WASHINGTON, February 11, 2014 – It’s been heard across the country: The Fourteenth Amendment should guarantee gay couples the right to marry. The Justice Department recently announced that it will instruct all of its employees, in every state, to give legally-married gay couples—regardless of state—equal protection under the law in every one of its programs, from prison visitation rights to the right to decline to give testimony, regardless of where that couple lives.
It’s happening America. Gay marriage and gay rights are sweeping the states, and the next stop is Virginia.
Last week, U.S. District Judge Arenda L. Wright Allen heard arguments to remove the gay marriage ban in Virginia. On the one hand, Virginians voted for the ban in 2006, so any removal would be without democratic approval. On the other hand, advocates are using the well-worn defense that the Fourteenth Amendment guarantees marriage equality across states.
But how well does that argument really hold?
The Fourteenth Amendment reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That statement has been strawmanned to read, “Everyone is equal in America no matter what.”
But history has shown us time and again that the law can choose to discriminate. For example, United States children cannot vote, smoke, or marry as they please. Age, like sexuality or race, is not a choice but paternalistic discrimination is allowed. In Craig v Boren, the Supreme Court ruled that gender discrimination cases “[M]ust substantially further important governmental objectives.”
When it comes to gay marriage, one can easily make the case that marriage for procreation is the only government incentive to allow couples to marry. The Fourteenth Amendment case is far more complicated than the left-media has made it out to be.
But luckily for LGBTQ across the country, marriage in this country is not just about children.
For example, in Virginia, “Property and pensions acquired during the marriage are considered equally owned by both parties unless otherwise defined. Spouses can be called upon for debts that their partner incurred. Spouses receive power of attorney. They get joint tax incomes.” None of these examples have anything to do with raising children. And as the Justice Department’s recent landmark decision to recognize gay marriage nationwide highlights, marriage plays an integral role in America’s justice system.
In Meyer v. Nebraska, Justice McReynolds declared, “The liberty thus guaranteed… denotes not merely freedom from bodily restraint, but also the right of the individual the right of the individual… to marry and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Marriage has long been considered an essential right in the United States that has never been constrained to having children. Indeed if that were the case, the argument could be made to prevent sterile and elderly couples from marrying.
It’s time for Virginia to recognize gay marriage as is required under the Fourteenth Amendment. In fact, it’s time for all states to recognize the right to marry, regardless of the genders of the people freely entering its contract. Virginia: Proudly stand as the first Southern state to legalize gay marriage and set an example for the rest of the country.