Virginia Gave Birth to Gay Marriage in the South

Being gay has changed a lot since I "came out" and moved out of the family home in 2002.  Gay sex no longer exposes one to a potential felony conviction, same sex couples can now marry, and gay couples are being welcomed as members in local yacht and country clubs.   Much still needs to be done to end the lack of non-discrimination protections in employment, housing and public accommodations.  On the same sex marriage front, I had a front row seat if you will since the lead plaintiffs in the marriage litigation were personal friends.  The other strange twist was that David Oakley, the attorney representing the Norfolk Circuit Court Clerk, was also someone I knew both socially and professionally.  He did not take kindly to some of my comments on this blog and argued that he was involved in the case to ultimately have the issue resolved, not because he was anti-gay.  He has a guest editorial piece in the Virginian Pilot today that looks at this sea change for Virginia and the South.  Here are excerpts:

THE COURAGE shown by a few Virginians led our commonwealth to become the first Southern state to allow gay marriage, but the debate continues to define the parameters of Virginia law.

It all started on what was otherwise an ordinary day in the office of George Schaefer, the Norfolk Circuit Court clerk, when Timothy Bostic and Tony London asked for a marriage license.

Like others before them, they were politely and respectfully turned down because the Virginia Constitution allowed marriage only between one man and one woman. Yet, Bostic and London were the first gay couple ready to push forward, armed with a decision from the U.S. Supreme Court [the Windsor ruling]. That decision came close to, but ultimately deferred ruling on, whether same-sex marriage was protected by the Constitution — one of the defining social issues of the times.

It took courage of the Norfolk parties, whose personal and professional lives were subjected to intense scrutiny. Bostic and London chose to pursue their case in the federal court system knowing that many disagreed with their goal. Virginia’s newly elected attorney general, Mark Herring, showed courage in the face of backlash when he changed his position and vigorously argued to strike down Virginia’s marriage laws as unconstitutional.

Schaefer, an elected official, was now a necessary party to the case.  If he had refused to defend Virginia’s marriage laws as they existed, the courts would have lacked what is known as a justiciable issue. In other words, without a party to prosecute and defend both sides of an issue, the courts will not weigh in. . . . . Thus, he stood his ground and defended Virginia’s ban on gay marriage, asserting it was the commonwealth’s right to define marriage as voted upon by its citizens.

The presiding U.S. District judge was criticized by many in the days following her historic ruling. But her ruling was clear: Virginia’s ban on same-sex marriage violated the U.S. Constitution.

The split in opinion among the Fourth Circuit Court of Appeal’s three-judge panel showed the battle was still unsettled; not everyone agreed. But the door had swung open to allow same-sex marriage in the Southern states. The public debate was no longer theoretical. Same-sex marriage arrived in Virginia, West Virginia, Maryland, North Carolina and South Carolina. 

Recently, Judge Steven C. Frucci of the Virginia Beach Circuit Court was asked to rule in a custody dispute between two women going through a divorce.   Just a short time ago, the non-biological parent in that relationship would not have had custody or visitation rights, but Fruicci correctly ruled that today she does.

In the end, David Oakley was right and with his assistance, George Schaefer, the Norfolk Circuit Court Clerk, and Tim Bostic and Tony London helped force the courts to strike down unconstitutional laws.

Tim Bostic and Tony London - Reflections on an Amazing Wedding

As noted yesterday, the husband and I attended the wedding of Tim Bostic and Tony London (pictured above) yesterday at the magnificent Christ and St. Luke's Episcopal Church in Norfolk and then the reception that followed at the Harrison Opera House.  For those living under a rock, Tim and Tony were the lead plaintiffs in the case that ended Virginia's bans on same sex marriage.  

The wedding was historic for many reasons, not the least because it was held in one of Norfolk's old line "power churches" - the parish dates from 1637 and has been attended by many a who's who of Norfolk.  Also noteworthy is the fact that Lt. Governor, Ralph Northam, did one of the readings, and in attendance were the mayor of Norfolk, at least one state senator (Lynnwood Lewis), the commissioner of revenue, and a number of "old Norfolk" folks.  Also attending were Carol Schall and Mary Townley whose case was joined with the Bostic/London case.  Added to all of this was the pomp and circumstance of a "high church" Episcopal service complete with communion service.  

Many of our LGBT friends in attendance found it difficult not to tear up.  When I came out in mid-life almost 13 years ago, NEVER, EVER in my wildest dreams did I ever think I'd see such and event in Norfolk let alone in a church like Christ and St. Luke's.  The homily by Rev. Win Lewis was spot on and one of the readings addressed the love of Jonathan and David.    It truly is hard to describe all of the emotions I felt.  The entire service in my view made a huge statement that things have changed remarkably.   There are many battles still to be fought here in Virginia and elsewhere, but a sea change has occurred.  The Virginian Pilot has coverage here and the Daily Press here.  

The following are photos from the event.

Going to a Historic Wedding Today

Our friends Tim Bostic and Tony London - the lead plaintiffs in the Virginia marriage case - are getting married today at beautiful Christ and St. Luke's Episcopal Church in Norfolk today (the church is like a small cathedral as the images below shows).  The wedding ceremony is open to the community and the husband and I will be in attendance and are among those lucky enough to be included in the guest list for the elegant reception to follow.  Above is a photo from the rehearsal last night.  It should be an amazing wedding and we are so happy for these wonderful guys who had the courage to take a huge risk and put themselves out the to create change.Local media coverage is here.

I am hard on religion, but there are some good and decent denominations that put love and the Gospel message over hate and bigotry, and the Episcopal Church is one of them as is the Evangelical Lutheran Church in America to which I still formally belong.  Would that all Christian denominations would follow their lead.

Plaintiffs in Bostic v. Rainey Get Marriage License

Our friends, Tim Bostic and Tony London, who were plaintiffs in the lawsuit challenging Virginia's same-sex marriage ban (i.e, the Marshall-Newman Amendment), get the first marriage license issued to a gay couple in Norfolk at the Clerk's Office of the Norfolk Circuit Court office Monday, Oct. 6, 2014. (Photo by Patrick Wilson | The Virginian-Pilot).  George Schaefer, Clerk of the Norfolk Circuit Court was one of the defendants in Bostic v. Rainey, et al.  

Personally, I find some sweet irony in the fact that the U.S. Supreme Court handed down its rejection of the same sex marriage case appeals the day after the hate merchants at The Family Foundation ended its ridiculous 40 day "fast" for marriage.  Maybe Victoria Cobb - Virginia's "queen of mean" - needs to get the message that she and her fellow bigots are on the wrong side of the fight.

Reflections on Hampton Roads Pride Fest 2014

Mikado preparing to leave the dock

Yesterday's Pride Fest in Norfolk's Town Point Park by all estimates was the largest ever.  News reports say the crowd exceeded 15,000.  One of the Absolut vodka reps I spoke with - Absolute was a presenting sponsor - pegged the crowd at 20,000.  Whatever the final number, the event was a huge success and no doubt sent shivers through the gay haters in the Virginia GOP and The Family Foundation.  One of the most remarkable things was the diversity of the crowd both in terms of age span, the number of families and racial mix - black, white, Hispanic and lots of Filipinos (Hampton Roads has a large Filipino population).  Another remarkable thing was that the CIA had a recruiting booth at the event.  We have gone from the days when being gay got one fired to now where gays are being sought after.   The Norfolk Police Department also had a recruiting booth at the event.   

CIA recruiting booth

Our day began with the Pride Boat Parade on board the 50' Mikado, the lead boat of the parade with Pride Fest grand marshals Tim Bostic and Tony London among the passengers.  It was a great kick off for the day's events and the flotilla received loud cheers and waves as it passed by Town Point Park.    From the sponsors' tent - my company was among the corporate sponsors - we had a great view of the main stage where various acts, culminating with Deborah Cox performed to the large crowd.   Below are assorted photos from the day.

Other boat parade participants

The roster of sponsor who backed the $100,000 cost of the event (my company was a gold sponsor)

An early view of the gathering main stage crowd

Me and the husband

A panel from the History Project that looks at Virginia's early gay rulers

.
A boat decorated for the boat parade

We hope that next year's event will be even bigger and that marriage equality will be a reality in Virginia.  Meanwhile, make a point of giving your business to the companies that supported this year's event. 

UPDATED: One more photo of some of the boats that participated in the Pride Boat Parade.

 

Mark Herring Announces Virginia Will Appeal to Supreme Court

Virginia will ask Supreme Court to review Bostic case

The race is on in terms of states appealing marriage sex marriage same decisions to the U.S. Supreme Court.  While the State of Utah has announced that it will appeal the invalidation of its anti-gay ban on same sex marriage, Virginia Attorney General Mark Herring has announced that Virginia will appeal and ask the high court to affirm the ruling of the 4th Circuit Court of Appeals and allow marriages to begin in Virginia as soon as possible.  Elections do indeed matter and every vote counts - had Herrings opponent, Christofascist Mark Obenshain won last November, he'd be doing all he could to support anti-gay animus and bigotry in the state.  The Washington Post looks at Mark herrings announcement.  Here are details:

Virginia Attorney General Mark Herring said Tuesday he would ask the Supreme Court to review a decision that struck down the state’s ban on same-sex marriage, although he supports the lower court’s decision.

The Democrat has chosen not to defend the state’s law, but has also asked for 4th U.S. Circuit Court of Appeals to stay its decision because he believes there could be unintended consequences. Herring’s office said it planned to make its filing seeking a Supreme Court review on Friday.

“I believe the district and appeals courts ruled correctly in striking down Virginia’s discriminatory marriage ban, but it has long been clear that the Supreme Court will likely have the final word. I want that decision to come as soon as possible and I want the voices of Virginians to be heard,” Herring said in a statement.

On Monday, the plaintiffs in the case challenging Virginia’s same-sex marriage ban said they wanted a federal appeals court to allow gay marriages to occur before the U.S. Supreme Court can rule on the issue.

“The right to marry is fundamental, and thus Virginia’s marriage prohibition irreparably harms plaintiffs-appellees — and all gay men and lesbians in the commonwealth — each day that it remains in force,” attorneys for two gay couples challenging the law wrote in a Monday court filing.

Last week, a county court clerk in northern Virginia sought to delay the 4th U.S. Circuit Court of Appeals’ ruling striking down Virginia’s law while it is appealed. That 2-1 ruling upheld the decision made by a lower district court in Norfolk.
 
In the Monday filing, attorneys wrote that allowing the immediate enforcement of the district court’s injunction would not result in any irreparable injury to the Prince William County clerk, the state of Virginia or the public interest.

“In the unlikely event of reversal by the Supreme Court, any purported uncertainty about the validity of same-sex marriages performed before that decision could be addressed on remand. In any event, that risk of uncertainty falls on those same-sex couples who choose to marry before the Supreme Court has ruled, rather than on Clerk McQuigg or the Commonwealth,” the filing says.

The appeals court typically grants stays while cases are appealed to the Supreme Court. The American Civil Liberties Union of Virginia and Lambda Legal have also opposed the stay.

Tim Bostic Denied Tenure - Is Something Rotten at Old Dominion University?

 

On Friday the Virginian Pilot and the Washington Blade reported that Tim Bostic, one of the plaintiffs in Bostic v. Rainey challenging Virginia's anti-gay animus based Marshall-Newman Amendment had been denied tenure at Old Dominion University.  The university says that the move has nothing to do with Bostic's involvement in the marriage case.  Bostic has reportedly confirmed this claim:

“It has to do with one upper level administrator with a very weak ego who decided to target me because I know some personal information,” said Bostic, without providing any specific details.

 But many at the university are not buying the storyline.  Indeed one college professor I spoke with over the weekend pointed directly to the Old Dominion University Board of Visitors, the vast majority of whom are appointees to Bob"Taliban Bob" McDonnell who has a well documented history of a decidedly anti-gay agenda.  Adding to the mix is a Facebook post this evening by Bostic's partner, Tony London, which lists Tim's lengthy list of accomplishments at ODU after stating:

Tim has chosen not to speak about this subject; however, as the person who loves him, I feel compelled to respond so that at least the truth is out there.

Having been forced from a law firm some years back for being gay, I know first hand (i) the animus some Virginia  conservatives hold towards gays and (ii) the lengths they will go to cover up their anti-gay animus.  And then there are the threats that are made as to what will happen if you do not sing the scripted storyline.  I will be blunt.  I do not buy the university's storyline.  Moreover, if Bostic's explanation were true, why isn't something being done to "upper level administrator" who has set the stage for severe damage to the university's reputation?  

As a result of what has happened, I am contacting the university tomorrow to say that I am cancelling the balance of my financial pledge.  I hope others will do likewise.  Please also consider contacting the Board of Visitors to express your concern: 757-683-3072 (office); 757-683-5679 (fax).  You will, of course, be told that since "it is a personnel matter" they cannot tell you anything.  But if there is enough blow back, they may want to revisit the matter.  You may also want to contact the office of Governor McAuliffe.  Some of the Bob McDonnell appointed members of the Board of Visitors are coming up for re-appointment or dismissal.  I say we make the case for their dismissal.

Why the Oklahoma Gay Marriage Ruling is a Blueprint for Virginia's Marriage Cases

Virginia plaintiffs Tim Bostic and Tony London

I was quoted yesterday in GayRVA on the federal court ruling this week in Oklahoma that struck down Oklahoma's gay marriage ban.  The opinion was well written and relied on both the U.S. Supreme Court rulings in Lawrence v. Texas and United States v. Windsor which made it clear that moral disapproval and animus, respectively, toward a particular group could not justify deliberately discriminatory laws.  While the Oklahoma and Utah rulings are not technically binding precedent on either the Eastern District or Western District of Virginia, they lay out a reasoning easily applicable to the two pending gay marriage lawsuits in Virginia.  Especially when one looks at the anti-gay animus and moral disapproval of gays which was a steady current in the propaganda war led by The Family Foundation and its allies to push passage of the Marshall-Newman Amendment in 2006.  The New Civil Rights Movement reviews the Oklahoma ruling and the reasoning is 100% on point for Virginia.  Here are excerpts:

The Judge notes that Oklahoma’s constitutional ban on same-sex marriage “intentionally discriminates.”

He labeled Oklahoma’s ban “a classic, class-based equal protection case,” and cited numerous press releases noting animus as the reason the law was passed, like this:

State Representative Bill Graves said, “‘This is a Bible Belt state . . . . Most people don’t want that sort of thing here. . . . Gay people might call it discrimination, but I call it upholding morality.’”

And he effectively slammed every so-called “pro-family” anti-gay group, every evangelical and every Christian organization’s arguments against marriage equality.

The Court recognizes that moral disapproval often stems from deeply held religious convictions… However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.

But wait — it gets better!

Judge Kern writes “there is no rational link between excluding same-sex couples from marriage and the goals of encouraging ‘responsible procreation’ among the ‘naturally procreative’ and/or steering the ‘naturally procreative’ toward marriage.”

Permitting same-sex couples to receive a marriage license does not harm, erode, or somehow water-down the “procreative” origins of the marriage institution, any more than marriages of couples who cannot “naturally procreate” or do not ever wish to “naturally procreate.”

And then, bingo!

If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal.

Kern keeps on hitting it out of the ballpark, exploding the so-called “every child deserves a mom and a dad” claim groups like NOM and the Family Research Council use.

He writes “the Court cannot discern, a single way that excluding same-sex couples from marriage will ‘promote’ this ‘ideal’ child-rearing environment. Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner…”

“The Court concludes that denial of same-sex couples from marriage “does nothing to promote stability in heterosexual parenting.””

Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country.

And then, finally, this:

“Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.”

What happened in Oklahoma is identical to what happened in Virginia and, if the judges in Virginia are responsible jurists, they have no option but to rule as the U.S. District Court in Oklahoma ruled.

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.

Ordinary People Working to Effect Great Change - The Norfolk Marriage Lawsuit

L to R: Laurel Quarlberg, a past Legends honoree, Tony London, Bob Ruloff, and Me

On November 9, 2013, my partner and I attended Equality Virginia's 2013 Legends Gala which honored Miles Burcher, a person friend, as the 2013 "legend" for past service that he has provided to the Hampton Roads LGBT community and his efforts to achieve full equality for all Virginians.  An added bonus of the event was that The American Foundation for Equal Rights ("AFER") was one of the sponsors of the event.  Better yet, all four of the plaintiffs in the federal lawsuit pending in the Norfolk Division of the U.S. District Court for the Eastern District of Virginia that challenges the toxic Marshall-Newman Amendment to Virginia's Constitution (which bans any legal recognition of same sex relationships, not just marriage) were in attendance.  The plaintiffs are Tim Bostic and Tony London from Norfolk, Virginia, and Carol Schall and Mary Townley from Richmond, Virginia.  I had the good fortune to speak with all four of these self-described ordinary people as well as representatives of AFER.   In fact,  Carol Schall and Mary Townley said several times that they felt that they were in a sort of a dream - "we're just ordinary people who find themselves in something they never expected."

An article in the Richmond Times Dispatch reports on an interview with Tim Bostic and Tony London where they say something very similar: 

There is nothing special about us. We care for our dogs, we try to be good neighbors, we try to volunteer and give back to our community,” he said.

A few days after the Supreme Court decision, London was closing a loan for a real estate deal with Norfolk attorney Robert E. Ruloff. They talked about the ruling on DOMA and Proposition 8. “Then Bob offered to marry us,” London said.

At home, London discussed the idea with Bostic. Both knew that because of Virginia’s marriage amendment, a federal lawsuit would be inevitable. They also considered the consequences that national scrutiny would bring.

“We figured that if we didn’t do it, who would?” Bostic said. “If people like us won’t stand up for what’s right, who is going to do it? We can do it without worrying about our children getting harmed or our careers, or having financial difficulties because of that.”

In October, attorneys Theodore B. Olson and David Boies — the legal team that successfully argued California’s Proposition 8 case — announced that they would join Shuttleworth and Ruloff in representing the couple.

Bostic and London are also joined by Chesterfield County couple Carol Schall, an autism researcher, and Mary Townley, who also works with special-needs youths. The couple has been together for 28 years and has a 16-year-old daughter. They were married in California in 2008.

The message to all of is that it takes ordinary people living their lives openly and authentically and standing up to discrimination to change the world.  Eddie Windsor is yet another example.  We cannot wait for someone else to do what needs to be done.  We need to have the courage and fortitude to step up and endeavor to make a difference.  Just like Carol Schall and Mary Townley and Tim Bostic and Tony London.  It was a privilege to spend time with these four great people and to reconnect with my former law partner, Bob Ruloff, one of the attorneys representing the four plaintiffs.  All of us can be "legends" if we but have the courage to do so.

Yours truly with Carol Schall and Mary Townley

Ken Cuccinelli's Response to Norfolk Marriage Case (Continued)

Yesterday I wrote a post about Ken Cuccinelli's memorandum of law seeking the dismissal of the gay marriage challenge pending in the U.S. District Court for the Eastern District of Virgina.  After further reflection overnight, Cuccinelli's argument basically comes down to this:  based on the long history of Virginia's legal structures concerning marriage, Virginia's gay marriage ban should stand.  Long tradition along makes bigotry right.  The irony, of course, is that Virginia has a long tradition of being wrong on marriage issues:

1. Virginia's antebellum laws barred slaves from marrying.

2. Virginia long barred interracial marriage and, in fact, the Virginia Supreme Court twice upheld Virginia's anti-miscegenation law before the United States Supreme Court struck it down in Loving v. Virginia.

To this list of Virginia being on the wrong side of history one can add the former near chattel status of women and state sponsored racism in the form of Jim Crow laws.  Indeed, applying Cuccinelli's argument that the long passage of time and bigotry of citizens make laws proper, Virginia should still be a slave state.  Being wrong and being discriminatory for decades or centuries doesn't make things pass constitutional muster.

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.

More on AFER's New Role in thr Norfolk Marriage Equality Lawsuit

Back when I first wrote about the lawsuit filed in the Norfolk Division of the U. S. District Court for the Eastern District of Virginia there among the issues was the condemnation by certain of the "gay elite" if you will who were peeved that the original plaintiffs had not come before them, genuflected and received prior permission before filing their lawsuit.  For my criticism of these "gay elites" - they know who they are - I suffered some nasty back biting and personal attacks (be assured that while I have held my tongue so far, these personal attacks will be responded to when the time is ripe).  Now, the last laugh seems to be on some of my critics and those who bad mouthed my friends who are the plaintiffs.  Why?  Because today it was announced that American Foundation for Equal Rights ("AFER"), including its legal eagles, Ted Olsen and David Boies.  The video clip above introduces my friends Tim Bostic and Tony London.  Here highlights from AFER's announcement:

[We are] thrilled to announce that AFER and our incredible legal team, led by Ted Olson and David Boies, are joining a federal marriage case in the great state of Virginia.

So much has changed in the 5 years since we started the American Foundation for Equal Rights. We overturned Proposition 8. We took the fight for full marriage equality all the way to the U.S. Supreme Court. And as Prop. 8 and the so-called Defense of Marriage Act fell, we stood vindicated in the fight against injustice.

Along the way, we transformed the national dialogue. We broke down partisan barriers and changed the discussion from right vs. left—to right vs. wrong.  We now have the support of our President, from elected leaders on both sides of the aisle, and from a solid majority of the country.

Today, nearly 30% of Americans live in a state that allows any committed couple to marry.

But for couples in the 37 states, not enough has changed. Gay and lesbian Americans are still denied basic freedoms, rights and protections based solely on who they love and where they live.

AFER's work continues in Virginia, home to the landmark 1967 case Loving v. Virginia. As in the Loving case, where the U.S. Supreme Court unanimously struck down laws banning interracial marriage, our plaintiffs want nothing more than to be treated by their home state like any other couple in love.

We will not rest until we have achieved full federal marriage equality for every single American.

I am thrilled to have AFER involved right here in the Hampton Roads area of Virginia.  Meanwhile, my monetary support will go to AFER, not the self-anointed "gay elites."  To contribute to AFER, click here. 

Will the Norfolk Gay Marriage Case Affect the Governor's Race?

In tonight's televised debate between GOP gubernatorial candidate Ken Cuccinelli - a radical Christofascist of the first order - and Democrat candidate Terry McAuliffe, McAuliffe made a point to hit on Cuccinelli's extreme positions on social issues, including gay rights and a "personhood" initiative which would outlaw all abortions and many current forms of contraception.    Among other things, McAulliffe stated that Cuccinelli had called gays "soulless and self-destructive human beings."  In typical Christofascist form - meaning that he blatantly lied since, apparently "godly Christians" are exempt from the Commandment against lying - Cuccinelli claimed that McAuliffe's statement was false.  Here's a highlight from the Virginian Pilot that basically substantiates McAuliffe's position:

Cuccinelli denounced the quote about gays that McAuliffe had attributed to him as "offensively false." But at a 2008 Family Foundation event, Cuccinelli, then a state senator, was quoted as saying, "When you look at the homosexual agenda, I cannot support something that I believe brings nothing but self-destruction, not only physically but of their soul."

The debate aside, perhaps more pressing for Cuccinelli is the reality that he will soon have to file briefs in the case of Bostic, et al, pending in the Norfolk Division of the U.S. Eastern  District of Virginia.  As the blog Northen Virginia Lawyer notes, the schedule is as follows:

Initial summary judgment motions from all parties are due September 30, 2013.

Response briefs are due October 24, 2013.

Final reply briefs are due October 31, 2013.

The election is November 5, 2013

AG Cuccinelli's office, on behalf of the Commonwealth will have to file major briefs 36 days, 12 days, and 5 days before the gubernatorial election.  October is the most critical time of the election season.  Cuccinelli will be held accountable for every word in these briefs.

 

Cuccinelli's masters at The Family Foundation, a hate group in all but formal designation, will no doubt expect and demand that Cuccinelli file a brief that thoroughly condemns both gays and the "homosexual agenda."   That said, one would think that Cuccinelli ought to realize that McAuliffe and the news media will jump all over whatever statements and arguments Cuccinelli puts forth to justify the stigmatization of gays and their relegation to an inferior form of citizenship in Virginia.  I for one will be logging on to my Pacer account to pull copies of Cuccinelli's filing just as soon as they are available.  Northern Virginia Lawyer sums up the situation well:

Whether Cuccinelli wants to, or not, he will be the face of the opposition to gay marriage.  . . . . Any attempt by Cuccinelli to avoid discussion of social issues will be easily brought back to the issue du jour in Virginia, which will be gay marriage. 

Terry McAuliffe does not need to focus on the issue of gay marriage.  He simply needs to state his support (which he has) and allow debate moderators, and or the media to force Cuccinelli to repeatedly discuss his dogged defense of the Marshall-Newman amendment.  

Make no mistake, Ken Cuccinelli is not afraid to stand up for what he believes in, but winning statewide office in Virginia requires him to focus on something more than a divisive social issue. 

The nature and timing of this lawsuit may very well be the reason McAuliffe wins in November.

Once the media is a buzz about Cuccinelli's anti-gay extremism, it is an easy step to his similarly extreme views on abortion, contraception and "personhood."  Cuccinelli has tried to claim that McAuliffe has made this issues a high priority in this election cycle, but once Cuccinelli files his briefs against gay equality, the media will fan the flames with no assistance from McAuliffe.  I for one hope that Cuccinelli twists on his own rope.  The Family Foundation made Cuccinelli the GOP nominee and The Family Foundation may end up being the cause of his defeat in the general election in November.