ICYMI: Perched in the soul

Wedding-RingsMy latest op-ed, title above, appeared in The Virginian-Pilot Friday. While the topic is DOMA, the title is derived from this Emily Dickinson poem included in it:

Hope is the thing with feathers
That perches in the soul
And sings the tune without the words
And never stops at all.

Virginia is among the states that adopted amendments defining marriage. And it also has, by law, adopted language that prohibits recognition of same sex marriages performed in other states. At least one legislator believes that the ruling in Windsor makes that invalid (emphasis mine):

The way the law stands today, the Supreme Court has not told Virginia that it must legalize gay marriage nor has it said Virginia’s gay marriage ban is constitutional.  But it has effectively told Virginia that we must recognize gay marriages created in other states.  Virginia’s Constitution specifically prohibits this and  puts Section 15-A of the Constitution of Virginia in violation of the 14th Amendment of the United States Constitution.

Windsor was decided under the 5th Amendment, which, I understand, essentially contains a federal equal protection clause. Loving v. Virginia, the interracial marriage case, was decided under the 14th Amendment, which contains the equal protection clause related to the states.

I had the opportunity a year ago to attend a local screening of the HBO movie, “The Loving Story.” There was a Q&A afterwards with members of the production crew and one of the attorneys who argued the case, Bernard S. Cohen. I spoke with him briefly after the Q&A about gay marriage and he told me, yes, gay marriage would likely be decided under the 14th.

Somebody will challenge Virginia’s law, particularly once the federal government decides how to handle the marriages of those who reside in states that do not recognize them. (That is still up in the air at this point. The question is whether the marriage license follows the people or does the residency control. Expect this to be worked out shortly, as the government is moving quickly in response to the Windsor decision.)

There is definitely reason for hope now.

My column appears in The Virginian-Pilot every week, usually on Thursdays. You can see the columns as they are published here, or navigate to them from the PilotOnline.com homepage by clicking on Opinion and then choosing my name at the bottom of the dropdown list. You can also see the columns by liking my Facebook page. Although my column appears weekly, I am not and have never been an employee of The Virginian-Pilot.

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3 thoughts on “ICYMI: Perched in the soul

  1. I certainly hope it’s true that the state must recognize out of state marriages. I’m not certain that’s a necessary consequence of the majority opinion, however. While it was hard not to stand up and cheer the second half of the opinion, Kennedy started out with a first half that frankly made me feel a little uncomfortable. It was very much rooted in the idea that one of the powers of the state (in this case New York) is to define for itself how a marriage is defined within its own borders. He makes a brief detour in the midst of his argument to point out the variety of ways in which states define who may be married and who may not. Some states have different ages of consent, and some states will allow first cousins to marry while others will not. This context is important for understanding how the fifth amendment applies in the majority view: it’s more states rights than individual rights in that here the fifth amendment guarantees that the definition of marriage must be consistent within a state between both the state and federal government.

    It’s going to take at least one more court case to determine whether Kennedy would still vote with the liberals if the context of the argument was about the rights of the individual as opposed to the rights of the state. I’m at once hopeful but not necessarily optimistic; I think that perhaps Kennedy wrote the opinion this way because he thinks its an issue that we as a society need to work out at the state government level, and that’s a very unsatisfying, piecemeal way to approach human equality.

    1. I agree with you that it will take one more case and said as much in my op-ed. But I’m not a lawyer, so in trying to parse what the court meant (as opposed to what it said), is much more difficult for me. I’ll leave that to the lawyers 🙂 I do think someone will challenge it, particularly once the feds determine whether the license follows the person (which is where I think they will end up) or the residency.

      Yes, the decision was a tortured one, borne, as I understand it, from compromise. I’ve read that Kennedy wanted to go further, while Ginsberg preferred an incremental approach. (Of course, we won’t know that for sure until their papers are released, long after all of us are dead.)

  2. Essentially, Kennedy said nothing substantive, and ruled as he saw fit without regard to the Constitution. He tried to make the assertion that Due Process of Law had been violated, but could not show any process of law that was due and was not performed as due.

    In any event, the DOMA ruling has no bearing on whatever State-law cases will follow. They will be based on the 14th Amendment, which is not applicable against the U.S. government.

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