Karma Can Be a Bitch; Legal Analysis of the Bostic Ruling
Some time after 5:10 PM yesterday – the last time I logged in to Pacer, the website that allows registered subscribers to access federal court case files – Judge Wright Allen of the U.S. District Court for the Eastern District of Virginia filed her opinion in Bostic v. Rainey and ruled that Virginia’s marriage ban violates the U.S. Constitution. While the Order enjoined the Commonwealth of Virginia from enforcing Virginia’s marriage ban, the injunction was stayed pending a likely appeal to the U.S. Court of Appeals for the Fourth Circuit.
The next shoe to drop in Virginia will be when the U.S. District Court for the Western District of Virginia rules inHarris v. Rainey. As noted before, that ruling could potentially come at any time. Having read all the briefs and the case law cited, I frankly do not know how Judge Wright Allen could have ruled in any other way. Here are some highlights from the order portion of her opinion:
The Court finds Va. Const. Art. I, § 15-A, Va. Code §§ 20-45.2, 20-45.3, and any other Virginia law that bars same-sex marriage or prohibits Virginia’s recognition of lawful same-sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution.
The Court GRANTS Plaintiffs’ Motion for Summary Judgment (ECF No. 25),
GRANTS Plaintiffs Motion for Preliminary Injunction (ECF No. 27) and DENIES Defendant Schaefer’s and Intervenor-Defendant’s Motions for Summary Judgment (ECF Nos. 38 and 40).
The Court ENJOINS the Commonwealth from enforcing Sections 20-45.2 and 20-45.3 of the Virginia Code and Article I, § 15-A of the Virginia Constitution to the extent these laws prohibit a person from marrying another person of the same gender.
In accordance with the Supreme Court’s issuance of a stay in Herbert v. Kitchen, and
consistent with the reasoning provided in Bishop, this Court stays execution of this injunction pending the final disposition of any appeal to the Fourth Circuit Court of Appeals.
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of its laws.” U.S. Const, amend. XIV, § 1. Just as the analysis regarding the claims involving substantive due process began, the evaluation of whether certain legislation violates the Equal Protection Clause commences with determining whether the challenged law interferes significantly with a fundamental right. If so,the legislation “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.”
[E]ven without a finding that a fundamental right is implicated, the Marriage Laws fail under this Clause. The Equal Protection Clause “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.”
This recent embrace of “natural” procreation as the primary inspiration and purpose for Virginia’s Marriage Laws is inconsistent with prior rationalizations for the laws. This purpose was effectively disavowed by the legislation itself,which declared that marriage should be limited to opposite-sex couples “whether or not they are reproductive in effect or motivation.” Affirmation of Marriage Act, HB 751 (2004) (enacted).
A more just evaluation of the scope of Virginia’s Marriage Laws at issue establishes that these laws impact Virginia’s adult citizens who are in loving and committed relationships and want to be married under the laws of Virginia. The laws at issue target a subset (gay and lesbian individuals) who are similarly situated to Virginia’s heterosexual individuals, and deprive that subset of the opportunity to marry.
Deference to Virginia’s judgment on this question is unwarranted, because there are reasonable grounds to suspect “prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities[.]“
This moral condemnation continues to manifest in Virginia in state-sanctioned activities. The Virginia legislature has passed a law permitting adoption agencies to refuse adoptions based on the sexual orientation of the prospective parents. See Va. Code § 63.2-1709.3 (2014). Virginia’s former Attorney General directed colleges and universities in the Commonwealth to eliminate protections that had been in place regarding ‘”sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification” from the institutions’ non-discrimination policies. Lustig Decl. Ex. J, at 1, ECF No. 26-15. This record alone gives rise to suspicions of prejudice
sufficient to decline to defer to the state on this matter.
Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs’ compelling arguments that the Laws should be subjected to heightened scrutiny.
Although steeped in a rich, tradition- and faith-based legacy, Virginia’s Marriage Laws are an exercise of governmental power. For those who choose to marry, and for their children, Virginia’s laws ensures that marriage provides profound legal, financial, and social benefits, and exacts serious legal, financial, and social obligations. The government’s involvement in defining marriage, and in attaching benefits that accompany the institution, must withstand constitutional scrutiny. Laws that fail that scrutiny must fall despite the depth and legitimacy of the laws’ religious heritage.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.
There is more, all of which calls out the motivation behind Virginia’s marriage ban for what it is: anti-gay animus and religious based hatred towards gays. Neither are enough to make a law or a state constitutional provision constitutional under the U. S. Constitution.
What makes the Court’s ruling all the sweeter is that some of the hate and animus demonstrated by then state senator (and later Attorney General) Ken Cuccinelli and Del. Bob Marshall helped convince the court that impermissible animus was the true motivation behind Virginia’s same sex marriage ban. Karma can be a bitch – at least to those who are cruel and bigoted towards others.
Ironically, Judge Wright Allen rebuffed the criticism of black pastors who have allowed themselves to be used as tools to further hatred by beginning her ruling with a quote from the late Mildred Loving of Loving v. Virginia fame who supported same sex marriage:
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.
I have long argued that Virginia’s anti-gay laws had only one real purpose: to impose Christofascist religious beliefs on all Virginians and to punish those of us who refused to accept their fear and hate based beliefs. No matter how much the Christofascists – and the Mormon and Catholic Churches – have of late tried to claim that they are not motivated by anti-gay animus, their actions for decades, if not centuries tell the real tale.
Likewise, more recent arguments that marriage is for procreation and/or for the sake of children is a recent invention to serve as a smoke screen for the real motivations behind same sex marriage bans. Thankfully, Judge Wright Allen saw through these disingenuous lies. Here are some highlights from the Washington Blade’s coverage (not Brian Brown’s spittle flecked rant and his shots at a black woman judge – besides being a homophobe, Brown is a racist in my view):
“This decision is a victory for the Constitution and for treating everyone equally under the law,” said [Virginia Attorney General Mark] Herring in a statement after Allen issued her ruling in the Bostic case.
Former U.S. Solicitor General Ted Olson, who successfully argued against California’s Proposition 8 before the U.S. Supreme Court with David Boies, joined the lawsuit last September with the American Foundation for Equal Rights. Olson said in an AFER press release that Allen’s decision has “upheld the principles of equality upon which this nation was founded.”
“Virginia’s prohibition on marriage for same-sex couples relegates gay and lesbian Virginians to second-class status,” he said. “Laws excluding gay men and lesbians from marriage violate personal freedom, are an unnecessary government intrusion, and cause serious harm. That type of law cannot stand.”
Equality Virginia Executive Director James Parrish said Wright’s ruling “finally puts Virginia on the path toward allowing lesbian and gay couples to marry the person they love here in the place they call home.” “This is an historic day in Virginia,” added Parrish.
National Organization for Marriage President Brian Brown blasted Allen. “This is another example of an Obama-appointed judge twisting the constitution and the rule of law to impose her own views of marriage in defiance of the people of Virginia,” said Brown in a statement.Brown also again sharply criticized Herring for not defending the commonwealth’s marriage amendment. “This case also leaves a particular stench because of the unconscionable decision of Attorney General Mark Herring to not only abandon his sworn duty to defend the laws of the state, but to actually join the case against the very people he is duty-bound to represent,” said Brown.
Del. Bob Marshall, R-Prince William County, is one of the most conservative members of the House and was an architect of the 2006 marriage amendment. Still digesting the opinion as Thursday turned to Friday, Marshall took exception to its legal reasoning and its late arrival. “It comes out in the middle of the night, just like a thief. This is how a thief would act,” he said of Allen’s decision, which became public after 9 p.m.
As for the late release of the opinion, from past experience, when matters are filed in the federal court electronic case system, it always takes a few hours for them to appear publicly on the site.
I suspect that Judge Wright Allen filed her ruling late in the day and it mere took the usual time period for the system to update. But with Bob Marshall, one should never expect a truthful or honest statement.
Michael Hamar is an out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others. Follow him at Michael In Norfolk.
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“There are a number of Republicans, even those are against LGBT equality, who do accept that fact that the Virginia state code books should say what is the law and not what isn’t the law…”October 19, 2016
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