Attorney General Mark R. Herring today filed the Commonwealth of Virginia’s brief in the appeal of Bostic v. Rainey in the Fourth Circuit. In it, the Commonwealth explains the reasons Norfolk federal district Judge Arenda Wright Allen ruled correctly in concurring with Attorney General Herring’s conclusion that Virginia’s ban on same sex marriage is unconstitutional.
Attorney General Herring’s brief explains why the court should apply the most demanding “strict scrutiny” standard to Virginia’s same sex marriage ban, the reasons the ban fails to pass this “strict scrutiny” test or even the legally deferential “rational basis” test, and the reasons the court should act now to protect the fundamental right to marriage which is currently denied to same-sex couples in Virginia.
“All Virginia families deserve to be treated fairly and equally, and that, our Constitution guarantees to each of us,” said Attorney General Herring. “I remain committed to ensuring that both sides of this argument are heard in court as this case advances so we can get a definitive ruling, but since I changed the Commonwealth’s legal position in January, every federal court that has considered the question has agreed that marriage equality is constitutionally required, including the resounding opinion in our favor in Virginia.”
Virginia’s brief directly tackles the claims made by the appellant Clerks of Circuit Court from Norfolk and Prince William County and those who joined their appeal through amicus briefs. It makes the case that Virginia’s same sex marriage ban violates the Due Process and Equal Protection Clauses, which Attorney General Herring argued when he announced Virginia’s change in legal position in the case and which the district court judge concluded in her ruling on February 13, 2014. The brief explains that “strict scrutiny,” the most rigorous level of examination, should apply because of the long judicial history establishing marriage as a fundamental right. At a minimum, “heightened scrutiny” should apply because the ban discriminates on the basis of both sexual orientation and gender.
Virginia’s brief makes clear why the ban fails the “strict” or “heightened scrutiny” that is likely required, while also explaining why the ban fails to meet even the most deferential legal standard, rational-basis review, because the court has repeatedly said that rights cannot be denied on the basis of morality, religion, or tradition. Additionally, the brief explains that even if there were a compelling state interest in promoting opposite-sex marriage, there is no rational reason to believe that banning same-sex marriage will make opposite-sex couples more likely to enter into lasting, procreative marriages. Attorney General Herring’s brief also rejects the Clerks’ argument that the law should presume that same-sex couples are unqualified to raise children.
Virginia also notes the Supreme Court’s pronouncement in last summer’s United States v. Windsor decision striking down the Defense of Marriage Act, that “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” Simply put, states have latitude to regulate marriage only within the confines of the U.S. Constitution, as has been held in numerous Supreme Court decisions dating back decades, and which was a central premise for Attorney General Herring’s decision to change the Commonwealth’s position in this case.
The Clerks ground much of their argument in the 1972 case of Baker v. Nelson, in which the U.S. Supreme Court declined to review a decision by the Minnesota Supreme Court which found that the Fourteenth Amendment did not protect a man’s right to marry another man. Appellants fail to acknowledge that summary dismissals like that in Baker traditionally bind lower courts, “except when doctrinal developments indicate otherwise.” In the 42 years since Baker, a doctrinal sea change has occurred in landmark cases such as Romer v. Evans, Lawrence v. Texas, and capped off by last summer’s Supreme Court in Windsor. In fact, every single federal court that has examined the issue since last summer’s Windsor decision has agreed with Judge Wright Allen and with Attorney General Herring that Baker v. Nelson is no longer relevant, and that it is unconstitutional to deny the rights, responsibilities, and benefits of marriage to same-sex couples.
The Commonwealth makes the case that the time is right for the courts to act to protect the fundamental rights of Virginians. As the district court noted, the claim that growing public support for same sex marriage means these laws will eventually be repealed “disregards the gravity of the ongoing significant harm being inflicted upon Virginia’s gay and lesbian citizens.” The brief enumerates some of the rights that same-sex couples barred from marrying are currently being denied, including the authority to make medical decisions, the right to adopt children together, the right to confidential marital communications, and various inheritance rights.
Finally, the Attorney General’s brief again states that Virginia State Registrar of Vital Records Janet M. Rainey will enforce Virginia’s ban until a definitive judicial decision can be rendered. He renews his request that any injunction against Virginia’s ban be stayed until the matter can be definitively resolved by the U.S. Supreme Court. Proceeding in a speedy but deliberate way will avoid placing Virginia government and Virginia’s same-sex couples in the legal limbo that ensnared hundreds of couples in Utah and Michigan who wed before injunctions in those states were stayed by higher courts. As the brief states, “there is no need for such uncertainty when the issue can be definitively resolved in the Supreme Court’s 2014-15 term.”
Virginia appealed the district court judge’s ruling to help ensure the fastest possible schedule. The Attorney General’s office led the effort to expedite the schedule, which was agreed to by all parties and ordered by the court, requiring any reply briefs from the appellant clerks by April 30, 2014. The Fourth Circuit is scheduled to hear oral arguments in the case in Richmond on May 13, 2014.
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