Last last night, federal district court judge Arenda L. Wright Allen, an Obama appointee to the bench, struck down Virginia’s ban on same-sex marriage, in Bostic v. Rainey. Judge Allen opened her opinion with a lengthy quote from Mildred Loving, one of the plaintiffs in the 1967 Supreme Court decision striking down Virginia’s law barring interracial marriage, on the 40th anniversary of that decision:
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. . . . Government has no business imposing some people’s religious beliefs over others.
In her opinion, which she stayed pending appeal, Judge Allen, like Judge Heyburn in Kentucky did earlier this week, and a federal judge in Oklahoma did last month, rejected the argument that the religious beliefs of some citizens are a justification for depriving others of their constitutionally-protected rights. Judge Allen recognized that although Virginia’s laws on marriage “are endowed with this faith-enriched heritage, the laws have nevertheless evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia.”
Judge Allen rejected many of the standard arguments of the religious right against same-sex marriage: that it will demean the institution of marriage, damage children, and upend centuries of tradition. Bans on same-sex marriage, the court held, must withstand constitutional muster, despite the deeply held beliefs about religion and tradition that animated them. “Laws that fail that scrutiny,” she concluded, “must fall despite the depth and legitimacy of the laws’ religious heritage.”
The opinion recites, and then rejects, the parade of horribles that has become de rigueur in arguments against marriage equality: “Concerns that schools might be compelled ‘to teach that “civil unions” or “homosexual marriage”‘ should be ‘equivalent to traditional marriage’ and that ‘churches whose teachings[do] not accept homosexual behavior as moral will lose their tax exempt status,’ fueled the proposed legislation,” she noted.
The growing number of courts striking down bans on same-sex marriage hasn’t made these arguments disappear — in fact, the parade of horribles becomes more intense, and more imaginative. Activists and lawmakers are seeking religious exemptions (not just for churches) from recognizing the validity of legal same sex marriages at the state level, and at the federal level, members of Congress have introduced legislation, the Marriage and Religious Freedom Act, which would prohibit the Internal Revenue Service from denying or revoking a church’s tax-exempt status for its opposition to same-sex marriage. That may be a solution in search of a problem, but it’s a sign of how the conservative campaign for its version of religious freedom isn’t going to be quelled by the actions of so-called “activist” and “arrogant” judges.
