Today, Attorney General Mark R. Herring filed an amicus brief in the marriage equality cases pending before the Supreme Court that highlights Virginia’s unique history in landmark civil rights cases, our specific experience with marriage equality, and an important yet under-examined legal argument that will help the Court recognize the fundamental right to marry at stake in these cases.
It also announces for the first time that there have been 1,289 marriages between same-sex couples in Virginia since October 6, 2014, accounting for around 6-8% of all marriages during that period. The State Registrar has also recorded six completed adoptions by same-sex spouses and nine birth certificates adding both spouses’ names as the child’s legal parents.
“In previous decades, Virginia used the same arguments advanced by opponents of marriage equality to defend segregation, or ban interracial marriage, or limit educational opportunities for women,” said Attorney General Herring. “We took a different approach during our marriage equality case, arguing instead for the fundamental constitutional rights of the people of Virginia to marry the person they love. Our position was validated by every court that heard the case, and thousands of Virginians are now legally married, with all the rights and responsibilities that come with that commitment, and the children of same-sex couples are beginning to get the legal protections they deserve.”
In addition to citing Virginia’s extensive and unique history in landmark civil rights cases, Attorney General Herring’s brief also emphasizes the need for the court to correctly define the right in question as “the fundamental right to marriage,” not just “the right to same-sex marriage.” This is a critical legal point that has not been examined sufficiently during recent marriage equality cases. When a fundamental right is at stake, such as the right to marry, there must be a compelling state interest to limit the right, and the right cannot be restricted to the way it was historically practiced, in this case, in 1868 when the Fourteenth Amendment was adopted. None of the reasons offered by proponents of marriage bans, such as encouraging heterosexual couples to marry, justifies preventing same-sex couples from marrying. The brief explains:
“The States’ proffered justifications for their same-sex-marriage bans cannot survive rational-basis review, let alone the more demanding standards. Windsor rejected the same procreation-channeling and optimal-child-rearing justifications, finding that Congress had “no legitimate purpose” in refusing to recognize valid same-sex marriages. The States’ excuses for denying marriage equality are no stronger here. It is utterly implausible that permitting same-sex couples to marry and raise their children in two-legal-parent households will make different-sex couples less likely to marry and raise their children in two-legal-parent households. Other courts have justifiably ridiculed such excuses.”
The Commonwealth’s brief also encourages the Supreme Court to issue a decisive and unmistakable ruling in favor of marriage equality that will “quell grumblings, already audible in some quarters, that State and local officials might invoke States’ rights to withhold marriage equality, even if this Court rules that the Fourteenth Amendment demands otherwise.”
Attorney General Herring concludes by stating that “The Constitution created a government dedicated to equal justice under law. That principle is not new. What is new is this generation’s recognition that that principle cannot be reconciled with governmental discrimination against gay people.”
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