As I sat down to write this week’s column, a wonderful news alert flashed across my screen: the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court ruling striking down Virginia’s marriage discrimination amendment as unconstitutional. The court held that the fundamental right to marriage includes the right for gays and lesbians to marry the person they love, and that that fundamental right supersedes state-level efforts to deny same-sex couples the freedom to marry.
Marriage equality advocates and LGBT legal groups quickly pointed out that the ruling doesn’t just nudge Virginia closer to marriage equality, but the other states in the Fourth Circuit (North Carolina, South Carolina, and West Virginia) as well. (Maryland has had legal same-sex marriage since January 1, 2013.) And just hours later, the first domino fell: Roy Cooper, North Carolina’s Democratic attorney general, announced at a press conference that he would no longer defend his state’s marriage ban.
“In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable. Since the U.S. Supreme Court ruled in Windsor, all the federal courts have rejected these arguments each and every time. So it’s time for the State of North Carolina to stop making them.”
The demise of Virginia’s discriminatory amendment, he added, showed that North Carolina’s ban “almost certainly will be overturned as well.” When it comes to marriage discrimination, Cooper concluded, “There are really no arguments left to be made.”
He’s right, of course: the Virginia ruling is the 29th consecutive legal victory for marriage equality advocates, and it marks the third time a federal circuit court of appeals has weighed in on the issue. In state and federal courts across the country, Democratic- and Republican-appointed judges alike are decisively smacking down every argument our opponents make, from their historically ignorant appeals to tradition (“every society throughout history has viewed marriage as between a man and a woman”) to their scientifically discredited claims that children do best when raised by their biological, married mothers and fathers. There really are no new arguments left.
Perhaps someone should alert Florida Republican Attorney General Pam Bondi. After two state judges declared the Sunshine State’s ban unconstitutional, Bondi doubled down on her defense of marriage discrimination, telling reporters that she had no choice but to appeal the rulings:
“If the voters choose to pass it, it’s my job to defend it. It’s not up to one person to pick and choose. That’s why we have voters… It has nothing to do with anybody’s personal beliefs.”
That’s a nice sound bite, but it’s also total malarkey: in recent years, the attorneys general of at least seven states (California, Illinois, Kentucky, Nevada, Oregon, Pennsylvania, and Virginia) have all stopped defending their states’ bans on same-sex marriage after reviewing them and concluding that they are unconstitutional and therefore indefensible. Attorney General Eric Holder came to the same conclusion in 2011 when he dropped the federal government’s defense of DOMA. And the Republican governors of Nevada, New Jersey, and Pennsylvania stopped defending their state bans in light of pro-equality court rulings.
There is ample precedent for dropping the defense of a clearly unconstitutional law, so Bondi is being patently dishonest when she pretends she doesn’t have a choice in the matter. The truth is, she does – and Bondi’s made hers: she has chosen to pander to the anti-LGBT base of the Republican Party rather than obey the United States Constitution. And sadly, same-sex couples in Florida are paying the price.