Like dominoes, statutes and state constitutional provisions banning same-sex marriage and the recognition thereof continue to fall. In this opinion, applying strict scrutiny, the court held that each of the arguments put forth by the proponents of the ban [(1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation, and (5) promoting the optimal childrearing environment ] failed.
We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. 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.
Bishop v. Smith, No. 14-5003, 14-5006 (United States Court of Appeals, 10th Circuit, July 18, 2014, at
Love v. Bashear, No. 3:13–CV–750–H (United States District Court, Western District of Kentucky, July 1, 2014, at
(Ed Note: An interesting analysis of states’ arguments in this arena can be found in Slate, “When Did the Arguments Against Same-Sex Marriage Become So Silly?”, by Mark Stern. http://www.slate.com/blogs/outward/2014/07/29/arguments_against_gay_marriage_are_very_silly_now_why.html)
Laura W. Morgan is the owner and operator at Family Law Consulting in Charlottesville, Virginia.Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her website. www.famlawconsult.com