Federal Judge: Virginia’s Ban On Same-Sex Marriage Needlessly Stigmatizes And Humiliates Children


On the evening before Valentine’s Day, Federal Judge Arenda Wright Allen, an Obama appointee, ruled that Virginia’s ban on same-sex marriage is unconstitutional. Opening her decision with a 2007 quote from Mildred Loving, whose case against Virginia overturned the ban on interracial marriage decades ago, Wright Allen wrote that same-sex couples and their families deserve equal protection under the law, and that providing them the same protections of marriage that straight couples enjoy is a matter of “fairness, and fairness only”:

Justice has often been forged from fires of indignities and prejudices suffered. Our triumphs that celebrate the freedom of choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.

Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: “It can not have failed to strike you that these men ask for just… the same thing — fairness, and fairness only. This, so far as in my power, they, and all others, shall have.”

The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.

Wright Allen was particularly observant about the plaintiffs’ families, particularly the struggles that Carol Schall and Mary Townley have faced raising a daughter together. She noted how the couple “incurred significant expenses” to secure legal custody of their daughter for Schall, who is still unable to legally adopt her. The couple could also not previously obtain health insurance through each other’s employers, and when they finally did, they still had to pay state income tax on that benefit because Virginia did not recognize their California marriage.

Likewise, Wright Allen was unswayed by arguments that same-sex couples make inferior parents. She acknowledged the research submitted by the likes of Mark Regnerus and Douglas Allen that purports to support such claims, dismissing them outright:

The Amici Professors refer to evidence that purports to demonstrate that children benefit from the unique parenting contributions of opposite-sex parents. The Amici Professors reject recent studies that found that children raised by gay and lesbian parents are no different from children raised by “intact biological parents,” asserting that the studies are empirically undermined by methodological limitations.

This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest. [Schall and Townley’s daughter], like the thousands of children being raised by same-sex couples, is needless deprived of the protection, the stability, the recognition and the legitimacy that marriage conveys.

In fact, she concluded that all of the state’s supposed rationales for banning same-sex marriage fall short of justifying discrimination:

The Court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.

Wright Allen stayed her decision pending appeal, meaning that same-sex couples cannot start marrying yet.

The Virginia decision joins similar recent rulings in Kentucky, Oklahoma, Ohio, and Utah in which federal judges have ruled that state bans on same-sex marriage violate gay couples’ constitutional freedoms.