Virginia Marriage Equality Ruling Both a Big Deal and the New Normal

Since the U.S. Supreme Court ruled last year that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition for same-sex marriages, was unconstitutional, a wave of litigation over marriage equality has descended on the federal (and some state) trial courts, and so far every judge who has ruled on a motion for summary judgment has concluded that bans on performing or recognizing same-sex marriages violate the 14th Amendment of the U.S. Constitution as a matter of law. In that sense, there is really nothing new about U.S. District Judge Arenda L. Wright Allen’s decision in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19080, announced on February 13 in the case of Bostic v. Rainey, holding Virginia’s ban on same-sex marriage unconstitutional, since the opinion falls within what is now the mainstream of a growing body of trial court decisions issued by judges of just about every political stripe.

On the other hand, each of the decisions issued so far, by federal judges in Ohio, Utah, Oklahoma, Kentucky, and now Virginia, presents its own particular perspective on the issue, and each of the judges has managed to inject his or her own brand of eloquence in explaining why the quest for equal marriage rights deserves to win.

Judge Wright Allen, who was appointed to the bench by President Obama and unanimously confirmed by the Senate in 2011, prefaces her decision with a lengthy quote from a public statement issued by Mildred Loving, one of the parties in the historic 1967 case of Loving v. Virginia, in which the Supreme Court laid the doctrinal foundations for Judge Write Allen’s decision. Mildred, whose maiden name was Mildred Jeter, and her husband Richard Loving, had been prosecuted by Virginia for going to the District of Columbia to marry and then returning home to Virginia, living in open defiance of that state’s law forbidding marriages between people of color and white people. The Supreme Court ruled in that case that Virginia’s law was an unconstitutional interference in the right of individuals to marry the partner of their choice, not only because the statute enacted race discrimination, but also because of the fundamental role of marriage in our society.

Mrs. Loving said, in marking the 40th anniversary of her Supreme Court victory, “The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. . . I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. . . I support the freedom to marry for all. That’s what Loving (the case), and loving, are all about.”

And, to close out her opinion, Judge Wright Allen quoted remarks by Abraham Lincoln, from a letter he wrote in May 1860 while contemplating his bid for the Republican presidential nomination in the upcoming national election. Reflecting the coming struggle over slavery, Lincoln wrote, “It can not have failed to strike you that these men ask for just the same thing – fairness, and fairness only. This, so far as in my power, they, and all others, shall have.” Echoing Lincoln, the judge concluded her opinion by stating, “The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.”

This lawsuit was initiated last summer by Timothy Bostic and Tony London, a gay couple who inquired about getting a marriage license from the Norfolk court clerk and were advised that Virginia law prohibited it. Although the ACLU and Lambda Legal had put out the word that they were planning a lawsuit in the wake of the DOMA decision, Bostic and London were not inclined to wait and filed their own lawsuit in the Eastern District of Virginia. The American Foundation for Equal Rights (AFER), which had litigated the California Proposition 8 case, quickly offered them the opportunity to be represented by Ted Olson and David Boies, the prominent appellate litigators who presented that case to the federal courts, and Bostic and London accepted the offer. The case was amended to add a second couple, Carol Schall and Mary Townley, who had married in California in 2008 but whose marriage was not recognized in Virginia. As a practical matter, this non-recognition had raised a barrier to Schall adopting their daughter, who was born in 1998 through donor insemination, since Virginia’s adoption law does not permit second-parent adoptions for same-sex couples. The Virginia marriage and recognition bans are embodied both in statutes and in a state constitutional amendment adopted in 2006.

The lawsuit originally named as defendants then-Governor Bob McDonnell and then-Attorney General Ken Cuccinelli, as well as George E. Schaefer III, the Norfolk Circuit Court Clerk whose office had denied the license to Bostic and London. As the case developed, McDonnell and Cuccinelli were dropped as defendants, Janet Rainey, the state’s Registrar of Vital Records was added, and the Prince William County Circuit Court Clerk, Michele McQuigg, was allowed to intervene as a defendant. Perhaps equally significant for the direction of the lawsuit, soon after the newly-elected Democratic governor and attorney general, Terry McAuliffe and Mark Herring, took office, they announced that the executive branch of the state government was no longer interested in defending Virginia’s marriage ban, and the state’s Solicitor General was dispatched by Herring to join the plaintiffs during the summary judgment hearing a few weeks ago to argue that the ban is unconstitutional. Thus, the only defenders of the ban at this stage of the litigation are two county clerks, who are represented by their own counsel, including lawyers from Alliance Defending Freedom, a curiously-named group that has intervened in several marriage equality cases to oppose the freedom of same-sex couples to marry. ADF claims to be vindicating religious freedom as its main goal, but evidently just the religious freedom of those who share ADF’s religious opposition to same-sex marriage.

In the first part of her opinion, the judge rejected defendants’ argument that the plaintiffs in this case lacked standing to pursue a federal court challenge, and also rejected their argument that the Supreme Court’s 1972 holding in Baker v. Nelson that same-sex marriage does not present a “substantial federal question” was binding on the court. In line with the other recent marriage equality rulings, Judge Wright Allen concluded that “doctrinal developments since 1971 compel the conclusion that Baker is no longer binding,” and observed that the 2nd Circuit Court of Appeals, based in New York, had “recognized this explicitly” when it ruled against the constitutionality of DOMA in U.S. v. Windsor. The judge also referred to District Judge Robert Shelby’s opinion in the Utah marriage case, Kitchen v. Herbert, holding that Baker “has little if any precedential effect today.”

Judge Wright Allen considered both due process and equal protection arguments against the ban, and concluded that it was unconstitutional on both theories.

Focusing first on due process, she concluded that the Supreme Court had established in Loving v. Virginia and subsequent cases that the right to marry is a fundamental right, and as such could not be abridged by the state without a narrowly-tailored law that was justified by a compelling state interest. “The reality that marriage rights in states across the country have begun to be extended to more individuals fails to transform such a fundamental right into some ‘new’ creation,” she wrote. “Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia’s adult citizens.” She continued, “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”

Having found that a fundamental right was at stake, Judge Wright Allen asserted that the “strict scrutiny” standard of judicial review applied to this case, and rejected the defendants’ arguments that the marriage ban could be justified by tradition, federalism, or the “responsible procreation” and “optimal child rearing” theories. Her analysis is by now quite familiar, following the lines of the recent decisions from Ohio, Utah, Oklahoma and Kentucky. Responding to the federalism point, she quoted from Justice Scalia’s dissent in Windsor, where he wrote: “As I have said, the real rationale of [the Windsor opinion] is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.” The judge rejected the argument that on grounds of federalism the court should abstain from ruling on the merits in order to give the Virginia electorate and legislature a chance to reconsider their position, remarking that this “proposal disregards the gravity of the ongoing significant harm being inflicted upon Virginia’s gay and lesbian citizens.”

In addition to rejecting the argument that there was no logical connection between any state goal to channel procreation responsibly or provide an optimal setting for child rearing and forbidding same-sex couples from marrying, she also asserted that this “rationale misconstrues the dignity and values inherent in the fundamental right to marry as primarily a vehicle for ‘responsibly’ breeding ‘natural’ offspring,” which “ignores the profound non-procreative elements of marriage, including ‘expressions of emotional support and public commitment,’ ‘spiritual significance,’ and ‘expression of personal dedication.'” The quotations were from an opinion for the Supreme Court by Justice Sandra D. O’Connor, striking down a state’s ban on marriage for prison inmates.

Having found the Virginia marriage ban in violation of the Due Process Clause, Judge Allen Wright turned to the Equal Protection Clause. The standard of review for equal protection claims can vary depending upon whether the challenged discrimination involves a fundamental right or discriminates because of a so-called “suspect classification.” As she had already found a due process violation based on the conclusion that the right to marry is fundamental, the judge concluded that the marriage ban also violated the Equal Protection Clause by discriminating concerning a fundamental right. But she also addressed the “suspect classification” issue, finding that same-sex and different-sex couples are “similarly situated” for purposes of an equality analysis. “Deference to Virginia’s judgment on this question is unwarranted,” she wrote, “because there are reasonable grounds to suspect ‘prejudice against discrete and insular minorities which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities,'” quoting a venerable Supreme Court precedent from 1938 that is foundational in equal protection doctrine. She found plenty of evidence “manifest in Virginia in state-sanctioned activities” that showed animus against gay people, including, for example, Ken Cuccinelli’s action as attorney general directing colleges and universities to rescind their anti-discrimination policies on the ground that Virginia’s civil rights statutes provided no protection against discrimination to gay people.

However, she concluded that it was not necessary for her to determine an appropriate level of judicial review in this case. “Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose,” she wrote, “and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs’ compelling arguments that the Laws should be subjected to heightened scrutiny.”

“The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.” Having reached this conclusion, the judge stated that the plaintiffs are entitled to injunctive relief commanding the state to stop enforcing the marriage ban. However, acknowledging that the Supreme Court had stayed the Utah decision and thus signaled its view that district judges should not order states to allow same-sex marriage until any appeals to higher courts are exhausted, Judge Wright Allen “stayed execution of this injunction pending the final disposition of any appeal to the Fourth Circuit Court of Appeals.”

Presumably the two county clerks will quickly file their appeals with the 4th Circuit, which is based in Richmond, Virginia. The state, represented by Ms. Rainey, could also appeal, although in light of the governor and attorney general both stating their view that Virginia should allow and recognize same-sex marriages, that seems unlikely. In any event, unless the 4th Circuit handles the case with extraordinary speed, it is unlikely that it would be ruling before the 9th and 10th Circuits rule on the pending appeals from Nevada, Utah and Oklahoma. The 10th Circuit has already scheduled oral arguments on Utah and Oklahoma during April, and the 9th Circuit has granted a motion by Lambda Legal for an expedited hearing in the Nevada case, with the date to be set shortly. Final reply briefs are due in the Nevada case by February 25, and the court has granted a request by the state government to withdraw its brief, leaving the field in that case to an intervenor group that had supported the passage of the state’s anti-gay marriage amendment. Ted Olson and David Boies got involved in the Bostic case with the explicit goal of taking it to the Supreme Court, but as of now it seems more likely that the National Center for Lesbian Rights, which has become associated with the Utah case, or Lambda Legal, which represents plaintiffs in the Nevada case, may get there first. There is another Virginia marriage equality case, Harris v. Rainey, filed in the Western District by the ACLU and Lambda Legal, which is also pending. In that case, the trial judge certified the case as a class action, but arguments on summary judgment have yet to occur, so it is uncertain whether there might be a second Virginia ruling to present to the 4th Circuit before it decides any appeal in the Bostic case.

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