Michael Hamar

Virginia AG Seeks to Put State on Right Side of History

Filed By Michael Hamar | January 23, 2014 5:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: equal protection, gay marriage, Janet Rainey, Ken Cuccinelli, Mark Herring, Marshall-Newman Amendment, Tim Bostic, U.S. Constitution, Virginia

mark-herring-virginia-attorneygeneral.jpgAs the Washington Post and many other news outlets began reporting this morning, in a stunning turn of events Virginia Attorney General Mark Herring announced today that his office would no longer be defending Virginia's bans on same-sex marriage, which are currently being challenged in the U.S. District Court for the Eastern District of Virginia in the case of Bostic v. Rainey.

Furthermore, Attorney General Herring indicated that he would be advocating for Virginia's same-sex marriage bans to be ruled unconstitutional. I have previously written about this case here on The Bilerico Project since I know the plaintiffs personally and since some of the attorneys representing them are former law partners of mine.

In a memorandum of law filed today on Bostic, Attorney General Herring first cites the precedents for attorneys general not defending laws they deem to be unconstitutional. These precedents include actions taken by among others two past Republican attorneys general of Virginia, Ken Cuccinelli and Jerry Kilgore. Thereafter, Herring acting through Solicitor General of Virginia, Stuart A. Raphael, lays out why Virginia's gay marriage bans are unconstitutional.

The arguments cite among other cases, Loving v. Virginia, United States v. Windsor, and parallel arguments made in the recent rulings striking down marriage discrimination amendments in Utah and Oklahoma. While Republicans and religious extremists at The Family Foundation are condemning Herring's action, I suspect that most have not even read the memorandum of law filed with the Court. Here are excerpts from the legal memorandum filed today:

Having duly exercised his independent constitutional judgment, the Attorney General has concluded that Virginia's laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution. The Attorney General will not defend Virginia's ban on same-sex marriage, will argue for its being declared unconstitutional, and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued to facilitate a decision on the merits, consistent with the rule of law. Rainey will continue to enforce the disputed provisions of Virginia law, in her official capacity as State Registrar of Vital Records, until the judicial branch renders a decision that conclusively adjudicates the question.

More, after the jump.

The issue in this case is whether Virginia's laws denying the right to marry to same-sex couples, Va. Const. art. I, § 15-A; Va. Code Ann. §§ 20-45.2, 20-45.3 (2008), violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV. If a conflict exists, the United States Constitution must prevail; it is the "supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2.

When the Attorney General, exercising his independent constitutional judgment, concludes that a provision of the Virginia Constitution (or Act of the General Assembly) violates the federal Constitution, he is not duty bound to defend it. Although the practice is rare for Virginia Attorneys General, it is not unprecedented. Last year, former Attorney General Kenneth T. Cuccinelli, II, declined to defend a constitutional challenge to the law establishing the Opportunity Educational Institution, 2013 Va. Acts ch. 805.1 In 2003, former Attorney General Jerry W. Kilgore, on behalf of the Commonwealth, joined an amicus curiae brief with 43 other States, explaining that an attorney general is duty-bound to challenge a statute he believes to be unconstitutional.

[T]he Attorney General has concluded, for the reasons set forth below, that the constitutionality of Virginia's ban on same-sex marriage cannot be defended under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Defendant Rainey, however, will continue to enforce the law until the important constitutional question presented can be adjudicated.

The Supreme Court has consistently ruled that marriage is a fundamental right protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. It is among the rights "'of basic importance in our society,' rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect."

It is no exaggeration to say that marriage is "the most important relation in life." Because marriage is a fundamental right, a state law that "significantly interferes" with that right is subject to "critical examination," not review for whether a mere "rational basis" supports it.

virginia.jpegVirginia's law denying the right to marry to same-sex couples cannot escape strict scrutiny on the theory that only "traditional" marriage is "fundamental." The nearly identical argument was rejected in Loving v. Virginia, 388 U.S. 1 (1967) . . . Loving teaches that the Fourteenth Amendment protects the fundamental right to marry even if the way in which it is practiced would have surprised the framers or made them uncomfortable.

[T]he issue here is not whether there is a "fundamental right to same-sex marriage," but whether the fundamental right to marry may be denied to loving couples based solely on their sexual orientation.

Loving cannot be distinguished on the ground, advanced by prior government counsel, that the "core purpose of the Fourteenth Amendment was to guarantee to African Americans equal fundamental rights," a purpose not implicated by Virginia's ban on same-sex marriage. (Doc. 65, Def.'s Reply Mem. at 4.) The Supreme Court rejected such limiting constructions in Zablocki:

The Court's opinion [in Loving] could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry...

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. 434 U.S. at 383-84 (emphasis added) (internal citations omitted).

All individuals means all individuals. The "individual's interest in making the marriage decision independently is sufficiently important to merit special constitutional protection." Id. at 404.

Tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia's ban on interracial marriage. As Lawrence held, "'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.

The "responsible procreation" and "optimal child rearing" rationale . . . . is both offensive and without legal merit.

First, that rationale tells all other couples -- whether same-sex or heterosexual couples unable or uninterested in having children the "natural" way -- that their relationships are somehow less worthy. Windsor, 133 S. Ct. at 2694. It also "humiliates tens of thousands of children now being raised by same-sex couples," making it "even 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." Id.

Second, the rationale cannot justify Virginia's ban because it is illogical to think that allowing same-sex marriage will somehow make heterosexual couples less likely to marry and have children.

Third, the rationale would justify denying marriage not only to same-sex couples, but to "the infertile, the elderly, and those who simply do not wish to ever procreate."

Finally, the rationale reduces the institution of marriage to an instrument for "responsibly" breeding "natural" offspring. 22 It ignores that marriage is "essential to the orderly pursuit of happiness by free men," Loving, 388 U.S. at 12, an enduring union between two people described so eloquently in cases like Griswold v. Connecticut, 381 U.S. 479 (1965), and Turner v. Safley, 482 U.S. 78.

Loving rejected the same arguments offered in support of the marriage ban here. "Those who cannot remember the past are condemned to repeat it." George Santayana, The Life of Reason: or the Phases of Human Progress 284 (1920). It is worth observing, therefore, that the arguments raised in Virginia's brief in Loving to defend Virginia's ban on interracial marriage are almost identical to the arguments that have been offered to support Virginia's ban on same-sex marriage... The injustice of Virginia's position in Loving will not be repeated this time.

The arguments for applying heightened scrutiny are compelling, as the United States correctly explained at length in its merits brief in Windsor. For example, "[g]ay and lesbian people have suffered a significant history of discrimination in this country. No court to consider the question has concluded otherwise, and any other conclusion would be insupportable."26 We also note that the claim that a same-sex-marriage ban does not discriminate on the basis of gender, on the theory that it applies "equally" to men and women, sounds disturbingly like Virginia's theory in Loving that its interracial marriage ban did not discriminate on the basis of race, "because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage," 388 U.S. at 7-8.

When core civil rights are at stake, as in this case, the judiciary has a constitutional duty to act. And it should act now.

Having reviewed the rulings in United States v. Windsor, the recent Utah and Oklahoma marriage cases, and the 9th Circuit ruling calling for heightened scrutiny for discrimination based on sexual orientation, Herring is correct on the analysis and the case law.

Now all eyes will be on the U.S. District Court and the hearing on January 30, 2014.


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