Friday, January 17, 2014

Was Anti-Gay Animus the Real Motivation for the Marshall-Newman Amendment?

Anyone who has followed the activities of The Family Foundation for any length of time knows that the organization holds deep animus for LGBT individuals and consistently works to deprive gays of equal civil rights and to keep us inferior under the law.  And anyone who closely followed the effort to pass the Marshall-Newman Amendment knows that one of its main proponents was The Family Foundation and that the legislation was pushed by Republicans deeply in bed with The Family Foundation.  Now, however, documenting this animus may be important.  Both United States v. Windsor and the recent ruling in Oklahoma found anti-gay animus as the motivation for DOMA and the Oklahoma gay marriage bans and ruled that animus toward a group did not constitute a valid rationale for discriminatory laws.  On January 30, 2014, the U.S. District Court will hold a hearing in Bostic v. Rainey where the plaintiffs are seeking a ruling as a matter of law that the Marshall-Newman Amendment and related statutory bans on gay marriage are unconstitutional.  The plaintiffs' memorandum of law lays out evidence of the anti-gay animus behind the Marshall-Newman Amendment.  Here are highlights of that anti-gay bias:
7. House Bill Number 751 also claimed that while “heterosexual marriage requires sexual exclusivity,” same-sex couples who marry “merely prefer sexual exclusivity, but do not demand it.” In addition, House Bill 751 declared that “marriage between homosexuals . . . contains an ‘understanding of the need for extramarital outlets.’” Id.

12. House Bill Number 751 also included in its “legislative findings” that there are “lifeshortening and health compromising consequences of homosexual behavior” that inure “to the detriment of all citizens regardless of their sexual orientation or inclination.” Id.

13. In 2004, Richard Black, one of the co-sponsors of House Bill Number 751, publicly stated, “The whole agenda of the homosexual movement is to entice children to submit to sex practices.  Those groups lead children to experiment with potentially fatal sex practices that spread AIDS and other sexually transmitted diseases.” Lustig Decl. Ex. A (The Washington Times, “Gay-Straight” Clubs in Schools Anger Foes, Nov. 17, 2004).

14. In 2004, Robert Marshall, one of the co-sponsors of House Bill Number 751, authored an article in The Washington Post in which he referred to marriage between gay and lesbian individuals as “counterfeit marriage” and stated that the Affirmation of Marriage Act was “needed to resist the agenda of activist homosexuals” because the “danger” they posed was “real.” Lustig Decl. Ex. B (The Washington Post, No “New Jim Crow” in Virginia, July 3, 2004).

19. Campaign materials in support of the Marshall/Newman Amendment included a television commercial that told voters, “[God] created them male and female. For this reason, a man will leave his father and mother and be united with his wife and they will become one flesh, for God’s design.” Lustig Decl. ¶ 16 (attesting to accuracy of transcription of commercial).

20. Before the Marshall/Newman Amendment was adopted, Virginia Delegate Kathy J. Byron advocated in its favor stating, “By changing the definition of marriage, the family, too, would be redefined, ultimately destroying the traditional family.” Lustig Decl. Ex. D (The Washington Post, Gay Marriage Ban Advances in Va., Jan. 14, 2006).

21. Then-Virginia Senator (now-Attorney General) Kenneth Cuccinelli urged his colleagues to adopt the Marshall/Newman Amendment by claiming “[t]he homosexual left has been on the attack against marriage and family for 40 years,” and that the amendment was necessary for “regaining lost ground.” Lustig Decl. Ex. E (The Washington Post, Va. Senate Backs Ban on Gay Marriage, Feb. 8, 2005).

22. More recently, Attorney General Cuccinelli publicly stated that homosexuality “brings nothing but self-destruction, not only physically but of their soul.” Lustig Decl. Ex. F (The Washington Post, Cuccinelli Basks in Richmond’s Warmer Climate, Feb. 5, 2008).

23. Similarly, Attorney General Cuccinelli has stated that homosexual acts are “intrinsically wrong” and “don’t comport with natural law”; and that homosexual behavior “is not healthy to an individual and in aggregate is not healthy to society.” Lustig Decl. Ex. G (The Virginia Pilot, Steve Shannon for Attorney General, Oct. 26, 2009); Ex. H (Huffington Post, Ken Cuccinelli Loses Petition to Uphold Anti-Sodomy Law, Apr. 10, 2013).

25. Virginia law permits private adoption agencies to refuse adoptions based on the sexual orientation of the prospective parents. Va. Code § 63.2-1709.3.

26. Neither Virginia’s Human Rights Act nor its Fair Housing Law prohibits discrimination on the basis of sexual orientation. Va. Code §§ 2.2-3901, 36-96.3.

27. Virginia’s hate crime law does not punish violence against individuals based on their sexual orientation. Va. Code § 18.2-57(B).

28. From 2004, when the Affirmation of Marriage Act was adopted, to today, there have been at least 270 hate crimes in Virginia targeting individuals based on their sexual orientation. Lustig Decl. ¶ 17 (attesting to tabulation of statistics available at
Thus, the question becomes whether or not the judge in Bostic will recognize the real motivation behind Virginia's gay marriage bans and dismiss the tired - and failed and rejected - justifications for the blatant anti-gay bigotry that these bans embody?  If that is the court's course of action, under the ruling in Windsor and the Supreme Court rulings in Romer v. Evans and Lawrence v. Texas, the Marshall-Newman Amendment and the statutory bans should be ruled unconstitutional. What do readers think?

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