08/07/14: Next step toward marriage equality

This op-ed appeared in The Virginian-Pilot on the date shown.

VIRGINIA ATTORNEY General Mark Herring announced Tuesday that he will appeal the recent 4th Circuit court ruling on marriage equality to the U.S. Supreme Court. Earlier, one of the defendants, a clerk of court in Prince William County, announced plans to do the same. Others will probably do so, too.

They are all doing the right thing.

Virginia moved one step closer to the banishment of its marriage amendment to the dustbin of history. The 4th Circuit covers not only Virginia but also North Carolina, South Carolina, West Virginia and Maryland. The ruling means nothing in Maryland; that state already has marriage equality for gay people. But West Virginia law prohibits it, as do the constitutions of North Carolina and South Carolina.

Currently, 19 states and the District of Columbia recognize marriage equality. Allowing the 4th Circuit ruling to go unchallenged would increase that number by four. No doubt the inclusion of those states would push the percentage of the U.S. population living in states permitting marriage equality over 50 percent; it currently stands at around 44 percent.

I would be thrilled to have my marriage recognized in Virginia. But that’s selfish; I want everyone to have their marriages recognized everywhere. The only way to make that happen is for the U.S. Supreme Court to settle the question.

Think it doesn’t matter? Just last weekend, I attended a family reunion. Descendants of a former North Carolina slave gathered in Maryland to celebrate our history.

During an early dinner at a restaurant in Baltimore’s Inner Harbor, we got to chatting with the waiter. Turns out he and his husband are contemplating a move to Arizona. The move means their marriage will not be recognized. Although the move makes sense financially, nonrecognition is holding them back.

I’ve no doubt interracial couples, before laws preventing such unions were declared unconstitutional, faced similar decisions.

Time and again, the Supreme Court has ruled that marriage is a fundamental right. That being the case, it should not matter where a couple lives. Fundamental individual liberties trump states’ rights .

The court had the opportunity to decide this question last summer, but chose not to. The California Prop. 8 case was before the court and rather than decide, it punted, ruling that the appellants lacked standing. If all of the defendants appeal the 4th Circuit ruling, there will be no chance for the court to do an end run around making the decision.

And what a decision it will be, since the Virginia case has the elements of all the cases now winding through the courts across the country. Virginia’s case would settle the question of our marriage ban as well as the recognition of marriages, like mine, performed in other states.

I’m not sure that the court is ready to take this on. If it does not, the 4th Circuit ruling will stand. My gut tells me the court will take this case, and perhaps the Utah case, which has already made the request to be heard.

The danger here is that the court will rule against marriage equality. Given the unbroken string of victories in favor of marriage equality since the Windsor ruling in June 2013, I think that unlikely. But that doesn’t mean it won’t happen.

It is a risk worth taking. And one worth waiting for. As much as I’d like to see marriage equality in Virginia today, it would be much better for the issue to be resolved nationwide in less than a year.

And for that Baltimore waiter to make his decision to move based on something other than marriage recognition.