Ken Cuccinell and the Christofascists v Mark Herring in the Virgina Marriage Case

As noted in the prior post, even though the hearing in Bostic v. Rainey is being rescheduled, it is worthwhile to revisit the competing arguments before the Court.  One interesting aspect of the case is that the briefs on file basically will pit the arguments set forth by former Virginia General Ken Cuccinelli (which have been adopted by Michele McQuigg the Clerk of the Prince Willaim County Circuit Court) against those now made by Virginia's new Attorney General, Mark Herring.  Another interesting wrinkle is that George Schaefer, Clerk of the Norfolk Circuit Court, is represented by the firm in which former Governor Bob McDonnell was a member until he was elected Attorney General.  Both Cuccinelli and McDonnell have a documented history of anti-gay bigotry.  In addition to the plaintiffs and the defendants, the other parties filing briefs are (i) The Family Foundation, a vitriolically anti-gay "family values" organization and (ii) five professors, most holding positions with religious affiliated universities with strong anti-gay dogmas. 

Plaintiffs: The arguments of the plaintiffs and, now Attorney General Mark Herring, can be summarized as (a) Marriage is a fundamental that does not exclude same sex couples, (B) the 43 year old ruling of the Minnesota Supreme Court in Baker v. Nelson is not controlling given subsequent court decisions, (B) Equal Protection Clause of the 14th Amendment of the U. S. Constitution applies to ALL citizens, (D) religious based belief and/or animus towards a group does not constitute a constitutional rational basis for discriminatory laws, (E) anti-gay laws are subject to heightened scrutiny by the courts, and (D) the defendants' proffered evidence of "tradition" and alleged preferred child rearing views do not justify anti-gay discriminatory bans on same sex marriage.  In making this argument, the plaintiffs' memorandum of laws laid out the anti-gay animus underlying the Marshall-Newman Amendment.  Here are excerpts from the Plaintiffs' memorandum of law:

12. House Bill Number 751 also included in its “legislative findings” that there are “life shortening 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).-

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).

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 www.fbi.gov).

The plaintiffs the argued that under the ruling in United States v Windsor, such anti-gay animus rendered the alleged rational basis for Virginia's gay marriage ban unconstitutional.  This was followed up in the memorandum of law filed by the Attorney General's Office which stated in part as follows:

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'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.

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).

 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.

Defendants: The arguments of the defendants and homophobic former AG Ken Cuccinelli basically boil down to (A) there is no fundamental right to "homosexual" marriage, (B) the 14th Amendment of the U.S. Constitution is not applicable to homosexuals and was intended for the protection of African Americans, (C) legislation specifically targeting gays is not subject to heightened scrutiny, and (D) the court must uphold the legislative/voter determination that heterosexual marriage is the "optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society."  The Cucinnelli memorandum of law in defense of Virginia's gay marriage ban states in part as follows (I am at a loss as to why Cuccinelli tied the origins of civil law marriage in Virginia to religious beliefs, but he did):

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

In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court held that Minnesota's law defining marriage as an institution for opposite-sex couples violated neither due process nor equal protection. Id. at 187. The United States Supreme Court dismissed the appeal for want of a substantial federal question. Baker v. Nelson, 409 U.S. 810 (1972). This resolution is dispositive. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975).

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. Instead they have said the opposite.

And same-sex marriage cannot be a fundamental right because by definition a "right" that was first recognized in this country a decade ago is not deeply rooted in our history and traditions. . . . . 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.'" Id

Therein lies a fundamental difference between this case and Loving v. Virginia, 388 U.S. 1 (1967). There can be no question that a core purpose of the Fourteenth Amendment was to guarantee to African Americans equal fundamental rights, including the right of marriage. . . . . When Plaintiffs claim that Virginia's law "is also subject to heightened scrutiny under the Equal Protection Clause because it discriminates against Plaintiffs on the basis of sexual orientation," (Doc. 60, 9 of 24), the proposition is simply counterfactual. Marriage is defined in terms of a man and woman, husband and wife, and not in terms of sexual orientation.

Amicus Curiae: In addition to the briefs filed by the plaintiffs and the defendants there are two other briefs filed by supposed amicus curiae, The Family Foundation and five right wing professors.   Not surprisingly given the racists undercurrents of its activities,  The Family Foundation's brief basically makes a states' rights argument that would have done the pre Civil War Southern states proud.  Under its argument, states should be able to do whatever they want when it comes to marriage and, by extension, the the argument suggests that the U.S. Supreme Court ruled in correctly in Loving v. Virginia.  Here's a samplingly:

For this court to rule that the United States Constitution mandates that the State redefine marriage would unnecessarily federalize a question that is undoubtedly within the “residuum” of power reserved to the states. As the Supreme Court has noted: “One of the principal areas in which this Court has customarily declined to intervene is the real of domestic relations.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004). To intervene in state regulation of marriage would “thrust the Federal Judiciary into an area previously left to state courts and legislatures.” . . . . There is no reason for this court to depart from this “long established precept” by holding that the federal courts now have the authority to superintend the domestic relations laws of the states.

Beyond the importance of safeguarding local self-government, federalism also advances interstate pluralism. “Interstate pluralism is the feature of our federal system that reflects the ability of each state to establish itself as a distinct community. It entails the ability to make and enforce choices on foundational matters such as fundamental ordering of . . . family relations” and “seeks to protect each state’s ability to create and enforce these fundamental orderings and thereby define its society.”

Interstate pluralism allows states to experiment with various social and legal policies free from interference and to reflect the unique preference and attributes of the state.

The brief filed by the five far right professors is no less bizarre and basically strives to accuse the American Pychological Association and every other legitimate medical/mental health association which has supported same sex-marriage and gay parenting of being patently wrong.  Not surprisingly, the professors' brief cites the now thoroughly discredited Regnerus study (which was financed by - surprise, surprise - right wing anti-gay organizations).  Here are samples of the brief:

A persistent claim by supporters of same-sex marriage is that there is “no difference” in
the outcomes of children raised by a biological mother and father and those who have been raised by two women or two men. That claim has also been advanced by associations like the American Psychological Association (APA). But as recent scholarship indicates, the claim is difficult to support because nearly all of the studies upon which the “no difference” assertion is based are rather limited, involving non-random, non-representative samples, often with relatively few participants. . . . .These and other methodological limitations make the APA’s confident “no difference” conclusion suspect.

With so many significant unanswered questions about whether children develop as well in same-sex households as in opposite-sex households, it remains prudent for government to continue to recognize marriage as a union of a man and a woman, thereby promoting what is known to be an ideal environment for raising children.

Frankly, from all that I have read, the professors' brief is a big, deliberate lie that is being foisted on the Court.  In a perfect world, Judge Wright Allen would hit the professors' counsel from the misnamed Alliance Defending Freedom with sanctions if not contempt charges.

Time will tell how the Court will rule, but the better - and more honest - legal analysis in my view after 36 years of legal experience is on the side of the plaintiffs and Attorney General Mark Herring.