Commentary: Legal status of same-sex marriage is clear

By Bob Lowerre

In his article published in the Northern Virginia Daily on March 8, the Rev. George Bowers deplores the failure of legal officials, such as attorneys general, to defend laws that are on the books. Further, he deplores the failure of the public to rise to this issue.

I am glad to try to accommodate him. But at the outset, I must provide context so that the matter may be more fully understood.

As opposed to Bowers, I have found that this issue has received voluminous commentary. Many Republican legislators and other conservatives have thundered about it. They have often used the high-flown rhetoric of principle to make their points. However, invariably the true motive of their ire, not even mentioned by Bowers, is same-sex marriage. They are dismayed that a form of discrimination they embrace is rapidly being swept into the dust bin of history.

The legal status of same-sex marriage is quite clear. The Supreme Court – yes, this Supreme Court – has overturned a federal law that prohibited government recognition of same-sex marriage. Since, every court that has considered the matter has reached a similar conclusion – even courts in such unlikely sites as Utah, Texas and our own Old Dominion. It’s no wonder. The 14th Amendment to the Constitution, adopted in an attempt to prohibit the evil the Civil War was fought to end, says, in pertinent part, “No State shall…deny any person within its jurisdiction the equal protection of the laws.” Not too complicated.

The law – in the form of an amendment to the state constitution – a federal judge in Virginia recently ruled unlawful, is the very same measure passed not very long ago with the zealous support of many churches over the vocal opposition of others who saw it for what it is.

A brief reference to history may cast light on this subject. For many decades, those in power vigorously defended slavery. In many states, including ours, such officials just as fiercely defended segregation, notwithstanding the 14th Amendment. Here, they even made every effort to defend the law that prohibited blacks and whites to marry. And then they struggled mightily to perpetuate the disgraceful policy called “massive resistance.”

These officials were major enablers of the darkest chapters in the story of the United States of America. What may the result have been if any of them had risen and refused to defend the indefensible?

The current critics of governmental legal officials flay them for refusing to defend measures that, in effect, are identical to those long since rejected as unconstitutional. The laws concerned with race were deliberately enacted to deny basic rights to millions of Americans solely because they were born black. The present laws concerned with sexual orientation were deliberately enacted to deny basic rights to millions of Americans solely because they were born homosexual. Equal protection of the laws?

The people, too, have spoken – and are speaking – on this matter, perhaps as some may not have anticipated. A governor, lieutenant governor, and attorney general, all of whom as candidates openly rejected discrimination against gay people, were recently elected by the people of Virginia. The newest polls confirm what earlier polls had shown – that a clear majority of our people, including Republicans, in growing numbers, support the legalization of same-sex marriage. While the exercise of our constitutional liberties should not be subject to referendum, the fact that most of our people reject a particularly cruel form of discrimination cannot be dismissed.

The controversy over same-sex marriage leaves us with at least a couple of conclusions. One, we should be grateful that we have public officials who refuse to defend laws that are discriminatory on their face and make a mockery of liberties guaranteed by the U.S. Constitution. Second, the fact that overt discrimination is supported by some religious doctrines does not make it legal in the United States.

Bob Lowerre is a retired lawyer living in Woodstock