Federal District Judge Declares Virginia Marriage Ban Unconstitutional
February 14th, 2014
While I was sleeping, Federal District Judge U.S. District Court Judge Arenda L. Wright Allen found Virginias constitutional amendment banning marriage equality and the recognition of same-sex marriages from other states as a violation of the due process and equal protection clauses of the U.S. Constitution.
Virginia’s same-sex marriage ban is considered one of the most sweeping bans in the country. It’s only fitting, then, the Judge Allen’s ruling is similarly sweeping. In addition to striking down the constitutional amendment, she also set aside portions of the civil code and “any other Virginia law that bars same-sex marriage or prohibits Virginia’s recognition of lawful same-sex marriages from other jurisdictions.” Marriages won’t begin anytime soon however, ah Judge Allen issued a stay pending an appeal to the Fourth Circuit Court. In Judge Allen’s 42-page ruling, she concludes:
The Court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.
Judge Allen set the tone for her ruling on the cover page of her opinion, when she took the unusual step to add a preface consisting of a block quotation from Mildred Loving (née Jeter) the African-American Virginia resident who married her white husband, Richard Perry Loving in 1958, in violation of Virginia’s Anti-miscegenation law, and whose case went all the way up to the U.S. Supreme Court, which struck those laws down nationwide:
We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is? … I have lived long enough now to see big changes. 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. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me 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, and loving, are all about.
– Mildred Loving, “Loving for All”
Judge Allen turns to another landmark American at the conclusion of her opinion:
Justice has often been forged from fires of indignities and prejudices suffered. Our triumphs that celebrate the freedom of choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.
Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: “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. “
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. [Emphasis in the original]
The Daily Agenda for Tuesday, February 4
February 4th, 2014
Federal District Court to Hear Oral Arguments in Virginia Marriage Lawsuit: Norfolk, VA. Judge Arenda L. Wright Allen of the Federal District Court of Eastern Virginia will hear oral arguments today in the case of Bostic v Rainey, a case brought by two same-sex couples challenging the constitutionality of Virginia’s state constitutional amendment banning marriage equality. Representing the pro-equality side is Americans for Equal Rights, led by California Prop 8 lawyers Ted Olson and David Boies. Arizona-based Alliance Defending Freedom, the same group that defended Prop 8 in Federal court, is again representing the anti-equality side. Oral arguments had originally been scheduled for last Thursday, but were rescheduled for today due to the snow storm that hit the East and South. Oral arguments begin this morning at 10:00 a.m EST, and is expected to last about two and a half hours.
Scottish Parliament to Hold Final Vote on Marriage Equality Bill: Edinburgh, Scotland. Members of the Scottish Parliament are expected to conduct a final vote today on the Marriage and Civil Partnership (Scotland) Bill, a bill granting marriage equality to same-sex couples in Scotland. Before that final vote is taken, several MSPs are expected to offer amendments to the bill to provide special exemptions for those who oppose marriage equality. If the bill clears Holyrood, the British Parliament in Westminster will have to alter the UK marriage law before marriages can begin in Scotland. If all goes well, marriage may begin in Scotland by autumn, and perhaps as early as July. Meanwhile, same-sex marriages will become available in England and Wales on March 29, nearly nine months after Westminster approved its marriage equality bill.
TODAY’S AGENDA is brought to you by:
The Bandit’s Den of Show Low, Arizona, was happy to announce its upcoming grand opening in the pages of the Arizona Gay News. But lest anyone forget the nature of the small, predominately Mormon town high on the Mogollon Rim, the ad reminds potential gay patrons that the clientele will be a “mixed group… be discreet.”
TODAY IN HISTORY:
AIDS Cases Discovered from 1976: 1988. Common wisdom today, even with all that we know about the history of the epidemic, often still sets the start of AIDS with the June 1981 report from the Centers for Disease Control and Prevention describing five gay men who had died of a mysterious disease in Los Angeles (see Jun 5). When the HIV virus was isolated in 1984 and a test for the virus became available in 1985, several avenues of research opened up to try to figure out where this virus came from. Doctors in Paris and Brussels, who had long been treating wealthy African patients from their former colonies bearing all of the hallmarks of the new disease, pointed to Africa as a possible source for the virus. On February 4, 1988, the New England Journal of Medicine published a report by Dr. Nzila Nzilambi from Kinshasa, Zaire and other doctors from Belgium and the CDC which strongly suggested an African source for the virus, and revealed that AIDS had been a persistent health problem in rural Zaire as early as the mid 1970s.
In 1976, there had been an outbreak of Ebola in the northeastern Zaire province of Équateur along the Congo river. In the course of the medical investigations, hundreds of serum samples were collected from people throughout the area. Those samples remained preserved Zaire and were flown to Atlanta for testing. Investigators then went back out to Équateur in 1986 and collected more samples from as many people as possible, 388 in all. Ninety of them had also been among the 659 samples collected in 1976. Five of the samples from 1976 tested positive for HIV. Two were still alive ten years later; one was healthy, but the other was already showing signs of a suppressed immune system. Three were dead. One woman tested positive in 1976 was confirmed dead, “after a prolonged illness characterized by weight loss, fever, cough, and diarrhea” — all common symptoms of diseases associated with AIDS. Another woman, the wife of one of the two HIV-positive men still alive, ”died in 1981 after a long illness associated with fever, weight loss, skin rash, and oral lesions.” Again an apparent death from AIDS. The third was a child who was seven years old in 1976, who “died of pneumonia and weight loss at the age of 16.”
The doctors concluded: “The results of our study showed that HIV infection was already present in an isolated area of the Équateur province of Zaire in 1976 and that the prevalence of infection in the general population there did not change significantly over the 10-year observation period.”
[Source: Nzila Nzilambi, Kevin M. De Cock, Donald N. Forthal, et al. "The prevalence of infection with human immunodeficiency virus over a 10-year period in rural Zaire." New England Journal of Medicine 318, no. 5 (February 4, 1988): 276-279.]
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Judge Sets Oral Arguments for Virginia Marriage Ban Challenge for Thursday
January 27th, 2014
After Virginia Attorney General, Mark Herring, announced last week that he believed that Virginia’s state constitutional amendment banning same-sex marriage violated the U.S. Constitution and that he would not defend it, Federal District Judge Arenda L. Wright asked the parties in a lawsuit challenging the state’s ban whether the court should proceed for oral arguments. The deadline for replies was noon today.
The plaintiffs, who are represented by Ted Olson and David Boies of Prop 8 fame, urged the court to issue its judgement based on the briefs already filed. But the Alliance Defending Freedom, which is defending the ban on behalf of the defendant Norfolk Circuit Court Clerk George Schaefer, have asked for a hearing. The Judge has now issued orders reaffirming that oral arguments will proceed as scheduled.
Virginia Attorney General Says Same Sex Marriage Ban Unconstitutional
January 23rd, 2014
The Washington Post reports that Virginia Attorney General Mark R. Herring will announce today that the state of Virginia will ask a federal court to strike down the state’s ban on marriage equality. Citing “an official close to the attorney general with knowledge about the decision,” the Post reports that Herring’s office will file a supporting brief in Bostic v Raine on behalf of a Norfolk couple who were denied a marriage license. Their case is being represented by Ted Olson and David Boies, the same legal team what successfully overturned California’s Prop 8.
Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving school desegregation, interracial marriage and single-sex education at the Virginia Military Institute, one official said. He will make the case that the commonwealth should be on the “right side of the law and history” in the battle over same-sex marriage.
He has not informed Republicans in Richmond about his plans; an uproar is likely. GOP lawmakers have worried that Herring would change the state’s position — such decisions are up to the attorney general — and have contemplated legislation that would allow them to defend the law in court.
The attorney general thinks that is unnecessary, the official said. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suit, and both are represented by independent counsel.
One county clerk named in the suit has hired a private attorney, while another one will be defended by the Alliance Defending Freedom (formerly the Alliance Defense Fund). Oral arguments for the case are scheduled for January 30.
Olsen and Boies Suit Up to Challenge Virginia’s Marriage Equality Ban
October 2nd, 2013
Late Sunday night following a scoop by the Washington Post, the fabled legal team that overturned California’s Prop 8 announced that they will join a federal lawsuit to overturn Virginia’s constitutional amendment banning same-sex marriage. The Post reported that Ted Olson and David Boies joined the Virginia lawsuit that was filed last July after a Norfolk couples was denied a marriage license:
Olson said AFER was invited to join the case by attorneys for the plaintiffs, Norfolk residents Timothy Bostic and Tony London, whose marriage application was turned down, and Carol Schall and Mary Townley, who have a 15-year-old daughter and whose marriage in California is not recognized by the commonwealth.
Virginia is an “attractive target,” said Olson, who lives in the state, because its rejection of same-sex marriage and civil unions is so complete.
“The more unfairly people are being treated, the more obvious it is that it’s unconstitutional,” Olson said.
Olsen and Boise prevailed in overturning California’s Prop 8, but that happened without the Supreme Court directly ruling on the constitutionality of California’s same-sex marriage ban. Because the California case didn’t set a national legal precedent, the Norfolk case is expected to turn more on Justice Anthony Kennedy’s legal opinion for U.S. vs. Windsor, which overturned Section 3 of the Defense of Marriage Act. Kennedy overturned the federal prohibition against recognizing same-sex marriages, in part, because of its “disparaging” effects on gay couples and their children. When it comes to disparaging effects, it’s hard to find a juicier target than Virginia’s 2006 ban, which reads:
Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
The amended complaint for the Norfolk case, Bostic v Rainey, which was filed on September 3 by the couples’ original lawyers, already made extensive use of Kennedy’sWindsor opinion. For example:
In November 2006, a majority of Virginia voters ratified the “Marshall- Newman Amendment” to the State Constitution. This Amendment, which defines marriage as a union between “one man and one woman,” expressly deprives gay and lesbian individuals of the right to marry. By prohibiting same-sex couples from marrying, Virginia “places same-sex couples in an unstable position,” “demeans” same-sex couples, “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. 2675, 2694-96 (2013).
…In addition to these significant legal implications, Virginia’s statutory and constitutional provisions deny gay and lesbian residents of Virginia and their children the personal and public affirmation that accompanies marriage. Virginia’s prohibition of marriage of same-sex couples instructs “all persons with whom same-sex couples interact, including their own children” that their relationship is less worthy than those of couples in State-sanctioned marriages. Windsor, 133 S. Ct. at 2696. Without the legal ability to marry and build a family, same-sex couples are excluded from the fabric of Virginia’s social structure.
Virginia law also fails to honor the laws of thirteen other states and theDistrict of Columbia that allow same-sex marriage, by providing that lawful marriages from those jurisdictions are “void in all respects” and by stipulating that any contractual rights from such valid marriages “are void and unenforceable” in the Commonwealth of Virginia. By refusing to acknowledge lawful same-sex marriages from other states, the Commonwealth “ensure[s] that . . . those unions will be treated as second-class marriages for purposes of [Virginia] law.” Windsor, 133 S. Ct. at 2693-94. Virginia’s laws thereby “undermine both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [the Commonwealth’s] recognition.” Id. at 2694. They “impose a disadvantage, a separate status, and so a stigma upon” same-sex couples whose legal marriages are disregarded by the State and “humiliate tens of thousands of children now being raised by same-sex couples.” Id. at 2693-94.
The unmistakable purpose and effect of Virginia’s far-reaching restrictions is to enshrine in Virginia’s Constitution and statutory code that gay men and lesbians are “unequal to everyone else,” Romer v. Evans, 517 U.S. 620, 635 (1996), that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of being treated with “dignity and integrity.” Windsor, 133 S. Ct. at 2694.
After the Windsor decision, there have been a slew of lawsuits lodged in Federal Courts around the country challenging several state marriage equality bans. Another case was filed in Virginia by the American Civil Liberties Union and Lambda Legal on behalf of two lesbian couples in Winchester and Staunton. Chris Geidner notes that with all of those lawsuits in play, the “clock is ticking” to see who will get to argue the issue before the U.S. Supreme Court:
As such, Olson and Boies know the clock is ticking and that some case is going to present the issue again to the Supreme Court in short order. With Monday’s announcement, the duo aim to place their marker on the map with Bostic and London’s case.