Righting history: Virginia moves to the forefront of the gay marriage debate

Mildred and Richard Loving. Photo courtesy Virginia Film Festival. Mildred and Richard Loving. Photo courtesy Virginia Film Festival.

As the results and ramifications of Virginia’s 2013 elections slowly unfolded, it seemed all but certain that the major political dramas attending the fledgling administration of Governor Terry McAuliffe would play out in the deeply divided chambers of the General Assembly. After (barely) securing Democratic control of Virginia’s senate, the McAuliffe camp girded itself for battle with the Republican-dominated House of Delegates.

And indeed, there has been no lack of sharp contrasts and confrontations as the Assembly’s winter session has progressed. From the Senate’s vain attempt to overturn Virginia’s “mandatory ultrasound” law (which applies solely to abortion patients) to the House’s unceremonious killing of a minimum wage hike to the ongoing fight over Medicaid expansion, the differences between the Commonwealth’s two major political parties have rarely been more obvious.

But sometimes the political ground shifts so abruptly, and with such unexpected force, that all of the minor legislative squabbles occupying the Assembly seem almost meaningless in comparison. Such was the case on February 14, 2014, when U.S. District Court Judge Arenda Wright Allen issued an opinion that overturned Virginia’s ban on same-sex marriage.

This result was not entirely unexpected, of course. The first shoe dropped back in January, when newly elected Attorney General Mark Herring announced that his office would no longer be defending the marriage ban in court.

“I cannot and will not defend a law that violates Virginians’ fundamental constitutional rights,” he bluntly declared. This, predictably, set off a firestorm of criticism on the right, with some House Republicans even calling for Herring’s impeachment.

But if conservative backers of the law held out any hope for a ruling in their favor, those hopes were summarily dashed by Judge Allen, who began her decision with a long quote from Mildred Loving, the Central Point woman whose interracial marriage tested—and bested—the nation’s anti-miscegenation laws. From that portentous opening, Judge Allen’s opinion built a powerful and far-reaching argument that Virginia’s gay marriage ban was not only unconstitutional, but deeply immoral. By the conclusion of her ruling (“We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect”), it was obvious that Allen was writing not just for the moment, but for posterity.

Reaction to the decision split predictably along party lines. While Prince William’s Republican Delegate Bob Marshall (a co-author of the ban) immediately took to the House floor to call for the judge’s impeachment, most donkeys were enthusiastically supportive. U.S. Senator (and former Virginia governor) Tim Kaine wished a “Happy Valentine’s Day…to all Virginians” while Democratic House of Delegates Leader (and Charlottesville resident) David Toscano called it “a historic step forward for equality and fairness in Virginia.”

So what happens now? Well, Judge Allen stayed her decision pending appeal, so the next stop will be the Richmond-based Fourth U.S. Circuit Court of Appeals (a once-conservative court that has trended left as judges appointed by Democratic presidents gained the majority). After that, most likely, the case will end up before the Supreme Court, where the nation’s top judges will decide the fate of same-sex marriage bans across the country. (Recent rulings from Kentucky, Utah, and Oklahoma could also form the basis of a Supreme Court challenge, but Virginia’s unique history would seem to make it a top contender for that honor.)

And then, with luck, Virginia will finally enter the history books as a staunch defender of equal rights, and begin erasing the dark stain left by its unconscionable fight to keep Mildred Loving from marrying the man that she loved.

Odd Dominion is an unabashedly liberal, bi-monthly op-ed column covering Virginia politics.