Cuccinelli Responds to Norfolk Marriage Lawsuit Citing Elizabethan and Church of Enland Definitions and Procreation

I always knew that Ken Cuccinelli and his allies at the Family Foundation Foundation wanted to drag Virginia backwards in time and to have religion define the civil rights of citizens.  But I never expected him to cite Elizabethan laws and 17th Century Church of England definitions of marriage to justify Virginia's constitutional ban on any recognition of same sex relationships.  Yet that is precisely what the Memorandum of Law filed on behalf of the State defendants in Bostic v. Rainey, et al, today in the U.S. District Court for the Eastern District of Virginia does [Case 2:13-cv-00395-AWA-LRL Document 44 Filed 10/01/13].   Yes, it also among other things makes the same tired Christofascist arguments that marriage is to be reserved for those who can procreate children and that, therefore, Virginia's decision to stigmatize same sex couples survives rational basis scrutiny.  

The Memorandum also incredibly claims that the Marshall-Newman Amendment wasn't motivated by anti-gay animus despite the anti-gay campaign mounted by The Family Foundation and religious extremists like Cuccinelli himself.  Having lived through the period leading up to the passage of the Marshall-Newman Amendment, the motivation of its sponsors was in fact to "harm a politically unpopular group."  Here are some excerpts from Cuccinelli's memorandum of law (which sounds as if it were co-authored in part by folks at The Family Foundation):

Marriage in Virginia Has Always Been Defined As Between One Man and One Woman. 

1. The Act of Uniformity of 1559, 1 Eliz., c.2, required the use of the Book of Common Prayer of 1559 in the Church of England, the church established by law. An Act for the Uniformitie of Common Praier, and Service in the Church, and the Admistracion of the Sacramentes, http://justus.anglican.org.resources/bcp/1559/front_matter_1559.htm. Both the rubrics and the liturgy of marriage required a man and a woman.

2. The General Assembly passed acts of uniformity in March 1623/24,1 1 WILLIAM WALLER HENING, STATUTES AT LARGE 123 (1823), February 1631/32, id. at 155, and September 1632. Id. at 180. In February 1631/32, marriages were ordered to be performed in churches absent some necessity. Id. at 158.2

4. The English Act of Uniformity of 1662, 14 Car. 2, c. 4, required the use of the 1662 Book of Common Prayer. The liturgy and rubrics limit marriage to a man and a woman. THE BOOK OF COMMON PRAYER 362-73 (Oxford University Press).

The Memorandum of Law then proceeds to describe Virginia's sometimes bizarre and church dominated laws on marriage which typically were worded to only recognize marriages performed by "ordained ministers of the gospel."  The Memorandum, of course, conveniently ignores the fact that after American independence, there was to be no established church.  It also, perhaps by accident, contains an admission that marriage laws are not necessarily right just because they are of long standing:

24. When African-American marriages forbidden by antebellum laws were ratified, the operative language provided that those who "shall have undertaken and agreed to occupy the relationship to each other of husband and wife, and shall be cohabiting together as such at the time of its passage, whether the rites of marriage shall have been celebrated between them or not, . . . shall be deemed husband and wife." 1865-66 Va. Acts c. 18, p. 85.

As for why there is a purportedly rational basis for discriminating against same sex couples, the Cuccinelli Memorandum of law sounds like a replay of the arguments put forth in the Proposition 8 trial in California.  Here are highlights:

Fundamental rights are those that "are objectively, 'deeply rooted in this Nation's history and tradition' . . . and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'"

Neither the United States Supreme Court nor any federal circuit court of appeals has held that homosexuality constitutes a suspect class entitled to heightened scrutiny.

Because the Virginia definition of marriage does not deny homosexual individuals a fundamental right or burden a suspect class, it benefits from a "strong presumption of validity." Heller v. Doe, 509 U.S. 312, 319 (1993). The traditional definition of marriage must be upheld "'if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.'"

Civil recognition of marriage historically has not been based on state interest in adult relationships in the abstract. Traditional marriage was not born of animus against homosexuals, but is predicated instead on the positive, important and concrete societal interests in the procreative nature of opposite-sex relationships. Only opposite-sex couples can naturally procreate, and the responsible begetting and rearing of new generations is of fundamental importance to civil society.

"[A] central and probably preeminent purpose of the civil institution of marriage (its deep logic) is to regulate the consequences of man/woman intercourse, that is, to assure to the greatest extent practically possible adequate private welfare at child-birth and thereafter."

For an ultimate irony, the Cuccinelli Memorandum even cited an article by NOM's Maggier Gallagher - a woman who has likely made over a $1 million peddling anti-gay animus, has been caught seeking to engender racial discord, and is extremely challenged when it comes to truth and veracity - as follows "States have a strong interest in supporting and encouraging this norm. See, e.g., Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773,. . . "

The Memorandum also cites a favored justification for Christofascists and Tea Party extremists (Cuccinelli is both) by citing supposed virtuous reaction to "judicial overreach":

Under the rational basis test, it must be supposed that the purpose and effect of Article I, § 15-A was to prevent Virginia judges from changing the definition of marriage under the state constitution as state judges had done elsewhere. This is the most salient contextual explanation of Article I, § 15-A. That provision can most reasonably be understood as a popular reaction to judicial overreach. Its supporters might reasonably have concluded that in other states the wrong branch of government had wrought a fundamental societal change; they might reasonably have concluded that they did so employing an improper means by treating a word having a fixed meaning with post-modernist insouciance; and they might reasonably have concluded that this judicial activism justified state constitutional correction.

[T]here is nothing in the holding in Windsor that brings into question the power of States to adhere to the long-standing, conjugal view of marriage. The holding in Windsor is instead that when Congress took the unusual step of intruding into the exclusive state domain of domestic relations law, in a way that made state decisions in favor of the newer view of marriage "second-class," it was then guilty of a "'bare congressional desire to harm a politically unpopular group.'"

Where a State has defined marriage in the first, traditional, conjugal fashion since its original settlement in 1607, the Windsor analytic framework is simply unavailing in support of Plaintiffs.

There's much more bullshit and disengenuous dissembling in the Memorandum of Law.  Again, the lead up to the passage of the Marshall -Newman Amendment was filled with anti-gay animus that flowed in huge waves from The Family Foundation and individuals like Cuccinelli himself. In fact, the proponents of the Marshall-Newman continue to engage in anti-gay animus in the form of seeking to bar gay adoption, depicting gays as sexual predators of children and a parade of other horrible accusations.  One can only hope that the attorneys for the Plaintiffs (the plaintiffs are pictured below) fill the trial record with statements from the anti-gay elements as was done in the Proposition 8 trial in California.