“The injustice of Virginia’s position in Loving will not be repeated this time.”

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.

This extreme language – prohibiting any recognition of “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage…or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage,” was celebrated by its proponents in 2006 as offering the most robust “protection” for “traditional” marriage. That same language, both vague and overreaching, is now what makes it so clearly unconstitutional and attractive as a target for lawsuits.

In a brief filed this morning joining the plaintiffs in the AFER case, Bostic v. Rainey, AG Herring aptly relies on Loving v. Virginia in his reasoning:

..Loving upheld the fundamental right to marriage, not the “right to
interracial marriage.” Turner upheld the right to marriage, not the “right to inmate marriage.” And Zablocki upheld the right to marriage, not “the right of people owing child support to marry.” [citations omitted].. In the same tradition, the issue here is not whether there is a “fundamental right to same-sex marriage,” but whether the fundamental right to marry may be denied to loving couples based solely on their sexual orientation.

Lest we forget, the brief presents a list of the rationales used to defend Virginia’s anti-miscegenation law in Loving, rationales that sound…familiar. And then adds this:

The injustice of Virginia’s position in Loving will not be repeated this time.

Regarding the unsubstantiated argument that such discriminatory bans are needed to encourage “responsible procreation” and an “ideal” family headed by “natural” parents, the brief finds that “[t]his claim is both offensive and without legal merit,” adding “[t]his so-called ‘ideal’ is so lacking in any limiting principle that it could be used to justify truly totalitarian restrictions.”

And as always, it is a delicious irony to see such kind and respectful citation of Justice Scalia’s dissents in Lawrence and Windsor: “His assessment was correct.” Quoting the U.S. District Court in Utah:

The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

It’s a strongly argued brief. You should just go read it. In addition to the arguments above, and several other key ones presented in the Utah and Oklahoma rulings, it specifically points out the “startling presumption” of Herring’s predecessor “that married same-sex couples cannot be ‘better’ parents than married, heterosexual ‘natural parents,'” and are in fact presumed, by definition, to be unfit parents. I will add that this unconstitutional and unfounded presumption also demonstrates clear animus on the part of the Marshall-Newman proponents.

As was also the case when Ken Cuccinelli held the office of Attorney General, these determinations are legal opinions which the AG is empowered – required, in fact – to make. Delegates Cox, Marshall, et al don’t happen to agree with the conclusion reached by AG Herring in this case, so they are pretending that he is failing to perform his duty. But his duty is precisely to exercise his independent constitutional judgment in such cases. It would be dereliction of duty to ignore the overwhelming evidence that the ill-considered Virginia amendment will not survive constitutional challenge. Citing actions taken by former Attorneys General Cuccinelli and Kilgore, the brief demonstrates that “an attorney general is duty-bound to challenge a statute he believes to be unconstitutional, thereby serving a vital role in a constitutional system founded upon the separation of powers.” The AG’s oath to uphold the U.S. Constitution takes precedence in any conflict, as any high school civics text, and the Virginia Constitution, will explain.

Although his office won’t be defending the law, AG Herring will “work to ensure that both sides of the issue are responsibly and vigorously briefed and argued to facilitate a decision on the merits, consistent with the rule of law.” This is important, not just to the discharge of his duty consistent with his oath of office, but because it is with a full and fair hearing of the pro-discrimination arguments that the unconstitutionality of the law becomes most clear. As we have seen in previous cases, the pro-discrimination advocates, despite having every opportunity to present them, simply have no evidence and no viable arguments. We welcome the chance for these advocates to once again make their very best case.

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