Despite Virginia’s historic antipathy toward the federal government, the Commonwealth has nonetheless historically ceded decisions to federal authorities on major issues on which the state had been unwilling to move forward. Another issue is about to fall into this category: same-sex marriage. Regardless of the desire on the part of conservative Virginians to pretend that it is not so, thousands of Virginians love someone of the same gender, an unknown number live together as partners, and some have already gotten married in other states. While an amendment to the state constitution defining marriage as being between a man and a woman passed in a referendum more than a half dozen years ago, recent public opinion polls show a majority of Virginians as accepting of same-sex marriage. Failure of the legislature to act on the issue has resulted in two cases before federal courts challenging Virginia’s prohibition of same-sex marriage. If the experiences in other states where such cases have been brought in federal court hold true for Virginia, the prohibition will be found to be unconstitutional. With the federal courts’ prodding, Virginia will once again be required to face a reality that it has resisted.
It is not the first time. Virginia also had a law that said that persons of different races could not marry. The legislature refused to acknowledge the unfairness of the law or vote to change it. It took a federal court decision, Loving v. Virginia (1967), to strike down the law.
Virginia segregated its public schools based on race until the Brown v. Board of Education decision (1954)—of which a Virginia case was a part—struck down racial segregation. Virginia’s decade-long effort to resist the federal decision was called Massive Resistance, “a deliberate, orchestrated campaign…intended to slow to a crawl attempts to integrate Virginia's schools.” (http://www.lva.virginia.gov/exhibits/brown/resistance.htm). The campaign was unsuccessful, although it did take 40 more court decisions to integrate the schools in Virginia.
Virginia was also part of the Baker v. Carr decision in 1962 establishing the “one man, one vote” principle because the state legislature refused to acknowledge population shifts that were occurring and permit legislative representation to reflect those shifts until the federal courts intervened.
Federal intervention and the Voting Rights Act got rid of the blank sheet voter registration system and the poll tax that disenfranchised most African Americans. While it is good that the federal government has been a backstop to ending discrimination in many forms, it is truly unfortunate that the General Assembly was not willing to recognize the wrongness of their laws and make decisions on their own without the need for the federal courts to protect Virginians from their own government.
Too often the argument for states’ rights has been used to justify a violation of personal rights. I believe the federal courts will strike down Virginia’s marriage amendment. The General Assembly needs to move forward in outlawing discrimination based on sexual orientation instead of waiting until we’re forced to by the federal government.