Equality On Trial

Class-action lawsuit filed in Virginia challenging the state’s same-sex marriage ban

August 2, 2013

By Scottie Thomaston

LGBT Legal Cases Marriage equality Marriage Equality Trials

A class-action challenge to Virginia’s ban on marriage equality was filed this week by Lambda Legal, the national ACLU, and the ACLU of Virginia. The plaintiff couples have children, and one of the plaintiffs has a serious medical issue:

“Virginia is home for us. Our families are here, our jobs are here, and our community is a great support for us, but it makes us sad that we cannot get married where we live,” said Joanne Harris, a lifelong Virginian and the daughter of Bedford, Virginia farmers. “It hits me in the gut that two hours from our house same-sex couples in Maryland and D.C. can marry. I have a serious medical condition and we’ve had to spend lots of money to try to make sure that Jessi can make decisions for me if there were ever a crisis.”

“I’m an Air Force veteran, and if Virginia would just respect our marriage from D.C., it would ensure that my spouse and family could access all the benefits I’ve earned,” said Christy Berghoff, from Winchester. “I’ve been with Victoria for almost a decade now; and it hurts to have our home state say we are not married when it recognizes marriages entered into by different-sex couples who may have only recently met.”

The complaint suggests the broadest possible arguments will be made in favor of marriage equality and heightened or strict scrutiny for laws that classify on the basis of sexual orientation and in favor of a broad fundamental right to marriage under the Due Process Clause. However, the complaint first points out that “[n]o legitimate… interest” exists to defend the exclusion of same-sex couples from marriage. In other words, even under the most lenient standard of review, no interest can justify keeping same-sex couples from marrying, or from having their legal marriages recognized by Virginia.

Without citing to Lawrence v. Texas and Loving v. Virginia, the complaint nonetheless refers to them obliquely, suggesting history and tradition aren’t a valid basis to uphold a law’s constitutionality in some other contexts:

Neither history nor tradition can justify the Commonwealth’s discriminatory exclusion of same-sex couples from marriage. Marriage has remained vital and enduring because of, not despite, its resiliency in response to a dynamic society, as society and the courts have cast off prior restrictions on interracial marriage and coverture. The Constitution is not confined to historic notions of equality, and no excuse for the Commonwealth’s discriminatory restriction can be found in the pedigree of such discrimination.

And without citing United States v. Windsor, the complaint makes the same point Justice Kennedy raised in his majority opinion for the Court: children are harmed and made less secure when the status of their parents’ marriages are left in flux:

Excluding same-sex couples from marriage harms their children, including by branding their families as inferior and less deserving of respect, and by encouraging private bias and discrimination. Denying same-sex couples the equal dignity and status of marriage humiliates the children now being raised by same-sex couples, and makes it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
[…]
Excluding same-sex couples from civil marriage will not make the children of different-sex spouses more secure. Different-sex spouses’ children will continue to enjoy the benefits that flow from their parents’ marriage regardless of whether same-sex couples are permitted to marry. The marriage ban has no conceivable effect on the choices different-sex couples make about such profound issues as whether to marry, whether to have children, and whether to raise their children in wedlock.

As the lawsuit is a class-action, the filing defines the proposed class:

a. all persons residing in Virginia who are unmarried, and either
1. wish to marry a person of the same sex, have applied for a marriage license in the Commonwealth with a person of the same sex, and have been denied the license; or
2. wish to marry a person of the same sex in the Commonwealth, but have not attempted to apply for a marriage license because the marriage ban would render such an attempt futile; as well as

b. all persons residing in Virginia who are validly married to a person of the same sex in another jurisdiction, and wish to have their marriage recognized by the Commonwealth

The complaint specifically asks for the court to rule that the lawsuit is sustainable as a class action, that Virginia’s anti-gay marriage legislative scheme is unconstitutional under Equal Protection and Due Process, and it asks the court to enjoin enforcement by “each Defendant; against each Defendant’s officers, employees, and agents; and against all persons acting in active concert or participation with any Defendant, or under any Defendant’s supervision, direction, or control.”

The Washington Blade notes that Virginia’s Attorney General’s office declined to comment on the challenge.

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