The Death of DOMA and The Future of Same-sex Marriage in Virginia
By handing down its ruling in United States v. Windsor, the United States Supreme Court set the stage for a constitutional challenge of Virginia’s anti-gay Marshall-Newman Amendment under the 14th Amendment to the U. S. Constitution. In striking down Sec. 3 of the Defense of Marriage Act (“DOMA”), the Court’s majority used language that zeroed in on the real motivations behind the federal Defense of Marriage Act (“DOMA”) and by extension, Virginia’s Marshall-Newman Amendment: anti-gay animus, a desire to stigmatize gays and to deprive us of legal equality. This language in the Windsor decision may ultimately spell the death knell for the anti-gay animus-motivated Marshall-Newman Amendment. Here are some core excerpts from the ruling in Windsor:
The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, … The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.
If one looks at the legislative history of the Marshall-Newman Amendment and the dishonest campaign for its passage backed by the Christian Right, particularly The Family Foundation and anti-gay zealots like Del. Bob Marshal and Ken Cuccinelli, the motivations are as damning as those displayed in the Congressional Record surrounding DOMA. “Protecting the sanctity of marriage” was never the true goal. Rather it was to make same sex relationships forever inferior, and to deny gays (and their families) legal rights and benefits afforded to other couples.
Now two federal lawsuits have been filed in Virginia, each following the road map laid out in Windsor: the deprivation of equal rights and denial of legal benefits to LGBT citizens, motivated by anti-gay animus and religious based discrimination. Yet there are significant differences in the two lawsuits, most notably that one is a class action suit which purports to be on behalf of all gay Virginians, while the other was filed on behalf of only the named plaintiffs.
Tim Bostic & Tony London
The first lawsuit to be filed challenging Virginia’s anti-gay legal framework is Bostic v. McDonnell, which was filed in the U.S. District Court for the Eastern District of Virginia, by Timothy B. Bostic, and his partner, Tony C. London. The Defendants are Bob McDonnell, Governor of Virginia; Ken Cuccinelli, Virginia Attorney General; and George E. Schaefer, III, Clerk of the Norfolk Circuit Court. The complaint alleges that Virginia’s anti-gay marriage ban (i) deprives the plaintiffs of due process and equal protection under the United States Constitution, and (ii) was motivated by discriminatory intent and anti-gay animus. It is not without irony that the Complaint leads off with a reference to Loving v. Virginia, in which Virginia was figuratively taken to the woodshed and horsewhipped for its anti-miscegenation law. Pertinent quotes from the complaint are as follows:
More than 30 years ago, the Supreme Court of the United States recognized that “[m]arriage is one of the ‘civil rights of man,’ fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1,12 (1967). But today, as a result of both state statute and the state constitution, the Commonwealth of Virginia denies its gay and lesbian residents access to marriage… This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment to the United States Constitution.
This action, brought pursuant to 42 U.S.C. § 1983, seeks (1) a declaration that Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitution, provisions that expressly deny gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals— are unconstitutional under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution; and (2) a preliminary and permanent injunction preventing Defendants from enforcing these provisions against Plaintiffs.
The disadvantage these laws impose upon gays and lesbians is the result of disapproval or animus against a politically unpopular group. Accordingly, these laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by casting gays and lesbians into disfavored legal status and categorizing them as “second-class citizens.”
Christy Berghoff and Victoria Kidd, and their daughter Lydia, part of the ACLU’s class action suit
The second lawsuit, Harris, et al v. McDonnell, et al, was filed by Lambda Legal and the ACLU in the U.S. District Court for the Western District of Virginia, Harrisonburg Division and, as noted above, is a class action suit. As a result, it seeks to represent all same-sex couples in Virginia who wish to marry, or who have married in other jurisdictions. Unlike the Bostic lawsuit, it also stresses the harm done to the children of same sex couples who are not allowed to marry. The following are some excerpts from the complaint:
The Named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 on behalf of themselves and the Plaintiff Class, seeking declaratory and injunction relief for the violation of Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution caused by the exclusion of same-sex couples from the freedom to marry and from recognition of the marriages some Plaintiffs have entered into in other jurisdictions under the law of the Commonwealth of Virginia.
Marriage plays a unique role in society as the universally recognized and celebrated hallmark of a couple’s commitment to build family life together… Yet, the Commonwealth, without any adequate justification, has enacted an unprecedented series of statutory and constitutional amendments to single out lesbian and gay Virginians by excluding them from the freedom to marry, or by refusing to recognize their existing marriages from other jurisdictions, based solely on their sexual orientation and their sex.
[T]he Commonwealth’s exclusion of same-sex couples from marriage and refusal to recognize their valid marriages from other jurisdictions and Defendants’ enforcement of the marriage ban violate the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution.
As the Supreme Court has made clear, the law cannot, directly or indirectly, give effect to private biases. Liberty and equality, not moral disapproval, must be the guiding framework for a state’s treatment of its citizens.
Excluding same-sex couples from marriage does nothing to protect or enhance the rights of different-sex couples. Different-sex spouses will continue to enjoy the same rights and status conferred by marriage regardless of whether same-sex couples may marry, unimpaired by the acknowledgment that this freedom belongs equally to lesbians and gay men.
The Commonwealth’s interest in child welfare is affirmatively harmed rather than furthered by the exclusion of same-sex couples from marriage. That exclusion injures same-sex couples’ children without offering any conceivable benefit to other children…
Both suits lay out the framework needed to invalidate Virginia’s anti-gay laws and constitutional amendment. The next stage of the lawsuits will be to put in evidence and expert testimony, as was done in the Proposition 8 District Court trial, so that any appellate court will be hard put to find a means to uphold the Marshall-Newman Amendment. This evidence and testimony will need to include (i) detailed evidence done to same sex couples and their families and (ii) the anti-gay animus behind the Amendment and the fact that same sex marriage in no way harms the rights and benefits of heterosexual couples and/or their families.
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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