A three-judge panel of the 1st U.S. Circuit Court of Appeals has ruled that the federal Defense of Marriage Act is unconstitutional, at least the benefits part that denies gay couples the same federal benefits as heterosexual couples. It did not rule on the constitutionality of other sections that say that states which refuses to recognize same-sex marriages cannot be required to recognize such marriages from another state. It also didn’t address whether gay couples have a constitutional right to marry under the 14th Amendment.
I’m no lawyer, but it seems to me that, as significant as this ruling is, it doesn’t change the situation in Virginia at all, where in 2006 for the first time the state constitution was amended to take rights away from citizens of the state. That marriage amendment doesn’t even allow for civil unions. It doesn’t allow for what used to be called “common law marriages,” where a couple – gay or heterosexual – that stayed together for a set number of years was recognized as being married.
When this case gets to the Supreme Court, I can’t guess how the far-right, conservative “gang of five” will rule. Will they go with their “states’ rights” tendency and agree that the federal government has no role to play in defining marriage, or will they be so biased by their homophobia that they will reinstate DOMA? Beats me.
Either way, at some point Virginia must confront the injustice that voters put into our constitution six years ago. Barring a ruling saying that all Americans have a constitutional right to marry by the Supreme Court, it will take far more political courage than Richmond’s politicians have to undo the wrong done in 2006.
It was, after all, a case from Virginia – Loving v Virginia – more than sixty years ago that struck down southern laws that made marriage between different races illegal. Racism certainly hasn’t gone away, but there has been wide-spread acceptance of interracial marriage as an individual right. Hopefully, years from now, while homophobia will surely still exist, the right to spend one’s life with the person you love – regardless of your race, religion, or sexual orientation – will be accepted in law.