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Virginia attorney general’s memo in same-sex marriage case takes a strong position in favor of marriage equality

LGBT Legal Cases Marriage equality Marriage Equality Trials

Yesterday, EqualityOnTrial reported the news that Virginia’s attorney general will be fighting against the same-sex marriage ban in federal court, in two cases. One case was filed by the American Foundation for Equal Rights (AFER), the group responsible for bringing the federal challenge to California’s Prop 8; the other case was filed by Lambda Legal, the LGBT legal organization with several Supreme Court wins on their record, and a pending challenge to Nevada’s same-sex marriage ban, in the Ninth Circuit Court of Appeals.

The decision is historic and noteworthy for several reasons: most importantly, it was just several months ago that the Supreme Court declined to review and possibly reinstate Virginia’s “crimes against nature” statute. The law was effectively a “sodomy” ban, making same-sex sexual intimacy illegal until the Supreme Court’s 2003 decision in Lawrence v. Texas nullified all such bans. The outgoing attorney general had pursued the case in federal court and had pressed the Supreme Court to allow the law to go into effect, on the basis that it could be used in cases involving adults having sex with minors. Now, just months later, the new attorney general, Mark Herring, will not only oppose the state’s ban on same-sex marriage, he will take on the ban in court filings.

After the announcement came down, a notice was filed in AFER’s case, telling the district court about the attorney general’s new views, and noting that named defendant Janet Rainey, the State Registrar of Vital Records, will continue to enforce the ban until the litigation is complete. The Circuit Court clerks for the city of Norfolk, and for Prince William County, remain defendants in the case, and they plan to defend the ban fully. It’s important to note that because at least two defendants remain committed to defending the ban, this case differs from the Prop 8 case: there, the district court ruled in favor of same-sex couples, and the state officials chose not to appeal because they agreed with the district court’s ruling. Judge Walker had allowed ProtectMarriage to intervene in the case to defend the ban when state officials agreed it’s unconstitutional, but only ProtectMarriage appealed, which is what led to the Supreme Court’s ultimate decision that there was no Article III standing and the appeal had to be dismissed. Here, people with standing will remain on both sides of the case throughout the process.

The notice itself has lots of interesting analysis of the current legal landscape in terms of same-sex marriage. As some reports have pointed out, the due process arguments take up most of the brief. This is the “fundamental right” argument, that marriage itself is a fundamental right, and fundamental rights can’t be denied to individuals without a compelling government interest, and even then, only where the law at issue is narrowly written so it only affects that specific government interest. This would extend to same-sex couples: the brief argues, as most of the marriage lawsuits have, that there is no compelling government interest in denying marriage to same-sex couples, and that the reasons typically given for the ban are so broad that it doesn’t make sense to apply them only to same-sex couples. (The argument was summed up by Justice Scalia when he said, in his Lawrence v. Texas dissent, that the “procreation” rationale likely couldn’t be used to uphold a ban, because, “the sterile and the elderly are allowed to marry.”)

The test that calls for a “compelling government interest” that’s “narrowly-tailored” is strict scrutiny, and under the Due Process Clause it’s applied only when a fundamental right is at stake. But were federal courts to decide the case on the basis that the right at stake is “marriage” and not the broader “same-sex marriage” (the latter is the argument made by marriage equality opponents) then strict scrutiny would be applied to same-sex marriage bans. It’s a strong argument and it’s more than the federal government itself has argued in courts, in the Due Process context. The Solicitor General’s brief in the Prop 8 case at the Supreme Court only addressed the Equal Protection Clause, because that case could be decided on a more limited basis.

On the other hand, Virginia Attorney General Herring’s notice only briefly addresses the equal protection claims raised in the case, and even then, it explicitly leaves the issue of the level of judicial scrutiny that should be applied to laws that classify people on the basis of their sexual orientation up for debate by other lawyers. The filing suggests: “[T]he Court does not need to reach that doctrinal controversy [over how federal judges should scrutinize equal protection claims based on sexual orientation] in order to decide this case. Resolving those doctrinal conflicts under the Equal Protection Clause is unnecessary in light of: (1) the Court’s clear obligation to apply strict scrutiny to laws like Virginia’s ban on same-sex marriage that significantly interfere with the right to marry; and (2) the fact that Virginia’s ban cannot survive rational-basis review, let alone heightened or strict scrutiny.”

Essentially, if the courts review the case and decide it under equal protection principles instead of due process principles, then the attorney general believes that even the most lenient form of judicial review would still result in eliminating Virginia’s marriage equality ban.

This argument is less broad than the US Attorney General’s arguments in the Prop 8 and DOMA cases: in those, the government argued that a heightened form of judicial scrutiny should be applied under the Equal Protection Clause. This would mean that instead of the burden of proof being on the same-sex couples bringing the challenge, it would shift to the state, and the state would have to tell courts why their reasons for passing the ban are “substantially related” to an “important government interest.” Ultimately, though the Second Circuit Court of Appeals adopted the government’s proposed standard, the Supreme Court failed to decide the level of scrutiny that should be applied in the DOMA case, and disposed of the Prop 8 case on other grounds.

But it’s interesting to consider the state’s approach, accepting the strictest form of judicial scrutiny for one set of arguments and declining to get into the debate on the level of scrutiny for another set of arguments.

In another section of the filing, the attorney general pointed to arguments made in Loving v. Virginia (by state officials in Virginia) to uphold bans on interracial marriage and noted their similarity to arguments in opposition to same sex marriage. The brief highlights some of the scientific and sociological research that has been used as “evidence” that same-sex marriage should be banned, and then it quotes from filings made in the Loving case, for example, one footnote says: “Virginia cited, for example, this “scientific” finding: “In the absence of any uniform rule as to consequences of race crosses, it is well to discourage it except in those cases where, as in the Hawaiian-Chinese crosses, it clearly produces superior progeny,’ and that the Negro-white and Filpino-European crosses do not seem to fall within the exception.” Id. at 42 (quoting C.B. Davenport, et al., 66 Science X (1927)). Virginia’s brief quoted the “most recent scientific treatise upon the propriety or desirability of interracial marriages,” id. at *47, which concluded: “intermarriage is definitely inadvisable. It places a greater stress and strain upon marriage than is ordinarily true when persons of similar religious views are married.””

The brief highlights at least four other arguments used by opponents of interracial marriage in the Loving case:

  • that a judicial decision overriding Virginia’s laws “would be judicial legislation in the rawest sense of that term,” Brief and Appendix on Behalf of Appellee, Loving v. Virginia, No. 395, 1967 WL 93641, at *7, *41 (Mar. 20, 1967) (quoting Loving v. Virginia, 147 S.E.2d 78, 82 (Va. 1966));”
  • that such matters are best left to the Virginia legislature because “of conflicting scientific opinion upon the effects of interracial marriage, and the desirability of preventing such alliances, from the physical, biological, genetic, anthropological, cultural, psychological and sociological point of view,” id. at *7, *41;
  • that the children of such unions “have difficulty in being accepted by society, and there is no doubt that children in such a situation are burdened . . . with ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,’” id. at 35 (quoting Louisiana v. Brown, 108 So. 2d 233, 234 (La. 1959)); and
  • that “it is the exclusive province of the legislature of each State to make the determination for its citizens as to the desirability, character and scope of a policy of permitting or preventing such alliances,” id. at *50.
  • “The injustice of Virginia’s position in Loving will not be repeated this time,” the brief says. It’s notable not only to see state officials quoting from arguments made in a widely-celebrated case upholding an important right whose denial represented one of the last vestiges of slavery; it’s equally notable that Virginia’s attorney general is pointing to offensive and unreliable arguments made by previous state officials in Virginia to make the point that same-sex marriage should be legal in the state. That section of the brief opens forcefully with George Santayana’s often-cited quote: “Those who cannot remember the past are condemned to repeat it.”

    The judge in the Bostic case has issued an order asking for status reports from the parties to the case, after the attorney general’s change in position. The judge wants to know, essentially, whether to have oral arguments on the pending motions for summary judgment (a decision on the merits of the case without a full trial, just on the briefing) now that the attorney general thinks the law is unconstitutional; the judge also wants to know whether “any parties or other entities have grounds to present argument that the laws denying the right to marry to same-sex couples should be construed as constitutional[.]” In the same order, the judge asks the parties to the case to file a five-page supplemental brief responding to the attorney general’s new position. The status reports are due today; the supplemental briefs are due Monday, January 27.

    Virginia is now the first southern state whose elected officials are fighting their same-sex marriage ban in court cases. Several other cases have been filed in southern states, and it’s unknown if any other attorneys general will follow Virginia’s lead.

    Thanks to Kathleen Perrin for these filings

    For more information on Bostic v. Rainey (formerly Bostic v. McDonnell)from The Civil Rights Litigation Clearinghouse, click here.

    Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making. Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!


    • 1. Mike in Baltimore  |  January 24, 2014 at 10:35 am

      We should never forget that Virginia, in the Loving case, also argued that white/non-white marriages were not a violation of the Fourteenth Amendment Equal Protection Clause because both the white and the non-white spouse were punished equally for the 'crime' of miscegenation. SCOTUS unanimously ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

    • 2. sfbob  |  January 24, 2014 at 11:07 am

      Similar arguments have already been used to support marriage equality bans along the lines of "men can't marry men and women can't marry women so there's no discrimination." Those arguments fail on a number of levels, but like so much of the other threadbare arguments, people who should know better continue to insist on making them.

    • 3. FYoung  |  January 24, 2014 at 11:00 am

      Thanks for this legal analysis, Kathleen, or is it Scottie?

    • 4. sfbob  |  January 24, 2014 at 11:20 am

      My reading is that Scottie provided the analysis while Kathleen obtained the filings.

    • 5. Scottie Thomaston  |  January 24, 2014 at 11:51 am

      Yeah it was me. I was thanking Kathleen for the filings, she allows me to use her Scribd filings. 🙂

    • 6. grod  |  January 24, 2014 at 11:18 am

      Does the AG's assertion that the current law will continue to be well-defended block the legislature from representing themselves in the laws defense.?.

    • 7. sfbob  |  January 24, 2014 at 2:20 pm

      Some Republicans in the VA House of Delegates want to impeach Herring for…I dunno, being, well, really for being a Democrat is what it boils down to. Herring had the perspicacity to discuss how there is legal precedent for him to refuse to defend the law, noting how it's unusual and also noting how retaining the county clerks as defendants will assure there is still an active case. I don't think the folks in the House of Delegates have got it together sufficiently to hire their own counsel.

    • 8. sfbob  |  January 24, 2014 at 11:37 am

      I like the fact that Herring tackles Baker vs Nelson head-on. He notes that any argument suggesting that Baker still has any precedential value is based on the mistaken impression that nothing has changed since 1972.

      If I could have an actual voice in such things, I'd want it to be the case that any brief citing Baker as a precedent for denying equality should not be accepted by the court with a note reading "next time do your homework."

    • 9. sfbob  |  January 24, 2014 at 11:38 am

      On an unrelated but somewhat annoying note, why is it that I keep being told, every five minutes, that my session has expired? Having to log out and back in again over and over is getting very irritating.

    • 10. Scottie Thomaston  |  January 24, 2014 at 11:53 am

      That's strange – you might want to email tech support! Here's the thing for that: "Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!"

      No idea why it's happening.

    • 11. Mike in Baltimore  |  January 24, 2014 at 1:48 pm

      Sounds more like an ISP problem, not a problem of the site. I can leave ANY site open for hours (even this one) with no change and not be logged out. That's why I think it's an ISP problem, not the site's problem.

      Before I changed ISPs, I had the problem of constantly being logged off. Not any more. Before I changed ISPs, I spoke to several people about this. I found one of the worst 'culprits' was AOL, who automatically logged people off even when there was activity.

    • 12. sfbob  |  January 24, 2014 at 2:10 pm

      Don't think it's an ISP problem as it seems to happen whether I'm at work or at home (two entirely different ISPs) and it seems to only affect THIS site and the other site I use IntenseDebate to comment on. It seems to be random. I can stay logged in for days at a time, then find myself booted out repeatedly after only a few minutes. I contacted IntenseDebate about it.

    • 13. StraightDave  |  January 24, 2014 at 11:53 am

      I followed the link to the judge's actual order and was even more blown away. He really is asking:
      1) Does anyone still want to argue about this?
      2) Do we even need to bother showing up in court next Thurs?

      Scottie, your analysis was excellent, as always, but I didn't realize the judge was being so blunt.

      Answers are due at 3PM EST today. In 8 minutes…..7, 6,…

    • 14. Stefan  |  January 24, 2014 at 1:51 pm

      Yup, and it's likely that regardless of an appeal that they're will be no stay (or if there is one it will be allowed to expire).

    • 15. Rob  |  January 25, 2014 at 9:45 am

      Judge Allen is actually female and was recently appointed by Obama, for what it's worth. Interesting background.

    • 16. Matthew N  |  January 24, 2014 at 12:41 pm

      Gotta love how everyone (the district court judge in Utah and the Attorney General's memo here) is invoking Scalia's dissent in Windsor to push forward marriage equality. Scalia is probably wishing he hadn't had such a hissy fit.

    • 17. StraightDave  |  January 24, 2014 at 1:20 pm

      Well, what do you know. There is a god after all!!!! And he's a nice one.

      P.S. You just wait til the final ruling happens on ME. Then Scalia will really blow a gasket, and he'll do it from the bench.

    • 18. Mike in Baltimore  |  January 24, 2014 at 1:56 pm

      Hopefully, as he's giving his dissent from the bench, HIS doG will find it necessary to cause some minor medical 'emergency' to strike Scalia. Maybe an itch deep inside his nose? A sneezing fit? A coughing fit? A 'snap' case of laryngitis?

      Something, not major, but attention-grabbing.

    • 19. Zack12  |  January 24, 2014 at 1:27 pm

      I said it yesterday,all our side has to do is point to Bob Marshall,the co-creator of this ban and see what he thinks of LGBT people to point out the very clear animus of this bill.

    • 20. ebohlman  |  January 24, 2014 at 9:09 pm

      He also said it meant that states couldn't prohibit masturbation. IMHO, that's truly diving into the shallow end of the pool.

    • 21. JayJonson  |  January 27, 2014 at 7:46 am

      And what would be the compelling state interest in prohibiting masturbation? And if they did, would there be prisons enough to jail the 99% of Americans who masturbate?

    • 22. Neto  |  January 24, 2014 at 2:58 pm

      If the judge declares the ban unconstitucional and the state doesn’t appeal, can anyone appeal? Can it become a new Prop 8 case?

    • 23. Andy  |  January 24, 2014 at 5:51 pm

      Also, noteworthy is that Loving took 30+ to ultimately implement in the states. Alabama was the last, with a ballot initiative to amend the state constitution in 2000. Even then… in the year 2000… 40% of voters voted to *preserve* the ban on interracial marriage.

      Haters gonna hate. We've got a long road ahead of us.

    • 24. Mike in Baltimore  |  January 24, 2014 at 9:11 pm

      The ruling in the Loving case took effect immediately in 1967. It took more than 30 years to get all the laws then on the books that made interracial marriage illegal to be taken off. Those laws that were still on the book were not enforceable – similar to the sodomy law in Virginia, on the books but unenforceable.

      That it took so long for the miscegenation laws to be taken off the books is not really surprising, though, since polling found that it was after 1990 (23 years AFTER the ruling) for more than 50% of those polled to agree with interracial marriage.

    • 25. Eric Koszyk  |  January 24, 2014 at 6:55 pm

      The fact that the Attorney General of VA sees no negative political fallout for doing this is amazing, especially since, if anything, this will probably help his political career.

      It should be noted that gubernatorial candidates in VA are often ex Attorney Generals. For instance, the 2013 GOP candidate, Cuccinelli and the last governor, Bob McDonnell.

    • 26. Attorney Search Site » V&hellip  |  January 25, 2014 at 10:07 am

      […] ban on same-sex marriage, citing his own evolution on the issue and his belief that …Virginia attorney general's memo in same-sex marriage case takes a strong …Equality on Trial (registration)Virginia GOP furious over Democratic Attorney General's […]

    • 27. Attorney Search Site » V&hellip  |  January 25, 2014 at 10:34 pm

      […] Release for Liberal Virginia Attorney …NewsBusters (blog)Question of the DayWashington TimesEquality on Trial (registration) -Raw Story -Latin Postall 84 news […]

    • 28. Mike in Baltimore  |  January 26, 2014 at 7:34 pm

      I don't agree entirely with this Washington Post editorial, but I do agree with the majority of it:

      Quick synopsis: AG Herring did the correct thing.

    • 29. Attorney Search Site » V&hellip  |  January 26, 2014 at 10:37 pm

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    • 30. grod  |  January 27, 2014 at 6:53 am

      Jan 24 plaintiffs' submission to Court's quiry if a hearing is necessary. We will make ab oral submission if the others insist.

    • 31. Equality On TrialEquality&hellip  |  January 28, 2014 at 8:04 am

      […] a class-action filed by Lambda Legal, along with the ACLU and the ACLU of Virginia. His office has already filed the same notice in Bostic v. Rainey, the case that AFER attorneys Ted Olson and David Boies have […]

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