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Ken Cuccinelli issues one last anti-gay opinion before the end of his Virginia AG tenure

Marriage equality

Well, this is kind of fun(ish): on his last full day in office, now-former Virginia Attorney General Ken Cuccinelli–infamous for his anti-gay rhetoric and his attempts to revive Virginia’s sodomy law–released one last anti-gay legal opinion.  Think Progress has more:

Cuccinelli’s non-binding opinion, which is dated January 10, 2014, concludes that “a Governor may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns.” Cuccinelli’s successor, Democrat Mark Herring, was sworn in January 11.

The question of whether married same-sex couples may file joint Virginia tax forms hinges upon a potential conflict in state law. Although the state constitution includes an expansive ban on same-sex marriages or similar arrangements, gay rights advocates note that forbidding same-sex couples from filing jointly “is in conflict with the state law that requires conformity with federal rules” — married couples of all kinds file joint tax returns under federal law.

Cuccinelli’s fighting a losing (or maybe already lost) battle here: both newly inaugurated Democratic Gov. Terry McAuliffe and newly instated Attorney General Mark Herring support marriage equality, and will likely offer same-sex couples the opportunity to file joint tax returns at the state level if at all possible under state law.

It really does just go to show how thoroughly and lastingly anti-gay Ken Cuccinelli is.  McAuliffe and Herring’s wins were big not just for Democrats and progressives in Virginia–they were huge for its LGBT citizens as well.

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  • 1. frisky1  |  January 14, 2014 at 8:20 am

    Such a petulant little child, but thanks to him for handing Virginia to the democrats. Cheers, Cooch!

  • 2. Zack12  |  January 14, 2014 at 9:25 am

    The old saying elections matter has been proven true once again.
    I have no doubt that if the Cooch had gotten elected,LGBT citizens would have been targeted in any way possible by him.
    He simply can't accept that this country isn't a theocracy.

  • 3. Straight Ally #3008  |  January 14, 2014 at 1:31 pm

    Although interestingly, a lot of his comrades in the Religious Right no doubt think he's going to burn in hell eternally for being Catholic.

  • 4. Rik  |  January 14, 2014 at 9:27 am

    so now that the gov and AG are in our court, what will happen to the state's appeal in the pending litigation?

  • 5. Stefan  |  January 14, 2014 at 10:31 am

    There likely will be no appeal, the case will end at the district level, and Virginia will have same-sex marriage, literally at anytime now.

  • 6. rob  |  January 14, 2014 at 10:54 am

    If any of the Federal District Courts (two cases are pending), rule in favor of the plaintiffs and allow SSM in VA, would if ever make it to the Circuit Court because nobody has standing to appeal? If for some reason it does to the Circuit Court, what sort of "leanings" does this court have to foreshadow any potential ruling?

  • 7. rob  |  January 14, 2014 at 10:57 am

    oops, sorry Stefan, saw your post above. Any idea when these rulings are expected?

  • 8. Stefan  |  January 14, 2014 at 12:07 pm

    Literally at anytime a ruling could be released. Bostic has a hearing on oral arguments scheduled for January 30th and summary judgment has already been requested.

  • 9. Stefan  |  January 14, 2014 at 12:04 pm

    The 4th Circuit is 2:1 Democratic appointees, so even if it does go to them we're in good hands!

  • 10. Mike in Baltimore  |  January 15, 2014 at 11:25 am

    The Fourth Circuit used to be one of, if not the most, CONservative of Appeals Courts (MD is in the Fourth). Guess why shrub sent almost all GITMO cases through the Fourth? With several personnel changes, it is now much more middle of the pack, and with a couple more personnel changes, it could become one of the most liberal Appeals Courts, possibly rivaling the reputation of the Ninth Circuit.

    The dramatic change in the court probably started about the time the Chief Judge (Karen Williams) resigned when a doctor diagnosed her as having the early stages of Alheimer's. Williams was a CONservative's CONservative. Her diagnosis was in July 2009, thus giving President Obama the opportunity to nominate a more liberal judge for that court.

  • 11. Rik  |  January 14, 2014 at 10:57 am

    is there anyone with standing to appeal if neither governor nor AG do?

  • 12. Bruno71  |  January 14, 2014 at 11:45 am

    I think there are at least 2 separate cases working their way through Virginia federal district courts right now. In one of them, the governor was removed as a defendant, but the Staunton County clerk remained as one:…. So wouldn't that county clerk, as a defendant, have standing to appeal a ruling against the state? That is, assuming the district court rules in our favor.

  • 13. Stefan  |  January 14, 2014 at 12:05 pm

    Based upon the Supreme Court ruling in Perry v Brown, no they do not have standing.

  • 14. Stefan  |  January 14, 2014 at 12:08 pm

    Also, the county clerk in question wasn't being represented by an outside party, but by attorneys assigned by Ken Cuccinelli. I assume that Herring will swiftly fire them if he hasn't already.

  • 15. Bruno71  |  January 14, 2014 at 12:15 pm

    Could you please be specific…where in SCOTUS' ruling on standing did they say a county clerk would definitely not have standing to appeal? This district court seems to say that a governor is actually not a proper defendant, but a county clerk is.

  • 16. Stefan  |  January 14, 2014 at 3:21 pm

    In district court any citizen may bring forth a suit and have standing, but not during the appeals process as it involves the requirement of standing to appeal. County clerks do not represent the state as a whole, as was determined by the 9th Circuit in Perry and heavily implied (though not directly stated) during the Perry trial.

    The Governor was taken off as a defendant for the simple fact that he was leaving office.

  • 17. Bruno71  |  January 14, 2014 at 3:23 pm

    Actually the article says he was taken off because he doesn't actually have authority in Virginia over marriage licenses. That was the reasoning given. Also, it has yet to be determined if a county clerk is just "any citizen" when it comes to the standing issue, and the clerk here did not bring the case, but was designated as one of the defendants by the plaintiffs. This has been allowed by the district court. So, whether or not this clerk has standing to appeal, I think, is still an open question, and of course neither the California District court ruling, nor the vacated 9th Circuit's, are binding on this case.

  • 18. Stefan  |  January 14, 2014 at 10:08 pm

    Whatever. Regardless of what happens, it's highly unlikely that such a "defendant" would be able to succeed in getting the ruling stayed (or the stay extended).

  • 19. rob  |  January 15, 2014 at 8:19 am

    Doesn't the OK case (where one of the couples' case was thrown out because of lack of standing) provide a guidance on this? I believe the issue was whether the Governor or clerk had standing and there seemed to be different standards for the district and appeals courts.

  • 20. Bruno71  |  January 15, 2014 at 12:06 pm

    It may really depend on the laws of each state. In California, the 2004 Lockyer case showed that the governor and AG control how marriage licenses are issued. It may be different in Oklahoma and it may be different in Virginia. We're seeing more attention paid to these issues after SCOTUS' visitation of standing in the Perry case.

  • 21. Fr. Bill  |  January 14, 2014 at 9:49 am

    Scary, though, that such a hate filled religious zealot got so many votes.

  • 22. Zack12  |  January 14, 2014 at 10:36 am

    Even scarier,he wasn't the worst one on the ballot. E.W. Jackson and the Republican running for AG were even worse.

  • 23. klien  |  January 14, 2014 at 10:46 am

    ding dong the witch is gone!

  • 24. Zack12  |  January 14, 2014 at 12:30 pm

    I will say this,VA's gay marriage ban is a no brainer for bias since it goes as far as to ban even private contracts or POA's between gay couples.
    That and the fact Bob Marshall,one of the creators of this ban (it has his name on it) has made it clear again and again that he thinks gays and lesbians are sinful people not entitled to jobs,housing or any kinds of protections.
    All you have to do is put him on the stand to make it clear this ban was motivated by bigotry.

  • 25. Mike in Baltimore  |  January 15, 2014 at 11:49 am

    The anti-homosexual bias in Virginia is decades long.

    The state capital, the city of Richmond, VA (in the 1970s [and for years before] into the 1980s) had a city ordinance that prohibited non-related people (by blood or marriage) from renting any housing if that housing had fewer bedrooms than people renting the housing. The ordinance affected apartments MUCH more than other types of housing. Fortunately, a state court finally struck down the ordinance, and the appeal went nowhere.

    It is only in recent years that the number of one- and two-bedroom apartments on the market in Richmond has started to meet demand, 30 years after the ordinance was struck down.

  • 26. sfbob  |  January 15, 2014 at 12:45 pm

    Didn't VA also have laws on its books prohibiting the sale of alcohol to homosexuals and prohibiting homosexuals from obtaining hairdresser licenses?

  • 27. Mike in Baltimore  |  January 15, 2014 at 3:08 pm

    I don't know about those, but it wouldn't surprise me at all.

    In fact, since Virginia has a death penalty law still on the books, I'm surprised Virginia hasn't tried to include just being a homosexual as being subject to the death penalty (AFAIK, it hasn't, but it wouldn't surprise me if someone did or will try such a stunt).

  • 28. sfbob  |  January 15, 2014 at 3:50 pm

    That was probably on Cuccinelli's gubernatorial agenda. You know, for after he got elected in a landslide.

  • 29. sfbob  |  January 15, 2014 at 4:03 pm

    I have not been able to find references specifically to Virginia but when I moved to DC in 1980 I recall hearing of those particular restrictions. People would snicker, particularly as to the latter one. I did find a somewhat off-handed reference to Virginia's laws……

    California apparently DID have laws about serving liquor to gay people, as did some other states. The wikipedia entry on gay bars has some interesting notes in the "History" section.

  • 30. Michael  |  January 14, 2014 at 11:14 pm

    Buh, bye. Don't let the door hit you in the ……

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