On Thursday evening, a federal district court judge overturned Virginia’s 2006 constitutional amendment, and other statutes, that defined marriage as between one man and one woman. The ruling, by Arenda L. Wright Allen, also required Virginia to respect same-sex marriages performed in other states. Allen’s ruling sets the stage for another appeal ultimately to the U.S. Supreme Court, which will be forced to address the matter in short order.

In the forty-one page opinion, Allen acknowledges the existence of a “spirited and controversial debate” about marriage in our society. However, the judiciary is poised to squelch that debate as needed:

While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary’s noblest endeavors is to scrutinize laws that emerge from such roots.

We see, based on conclusions that come later, that for Allen, the laws that protect marriage are rooted in “unlawful prejudice,” which is a sublime description of more than the last millennium of western civilization. What is the source of this prejudice? Allen states, “there is little dispute that these laws were rooted in principles embodied by men of Christian faith.”

Challengers claimed the U.S. Constitution’s Fourteenth Amendment as protection against the state laws. The Amendment’s relevant portion reads:

…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

On its face, the Due Process Clause allows government to deny citizens of life, liberty, and property, so long as due process is provided. This guarantees fair and impartial procedures. The Court has determined that some liberties are so precious they are beyond the reach of the state regardless of the process afforded. Such “fundamental” liberties are rooted in our history and tradition to the point that to lose them would erode our political culture. The Court reasons that marriage is one of those liberties.

A host of precedents support this view, as Allen notes, but only recently has same-sex marriage entered into this debate. Put differently, in recognizing marriage as fundamental, the Supreme Court has dealt with contraception, marriage within federal prison, and marriage between races. Establishing marriage as a fundamental right in those cases did not challenge the very nature of marriage, but only its application to particular males and females. Allen, however, views homosexuals as simply seeking to exercise this fundamental right to marry, much as other adults within the state. To pretend, though, that homosexual marriage is at all rooted in our history and tradition defies both history and tradition. Marriage, yes. Homosexual marriage? No.

Why is the state’s exclusion of homosexuals so critical for Allen? Because it interferes with human autonomy. Instead of pointing to any text that limits Virginia’s ability to pass such a law, Allen instead quotes from the most over-heated portion of Planned Parenthood v. Casey, a decision that affirmed Roe v. Wade.

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, childrearing, and education. Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Our precedents have respected the private realm of family life which the state cannot  enter. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human
life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Even though marriage is fundamental, the state may regulate it so long as it does so narrowly and to serve a compelling state interest. Proponents for Virginia’s laws* asserted three such interests–tradition, federalism, and “responsible procreation.” Allen rejects the first two without much difficulty, finding neither sufficient to justify the state’s deprivation of the fundamental right.

The “responsible procreation” argument rested on the proponents’ contention that the state has an interest in connecting children to their biological parents when possible. Allen argues, however, that while the state has an interest in child welfare, limiting marriage to heterosexuals “fails to further this interest.” Allen easily transitions away from procreation, the stated interest, and toward “welfare,” and then asserts that child welfare is not sufficiently furthered by an intact, nuclear family, and to say so would denigrate the various familial arrangements that currently exist.

Allen finds, then, the Virginia laws that define marriage as between a man and a woman as a violation of the Due Process Clause.

She then turns her attention to the Equal Protection Clause claim. Essentially, the government is required to treat people in similar situations the same. If government does not do so, it must have, at minimum, a rational explanation unless the people being treated differently are a “protected class.” Generally, these protected classes have support within other parts of the Constitution–such as racial and religious minorities.

To her credit, Allen does not attempt to justify homosexuals as a protected class, but she rules that Virginia has no rational explanation for treating homosexuals differently from similarly situated heterosexual couples, largely for the same reasons she stated previously. She rules that there is no reasonable relationship between Virginia’s discrimination and its purposes, so Virginia’s laws are also an affront to the Equal Protection Clause.

What do we make of this ruling? First, it is an obvious and reasonable step removed from the Court’s decision last summer to strike down the federal government’s own definition of marriage (Windsor v. United States), which was largely built on previous decisions in Lawrence v. Texas, Romer v. Evans, Planned Parenthood v. Casey and Griswold v. Connecticut. Though the Supreme Court did not overturn California’s ban on same-sex marriage last summer (in Hollingsworth v. Perry the Court concluded one of the parties did not have standing), the seeds sewn in Windsor are sprouting. Based on these precedents, and the fact that such cases will inevitably make their way to the Court, I cannot imagine a scenario in which the Supreme Court will uphold state bans on gay marriage.

Second, Allen’s reasoning has no obvious limiting principle. Using her justification of autonomy, many regulations that infringe on individual, sexual choices that may subjectively define us are on tenuous ground. Those dealing with marriage are especially vulnerable. What could the state’s rationale be for withholding official recognition of polygamy, polyandry, polyamory, or any other consensual arrangement that may or may not produce children? After all, don’t all individuals have the ability to define themselves as they see fit? I am not a believer in slippery slope arguments, but the rationale stated here shows no clear way for the state to justify any such regulations.

Third, and finally, the opinion seeks to disconnect biological procreation from the family unit, or it at least asserts that the state cannot prefer particular family structures. I am not an expert in the various studies of marriage, family structure, and the influence these structures have, or do not have, on children. However, our relatively fractured family unit has only become prominent during the past century, at least in western culture. For Allen to assert that we understand, to the point of judicial certainty, that varying family definitions have no discernible influence on child welfare reveals her ignorance. Given how new this debate really is, we cannot know, nor can we predict, what homosexual parenting or changing definitions of marriage will do, or not do, for children and, by extension, society. Even if we think that social science will yield a consistent and coherent picture of this future reality, it cannot do so yet. Allen, though, clearly understands what cannot be understood to the point that opposing views are unreasonable. Our federal judges, especially on the Supreme Court, have been rightly ridiculed for being armchair interior decorators (Allegheny County v. ACLU) and amateur psychologists (Lee v. Weisman). Perhaps it is time we formally add the bow of aspiring sociologists to the judiciary’s ever-expanding quiver of expertise.

Fourth, the real debate is no longer about the nature of marriage. As a political and legal issue, I assume the matter will soon be settled. The argument is about the extent to which others will be required to recognize homosexual rights when those rights conflict with other constitutional protections–particularly the free exercise of religion. For example, to what extent will the judiciary forbid religious organizations from discriminating against homosexuals in hiring practices? How will the Supreme Court resolve this tension between what it perceives to be these conflicting sets of rights? In answering these questions, as it must do eventually, since it is in the process of stripping our elected officials of any authority to decide them on our behalf, the Supreme Court will decide both the length and the depth of this dispute.

*The state Attorney General refused to defend the law, therefore others were forced to defend the law on the State’s behalf.