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.

An Open Letter to our Attorney General

As a Virginian and an attorney, I am alarmed by the violence you have done to the integrity of the legal profession and to the institution of marriage by pitting the authority of your office directly against Virginia’s Constitution.

As your office’s website explains, it is your duty to serve as “the Commonwealth’s law firm.” Every attorney has a duty to zealously advocate his client’s position in court, and while there are limited circumstances in which he may be permitted to withdraw from representation, it would be inconceivable for him to then actively participate in the case being made against his client. In submitting a brief that argues that Virginia’s Marriage Amendment is illegal, this is, effectively, what you have done. And for no good reason.

Contrary to the spurious claims of some, this constitutional provision is not some relic of bigotry, oppression, or injustice. By declaring that “only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth,” Virginia’s Marriage Amendment merely affirms the most basic criteria for a functional definition of marriage that corresponds with the purposes of the state’s regulation of it.

This provision does not “ban” intimate gay relationships any more than it “bans” friendships. Rather, it recognizes that traditional marriages are unique in terms of their particular role in society.

Consider that when the government offers tax advantages to environmentally conscious businesses or homes that meet specified criteria, it does not, by so doing, “ban” those who do not meet those standards, nor even express disapproval of them. But it reserves a special benefit to those who are behaving in a way that benefits society as a whole. It incentivizes those who provide an essential public good.

In the same way, Virginia’s Marriage Amendment preserves the legal benefits of civil marriage for those who form the particular kind of permanent, exclusive union that is best suited for producing and rearing the citizens of tomorrow. Others may raise children with love and do it well, but the best available evidence indicates that there is simply no alternative family arrangement that rivals traditional marriage in the ability to prepare children to flourish in a world populated by both men and women.

While your brief seeks to analogize the Marriage Amendment to old, unjust laws against interracial marriage, this logic does not withstand thoughtful analysis. A requirement of racial sameness for spouses is arbitrary; it has nothing to do with the purpose of state regulation of marriage--providing an incentive for those whose union is likely to produce offspring to stick together and raise them. The requirement of gender complementarity, on the other hand, is unquestionably central to the fulfillment of the purpose of civil marriage laws, because it is precisely the union of a man and woman that produces the children who will benefit most from the permanence and exclusivity of their parents’ union.

Eliminating these criteria from the definition of civil marriage is appropriate only if we, as a society, determine that the purpose of civil marriage is fundamentally different from what it has always been. If, however, we still regulate civil marriage on the basis of its unique potential to benefit society, then it is properly limited to the one kind of relationship that is so clearly shown to do that.

The great, lasting societal harm you are inflicting in waging this battle against your client, Mr. Herring, is this: the reduction of civil marriage to a mere stamp of government endorsement on individual “choice.” For the 57% of Virginians who voted in favor of the Marriage Amendment, marriage is something much different—much farther reaching—than that.

Mr. Herring, if you are utterly unable to discern the reason and rationality behind the expressed will of the people of Virginia with regard to defining marriage, and if you are unwilling to zealously advocate the best possible case for our Constitution when it is challenged due to your own personal, philosophical beliefs or desires, then I respectfully request that you resign your office.

Considering "Marriage"

Pasted below is the text of my op-ed, which was published in the Roanoke Times today. The link is here.


As Virginia’s Marriage Amendment comes under attack both in the courts and the legislature, Virginians should be critically examining the question of why the state regulates marriage and whether its definition should be stretched to encompass committed same-sex couples. Having done that, we should consider what our answers mean for all marriages.

Those who favor expanding “marriage” have framed the issue as one of “equality” or “non-discrimination.” While these labels are incredibly effective at winning popular support for the cause, they are misplaced in this debate.

“Inequality” and “non-discrimination” are repugnant when they involve making arbitrary distinctions between like things; not when they distinguish between things that are, in fact, different in relevant ways. So sound public policy on marriage—as with any other regulated good—requires that it be defined to include whatever qualifications are necessary to effectuate the purpose of state regulation, but to exclude any that are arbitrary.

Historically, the purpose of civil marriage has been to provide societal incentives for those who unite physically and produce children to stick together and raise them. The best scientific evidence supports what society has historically intuited: that the nurturing and training of children is optimally performed by both biological parents. This is not to say that others who undertake the task should not be commended and supported, but rather to recognize that there is an ideal situation for children which should be encouraged. Males and females offer different, yet equally vital, strengths to parenting; neither gender is dispensable.

As long as the primary purpose of civil marriage is to foster optimal child-rearing by the very individuals whose union has produced the children, defining marriage as a specifically heterosexual bond is not an act of invidious discrimination toward other kinds of relationships, because heterosexuality is a necessary definitional component.

While many support same-sex “marriage” out of a desire to demonstrate goodwill and support for the intimate relationships of LGBT persons, redefining the venerated institution of marriage is unnecessary to this goal. Traditional civil marriage laws do not brand homosexual relationships as “bad”; they brand heterosexual marriage as being “unique” to society in ways that justify its civil recognition—leaving gay couples in good company with every other non-regulated relationship in society, including friendship.

But redefining marriage is also harmful, because it would signal a fundamental change in the purpose for state regulation of all marriage that could ultimately render marriage irrelevant. Defining marriage to encompass same-sex couples (thus eschewing objective characteristics such as gender) means defining marriage on the strength of two individuals’ emotional bond and subjective desires rather than on their potential to benefit society by creating an ideal situation for nurturing children. Once this is done, on what fair, rational basis could the benefits of civil marriage fairly be denied to brothers, roommates, or best friends—relationships that offer no unique societal benefits?

Once relational configurations that are inherently unlike traditional marriages are brought within the fold of “marriage,” the definitional enclosure will serve little public purpose. As explained in the recent book by Girgis, Anderson and George, What Is Marriage?, “Laws that restrict people’s freedom for no deep purpose are not likely to last, much less to influence behavior.” Expanding the contours of civil marriage beyond those dictated by its societal purpose will stretch the institution to pointlessness.

The flavor of marriage has changed over time. The historical conception of marriage was more focused on duty, commitment, and sacrifice than self-fulfillment and personal happiness. This attitudinal shift may explain the universally sorry statistical condition of the institution of marriage today. But it also explains why, to many, expanding marriage seems appropriate. If marriage is about having society’s stamp of approval on the relationship that brings me the most joy and fulfillment, then why shouldn’t my own desires determine what kind of relationship that is?

Marriage is at a crossroads not only because allowing for gay “marriage” means formally changing what marriage is, but also because retaining the old definition requires us to admit that our contemporary, self-centered attitudes about marriage have informally effected such a change already. For those who support the traditional definition of marriage as oriented toward the public good, integrity requires us to rebuild this attitude toward marriage as well.

Truth is Not a Fragile Thing

Tonight in Bridgewater, conservative and liberal elements of my community will gather for an exercise in disciplined listening. We will hear two different pastoral perspectives on "The Church and Same-Sex Marriage." This "encounter" is the first of two on this topic; the next one, tentatively scheduled for next spring, will feature two policy experts discussing public policy considerations surrounding same-sex marriage.

I hope that we can pack the house tonight with folks who are willing to listen in good faith to both positions, and to consider their respective merits and shortcomings.

I say this despite the fact that I have a definite belief as to which position is "true," "good," and "beautiful." I welcome the discussion and the challenge it poses to my worldview, because Truth is not a fragile thing.

I submit that anyone who is committed to the existence of absolute Truth, absolute Values, should welcome every opportunity to discuss their existence. For if they do exist, they cannot ultimately be disproven, nor will their existence be diminished by any person's refusal or failure to acknowledge them. On the other hand, if they do exist, every opportunity to discuss their existence is an opportunity to allow others to see them.

In The Abolition of Man, C.S. Lewis argues that teachers do their students--and, by extension, society at large--a great disservice when they set out to "debunk" the emotion or dismiss its importance. He writes, "For every one pupil who needs to be guarded from a weak excess of sensibility there are three who need to be awakened from the slumber of cold vulgarity. The task of the modern educator is not to cut down jungles but to irrigate deserts. The right defense against false sentiments is to inculcate just sentiments. By starving the sensibility of our pupils we only make them easier prey to the propagandist when he comes. For famished nature will be avenged and a hard heart is no infallible protection against a soft head."

In the same way, I think "Christian conservatives" do a great disservice to society when they dismiss liberal, relativist worldviews with an arrogant shaking of the head, as if those who held such worldvivews were a lost cause, not worth the time and effort of engagement. First of all, "we" don't know everything, and not everything is absolute. But beyond that, we serve as poor spokespersons for our own worldview when we walk away from the table. When we behave as if Truth is no better than a spoonful of canned peas, having no real flavor or textural value, but simply demanding digestion as a matter of lukewarm nutritional fact, I wonder if we, ourselves, really understand Truth so well as we think.

Truth is not a fragile thing, nor is it tasteless, nor dependent upon our blind, unthinking, submissive digestion. It is the stuff that both cuts down jungles and irrigates deserts. It is robust, vigorous and vibrant. It is so whether we know it or not, whether we like it or not. It is too great for us to fully or perfectly comprehend and verbalize, and yet enough of it has been revealed--and enough is innately known--to attract our devotion and pursuit.

Let us, who believe that Truth IS, welcome those to the table who believe that it is not. Let us go to THEIR table. Let us hear their best explanations and struggle over them. We may all walk back to our same "corners" in the end, but we will walk back wiser, perhaps questioning some of our assumptions while our brethren question some of theirs. But Truth will shine on, unchanged and unsoiled, and those who truly seek it will find it.

Selling No-Fault Divorce to Moms?

Where shall I begin with my reasons for being outraged by this latest political ad put out by Terry McAuliffe's campaign? McAuliffe wants to be Virginia's next governor, and his strategy apparently involves duping women into believing that his opponent, Ken Cuccinelli, sponsored legislation that would make it harder for "moms" (but not dads) to get divorces. This assumes, of course, that we "moms" place a premium on the availability of quick and easy divorce.

I resent this ad for making a mockery of a sacred marriage vow [note the "Leave It to Beaver"-esque graphic and the old-fashioned, "I Love Lucy"-esque font of "For Better or Worse"]. This is a vow that my husband and I took before God. While we, like most couples, have not kept our vows perfectly, I hope and pray that we will keep this particular one, for the permanence of the marriage relationship is its very essence.

It is repulsive to me that a political campaign would seek to win my support by scoffing at a principle as noble and good as simple loyalty and commitment to one's family.

I refute the ad's deception. The ad makes it sound as if Cuccinelli's bill targeted "moms," making it harder for them, specifically, to get divorced if their husbands object. This is simply false. The bill (of course!) applied the same way for both spouses. Obviously McAuliffe's campaign wants to prey upon a woman's fear of being trapped in an abusive situtation. But abuse is always a legal justification for divorce, and Cuccinelli's bill would have done nothing to change that (for, as it turns out, Cuccinelli is not, in fact, a monster).

What the McAuliffe camp apparently doesn't think we "moms" will figure out is that Cuccinelli's bill would have helped the countless struggling moms who have been left holding the bag when their husbands decided to walk out on the family for no reason other than that marriage was no longer exciting, or that the demands of child-rearing had become difficult.

Finally, I reject the premise of the ad: that no-fault divorce is good for women and that we therefore favor its ready availability. Divorce is one of the leading causes of women and children being thrust into poverty. It is not good for women; it is not good for anyone, but rather is a necessary evil under certain circumstances. This is why I (and many other women I know) believe that legislation like that proposed by Cuccinelli makes good sense. Is it unreasonable to insist that, at least when the marriage has produced children, the divorcing spouse should actually identify a reason for breaking up the family? I think not.

McAuliffe's campaign may think that they have done something really savvy and "progressive" by making the permanence of marriage appear to be silly, oppressive, and out-dated for women. If so, then they are sadly out of touch with the better part of human nature. I have seen enough gray-haired couples holding hands and laughing at cherished family memories to know that I want that "for better or for worse" kind of marriage. I have been married long enough to know that we are all sometimes "better," and we are all sometimes "worse." But if society is ambivalent to whether or not our own spouse sticks with us through the days when we are "worse," then what kind of society is it, and what security does it provide?

No one benefits from laws that make it "easy" to abandon a family. When our society stamps approval upon a parent's decision to break a family--and his own vows--simply because he has changed his mind, we all lose.

Of Martin Luther King, Jr. and Today's "Liberal" Causes

In a recent article, Professor Peter Dreier appropriated Martin Luther King Jr. as champion of the “liberal” side of several raging public debates. Having been inspired from childhood by the justice of King’s struggle for racial equality and the effective and eloquent way in which he pursued his “Dream,” I find Dreier’s conclusions surprising and counter-intuitive. I reject the assumption that this giant of a man can be so neatly categorized.

Dreier claimed, for instance, that “King would stand — and sit in when necessary — with the LGBT community to help push states toward legalizing same-sex marriage…” The staggering presumptuousness of such a statement is exposed by the preceding sentences, in which Dreier first concedes that “King did not approve of homosexuality,” but then declares that King’s viewpoint would certainly have changed over time in light of the NAACP’s position and growing support for gay rights among black clergy members.

First of all, it is the height of arrogance for anyone to start from King’s known, stated position (disapproval of homosexuality), and assume that he knows King’s psyche, religious convictions and motivations well enough to conclude that King would have done an about face as a result of special interest groups or polling data.

But beyond that, the rationale behind Dreier’s conclusion is unconvincing. Historical giants like King are historical giants precisely because they don’t form their moral views based on cultural trends; rather, they resist man-made constructs that ultimately harm and degrade human beings and lead us, instead, to what is true, good, and beautiful.

William Wilberforce stood against the slave trade and Dietrich Bonhoeffer against the Nazis because, like King, Wilberforce and Bonhoeffer believed that every human being is created in the image of God and therefore has unique dignity and inherent worth. There is no escaping it: at the core of these heroes of humanity is a decidedly and specifically biblical worldview. Their passion for honoring the teachings of Jesus Christ was their motivation for waging war against various iterations of human oppression.

Where would King have stood on gay marriage? I don’t presume to know the answer. Although the Bible consistently identifies homosexual activity as a moral wrong, many today profess to be convinced that Jesus Christ himself would have championed gay marriage as a step toward love, compassion and equality.

My respect for King is deep enough, however, to convince me that he would have studied the Scriptures to critically evaluate that claim. In considering whether recognition of gay marriage really is loving and compassionate, he probably would have examined the reasons for marriage and the likely societal consequences of defining this fundamental institution based on individual preferences. He would have looked past value-laden labels and studied the contents of the package under a lens comprised of both compassion and truth.

Another label King would have parsed is that of “reproductive freedom.” Dreier trots out the fact that King once received a “Margaret Sanger Award” as ironclad proof that he would have been an abortion rights activist. Dreier candidly admits, however, that “King never spoke publicly about his views on abortion,” and that he was assassinated before Roe v. Wade was decided.

We live in a culture committed to the concept of liberty and obsessed with the idea of “choice,” so any conduct packaged in the trappings of “right to choose” (as any conduct at all might well be packaged) appears, superficially, to be a moral good. But I believe King would have balked at the idea of labeling one human being’s purposeful destruction of another human being as a liberty or “choice” that is beyond the power of a civilized society to restrict.

While supportive of Planned Parenthood’s educational efforts on birth control, I think King would have wept at the rate at which babies of color —babies with unique dignity and inherent worth — are being aborted. I think he would have been outraged that a whopping 80 percent of Planned Parenthood clinics are strategically located in minority neighborhoods.

It is impossible for anyone to credibly claim King’s endorsement for causes that arose after his death. But this much we know: King was a follower of Jesus Christ.

His boldness, compassion and commitment to serving others were beautifully consistent with the Christ depicted in the Bible. And just as Christ stood for timeless moral absolutes, I believe King would have looked beyond labels, politics, and polls and stood for transcendent truth, goodness and beauty.

Sorting Out the DOMA Decision

Even though my family was on vacation in Wyoming last week, I didn't escape the brouhaha over the Supreme Court's same-sex marriage decisions.  (The ecstasy and the agony of a smartphone!) Because this issue is so emotionally charged, however, I opted to wait until I was comfortably at home again--and able to read the Court opinions for myself--before entering into any discussion about them.

Having read United States v. Windsor, the decision dealing with the constitutionality of the federal Defense of Marriage Act (DOMA), here are some of my thoughts...

1.  Justice Kennedy, writing for the majority, both misunderstands and insults a widely embraced worldview (which I happen to share) when he concludes that Congress' recognition of marriage as being exclusively a  union of one man and one woman is necessarily based upon animus against homosexual individuals. 

There are myriad justifications for the decision of a majority of the nation's federal legislators (which, by the way, was ratified by a Democratic executive) to reserve special governmental benefits for a certain type of familial arrangement.  The most obvious, of course, is the deeply rooted, historically tested belief that children are most likely to thrive when raised in a stable relationship with a mother and father.

Assuming a connection between the desire to protect traditional marriage and an "animus" toward homosexual individuals or couples is simply assuming too much.  The two ideas are certainly not linked as a matter of logic.

2.  In a nation where the federal government is rapidly taking over every aspect of our lives, the Court was right to emphasize principles of federalism.  The majority's decision relied heavily on the power of States to define and regulate marriage.  It did NOT rule that homosexual couples have any constitutional right to be married, per se, but rather that the federal government had denied legally married homosexual couples the right of equal protection by refusing to recognize their state-approved union.

However strenuously I may disagree with that legal conclusion (because of its faulty premise, a questionable equal protection analysis, and the failure to recognize the federal government's right to define terms for its own programs), I wholeheartedly agree that when it comes to marriage and family, States should be taking the lead in making policy. 

It may be tempting for conservatives to think that with an issue this fundamental and this important, the federal government should have the final say.  My response to that, however, is three little words:  Roe versus Wade.

Beyond the obvious deficiencies in the logic and analysis of that fateful decision, the real tragedy of Roe v. Wade was that by constitutionalizing the issue of abortion (and by doing so in the most counterintuitive way), the Court, in a sense, withdrew it from the political process.  The Court threw the game, putting the ball on the abortion proponents' side and leaving the pro-life team to defend a precious few yards of ground with our hands tied behind our backs.

In short, I believe that the majority's decision on DOMA is significantly flawed.  But at least it leaves proponents of traditional marriage to gain what ground we can through the merits of our position, the winsomeness of our tone, and the examples we set in our own families.