Cuccinelli Cites 600-Year-Old Law, Losing Arguments in Brief Defending VA Ban on Same-sex Marriage
The 30+ page document submitted to the Eastern District Court defending Virginia’s ban on same-sex marriage paints an interesting argument by State Attorney General and Gubernatorial Candidate Ken Cuccinelli.
Citing antiquated laws, using arguments that failed constitutional muster, and trying to use religion as the basis for state law – all of these points were submitted to Norfolk’s district court intending to show the 2006 voter approved Marshall-Newman amendment, which defines legal marriage between one man and one woman, deserves to be kept on the books.
The first section of the brief cites laws dating back as far as the 1500′s, specifically a law from the Book of Common Prayer.
“I pronounce that they be man and wife together”; “wee beseach thee assist with thy blessing these two persons, that they may both bee fruitfull in procreation of children.”
Michael Hamar, an openly gay Norfolk Attorney, said the citing of outdated laws is not usually a legal tactic.
“If you look at it, it shows he’s trying to enshrine what started out as a clearly religious definition,” said Hamar. “When you’re citing the Book of Common Prayer, I don’t quite get what they were trying to accomplish.”
While citing law for precedent is certainly not out of the question, Hamar said the consistent uses of laws rooted in faith were sure to cause a legal problem for the defense. “You can make statements saying (marriage) dates back to the birth of Virginia, but why do you want to tie it to religious definitions? We’re not supposed to have an established religion in this country.”
The Cuccinelli brief also uses the Noah Webster Dictionary definition of marriage in its evidence list:
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, Vol. II (1st ed. 1828) (facsimile).
17. Matrimony was defined in this way:
MAT’RIMONY, n. [L. matrimonium, from mater, mother.] Marriage; wedlock; the union of man and woman for life; the nuptial state.
If any man know cause why this couple should not be joined in holy matrimony, they are to declare it. Com. Prayer.
The next section of the brief deals mostly with marriage being based on a couple’s ability to procreate.
Traditional marriage was not born of animus against homosexuals, but is predicated instead on the positive, important and concrete societal interests in the procreative nature of opposite-sex relationships.
Hamar said the procreation argument is part of the “standard justification” for denying marriage equality, and any lawyer worth his weight in salt could easily poke holes in the argument. “If that’s the case, anyone who’s past child-bearing years shouldn’t be able to get married,” said Hamar. “What about couples who marry and never have children?”
The last sections of the document make reference to this summer’s Windsor case which overturned section 3 of the Defense of Marriage Act. The brief has several quotes from Supreme Court Justice Alito’s dissenting minority opinion on the DOMA decision.
“The first and older view, . . . the ‘traditional’ or ‘conjugal’ view, sees marriage as an intrinsically opposite-sex institution.” Id. It takes this nature from the possibility of conception and childrearing.
Hamar pointed out pulling quotes from the minority opinion doesn’t quite make sense because the arguments he’s pulling from were losing arguments. “They didn’t win the day, so their arguments clearly weren’t compelling,” said Hamar.
Hamar also said pulling from the Windsor case was a moot point because state level bans on same-sex marriage were not part of the Windsor case. Section 3 of DOMA dealt with the federal recognition of same-sex marriage, and at no point were state’s rights brought into the debate. “(SCOTUS) didn’t rule on state level marriage because that wasn’t the issue before them,” said Hamar. “It’s somewhat disingenuous, saying they ruled when they didn’t rule.”
With Cuccinelli in the race for Governor, there is no doubt this document and the possible trial could play a part in the 2013 election. And with 56% of Virginians supporting same-sex marriage, it could be a contentious issue – one that Hamar believes Cuccinelli could have avoided. “The AG’s office could have just said ‘based on the logical extension of the Windsor ruling this is unconstitutional and I don’t want to defend it’.”
This was the tactic used by PA Attorney General Kathleen Kane when Montgomery County, PA began issuing marriage licenses to same-sex couples in August of this year. A commonwealth judge has since ordered the county stop issuing the licenses, but an appeal is already in the works.
But here in Virginia, Cuccinelli instead has chosen to fight this case, and Hamar believes it’s less the will of the people, and based more on the AG’s personal beliefs. “He’s not going out of his way, but this is about his agenda, which is his agenda – Some of it reads as if the Family Foundation wrote it… their basic argument is ‘this has always been the tradition therefore it’s right’… and using that analysis, VA should still be a slave state, we should still have Jim Crow Laws, and apparently the Supreme court ruled improperly on VA vs. Loving.”
This history of missteps on marriage laws in Virginia is something Hamar hopes plays a role in the future of this case as well. Virginia’s track record of being on the wrong side of marriage history dates back to the Antebellum days when slaves couldn’t marry. Virginia’s ban on interracial marriage was upheld by the state’s courts twice before the Supreme Court struck it down. “They have a fairly pronounced track record of being wrong,” said Hamar.
The Bostic case’s first stop is at the Eastern District Court, which Hamar jokingly called the “rocket docket” for the fast pace in which cases are tried. Hamar said the real question will be if the case makes it past summary judgement, and if it is dismissed, then Bostic and London will have their day in court. GayRVA will be following this case as it develops.
“We need to be working to make Virginia more open and welcoming to everyone, not less.”January 28, 2016
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