With the U.S. Supreme Court’s historical freedom to marry decision just a week behind us, we’ve embarked on a blog series to document the fight to bring marriage equality to the Commonwealth, and to the nation. Check back throughout the next month to learn about the history and real world impact of marriage equality.
by Rebecca Glenberg, Legal Director
Wow. We all expected that the U.S. Supreme Court would declare marriage equality the law of the land, but nothing prepares you for the emotional impact of a historical moment like last Friday. Now that we’ve all had a chance to digest Justice Kennedy’s landmark opinion, we’re ready to take a step back and examine what the opinion says and what it means.
Here in Virginia, same-sex couples may continue to marry, and to have their marriages recognized by the government, as they have since October 6, 2014. As of that date, Virginia was under federal court order not to enforce any laws denying same-sex couples the right to marry. Until Friday, there was still a possibility that the order would be lifted if the Supreme Court ruled the wrong way on marriage equality. Now we can rest easy. Virginia’s so-called “Marriage Affirmation Act,” enacted in 2004, and Virginia’s anti-marriage constitutional amendment, adopted by popular vote in 2006 – both of which prohibited anything like marriage for same-sex couples – are now permanently dead, along with any other laws that deny same-sex couples the benefits and obligations of marriage equal to all other couples.
We will continue to watch closely to make sure that Virginia and its local governments treat married same-sex couples equally in every way. Virginia has already made progress in ensuring that adoption, joint tax returns, and birth certificates listing both parents are available to married same-sex couples.
What does Justice Kennedy’s opinion mean for future cases dealing with LGBT rights? It is hard to say. Justice Kennedy held that marriage is a fundamental right, and that the government may not deny that right to gay couples. He also said that denying marriage to same-sex couples violated the Equal Protection Clause of the Fourteenth Amendment, which prohibits unjust discrimination by the government. But he gave little indication of how courts should evaluate other claims of government discrimination against LGBT people, such as discrimination in public employment, public housing, or public benefits.
Justice Kennedy did make one thing clear, however: Just because the law excluded or persecuted a particular group in 1791, when the Bill of Rights was ratified, or in 1868, when the Fourteenth Amendment was ratified, does not mean that it is constitutional to continue to exclude or persecute that group. The framers of these documents used broad, aspirational terms like “liberty,” “equality,” and “freedom,” knowing that our understanding of those concepts would broaden and deepen over time. “The nature of injustice is that we may not always see it in our own times,” he wrote, but “new insights and societal understandings can reveal unjustified inequality that once passed unnoticed and unchallenged.”
The view of the Constitution reflected in Justice Kennedy’s opinion resonates with the hopeful observation of Martin Luther King, Jr. that “the arc of the moral universe is long, but it bends toward justice.” On Friday, a majority of the Supreme Court recognized that denying marriage to same-sex couples violates basic notions of liberty and equality. Next year, will it finally recognize that the death penalty is cruel and unusual? Will it acknowledge that denying the vote to those convicted of a felony is a deprivation of equality? Will it understand that seizing the property of someone who has not been convicted of any crime is a violation of due process? It is up to all of us to raise our voices about these and other injustices, as we have for marriage inequality. Only by making the injustice visible can we hope to make it go away.
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