Angiulo: Virginia Ruling Opens New Chapter in Gay Marriage Debate

Monday, February 17, 2014

Leonardo Angiulo, GoLocalWorcester Legal Contributor

It has been over ten years since restrictions on same-sex marriage were ruled unconstitutional in Massachusetts by the State Supreme Court in the case of Goodridge v. Department of Public Health. Since that time, the various states have addressed the subject in their own way. Some states, like http://www.capitol.hawaii.gov/session2013/Bills/SB1369_.HTM" target="_blank">Hawaii, chose to draft legislation to specifically allow same-sex couples to marry. Other states, like Virginia, chose to amend the State constitution and define marriage as only between one man and one woman.

The February 13, 2014 decision of Bostic v. Rainey issued by a Federal Trial Court in Virginia is part of a new chapter in the marriage rights debate. The Bostic case and the December 20, 2013 decision from a Federal Trial Court in Utah in the case of Herbert v. Kitchen essentially find that state restrictions on marriage violate the Federal due process and equal protection clauses. When Judge Wright Allen ruled in Bostic that Virginia's restriction on same-sex marriage violates the Fourteenth Amendment to the United States Constitution she put that case in motion along with Herbert and may change the state by state approach to the definition of marriage.

The Bostic and Herbert cases forecast a change because, as these decisions wind their way through their respective Appeals Courts, they are on an inevitable collision course with the U.S. Supreme Court. The term “inevitable” is based on the fact that there are advocates on both sides that feel very strongly about the subject. Without question the various parties involved, both supporting and objecting to same-sex marriage, will not hesitate to spend the money and time necessary to properly present the issue to the Supreme Court.

Other recent matters have set the stage for cases like Bostic and Herbert to be accepted for hearing before the Supreme Court. The highest court addressed the Defense of Marriage Act (“DOMA”) in the case of the United States v. Windsor in June of 2013. In that case, the Supreme Court cited the Due Process Clause when it found that restricting a same-sex spouse from using the estate tax exemption was unconstitutional.

Not only has the Supreme Court shown a willingness to address these types of concerns, but the http://www.justice.gov/iso/opa/resources/ss-married-couples-ag-memo.pdf" target="_blank">February 10, 2014 memorandum issued by Attorney General Eric Holder creates an additional issue. That memo instituted a policy that Department of Justice employees would “to the extent federal law permits . . . recognize lawful same-sex marriages as broadly as possible.” This policy appears to create an increasingly widening gap between states that do not recognize same-sex marriages and the federal government. This, in turn, places the federal interpretation of the due process and equal protection clauses as a controversy of law that the Supreme Court is uniquely qualified to resolve.

Should the U.S. Supreme Court choose to address whether, or not, the Federal Constitution bars limitations on marriage to be between one man and one woman the result would be felt nationwide. If the court permits the states to decide for themselves, then the future of this issue would look much like it does now with ongoing local legislative action and lawsuits. If, however, the court accepts the logic from cases like Bostic and Herbert, the nation would have a single definition of marriage applied in every state. For better or worse.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].

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