Traditional marriage advocates are slamming a three-judge panel from the Fourth U.S. Circuit Court of Appeals for striking down Virginia’s constitutional amendment affirming traditional marriage, saying the decision violates the separation of powers and potentially opens the doors to any arrangement of adults being considered marriage.
On Monday, Circuit Judges Henry F. Floyd and Roger L. Gregory voted to strike down the constitutional amendment defining marriage in the commonwealth as the union of one man and one woman. The amendment was approved by 57 percent of Virginia voters in 2006.
“Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms,” wrote Floyd in his opinion.
For traditional marriage supporters, that rationale showcases judges who have no problem thinking of themselves as lawmakers.
“With this decision, I think you see another example of the courts exercising legislative powers. They actually believe they have the right to make new law and now they’re not even afraid of proclaiming that in their decision,” said Liberty Counsel Special Counsel Rena Lindevaldsen, who is also a dean and professor at the Liberty University School of Law.
However, it is the summary argument from Judges Floyd and Gregory that is raising many eyebrows about how widely same-sex marriage activists may want to broaden the definition.
“Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance,” they wrote.
Lindevaldsen contends that approach leaves a stunning amount of room to define marriage in an infinite number of ways.
“I do see that as a risk. First you have the court proclaiming that the right is ever-expanding and then you have this language that adults should be free to choose to love who they want to love. We already have challenges to the polygamy bans. We have a movement out there suggesting that two, three, four, five people should be able to come together in the marital union. So this opens that door entirely. Once you’ve opened the door past one man and one woman, which has historical and foundational roots, what’s to say the line can’t be drawn to allow two, three, four and five people to marry,” said Lindevaldsen.
While the judges may have opened that door, same-sex marriage activists insist they are not interested in growing the number of people in a marriage but instead in allowing two people of the same gender to wed. Lindevaldsen says once you start meddling with the definition of marriage it will be hard to justify forbidding marriage to people in other unconventional relationships.
“I like to think we could limit it, but from a legal perspective and realistically speaking, once you open the door the door is open. There simply is no reason to now say that three consenting adults, who love each other and want to raise children together, shouldn’t be allowed to marry once we retreat from the definition of marriage as one man and one woman,” said Lindevaldsen.
The two judges also became the first to invoke “segregation” into a marriage ruling. It’s especially significant in Virginia, which was the state at the center of the interracial marriage debate in the late 1960s. In Loving v. Virginia, the Supreme Court affirmed the right of interracial couples to wed.
Lindevaldsen says there are no genuine similarities between the two issues.
“The movement for same-sex marriage is entirely distinct from the case that took place to allow people of different races to marry. Marriage is about the coming together of one man and one woman. A ban that prohibits people because of their skin color from marrying has nothing to do with advancing that purpose. In fact, it’s racial discrimination. The idea that that’s the same as two people of the same sex, who don’t promote the state’s interests in raising children and coming together to build that firm foundation is entirely distinct from that,” said LIndevaldsen, noting that black pastors are among the most vocal in denouncing comparisons of the same-sex marriage movement to the civil rights era.
In addition to alleging the two judges legislated from the bench, Lindevaldsen also claims they unintentionally undermined one of the key arguments behind the same-sex marriage movement.
“You have the majority opinion stating that it’s wrong for us to have argued that same-sex couples only have sexual relations with same-sex [partners]. So they’re actually saying that same-sex couples can come together in opposite-sex relationships as well, which plays into this pro-creation argument. But it also undermines their argument that ‘we’re born gay, can’t change and we need the right to marry.’ Now the majority is proclaiming that they have this free right to engage in sexual relations with people of the same sex or of the opposite sex. So where’s that going to take us?” said Lindevaldsen.
Virginia Attorney General Mark Herring made headlines earlier this year by announcing the state would no longer defend the constitutional amendment. In the wake of Monday’s decision, North Carolina Attorney General Roy Cooper said he would also stop defending the law in his state.
“I’ve actually been working on a project right now with regard to the duties of state attorneys general to defend the law. They simply do not have the authority to refuse to defend the law. They are charged with enforcing the civil laws. The mechanism to repeal laws is through the legislature or have it declared unconstitutional through the courts. But the people deserve a defense of the laws that were duly enacted,” she said.
The marriage debate is often seen in political terms, but all three judges on the panel were either nominated or promoted by Republican presidents. Floyd was nominated to the district court and promoted to the appeals level by President Obama. Gregory was nominated for the district level by President Clinton and chosen for the appeals court by Bush. The lone dissenting judge, Paul V. Niemeyer, was a George H.W. Bush appointee.
Lindevaldsen is not surprised.
“Obviously, the vetting process wasn’t what it should have been. More importantly, we’re talking about a legal education and judicial system that has been raised on the idea that as judges they set public policy and make law. That transcends political parties, Republican or Democrat. That’s a problem that needs to be addressed. Justice Scalia talks about it often of how lawyers have been trained. So it’s not surprising you see Republican appointees getting it wrong on what their role is,” she said.
The relative silence of Republicans and even conservatives on the marriage issue in this year’s midterm elections is also troubling to Lindevaldsen.
“I think it’s wrong for conservatives to shy away from this issue by avoiding these issues that are at the forefront of the cultural debate right now. Societal division is taking place. We don’t distinguish ourselves, if you’re a conservative, from the other parties. I think we’re trying too hard to meld into a mushy middle,” said Lindevaldsen.
“By doing that, you don’t distinguish yourself and set yourself apart for what you truly stand for. We really can’t shy away from this. This is the issue of the day that we have to stand for and fight for. If we’re going to be afraid of it, the consequences for our society…I don’t even want to think about where we’re going to go,” she said.