Cuccinelli Defends VA Ban on Same-sex Marriage – Legal Brief in Bostic/London Case Released
Attorney General Ken Cuccinelli is required to defend Virginia’s ban on the 2006 voter approved ban on same-sex marriage, and the first set of legal briefs defending that issue were released today.
Below is the full copy of the brief, but first, here are some highlights.
(GayRVA will be speaking with legal experts tomorrow to help better interpret this information, so keep in mind these are our observations. Even calling them highlights might be incorrect – but consider what we’ve pulled below as something that stood out to us.)
The first part of the document gives details on marriage law going back to the 1500′s -
(“to joyne together this man and this woman”; “wilt thou have this woman”; “wilt thou have this man”; “who giveth this woman to be married to this man”? “and the man shall give unto the woman a Ring”; “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.”).
In March 1661/62 the General Assembly provided for ministers of the established church to have a monopoly on celebrating marriages.
9. In October 1780, in the fifth year of the Commonwealth, the General Assembly enacted “An act declaring what shall be a lawful marriage.” It began: “FOR encouraging marriages and for removing doubts concerning the validity of marriages celebrated by ministers, other than the Church of England, Be it enacted by the General Assembly, that it shall and may be lawful for any minister of any society or congregation of christians, and for the society of christians called quakers and menonists, to celebrate the rights [sic] of matrimony, and to join together as man and wife, those who may apply to them agreeable to the rules and usage of the respective societies to which the parties to be married respectively belong, and such marriage as well as those heretofore celebrated by dissenting ministers, shall be, and are hereby declared good and valid in law.”
The brief also quotes the Noah Webster Dictionary for its definition of marriage
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 brief goes on to connect marriage to procreation, and stresses that marriage has long existed to encourage procreation:
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. Only opposite-sex couples can naturally procreate, and the responsible begetting and rearing of new generations is of fundamental importance to civil society. It is no exaggeration to say that “[m]arriage and procreation are fundamental to the very existence and survival of the race.” Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
A related but analytically distinct point is that marriage provides the opportunity for children born within it to have a biological relationship to those with original legal responsibility for their wellbeing. By encouraging the biological to join with the legal, traditional marriage “increas[es] the relational commitment, complementarity, and stability needed for the long term responsibilities that result from procreation.” Lynn D. Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light of State Interest in Marital Procreation, 24 Harv. J. L. & Pub. Pol’y 771, 792 (2001). This ideal does not disparage the suitability of alternative arrangements where non-biological parents have legal responsibility for children. Rather, the point is that a State may rationally conclude that, all things being equal, it is better for the natural parents to also be the legal parents.
Here’s our favorite line dealing with marriage and procreation (no quotes here, just Cuccinelli/The AG’s office rationalizing the state’s ban:
In brief, Virginia may rationally reserve marriage to one man and one woman because this relationship alone provides for both intimacy and complementarity, while also enabling the married persons—in the ideal—to beget children who have a natural and legal relationship to each parent, who serve as role models of both sexes for their children.
Much of the rest of the document deals with the sections of DOMA that were struck down and the sections that were upheld – remember, the federal part of DOMA was struck down, meaning the federal goverment can recognize legally married same-sex couples. The rest of DOMA, however, remains in tact, and gives state’s the right to deny same-sex marriage.
Justices Scalia and Thomas predicted in Windsor that plaintiffs wishing to attack the traditional definition of marriage would simply cut and paste language from the majority opinion in that case to mount a constitutional challenge under an animus theory. Windsor, 133 S. Ct. at 2710 (stating that plaintiffs will allege: “‘[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. . . . And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and its concord with other families in their community and in their daily lives.’” (quoting Windsor, 133 S. Ct. at 2694)). And so it has proved in this case. Am. Compl. at 8, ¶ 19 (Doc. 18 at 8, ¶ 19) (“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 [relationship] of others.’” (quoting Windsor, 133 S. Ct. at 2694-96)).
The difference between States that think this and those that do not has been described by Justice Alito as the difference between “two competing views of marriage.” Id. at 2718 (Alito and Thomas, JJ., dissenting). “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. And “[w]hile modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.”
As we said, this information is dense to say the least. We’ll be speaking with legal experts tomorrow to help us better understand what exactly Cuccinelli has planned. Below is the entire brief for your pleasure:
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