Those wailing over one of the consequences of the recent election, the change in Virginia’s position on the Marshall-Newman amendment, would have us believe that there would be no one else defending it in court. But of course that wasn’t true. District court Judge Arenda Wright Allen’s order for the oral arguments in Bostic v. Rainey that took place Tuesday shows that the time allotted to defenders of the amendment was double the time allotted to the plaintiffs seeking to overturn it. In addition, attorneys for proponents of the amendment were provided by the Alliance Defending Freedom (formerly Alliance Defense Fund), a well-funded legal “ministry” that claims to win nearly 80% of its court cases. The problem faced by amendment proponents was not a lack of competent legal counsel. The problem was the lack of a constitutionally permissible justification for walling off a class of people from the fundamental right of marriage, based only on their orientation.
An argument from religion, or tradition, or one based on moral disapproval of gay people, or a wish to discourage gay people from existing, simply won’t survive scrutiny; those days are over. What the proponents of such bans have to show is that there is an important state interest that justifies treating people who want to marry a partner of the same sex differently from people who want to marry a partner of a different sex. And the argument they’ve settled on is the idea that “children do better with a mom and a dad.” You can see the talking point prominently displayed on the signs of protesters outside the courthouse; it was also expected to do the heavy lifting inside. As VFF’s Victoria Cobb put it, the proponent’s attorneys argued that “the government’s interest in marriage is in the upbringing of children by a mother and a father.”
The obvious problem with this argument is that the social science research and the professional medical and child welfare associations say that it’s not true: Children raised by two parents of the same sex actually do as well, or better in some cases, than children raised by two opposite sex parents.
Question: Does Victoria Cobb have dementia, or does she just believe that other Virginians do?
In an email she sent us this week, with the actual subject line “Here Come the Social Issues,” the Virginia Family (not yours) Foundation president tells us that, because there is now a Democratic majority* in the state senate, “Senator Democrats [sic] will elevate their abortion and sex agenda** to their top priority,” and “there is little doubt that ‘social issues’ will dominate their agenda in the coming days.”
I will pause here so that anyone who has been living in Virginia for the last decade or two can finish laughing.
There certainly has been quite a bit of forgetfulness lately on the part of individuals who have made an “abortion and sex agenda” their top priority, hasn’t there? And Victoria’s forgetfulness about her own organization’s mission has just shot to the top of the hit parade, as further down in the very same email she mentions the 2011 TRAP*** law that she and her allies in the General Assembly engineered by adding anti-abortion provisions to an unrelated law. And you might think that Victoria would want to present the means by which this law was passed as a legitimate process driven by evidence and debate. You would be wrong.
It is completely within the power of the attorney general to refuse to defend in court a law that he has determined to be unconstitutional after an independent, rigorous analysis. This was the position of former Attorney General Ken Cuccinelli, who said “I will not defend what I, in my judgment, deem to be an unconstitutional law.” In fact, just last year, Cuccinelli declined to defend Gov. Bob McDonnell’s Opportunity Educational Institution after he determined it to be unconstitutional. It should be noted that some of the loudest critical voices today were silent then.
This understanding of the attorney general’s role has not been controversial until I applied it to Virginia’s marriage ban. Two of the past three elected attorneys general declined to defend state laws, and conservative jurists such as John Roberts, Robert Bork and Antonin Scalia have affirmed this role of attorneys general. This tells me that critics are not actually opposed to this long-established power of the attorney general, but are in fact opposed to its application to marriage equality.
Last night the “official” Republican response to the State of the Union address was delivered by Washington representative Cathy McMorris Rodgers, who didn’t engage in any distracting large motor activities.
Rodgers made the encouraging assertion that the current Republican Party “trusts people to make their own decisions, not a government that decides for you,” and then a bit later that “Republicans believe health care choices should be yours, not the government’s. And that whether you’re a boy with Down syndrome or a woman with breast cancer … you can find coverage and a doctor who will treat you.”
But obviously that is not at all what Republicans believe, as earlier in the day nearly all of them had voted to prevent women from choosing to access abortion care, and they regularly endorse efforts that would allow health care providers, in the guise of “religious freedom,” to refuse to treat people on the basis of their personal beliefs about those people. Most notably this “freedom” to selectively do one’s job has involved pharmacists who don’t believe that people should use birth control, but it can just as easily be invoked to refuse all kinds of medical care to all kinds of people, care like hormone replacement therapy, fertility and prenatal care, and cancer treatment.
Del. Robert G. Marshall, R-Prince William, said today that he is working with lawyers to file a complaint with the Virginia State Bar against Attorney General Mark R. Herring over his refusal to defend Virginia’s same-sex marriage ban in federal court this week.
Marshall sponsored the 2006 amendment to the state constitution.
“I want the same discipline meted out against him that would be meted out against any attorney similarly situated,” Marshall said in an interview Monday afternoon.
“If after a pleading has been filed an attorney decided that his client is guilty, what would the bar do with that attorney? And they better not go soft because he is the attorney general,” he said.
I suppose that never having been an attorney could explain Marshall being unaware that the legal obligations of a private attorney and a public one, such as an attorney general, are quite different (although that hasn’t prevented me from being aware of it – and I don’t sit on a legislative body). Surely Marshall has some attorney friends in the House of Delegates who could have explained this to him:
Marshall begins this rhetorical circus by asking whether Tim Kaine, governor in 2006-7 when the Marshall-Newman Amendment was enacted, “consciously signed a bill that violated the Fourteenth Amendment.” This is simply a stupid question on its face. Of course he did. How would any unconstitutional law ever become law if this didn’t happen? Every governor in every state that enacted similar amendments signed a bill that violated the Fourteenth Amendment. Does Marshall believe that it’s impossible, by definition, for anything enacted by a legislature or popular vote to be unconstitutional? Because that seems like a problem.
“[T]he attorney general’s job is like a judge. A judge will tell you, ‘Look, I might not agree with the law, but my job is basically not to make law. It is to look at what the law was [and what] the legislature intended,’ ” House Majority Leader M. Kirkland Cox (R-Colonial Heights) said.
That’s right. AG Herring looked at the Virginia constitutional and statutory ban on same-sex marriage, and what the legislature clearly intended by it, and made the determination that it was unconstitutional. Given the recent rulings in Utah and Oklahoma that affirm the reasoning of the U.S. Supreme Court ruling in Windsor, it’s clear that the Virginia amendment does, and was intended to, violate the due process and equal protection rights of Virginia same sex couples under the Fourteenth Amendment. There is a reason, after all, that the legal team of David Boies and Ted Olson, who so brilliantly argued the Prop 8 case on behalf of the American Foundation for Equal Rights, chose Virginia as their next venue: Virginia’s anti-marriage amendment is considered the most extremely worded and restrictive in the nation.
Sometimes a picture really is worth a thousand words. We don’t yet know how many words Sterling supervisor Eugene Delgaudio will emit claiming that he didn’t know “much of anything” about Andrew Beacham, his nominee for Loudoun County’s Library Board – but we do know that they will be arranged into falsehoods.
According to Chairman York, who apparently agreed to nominate Beacham “on behalf of” his Sterling colleague (how does he manage to get himself into these predicaments?), “the information provided on Beacham was not very detailed. Beacham’s four-paragraph resume only said he had ‘worked in the field of media production and broadcasting over the last 4 years.'”
In fact, Beacham’s “work” includes publicly defacing the Koran “in support of Florida pastor Terry Jones” and other political theater acts with fringe anti-abortion extremist Randall Terry. He is active with nativist and anti-government groups in Loudoun, and calls himself a “full-time Pro-Life missionary and activist for Christian policies in government” while declaring that “the only good progressive is a dead progressive.”
The following is a guest post submitted at my invitation by commenter David Dickinson. I believe we both had some degree of expectation that his post would express an “opposing view” to what one of our regular authors might have said about the “Duck Dynasty” drama, had we said anything about it. -Epluribusunum
“I think that this intolerance by gay activists toward the full spectrum of human beliefs is a sign of immaturity, juvenility….This is not the mark of a true intellectual life.” So said Camille Paglia, professor at the University of the Arts in Philadelphia, social critic, and lesbian activist.
“utterly fascist and utterly Stalinist” is another way she put it.
She was, of course, referring to the treatment “Duck Dynasty” star Phil Robertson has received for expressing biblical views in his now infamous GQ interview.
And she is completely correct.
Many fascinating events have transpired since Phil Robertson’s words ignited a maelstrom of events. There was, or course, the knee-jerk condemnation from the Left followed by the counter-condemnation from the Right. Par for the course. More interesting was Cracker Barrel removing Duck Dynasty gear, only to put it back on the shelves a few days later after observing the strength of the backlash and, I’m sure, noting that Wal-Mart was quickly selling out of Duck Dynasty merchandise. Conservative politicians praised Phil Robertson. It seemed like a repeat of Chick-fil-A founder Truett Cathy’s remarks supporting traditional marriage.
But this time it is different. This time the liberal machine is starting to crack.
The email claims that “Black was not taking a position for or against marital rape.” While he may not have been literally “taking a position for or against marital rape” during the floor speech captured in the video, it’s difficult to believe that he doesn’t have opinions on the topic. His closest allies on the fringe of “social conservatism” typically take the position that marital rape, by definition, can’t exist. For example, Phyllis Schlafly of Concerned Women for America – the organization for which Mrs. Black is a national lobbyist, and to which Dick Black gave this appalling interview during which he joked that “Concerned Women for America is the women’s organization that likes men” – had this to say in a 2007 campus speech:
By getting married, the woman has consented to sex, and I don’t think you can call it rape.