Special op-ed by David Weintraub published in the Purcellville Gazette, August 2 2014.
On November 7, 2006, Virginia voters were presented with the choice to add an amendment to our state constitution. This amendment would not only prohibit civil marriage between two people of the same sex – which had already been banned legislatively several times over – but would also ban any other “union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage,” or which “intends to approximate the design, qualities, significance, or effects of marriage.” This expansive language gave Virginia the dubious honor of having adopted the most extreme so-called “marriage amendment” in the nation.
In a decision announced Monday, The Fourth Circuit Court of Appeals found that prohibition unconstitutional, joining an unbroken series of rulings affirming marriage as a fundamental right that cannot be denied because of gender.
At the time of the amendment’s passage (it was approved by 57 percent of voters), I was told jubilantly by a local supporter that it would “protect” his model of marriage in Virginia “for at least a decade.” This prediction has turned out to be remarkably accurate. In the past decade, we have witnessed a shift in opinion like no other toward support of the right for loving gay and lesbian couples to marry. At the same time, courts have come to the long overdue conclusion that the U.S. Constitution really does mean what it says about the rights guaranteed to ALL Americans.
U.S. District Judge Arenda L. Wright Allen begins her opinion striking down the Marshall-Newman amendment by quoting Mildred Loving:
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.”
Update: As expected, Nevada Attorney General Catherine Cortez Masto has filed a motion to withdraw the state’s brief in defense of Nevada’s ban on same sex marriage. A statement from Republican Governor Brian Sandoval’s office says “based upon the advice of the Attorney General’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court.” The only remaining party willing to defend the amendment is now the “Coalition for the Protection of Marriage,” the third party intervenor responsible for putting it on the ballot in 2002. Given the Supreme Court’s ruling in Hollingsworth v. Perry that such an intervenor does not have standing to appeal, it’s likely that a Ninth Circuit ruling in favor of the couples seeking to overturn the ban will be the end of the line for the so-called “Protection of Marriage Initiative.” The plaintiffs are seeking an expedited hearing.
Now, can we finally put to rest the notion that our Attorney General is “out there on a limb by himself,” per Mr. Marshall?
(Originally published January 27, 2014) Over the weekend there were two more developments toward the ultimate demise of anti-marriage state measures like Virginia’s Marshall-Newman Amendment.
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.
Attorney General Mark Herring gently points out the obvious in an op-ed published in today’s Richmond Times-Dispatch:
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.
I continue to be reminded, sometimes several times in one day, of the comment in which anti-gay and anti-labor activist lawyer James Young informed me that “Bob Marshall is not, and never has been, an attorney.”
It explained a lot, and for that I thank him. The Richmond Times-Dispatch reports the following:
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:
Bob Marshall has said some dumb things over the years, but I don’t think I’ve ever heard him embarrass himself more than he did yesterday on the Kojo Nnamdi show.
Marshall was interviewed for a segment about Attorney General Mark Herring’s determination that Virginia’s anti-marriage amendment and statutes are unconstitutional. His remarks start out calmly enough, if poorly reasoned. Then the wheels come off. The entire segment starts at the 9:20 mark; the interview with Marshall is introduced at the 10:56 mark.
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.
Last week, in anticipation of this morning’s announcement by Attorney General Mark Herring’s office that he will not be defending the infamous “Marshall-Newman Amendment,” Republican delegates were already trying to lay the groundwork for an end run to get their way:
“[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.