Gay Marriage and Activist Judges in Virginia

In July 24th's Washington Post, Andrew Cohen examines how two state Supreme Courts used the same fact and came to two very differenct conclusions in Same Coast, Different Worlds on Same Sex Marriage. Cohen is reviewing a book by Justin Rosen, which advises courts to wait for the public and legislature to catch up before granting rights to oppressed groups where they had been denied by the majority (my take, not his).

The proposed amendment to the Virginia Constitution defining marriage as between a man and a woman is on the ballot. The Republicans are attempting to prevent "activist judges" from extending marital rights to gay couples under the doctrine of equal protection. This is not a new thing for Virginia, who vigorously enforced a law banning interracial marriage until the United States Supreme Court overturned it in Loving v. Virginia. The more things change, the more they stay the same.

What the conservatives really fear, however, is a federal action extending marital rights to gays and lesbians, so in a way this amendment is whistling past the grave yard. In fact, similar recent state constitutional amendments are already under challenge in federal court, so the amendment may never make it to the voters.

Conservatives believe that it is improper for activist judges to overturn the will of majorities. However, the gist of the equal protection doctrine calls precisely for the judicial branch to check the will of majorities by protecting minority rights. Remember, the Bill of Rights was not passed as an expression of a majority, but as a condition for the ratification of the federal constitution. The Federalists did not believe a Bill of Rights was needed, just as their Republican heirs do not believe that an equal protection doctrine is needed. Polling data on the electorate indicates that if the provisions of the Bill of Rights were put to a vote they would fail (except possibly the Second Amendment).

The resentment against activist federal judges goes back even farther than the Fourteenth Amendment, which is the vehicle used to overturn state laws which persecute minorities. This debate emerged in the debate over nullification, whereby states rights advocates argued that states governments could nullify federal acts it did not agree with in their own states, particularly with regard to slavery. Now, Article IV of the U.S. Constitution is quite clear that the federal constitution and laws were the supreme law of the land, so the argument never held water. The question was finally settled at Appotomax, Virginia with the surrender of General Robert E. Lee to General Grant. The Fourteenth Amendment simply codified it. While there was a brief conservative counter-revolution under the Wilsonian Democrats, right has always been on the side of equal protection. Just as it is now.

Going back to the question of marriage, which I address in more detail on my web page at
http://www.christianleft.net/SocialPolitics/GayRights.html, I was taught in both Catholic High School and in marriage preparation that God made marriage a sacrament and it was between the two individuals getting married, with the minister and the state merely providing witness. It is a pity that the Commonwealth of Virginia is still in the nasty habit of arguing with God.