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Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
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Posts for August, 2014

U.S. Supreme Court Stays Virginia Marriages

Jim Burroway

August 20th, 2014

Bostic Stay

The U.S. Supreme Court has stayed the Fourth Circuit Court’s decision upholding a lower court’s ruling which found Virginia’s ban on same-sex marriage unconstitutional. The Fourth Circuit’s ruling was due to go into effect tomorrow morning after it refused to issue a stay last week. The Supreme Court’s stay will remain in effect until it either rejects a request to hear the appeal of the Virginia case or it hands down a decision.

Lawyers from the Alliance Defending Freedom representing Michele McQuigg, a named defendant as county clerk for Prince William County had asked Chief Justice John Roberts to issue a stay. Roberts, who oversees the Fourth Circuit, referred the request to the full court. There’s no indication of whether there were any dissents to the request.

Fourth Circuit Refuses to Stay Virginia Marriages

Jim Burroway

August 13th, 2014

The Fourth Circuit Court of Appeals rejected a request for a stay of its July 28 ruling which declared Virginia’s same-sex marriage ban unconstitutional. The appeals court voted 2-1 to reject the request filed by Michèle McQuigg, a named defendant in the lawsuit. McQuigg is the clerk of court for Prince William County, which includes the outer suburbs of Washington, D.C.

The next step would be to seek a stay from Chief Justice John Roberts, who oversees the Fourth Circuit. Roberts has the option of considering the request himself or referring it to the full U.S. Supreme Court. McQuigg’s lawyer, Alliance Defending Freedom Senior Counsel Byron Babione, announced that he will take that next step. So far, the Supreme Court has granted every request for a stay in marriage cases elsewhere.

Virginia Attorney Mark Herring announced last Friday that his office has asked the U.S. Supreme Court to hear the case itself, writing that Virginia’s ban on same-sex marriage “denies gay people the equal protection of the law.” McQuigg has said that she will also file an appeal.

If no stay is issued, same-sex marriages will begin next Wednesday.

Fourth Circuit Strikes Down Virginia’s Same-Sex Marriage Ban

Jim Burroway

July 28th, 2014

The Fourth Circuit Court of Appeals has upheld a lower court’s ruling which declared Virginia’s ban on same-sex marriage unconstitutional. In a 2-1 decision, Judges Henry Floyd (a George W. Bush appointee) and Roger Gregory (A Bill Clinton appointee) ruled that Virginia’s marriage ban violated Due Process and Equal Protection clauses of the Fourteenth Amendment. The majority also held that strict scrutiny applied in its review. Judge Paul Niemeyer, a George H.W. Bush appointee, dissented. The court’s decision now creates a precedent for Virginia, North Carolina, South Carolina and West Virginia. Maryland, which is also in the Fourth District, already provides marriage equality for same-sex couples.

The court’s analysis was in three steps: whether the all of the plaintiffs possessed standing (they did, the circuit ruled), whether the U.S. Supreme Court’s summary dismissal of Baker v. Nelson in 1972 remains binding, and the appropriate level of constitutional scrutiny to test the Virginia ban against.

The Baker case was brought by Minnesota couple Jack Baker and Michael McConnell after the Minneapolis clerk refused to issue them a marriage license. Baker and McConnell sued in state court, and that case made it all the way up to the Minnesota Supreme Court which ruled that the couple’s Equal Protection rights weren’t violated. They then appealed to to U.S. Supreme Court, which dismissed the case “for want of a substantial federal question.” Marriage equality opponents have argued that Baker was binding. But the Fourth Circuit countered, “Summary dismissals lose their binding force when ‘doctrinal developments’ illustrate that the Supreme Court no longer views a question as unsubstantial, regardless of whether the Court explicitly overrules the case,” and pointed to last summer’s Windsor decision striking down Section 3 of the Defense of Marriage Act as evidence of just such a “doctrinal development.”

The Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law. The Court’s development of its due process and equal protection jurisprudence in the four decades following Baker is even more instructive. On the Due Process front, Lawrence v. Texas, 539 U.S. 558 (2003), and Windsor are particularly relevant. In Lawrence, the Court recognized that the Due Process Clauses of the Fifth and Fourteenth Amendments “afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574. These considerations led the Court to strike down a Texas statute that criminalized same-sex sodomy. Id. at 563, 578-79. The Windsor Court based its decision to invalidate section 3 of DOMA on the Fifth Amendment’s Due Process Clause. The Court concluded that section 3 could not withstand constitutional scrutiny because “the principal purpose and the necessary effect of [section 3] are to demean those persons who are in a lawful same-sex marriage,” who — like the unmarried same-sex couple in Lawrence — have a constitutional right to make “moral and sexual choices.” 133 S. Ct. at 2694-95. These cases firmly position same-sex relationships within the ambit of the Due Process Clauses’ protection.

The Court has also issued several major equal protection decisions since it decided Baker… These cases demonstrate that, since Baker, the Court has meaningfully altered the way it views both sex and sexual orientation through the equal protection lens.

In light of the Supreme Court’s apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that case, we decline to view Baker as binding precedent and proceed to the meat of the Opponents’ Fourteenth Amendment arguments.

The court then turned to the question of the appropriate level of scrutiny to apply to Virginia’s same-sex marriage ban. The court said that the question turned on whether marriage is a fundamental right. Both sides argued that it was, but marriage equality opponents held that same-sex marriage wasn’t. The court disagreed:

Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms. Perhaps most notably, in Loving v. Virginia, the Supreme Court invalidated a Virginia law that prohibited white individuals from marrying individuals of other races. 388 U.S. at 4. The Court explained that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and that no valid basis justified the Virginia law’s infringement of that right. Id. at 12.

…These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.

Because Virginia’s same-sex marriage ban involves a “‘significant interference’ with a fundamental right,” the court held that strict scrutiny applies. This places the state in the position of proving that the law “may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” Among those interests, the state argued, was upholding the vote that placed Virginia’s marriage ban in the state’s constitution. The Court disagreed, saying “the people’s will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry.” Supporters of Virginia’s marriage ban also argued that upholding “history and tradition” was another compelling interest, but the Fourth Circuit held that this interest doesn’t even withstand a rational basis review. Supporters also argued that upholding Virginia’s marriage ban would safeguard the institution of marriage. Again, the court disagreed:

However, even if we view the Proponents’ theories through rose-colored glasses, we conclude that they are unfounded for two key reasons. First, the Supreme Court rejected the view that marriage is about only procreation in Griswold v. Connecticut, in which it upheld married couples’ right not to procreate and articulated a view of marriage that has nothing to do with children. …

Second, the primary support that the Proponents offer for their theory is the legacy of a wholly unrelated legal change to marriage: no-fault divorce. Although no-fault divorce certainly altered the realities of married life by making it easier for couples to end their relationships, we have no reason to think that legalizing same-sex marriage will have a similar destabilizing effect. In fact, it is more logical to think that same-sex couples want access to marriage so that they can take advantage of its hallmarks, including faithfulness and permanence, and that allowing loving, committed same-sex couples to marry and recognizing their out-of-state marriages will strengthen the institution of marriage. We therefore reject the Proponents’ concerns.

Proponents of Virginia’s marriage ban also argued that the state’s marriage laws were essential in ensuring “responsible procreation.” Again, the court disagreed:

If Virginia sought to ensure responsible procreation via the Virginia Marriage Laws, the laws are woefully underinclusive. Same-sex couples are not the only category of couples who cannot reproduce accidentally. For example, opposite-sex couples cannot procreate unintentionally if they include a post-menopausal woman or an individual with a medical condition that prevents unassisted conception.

The Proponents attempt to downplay the similarity between same-sex couples and infertile opposite-sex couples in three ways. First, they point out that sterile individuals could remedy their fertility through future medical advances. This potentiality, however, does not explain why Virginia should treat same-sex and infertile opposite-sex couples differently during the course of the latter group’s infertility. Second, the Proponents posit that, even if one member of a man-woman couple is sterile, the other member may not be. They suggest that, without marriage’s monogamy mandate, this fertile individual is more likely to have an unintended child with a third party. They contend that, due to this possibility, even opposite-sex couples who cannot procreate need marriage to channel their procreative activity in a way that same-sex couples do not. The Proponents’ argument assumes that individuals in same-sex relationships never have opposite-sex sexual partners, which is simply not the case. Third, the Proponents imply that, by marrying, infertile opposite-sex couples set a positive example for couples who can have unintended children, thereby encouraging them to marry. We see no reason why committed same-sex couples cannot serve as similar role models. We therefore reject the Proponents’ attempts to differentiate same-sex couples from other couples who cannot procreate accidentally.

…The Proponents’ responsible procreation argument falters for another reason as well. Strict scrutiny requires that a state’s means further its compelling interest. See Shaw, 517 U.S. at 915 (“Although we have not always provided precise guidance on how closely the means . . . must serve the end (the justification or compelling interest), we have always expected that the legislative action would substantially address, if not achieve, the avowed purpose.”). Prohibiting same-sex couples from marrying and ignoring their out-of-state marriages does not serve Virginia’s goal of preventing out-of-wedlock births. Although same-sex couples cannot procreate accidentally, they can and do have children via other methods. According to an amicus brief filed by Dr. Gary J. Gates, as of the 2010 U.S. Census, more than 2500 same-sex couples were raising more than 4000 children under the age of eighteen in Virginia. The Virginia Marriage Laws therefore increase the number of children raised by unmarried parents.

Finally, the court turned to the Proponents’ argument that opposite-sex married couples represent an environment for “optimal childrearing.” The Court however cited evidence supplied by all of the major medical and mental health organizations which said otherwise:

In fact, the APA explains that, by preventing same-sex couples from marrying, the Virginia Marriage Laws actually harm the children of same-sex couples by stigmatizing their families and robbing them of the stability, economic security, and togetherness that marriage fosters. The Supreme Court reached a similar conclusion in Windsor, in which it observed that failing to recognize same-sex marriages “humiliates tens of thousands of children now being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. at 2694.

We find the arguments that the Opponents and their amici make on this issue extremely persuasive. However, we need not resolve this dispute because the Proponents’ optimal childrearing argument falters for at least two other reasons. First, under heightened scrutiny, states cannot support a law using “overbroad generalizations about the different talents, capacities, or preferences of” the groups in question. … The Proponents’ statements regarding same-sex couples’ parenting ability certainly qualify as overbroad generalizations. Second, as we explain above, strict scrutiny requires congruity between a law’s means and its end. This congruity is absent here. There is absolutely no reason to suspect that prohibiting same-sex couples from marrying and refusing to recognize their out-of-state marriages will cause same-sex couples to raise fewer children or impel married opposite-sex couples to raise more children. The Virginia Marriage Laws therefore do not further Virginia’s interest in channeling children into optimal families, even if we were to accept the dubious proposition that same-sex couples are less capable parents.

The court then affirmed that Virginia’s marriage ban violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and concluded:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance

This is the third federal appeals court to strike down marriage bans. The Tenth Circuit has recently upheld lower court decisions declaring same-sex marriage bans unconstitutional in Utah and Oklahoma.

Brat v Cantor

Timothy Kincaid

June 11th, 2014

The election of Dave Brat as Virginia’s 7th District GOP candidate, a move that expels House Majority Leader from the House of Representatives, has shocked the political world.

Tea Party advocates are seeing this as an indication that the Tea Party Movement is live, well, powerful, and underestimated. And many in our community see anything Tea Party to be a threat to our community.

They may be correct. But that also may be too simplistic of an assumption.

The Tea Party movement incorporates a great many people who see Washington politicians as out of touch and beholding to moneyed special interests. Certainly some of those include those who see an increasingly anti-religious fervor in government to be a threat and for many of them gay issues are a weathervane.

But the movement also includes those who see ever increasing federal involvement in their lives as a violation of the GOP purported belief that the state that governs least governs best. And many others see the constant ‘kick the can down the road’ approach to fiscal policy to be a sell out of the nation’s children.

And it also includes the somewhat disenfranchised libertarian wing of the party. These are the folks who mock both the Right and the Left for their incessant claims of freedom and liberty while simultaneously seeking to remove the rights of those they perceive as enemies.

It may be that Dave Brat fits in the latter category. The Wall Street Journal has reviewed some of his writings including this

Can Christians force others to follow their ethical teachings on social issues? Note that consistency is lacking on all sides of this issue. The political Right likes to champion individual rights and individual liberty, but it has also worked to enforce morality in relation to abortion, gambling, and homosexuality. The Left likes to think of itself as the bulwark of progressive liberal individualism, and yet it seeks to progressively coerce others to fund every social program under the sun via majority rule. Houston, we have a problem. Coercion is on the rise. What is the root word for liberalism? (Answer: Liberty)

On the other hand, Brat is a fervent Christian, holds Divinity degree (along with an economics degree), and clearly sees a role for faith in governance. That seldom promises hope for pro-gay positions on legislation.

It will be interesting to see how his views play out in the coming campaign and (as this is a safe Republican district) in his votes. I simply don’t know enough about this out-of-nowhere politician and think it far too soon to predict.

Do they even listen to what they say?

Timothy Kincaid

May 13th, 2014

Dean Nelson

Today the Fourth Circuit Court of Appeals heard arguments for and against overturning Judge Arenda L. Wright Allen ruling that Virginia’s gay marriage ban was in violation of the US Constitution (the Olson-Boies case). There were, as expected, protesters on either side.

The anti-gay side made some interesting remarks.

Dean Nelson, chairman of the Frederick Douglass Foundation, told the crowd, “Things have gotten so bad that even when you’re watching ESPN on Mother’s Day we have the kisses of homosexuals forced down our throats.”

Sometimes it’s just too easy.

Virginia Photo Request

Timothy Kincaid

May 6th, 2014

The National Organization for Marriage is coming to Virginia to hold a rally. Well, I assume a few people will, though NOM rallies are mostly known for drawing embarrassingly small crowds.

So if there is anyone who will be in Richmond, VA, next Tuesday and has a moment to take a picture of their rally, please send us the pics.

Oh, and hey, now we know why the stick figures in their logo have their hands up. I always figured they were just playing the airplane game.

Federal District Judge Declares Virginia Marriage Ban Unconstitutional

Jim Burroway

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]

Virginia House Approves Bill Allowing Lawmakers to Defend State Laws

Jim Burroway

February 3rd, 2014

In a 65-32 vote, the GOP-controlled Virginia House of Representatives approved HB706, which “[p]rovides that a member of the General Assembly has standing to represent the interests of the Commonwealth in a proceeding in which the constitutionality, legality, or application of a law established under legislative authority is at issue and the Governor and Attorney General choose not to defend the law.” The bill was introduced into the House on January 7 in anticipation of Virginia Attorney General Mark R. Herring’s announcement that the state of Virginia would not defend the state’s ban on marriage equality in Federal court. According to the Washington Post:

The vote fell mostly along party lines, with Democrat Del. Johnny S. Joannou (Portsmouth) joining Republicans to support the bill and Republican Thomas Davis Rust (Fairfax) voting against. There were two abstentions: Robert Dickinson Orrock Sr. (R-Caroline) and Barry D. Knight (R-Virginia Beach).

The bill moves to the Democratic-controlled Senate, where The Post says they will likely kill it.

Federal District Judge Andrea Wright Allen will hear oral arguments challenging the state’s marriage ban tomorrow in Norfolk. Last Friday, a Federal Judge Michael F. Urbanski certified a second lawsuit challenging the state’s ban as a class action.

Judge Sets Oral Arguments for Virginia Marriage Ban Challenge for Thursday

Jim Burroway

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

Jim Burroway

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.

The Post reports:

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.

Ex-gay survivors needed to testify in Virginia

Daniel Gonzales

January 15th, 2014

Virginia is attempting to join the list of states which ban ex-gay therapy on minors.  Text of the bill can be found here.  Legislative action is going to happen between now and the end of February and Virginia based survivors of ex-gay therapy are urgently needed to speak in favor of the bill.  Anyone interested can testify in person or send a written testimony to be read. The bill is being sponsored by Delegate Patrick Hope and the Alliance for Progressive Values (APV).

The APV is especially interested in anyone who was forced to undergo therapy as a minor.  Interested parties should contact Victoria Bragunier of the APV at 804-517-5206

 (photo source)

 

Cuccinelli declares a ban on gay tax returns

Timothy Kincaid

January 14th, 2014

The state of Virginia has conflicting law. On the one hand, the constitution of the state includes this language:

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.

On the other, like most states, Virginia tries to closely conform with Federal tax law. In general, states will start with the federally calculated taxable income and make such revisions and adjustments as are necessary to tweak for local differences.

And the Federal Government now recognizes legal same-sex marriages for federal tax purposes, even if the couple is residing in a state, like Virginia, which does not recognize same-sex marriages. So there’s a conflict.

Some states have resolved this by taking a sort of ‘don’t ask, don’t tell’ approach. They work under the logic that they don’t recognize Sally and Sue as married. But if the Federal Government, for it’s own reasons, has decided to act as though Sally and Sue have a ‘married’ filing status (though, in our non-recognition, we have no idea why), then those two single gals should file their state taxes using the same filing that the Feds (for some unrecognized reason) requires of them.

But failed gubernatorial candidate, Ken Cuccinelli (R), certainly has no desire for his state to allow gay people the same ‘lower taxes’ rights that he champions for heterosexuals. Cuccinelli is one of those ‘small government conservatives’ who believes that the role of government is to monitor and restrict the minutia of your sex life.

And on his last day serving as the Attorney General of the state, he issued an opinion as to the legality of allowing the State Department of Revenue to follow the lead of the Internal Revenue Service:

It is my opinion that a Governor may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns. Such a directive would represent an attempt to exercise legislative powers in violation of the constitutionally mandated separation of powers and would also violate the express terms of Article I, § 15-A of the Virginia Constitution.

Because, you know, Teh Ghey!

Meanwhile in Virginia…

Timothy Kincaid

December 23rd, 2013

A federal judge allowed a challenge to that state’s marriage ban move forward (wtvr)

A federal court denied a motion from the Staunton Circuit Court Clerk today seeking dismissal of a lawsuit challenging Virginia’s ban on marriage for same-sex couples.
The court today also removed the governor as a named defendant in challenging the case but is allowing it to continue with the other two defendants. They are listed as Staunton Circuit Court Clerk Thomas Roberts, and Janet Rainey, the state registrar of vital records.

Olsen and Boies Suit Up to Challenge Virginia’s Marriage Equality Ban

Jim Burroway

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 opinionFor 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.

ACLU Announces Three Marriage Lawsuits

Jim Burroway

July 9th, 2013

Fresh off its victory in Windsor v. U.S. which struck down Section 3 of the Defense of Marriage Act as unconstitutional, the ACLU’s is filing three more lawsuits, in Pennsylvania, North Carolina and Virginia. In Whitewood v. Corbett, the ACLU is challenging Pennsylvania’s statute which bans same-sex marriage. In Fisher-Borne v. Smith, the ACLU will amend its lawsuit seeking adoption rights to include the right to marriage. In the Virginia case, the ACLU and Lambda Legal are still in the planning stages, with plaintiffs and precise details of the case still being worked out. They expect to file that lawsuit later this summer.

Meanwhile, the ACLU and the National Center for Lesbian Rights have filed a motion with the New Mexico Supreme Court, asking it to order state officials to allow same-sex couples to marry. State law is currently silent on the question. Other lawsuits are working their way through Arkansas, Hawaii, Illinois, Nevada, New Jersey and Michigan.

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