Erin Herbst, Blog Post #3

“A Steady Path to Supreme Court as Gay Marriage Gains Momentum in States”

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When it comes to the recognition and celebration of love, Virginia took some progressive steps forward this Valentine’s Day. Thanks to “a sweeping decision” on Thursday night, Virginia is now one of three states (joining Oklahoma and Utah) to strike down its state ban on same-sex marriage. In a news analysis printed in Saturday’s edition of The New York Times, lawyer and Supreme Court correspondent Adam Liptak summarizes Virginia’s ruling and the logic backing it, and discusses what this decision could mean for the LGBT movement. In discussing Judge Wright Allen’s (a judge in the U.S. District Court for the Eastern District of Virginia) 41-page denunciation of Virginia’s constitutional ban on same-sex marriage, Liptak explains that Wright Allen relied heavily on the United States v. Windsor decision. The Windsor decision, made in June 2013, “ruled that same-sex couples are entitled to equal treatment in at least some settings” and required the federal government to “provide benefits to same-sex couples married in states that allow such unions.” The Windsor verdict, however, did not legalize same-sex marriage throughout the entire United States, and still has loopholes through which same-sex couples married in a state of marriage equality but not residing full time in that state can be denied many important federal benefits. Yet despite Windor’s fairly conservative scope of impact, Liptak suggests that the recent string of state rulings overturning same-sex marriage bans signifies that “supporters of same-sex marriage have been winning,” and Judge Wright Allen’s will only add “new pressure on the Supreme Court to decide the momentous question it ducked [in the Windsor decision last summer]: whether there is a constitutional right to same-sex marriage.”

Liptak’s article ultimately segues into an open-ended discussion as to whether the issue of same-sex marriage should remain in states’ hands, or if “rapid changes in public opinion” supporting same-sex marriage demand a more affirmative and wide-sweeping statement from the Supreme Court, similar to its announcement of  “a broad constitutional right to abortion nationwide” in 1973 following Roe v. Wade. He draws from Judge Wright Allen’s opinion that “Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations . . .When core civil rights are at stake. . . the judiciary must act,” while also citing Justice Antonin Scalia’s counter-argument that, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency . . . the majority arms well every challenger to a state law restricting marriage to its traditional definition.” Liptak concludes the article with the statement that Supreme Court justices “continue to mull the crucial question of when to weigh in when society is on the move.” Citing Justice Elena Kagan, he reiterates her opinion that “when the time is right courts can play an important role in ratifying society’s progress.”

Achieving the proper balance between state and federal power is an issue that remains central to contemporary political disagreements in the United States, and seems to be the dividing factor between Liberals and Conservatives. Scalia’s bitter remark that courts have essentially villainized those who favor “state law[s] restricting marriage to its traditional definition” epitomizes the basic Conservative outlook that the government’s function should be to “preserve the great things,” including the “traditional definition” of marriage. In contrast, Judge Wright Allen’s overturning of Virginia’s same-sex marriage ban — a decision that she describes will make “our freedom more perfect,” exemplifies the classically Liberal outlook that the United States can always “do better” when it comes to actively ensuring citizens their freedom from inequality.

Personally, I find it frustrating that the issue of same-sex marriage has been intertwined with the state power versus centralized federal government debate. Liberals and Conservatives certainly have polarized answers to the question, “What is freedom?” For Liberals, the answer to this question is immunity to inequality and tyranny of the majority, whereas for Conservatives, freedom is defined as an individual’s liberty and self-reliance. But despite these differing perspectives, it seems that each political group’s definition of freedom should support the full constitutional right to same-sex marriage, which would strike down inequality and preserve an individual’s liberty to marry whom they choose. Thus, for me, the right-leaning  argument that a federal ruling to legalize same-sex marriage would infringe upon a state’s right to govern itself seems tangential to (what should be) the Right’s larger quest to ensure every person’s individual liberty, particularly from tyrannical and state-imposed laws that restrict one’s pursuit of happiness.




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