Mark Herring Files 4th Circuit Brief Stating Virginia's Gay Marriage Ban is Unconstitutional

In follow up to his last minute filing in the U.S. District Court for the Eastern District of Virginia, yesterday Attorney General Mark Herring file his brief in the 4th Circuit Court of Appeals where Bostic v. Rainey is on appeal.  The new brief follows the lower court filing and directly states that Virginia's anti-gay animus motivated Marshall-Newman Amendment is unconstitutional under both the Due Process and Equal Protection Clauses of the United States Constitution.  This is the same theme we have seen in case after case where state bans on same sex marriage have been ruled unconstitutional.  Here are selected highlights from the 79 page brief (which can be viewed in full here):

Virginia’s same-sex-marriage ban violates the Due Process and Equal Protection clauses of the Fourteenth Amendment. Because the ban substantially interferes with the right to marry, it is subject to strict scrutiny. The ban also discriminates on the basis of gender and sexual orientation, triggering at least heightened scrutiny. All of the considerations apply here for the judiciary to be suspicious of laws that discriminate against gay people. And the Clerks’ claim that the ban treats men and women equally is like saying that interracial-marriage bans treat blacks and white equally, an argument rejected by the Supreme Court.

The ban cannot satisfy the rational-basis test, let alone more demanding scrutiny. McQuigg’s claim that the purpose of marriage is to channel couples into a procreative relationship for the benefit of children is belied by controlling Supreme Court authority that marriage protects those choosing not to procreate and those who are unable to. And the Clerks’ argument fails the rational-basis test because it is irrational to think that prohibiting gay people from marrying will make heterosexual couples more like to marry and have children.

The Clerks’ position cannot be reconciled with the Supreme Court’s three decisions to date protecting the rights of gay people.

The Clerk’s slippery-slope arguments are the same ones used to oppose interracial marriage in 1967; they are no more persuasive today than then. And just as in 1967, the Court should not wait to protect the plaintiffs’ constitutional rights simply because political trends suggest that the public increasingly supports marriage equality.

Like the court below, every other federal court to consider that question since last term’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), has nvalidated State bans or State anti-recognition provisions.

The Clerks argue that the fundamental right to marry is not implicated here because same-sex marriage is not fundamental and was unknown to the Framers of the Fourteenth Amendment. (Schaefer Br. 34; McQuigg Br. 30-31.) Fundamental constitutional rights cannot be defined away so easily.  The nearly identical argument was rejected in Loving v. Virginia, 388 U.S. 1 (1967), where the Court struck down Virginia’s ban on interracial marriage, despite that it had been in effect since “the colonial period.”

In Romer v. Evans, 517 U.S. 620 (1996), the Court struck down an amendment to Colorado’s constitution that prohibited localities from enacting laws to protect gay people from discrimination; the Court concluded that the amendment failed “even . . . conventional” rational basis review. 517 U.S. at 632. In 2003, the Court in Lawrence struck down Texas’s prohibition of consensual sodomy, concluding that the “statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” 539 U.S. at 578 (emphasis added). And last year in Windsor, the Court invalidated § 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, explaining that the “purpose and effect” of the law was “to disparage and to injure” same-sex couples whose marriages had been lawfully entered into in another jurisdiction. 133 S. Ct. at 2696. The Court did not have to decide the level of scrutiny to apply to sexual-orientation discrimination, having found no legitimate State interest in any of these cases.

In Loving, Virginia’s Attorney General claimed that the Commonwealth’s ban on interracial marriage treated the races equally because Virginia “punished equally both the white and the Negro participants in an interracial marriage.” 388 U.S. at 8. McQuigg cannot persuasively distinguish that aspect of Loving from this case.

The actions taken to date by Mark Herring - who the boyfriend and I supported vigorously, including holding a fundraiser at our home (see below) - demonstrates that elections do matter and that EVERY vote matters.  Had Mark Obenshain been elected instead of Herring, he would be doing all in his power to support the religious and animus based Marshall-Newman Amendment.  Staying home on election day is never the correct option.