Hearing Set for Norfolk Gay Marriage Case

It's strange that the Richmond Times Dispatch is covering this story before the Virginian Pilot, but in any event, on January 30, 2014, the  United States District Court for the Eastern District of Virginia, Norfolk Division.  The case, Bostic et al v. McDonnell et al, involves a Norfolk gay couple and a Chesterfield County lesbian couple who seek a declaration that Virginia's Marshall-Newman Amendment (which was championed in 2006 by The Family Foundation) is unconstitutional under rationale of the ruling in United States v. Windsor, which struck down DOMA.  The hearing is on cross Motions for Summary Judgment which ask (i) for the plaintiffs side that the Court rule that the marriage ban is unconstitutional as a matter of law, and (ii) for the defendants side, that there is no case and that the suit be dismissed.  The following are highlights from the plaintiffs' brief in support of their motion that frame the issue:

This case is about “the freedom to marry,” which “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1, 12 (1967). The Supreme Court has reaffirmed fourteen times that marriage is “the most important relation in life,” and that the right to marry is of “fundamental importance for all individuals.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978); see also Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974). As a result, “[c]hoices about marriage” are “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996)

This case is also about equality—the most essential ingredient of the American dream— and the “dignity and integrity” that come with it. United States v. Windsor, 133 S. Ct. 2675, 2694 (2013). It is beyond dispute that “the Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). Moreover, the Supreme Court repeatedly has held that the Constitution prohibits laws that “impose a disadvantage, a separate status, and so a stigma upon” gay men and lesbians. Windsor, 133 S. Ct. at 2693–94; see also Lawrence v. Texas, 539 U.S. 558, 574 (2003); Romer, 517 U.S. at 635. The tragic time has long passed when our government could target its gay and lesbian citizens for discriminatory, disfavored treatment— even imprisonment—because those in power deemed gay relationships deviant, immoral, or distasteful.  See Lawrence, 539 U.S. at 575–76.

Despite these bedrock constitutional principles, Virginia has decided to single out gay men and lesbians and enshrine in Virginia’s Constitution and statutory code that they are different, that their loving and committed relationships are ineligible for the designation “marriage,” and that they and the children they raise are unworthy of that “most important relation in life.”

No less than the provision of the federal Defense of Marriage Act (“DOMA”) struck down by the Supreme Court earlier this year, Virginia’s Marriage Prohibition “demeans” same sex couples, “places [them] in an unstable position,” “humiliates tens of thousands of children now being raised by same-sex couples,” and “instructs all [State] officials, and indeed all persons with whom same-sex couples interact, including their own children, that their [relationship] is less worthy than the [relationships] of others.” Windsor, 133 S. Ct. at 2694–96. The Fourteenth Amendment does not permit such discriminatory treatment.

Virginia’s ban on interracial marriages violated the constitutional commands of due process and equal protection, and Virginia’s sweeping ban on marriage for gay men and lesbians violates those constitutional commands no less. The Court should grant summary judgment to Plaintiffs and declare Virginia’s Marriage Prohibition facially unconstitutional.

A review of the history of the enactment of the Marshall-Newman Amendment, particularly the falsehoods disseminated by The Family Foundation makes it clear that the purpose of the Amendment and the aim of its sponsors and their mentors at The Family Foundation was to demean and denigrate gay and lesbian couples.  Why the animus?  Because gay and lesbian couples fail to adhere to the religious beliefs of the theocrats.  Here are highlights from the Times Dispatch story:

The setting of a hearing “is an important sign that this critical case is moving,” said Carl Tobias, professor at the University of Richmond School of Law.  “The case law so far is unclear,” Tobias said.

Bostic and London charge that the Virginia amendment violates the equal protection and due process clauses of the 14th Amendment of the Constitution by singling out gays and lesbians for a disfavored legal status. Bostic and London believe that their case may result in a court decision that would rule all same-sex marriage bans unconstitutional.

The couple is represented by a legal team that includes the attorneys who successfully argued California’s Proposition 8 case at the U.S. Supreme Court last summer.

There are some 40 cases around the nation challenging various restrictions on same-sex couples, Tobias said.

“However Judge Wright rules, I expect an appeal to the 4th Circuit, and on to the Supreme Court,” Tobias said. “It is interesting how quickly this issue seems to be moving in a number of courts and in some state legislatures.”

The suit may pose a first major challenge for Attorney General-elect Mark R. Herring, who opposes the same-sex marriage ban, but who in his role as the state’s legal counsel would have to defend it in court.

But Herring may back off from defending the law if his legal advisers find it to be unconstitutional after extensive review.

“What I would do is poll the attorneys in the attorney general’s office who have the expertise in the particular subject matter that is at issue,” Herring said in an interview during the campaign. “I would review their legal analysis, the arguments, and make a thoughtful or deliberate decision whether or not I thought the law was constitutional or not.”

Alternatively, Herring could simply recuse himself from representing the state, based on conflicts-of-interest concerns, Tobias said.  “If he stays on the case and Virginia loses, critics will accuse him of not mounting a sufficiently vigorous defense,” he said.