What's it like to have a special needs child, other kids, a marriage - and practice family law?
How deeply we misunderstand - and poison - marriage, separation and divorce

Va. federal judge invokes values, order, tradition to void gay marriage ban, but where will it lead? (opinion text & excerpts)

As a divorce lawyer I see first-hand how badly people need marriage, so I read the Bostic v. Rainey opinon by Norfolk federal judge Arenda Wright Allen to see how it affects government's role in all marriages, not just gay marriages. 

Judge Allen emphasizes that an expansion of the fundamental right to marriage, "the right to make a public commitment to form an exclusive relationship and create a family with a partner", is "not some new creation", nor "any dilution of the sanctity of marriage":

"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Griswold, [citation omitted].

The parties before this Court appreciate the sacred principles involved in our fundamental right to marry. Each party cherishes the commitment demonstrated in the celebration of marriage; each party embraces the Supreme Court's characterization of marriage as "the most important relation in life" and "the foundation of family and society, without which there would be neither civilization nor progress". . . . Plaintiffs honor, and yearn for, the sacred values and dignity [of] marital vows . . ."

That's the kind of thing I like to hear. Removing barriers and expanding entry into traditional marriage is one thing. "Redefining marriage" - - which is how the gay marriage movement was billed when it first became prominent, in an era when even the most fundamental institutions and concepts seemed vulnerable to destruction via Orwellian "redefinition", was quite another.

More worrisome is the opinion's quote from the 2013 Utah federal court opinion in Kitchen v. Herbert, saying a right to marriage "protects an individual's ability to make deeply personal choices about love and family free from governemnt interference". I guess I should be glad that this is described only as a protected "ability", not a "right" that continues unchanged after marriage and childbirth. No one who has spent time in family court - - not just on divorce, but especially in child custody litigation - - would think that such an "abililty", nor right, is anywhere near absolute, nor could be, without drastic changes to most areas of family law. But I increasingly encounter clients who think they have such a "right". And if it grows into a full-fledged right, it will be in an irrepressible conflict with all the other values of "sanctity" and "commitment" that Judge Allen invokes. Which will dilute and diminish all marriages, gay and straight.


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