of “choice,” adding this decision to the long line of judicial disasters which brought us legalized—constitutionalized—abortion-on-demand and totally misunderstand the role of government and the nature and limitations of “liberty.” For this judge, “The ultimate exercise of our freedom is choice.”

Before this new, dreadful decision, gay couples in Virginia were perfectly free to solemnize their relationships in religious ceremonies, enter contracts regarding the disposition of their property, execute powers of attorney for purposes of medical-decision-making, etc. After this dreadful decision (unless it is overturned on appeal), what gay couples have is not more liberty, but a government rubber stamp defining their intimate association as “marriage,” despite the fact that the people who comprise their government definitively determined that this kind of relationship is not “marriage.”

It is difficult to see what would preclude a court, on this liberty-means-government-owes-me-something logic, from overturning prior decisions holding that while a woman may have a “right” to abort her unborn child, the government has no corresponding duty to ensure that she has the means of exercising this right (i.e., by providing funding for the abortion or a physician willing to perform it). Now gay couples not only have the “right” to form their intimate relationships—they have an artificial endorsement of it from “We, the People,” and the special privileges that had heretofore been reserved for one particular kind of human relationship that is, in fact, different in kind from the type they have formed.

From a constitutional perspective, another deeply troubling aspect of this opinion is the judge’s outright rejection of the mass of scientific and sociological evidence relied upon by the legislature in restricting marriage to heterosexual unions for the benefit of children. Without explanation, she simply concluded that the evidence did not support the Commonwealth’s stated interest. By so doing, she blatantly usurped what the judiciary has long considered to be a legislative function—weighing evidence and drawing conclusions from it before adopting specific legislation or public policy.

While it certainly is the province of the judiciary to protect the minority from arbitrary regulations that one can only conclude have been based upon a discriminatory animus, it is decidedly not the province of the courts to second-guess good-faith, evidence-based determinations reached by the legislature on important public policy questions. This is gross judicial overreach.

As I have stated, this court decision cannot seriously be based upon commitments to “liberty” or “due process” or “equal protection.” What it really is? A potentially fatal blow to any public policy with overtones of Absolute Truth. A resounding societal determination that there is an “optimal” situation for rearing children is dismissed not for being incorrect as an objective matter, but because it is “hurtful” to those who—through the exercise of their own choice—do not offer that situation.

Fairness, by the standards of this precedent, has been re-defined. Treating people the same under the law (as, in fact, our current marriage laws do) isn’t enough if it means some of those people—through the exercise of their own choice--don’t end up with the same certificate as others.

In Planned Parenthood v. Casey, the U.S. Supreme Court perplexed legal scholars when it declared that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Judge Wright Allen quoted this passage in this new decision that builds upon the terrible legacy of “choice” perpetuated in Casey. But according to Judge Wright Allen, at the heart of liberty is not only the individual’s “right to define” these concepts; for her, at the heart of liberty is the individual’s “right” to have the government approve.

Liberty--or Fear?

I am convinced that an Article V Convention of States may be our nation’s last hope for preserving liberty and returning an out-of-control federal government to its proper, constitutional place.

As a lover of our Constitution, I can appreciate genuine concerns about the adequacy of procedural safeguards to ensure that this great bulwark of self-governance does not become the victim of some “runaway convention” or leftist conspiracy. The proper response to such genuine concerns is the provision of accurate information. So, to those who have expressed such concerns to me, I have responded by providing historically accurate data which demonstrate that: (a) our current Constitution is decidedly not the product of a “runaway convention,” but is absolutely legitimate; (b) there is no real mystery as to the methodology of an interstate convention, because such conventions were prevalent at the time Article V was drafted; and (c) there are incredibly strong safeguards in place to ensure the demise of any conspiracy to subvert the will of the States that issue the call for restraining federal power.

Of course, at the end of the day, no one can provide the fearful fretters with an ironclad guarantee about any future event. At the end of the day, each of us must choose whether we will take what tools we have been given and use them to repair the damage that ill-conceived, anti-historical interpretations of our Constitution have done to the social compact our forefathers constructed, or whether, instead, we will bury our heads in our hands, insisting that the tools provided in the Constitution itself are dangerous and that there are insufficient competent laborers to perform the commission.

Great men and women will choose the former. They will choose to act.

They will tremble at the gravity and enormity of the task. They will consider carefully the textual provisions of the Constitution that have been perverted to facilitate federal aggrandizement and the alternative textual antidotes that would best clarify—in black and white--the actual intentions of the noble, learned drafters of the original text. They will labor diligently to educate constituents, friends and neighbors so as to foster educated, informed participation and ownership by the people. They will count the cost.

But in the end, great Americans will be driven to action by the conviction that a nation aspiring to be a self-governing people under God cannot also be a nation of people who passively succumb to tyranny because they are afraid of wielding the very weaponry provided to preserve their liberty. They will ascribe to Dietrich Bonhoeffer’s view that the right path is the path of Action:

“Daring to do what is right, not what fancy may tell you,
Valiantly grasping occasions, not cravenly doubting—
freedom comes only through deeds, not through thoughts taking wing.
Faint not nor fear, but go out to the storm and the action,
Trusting in God whose commandment you faithfully follow;
Freedom, exultant, will welcome your spirit with joy.”