Yes, Virginia, Marriage is a Fundamental Right

Special op-ed by David Weintraub published in the Purcellville Gazette, August 2 2014.

On November 7, 2006, Virginia voters were presented with the choice to add an amendment to our state constitution. This amendment would not only prohibit civil marriage between two people of the same sex – which had already been banned legislatively several times over – but would also ban any other “union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage,” or which “intends to approximate the design, qualities, significance, or effects of marriage.” This expansive language gave Virginia the dubious honor of having adopted the most extreme so-called “marriage amendment” in the nation.

In a decision announced Monday, The Fourth Circuit Court of Appeals found that prohibition unconstitutional, joining an unbroken series of rulings affirming marriage as a fundamental right that cannot be denied because of gender.

At the time of the amendment’s passage (it was approved by 57 percent of voters), I was told jubilantly by a local supporter that it would “protect” his model of marriage in Virginia “for at least a decade.” This prediction has turned out to be remarkably accurate. In the past decade, we have witnessed a shift in opinion like no other toward support of the right for loving gay and lesbian couples to marry. At the same time, courts have come to the long overdue conclusion that the U.S. Constitution really does mean what it says about the rights guaranteed to ALL Americans.

Since the Supreme Court struck down the “Defense of Marriage Act” last year, those who support excluding gay and lesbian couples from marriage have had numerous opportunities to present their most convincing case. In Virginia, as in the cases that preceded it, that argument boiled down to “marriage is about protecting children.” And, as happened in every previous case, that argument was shown to be both unsound and deceptive.

During the hearing before the court in May, Fourth Circuit Judge Roger Gregory got to the heart of the matter when presented with evidence that children do better when raised by married parents: “If you’re concerned about the children,” he asked, why would Virginia want to deny those benefits to a child because her parents happen to be of the same sex? “It’s really disingenuous, your interest in children,” Gregory finally concluded.

What the court concluded, and what my own experience confirms, is that these prohibitions actually harm children by denying them the security of legally married parents. Here in western Loudoun a couple I know, jokingly – although it really isn’t funny – refers to themselves as their child’s “Mom” and “Emergency Contact,” because that’s how Loudoun’s public school system required their family to complete its enrollment forms. Virginia’s insistence on defining one of his parents as a legal stranger to him “protects” this child how, exactly?

Another couple, in order to both be legally related to their own children, moved their entire family temporarily to another state where they could establish parental rights. The maneuver incurred tremendous expense and disruption, but that was preferable to the fear that, at any time, one mother’s right to make decisions for her children in an emergency could be denied.

Other families I know have moved away altogether rather than tolerate this kind of fear and insecurity. In fact, opponents of equality suggest relocation to a jurisdiction with legal marriage for same sex couples as a reasonable solution to our opposing viewpoints on this issue. But this is a ridiculous and cruel expectation of someone whose roots in Virginia reach back 400 years, or who has elderly parents who still live here. Just as lesbian and gay and straight people share the same desire to marry the person we love, we also share the same deep connections to place and community and family. In its conclusion, it was that essential commonality – a word closely related to Commonwealth – that the court recognized. To its great credit, the court named these attempts to define us as “other,” and our marriages as a separate category of relationship, what it is: Segregation.

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 the Fourteenth Amendment cannot countenance.

David Weintraub is a civil rights advocate and co-founder of Equality Loudoun. He lives in Lovettsville.

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