Anticipating marriage …

By Rebecca Glenberg, ACLU of Virginia Legal Director

Blog-SameSexMarriage-VA-223x223-V01Any day, we hope, the Fourth Circuit will issue its decision about Virginia’s discriminatory marriage laws. So it seems like a good time to take stock of where we are now and how we got to this point.

A year ago, in the ACLU case United States v. Windsor, the U. S. Supreme Court held that the federal government must treat married same-sex couples the same as any other married couple. In the last year, married lesbian and gay couples now have access to almost the full panoply of federal benefits – not to mention the official recognition of their union by their country’s government.

Once the Supreme Court acknowledged that the marriages of same-sex couples were deserving of legal status and respect, advocates across the country knew that it was time to knock down the barriers in those states that still did not have marriage equality. Virginia’s anti-marriage constitutional amendment was especially ripe for elimination, since it denied not only marriage to same-sex couples, but any “union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

The ACLU, the ACLU of Virginia, and Lambda Legal got to work right away, asking Virginia couples who had been hurt by the law to tell us their stories. We heard from hundreds of couples, from all walks of life, in every part of the Commonwealth. Some had been together for decades, and some were just starting out. Some were raising children together, but were told every day by their government that their children only had one parent.

We were thrilled to meet Joanne Harris and Jessi Duff, who are raising their son Jabari in Staunton. This warm and loving family takes seriously its commitment to its community. Joanne works as Director of Diversity and Advocacy at Mary Baldwin College, and Jessi investigates reports of child abuse for Virginia’s child protective services system. Although he is only five, Jabari understands that his moms are treated differently from other parents. Pointing to a photo of their commitment ceremony, he says, “Mommy and Momma DeeDee got married, and they need to really get married.”

Christy Berghoff and Victoria Kidd, another amazing couple, live with their toddler daughter, Lydia, in Winchester. They married in 2011 in Washington D.C., but their marriage is nonexistent as far as Virginia’s government is concerned. And although she works from home to stay with her daughter every day, Virginia’s government doesn’t consider Victoria to be Lydia’s mother.

When we met these two families, we knew we had our plaintiffs. While the 14,000 same-sex couples in Virginia are as diverse as the Commonwealth itself, the problems Victoria, Christy, Jessi, and Joanne face because of Virginia’s marriage laws are all too typical. Joined by Jenner & Block, a law firm that has donated thousands of hours to the cause of equality, we filed our lawsuit in federal court in the Western District of Virginia on August 1, 2013. On January 31, 2014, the judge granted our request to allow the case to proceed as a class action, so that all of Virginia’s same-sex couples could share in the result.

Two weeks later, in Norfolk, federal Judge Arenda Wright Allen issued her historic decision in the parallel case of Bostic v. Schaeffer. Explicitly comparing Virginia’s marriage bans for same-sex couples with the anti-miscegenation statute struck down in Loving v. Virginia, Judge Wright Allen made clear that there was no legitimate reason to deny gay couples the right to marry, and that our Constitution does not tolerate that kind of discrimination. As she explained, we constantly strive to fulfill the basic principles of our founding: “Our nation’s uneven but dogged journey toward truer and more meaningful freedoms for our citizens has brought us continually to a deeper understanding of the first three words in our Constitution: we the people.‘We the People’ have become a broader, more diverse family than once imagined.”

When Judge Wright Allen’s ruling was appealed to the United States Court of Appeals for the Fourth Circuit, we joined the Bostic plaintiffs in urging the court to affirm her decision. The court granted our request to allow Joanne, Jessi, Victoria, and Christy – and the thousands of couples they represent – to be parties to the case. We presented our arguments to the court on May 13, 2014.

And now we wait, hoping that the Court of Appeals shares Judge Wright Allen’s vision of fulfilling the Constitution’s promise of equality for all. Even if the Court of Appeals does rule in our favor, the right to marry may not come immediately to Virginia. As the Tenth Circuit recently did when it struck down Utah’s marriage laws, the Fourth Circuit might stay its ruling to await a Supreme Court appeal. But we are well on our way.

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