14-1167 #72

RECORD NO.
14-1167(L)
CONSOLIDATED WITH 14-1169, 14-1173
IN THE
Wniteb Qtourt of
FOR THE FOURTH CIRCUIT
TIMOTHY B. BOSTIC, TONY C. LONDON;
CAROL SCHALL; MARY TOWNLEY,
Plaintiffs - Appellees,
CHRISTY BERGHOFF, on behalf of themselves and all others similarly situated;
JOANNE HARRIS, on behalf of themselves and all others similarly situated;
JESSICA DUFF, on behalf of themselves and all others similarly situated;
VICTORIA KIDD, on behalf of themselves and all others similarly situated,
Intervenors,
v.
GEORGE E. SCHAEFER, Ill,
in his official capacity as the Clerk of Court for Norfolk Circuit Court,
and
Defendant - Appellant,
JANET M. RAINEY, in her official capacity as State Registrar of Vital
Records; ROBERT F. MCDONNELL, in his official capacity as Governor
of Virginia; KENNETH T. CUCCINELLI, II, in his official capacity as
Attorney General of Virginia,
Defendants,
MICHELE MCQUIGG,
Intervenor - Defendant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA AT NORFOLK
David B. Oakley
Jeffrey F. Brooke
POOLE MAHONEY P.C.
Suite 401
860 Greenbrier Circle
Chesapeake, VA 23320
(757) 552-6035
doakley@poolemahoney.com
jbrooke@poolemahoney.com
JOINT APPENDIX
Trevor S. Cox
Stuart A. Raphael
OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA
900 East Main Street
Richmond, VA 23219
(804) 786-7704
tcox @oag.state. va.us
sraphael@ oag.state. va.us
David Boies
BOIES, SCHILLER & FLEXNER, LLP
333Main Street
Armonk, NY 10504
(914) 7 49-8200
dboies@bsflip.com
Counsel for Defendants Counsel for Appellees
Janet M. Rainey, Robert F. McDonnell Timothy B. Bostic, Tony C. London,
Counsel for Appellant and Kenneth T. Cuccinelli. II Carol Schall and Mary Townley
George E. Schaefer,
1
j{DDITIONAL COUNSEL LISTED ON BACK OF COVER
LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477
A Division of Lantagne Duplicating Services
Appeal: 14-1167 Doc: 72 Filed: 03/28/2014 Pg: 1 of 407
Joshua I. Schiller
7th Floor
575 Lexington Avenue
New York, NY 10022
(212) 446-2300
jischiller@bsflip.com
Counsel for Appellees
Timothy B. Bostic, Tony C. London,
Carol Schall and Mary Townley
William A. Isaacson
Suite 800
5301 Wisconsin Avenue, NW
Washington, DC 20015
(202) 237-2727
wisaacson@ bsflip.com
Charles B. Lustig
SHUTILEWORTH, RULOFF, SWAIN,
HADDAD & MORECOCK, P.C.
4525 South Blvd., Suite 300
Virginia Beach, VA 23452
(7 57) 671-6020
clustig@ srgslaw .com
Byron Jeffords Babione
Kenneth J. Connelly
Jonathan C. Dalton
DAVID A.R. NIMOCKS
ALLIANCE DEFENDING FREEDOM
15100 North 90th Street
Scottsdale, AZ 85260
( 480) 444-0020
bbabione@ alliancedefending freedom.org
kconnelly@alliancedefending freedom.org
cdalton@ alliancedefending freedom.org
animocks@ alliancedefending freedom.org
Counsel for Intervenor/Defendant
Michele McQjuigg
Theodore J. Boutrous, Jr.
GillSON, DUNN & CRUTCHER, LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
(213) 229-7000
tboutrous@ gibsondunn.com
Chantale Fiebig
Matthew D. McGill
Theodore B. Olson
Amir C. Tayrani
1050 Connectivut Avenue, NW
(202) 955-8500
CFiebig@ gibsondunn.com
MMcGill@ gibsondunn.com
tolson@ gibsondunn.com
atayrani@ gibsondunn.com
Joshua S. Lipshutz
Suite 3000
555 Mission Street
San Francisco, CA 94105-0921
(415) 393-8233
JLipshutz@ gibsondunn.com
Joshua A. Block
James D. Esseks
American Ci vii Liberties Ulnion
125 Broad Street, 18th Floor
New York, NY 10004-2400
(212) 549-2593
Jblock@aclu.org
jesseks@ aclu.org
Counsel for Intervenors
Christy Berghoff, Joanne Harris,
Jessica Duff and Victoria Kidd
Tara Lynn Borelli
Gregory R. Nevins
Lambda Legal Defense & Education Fund, Inc.
730 Peachtree Street, Suite 1070
Atlanta, GA 30308
(404) 897-1880
tborelli@ lambdalegal.,org
gnevins@ lambdalegal.org
Mark P. Gaber
Luke C. Platzer
Paul M. Smith
JENNER & BLOCK, LLP
Suite 900
1099 New York Avenue, NW
(202) 637-6367
mgaber@jenner.com
lplatzer@jenner.com
psmith@ jenner .com
Rebecca K. Glenberg
American Civil Liberties Union Foundation
of Virginia
Suite 1412
701 East Franklin Street
Richmond, VA 23219
(804) 644-8080
rglenberg@acluva.org
TABLE OF CONTENTS
Page
District Court Docket Sheet (2: 13-cv-00395) ........................................................... 1
Complaint
filed July 18,2013 (dktl) ................................................................................... 34
Defendants' Motion to Dismiss Governor McDonnell and Attorney General
Cuccinelli on Sovereign Immunity Grounds
filed August 9, 2013 (dkt7) ................................................................................ 46
Commonwealth of Virginia's Motion to Intervene
filed August 9, 2013 (dkt9) ................................................................................ 49
Plaintiffs' Agreed Motion for Entry of Consent Order to Suspend Briefing on
Motion to Dismiss and Motion to Intervene, and to Set Deadlines for Filing
Amended Complaint, and for Filing Cross-Motions for Summary
filed August 22,2013 (dktl4) ............................................................................ 52
Docket Entry Order Granting unopposed Motion for an Extension of Time
entered August 30, 2013 (dktl6) ........................................................................ 55
Docket Entry Order Granting Motion for Entry of Consent Order
entered August 30, 2013 (dktl7) ........................................................................ 56
Plaintiffs' First Amended Complaint for Declaratory Injunctive, and other
Relief
filed September 3, 2013 (dktl8) ........................................................................ 57
Plaintiffs' Rule 41 Notice of Voluntary Dismissal of Defendants McDonnell
and Cuccinelli without Prejudice
filed September 5, 2013 (dktl9) ........................................................................ 77
Commonwealth of Virginia's Motion to Dismiss as Moot the Governor and
Attorney General's Motion to Dismiss and the Commonwealth of Virginia's
Motion to Intervene
filed September 6, 2013 (dkt20) ........................................................................ 79
1
Janet Rainey's Answer to First Amended Complaint
filed September 16, 2013 (dkt21) ...................................................................... 82
Docket Entry Order Granting Motion to Dismiss as Moot the Motion to Dismiss
entered September 19, 2013 (dkt22) .................................................................. 94
George Schaefer, III's Answer to First Amended Complaint
filed September 20, 2013 (dkt23) ...................................................................... 95
Plaintiffs' Motion for Summary Judgment or, in the Alternative, Preliminary
Injunction
filed September 30, 2013 (dkt25) .................................................................... 105
Attachments to Plaintiffs' Memorandum in Support Motion for Summary
Judgment
filed September 30, 2013 (dkt26):
Att.: Affidavit of Timothy Bostic (dkt26-l) ........................................ 111
Att.: Affidavit of Tony London (dkt26-2) ........................................... 115
Att.: Affidavit of Carol Schall (dkt26-3) ............................................. 119
Att.: Affidavit of Mary Townley (dkt26-4) ......................................... 125
Att.: Affidavit of Charles Lustig with Exhibits A-N (dkt26-5) ........ 130
Ex. A: News Article, "Gay-straight" Club in Schools Anger Foes,
Washington Times 11/17/04 ( dkt26-6) ....................................... 135
Ex. B: Letter for Editor "No "New Jim Crow" in Virginia,
Washington Post, 7/3/04 (dkt26-7) ............................................. 138
Ex. C: Letter from McDonnell to Several Legislature dated 9114/06
(dkt26-8) ...................................................................................... 141
Ex. D: News Article, Gay Marriage Ban Advances in VA,
Washington Post, 1114/06 (dkt26-9) ........................................... 155
Ex. E: VA. Senate Backs Ban on Gay Marriage,
Washington Post, 2/8/05 (dkt26-10) ........................................... 158
Ex. F: Editor Marc Fisher's Weblog entry, "Cuccinelli Basks in
Richmond's Warmer Climate", 2/5/08 (dkt26-11) ..................... 162
Ex. G: Editorial "Steve Shannon for Attorney General",
Virginian-Pilot 10/26/09 (dkt26-12) ........................................... 165
Ex. H: News Article "Ken Cuccinelli Loses Petition to Uphold Anti-
Sodomy Law", Huffington Post 4110/13 (dkt26-13) ................... 173
Ex. I: Executive Order Given by Governor McDonnell on 2/5/10
(dkt26-14) .................................................................................... 175
11
Ex. J: Letter from Cuccinelli to Presidents, Rectors and Visitors of
VA Public Colleges & Universities dated 3/4/10 ( dkt26-15) ..... 178
Ex. K: News Article "Gay Rights Advocates Welcome Election Day
Results for a Change", Washington Post 11/8112 ( dkt26-16) ..... 183
Ex. L: VA Department of Health's Website titled "Marriage
Requirements" ( dkt26-17) ........................................................... 187
Ex. M: Journal Article "Same Sex Marriage & Perceived Assault on
Opposite Sex Marriage" ( dkt26-18) ............................................ 190
Ex. N: News Article "States That Allow Same-Sex-Marriage-Have-
Lower Divorce Rates, NBC Chicago 6/27113 (dkt26-19) ........... 200
Plaintiffs' Motion for Summary Judgment or, in the Alternative, Preliminary
Injunction
Defendant Janet Rainey's Motion for Summary Judgment
Attachment to Memorandum in Support Motion for Summary Judgment
filed September 30, 2013 (dkt39):
Att.: "Proposed Constitutional Amendments to be Voted at the
1117/06 Special Election" (dkt39-1) ............................................ 212
George Schaefer, III's Motion for Summary Judgment
Michele McQuigg's Motion to Intervene
filed December 20, 2013 (dkt72) ..................................................................... 217
Order Granting in Part McQuigg's Motion to Intervene
entered January 17, 20 14 ( dkt91) ..................................................................... 222
Michele McQuigg's Answer and Affirmative Defenses of Intervenor
filed January 20, 2014 (dkt92) ......................................................................... 227
Janet Rainey's Notice of Change in Legal Position with Attached Memorandum
in Support
Att.: Excerpts of Memorandum in Support ( dkt96-1) ......................... 242
111
Janet Rainey's Amended Answer to Amended Complaint
Order Permitting Clerk McQuigg to Adopt prior Attorney General's Briefs
entered January 27, 2014 (dkt115) ................................................................... 262
Transcript of Trial Proceedings
Before The Honorable Arenda Wright Allen
on February 4, 2014 ......................................................................................... 265
Amended Order & Opinion
entered February 14, 2014 (dkt136) ................................................................. 347
Judgment in a Civil Case
entered February 24, 2014 (dkt139) ................................................................. 388
Notice of Appeal by George Schaefer
filed February 24, 2014 (dkt140) ..................................................................... 390
Notice of Appeal by Janet Rainey
filed February 24, 2014 (dktl41) ..................................................................... 394
Notice of Appeal by Michele McQuigg
filed February 25, 2014 (dktl44) ..................................................................... 396
lV
1
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APPEAL, CLOSED
U.S. District Court
Eastern District of Virginia- (Norfolk)
CIVIL DOCKET FOR CASE#: 2:13-cv-00395-AWA-LRL
Bostic et a! v. McDonnell et a!
Assigned to: District Judge Arenda L Wright Allen
Refurred to: Magistrate Judge Lawrence R Leonard
Case in other court: 4CCA- Case Manager RJ Warren, 14-
01167
4CCA - Case Manager RJ Warren, 14-
01169
Cause: 42:1983 Violation ofDue Process and Equal Protection
Plaintiff
Date Filed: 07/18/2013
Date Terminated: 02/24/2014
Jury Demand: None
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question
Timothy B. Bostic represented by Charles Barnet Lustig
Shuttleworth RuloffSwain Haddad &
MorecockPC
https://ecf.vaed.uscourts .g 0\lcg i-bi n/Dk!Rplpl ?68694 7154805887 -L _1_ 0-1
4525 South Blvd
Suite 300
(804) 671-6000
Fax: (757) 671-6004
Email: clustig@srgslaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Robert Eugene Ruloff
MorecockPC
4525 South Blvd
Suite 300
Virginia Beach, VA 23452-1137
(757) 671-6000
Fax: (757) 671-6004
LEAD ATTORNEY
Thomas Brady Shuttleworth, ll
Shuttleworth Ruloff Swain Haddad &
MorecockPC
4525 South Blvd
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Suite 300
757-671-6000
Fax:757-671-6004
Email: tshuttleworth@srgslaw.com
LEAD ATTORNEY
Amir C Tayrani
Gibson Dunn & Crutcher LLP (DC-NA)
1050 Connecticut Ave, NW
Washington, DC 20036-5306
**NA**
(202) 955-8500
Fax: (202) 530-9645
Email: atayrani@gibsondunn.com
PRO HAC VICE
Andrew Mitchell Hendrick
MorecockPC
4525 South Blvd
Suite 300
(757) 671-6012
Fax: (757) 671-6004
Email: ahendrick@srgslaw.com
Chantale Fiebig
**NA**
(202) 955-8500
Fax: (202) 530-4203
Email: cfiebig@gibsondunn.com
PROHACVICE
David Boies
Boies, Schiller & Flexner LLP
333 Main St
Armonk, NY 10504
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https:l/ecf. >aed.uscourts.g rntcg i- bi rVD ktRpt.pl?686947154805887- L _1_ 0-1
**NA**
(914) 749-8200
Fax: (914) 749-8300
Email: dboies@bstllp.com
PRO HAC VICE
Erik C. Porcaro
MorecockPC
4525 South Blvd
Suite 300
(757)671-6000
Fax: (757)671-6004
Email: eporcaro@srgslaw.com
Jeremy Michael Goldman
1999 Harrison St
Suite 900
Oakland, CA 94612
**NA**
(510) 874-1000
Fax: (510) 874-1460
Email: jgoldman@bstllp.com
PROHACVICE
Joshua Seth Lipshutz
Gibson, Durm & Crutcher LLP (CA-N A)
555 Mission St
Suite 3000
**NA**
(415) 393-8200
Fax: (415) 374-8469
Email: jlipshutz@ gibsondU11llcom
PROHACVICE
Joshua I Schiller
Boies, Schiller & Flexner LLP (NY-NA)
575 Lexington Ave
3133
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https:l/ecf.vaed.uscourts.gOIIcgi-bin/DktRpt.pi?686947154805887-L_1_0-1
7th Floor
New York, NY 10022
**NA**
(212) 446-2300
Fax: (212) 446-2350
Email: jischiller@bsfllp.com
PROHACVICE
ATTORNEYTOBE NOTICED
Matthew D McGill
**NA**
(202) 955-8500
Fax: (202) 530-9662
Email: mmcgill@gibsondnnn.com
PROHACVICE
Robert Brian Silver
Boies, Schiller & Flexner LLP (NY-NA)
575 Lexington Ave
7th Floor
New York, NY 10022
**NA**
(212) 446-2300
Fax: (914) 749-8300
Email: rsilver@bsfllp.com
PROHACVICE
Theodore J Boutrous , Jr
Gibson, Dunn & Crutcher LLP (CA-NA)
333 SouthGrandAve
**NA**
(213) 229-7000
Fax: (213) 229-6804
Email: tboutrous@gibsondnnn.com
PROHACVICE
Theodore B Olson
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Plaintiff
Tony C. London
https :1/ecf. vaed.uscourts.g Ollcg i- bi n/Dk!Rpt.pl?686947154805887 -L _1_ 0-1
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**NA**
(202) 955-8500
Fax: (202) 530-9575
Email: tolson@gibsondunn.com
PROHACVICE

Boies, Schiller & Flexner (DC-N A)
5301 Wisconsin Ave, NW
**NA**
(202) 237-2727
Fax: (202) 237-6131
Email: wisaacson@bsfllp.com
PROHACVICE
represented by Charles Barnet Lustig
(See above fur address)
LEAD ATTORNEY
(See above for address)
LEAD ATTORNEY
Thomas Brady Shuttleworth, II
LEAD ATTORNEY
Amir C Tayrani
PROHACVICE
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Chantale Fie big
PROHACVICE
David Boies
PROHACVICE
Erik C. Porcaro
PROHACVICE
PRO HAC VICE
Joshua I Schiller
PROHACVICE
MatthewD McGill
PRO HAC VICE
Robert Brian Silver
PROHACVICE
PRO HAC VICE
Theodore B Olson
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Plaintiff
Carol Schall
https:f/ecf .vaed.uscourts.g 0\icg i- bi n/DktRptpl ?686947154805887 -L _1_ 0-1
CM/ECF- ~ e d
PROHACVICE
William Isaacson
PROHACVICE
represented by Charles Barnet Lustig
LEAD ATTORNEY
LEAD ATTORNEY
LEAD ATTORNEY
Amir C Tayrani
PROHACVICE
Chantale Fie big
PRO HAC VICE
David Boies
PRO HAC VICE
Erik C. Porcaro
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Plaintiff
PROHACVICE
PROHACVICE
Joshua I Schiller
PROHACVICE
Matthew D McGill
PROHACVICE
Robert Brian Silver
PROHACVICE
PROHACVICE
Theodore B Olson
PRO HAC VICE

PROHACVICE
Mary Townley represented by Charles Barnet Lustig
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LEAD ATTORNEY
LEAD ATTORNEY
LEAD ATTORNEY
Amir C Tayrani
PRO HAC VICE
Chantale Fie big
PROHACVICE
David Boies
PROHACVICE
Erik C. Porcaro
PROHACVICE
PROHACVICE
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Defendant
Robert F. McDonnell
in his official capacity as Governor of
Virginia
TERMINATED: 09/05/2013
Defendant
CM/ECF- vaed
Joshua I Schiller
PROHACVICE
Matthew D McGill
PROHACVICE
Robert Brian Silver
PROHACVICE
PRO HAC VICE
Theodore B Olson
PROHACVICE

PROHACVICE
represented by Earle Dnncan Getchell, Jr.
Office of the Attorney General (Richmond)
900 EMainSt
Richmond, VA23219
(804) 786-2436
Fax: (804) 371-0200
Email: dgetchell@oag.state.va.us
LEAD ATTORNEY
Kenneth T. Cuccinelli represented by Earle Dnncan Getchell, Jr.
https ://eel. vaed.uscourts.g rnicg i- bi n/D ktR pt.pl?686947154805887 -L _1_ Q-1 1 0/33
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in his official capacity as Attorney
General of Virginia
Defendant
Janet M. Rainey
in her official capacity as State Registrar
of Vital Records
https :1/ech.aed.uscourts.g rnlcg i- ?686947154805887 -L _1_ 0-1
CM/ECF- \aed
LEAD ATTORNEY
represented by Earle Duncan Getchell, Jr.
LEAD ATTORNEY
Michael Hugh Brady
900 EMainSt
Richmond, VA23219
(804) 786-3518
Fax: (804) 371-0200
Email: mbrady@mcguirewoods.com
TERMINATED: 01128/2014
LEAD ATTORNEY
Nonnan Allan Thomas
900 EMainSt
Richmond, VA 23219
(804) 371-7763
Email: nthomas@oag.state.va.us
LEAD ATTORNEY
Stuart Alan Raphael
Htmton & Williams LLP (McLean)
1751 Pinnacle Dr
Suite 1700
McLean, VA22102
703-714-7400
Fax:703-714-7410
Email: sraphael@oag.state.va.us
LEAD ATTORNEY
Catherine Crooks Hill
Office of the Attorney General
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Defendant
George E. Schaefer, III
in his official capacity as the Clerk of
Court for Norfolk Circuit Court
Intervenor Defendant
Michele McQuigg
https://ecf. \Ged.uscourts.g rntcg i- bi n/Dk!Rpt.pl?686947154805887-L _1_ G-1
CM/ECF- \6ed
900EMainSt
Richmond, VA23219
(804) 786-2071
Ennil: cchill@oag.state.va.us
Rhodes Beahm Ritenour
900 EMainSt
Richmond, VA23219
804-786-6731
Fax: 804-371-2087
Ennil: Rfutenour@oag.state.va.us
Trevor Stephen Cox
Hmton & Williams LLP (Richmond)
951 E Byrd St
Riverfront Plaza- East Tower
Richmond, VA23219
(804)788-7331
Fax: (804) 343-4893
Ennil: tcox@oag.state.va.us
represented by David Brandt Oakley
Poole Mahoney PC
860 Greenbrier Circle
Suite 103
757-962-6625
Fax:757-962-6180
Ennil: doakley@poolemahoney.com
LEAD ATTORNEY
represented by Michael Casey Mattox
Alliance Defending Freedom (DC)
801 G. Street NW
Suite 509
(202) 393-8690
Fax: (202) 347-3622
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https://ecf.vaed.uscourts.g Ql,(cg i-bi n/DktRpt. pi ?686947154805887- L _1_ 0-1
Email:
cmattox@alliancedefendingfreedomorg
LEAD ATTORNEY
Alliance Defense FlD.ld (AZ)
15100 N. 90th Street
480-444-0020
Email:
bbabione@alliancedefendingfreedomorg
PROHACVICE
David Austin Robert Nimocks
Alliance Defending Freedom
801 G St, NW
Suite 509
**NA**
(202) 393-8690
Fax: (480) 444-0028
Email:
aniroocks@alliancedefendingfreedomorg
PROHACVICE
Jonathan Caleb Dalton
15100 N 90th St
Scotsdale, AZ 85260
480-444-0028
Fax:480-444-0028
Email:
cdahon@alliancedefendingfreedomorg
Jonlan Woodanl Lorence
Alliance Defense FlD.ld (DC)
801 G Street NW
Suite 509
202-637-4610
Fax: 202-347-3622
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Movant
Connnonwealth OfVa.
Amicus
The Family Foundation of Virginia
Amicus
Lynn D. Wardle
htlps://ecf.\lled.uscourts .g Olicg i-bi n/Dk!R pt.pl?686947154805887 -L _1_ 0-1
CM/ECF- \lled
Email: jlorence@telladorg
Kenneth John Connelly
15100 N. 90th St
**NA**
(480) 444-0020
Fax: (480) 444-0028
Email:
kconnelly@alliancederendingfreedomorg
PROIIAC VICE
represented by Earle Duncan Getchell, Jr.
LEAD ATTORNEY
represented by Mark Randolph Matney
Michael C. Tillotson LLC
13195 Warwick Blvd
Suite 2A
Newport News, VA23602
(757) 969-5197
Fax: (757) 969-5988
Email: matneylaw@gmail.com
represented by Jennifer Jesus a Truitt
The Law Office ofJennifer J. Truitt PLLC
11848 Rock Landing Dr
Suite 202A
Newport News, VA 23606
(757) 806-6592
Email: mailbox@jennifuijtruitt.com
LEAD ATTORNEY
Michael Casey Mattox
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Amicus
William C. Duncan
Amicus
Joseph P. Price
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LEAD ATTORNEY
PROHACVICE
LEAD ATTORNEY
LEAD ATTORNEY
PROHACVICE
represented by Jennifer Jesusa Truitt
LEAD ATTORNEY
LEAD ATTORNEY
PRO HAC VICE
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Amicus
Robert A. Destro
Amicus
Lynne Marie Kohm
Amicus
Liberty Counsel, Inc
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CM/ECF- ;aed
LEAD ATTORNEY
LEAD ATTORNEY
PROHACVICE
LEAD ATTORNEY
LEAD ATTORNEY
TERMINATED: 0212412014
PROHACVICE
represented by Mary Eli7abeth McAlister
Liberty Cmmse1
PO Box 11108
Lynchburg, VA24506-1108
(434) 592-7000
Fax: (434) 592-7700
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Date Filed #
07118/2013
1
07/22/2013
2
f---
07/24/2013
07/26/2013
3.
07/26/2013
I

08/05/2013
!
I
j_
08/06/2013
I
Q.
08/09/2013
I
1
I
08/09/2013
I
.8.
08/09/2013
2.
08/09/2013 10
08/16/2013
11
08/16/2013 12
CM/ECF -I.I'IEld
Docket Text
Email: court@lc.org
COMPLAINT for Declaratory, Ir:Yiillctive and Other Relief against Kenneth T.
Cuccinelli, Robert F. McDmmell, George E. Schaefer, III (Filing fee$ 400.00, receipt
mnnber 24683020217 .), filed by Timothy B. Bostic, Tony C. London (Attaclnnents: #
1 Civil Cover Sheet,# 2 Receipt,# 3. Letter)(rsim,) (Additional attaclnnent(s) added on
1/10/2014: #Civil Cover Sheet) (afur, ). (Entered: 07/22/2013)
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Three Summonses (with one copy each) issued as to Kenneth T. Cuccinelli, Robert F.
McDonnell, George E. Schaefer, III and provided to cOLmsel fur service. (Attaclnnents:
# 1 Magistrate Judge Notice & Judge's Instructions)(rsim,) (Entered: 07/22/2013)
Case reassigned to District Judge Arenda L. Wright Allen ChiefDistrict Judge Rebecca
Beach Smith no longer assigned to the case. (rsim,) (Entered: 07/24/2013)
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NOTICE of Appearance by Thomas Brady Shuttleworth, II on behalf ofTimothy B.
Bostic, Tony C. London (Shuttleworth, Thomas) (Entered: 07/26/2013)
NOTICE of Appearance by Charles Barnet Lustig on behalf of Timothy B. Bostic,
Tony C. London(Lustig, Charles) (Entered: 07/26/2013)
SUMMONS Returned Executed Kenneth T. Cuccinelli served on 7/29/2013; as to
Robert F. McDonnell served on 7/29/2013 (rsim,) (Eotered: 08/06/2013)
SUMMONS Returned Executed as to George E. Schaefer, III served on 7/29/2013
(rsim,) (Entered: 08/06/2013)
MOTION to Dismiss on Sovereign Immunity Grounds by Kenneth T. Cuccinelli,
Robert F. McDonnell (Getchell, Earle) Modified on 9/20/2013 to terminate motion
(rsim, ). (Entered: 08/09/2013)
Memorandrnn in Support re 1 MOTION to Dismiss on Sovereign Immunity Grounds
filed by Kenneth T. Cuccinelli, Robert F. McDonnell (Getchell, Earle) (Entered:
08/09/2013)
MOTION to Intervene by Connnonweahh OfVa .. (Getchell, Earle) Modified on
9/20/2013 to terminate motion (rsim, ). (Entered: 08/09/2013)
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Memorandrnn in Support re 2. MOTION to Intervene filed by Connnonweahh OfVa ..
(Getchell, Earle) (Entered: 08/09/2013)
NOTICE of Appearance by David Brandt Oakley on behalf of George E. Schaefer, III
(Oakley, David) (Entered: 08/16/2013)
MOTION fur Extension of Time to File Responsive Pleadings and Entry of Consent
Order by George E. Schaefer, III. (Attaclnnents: # 1 Exhibit A-Consent Order)
(Oakley, David) (Eotered: 08/16/2013)
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Memorandmn in Support re 12 MOTION for Extension of Time to File Responsive
Pleadings and Entry of Consent Order filed by George E. Schaefer, III.
(Attachments:# 1 Exlnbit A-Consent Order)(Oakley, David) (Entered: 08/16/2013)
08/22/2013
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MOTION Staying Briefing on Motion to Dismiss and Motion to Intervene and Setting
Other Deadlines by Titmthy B. Bostic, Tony C. London. (Attachments:# 1 Exhibit
Consent Order)(Lustig, Charles) (Entered: 08/22/2013)
08/22/2013
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Memorandwn in Support re 14 MOTION Staying Briefing on Motion to Dismiss and
Motion to Intervene and Setting Other Deadlines filed by Titmthy B. Bostic, Tony C.
London. (Lustig, Charles) (Entered: 08/22/2013)
08/30/2013 16 ORDER granting 12 , the Wlopposed Motion fur an Extension of Time as fOllows:
Derendant George E. Schaefer, m is granted leave and an extension of time to file
responsive pleadings upon the earlier of either October 21, 2013, or twenty-one (21)
days after the filing of an Amended Complaint by the Plaintif!S Signed by District Judge
Arenda L. Wright Allen on 08/30/2013. (Allen, Arenda) (Entered: 08/30/2013)
08/30/2013 17 Plaintif!S' mopposed Motion fur Entry of a Consent Order to Suspend Briefing on
Motion to Dismiss and Motion to Intervene, and To Set Deadlines fur Filing Amended
Complaint and For Filing Cross-Motions fur Summary Judgment (ECF 14) is
GRANTED AS FOLLOWS: (1) briefing on the Motion to Dismiss filed by Derendants
McDonnell and Cuccinelli, and on the Motion to Intervene filed by the Cornmonweahh
ofVirginia, is suspended indefinitely pending filing of an Amended Complaint; (2)
Plaintif!S shall file an Amended Complaint by September 3, 2013 and Derendants shall
have twenty-one days to respond or otherwise answer; and (3) the parties agree that
they shall file cross-motions fur summary judgment and supporting materials by
September 30, 2013. Memoranda in support of these motions shall not exceed thirty-
five pages. Responses to the cross-motions shall be filed by October 24, 2013, and
shall not exceed twenty pages. Reply brie:fS shall be filed by October 31, 2013, and
shall not exceed eleven pages. Oral argument will be set by the Court if deemed
necessary. Signed by District Judge Arenda L. Wright Allen on 08/30/2013. (Allen,
Arenda) (Entered: 08/30/20 13)
09/03/2013
1.8.
AMENDED COMPLAINT against All Derendants, filed by Titmthy B. Bostic, Tony
C. London.(Lustig, Charles) (Entered: 09/03/2013)
09/05/2013 19 NOTICE ofVohmtary Dismissal of Defendants McDonnell and Cuccinelli by
Titmthy B. Bostic, Tony C. London (Lustig, Charles) (Entered: 09/05/2013)
09/06/2013 20 MOTION to Dismiss As Moot Motion to Dismiss and Motion to Intervene by
Cornmonweahh OfVa., Kenneth T. Cuccinelli, Robert F. McDonnell (Getchell, Earle)
(Entered: 09/06/2013)
09/16/2013 21 ANSWER to Amended Complaint by Janet M Rainey.(Getchell, Earle) (Entered:
09/16/2013)
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09/19/2013 22 ORDER granting 20 as follows: the MOTION to Dismiss As Moot the Motion to
Dismiss 1 and the Motion to Intervene by Cornmonweahh OfVirginia 2 , is granted in
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part. The motions [7 & 9] have been rendered moot by subsequent filings, but counsel
are reminded tbat tbe proper means fur updating the Docket is to file a Notice of
Withdrawal of the motions. Defundants' motion to dismiss as moot 20 is construed
liberally as tbis Notice ofWithdrawaL and is granted as such Counsel are advised to
refrain from superfluous filings and to seek guidance from tbe Clerk of the Court when
necessary to ensnre compliance with Local Rules and federal rules ofprocednre. Signed
by District Judge Arenda L. Wright Allen on 09/19/2013. (Allen, Arenda) (Entered:
09/19/2013)
09/20/2013 23 ANSWER to Amended Complaint and Affirmative Defenses by George E. Schaefur,
ID.(Oakley, David) (Entered: 09/20/2013)
09/25/2013 24 NOTICE of Appearance by Erik C. Porcaro on behalf ofTirmthy B. Bostic, Tony C.
London (Porcaro, Erik) (Entered: 09/25/2013)
09/30/2013 25 MOTION fur Summary Judgment Or, In The Alternative, Preliminary Injunction by
Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles)
(Entered: 09/30/2013)
09/30/2013 26 Memorandwn in Support re 25 MOTION fur Summary Judgment Or, In The
Alternative, 27 Motion for Preliminary Injunction filed by Tirmthy B. Bostic, Tony
C. London, Carol Schall, Mary Townley. (Attachments:# 1 Affidavit Declaration of
Tirmthy Bostic, # 2. Affidavit Declaration ofT ony London, # 3. Affidavit Declaration of
Carol Schall, #Affidavit Declaration ofMary Townley, # 2 Affidavit Declaration of
Charles Lustig, # 6. Exhibit A, # 1 Exhibit B, # .8. Exhibit C, # 2 Exhibit D, # 10 Exhibit
E, # 11 Exhibit F, # 12 Exhibit G, # 13. Exhibit H, # 14 Exhibit I,# U Exhibit J, # 16
Exhibit K, # 17 Exhibit L, # 1.8. Exhibit M, # 19 Exhibit N)(Lustig, Charles) Modified on
10/1/2013 to add link to second motion (rsim, ). (Entered: 09/30/2013)
09/30/2013 Notice of Correction re 25 MOTION fur Summary Judgment Or, In The Alternative,
Preliminary Injunction :The filing user has been notified to file tbis docwnent
separately fur each motion relief (rsim,) (Entered: 09/30/2013)
09/30/2013 27 MOTION fur Preliminary m t i o n by Tirmthy B. Bostic, Tony C. London, Carol
Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
09/30/2013 28 Motion to appear Pro Hac Vice by Theodore B. 0 !son and Certification of Local
Counsel Charles B. Lustig Filing fue $ 75, receipt number 0422-3687870. by Tirmthy
B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered:
09/30/2013)
09/30/2013 29 Motion to appear Pro Hac Vice by David Boies and Certification of Local Counsel
Charles B. Lustig Filing fee$ 75, receipt number 0422-3687940. by Timothy B. Bostic,
Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
09/30/2013 30 Request for Hearing by Tirmthy B. Bostic, Tony C. London, Carol Schall, Mary
Townley re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary
Injunction, 26 Memorandwn in Support,, 27 MOTION for Preliminary lnjliDCtion
(Lustig, Charles) (Entered: 09/30/2013)
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Motion to appear Pro Hac Vice by Matthew D. McGill and Certification of Local
Cmmsel Charles B. Lustig Filing fee$ 75, receipt number 0422-3688128. by Timothy
09/30/2013)
09/30/2013 32 Motion to appear Pro Hac Vice by Amir C. Tayrani and Certification of Local Cmmsel
09/30/2013 33 Motion to appear Pro Hac Vice by Joshua S. Lipshutz and Certification ofLocal
09/30/20 13)
09/30/2013 34 Motion to appear Pro Hac Vice by Chantale Fiebig and Certification ofLocal Cmmsel
09/30/2013 35 Motion to appear Pro Hac Vice by William Isaacson and Certification of Local Cmmsel
09/30/2013 36 Motion to appear Pro Hac Vice by Jeremy M. Goldman and Certification of Local
Cmmsel Charles B. Lustig Filing fee $ 75, receipt number 0422-3688211. by Timothy
09/30/2013)
09/30/2013 37 Motion to appear Pro Hac Vice by Joshua I. Schiller and Certification ofLocal Cmmsel
09/30/2013 38 MOTION fur Summary Judgment by Janet M Rainey. (Getchell, Earle) (Entered:
09/30/2013)
09/30/2013 39 Memorandwn in Support re 38 MOTION fur Summary Judgment filed by Janet M
Rainey. (Attachments:# 1 Attachment)(Getchell, Earle) (Entered: 09/30/20 13)
09/30/2013 40 MOTION fur Summary Judgment by George E. Schaefer, III. (Oakley, David)
(Entered: 09/30/2013)
09/30/2013 41 Memorandwn in Support re 40 MOTION fur Summary Judgment filed by George E.
Schaefer, III. (Oakley, David) (Entered: 09/30/2013)
09/30/2013 42 Motion to appear Pro Hac Vice by Theodore J. Bontrous, Jr. and Certification of Local
09/30/2013)
09/30/2013 43 Motion to appear Pro Hac Vice by Robert B. Silver and Certification of Local CoiiDSel
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10/01/2013 Notice of Correction re 39 Memorandmn in Support: when you filed docmnent mnnber
(39), you exceeded the court page limit fur a brief Please refile the docmnent. (rsim, )
(Entered: 10/01/2013)
10/01/2013 44 Mernorarximn in Support re 38 MOTION for Sunnnary Judgment filed by Janet M
Rainey. (Attaclnnents: # 1 Table of Contents, Table of Authorities, # 2 Attaclnnent)
(Getchell, Earle) (Entered: 10/01/2013)
10/11/2013 45 0 RDER granting 28 , the Motion to appear Pro Hac Vice by Theodore B. 0 !son as
certified by local counsel Charles B. Lustig fur Plaintiff. Signed by District Judge Arenda
L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
10/11/2013 46 ORDER granting 29 , the Motion to appear Pro Hac Vice by David Boies as certified
by local counsel Charles B. Lustig fur Plaintiff. Signed by District Judge Arenda L.
Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/ll/2013)
10/11/2013 47 ORDER granting 11 , the Motion to appear Pro Hac Vice by Matthew D. McGill as
certified by local counsel Charles B. Lustig fur Plaintff Signed by District Judge Arenda
10/11/2013 48 ORDER granting 32 , the Motion to appear Pro Hac Vice by Amir C. Tayrani as
certified by local counsel Charles B. Lustig for Plaintiff Signed by District Judge Arenda
10/11/2013 49 ORDER granting 33 , the Motion to appear Pro Hac Vice by Joshua S. Lipshutz as
certified by local counsel Charles B. Lustig. Signed by District Judge Arenda L. Wright
Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
10/11/2013 50 ORDER granting 34 , the Motion to appear Pro Hac Vice by Chantale Fiebig as
L. Wright Allen on 10/11113. (Allen, Arenda) (Entered: 10/11/2013)
10/11/2013 51 ORDER granting 35 , the Motion to appear Pro Hac Vice by William Isaacson as
10/11/2013 52 ORDER granting 36, the Motion to appear Pro Hac Vice by Jeremy M. Goldman as
certified by local counsel Charles B. Lustig fur Plaintiff Signed by District Judge Arenda
10/11/2013 53 ORDER granting 37, the Motion to appear Pro Hac Vice by Joshua I. Schiller as
L. Wright Allen on 10/11/13. (Allen, Arenda)(Entered: 10/11/2013)
10/11/2013 54 ORDER granting 42 , Motion to appear Pro Hac Vice by Theodore J. Boutrous, Jr., as
certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda
10/11/2013 55 ORDERgranting43, the Motion to appear Pro Hac Vice by Robert B. Silver as
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certified by local colll1Sel Charles B. Lustig for Plaintiff Signed by District Judge Arenda
L Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/20 13)
10/14/2013 NOTICE of Appearance by Andrew Mitchell Hendrick on behalf of Timothy B. Bostic,
Tony C. London, Carol Schall, Mary Townley (Hendrick, Andrew) (Entered:
10/14/2013)
10/24/2013 57 Memorandmn in Opposition re 25 MOTION for Summary Judgment Or, In The
Alternative, Preliminary Injunction filed by Janet M. Rainey. (Getchell, Earle)
(Entered: 10/24/2013)
10/24/2013 58 RESPONSE in Opposition re 25 MOTION fur Summary Judgment Or, In The
Alternative, Preliminary Injunction, 27 MOTION for Preliminary I11j1IDction filed by
George E. Schaefer, III( in his official capacity as the Clerk of Court fur N orfulk Circuit
Court). (Oakley, David) (Entered: 10/24/20 13)
10/24/2013 59 Memorandmn in Opposition re 40 MOTION for Summary Judgment, 38 MOTION
fur SlliillllllY Judgment filed by Timothy B. Bostic, Tony C. London, Carol Schall,
Mary Townley. (Lustig, Charles) (Entered: 10/24/2013)
10/28/2013 Notice of Correction re 59 Memorandmn in Opposition: Attorney notified that leave of
court may be needed to file the 59 Memorandmn in Opposition re 40 MOTION for
Summary judgment. Pursuant to Order entered on 8/30/2013 you have exceeded the
page limit for a response brief The proposed docmnent should not have exceeded 20
pages. Please refile docmnent 59; if necessary refile as an attachment to your motion
(rsim, ) (Entered: 10/28/2013)
10/28/2013 60 MemorandmninOppositionre 40 MOTION for Summary Judgment, 38 MOTION
fur Summary Judgment filed by Timothy B. Bostic, Tony C. London, Carol Schall,
Mary Townley. (Attachments:# 1 Table of Contents, Table of Authorities)(Lustig,
Charles) (Entered: 10/28/2013)
10/28/2013 61 NOTICE of Appearance by Mark Randolph Matney on behalf of The Family
FoiiDdation ofVirginia (Matney, Mark) (Entered: 10/28/2013)
10/28/2013 62 MOTION fur Leave to File by The Family FoiiDdation ofVirginia. (Attachments:# l
Exhibit Amicus Curiae B r i e ~ ~ Proposed Order)(Matney, Mark) (Entered:
10/28/2013)
10/29/2013 63 NOTICE of Appearance by Norman Allan Thomas on behalf of Janet M. Rainey
(Thomas, Norman) (Entered: 10/29/2013)
10/29/2013 64 MOTION for Leave to File Brief of Amici Curiae Professors in Support of
Defendants' Motions for Summary Judgment by Lynn D. Wardle, William C.
Dilllcan, Joseph P. Price, Robert A. Destro, Lynne Marie Kolnn (Attachments:# l
[Proposed] B r i e ~ ~ Proposed Order)(Mattox, Michael) (Entered: 10/29/2013)
10/31/2013 65 REPLY to Response to Motion re 38 MOTION fur Summary Judgment filed by Janet
M. Rainey. (Getchell, Earle) (Entered: 10/3112013)
10/31/2013 66 REPLY to Response to Motion re 25 MOTION for Summary Judgment Or, In The
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Alternative, Preliminary Injunction, 27 MOTION for Preliminary lnjlUICtion filed by
Tilmthy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Attaclnnents: # l
Table ofContents, Table ofAuthorities)(Lustig, Charles) (Entered: 10/31/2013)
11/01/2013 67 Financial Interest Disclosure Statement (Local Rule 7.1) by The Family F mmdation of
Virginia. (Matney, Mark) (Entered: 1110112013)
11/12/2013 MOTION REFERRED to Magistrate Judge Lawrence R. Leonard. 62 MOTION fur
Leave to File (rsirn,) (Entered: 11112/2013)
11/13/2013 68 NOTICE by Robert A. Destro, William C. DlUICan, Lynne Marie Kohm, Joseph P.
Price, Lynn D. Wardle re 64 MOTION for Leave to File Brief of Amici Curiae
Professors in Support of Defendants' Motions for Summary Judgment (Certificate
of Conference) (Mattox, Michael) (Entered: 11113/2013)
11117/2013 69 NOTICE by The Family Fmmdation ofVirginia re 62 MOTION fur Leave to File
(Matney, Mark) (Entered: 11/17/2013)
11120/2013 MOTION REFERRED to Magistrate Judge Lawrence R. Leonard. 64 MOTION fur
Leave to File Brief of Amici Curiae Professors in Support of Defendants' Motions
for Summary Judgment (rsirn,) (Entered: 11/20/2013)
12/03/2013 70 ORDER granting 62 as fullows: the proposed Amicus Curiae brief(ECF No. 62-1) by
The Family Fomdation ofVirginia in support ofDefendants' Motion for Summary
Judgment is accepted and deemed filed. Signed by District Judge Arenda L. Wright
Allen on 12/03/2013. (Allen, Arenda) (Entered: 12/03/2013)
12/03/2013 71 ORDER granting 64 , the Motion fur Leave to File Brief of Amici Curiae Professors in
Support ofDefendants' Motions fur Summary Judgment, as fullows: the proposed
Amici Curiae brief(ECF No. 64-1) by Lynn D. Wardle, William C. DlUICan, JosephP.
Price, Robert A. Destro, and Lynne Marie Kohm is accepted and deemed filed. Signed
by District Judge Arenda L. Wright Allen on 12/03/2013. (Allen, Arenda) (Entered:
12/03/2013)
12/20/2013 72 MOTION to Intervene by Michele McQuigg. (Attaclnnents: # 1 Declaration ofMichele
B. McQuigg in Support ofMotion to Intervene, # 2 Proposed Answer and Affirmative
Defenses oflntervenor-Defendant Michele B. McQuigg, # 3 Proposed Intervenor's
Motion fur Summary Judgment and Response in Opposition to PlaintiffS' Motion fur
S=ry Judgment,#: Request for Application to Qua!iJY as a Foreign
Attorney- Byron J. Babione, # Q. Application to Qua!iJY as a Foreign Attorney -
Kenneth J. Connelly)(Mattox, Michael) Modified on 1117/2014 to remove Attaclnnent
3, see Order ofl/17.14 (rsirn, ). (Entered: 12/20/2013)
12/20/2013 73 Memorandum in Support re 72 MOTION to Intervene filed by Michele McQuigg.
(Mattox, Michael) (Entered: 12/20/20 13)
12/23/2013 Motions Hearing set for 1/30/2014 at 09:00AM in Norfolk Courtroom3 befure
District Judge Arenda L. Wright Allen. (fuow) (Entered: 12/23/2013)
12/30/2013 74 NOTICE by Comnxmwealth OfVa., Janet M. Rainey (Withdrawal) (Getchell, Earle)
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(Entered: 12/30/2013)
Ol/03/2014 75 MOTION to Intervene by Michele McQuigg (ECF No. 72) is taken under advisement.
All brie:IS in opposition to this rmtionnrust be filed no later than January 7, 2014. A
Reply brief from Michael Mattox, counsel for the proposed Intervenor shall be ffied by
January 10, 2014. Shortly after that date, all counsel of record will be notified as to
whether oral argument on the rmtion to intervene will be heard on January 30 2014. If
Mr. Mattox, as counsel for the proposed Intervenor, wishes for other counsel to "qual.ilY
as a fureign attorney" in this matter, he nrust comply with Local Rule 83.1 and the online
instructions provided by the Clerk of the Court. Other attorneys who are not licensed to
practice in this District nrust first associate with local counsel and comply with the
Court's Local Rules befure they may appear, ffie, or otherwise participate as counsel in
this action. Signed by District Judge Arenda L. Wright Allen on 0 l/03/20 14. (Allen,
Arenda) (Entered: 01/03/2014)
Ol/06/2014 76 NOTICE of Appearance by Jordan Woodard Lorence on behalf ofMichele McQuigg
i (Lorence, Jordan) (Entered: 01/06/2014)
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Ol/06/2014
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Motion to appear Pro Hac Vice by Byron J. Babione and Certification of Local
CounselM. CaseyMattoxFilingfue $75, receipt number 0422-3802221. by Michele
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McQuigg. (Mattox, Michael) (Entered: Ol/06/2014)
01/06/2014 78 Motion to appear Pro Hac Vice by Kenneth J. Connelly and Certification of Local
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Counsel M. Casey Mattox Filing fue $ 75, receipt number 0422-3802271. by Michele
McQuigg (Mattox, Michael) (Entered: 01/06/2014)
01/06/2014
7!l.
NOTICE of Appearance by Michael Hugh Brady on behalf of Janet M. Rainey (Brady,
I Michael) (Entered: 01106/2014)
01/06/2014 80 Notice ofSubstitution of Counsel of Earle Duncan Getchell, Jr. by Michael Hugh Brady
on behalfofJanet M. Rainey (Brady, Michael) (Entered: 01/06/2014)
01/06/2014 81 NOTICE by Janet M. Rainey re 72 MOTION to Intervene (Consent to Intervention)
(Brady, Michael) (Entered: 0 l/06/20 14)
01/06/2014 82 NOTICE of Appearance by Jonathan Caleb Dahon on behalf ofMichele McQuigg
(Dahan, Jonathan) (Entered: 01106/2014)
Ol/07/2014 83 NOTICE of Appearance by Catherine Crooks Hill on behalf ofJanet M. Rainey (HiD,
Catherine) Modified - docmnent deleted as it was not PDF'd correctly on l/8/20 14
(afur). (Entered: Ol/07/2014)
01/07/2014 84 RESPONSE to Motion re 72 MOTION to Intervene ffied by Timothy B. Bostic, Tony
C. London, Carol SchaD, Mary Townley. (Lustig, Charles) (Entered: 01/07/20 14)
01/08/2014 Notice of Correction re 83 Notice of Appearance - The ffiing user has been notified that
docmnent [ 83 ] is an incorrectly saved PDF ffilable form and has been rermved. The
ffiing user was directed to reffie the docmnent.(afur) (Entered: Ol/08/2014)
01/08/2014 85 NOTICE of Appearance by Catherine Crooks Hill on behalf ofJanet M. Rainey (HiD,
Catherine) (Entered: 01/08/2014)
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01110/2014 86 ORDER granting 78 the Motion to appear Pro Hac Vice by Kenneth J. Connelly as
certified by Local Counsel M. Casey Mattox. Sigoed by District Judge Arenda L.
Wright Allen on 01/10/2014. (Allen, Arenda) (Entered: 01/10/2014)
01110/2014 87 ORDER granting 77 the Motion to appear Pro Hac Vice by Byron J. Babione as
certified by Local Cmmsel M. Casey Mattox. Sigoed by District Judge Arenda L.
Wright Allen on 01110/2014. (Allen, Arenda) (Entered: 01/10/2014)
01110/2014 88 REPLY to Response to Motion re 72 MOTION to Intervene filed by Michele
McQuigg. (Mattox, Michael) (Entered: 01110/2014)
01114/2014 89 NOTICE of Appearance by Stuart Alan Raphael on behalf of Janet M. Rainey
Stuart) (Entered: 01114/2014)
01115/2014 90 NOTICE by Janet M. Rainey [of Withdrawal of Counsel} (Thomas, Norman)
(Entered: 01115/2014)
01116/2014 Notice of Correction re 90 NOTICE: Counsel nrust file a motion to withdraw from a
case. Please file a Motion to Withdraw as counsel (rsirn,) (Entered: 01116/2014)
01/17/2014
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0 RDER granting in part 72 Motion to Intervene. Signed by District Judge Arenda L.
Wright Allen and filed on 1117/2014. (rsirn,) (Entered: 01117/2014)
01120/2014 92 ANSWER to Complaint by Michele McQuigg.(Mattox, Michael) (Entered:
01120/2014)
0112112014 93 MOTION to Withdraw as Attorney by Janet M. Rainey. (Thomas, Nonnan) (Entered:
0112112014)
0112112014 Refer for 16(b) (rsirn,) (Entered: 01121/2014)
01122/2014 94 Response to 21 Order on Motion to Intervene filed by Michele McQuigg. (Mattox,
Michael) (Entered: 01122/2014)
01/22/2014 95 NOTICE by Tirmthy B. Bostic, Tony C. London, Carol Schall, Mary Townley re 25
MOTION fur Surmnary Judgment Or, In The Alternative, Preliminary Injunction of
Supplemental Authority (Attachments:# 1 Exhibit SmithKline v. Abbott (9th Cir.
2014))(Lustig, Charles) (Entered: 01/22/2014)
01123/2014 96 NOTICE by Janet M. Rainey re 25 MOTION fur Surmnary Judgment Or, In The
Alternative, Preliminary Injunction, Set Motion and R&R Deadlines/Hearings, 40
MOTION fur Surmnary Judgment, 38 MOTION for Surmnary Judgment of Change
in Legal Position (Attachments:# 1 Memorandmn In Support, # 2 Table of
Stuart) (Entered: 01/23/2014)
01123/2014 97 Amended ANSWER to Complaint [Amended (18)] by Janet M.
Stuart) (Entered: 01123/2014)
01123/2014 98 MOTION to Withdraw as Attorney by Janet M. Rainey. (Brady, Michael) (Entered:
01123/2014)
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01/23/2014 99 0 RDER taking mder adviserrnnt 25 , Plaintiffi' Motion fur Surmnary Judgment. All
pending motions fur surmnary judgment are taken mder adviserrnnt. In light of the
compelling Notice from the Office of the Attorney General ofVirginia indicating that the
Attorney General has concluded that Virginia's laws denying the right to marry to sarrn-
sex couples violate the Fmnteenth Arrnndrrnnt to the United States Constitution,
co\IDSel for the parties and the Intervenor are ordered to file Status Reports addressing:
( 1) whether oral argument on the issues presented remains warranted, or whether the
Court should instead rule promptly on the brie:IS without a hearing; (2) if oral argument is
desired by a party or Intervenor, the requested scope and duration of that party's
argument (with the mderstanding that duplicative or cumulative arguments are strongly
discouraged); and (3) whether, in light of the change of position by the Attorney
any parties or other entities have gromds to present argument that the laws
denying the right to marry to sarrn-sex couples should be construed as constitutional
Additionally, the Intervenor and Defundant Schaefur, ill, are ordered to each file
supplerrnntal briefing not to exceed five pages responding to the Virginia Attorney
Generafs position that the laws at issue are unconstitutional The Status Reports from
the parties and the Intervenor are ordered to be filed no later than 3 PM Friday, January
24, 2014. The Court will determine whether the hearing scheduled fur January 30, 2014
should be held and, if so, its scope and duration, upon receipt of these Reports. The
supplerrnntal briefing by the Intervenor and Defundant Schaefur, III shall be filed no
later than noon on January 27, 2014. Signed by District Judge Arenda L. Wright Allen
onOl/23/2014. (Allen, Arenda) (Entered: 01/23/2014)
01/23/2014 Notice of Correction re 9]_ Answer to Complaint: The Notice of Correction regarding
this docurrnnt was posted in error by the Clerk's Office and has been removed from the
docket. (Entered: 01/23/2014)
01/23/2014 100 NOTICE of Appearance by Mary Elizabeth McAlister on behalf of Liberty
Inc (McAlister, Mary) (Entered: 01/23/2014)
01/23/2014 101 NOTICE of Appearance by Mary Elizabeth McAlister on behalf ofLiberty
01/23/2014 102 NOTICE of Appearance by Mary Elizabeth McAlister on behalf of Liberty
01/23/2014 103 MOTION fur Leave to File Amicus Curiae Brief on behalf of Liberty Counsel by
Liberty Inc. (Attachments:# l Proposed Order)(McAlister, Mary) (Entered:
01123/2014)
01/23/2014 104 Motion to appear Pro Hac Vice by Mathew D Staver and Certification of Local
CoiiDSel Richard L Mast Filing fue $ 75, receipt number 0422-3825988. by Liberty
Inc. (McAlister, Mary) (Entered: 01/23/20 14)
01/24/2014 Notice of Correction re 102 Notice of Appearance, 101 Notice of Appearance: The
signature blocks on the docurrnnts do not match the filing users logins. The filing user
has been notified and has been asked to either refile the docurrnnt or to have the
attorney whose signature block appears on the docurrnnts refile the docurrnnt. (rsim, )
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(Entered: 01124/20 14)
01124/2014 lQ5. STATUS REPORT by George E. Schaefer, III. (Oakley, David) (Entered:
01124/2014)
01124/2014
1M
NOTICE of Appearance by Mary Elizabeth McAlister on behalf ofLiberty CmmseL
Inc (McAlister, Mary) (Entered: 01124/2014)
01124/2014 lQ1 NOTICE of Appearance by Mary Elizabeth McAlister on behalf of Liberty ColiDSeL
Inc (McAlister, Mary) (Entered: 01124/20 14)
01124/2014 108 NOTICE of Appearance by Trevor Stephen Cox on behalf of Janet M. Rainey (Cox,
Trevor) (Entered: 01/24/2014)
01124/2014
lQ2
STATUS REPORT by Michele McQuigg. (Mattox, Michael) (Entered: 01124/20 14)
01124/2014 Notice ofCorrectionre 104 Motion to appear Pro Hac Vice by Mathew D Staver: The
signature block on the docmnent does not match the filing users login. The filing user has
been notified and has been asked to either refile the docmnent or to have the attorney
whose signature block appears on the docmnent refile the docmnent. ColiDSel is also
advised that the comt has a prefurred filing method and provides a fillable form fur Pro
Hac Vice motions. The form can be fuund on the Comt's website under attorney furrns.
Please call the clerk's office befure re-filing for further instructions. (tlev, ) (Entered:
01/24/2014)
01/24/2014
llll.
STATUS REPORT by Janet M. Rainey. (RaphaeL Stuart) (Entered: 01/24/2014)
01124/2014 111 STATUS REPORT by Timothy B. Bostic, Tony C. London, Carol Schall, Mary
Townley. (Lustig, Charles) (Entered: 01124/2014)
01124/2014 112 ORDER denying 103, the Motion fur Leave to File an Amicus Curiae Brief on behalf
of Liberty ColiDSel The Motion is denied as untimely. The moving entity was advised on
August 12, 2013 that the Office of the Virginia Attorney General did not then object to
its filing an amicus brief The entity did not seek permission to participate in this case
until one week befure oral argument on dispositive motions. The entity's fuilure to act fur
more than five months, and its fuilure to explain this delay, establish grounds for denying
its request. Moreover, this entity Jailed to include a proposed brief with its motion,
precluding any evaluation from the Comt to determine whether the entity's arguments
might be new or useful Signed by District Judge Arenda L. Wright Allen on
01124/2014. (Allen, Arenda) (Entered: 01/24/2014)
01/24/2014
ill.
Motion to appear Pro Hac Vice by David Austin Robert N imocks and Certification of
LocalColiDSe1M. CaseyMattoxFilingfue $75, receiptnumber0422-3827956. by
Michele McQuigg. (Mattox, Michael) (Entered: 01124/2014)
01127/2014 Notice of Correction re 106 Notice of Appearance, lQ1 Notice of Appearance: The
signature blocks on the docmnents do not match the filing users logins. The filing user
has been notified and has been asked to have the attorney whose signature block
appears on the documents refile the docmnent. (rsim,) (Entered: 01127/2014)
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01127/2014 114 Reply to 96 NOTICE, of Change in Legal Position filed by George E. Schaeier, IIL
(Oakley, David) (Entered: 01127/2014)
01127/2014 115 ORDER that Intervenor-Defundant Michele B. McQuigg's request is GRANTED, and
bythis Order, Intervenor is permitted to adopt the Motion (ECF No. 3 8) and briefing
(ECF Nos. 44 and 65) as requested. Signed by District Judge Arenda L Wright ADen
and filed on 1/27/2014. (rsim,) (Entered: 01127/2014)
01127/2014 116 Response to 96 NOTICE, filed by Michele McQuigg. (Mattox, i c h a e ~ (Entered:
01127/2014)
01/27/2014 117 ORDER taking 27 Plaintiffi;' Motion for a Preliminary Injunction, and all motions for
sunnnary judgment, under advisement. Following review of the parties' status reports
and the supplemental briefing now filed, the Court confirms that oral argt.nrent on the
sw:nmary judgment motions and the motion for a preliminary injunction will be heard
commencing at 9 AM on Thursday, January 30, 2014, in Courtroom 1bree. Counsel
are advised that no Internet connections are permitted in the Courthouse. No electronic
equipment is permitted in the Courthouse, unless prior written approval is requested by
counsel for a party to the action, and approval is subsequently granted in writing by the
Court. Written requests for equipment approval nrust be received no later than 3 PM
Tuesday, January 28,2014, and nrust include specific descriptions of the equipment fur
which approval is sought, and the purpose fur which that equipment will be used during
oral argt.nrent. NOTE-- the Court sets the following Order of Presentation for oral
argt.nrent at the hearing: Counsel fur Plaintiffi; present opening argt.nrent fur no more
than twenty minutes; Counsel fur Defuudant Rainey present argt.nrent for no more than
twenty minutes; Counsel fur Defundant Schaefer, III, present argt.nrent fur no more than
thirty minutes; Counsel fur Intervenor McQuigg present argt.nrent fur no more than thirty
minntes; Counsel fur Amicus The Family Foundation ofVirgioia present argt.nrent for no
more than thirty minntes; Counsel fur Amici Profussors in Support ofDefundants'
Motions for Sw:nmary Judgment present argt.nrent fur no more than thirty minutes;
Counsel fur Plaintiffi; present rebuttal fur up to ten minntes; and Counsel fur Defundant
Rainey present rebuttal fur up to ten minutes. Counsel are advised that duplicative or
currrulative argwnent is strongly discouraged. The pending motions will be taken under
further advisement at the close of the hearing. Signed by District Judge Arenda L
Wright Allen on 01127/2014. (ADen, Arenda) (Entered: 01127/2014)
01127/2014 118 NOTICE by Robert A. Destro, William C. Duncan, Lynne Marie Kohrn, Joseph P.
Price, Lynn D. Wardle re 117 Order on Motion for Preliminary Injunction,,,,,
(Mattox, Michael) (Entered: 01127/2014)
01127/2014 119 NOTICE by Michele McQuigg re 117 Order on Motion for Preliminary Injunction,,,,,
Presentment of Oral Argument (Mattox, i c h a e ~ (Entered: 01/27/2014)
-------
01/27/2014 120 NOTICE by Michele McQuigg re 117 Order on Motion fur Preliminary Injunction,,,,,
Request for Use of a Laptop Computer at Counsels' Table (Mattox, i c h a e ~
(Entered: 01/27/2014)
01/27/2014 121 NOTICE by The Family Foundation ofVirgioia re 117 Order on Motion fur Preliminary
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Injmction,,,,, (Matney, Mark) (Entered: 01127/2014)
01/28/2014 122 NOTICE by George E. Schaefer, III re 117 Order on Motion fur Preliminary
Injmction,,,,,for Request to Use Laptop Computer at Oral Argument (Oakley,
David) (Entered: 01/28/20 14)
01128/2014 123 NOTICE of Appearance by Jennifer Jesusa Truitt on behalf of Robert A. Destro,
William C. Dllllcan, Lynne Marie Kohm, JosephP. Price, Lynn D. Wardle (Truitt,
Jennifer) (Entered: 01/28/2014)
01128/2014 124 MOTION to Withdraw as Attorney by Robert A. Destro, William C. Dllllcan, Lynne
Marie Kohm, JosephP. Price, Lynn D. Wardle. (Mattox, Michael) (Entered:
01128/2014)
01128/2014 125 ORDER granting 93 , the Motion to Withdraw as Attorney as advanced by attorney
Norman Allan Thomas. It is within the solllld discretion of the Court to grant attorney
withdrawals in civil cases. Huang v. Bd. of Governors ofUniv. ofN .C., 902 F .2d 1134,
1142 (4th Cir. 1990). Defendant Rainey is not disadvantaged by this withdrawal as she
will continue to be represented by the Solicitor e n e r a ~ among others. Mr. Thomas's
representation is tenninated. Signed by District Judge Arenda L. Wright Allen on
0 1128/20 14. (Allen, Arenda) (Entered: 01128/2014)
01128/2014 126 ORDER granting 98 , the Motion to Withdraw as Attorney as advanced by attorney
Michael Hugh Brady. It is within the solllld discretion of the Court to grant attorney
withdrawals in civil cases. Huang v. Bd. of Governors ofUniv. ofN .C., 902 F .2d 1134,
1142 (4th Cir. 1990). Mr. Brady has provided adequate justification fur his withdrawal
Defendant Rainey is not disadvantaged by this withdrawal as she will continue to be
represented by the Solicitor e n e r a ~ among others. Mr. Brady's representation is
tenninated. Signed by District Judge Arenda L. Wright Allen on 01/28/2014. (Allen,
Arenda) (Entered: 01128/2014)
01/29/2014 127 NOTICE by Robert A. Destro, William C. Dllllcan, Lynne Marie Kohm, Joseph P.
Price, Lynn D. Wardle re 117 Order on Motion fur Preliminary Injlll1Ction,,,, (Truitt,
Jennifer) (Entered: 01129/2014)
01129/2014 128 ORDER ADVISING ALL COUNSEL that due to inclement weather, the Courthouse
will be CWSED on Thursday, January 30, 2014. The hearing set for oralargmnent on
pending dispositive motions in this matter is CONTINUED. The hearing will be re-
scheduled in February as soon as practicable. Signed by District Judge Arenda L.
Wright Allen on 01/29/2014. (Allen, Arenda) (Entered: 01/29/2014)
0113112014 Reset Motions Hearing for 2/4/2014 at 10:00 AM inNorfulk Courtroom4 befure
DistrictJudge Arenda L. Wright Allen. (lliow) (Entered: 01131/2014)
------
0113112014 129 ORDER granting 113 , the Motion to appear Pro Hac Vice by David Austin Robert
Nirnocks as certified by Local CollllSel M. Casey Mattox. Signed by District Judge
Arenda L. Wright Allen on 0113112014. (Allen, Arenda) (Entered: 01/3112014)
02/03/2014 130 NOTICE of Appearance by Rhodes Beahm Ritenour on behalf of Janet M. Rainey
(Ritenour, Rhodes) (Entered: 02/03/2014)
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02/03/2014 Notice of Correction re 130 Notice of Appearance: The filing user bas been notified that
doclll'Il!nt 130 was incorrectly saved as a PDF fillable form and bas been removed. The
filing user was directed to refile the doclll'Il!nt (rsim, ) (Entered: 02/03/20 14)
02/04/2014
ill
MOTIONS HEARING held before District Judge Arenda L. Wright Allen on
2/4/2014: Theodore Olson, David Boies and Thomas Shuttleworth present on behalf of
the PlaintiffS; Stuart Raphael present on behalf of the Defundant, Janet M. Rainey; David
Oakley present on behalf of the Derendant, George E. Scbaefur, III. Austin Nimocks
present on behalf of the Intervenor-defundant, Michele McQuigg. Matter came on re 25
MOTION fur Surmmry Judgment 27 MOTION for Preliminary lnjmction 40
MOTION fur Surmmry Judgment and 38 MOTION for Surmmry Judgment.
Arguments of comsel heard. Court to take matter mder advisement. Court adjourned.
(Court Reporter Tamora Tichenor. )(lliow) (Entered: 02/04/2014)
02/06/2014
m
TRANSCRIPT of proceedings held onFebruary4, 2014, before Judge Arenda Wright
Allen, Court Reporter/Transcriber Tami Tichenor, Telephone number 757 222-7078.
NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30)
calendar days to file with the Court aN otice of Intent to Request Redaction of
this transcript. If no such Notice is filed, the transcript will be made remotely
electronically available to the public without redaction after 90 calendar days.
The policy is located on our website at www.vaed.uscourts.gov Transcript may
be viewed at the court public tenninal or purchased through the court
reporter/transcriber before the deadline for Release of Transcript Restriction.
After that date it may be obtained through PACER Redaction Request due
3/10/2014. Redacted Transcript Deadline set for 4/8/2014. Release of
Transcript Restriction set for 5/7/2014.(tichenor, tamora) (Entered: 02/06/2014)
02/12/2014
ill
NOTICE of Appearance by Rhodes Beahm Ritenour on behalf ofJanet M. Rainey
(Ritenour, Rhodes) (Entered: 02/12/2014)
02/12/2014
rn
NOTICE by Janet M. Rainey re 25 MOTION fur Surmmry Judgment Or, In The
Alternative, Preliminary Injunction, 96 NOTICE, 40 MOTION fur Summary
Judgment, 38 MOTION for Surmmry Judgment Notice of Supplemental Authority
(Attachments:# 1 Exhibit Defundant-Appellee Governor ofNevada, Motion fur Leave
to Withdraw Brief; Sevcik v. SandovaL No. 12-17668 (9thCir. Feb. 10, 2014), # 2
Exhibit Bourke v. Beshear, No. 3:13-CV-750-H (W.D. Ky. Feb. 12, 2014))(RapbaeL
Stuart) (Entered: 02/12/2014)
-------
02/13/2014
ill
The Court GRANTS PlaintiffS' Motion fur Surmmry Judgment (ECF No. 25),
GRANTS PlaintiffS' Motion fur Preliminary Injmction (ECF No. 27) and DENIES
Defundant Schaefer's and Intervenor-Defundant's Motions for Summary Judgment
(ECF Nos. 38 and 40). The Court ENJOINS the Commonweahh from enfurcing
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
personofthe same gender. The Court finds Va. Canst. 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 oflawful same-sex marriages from other jurisdictions
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unconstitutional These laws deny Plaintiffi their rights to due process and equal
protection guaranteed under the FourteenthAmendtrent of the United States
Constitution In accordance with the Supretre 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. Counsel fur Plaintiffi, Defundants, and Intervenor-Defundant
are ordered to file proposed Judgtrents fur the Court's consideration These proposals
shall be filed by March 14,2014. IT IS SO ORDERED. Signed by District Judge
Arenda L. Wright Allen and filed on2/13/14. Copies distributed to all parties 2/13/14.
(!dab, ) (Entered: 02/13/2014)
02/14/2014 136 AMENDED OPINION AND ORDER: The Court GRANTS Plaintiffi' Motion fur
Sllllllilliy Judgtrent (ECF No. 25), GRANTS Plaintiffi' Motion fur Preliminary
Injunction(ECF No. 27) and DENIES Defundant Schaefur's and Intervenor-
Defundanfs Motions for Sllllllilliy Judgtrent (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 satre gender. The Court finds Va.
Const. Art. I, 15-A, Va. Code 20-45.2, 20-45.3, and any other Virginia law that
bars Satre-sex marriage or prolnbits Virginia's recognition oflawful satre-sex marriages
from other jurisdictions unconstitutional These laws deny Plaintiffi their rights to due
process and equal protection guaranteed under the Fourteenth Atrendtrent of the
United States Constitution In accordance with the Supretre 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. Counsel fur Plaintiffi, Defundants, and Intervenor-Defundant
are ordered to file proposed Judgtrents fur the Court's consideration These proposals
shall be filed by March 14, 2014. IT IS SO ORDERED. Signed by District Judge
Arenda L. Wright Allen and filed on2/14/14. Copies distributed to all parties 2/14/14.
(!dab,) (Entered: 02/14/2014)
02/21/2014 137 NOTICE by Janet M. Rainey of Agreed Form of Judgment (Attachments:# 1
Judgtrent)(RaphaeL Stuart) (Entered: 02/2112014)
02/24/2014 138 ORDER granting 124 ORDER grantingECF No. 124, the Motion to Withdraw as
Attorney as advanced by attorney M. Casey Mattox and Byron J. Babione. It is within
the sound discretion of the Court to grant attorney withdrawals in civil cases. Huang v.
Bd. of Governors ofUniv. ofN.C., 902 F.2d 1134, 1142 (4th Cir. 1990). Amici
Professors Robert A. Destro, William C. Duncan, Lynne Marie Kolnn, Joseph P. Price,
Lynn D. Wardle are not disadvantaged by this withdrawal as they will continue to be
represented by Jennifer J. Truitt. Representation by Mr. Mattox and Mr. Babione is
terminated. Signed by District Judge Arenda L. Wright Allen on 2/24/2014. (Allen,
Arenda) (Entered: 02/24/2014)
02/24/2014 139 JUDGMENT that Virginia's marriage laws are fucially unconstitutional under the Due
Process and Equal Protection Clauses of the Fourteenth Atrendmcnt to the United
States Constitution to the extent they deny the rights of marriage to satre-sex couples or
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recognition of lawful marriages between same-sex couples that are validly entered into in
other jurisdictions. The Clerk of the Circuit Court of the City ofNorfulk, the Clerk of
the Circuit Court ofPrince William Collllty, and their officers, agents, and employees,
and the officers,agents, and employees of the Commonweahh ofVirginia including the
State Registrar ofVitalRecords are ENJOINED fromenfurcing: Article I, 15-A, of
the Constitution ofVirginia; Virginia Code 20-45.2; Virginia Code 20-45.3; and
any other Virginia law if and to the extent that it denies to same-sex couples the rights
and privileges of marriage that are affOrded to opposite-sex couples. Signed by District
Jndge Arenda L. Wright Allen and filed on 2/24/2014. (rsim, ) (Entered: 02/24/20 14)
02/24/2014 140 NOTICE OF APPEAL as to 139 Jndgment,, by George E. Schaefur, ill. Filing fue $
505, receipt number 0422-3863266. (Oakley, David) (Entered: 02/24/2014)
02/24/2014 141 NOTICE OF APPEAL by Janel M. Rainey. Filing fee $ 505, receipt number 0422-
3863332. (Raphael, Stuart) (Entered: 02/24/2014)
02/24/2014 142 Transmission ofN otice of Appeal to US Court of Appeals re 140 Notice of Appeal
(All case opening furms, plus the transcript guidelines, may be obtained from the Fourth
Circuit's website at www.ca4.uscourts.gov) (bgra) (Entered: 02/25/2014)
02/24/2014 143 Transmission ofN otice of Appeal to US Court of Appeals re 141 Notice of Appeal
02/25/2014 144 NOTICE OF APPEAL as to 136 Order,,, 139 Jndgment,, 135 Order on Motion
for Summary Jndgment, Order on Motion fur Preliminary Injunction,,,,,,,,,,,,,, by
Michele McQuigg. Filing fue $ 505, receipt number 0422-3865159. (Dahon, Jonathan)
(Entered: 02/25/2014)
----
02/25/2014 145 USCA Case Number 14-1167 4CCA- Case Manager RJ Warren fur l1Q. Notice of
Appeal filed by George E. Schaefur, III. (14-1167) (bgra) (Entered: 02/26/2014)
02/25/2014 146 USCA Case Number 14-1169 4CCA- Case Manager RJ Warren for 141 Notice of
Appeal filed by Janet M. Rainey. (14-1169) (bgra) (Entered: 02/26/20 14)
02/25/2014 147 ORDER ofUSCA as to 140 Notice of Appeal filed by George E. Schaefur, lll, 141
Notice ofAppea1 filed by Janet M. Rainey. The court consolidates Case No. 14-1167
and Case No. 14-1169. Entry of appearance furms and disclosure statements filed by
counsel and parties to the lead case are deemed filed in the secondary case. (14-1167)
(bgra) (Entered: 02/26/2014)
02/25/2014 148 Transmission ofN otice of Appeal to US Court of Appeals re 144 Notice of Appeal,
02/26/2014 149 ORDER ofUSCA as to 140 Notice of Appeal filed by George E. Schaefur, ill, 141
Notice of Appeal filed by Janet M. Rainey, 144 Notice of Appeal, filed by Michele
McQuigg: The court consolidates Case No. 14-1167(L) and Case No. 14-1173. (rsim,
) (Entered: 02/27/2014)
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Case 2:13-cv-00395-AWA-LRL Document 1 Filed 07/18/13 Page 1 of 12 PageiD# 1
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA-NORFOLK DIVISION
TIMOTHY B. BOSTIC,
and
TONY C. LONDON,
Plaintiffs,
v.
ROBERT F. MCDONNELL, in his official
capacity as Governor of Virginia, and
KENNETH T. CUCCINELLI, in his official
capacity as Attorney General of Virginia, and
GEORGE E. SCHAEFER, III, in his official
capacity as the Clerk of Court
for Norfolk Circuit Court,
Defendants.
riCC:J
----------'1
CASE NO. .d: 13cv ~ 1 S
COMPLAINT FOR DECLARATORY. INJUNCTIVE AND OTHER RELIEF
Plaintiffs Timothy B. Bostic ("Bostic"") and Tony C. London ("London"), by counsel,
complain of Defendants and allege the following.
INTRODUCTION
I. 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. Article I, 15-A of Virginia's Constitution provides that "only a union between one
35
man and one woman may be a marriage valid in or recognized by this Commonwealth and its
political subdivisions." Va. Const., Art I, 15-A. Similarly, Va. Code 20-45.2 states that a
"marriage between persons of the same sex is prohibited" in the Commonwealth ofVirginia.
This code section also states that "[a]ny marriage entered into by persons of the same sex in
another state or jurisdiction shall be void in all respects in Virginia and any contractual rights
created by such marriage shall be void and unenforceable." Virginia law also prohibits civil
unions among same-sex individuals. Va. Code 20-45.3. 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.
2. For these reasons, Plaintiffs ask this Court to enjoin, preliminarily and
permanently, all enforcement of statutes that seek to exclude gays and lesbians from access to
civil marriage and civil union.
JURISDICTIQN AND VENUE
3. This case raises questions under the Constitution of the United States and 42
U.S.C. 1983, and, thus, this Court has jurisdiction over all claims for relief pursuant to 28
u.s.c. 1331.
4. Venue is proper in this Court pursuant to 28 U.S.C. 139l(b) because all
Defendants reside in the State of Virginia and in the Eastern District of Virginia. Venue is also
proper in this Court because a substantial part of the events giving rise to the claim occurred in
this district.
2
36
NATURE OF DISPUTE
5. This action, brought pursuant to 42 U.S.C. 1983, seeks (l) a declaration that
Virginia Code 20-45.2 and 20-45.3 and Article I, IS-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 provision against Plaintiffs.
6. Plaintiffs Bostic and London are gay individuals in a long-standing committed
relationship. Plaintiffs have been in this relationship since 1989. Plaintiff London served in the
United States Navy and has been a real estate sales agent/realtor for 16 years. Plaintiff Bostic is a
professor of humanities at Old Dominion University in Norfolk, Virginia. Bostic and London
desire to express their love for and commitment to one another by getting married and obtaining
official sanction for their union from the Commonwealth. Bostic and London sought to obtain a
marriage license from the Clerk of the Circuit Court for the city ofNorfolk on or about July 1,
2013, but were turned down because of the Virginia statute and the Virginia Constitution.
1. To enforce the rights afforded by the United States Constitution, Plaintiffs bring
this suit pursuant to 42 U.S.C. 1983 for declaratory and injunctive relief barring enforcement of
Va. Code 25-45.2 and 20-45.3 and Article I, 15-A of the Virginia Constitution. Plaintiffs
also seek to recover all their attorneys' fees, costs, and expenses incurred in this action and any
other relief that this Court may order and deem appropriate.
3
37
THE PARTIES
8. Plaintiff Bostic is a Virginia citizen and resides in Norfolk, Virginia.
9. Plaintiff London is a Virginia citizen and resides in Norfolk, Virginia.
10. Defendant Robert F. McDonnell is the Governor of the Commonwealth of
Virginia. In his official capacity, the Governor is the chief executive officer of the
Commonwealth of Virginia. It is his responsibility to ensure that the laws of the Commonwealth
are properly enforced. The Governor resides in Richmond, Virginia, in the Eastern District of
Virginia, and maintains an office in Norfolk, Virginia.
11. Defendant Kenneth T. Cuccinelli is the Attorney General of the Commonwealth
of Virginia. In his official capacity, the Attorney General is the chieflegal officer of the
Commonwealth of Virginia. It is his duty to see that the laws of the Commonwealth are
uniformly and adequately enforced. The Attorney General lives in Richmond, Virginia, in the
Eastern District of Virginia, and maintains an office in Norfolk, Virginia.
12. Defendant George E. Schaefer, III, is the Clerk of the Circuit Court for the City of
Norfolk. Pursuant to Va. Code 20-14, "[e]very license for marriage shall be issued by the clerk
or deputy clerk of a circuit court of any county or city." Therefore, Defendant Schaefer, in his
official capacity as clerk, has the duty to issue marriage licenses in Norfolk, Virginia to residents
of his city seeking to marry.
FACTS
13. Gay and lesbian individuals have faced a long and painful history of societal and
government -sponsored discrimination in this country. Although their sexual orientation bears no
relation to their ability to contribute to society, gays and lesbians have been singled out for
4
38
discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual
conduct between consenting adults, harassment, hate crimes, and discrimination in employment
and many other areas. They have even been the subject of laws stripping them of rights afforded
to all other citizens.
14. Since at least 1975, pursuant to Va. Code 20-45.2, same-sex couples have been
denied marriage licenses on account of their sexual preference and on account of their gender. In
November 2006, Virginia voters ratified a constitutional amendment to their Bill of Rights
expressly depriving gay and lesbian voters of the right to marry.
15. Virginia's statutory and constitutional regime have created a legal system in which
civil marriage is restricted solely and exclusively to opposite-sex couples, and in which gay and
lesbian individuals are denied the right to enter into a civil marriage with the person of their
choice. Virginia law, unlike the law in many other states, even prohibits gay and lesbian couples
from entering into civil unions. Virginia law also fails to honor the laws of thirteen other states
and the District of Columbia, which allow for same-sex marriage, by providing that such
marriages are "void in all respects" and by stipulating that any contractual rights from such valid
marriages "are void and unenforceable" in the Commonwealth of Virginia The inability to
marry denies gay and lesbian individuals and their children the personal and public affirmation
that accompanies marriage. The inability to marry also deprives same-sex couples of numerous
benefits associated with marriage including, without limitation, 1) marital, disability and
survivor's benefits under the federal social security system; 2) naval disability benefits; 3)
favorable tax treatment under Virginia and federal law for income and estate taxes; 4) federal
Medicaid benefits; 5) immigration benefits; and 6) federal Veterans Administration benefits.
5
39
Upon information and belief, all of these benefits are not available to Plaintiffs and other same-
sex couples in Virginia, but would be available to same-sex couples who marry under state laws
authorizing such benefits. The avowed purpose of this statutory and constitutional regime is "to
impose a disadvantage, a separate status, and so a stigma upon", those who seek to enter into
same-sex marriage in Virginia. See United States v. Windsor, 570 U.S. __ (2013Xslip opinion
at 21).
16. Plaintiffs are gay residents ofVirginia who are involved in a long-term, serious
relationship with each other dating to 1989 who desire to marry each other under the laws of the
Commonwealth. They are now prohibited from doing so as a direct result of Defendants'
enforcement ofVa. Code 20-45.2 and Article I, IS-A of the Constitution of Virginia.
17. On or about July l, 2013, Plaintiffs Bostic and London applied for a marriage
license from the Clerk for the Circuit Court for the city of Norfolk , but were denied a marriage
license because they are a same-sex couple.
18. As a result of both state statute and state constitutional law, Plaintiffs are barred
from marrying the individual they wish to marry, cannot enter into the separate-but-unequal bond
of a civil union, and cannot marry in another state and have Virginia recognize the benefits of
such unions.
19. Plaintiffs' inability to have their relationship recognized by the Commonwealth of
Virginia with the dignity and respect accorded to married opposite-sex couples has caused them
significant hardship, including, but not limited to, the deprivation of rights guaranteed by the
Fourteenth Amendment to the United States Constitution and severe humiliation, emotional
distress, pain, suffering, psychological harm, and stigma. The prohibition on marriage also
6
40
makes it very difficult to conduct basic estate planning. Marriage is a supremely important social
institution, and the "freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men." Loving v. Virginia, 388 U.S. at 12.
The United States Supreme Court has called marriage "the most important relation in life."
Zablocki v. Redhail, 434 U.S. 374, 384 (1978). Each day that Plaintiffs are denied the freedom to
marry, they suffer irreparable harm as a direct result of Defendants' violation of their
constitutional rights.
20. If the Court does not enjoin Va. Code 20-45.2 and 20-45.3 and Article I, 15-
A of the Virginia Constitution, Defendants will continue to enforce this unconstitutional law
against Plaintiffs, thereby depriving them of their constitutional rights under
the Fourteenth Amendment to the United States Constitution. The declaratory and injunctive
relief sought by Plaintiffs, on the other hand, will require Virginia to revise official state law and
procedures governing marriage and will require the Commonwealth to issue Bostic and London a
marriage license. The relief sought also will require Defendants McDonnell, Cuccinelli and
Schaefer to recognize Plaintiffs' marriage as valid within the Commonwealth of Virginia.
CLAIMS FOR RELIEF
COUNT ONE: DUE PROCESS
21. Plaintiffs incorporate here by reference paragraphs 1 through 20, supra, as if
fully set forth herein.
22. Va. Code 20-45.2 and 20-45.3 and Va. Const. Art I, 15-A violate
fundamental liberties that are protected by the Due Process Clause, both on their face and as
applied to Plaintiffs.
7
41
23. These laws impinge on fundamental liberties by denying gay and lesbian
individuals the opportunity to marry civilly and enter into the same officially sanctioned family
relationship with their loved ones as opposite-sex individuals. For example, by denying those
individuals the same "marriage"designation afforded to opposite-sex couples, and even
disallowing them access to the separate, but unequal, status of" civil unions", the
Commonwealth of Virginia is stigmatizing gays and lesbians, as well as their children and
families, and denying them the same dignity, respect, and stature afforded officially recognized
opposite-sex family relationships. Virginia statutory and constitutional law, thus, deprive
Plaintiffs of their liberty without due process of law in violation of the Fourteenth Amendment to
the United States Constitution.
COUNT TWO: EOUAL PROTECTION
24. Plaintiffs incorporate here by reference paragraphs 1 through 23, supra, as if
25. Va. Code 20-45.2 and 20-45.3 and Va. Const. Art I, 15-A violate the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution, both on their
face and as applied to Plaintiffs.
26. These laws restrict civil marriage to individuals of the opposite sex; gay and
lesbian individuals are therefore unable to marry the person of their choice. Thus, Virginia law
treats similarly-situated people differently by providing civil marriage to heterosexual couples,
but not to gay and lesbian couples. The United States Constitution's guarantee of equality under
the Fourteenth Amendment "must at the very least mean that a bare (legislative) desire to harm a
politically unpopular group cannot justifY disparate treatment of that group." Windsor, Slip Op. at
8
42
21. These provisions in the Virginia Code and in the Bill of Rights of the Constitution of
Virginia "write[] inequality into the entire" Code of Virginia Id at 22. These provisions
"demean" those who seek to enter into same-sex marriage and "instruct[ ]" all state officials, and
"indeed all persons with whom same-sex couples interact, including their own children, that
their" desire to marry is "less worthy than the marriages of others." Id at 25. Virginia law even
disallows the separate-but-unequal status of civil unions and refuses to grant any legal effect to
marriages lawfully entered into in other states. Gays and lesbians are, therefore, unequal in the
eyes of state law, and their families are denied the same respect as officially sanctioned families
of opposite-sex individuals. By purposefully denying civil marriage to gay and lesbian
individuals, Virginia's ban on same-sex marriage discriminates on the basis of sexual orientation.
27. 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."
28. Same-sex couples and opposite sex couples are similarly situated for purposes of
Equal Protection analysis.
29. Whether under a heightened scrutiny analysis, or under a more lenient rational
relation analysis, these provisions of Virginia law and the Virginia Constitution do not hear any
relation to a legitimate governmental purpose and, thus, violate the Equal Protection clause of the
Fourteenth Amendment to the United States Constitution.
30. These laws also violate the Equal Protection Clause because they discriminate on
9
43
the basis of sex. These laws distinguish between couples consisting of a man and a woman and
couples consisting of individuals of the same sex. Thus, the limitation on civil marriage depends
upon an individual person's sex; a man who wishes to marry a man may not do so because he is a
man, and a woman may not marry a woman because she is a woman.
COUNT THREE: VIOLATION OF 42 U.S.C. 1983
31. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 30, supra,
as if fully set forth herein.
32. Insofar as they are enforcing the terms ofVa. Code 20-45.2 and 20-45.3, and
Article I, 15-A of the state constitution, Defendants, acting under the color of state law, are
depriving, and will continue to deprive, Plaintiffs of numerous rights secured by the Due Process
and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution in
violation of42 U.S.C. 1983.
URREPARABLEINJURY
33. Plaintiffs incorporate here by reference paragraphs 1 through 32, supra, as
if fully set forth herein.
34. Plaintiffs are now severely and irreparably injured by the challenged state laws
that violate the Due Process and Equal Protection clauses of the Fourteenth Amendment. By way
of example only, Plaintiffs' injury as a result of these discriminatory laws includes the
deprivation of rights guaranteed by the Fourteenth Amendment and the severe humiliation,
emotional distress, pain, suffering, psychological harm, and stigma caused by the inability to
marry the ones they love and have society accord their unions and their families the same respect
and dignity enjoyed by opposite-sex unions and families. Because Plaintiffs cannot marry under
10
44
Virginia law, they cannot, for example, receive social security benefits, naval disability benefits,
Medicaid benefits, Veterans Administration benefits, immigration law benefits and favorable
treatment on income and estate taxes prescribed by state or federal law. They also cannot claim
benefits under various state and federal laws that apply only to married couples because they
cannot marry under Virginia law. Plaintiffs' injuries will be redressed only if this Court declares
these provisions unconstitutional and enjoins Defendants from enforcing them.
35. An actual and judicially cognizable controversy exists between Plaintiffs and
Defendants regarding whether the laws violate the Due Process and Equal Protection clauses of
the Fourteenth Amendment. Defendants are presently enforcing these state laws to the detriment
of Plaintiffs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment as follows:
1. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C. 2201,
construe Virginia Code 20-45.2 and 20-45.3 and Article I, 15-A of the Constitution of
Virginia and enter a declaratory judgment stating that these provisions and any other Virginia law
that bars same-sex marriage violate the Due Process and Equal Protection clauses of the
Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983.
2. Plaintiffs respectfully request that this Court enter a preliminary and a permanent
injunction enjoining enforcement or application ofVirginia Code 20-45.2 and 20-45.3 and
Article I, I 5-A of the Constitution of Virginia and any other Virginia law that bars same-sex
marriage.
11
45
3. Plaintiffs respectfully request costs of suit, including reasonable attorneys' fees,
under 42 U.S.C. 1988, and all further relief to which they may be justly entitled.
Dated: __ I 1+.
1
_J_a .:....:/]=---
TIMOTHY B. BOSTIC & TONY C. LONDON
By:

Thomas B. Shuttleworth
VSB# 13330
Robert E. Ruloff
VSB# 13471
Charles B. Lustig
VSB#29442
Shuttleworth, Ruloff, Swain,
Haddad & Morecock, P.C.
4525 South Blvd., Ste. 300
(757) 671-6000 (phone)
(757) 671-6004 (fax)
Counsel for Plaintiffs
12
46
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
TIMOTHY B. BOSTIC, et al.,
Plaintiffs,
V.
ROBERTF.McDONNELL,KENNETH
T. CUCCINELLI, II, and GEORGE
Civil Action No. 2: 13-cv-00395
E. SCHAEFER, III, in their official capacities
)
)
)
)
)
)
)
)
)
)
) Defendants.
MOTION TO DISMISS GOVERNOR McDONNELL
AND ATTORNEY GENERAL CUCCINELLI
ON SOVEREIGN IMMUNITY GROUNDS
COME NOW, Robert F. McDonnell, in his official capacity as Governor of Virginia, and
Kenneth T. Cuccinelli, II, in his official capacity as Attorney General of Virginia, pursuant to
Fed. R. Civ. P. 12(b)(l), and move this Court to dismiss this action against them on grounds of
sovereign immunity for the reason stated in the accompanying memorandum in support.
Kenneth T. Cuccinelli, II
Attorney General of Virginia
Wesley G. Russell, Jr., VSB #38756
Deputy Attorney General
Respectfully submitted,
Is/
E. Duncan Getchell, Jr.
Solicitor General of Virginia
(VSB No. 14156)
Richmond, Virginia 23219
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
dgetchell@oag.state.va.us
Counsel for Defendants McDonnell and Cuccinelli
47
E-mail: wrussell@oag.state.va.us
Michael H. Brady, VSB #78309
Assistant Solicitor General
E-mail: mbrady@oag.state.va.us
2
48
CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of August 2013, I electronically filed the foregoing
with the Clerk of the Court using the CMIECF system, and that I also sent a filed copy of the
same to the following by U.S. Mail, postage prepaid:
Thomas B. Shuttleworth, Esq., VSB # 13330
Robert E. Ruloff, Esq., VSB # 13471
Charles B. Lustig, Esq., VSB # 29442
(757) 671-6000 (phone)
(757) 671-6004 (fax)
Is/
3
49
NORFOLK DIVISION
Plaintiffs,
V.
T. CUCCINELLI, II, and GEORGE
)
)
)
)
)
)
)
)
)
)
) Defendants.
MOTION OF THE COMMONWEALTH OF VIRGINIA TO INTERVENE
COMES NOW, the COMMONWEALTH OF VIRGINIA, pursuant to Fed. R. Civ. P.
5.l(c) and 28 U.S.C. 2403(b}, and moves this Court to "permit the State to intervene for
presentation of evidence ... and for argument on the question of constitutionality" of Va. Const.
art. I, 15-A, and Va. Code Ann. 20-45.2 and 20-45.3 ("Virginia marriage laws"), which the
complaint in this matter, (Doc. 1}, has drawn into question. For the reasons provided in the
supporting memorandum, the Commonwealth of Virginia should be granted leave to intervene to
defend the constitutionality of Virginia's marriage laws.
/s/
(VSB No. 14156)
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
Counsel for Commonwealth of Virginia
50
Wesley G. Russell, Jr., VSB #38756
E-mail: wrussell@oag.state.va.us
51
I hereby certifY that on the 9th day of August 2013, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, and that I also sent a filed copy of the
(757) 671-6000 (phone)
(757) 671-6004 (fax)
/s/
52
IN THE UNITED STATES DISTRICT COURT FOR
TIMOTHY B. BOSTIC,
and
TONY C. LONDON,
Plaintiffs,
v.
GEORGE E. SCHAEFER, ill, in his official
Defendants.
CASE NO. 2:13cv00395
AGREED MOTION FOR ENTRY OF A CONSENT ORDER TO SUSPEND
BRIEFING ON MOTION TO DISMISS AND MOTION TO INTERVENE, AND TO SET
DEADLINES FOR FILING AMENDED COMPLAINT, AND FOR FILING CROSS-
MOTIONS FOR SUMMARY JUDGMENT
COME NOW Plaintiffs, Timothy B. Bostic and Tony C. London, (collectively
"Plaintiffs"), by counsel, and respectfully move the court for entry of a consent order 1)
suspending briefing indefinitely on the Motion to Dismiss filed by Defendants Robert F.
McDonnell and Kenneth T. Cuccinelli, I1 and the Motion to Intervene filed by the
Commonwealth of Virginia; 2) establishing a deadline of August 30, 2013 for Plaintiffs to file an
amended complaint and allowing Defendants 21 days to respond; and 3) establishing deadlines
for the parties to file cross-motions for summary judgment and the corresponding reply and
1
53
rebuttal pleadings. The reasons for this motion and consent order are more fully set forth in tbe
accompanying supporting memorandum. Counsel for Defendants and for tbe Commonwealth do
not object to this motion and consent to have tbeir electronic signatures placed on tbe attached
Consent Order, attached hereto as Exhibit A.
Respectfully Submitted,
Is!
Charles B. Lustig
VSB #29442
VSB#13330
Robert E. Ruloff
VSB# 13471
Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C.
4525 Soutb Blvd., Suite 300
(757) 671-6057 (phone)
(757) 671-6004 (fax)
clustig@srgslaw.com
tshuttleworth@srgslaw.com
rruloff@srgslaw.com
I hereby certify tbat on tbe 22" day of August 2013, I electronically filed tbe foregoing
with tbe Clerk of Court using tbe CMIECF system which will send electronic notice of such
filing to E. Duncan Getchell, Jr., Esq., Counsel for Defendants McDonnell and Cuccinelli and
Counsel for tbe Commonwealth of Virginia, and to David B. Oakley, Esquire, Counsel for
Defendant Schaefer.
Is/
Charles B. Lustig
VSB#29442
2
54
VSB #13330
Robert E. Ruloff
VSB # 13471
(757) 671-6057 (phone)
(757) 671-6004 (fax)
clustig@srgslaw .com
rruloff@srgslaw.com
3
55
Case: 2:13-cv-00395 As of: 03/17/2014 02:08PM EDT 1 of 1
APPEAL, CLOSED
U.S. District Court
Eastern District of Virginia - (Norfolk)
Bostic et al v. McDonnell et al Date Filed: 07/18/2013
Assigned to: District Judge Arenda L. Wright Allen
Referred to: Magistrate Judge Lawrence R. Leonard
Case in other court: 4CCA - Case Manager RJ Warren,
Jury Demand: None
Jurisdiction: Federal Question 14-01167
4CCA- Case Manager RJ Warren,
14-01169
Cause: 42:1983 Violation of Due Process and Equal Protection
Date Filed # Docket Text
08/30/2013 16 ORDER granting..ll, the unopposed Motion for an Extension of Time as follows:
Defendant George E. Schaefer, lli is granted leave and an extension of time to file
responsive pleadings upon the earlier of either October 21, 2013, or twenty-one
(21) days after the filing of an Amended Complaint by the Plaintiffs Signed by
District Judge Arenda L. Wright Allen on 08/30/2013. (Allen, Arenda) (Entered:
08/30/2013)
56
Case: 2:13-cv-00395 As of: 03/17/2014 02:15PM EDT 1 of 1
APPEAL, CLOSED
U.S. District Court
Bostic et a! v. McDonnell eta! Date Filed: 07/18/2013
Case in other court: 4CCA - Case Manager RJ Warren,
Jury Demand: None
14-01167
14-01169
08/30/2013 17 Plaintiffs' unopposed Motion for Entry of a Consent Order to Suspend Briefing on
Motion to Dismiss and Motion to Intervene, and To Set Deadlines for Filing
Amended Complaint and For Filing Cross-Motions for Summary Judgment (ECF
14) is GRANTED AS FOLLOWS: (I) briefing on the Motion to Dismiss filed by
Defendants McDonnell and Cuccinelli, and on the Motion to Intervene filed by the
Commonwealth of Virginia, is suspended indefinitely pending filing of an
Amended Complaint; (2) Plaintiffs shall file an Amended Complaint by September
3, 2013 and Defendants shall have twenty-one days to respond or otherwise
answer; and (3) the parties agree that they shall file cross-motions for sununary
judgment and supporting materials by September 30, 2013. Memoranda in support
of these motions shall not exceed thirty-five pages. Responses to the
cross-motions shall be filed by October 24, 2013, and shall not exceed twenty
pages. Reply briefs shall be filed by October 31, 2013, and shall not exceed eleven
pages. Oral argument will be set by the Court if deemed necessary. Signed by
District Judge Arenda L. Wright Allen on 08/30/2013. (Allen, Arenda) (Entered:
08/30/2013)
57
TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v.
JANET M. RAINEY, in her official
capacity as State Registrar of Vital Records, and
Defendants.
CASE NO. 2:13-cv-395
PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DECLARATORY,
INJUNCTIVE, AND OTHER RELIEF
Plaintiffs Timothy B. Bostic ("Bostic"), Tony C. London ("London"), Carol Schall
("Schall"), and Mary Townley ("Townley"), by counsel, complain of Defendants and allege the
following:
58
INTRODUCTION
1. The "freedom to marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by free men." Loving v.
Virginia, 388 U.S. 1, 12 (1967). In more than a dozen cases over the last century, the
Supreme Court has reaffirmed that marriage is "the most important relation in life,"
Zablocki v. Redhail, 434 U.S. 374, 384 (1978), and that the right to marry is "one of the
liberties protected by the Due Process Clause." Cleveland Bd. of Educ. v. LaFleur, 414
U.S. 632, 639 (1974). As a result, "[c]hoices about marriage" are "sheltered by the
Fourteenth Amendment against the State's unwarranted usurpation, disregard, or
disrespect." M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996)(intemal quotation marks
omitted).
2. Despite the "fundamental importance" of marriage "for all individuals,"
Zablocki, 434 U.S. at 384, the Commonwealth of Virginia has imposed sweeping
restrictions that prevent gay and lesbian individuals not only from marrying, but from
participating in any of the "rights, benefits, obligations, qualities, or effects of marriage."
Va. Const. Art. I, 15-A; see also Va. Code 20-45.2, 20-45.3. Virginia's Constitution
provides that "only a union between one man and one woman may be a marriage valid in
or recognized by this Commonwealth and its political subdivisions." Va. Const., Art. I,
15-A. And Virginia's statutory code provides that a "marriage between persons of the
same sex is prohibited" in the Commonwealth of Virginia. Va. Code 20-45.2. Virginia
law even prohibits same-sex couples from entering into second-class institutions like civil
unions or domestic partnerships. Va. Code 20-45.3.
2
59
3. Same-sex couples who legally marry in other jurisdictions are similarly
denied the benefits of marriage in Virginia. Unlike opposite-sex couples married out-of-
state who continue to enjoy the benefits and privileges of their marriage while living in
the Commonwealth, Virginia law provides that "[a ]ny marriage entered into by persons
of the same sex in another state or jurisdiction shall be void in all respects in Virginia and
any contractual rights created by such marriage shall be void and unenforceable." Va.
Code 20-45.2. This unequal treatment of gay and lesbian individuals denies them the
due process and equal protection rights guaranteed by the Fourteenth Amendment to the
United States Constitution.
4. For these reasons, Plaintiffs ask this Court to enjoin, preliminarily and
permanently, enforcement of all statutes and constitutional provisions that exclude gay
and lesbian individuals from access to civil marriage and that treat lawful same-sex
marriages from other states as null and void in Virginia. Plaintiffs also ask that this Court
declare Virginia Code 20-45.2 and 20-45.3 and Article I, 15-A of the Virginia
Constitution to be unconstitutional.
JURISDICTION AND VENUE
5. This case raises questions under the Constitution of the United States and
42 U.S.C. 1983, and, thus, this Court has jurisdiction over all claims for relief pursuant
to 28 U.S.C. 1331.
6. Venue is proper in this Court pursuant to 28 U.S.C. 139l(b) because all
Defendants reside in the Eastern District of Virginia. Venue is also proper in this Court
because a substantial part of the events giving rise to Plaintiffs' claims occurred in this
district.
3
60
NATURE OF DISPUTE
7. 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, or even enter into same-sex civil unions-
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.
8. Plaintiffs Bostic and London are gay individuals who have been in a long-
standing committed relationship for nearly 25 years. They desire to express their love for
and commitment to one another by getting married and obtaining official sanction for
their union from the Commonwealth. Virginia's laws against same-sex marriage deny
them that right in violation of the Equal Protection and Due Process Clauses of the
Fourteenth Amendment of the United States Constitution.
9. Plaintiffs Schall and Townley are lesbian individuals in a committed
relationship that has lasted nearly 30 years. They were lawfully married in California on
or about October 23, 2008, and now seek to have their marriage recognized by the
Commonwealth. They wish to enjoy the same social privileges and contractual rights
that are conferred by the Commonwealth on individuals in opposite-sex marriages.
Virginia's laws precluding recognition oflawful same-sex marriages deny them those
4
61
rights in violation of the Equal Protection and Due Process Clauses of the Fourteenth
Amendment of the United States Constitution.
10. To enforce the rights afforded by the United States Constitution, Plaintiffs
bring this suit pursuant to 42 U.S.C. 1983 for declaratory and injunctive relief barring
enforcement ofVa. Code 25-45.2 and 20-45.3 and Article I, 15-A of the Virginia
Constitution. Plaintiffs also seek to recover all their attorneys' fees, costs, and expenses
incurred in this action and any other relief that this Court may order and deem
appropriate.
THE PARTIES
11. Plaintiff Bostic is a Virginia resident who lives in Norfolk, Virginia.
12. Plaintiff London is a Virginia resident who lives in Norfolk, Virginia.
13. Plaintiff Schall is a Virginia resident who lives in Chesterfield County,
Virginia.
14. Plaintiff Townley is a Virginia resident who lives in Chesterfield County,
Virginia.
15. Defendant George E. Schaefer, III, is the Clerk of the Circuit Court for the
City ofNorfolk. Pursuant to Va. Code 20-14, "[ e ]very license for marriage shall be
issued by the clerk or deputy clerk of a circuit court of any county or city." Therefore,
Defendant Schaefer, in his official capacity as clerk, has the duty to issue marriage
licenses in Norfolk, Virginia, to residents of his city seeking to marry. Defendant
Schaefer is also responsible for ensuring compliance with Virginia's marriage laws,
including by determining whether individuals meet the requirements for marriage in
Virginia as reflected in the couple's application for a marriage license. Defendant
5
62
Schaefer is a person under 42 U.S. C. 1983 and was acting under the color of state law
at all times germane to this Amended Complaint. On account of his responsibilities for
determining marriage eligibility and issuing marriage licenses, Defendant Schaefer has a
"special relationship" to the laws and constitutional provisions that prevent gay and
lesbian individuals from marrying in Virginia. McBurney v. Cuccinelli, 616 F.3d 393,
399 (4th Cir. 2010).
16. Defendant Janet M. Rainey ("Rainey") is sued in her official capacity as
the State Registrar of Vital Records. Defendant Rainey is responsible for ensuring
compliance with the Commonwealth's laws relating to marriage in general and, more
specifically, is responsible for enforcement of the specific provisions at issue in this
Amended Complaint, namely those laws that limit marriage to opposite-sex couples and
that refuse to honor the benefits of same-sex marriages lawfully entered into in other
states. Defendant Rainey's duties include, without limitation, directing and supervising
the system of vital records in the Commonwealth of Virginia. Defendant Rainey also
serves as the custodian of official records and directs, supervises and controls the actions
of all persons relating to the operation of the state-wide system of maintaining vital
records. Defendant Rainey's responsibilities also include providing forms for marriage
licenses, marriage certificates and applications for marriage licenses used in Virginia.
Va. Code 32.1-267. Defendant Rainey also keeps and maintains an index, publicly
available online, of all marriages consummated in the Commonwealth. Defendant
Rainey's office also compiles, publishes and makes available to the public aggregate data
on the number of marriages which take place in Virginia. This data includes the age and
race of married couples, the number of minor children, if any, and other information.
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Defendant Rainey is also responsible in her official capacity for publishing and
furnishing to local clerks' offices the marriage forms that require applicants to list a
"Bride" and a "Groom." Pursuant to Va. Code 32.1-261, the State Registrar is also
responsible for issuing new birth certificates upon proof that a child has been adopted or
"legitimated" through the marriage of the child's parents. Defendant Rainey is a person
under 42 U .S.C. 1983 and was acting under the color of state law at all times germane
to this Amended Complaint. On account of her responsibilities, Defendant Rainey has a
"special relationship" to the laws and constitutional provisions that prevent gay and
lesbian individuals from marrying in Virginia. McBurney, 616 F.3d at 399.
17. Defendants Schaefer and Rainey, and those subject to their supervision,
direction, and control, are responsible for the enforcement ofVa. Code 25-45.2 and
20-45.3 and Article I, 15-A of the Virginia Constitution. The relief requested in this
action is sought against each Defendant, as well as against each Defendant's officers,
employees, and agents, and against all persons acting in cooperation with Defendant(s),
under their supervision, at their direction, or under their control.
FACTS
18. Gay and lesbian individuals have faced a long and painful history of
societal and government-sponsored discrimination in this country. Although their sexual
orientation bears no relation to their ability to contribute to society, gay men and lesbians
have been singled out for discriminatory treatment. They have faced unconstitutional
criminal penalties for private sexual conduct between consenting adults, harassment, hate
crimes, and discrimination in employment and many other areas. They have even been
the subject oflaws stripping them of rights afforded to all other citizens.
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19. Since at least 1975, pursuant to Va. Code 20-45.2, same-sex couples in
the Commonwealth of Virginia have been denied marriage licenses on account of their
sexual orientation and on account of their gender. In November 2006, a majority of
Virginia voters ratified the "Marshall-Newman Amendment" to the State Constitution.
This Amendment, which defines marriage as a union between "one man and one
woman," expressly deprives gay and lesbian individuals of the right to marry. 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 [relationships] of others." United States v.
Windsor, 133 S. Ct. 2675, 2694-96 (2013).
20. Virginia's statutory and constitutional provisions have created a legal
system in which civil marriage is restricted solely and exclusively to opposite-sex
couples, and in which gay and lesbian individuals are denied the right to enter into a civil
marriage.
21. Virginia's statutory and constitutional provisions also deprive same-sex
couples of federal marital privileges and benefits that, upon information and belief, are
available to same-sex couples who marry under state laws authorizing such benefits but
that are not available to Plaintiffs and other same-sex couples in Virginia. These currently
include, without limitation, (i) marital, disability and survivor's benefits under the federal
social security system; (ii) naval disability benefits; (iii) federal Medicaid benefits; (iv)
immigration benefits; and (v) federal Veterans Administration benefits.
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22. In addition to these significant legal implications, Virginia's statutory and
constitutional provisions deny gay and lesbian residents of Virginia and their children the
personal and public affirmation that accompanies marriage. Virginia's prohibition of
marriage of same-sex couples instructs "all persons with whom same-sex couples
interact, including their own children" that their relationship is less worthy than those of
couples in State-sanctioned marriages. Windsor, 133 S. Ct. at 2696. Without the legal
ability to marry and build a family, same-sex couples are excluded from the fabric of
Virginia's social structure.
23. Virginia law also fails to honor the laws of thirteen other states and the
District of Columbia that allow same-sex marriage, by providing that lawful marriages
from those jurisdictions are "void in all respects" and by stipulating that any contractual
rights from such valid marriages "are void and unenforceable" in the Commonwealth of
Virginia. By refusing to acknowledge lawful same-sex marriages from other states, the
Commonwealth "ensure[ s] that ... those unions will be treated as second-class marriages
for purposes of [Virginia]law." Windsor, 133 S. Ct. at 2693-94. Virginia's laws thereby
"undermine[] both the public and private significance of state-sanctioned same-sex
marriages; for it tells those couples, and all the world, that their otherwise valid marriages
are unworthy of [the Commonwealth's] recognition." !d. at 2694. They "impose a
disadvantage, a separate status, and so a stigma upon" same-sex couples whose legal
marriages are disregarded by the State and "humiliate[ ] tens of thousands of children
now being raised by same-sex couples." !d. at 2693-94.
24. The unmistakable purpose and effect of Virginia's far-reaching restrictions
is to enshrine in Virginia's Constitution and statutory code that gay men and lesbians are
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"unequal to everyone else," Romer v. Evans, 517 U.S. 620, 635 (1996), that their
committed relationships are ineligible for the designation "marriage," and that they are
unworthy of being treated with "dignity and integrity." Windsor, 133 S. Ct. at 2694.
25. Plaintiffs Bostic and London are gay residents of Virginia who have been
in a long-term, serious relationship with each other since 1989. Plaintiff London served
in the United States Navy and has been a real estate agent for 16 years. Plaintiff Bostic is
a professor of humanities at Old Dominion University in Norfolk, Virginia.
26. Plaintiffs Bostic and London desire to marry each other under the laws of
the Commonwealth in order to publicly announce their commitment to one another and to
enjoy the rights, privileges, and protections that the State confers on married couples. On
or about July I, 2013, Plaintiffs Bostic and London applied for a marriage license from
the Clerk for the Circuit Court for the City of Norfolk. Their request was denied pursuant
to Defendants' enforcement ofVa. Code 20-45.2 and Article I, 15-A of the
Constitution of Virginia, because they are a same-sex couple.
27. Because Plaintiffs Bostic and London are unable to marry one another,
they are denied the right to engage in "the most important relation in life," Zablocki, 434
U.S. at 384. By restricting civil marriage to individuals of the opposite sex, Virginia
denies Plaintiffs Bostic and London the ability to obtain the same legal rights and
remedies that only heterosexual couples enjoy.
28. Plaintiffs Schall and Townley have lived in the Commonwealth of
Virginia since 1982, and have been a couple since 1985. Plaintiff Schall is an assistant
professor in the School of Education at Virginia Commonwealth University ("VCU'') in
Richmond, Virginia, where she specializes in research on teaching autistic children.
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Prior to obtaining her job at VCU in 2008, Schall worked at the Richmond branch of the
Grafton School which is based in Winchester, Virginia. At the Grafton School, she served
as the director for the Virginia Autism Resources Center. Plaintiff Townley also works
in special education, having worked with special needs children in the public school
system for several years in Winchester, Virginia, and in Frederick County, Virginia.
Plaintiff Townley currently serves as the Supervisor of Transitional Programming at the
Health Diagnostic Laboratory ("HDL"}. In this capacity, Plaintiff Townley helps train
individuals with significant disabilities so that they can work at HDL.
29. Plaintiffs Schall and Townley have lived together as a family for nearly 30
years and were lawfully married in California in 2008. Plaintiff Townley gave birth to
the couple's daughter, E. T.-S., in 1998. During her pregnancy, Plaintiff Townley was
admitted to the emergency room at VCU' s Medical Center due to complications.
Because Plaintiff Schall is not legally recognized in Virginia as Plaintiff Townley's
spouse, however, Plaintiff Schall was denied permission to see her partner for several
hours while she was there.
30. Since their daughter's birth, Plaintiff Schall has desired to adopt their
daughter, but she is unable to do so because Virginia's laws do not permit a same-sex
partner to adopt a child. As a result, Plaintiffs Schall and Townley had to retain an estate
planning attorney to petition a court for full joint legal and physical custody of their
daughter. The court granted their petition but Plaintiff Schall remains unable to legally
adopt E. T.-s.
31. More recently, in April2012, Plaintiffs Schall and Townley arrived at a
local post office to renew their daughter's passport, a process that typically requires the
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consent of both parents. When Plaintiffs Schall and Townley presented E. T.-S. 's
renewal forms, the civil servant told Plaintiff Schall, "You're nobody, you don't matter,"
and struck her name from the form.
32. Plaintiffs Schall and Townley now seek to have the Commonwealth of
Virginia recognize the legally-valid marriage they obtained in California five years ago.
However, Plaintiffs Schall and Townley cannot obtain a marriage license or a birth
certificate for their daughter listing them as parents as a direct result of Defendants'
enforcement ofVa. Code 20-45.2 and Article I, 15-A of the Constitution of Virginia,
because they are a same-sex couple.
33. Because they cannot marry and because Virginia law refuses to recognize
the validity of their California marriage, Plaintiffs Schall and Townley are, without
limitation, deprived of the following marital benefits, which are available to opposite-sex
couples who live in Virginia:
a) Until February 2013, neither Plaintiff Schall, nor Plaintiff Townley were allowed
to cover their respective spouse on employer-provided health insurance. After
their daughter was born, Plaintiff Townley had to return to work in part because
her own insurance was expiring and she could not obtain coverage on Plaintiff
Schall's health-care plan. Since February 2013, Plaintiff Townley has been able
to cover Plaintiff Schall on her employer-provided health insurance. However,
Plaintiff Schall must pay state income taxes on the benefit she receives. Upon
information and belief, opposite-sex couples do not have to pay this tax.
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b) Plaintiffs Schall and Townley cannot file state income tax returns as a married
couple. This has cost them thousands of dollars in additional taxes during the
time that they have been together and unable to marry lawfully in Virginia.
c) Plaintiff Schall and Townley may name each other as beneficiaries on employee
benefit plans, but must pay state taxes on the benefits that may be paid out upon
one of their deaths. Upon information and belief, surviving spouses from
opposite-sex marriages do not have to pay such a tax.
d) Plaintiffs Schall and Townley were ineligible for protection under federal laws
governing family medical leave when their daughter was born, and when one of
their parents died.
34. Plaintiffs' inability to marry or to have their relationship recognized by the
Commonwealth of Virginia with the dignity and respect accorded to married opposite-sex
couples has caused them significant hardship, including, but not limited to, the
deprivation of rights guaranteed by the Fourteenth Amendment to the United States
Constitution and severe humiliation, emotional distress, pain, suffering, psychological
harm, and stigma. Each day that Plaintiffs are denied the freedom to marry, or have their
California marriage recognized in Virginia, they suffer irreparable harm as a direct result
of Defendants' violation of their constitutional rights.
35. If the Court does not enjoin Va. Code 20-45.2 and 20-45.3 and Article
I, 15-A of the Virginia Constitution, Defendants will continue to enforce this
unconstitutional law against Plaintiffs, thereby depriving them of their constitutional
rights under the Fourteenth Amendment to the United States Constitution. The
declaratory and injunctive relief sought by Plaintiffs, on the other hand, will require
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Virginia to revise official state law and procedures governing marriage and will require
Defendants to issue Plaintiffs Bostic and London a marriage license. The relief sought
will also require Defendants to recognize Plaintiffs Schall and Townley as a lawfully
married couple within the Commonwealth of Virginia.
CLAIMS FOR RELIEF
COUNT ONE: DUE PROCESS
37. Va. Code 20-45.2 and 20-45.3 and Va. Const. Art. I, 15-A violate
fundamental liberties that are protected by the Due Process Clause of the Fourteenth
Amendment, both on their face and as applied to Plaintiffs.
38. These laws impinge on fundamental liberties by denying gay and lesbian
individuals the opportunity to marry civilly and enter into the same officially sanctioned
family relationship with their loved ones as opposite-sex individuals. By denying those
individuals the same "marriage" designation afforded to opposite-sex couples, and by
refusing to recognize their lawful marriages from other States, the Commonwealth of
Virginia is stigmatizing gay men and lesbians, as well as their children and families, and
denying them the same dignity, respect, and stature afforded officially recognized
opposite-sex family relationships.
39. Virginia's statutory and constitutional laws thus deprive Plaintiffs of their
liberty without due process oflaw in violation of the Fourteenth Amendment to the
United States Constitution.
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COUNT TWO: EOUAL PROTECTION
41. Va. Code 20-45.2 and 20-45.3 and Va. Const. Art. I, 15-A violate the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution,
both on their face and as applied to Plaintiffs.
42. These laws restrict civil marriage to individuals of the opposite sex; gay
and lesbian individuals are unable to marry. Thus, Virginia law treats similarly-situated
people differently by providing civil marriage to opposite-sex couples, but not to same-
sex couples. Moreover, opposite-sex couples who marry in other States and live in
Virginia enjoy all of the legal benefits of marriage, whereas same-sex couples, such as
Plaintiffs Schall and Townley, who marry lawfully in other jurisdictions are expressly
precluded from enjoying the panoply of rights associated with marriage. Gay men and
lesbians are, therefore, unequal in the eyes of state law, and their families are denied the
same respect as officially sanctioned families of opposite-sex individuals.
43. By purposefully denying civil marriage to gay and lesbian individuals,
Virginia's ban on same-sex marriage discriminates on the basis of sexual orientation.
Gay and lesbian individuals are unable to enter into marriages available through the State
to opposite-sex couples solely because of their sexual orientation.
44. The disadvantages these laws impose upon gay men and lesbians are the
result of disapproval or animus against a politically unpopular group. But the United
States Constitution's guarantee of equality under the Fourteenth Amendment "must at the
very least mean that a bare (legislative) desire to harm a politically unpopular group
15
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cannot justifY disparate treatment of that group." Windsor, 133 S. Ct. at 2693.
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."
45. These laws also violate the Equal Protection Clause because they
discriminate on the basis of sex. Under these laws, a man who wishes to marry a man
may not do so because he is a man, and a woman may not marry a woman because she is
a woman. Thus, the laws limit civil marriage on the basis of sex.
46. Virginia's statutory and constitutional laws directly and substantially
interfere with Plaintiffs' fundamental right to marry. The right to marry is protected by
the Fourteenth Amendment as a vital personal right that is integral to an individual's
identity, autonomy, dignity, and intimate associations. Virginia's laws restricting civil
marriage to opposite-sex couples impinge on the fundamental right of gay and lesbian
individuals to marry without serving any legitimate governmental interest, let alone any
important or compelling interest to which they are narrowly-tailored.
47. Whether under a strict or heightened scrutiny analysis, or under a more
lenient rational-basis analysis, these provisions of Virginia law and the Virginia
Constitution do not bear any relation to a legitimate governmental purpose and, thus,
violate the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution.
COUNT THREE: VIOLATION OF 42 U.S.C. 1983
48. Plaintiffs incorporate here by reference paragraphs I through 4 7, supra, as
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49. Insofar as they are enforcing the terms ofVa. Code 20-45.2 and 20-
45.3, and Article I, 15-A of the State constitution, Defendants, acting under the color of
state law, are depriving, and will continue to deprive, Plaintiffs of numerous rights
secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment
to the United States Constitution in violation of 42 U.S.C. 1983.
IRREPARABLE INJURY
51. Plaintiffs are severely and irreparably injured by the challenged state laws
and constitutional provision that violate the Due Process and Equal Protection Clauses of
the Fourteenth Amendment. By way of example only, Plaintiffs' injury as a result of
these discriminatory laws includes the deprivation of rights guaranteed by the Fourteenth
Amendment and the severe humiliation, emotional distress, pain, suffering, psychological
harm, and stigma caused by the inability to marry and have society accord their unions
and their families the same respect and dignity enjoyed by opposite-sex unions and
families. Because Plaintiffs cannot marry under Virginia law, nor have their out-of-state
marriages recognized by the Commonwealth, they cannot, for example, currently receive
social security benefits, naval disability benefits, Medicaid benefits, Veterans
Administration benefits, immigration law benefits and favorable treatment on income and
estate taxes prescribed by state law. They also cannot currently claim benefits under
various state and federal laws that apply only to married couples because they cannot
marry under Virginia law. Plaintiffs' injuries will be redressed only if this Court declares
these provisions unconstitutional and enjoins Defendants from enforcing them.
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52. An actual and judicially cognizable controversy exists between Plaintiffs
and Defendants regarding whether the laws violate the Due Process and Equal Protection
clauses of the Fourteenth Amendment. Defendants are presently enforcing these state
laws to the detriment of Plaintiffs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment as follows:
l. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C.
2201, construe Virginia Code 20-45.2 and 20-45.3 and Article I, 15-A of the
Constitution of Virginia and enter a declaratory judgment stating that these provisions
and any other Virginia law that bars same-sex marriage or prohibits the State's
recognition of otherwise-lawful same-sex marriages from other jurisdictions violate the
Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United
States Constitution and 42 U.S.C. 1983.
2. Plaintiffs respectfully request that this Court enter a preliminary and a
permanent injunction enjoining enforcement or application of Virginia Code 20-45.2
and 20-45.3 and Article I, 15-A of the Constitution of Virginia and any other Virginia
law that bars same-sex marriage or prohibits the State's recognition of otherwise-lawful
same-sex marriages from other jurisdictions.
3. Plaintiffs respectfully request costs of suit, including reasonable attorneys'
fees, under 42 U.S.C. 1988, and all further relief to which they may be justly entitled.
18
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TIMOTHY B. BOSTIC, TONY C. LONDON,
CAROL SCHALL & MARY TOWNLEY
By: Is/
Charles B. Lustig
VSB #29442
VSB# 13330
Robert E. Ruloff
VSB# 13471
(757) 671-6000 (phone)
(757) 671-6004 (fax)
clustig@srgslaw.com
rruloff@srgslaw .com
I hereby certify that on the 3rd day of September 2013, I electronically filed the foregoing
with the Clerk of Court using the CMIECF system which will send electronic notice of such
filing to E. Duncan Getchell, Jr., Esq., Counsel for Defendants McDonnell and Cuccinelli and
Counsel for the Commonwealth, and to David Oakley, Esq., Counsel for Defendant Scheafer.
Counsel will effect service, or seek waiver of service, on the additional Defendant Janet M.
Rainey.
19
76
Is/
Charles B. Lustig
VSB#29442
VSB# 13330
Robert E. Ruloff
VSB# 13471
(757) 671-6000 (phone)
(757) 671-6004 (fax)
clustig@srgslaw.com
rruloff@srgslaw.com
20
77
IN THE UNITED STATES DISTRICT COURT FOR
TIMOTHY B. BOSTIC,
and
TONY C. LONDON,
Plaintiffs,
v.
GEORGE E. SCHAEFER, ill, in his official
Defendants.
CASE NO. 2:13cv00395
RULE 41 NOTICE OF VOLUNTARY DISMISSAL OF DEFENDANTS MCDONNELL
AND CUCCINELLI WITHOUT PREJUDICE
Plaintiffs, pursuant to Fed.R.Civ.P. 4l(a)(l)(A)(i), submit this Notice of Dismissal by
which Plaintiffs dismiss Defendants Robert F. McDonnell and Kenneth T. Cuccinelli without
prejudice. On September 3, 2013, Plaintiffs filed an amended complaint which does not name
these two defendants. Defendants McDonnell and Cuccinelli have not served an answer or a
motion for summary judgment on Plaintiffs, therefore, this Notice of Dismissal is timely under
FedR.Civ.P. 4l(a)(l)(A)(i) and does not require a court order.
Is/
Charles B. Lustig
VSB #29442
1
78
VSB#13330
Robert E. Ruloff
VSB # 13471
(757) 671-6057 (phone)
(757) 671-6004 (fax)
clustig@srgslaw.com
rruloff@srgslaw.com
Counsel for Plaintiffs Timothy B. Bostic, Tony C. London
I hereby certify that on September 5, 2013, I electronically filed the foregoing with the
Clerk of Court by using the CMIECF system which will send a notice of electronic filing to
counsel for all Defendants.
lsi
Charles B. Lustig
VSB #29442
VSB #13330
Robert E. Ruloff
VSB # 13471
(757) 671-6057 (phone)
(757) 671-6004 (fax)
clustig@srgslaw.com
rruloff@srgslaw.com
Counsel for Plaintiffs Timothy B. Bostic, Tony C. London
2
79
NORFOLK DIVISION
Plaiotiffs,
v.
T. CUCClNELLI, II, and GEORGE
Defendants.
)
)
)
)
)
)
)
)
)
)
)
MOTION TO DISMISS AS MOOT
THE GOVERNOR AND ATTORNEY GENERAL'S MOTION TO DISMISS
AND THE COMMONWEALTH OF VIRGINIA'S MOTION TO INTERVENE
COME NOW, the Commonwealth of Virginia, Robert F. McDonnell, Governor of
Virginia, and Kenneth T. Cuccinelli, II, Attorney General of Virginia, by counsel, and move this
Court to dismiss the Governor and Attorney General's Motion to Dismiss on Sovereign
lnnnunity Grounds, (Doc. 7), and the Commonwealth of Virginia's Motion to Intervene, (Doc. 9)
as moot io light of Plaintiffs' Amended Complaint, and Plaiotiffs' Rule 41 Notice of Voluntary
Dismissal as to the Governor and Attorney General. (Doc. 19.) By voluntarily dismissiog the
suit against the Governor and Attorney General of Virginia pursuant to Fed. R. Civ. P.
4l(a)(I)(A)(i), and amending their complaiot in accordance with Fed. R. Civ. P. 15(a)(l)(B), to
name Janet M. Rainey, a state official who will answer within the scope of her official duties, the
Governor and Attorney General have obtained the relief requested and the Commonwealth of
Virgioia's right to defend its laws from constitutional attack has been preserved. See Fed. R. Civ.
P. 5.l(c); see 28 U.S.C. 2403(b).
80
WHEREFORE, the Commonwealth of Virginia, Robert F. McDonnell, Governor of
Virginia, and Kenneth T. Cuccinelli, II, Attorney General of Virginia, urge this Court to dismiss
the aforesaid motions as moot.
Rita W. Beale, VSB #37032
E-mail: rbeale@oag.state.va.us
Allyson K. Tysinger, VSB #41982
Senior Assistant Attorney General/Chief
E-mail: atysinger@oag.state.va.us
/s/
(VSB No. 14156)
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
Counsel for Commonwealth of Virginia,
Robert F. McDonnell, Governor of Virginia
and Kenneth T. Cuccinelli, IL Attorney General
81
I hereby certify that on the 6th day of September 2013, I electronically filed the foregoing
with the Clerk of the Court using the CMIECF system, and that I also sent a filed copy of the
(757) 671-6000 (phone)
(757) 671-6004 (fax)
Is!
82
NORFOLK DIVISION
Plaintiffs,
v.
JANET M. RAINEY, in her official capacity as
State Registrar of Vital Records, and
capacity as the Clerk of the Court for Norfolk
Circuit Court,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
ANSWER OF JANET M. RAINEY
COMES NOW, Janet M. Rainey, by counsel, in her official capacity as State Registrar of
Vital Records, appearing in lieu of service, and in response to Plaintiffs' First Amended
Complaint, (Doc. 18), states as follows:
INTRODUCTION
1. Fundamental rights are those that are "objectively, 'deeply rooted in this Nation's
history and tradition' ... and 'iroplicit in the concept of ordered liberty,' such that 'neither liberty
nor justice would exist if they were sacrificed."' Washington v. Glucksberg, 521 U.S. 702, 720-
21 (1997) (citations omitted). The claimed right of same-sex marriage is not deeply rooted in
our history and tradition. See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2696 (2013)
(Roberts, C.J., dissenting) (As recently as 1996, the traditional defmition of marriage as the
union of man and woman "had been adopted by every State in our Nation, and every nation in
the world."); Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) (Until recently, "it was an
accepted truth for almost everyone who ever lived, in any society in which marriage existed, that
there could be marriages only between participants of different sex."). In Baker v. Nelson, 191
83
Case 2:13-cv-00395-AWA-LRL Document 21 Filed 09116113 Page 2 of 12 PageiD# 101
N.W.2d 185 (Minn. 1971), it was decided that refusing marital status to same-sex couples
violated neither due process nor equal protection. The Supreme Court dismissed the direct
appeal in that case for want of a substantial federal question. Baker v. Nelson, 409 U.S. 810
(1972). That determination prevents any lower federal court from invalidating a state marriage
defmition as violative of a "constitutional right to same-sex marriage." See Massachusetts v.
HHS, 682 F.3d I, 8 (1st Cir. 2012) (Baker v. Nelson binding).
2. Since 1607 marriage in Virginia has been only between a man and a woman as a
matter oflaw and neither Article I, 15-A of the Virginia Constitution nor Virginia Code 20-
45.2 altered the legal definition of marriage or denied any rights that had previously existed. No
Plaintiff has alleged facts giving rise to standing to challenge Virginia Code 20-45.3 which, in
any event, is valid.
3. Although Virginia does not recognize out of state same-sex marriages, this does
not violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
4. Plaintiffs cannot make the showing that would satisfy the extraordinary standard
applicable to preliminary mandatory injunctions and they also are not entitled to a permanent
injunction or to a declaratory judgment because there is no constitutional right to same-sex
marriage.
5. While this case raises questions under the Constitution of the United States and 42
U.S.C. 1983, this Court may not grant any of the requested relief under Baker v. Nelson.
6. Proper venue is admitted.
2
84
NATURE OF DISPUTE
7. Admitted that this action is brought pursuant to 42 U.S.C. 1983 and that it seeks
declaratory and injunctive relief against Virginia Code 20-45.2 and 20-45.3 and Article I,
15-A of the Virginia Constitution. Denied that Plaintiffs could be married as of right absent
these provisions or that Plaintiffs are entitled to any relief.
8. Defendant Rainey is without knowledge or information sufficient to form a belief
about the truth of allegations personal to Plaintiffs and this statement has the effect of a denial.
She further denies that Virginia's definition of marriage violates the Equal Protection or Due
Process Clauses of the Fourteenth Amendment
She further denies that Virginia's definition of marriage violates the Equal Protection or Due
Process Clauses of the Fourteenth Amendment
10. Although it is admitted that Plaintiffs purport to sue pursuant to 42 U.S.C. 1983
for fees, costs, expenses, declaratory and injunctive relief, Defendant Rainey denies that they are
entitled to any relief.
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15. The laws applicable to Defendant George E. Schaefer, III, in his official capacity
as the Clerk of the Circuit Court for the City of Norfolk, speak for themselves. The allegations
with respect to their effect on him as a proper Ex parte Young defendant are legal conclusions
that require no response.
16. The laws applicable to Defendant Janet M. Rainey, in her official capacity as the
State Registrar of Vital Records, speak for themselves. The allegations with respect to their
effect on her as a proper Ex parte Young defendant are legal conclusions that require no
response.
17. Denied that the duties of Defendants Schaefer and Rainey, and those subject to
their supervision, direction, and control, would be different with respect to marriage eligibility
under the Fourteenth Amendment's Due Process and Equal Protection Clauses if Virginia Code
20-45.2 and 20-45.3 and Article I, 15-A of the Virginia Constitution had never been
adopted.
18. Denied that "societal" attitudes are state action for which Virginia is responsible.
Denied that the laws of Virginia regulate or create categories based upon sexual orientation as
such. Whatever laws of Virginia are intended to be encompassed by the allegations of Paragraph
18 speak for themselves.
19. Although Defendant Rainey admits that Virginia Code 20-45.2 was adopted in
1975 and that "[i)n November 2006, a majority of Virginia voters ratified" Article I, 15-A, she
avers that those provisions speak for themselves. She denies that persons of any gender or
sexual orientation are barred from traditional marriage on that account. She further denies that
4
86
United States v. Windsor, 133 S. Ct. 2675, 2694-96 (2013), or the language quoted from it,
provide a rule of decision that entitles Plaintiffs to relief. Windsor did not overrule Baker v.
Nelson, the four Justices in dissent affirmed the view that the traditional defmition of marriage is
constitutional, and the federalism analysis in Windsor deprives it of precedential force for
overturning traditional state definitions of marriage. Windsor, 133 S. Ct. at 2696 ("This opinion
and its holding are confined to those lawful marriages."); see also Windsor, 133 S. Ct. at 2696
(Roberts, C.J., dissenting) (that phrase refers "to same-sex marriages that a State has already
recognized as a result of the local 'community's considered perspective on the historical roots of
the institution of marriage and its evolving understanding of the meaning of equality."').
20. Since 1607 marriage in Virginia has been defined as between a man and a
woman/a husband and a wife. Denied that any individuals are barred from traditional marriage
because of sexual orientation.
21. Whether the traditional definition of marriage collaterally affects certain federal
benefits is an allegation oflaw requiring no response.
22. Denied that concepts of affirmation, or the quoted language, make Windsor a rule
of decision that can be used to strike down the traditional defmition of marriage under the
Fourteenth Amendment. The referenced Virginia statutory and constitutional provisions speak
for themselves.
23. Denied that concepts of affirmation, or the quoted language, make Windsor a rule
of decision that can be used to strike down the traditional definition of marriage under the
Fourteenth Amendment. The referenced Virginia statutory and constitutional provisions speak
for themselves.
5
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24. Denied. The referenced Virginia statutory and constitutional provisions speak for
themselves. Defendant Rainey further avers that neither Romer v. Evans, 517 U.S. 620 (1996),
nor Windsor provide a rule of decision that can be used to strike down the traditional definition
of marriage under the Fourteenth Amendment.
Defendant Rainey further denies that Plaintiffs have been denied their legal rights.
All referenced laws speak for themselves.
6
88
Denied that Plaintiffs have been deprived of their rights under the Fourteenth Amendment or that
they have suffered legal injury.
35. Denied that an injunction against Virginia Code 20-45.2 and 20-45.3 and
Article I, 15-A would change the pre-existing common law definition of marriage, see
Alexander v. Kuykendall, 192 Va. 8, 11, 63 S.E.2d 746, 747-48 (1951) (Those who enter a
marriage "are, or should be, motivated by love and affection to form a mutual and voluntary
compact to live together as husband and wife, until separated by death, for the purpose of mutual
happiness, establishing a family, the continuance of the race, the propagation of children, and the
general good of society."); Burke v. Shaver, 92 Va. 345, 347 (1895) (A "contract for marriage is
the mutual agreement of a man and a woman to marry each other, or become husband and wife
in the future, and must satisfy the legal requirements as to parties, consideration, &c., as other
contracts must."), or require issuance of a marriage license to Plaintiffs Bostic and London. It is
further denied that the existing definition of marriage deprives Plaintiffs of rights under the
Fourteenth Amendment. It is likewise denied that an injunction against those provisions would
require Defendants to recognize Plaintiffs Schall and Townley as a lawfully married couple
within the Commonwealth of Virginia. See Hejlinger v. Hejlinger, 136 Va. 289, 305-06, 118
S.E. 316,321 (1923) (essentials of contract of marriage depend upon the law of the domicile not
7
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Case 2:13-cv-00395-AWA-LRL Document 21 Filed 09/16/13 Page B of 12 PageiD# 107
the law of the state in which marriage is celebrated); Defense of Marriage Act, 2, II 0 Stat.
2419 [not challenged in United States v. Windsor, 133 S. Ct. 2675, 2682 (2013)].
COUNT I
DUE PROCESS
36. Defendant Rainey incorporates here by reference her responses to paragraphs I
through 35, supra, as if fully set forth herein.
37. Denied.
38. Denied that Virginia's laws including Virginia Code 20-45.2 and 20-45.3 and
Virginia Constitution Article I, 15-A impinge on fundamental liberties or cause Plaintiffs legal
injury.
39. Denied.
COUNT II
EQUAL PROTECTION
41. Denied.
42. Denied. Same-sex persons desiring to marry are not similarly situated to
different-sex persons desiring to marry within the meaning of the Equal Protection Clause of the
Fourteenth Amendment. It is further denied that Plaintiffs have been deprived of their legal
rights.
43. Denied. Marriage is not defined in Virginia in terms of sexual orientation. It is
further denied that Plaintiffs have been denied their legal rights.
44. Denied that the rights of Plaintiffs under the Fourteenth Amendment have been
violated; denied that the animus theory is supported historically as the source of Virginia's
definition of marriage or as the basis for Virginia Code 20-45.2 and 20-45.3 and Virginia
8
90
Constitution Article I, 15-A; and denied that the quoted language from Windsor, 133 S. Ct. at
2693, provides a rule of decision in this case.
45. Denied that Virginia's definition of marriage discriminates on the basis of sex
within the meaning of the Fourteenth Amendment.
46. Denied.
47. Denied.
COUNT III
VIOLATION OF 42 U.S.C. 1983
48. Defendant Rainey incorporates here by reference her responses to paragraphs 1
through 4 7, supra, as if fully set forth herein.
49. Because Plaintiffs have not been deprived of rights secured by the Due Process or
Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution there
has been no violation of 42 U.S.C. 1983.
IRREPARABLE INJURY
51. Denied that Plaintiffs have suffered any legal injury under any of the theories
pled.
52. Denied that Defendant Rainey is presently enforcing state laws to the legal
detriment of Plaintiffs under the Due Process or Equal Protection Clauses of the Fourteenth
Amendment. Denied that Plaintiffs' claims present an actual case or controversy because their
desire for same-sex marriage or recognition of extraterritorial, same-sex marriage cannot be
redressed simply by attacking the statutes and constitutional amendment at issue in light of the
pre-existing common and statutory law.
9
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53. All allegations not expressly admitted are denied.
54. Denied that Plaintiffs are entitled to any relief on any theory.
AFFIRMATIVE DEFENSES
1. Failure to state a claim upon which relief may be granted.
2. Stare decisis consisting of controlling United States Supreme Court authority
which may not be overturned by a lower court.
3. With respect to any civil union or impairment of political rights claim, lack of
subject matter jurisdiction for want of standing and ripeness.
4. With respect to any impairment of political rights claim, the sovereign
immunity/Eleventh Amendment bar because Defendant Rainey has no duties relevant to that
claim.
Respectfully Submitted,
JANET M. RAINEY,
in her official capacity
By: /s/
E-mail: rbeale@oag.state. va.us
(VSB No. 14156)
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
10
92
11
93
I hereby certify that on the 16th day of September 2013, I electronically filed the
foregoing with the Clerk of the Court using the CM!ECF system, which will send a notification
of such filing (NEF) to the following counsel of record for Plaintiffs:
Thomas B. Shuttleworth, VSB # 13330
Robert E. Ruloff, VSB # 13471
Charles B. Lustig, VSB # 29442
(757) 671-6000 (phone)
(757) 671-6004 (fax)
Counsel for Plaintiffi
/s/
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Case: 2:13-cv-00395 As of: 03/18/2014 12:56 PM EDT 1 of 1
APPEAL, CLOSED
U.S. District Court
Bostic et a! v. McDonnell et a! Date Filed: 07/18/2013
Case in other court: 4CCA- Case Manager RJ Warren,
Jury Demand: None
14-01167
14-01169
09/19/2013 22 ORDER granting.lll as follows: the MOTION to Dismiss As Moot the Motion to
Dismiss.l and the Motion to Intervene by Commonwealth Of Virginia..!!., is
granted in part. The motions [7 &9] have been rendered moot by subsequent
filings, but counsel are reminded that the proper means for updating the Docket is
to file a Notice of Withdrawal of the motions. Defendants' motion to dismiss as
moot 20 is construed liberally as this Notice of Withdrawal, and is granted as such.
Counsel are advised to refrain from superfluous filings and to seek guidance from
the Clerk of the Court when necessary to ensure compliance with Local Rules and
federal rules of procedure. Signed by District Judge Arenda L. Wright Allen on
09/19/2013. (Allen, Arenda) (Entered: 09/19/2013)
95
TilE EASTERN DISTRICT OF VIRGINIA
-NORFOLK DIVISION-
TIMOTHY B. BOSTIC, eta!.
Plaintiffs,
v. Case No.: 2:13cv395
JANET M. RAINEY, eta!.
Defendants.
ANSWER AND AFFIRMATIVE DEFENSES
NOW COMES Defendant George E. Schaefer, III, in his official capacity as the Circuit
Court Clerk of the City of Norfolk (hereinafter "Defendant Schaefer"), by counsel, and files his
Answer and Affirmative Defenses to the Plaintiffs' First Amended Complaint for Declaratory,
Injunctive and Other Relief as follows:
ANSWER TO COMPLAINT
1. The cases cited in paragraph 1 speak for themselves and require no response. Any
remaining allegations of paragraph 1 are denied.
2. Defendant Schaefer admits the Virginia Constitution and Virginia statutes define
marriage as between one man and one woman. The relevant portions of the Virginia
Constitution and statutes speak for themselves. Any remaining allegations of paragraph 2
are denied.
3. Defendant Schaefer admits the Virginia Code 20-45.2 addresses treatment of same sex
marriages entered into outside of the Commonwealth. This statute speaks for itself. Any
remaining allegations of paragraph 3 are denied.
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4. Defendant Schaefer denies Plaintiffs are entitled to the relief requested in paragraph 4.
Any remaining allegations of paragraph 4 are denied.
5. Defendant Schaefer admits the Amended Complaint raises federal questions of
Constitutional law but denies Plaintiffs are entitled to the relief requested.
6. Defendant Schaefer admits venue is proper in this Court.
7. Defendant Schaefer denies Plaintiffs are entitled to the relief requested in paragraph 7.
Any remaining allegations of paragraph 7 are denied.
8. Defendant Schaefer is without sufficient knowledge or information to admit or deny the
allegations of paragraph 8 and such allegations are thus denied.
I 0. Defendant Schaefer denies Plaintiffs are entitled to the relief requested in paragraph I 0.
Any remaining allegations of paragraph I 0 are denied.
allegations of paragraph II and such allegations are thus denied.
15. Defendant Schaefer admits he is the Clerk of the Circuit Court for the City of Norfolk,
Virginia, that under Virginia statute he issues marriage license, and his duties and
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responsibilities regarding issuance of such licenses as provided by law speak for
themselves. The remaining allegations of paragraph 15 are legal conclusions to which no
response is necessary, and such remaining allegations are thus denied.
16. Defendant Schaefer admits Defendant Janet M. Rainey is the State Registrar of Vital
records and her duties and responsibilities provided for by law speak for themselves. The
remaining allegations of paragraph 16 are legal conclusions to which no response is
necessary, and such remaining allegations are thus denied.
17. Defendant Schaefer admits that as a constitutional officer for the Commonwealth of
Virginia he, and those persons working in his office, are required to abide by and follow
all relevant laws, including but not limited to, the Virginia Constitution and Virginia
statutes when carrying out his duties and responsibilities. Upon information and belief,
Defendant Rainey is similarly required to abide by all laws when carrying out her duties
and responsibilities. Any remaining allegations of paragraph 17 are legal conclusions
and a statement of the relief requested to which no response is required, and Defendant
Schaefer thus denies the allegations of paragraph 17.
19. The statutory law and Virginia Constitutional amendment cited by Plaintiffs speak for
themselves. United States v. Windsor, _U.S._, 133 S. Ct. 2675 (2013) did not find
any individual state's regulation of marriage unconstitutional. Any remaining allegations
of paragraph 19 are denied.
20. The Virginia Constitution and statutes defming marriage as being between one man and
one woman speak for themselves. Defendant Schaefer admits any persons meeting the
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qualifications for a marriage license, as defmed by the Virginia Constitution and Virginia
statutes may be granted a marriage license in Virginia. Any remaining allegations of
paragraph 20 are denied.
21. Plaintiffs' entitlement to federal benefits and privileges are conclusions oflaw to which
no response is required and such allegations are thus denied. Defendant Schaefer is
without sufficient knowledge or information to admit or deny the allegations of paragraph
18 and such allegations are thus denied.
22. The relevant portions of the Virginia Constitution and statutes speak for themselves.
United States v. Windsor did not fmd any state's individual regulation of marriage
unconstitutional. Defendant Schaefer is without sufficient knowledge or information to
admit or deny the remaining allegations of paragraph 22 and such allegations are thus
denied.
United States v. Windsor did not find any individual state's regulation of marriage
unconstitutional. Any remaining allegations of paragraph 23 are denied.
24. To the extent paragraph 24 consists of legal conclusions, no response is required. The
relevant portions of the Virginia Constitution and statutes and the cases cited by Plaintiffs
speak for themselves. Defendant Schaefer denies any remaining allegations of paragraph
24.
26. Defendant Schaefer admits that upon information and belief Plaintiffs Bostic and London
came to the Norfolk Circuit Court Clerk's on or about July I, 2013 and inquired about
99
applying for a marriage license. Plaintiffs Bostic and London were informed by staff
members of the office that same sex couples could not be given a marriage license in the
Commonwealth of Virginia under the Virginia Constitution and statutes. Plaintiffs Bostic
and London were provided a copy of one or more of the relevant statutes and/or Virginia
constitutional provisions. Upon information and belief, Plaintiffs Bostic and London did
not submit an application for a marriage license. Defendant Schaefer is without sufficient
knowledge or information to admit or deny the remaining allegations of paragraph 25 and
such allegations are thus denied.
27. To the extent 27 consists of legal conclusions, no response is required. Defendant
Schaefer is without sufficient knowledge or information to admit or deny the allegations
of paragraph 27 and such allegations are thus denied.
Defendant Schaefer is without sufficient knowledge or information to admit or deny the
100
34. To the extent 34 consists of legal conclusions, no response is required. Defendant
of paragraph 34 and such allegations are thus denied.
3 5. To the extent 3 5 consists of legal conclusions, no response is required. Defendant
of paragraph 35 and such allegations are thus denied. Defendant Schaefer denies
Plaintiffs are entitled the relief requested.
36. Defendant Schaefer incorporates herein by reference paragraphs 1-35.
37. To the extent paragraph 37 consists of legal conclusions, no response is required. To the
extent a response is required, Defendant Schaefer denies the allegations of paragraph 3 7.
38. To the extent paragraph 38 consists of legal conclusions, no response is required. To the
extent a response is required, Defendant Schaefer denies the allegations of paragraph 38.
39. To the extent paragraph 39 consists oflegal conclusions, no response is required. To the
41. To the extent paragraph 41 consists oflegal conclusions, no response is required. To the
42. The Virginia Constitution and statutes defining marriage as being between one man and
one woman speak for themselves. Defendant Schaefer admits any persons meeting the
qualifications for a marriage license, as defined by the Virginia Constitution and Virginia
statutes may be granted a marriage license in Virginia. To the extent paragraph 42
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consists of legal conclusions, no response is required. The relevant portions of the
Virginia Constitution and statutes cited by Plaintiffs speak for themselves. To the extent
a response is required, Defendant Schaefer denies the allegations of paragraph 42.
relevant portions of the Virginia Constitution and statutes cited by Plaintiffs speak for
themselves. To the extent a response is required, Defendant Schaefer denies the
allegations of paragraph 43.
relevant portions of the Virginia Constitution and statutes and case law cited by Plaintiffs
speak for themselves. To the extent a response is required, Defendant Schaefer denies
the allegations of paragraph 44.
102
49. Defendant Schaefer denies he has violated 42 U.S.C. 1983 regarding Plaintiffs'
Constitutional rights. The relevant portions of the Virginia Constitution and statutes cited
by Plaintiffs speak for themselves. Any remaining allegations of paragraph 49 are
denied.
allegations regarding Plaintiffs' entitlement to the benefits which they claim to be denied,
and thus such allegations are denied. The relevant portions of the Virginia Constitution
and statutes cited by Plaintiffs speak for themselves. Defendant Schaefer denies any
remaining allegations of paragraph 51.
52. Defendant Schaefer denies the allegations of paragraph 52.
53. Defendant Schaefer denies Plaintiffs are entitled to the relief requested.
54. Any allegations not expressly admitted herein are denied.
1. Failure to state a claim upon which relief may be granted.
2. Absolute and/or qualified immunity.
3. Under the doctrine of stare decisis this Court is not permitted to overturn controlling
authority of the Unites States Supreme Court.
4. Upon information and belief some or all of the Plaintiffs lack standing to assert the
claims presented in the Complaint.
5. Upon information and belief, some or all of the Plaintiffs' claims are not ripe for judicial
determination by this Court.
103
Wherefore, Defendant George E. Schaefer, III, in his official capacity as Clerk of the
Court for the Norfolk Circuit Court, respectfully requests Plaintiffs' Amended Complaint be
dismissed with prejudice, Defendant Schaefer be awarded his costs and attorney's fees in
defending this matter and for such further relief deemed necessary and just.
Respectfully submitted this 20th day of September, 2013.
David B. Oakley, Esq.
Virginia Bar Number 72226
Jeffrey F. Brooke, Esq.
POOLE MAHONEY PC
860 Greenbrier Circle, Suite 401
Phone:757-962-6625
Fax:757-962-6180
capacity as Clerk of Court for Norfolk Circuit Court
By: /s/

Counsel for Defendant George E. Schaefer, III
in his official capacity as Clerk of Court for Norfolk Circuit Court
I hereby certify that on the 20th day of September, 2013, I electronically filed the
foregoing with the Clerk of Court using the CMIECF system which will then send a notification
of such filing (NEF) to the following:
Thomas B. Shuttleworth, Esq., tshuttleworth@srgslaw.com
Charles B. Lustig, Esq., clustig@srgslaw .com
and
E. Duncan Getchell, Jr.- dgetchcll@oag.state.va.us
104
And I hereby certify that I will mail the document by U.S. Mail to the following non-
filing user at his last known address:
By: Is/
POOLE MAHONEY PC
860 Greenbrier Circle, Suite 40 I
Phone: 757-962-6625
Fax:757-962-6180
Email: doakley@poolemahoney.com
105
TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v.
Defendants.
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
OR. IN THE ALTERNATIVE. PRELIMINARY INJUNCTION
Plaintiffs Timothy B. Bostic, Tony C. London, Carol Schall, and Mary Townley
("Plaintiffs"), by and through counsel, hereby move the Court to grant summary judgment in
their favor or, in the alternative, to enter a preliminary injunction in this matter. Plaintiffs'
motion is made pursuant to Rules 56 and 65 of the Federal Rules of Civil Procedure, and Local
Rules 7 and 56, on the grounds that Virginia Code Sections 20-45.2 and 20-45.3; Article I,
Section 15-A of the Constitution of Virginia; and any other Virginia law that bars marriage
between individuals of the same sex or prohibits the Commonwealth's recognition of otherwise-
lawful marriages between individuals of the same sex from other jurisdictions (collectively,
106
"Virginia's Marriage Prohibition") are facially unconstitutional. Virginia's Marriage Prohibition
should be declared unconstitutional and permanently enjoined throughout the Commonwealth.
As further set forth in the accompanying Memorandum In Support Of Plaintiffs' Motion,
Plaintiffs are entitled to summary judgment because Virginia's Marriage Prohibition violates the
Fourteenth Amendment of the United States Constitution as a matter oflaw. Virginia's Marriage
Prohibition violates Plaintiffs' rights to due process because it impermissibly impairs Plaintiffs'
fundamental constitutional right to marry. Virginia's Marriage Prohibition also violates
Plaintiffs' rights to equal protection because it burdens a fundamental constitutional right and
because it discriminates against Plaintiffs on the basis of their sexual orientation and their sex.
At a minimum, this Court should preliminarily enjoin the application of Virginia's
Marriage Prohibition to Plaintiffs pending trial. Plaintiffs are likely to succeed on the merits of
their claims, they will continue to suffer irreparable harm absent an injunction, a balance of the
eqnities favors Plaintiffs, and a preliminary injunction serves the public interest.
The points and authorities that further support Plaintiffs' motion are fully set forth in the
accompanying Memorandum In Support Of Plaintiffs' Motion For Summary Judgment Or, In
The Alternative, Preliminary Injunction, along with the Declarations of Timothy B. Bostic, Tony
C. London, Carol Schall, Mary Townley, and Charles B. Lustig, and the attached Exhibits.
For these reasons and those set forth in the accompanying Memorandum and
Declarations, Plaintiffs respectfully request this Court grant their motion for summary judgment
or, in the alternative, for a preliminary injunction.
2
107
Dated: September 30, 2013
David Boies, pro hac vice pending
dboies@bsfllp.com
BOIES, SCIDLLER & FLEXNER LLP
333 Main St.
Armonk, NY 10504
T: (914) 749-8200
F: (914) 749-8300
Robert B. Si1ver,pro hac vice pending
rsilver@bsfllp.com
Joshua I. Schiller, pro hac vice pending
jischiller@bsfllp.com
BOIES, SCHILLER & FLEXNER LLP
New York, NY 10022
T: (212) 446-2300
F: (914) 446-2350
William A. Isaacson, pro hac vice pending
wisaacson@bsfllp.com
5301 Wisconsin Avenue, N.W.
Washington, D.C. 20015
T: (202)237-2727
F: (202)237-6131
Jeremy M. Goldman, pro hac vice pending
jgoldman@bsfllp.com
1999 Harrison Street, Suite 900
Is/ Charles B. Lustig
tshutt1eworth@srgslaw.com
Robert E. Ru1off, VSB # 13471
rruloff@srgslaw.com
clustig@srgslaw.com
SHUTTLEWORTH, RULOFF, SWAIN,
T: (757) 671-6000
F: (757) 671-6004
Theodore B. Olson, pro hac vice pending
tolson@gibsondunn.com
Matthew D. McGill, pro hac vice pending
mmcgill@gibsondunn.com
Amir Tayrani,pro hac vice pending
atayrani@gibsondunn.com
Chantale Fiebig, pro hac vice pending
cfiebig@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
T: (202) 955-8668
F: (202) 467-0539
Theodore J. Boutrous, Jr., pro hac vice pending
tboutrous@gibsondunn.com
Joshua S. Lipshutz, pro hac vice pending
j1ipshutz@gibsondunn.com
Los Angeles, CA 90071
T: (213) 229-7000
F: (213) 229-7520
3
108
Oakland, CA 94612
T: (510) 874-1000
F: (510)874-1460
4
109
I hereby certify that on this 30th day of September, 2013, I electronically filed the
foregoing Plaintiffs' Motion For Summary Judgment Or, In The Alternative, Preliminary
Injunction with the Clerk of the Court using the CM/ECF system which will send electronic
notification of such filing to E. Duncan Getchell, Jr., Esq., Counsel for Defendant Rainey, and to
David B. Oakley, Esq., Counsel for Defendant Schaefer.
dboies@bsfllp.com
333 Main St.
Armonk, NY 10504
T: (914) 749-8200
F: (914) 749-8300
Robert B. Silver, pro hac vice pending
rsilver@bsfllp.com
Joshua I. Schiller,pro hac vice pending
New York, NY 10022
T: (212) 446-2300
F: (914) 446-2350
rruloff@srgslaw.com
clustig@srgslaw.com
4525 South Blvd., Snite 300
T: (757) 671-6000
F: (757) 671-6004
Amir Tayrani,pro hac vice pending
T: (202) 955-8668
F: (202) 467-0539
Theodore J. Boutrous, Jr.,pro hac vice pending
110
5301 Wisconsin Avenue, N. W.
T: (202)237-2727
F: (202)237-6131
jgoldman@bsfllp.com
Oakland, CA 94612
T: (510) 874-1000
F: (510)874-1460
jlipshutz@gibsondunn.com
T: (213) 229-7000
F: (213) 229-7520
Counsel for Plaintifft
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111
Case 2:13-cv-00395-AWA-LRL Document 26-1 Filed 09/30/13 Page 1 of 4 PageiD# 174
TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v.
Defendants.
DECLARATION OF TIMOTHY B. BOSTIC
I, Timothy B. Bostic, swear to the following facts under the penalty of perjury:
1 . I am an adult male resident ofNorfolk, Virginia, and I am competent to testifY to the
following facts based on my personal knowledge.
2. I am a member of the faculty at Old Dominium University in Norfolk, Virginia I am an
Assistant Professor of English Education and I teach English Education to undergraduates.
3. Since 1989, I have been in a committed relationship with Plaintiff Tony C. London. We
have lived together in Virginia continuously since February 1991, and we own a home together
in Norfolk.
112
4. Tony is the most important person in my life. We have a loving, supportive relationship,
and we share the joys and challenges of our daily lives. Tony is my companion and life mate,
and I love him very much.
5. I want to marry Tony. Through marriage, we will publicly vow our willingness to accept
the responsibilities of caring for one another every day for the rest of our lives, and the law will
view us as a single family unit. That is important to me.
6. On July 1, 2013, Tony and I applied for a marriage license at the office of the Clerk of
the Circuit Court for the City of Norfolk. We drove to the Clerk's office together and filled out
our application on one of the office's computer terminals.
7. In our application, we stated that we are both over the age of 18 and that we are not
related. Once we had completed answering all of the questions, Tony and I hit the "SEND"
button to officially submit our application.
8. We knew that in order to obtain a marriage license, we had to pay a $20 fee. After we
submitted our application, we approached the counter in the Clerk's office that accepts payments
for applications.
9. When the employee behind the counter saw us approach and realized that we were two
men applying to get married, the employee told us that we could not pay for an application
because we could not receive a marriage license in Virginia.
10. The employee offered to have a supervisor speak with us, and Tony agreed. The
supervisor came out and told us that we could not get a marriage license in Virginia because we
are a same-sex couple. Then the supervisor gave us a copy of a Virginia statute and a business
card.
2
113
11. We were sad, disappointed, frustrated, and angry to leave the Clerk's office without a
marriage license. We continue to feel the pain of the Commonwealth's rejection in our daily
lives.
12. We would like the ability to receive the same rights and responsibilities that other
committed couples in Virginia receive through marriage.
13 .For example, we would like to file joint tax returns, but we cannot. We would like to
name one another on our respective health insurance and benefit plans without having to pay
taxes on those benefits, but we cannot. In addition, we would like for the many things that we
have acquired in our 25 years together to belong to both of us as marital property, but they do
not.
14. Even for purely commercial issues, like obtaining better rates for automobile, life, and
homeowners insurance, we are disadvantaged because we cannot get married.
15. There are major life decisions that Tony and I would like to entrust to one another
without having to hire a lawyer and incur significant legal fees. For example, if Tony was my
spouse, he could make medical decisions for me (and I for him) in the event of a serious illness
without an advance medical directive. Also, ifl died, he would inherit my entire estate even
without a will, and vice versa.
16. Even our home, which we purchased and have lived in together since 1997, does not
belong to both of us as tenants in the entirety because we cannot get married.
17 .Because Virginia will not allow me to marry Tony, we are also denied a host of federal
benefits that are reserved for married couples.
18. Tony and I are as equally deserving as any other couple of the right to get married in
Virginia. I am hurt, angry, disappointed, and embarrassed that the Commonwealth of Virginia
3
114
denies us that right. I feel that the Commonwealth is telling us that we are not good enough to
get married and that we are "less than" other couples in Virginia. This makes me feel like a
second-class citizen. I feel tremendous pain and indignity as a result of the Commonwealth's
refusal to allow us to marry and I carry that pain with me every day.
I declare under penalty of perjury, under the laws of the Commonwealth of Virginia and
under the laws of the United States of America, that the foregoing facts are true.
Dated: Sertemher 2 ~ 2013
4
115
TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v.
Defendants.
DECLARATION OF TONY C. LONDON
I, Tony C. London, swear to the following facts under the penalty of perjury:
I. I am an adult male resident of Norfolk, Virginia. I am competent to testify to the
following facts based on my personal knowledge.
2. I have lived in Virginia continuously since March 1990.
3. I served in the United States Navy and was honorably discharged at the end of my
service. Since 1997, I have worked as a real estate agent in Virginia. I specialize in residential
properties.
4. I have been in a long-term, committed relationship with Timothy B. Bostic since 1989.
He moved to Virginia in February of 1991, and we have lived together since that time.
116
5. For nearly 25 years, Tim has been my partner in life. We own a home together, and we
share our daily experiences and hopes for the future with one another. I rely on him for many
things, including companionship and emotional support.
6. I have wanted to legally marry Tim for many years. Getting married would allow us to
officially commit ourselves to one another in the presence of our families, friends, and
community. Through marriage, we could legally assume the rights and responsibilities that other
loving couples in Virginia enjoy.
7. On July I, 2013, Tim and I went to the office of the Clerk of the Circuit Court for the
City ofNorfolk to apply for a marriage license.
8. The Clerk's office provides several computer terminals through which people can submit
their applications. Tim and I completed our application at one of the computer terminals in the
Clerk's office. In the application, we represented that we were both over the age of 18 and that
we are not related to one another. When we finished our electronic application, we hit the
"SEND" button.
9. After submitting our electronic application, Tim and I went to the part of the Clerk's
office that accepts the $20 payment all applicants have to pay in order to receive a marriage
license. When we got there, the Clerk's office employee saw that we were both men and told us
that we could not pay for a marriage license. The employee then asked if we wanted to speak to
a supervisor and I said that we did.
10. The supervisor came and spoke with Tim and me. The supervisor told us that we could
not get married in Virginia because we are a same-sex couple. The supervisor then gave us a
copy of a Virginia statute and a business card.
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11. Tim and I are both very disappointed. We think that it is very important to get married
because of the significance that marriage carries not only to us individually, but also to society.
It is very painful to have the State of Virginia refuse to give us a marriage license when all we
want are the same rights that other couples in Virginia have.
12. Because we are not able to get married, we have fewer legal and property rights than
other people. For instance, Tim and I own our home in Norfolk. We bought it together, using
both of our resources, in 1997. If we were married, we could own the home as tenants in the
entirety, but since we cannot get married, we do not.
13. In addition, in over 25 years together, we have acquired many things, including artwork,
automobiles, and various personal effects. If we were married, many of these items would be
considered marital property and likely divided equally if we were to divorce. Neither of us have
the protections of the divorce laws.
14. If we were legally able to marry, I would automatically inherit Tim's estate if he died.
But since we cannot get married in Virginia, I would not inherit any of his property without a
will.
15. The tax consequences are also significant. For example, we cannot file joint tax returns
as a married couple, so we each pay more in state income taxes than we otherwise would. I have
listed Tim as a beneficiary to my insurance policies and employee benefit plans, but he will have
to pay state taxes on any benefits he receives.
16. In addition, Tim and I are not able to take advantage of the lower rates available to
married couples for automobile, life, and homeowners insurance.
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17. If Tim were to get seriously ill, I could not make medical decisions on his behalf without
an advance medical directive. Ifl were ill and did not have an advance medical directive, Tim
could not make decisions for my medical care either.
18. There are many federal benefits that are unavailable to us as well because the
Commonwealth will not allow us to marry one another.
19. The social, legal, and economic consequences are difficult to deal with, but the emotional
consequences are the most difficult. I love Tim and want to spend the rest of my life with him.
It is humiliating that Tim and I cannot get married in Virginia.
20. I am ashamed, embarrassed, and significantly pained that the Commonwealth of Virginia
will not legally allow us to marry. I have served this country and I am a veteran, but I feel like a
second-class citizen in the Commonwealth. Tim and I feel the stigma of disapproval because of
Virginia's discrimination. It is unfair that we have been singled out for this treatment, and I feel
tremendous pain and sadness as a result.
I declare under of under the la"s of the ( ,,mmom\eallh of Virginia and
under the Ia\\,; ,,fthe l !nited States of America. that the foregoing fa..: Is are true.
l)atcd: S<.'ptember)tl. 2013
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119
TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v.
Defendants.
DECLARATION OF CAROL SCHALL
I, Carol Schall, swear to the following facts under the penalty of peijury:
1. I am an adult female resident of Chesterfield County, Virginia. I am competent to testify
to the following facts based on my personal knowledge.
2. I have lived in Virginia since 1982, when I moved here after college.
3. I have worked in special education for many years. Currently, I am an Assistant
Professor in the School of Education at Virginia Commonwealth University ("VCU") in
Richmond, Virginia. In addition to teaching, I conduct research that focuses on the best practices
for teaching autistic children.
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4. Before I joined the faculty at VCU, I worked for the Grafton School. The Grafton School
is based in Winchester, Virginia, but I worked at the Richmond branch. I was the Director for
the Virginia Autism Resources Center.
5. Since 1985, I have been in a committed relationship with my wife, Mary Townley.
6. Mary and I got married in California in 2008. Though we have lived in Virginia
throughout our 30-year relationship, we traveled to California to get married because we could
not legally get married in our own State. At the time of our wedding, we were both over the age
of 18 and unrelated, but Virginia would not allow us to marry because we are a same-sex couple.
7. Mary and I have been happily married for the last five years. We share every aspect of
our lives and look forward to spending the rest of our lives together. Even though we were
legally married in California, the Commonwealth still does not recognize our marriage.
8. In 1998, Mary gave birth to our daughter, E. S.-T. I supported Mary every day
throughout pregnancy and delivery.
9. During Mary's pregnancy, she experienced complications. On one occasion, Mary had
severe abdominal cramping and was in so much pain that she could not talk. I rushed her to the
emergency room at VCU's Medical Center. I left my car parked in a no-parking zone while I ran
inside the hospital to get help for Mary. Once she was receiving medical care, the hospital staff
asked me to move the car. I did so but when I returned to the hospital, the staff refused to let me
see Mary and refused to even give me any information about her condition for several hours,
until she could speak to inform them that I was her spouse.
10. I have loved and raised E. S.-T. since the day that she was born. I am her mother, and
she is my child.
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11. Mary and I are both parents to E. S.-T. She is the most important thing in both of our
lives and we are a family. Mary and I both provide for E. S.-T. fmancially. We both participate
in the details of her life: we pack her lunches, make sure she does her homework, and drive her
to activities, among many other things. We are both committed to making sure that E. S.-T. has
a safe and loving home in which to grow.
12. I have always wanted to adopt E. 8.-T. but I cannot under Virginia law.
13. Since I cannot adopt E. S.-T., Mary and I hired a lawyer to petition a court to give me full
joint legal and physical custody of E. S.-T. We spent a significant amount oftime and money to
conduct those court proceedings.
14. The court granted our petition but I am still unable to adopt my own daughter. As a
result, we are legally unrelated to one another.
15. In addition, because Virginia does not recognize our legal marriage, Mary and I cannot
obtain a birth certificate for E. 8.-T. that lists us both as her parents.
16. In fact, Mary still has to inform E. S.-T .'s school each year that I have permission to pick
up my own child.
17. Last year, Mary and I went to the post office to renew E. S.-T .'s passport. When we got
to the counter and presented her documents, the postal employee that was processing the
paperwork saw that 1 was listed as one of E. 8.-T.'s parents. The employee then said to me,
"You're nobody, you don't matter." Then she crossed a line through my name on the renewal
form.
18. E. S.-T. has also suffered through embarrassing situations, including being teased at
school. I believe that she would not be mistreated by her classmates on account of her family if
the Commonwealth recognized our marriage so that there was less stigma for us and for her.
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19. Despite these challenges, E. S.-T. has grown into a well-adjusted 15-year-old girl. Mary
and I are both very proud of our daughter.
20. Mary and I have experienced legal, financial, social and emotional consequences from
Virginia's refusal to recognize our legal marriage.
21. For example, until February of this year, neither Mary nor I could include each other on
the health insurance coverage we received from our employers. In fact, after E. S.-T. was born,
Mary had to go back to work because her health insurance was ending and I could not add her to
my health insurance plan. Since February, Mary's employer has allowed her to include me in
her coverage but Mary has to pay state income taxes on the benefit. If Virginia would recognize
our marriage, we believe that we would not be subject to this tax.
22. When E. S.-T. was born, and when my mother passed away, Mary and I could not take
protected leave time from work under the Family Medical Leave Act because Virginia does not
recognize our marriage.
23. Even though we are legally married, we cannot file income tax returns as a married
couple in Virginia. As a result, we pay more in state income taxes than we would otherwise have
to pay.
24. I have named both Mary and E. S.-T. as beneficiaries to my insurance and employee
benefits plans but both of them would have to pay taxes on any benefits they receive.
25. The favorable rates that insurance companies offer to married couples for home, life, and
car insurance in Virginia are not available to us because Virginia does not recognize our
marriage.
26. Mary and I wish we had the property protections available for married couples under
Virginia law. For example, if Virginia recognized our marriage, the possessions we have
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123
acquired during our nearly 30 years together would be considered marital property; we would
inherit each other's estate if one of us died; and we could own our home together as tenants in
the entirety. None of these legal property protections is available to us even though we are
married.
27. Even though Mary is my spouse, in Virginia, without an advance medical directive, I
could not make medical decisions for her, nor could she for me.
28. More importantly, E. S.-T. has fewer legal rights and protections than other children
because Virginia will not recognize our marriage. If both Mary and I were to die without a will,
E. S.-T. would not inherit my estate. Even with a will, she will probably have to pay taxes on
anything she receives from my estate.
29. In addition, Mary and I worry that the agreements, contracts, and arrangements that we
have made for E. S.-T.-for her long-term care and fmancial support---;:ould be ignored or
invalidated by a Virginia court.
30. We, as a family, wish that we had the protections of Virginia's laws. And Mary and I
wish for our benefit and E. S.-T. 's that the Commonwealth would recognize our marriage.
31. I am embarrassed and humiliated that the Commonwealth will not recognize our
marriage. I feel angry, hurt, and ashamed every time I carmot legally or socially claim Mary as
my wife. It is very painful to know that our marriage is treated unequally to others under
Virginia's laws because it makes me feel that the Commonwealth has singled us out and decided
that we are not "good enough" for its approval. The Commonwealth rejects the decision that
Mary and I have made to marry and that rejection makes me feel like a second-class citizen in
the Commonwealth.
5
124
I declare under penalty ofpeJjury, under the laws of the Commonwealth of Virginia and
Dated; 2013
Carol Schall
6
125
TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v.
Defendants.
DECLARATION OF MARY TOWNLEY
I, Mary Townley, swear to the following facts under the penalty of peljury:
1. I am an adult woman living in Chesterfield County, Virginia. I am competent to testify to
the following facts based on my personal knowledge.
2. I have lived in Virginia since 1983.
3. I have been in a committed relationship with Plaintiff Carol Schall since 1985.
4. Carol and I both work in special education. For several years, I worked with special
needs children in the public school system in Winchester, Virginia, and in Frederick County,
Virginia.
126
5. I currently serve as the Supervisor of Transition at Health Diagnostic Laboratory, Inc.
("HDL"). I help train individuals with significant disabilities so that they can work at HDL.
6. Because we could not get married in Virginia, I married Carol in California in 2008. As
my wife, Carol provides me with love, support, companionship, and a sense of security. I love
the time that we spend with one another and I look forward to a long life together.
7. In 1998, I gave birth to our daughter, E. S.-T. She is now 15 years old. Carol and I are
both parents to E. S.-T. We provide a loving home for her and provide for her fmancially. We
also provide her with structure, love, attention, encouragement, and support. Every decision that
we make in our lives is with E. S.-T. 's best interests at heart.
8. While I was pregnant with her, I had severe complications that landed me in the
emergency room. I could not even speak. Carol drove me to the hospital and parked the car in a
tow zone. After I was safely in the hands of the medical staff, she went to move her car. When
she returned, they would not let her visit me or give her any information about my condition
because the law does not recognize her as my spouse. When I was finally able to speak, I
informed the medical staff that she was my wife.
9. Carol has wanted to adopt E. S.-T. since she was born but she carmot under Virginia's
laws. As a result, we had to hire an estate plarming attorney to petition the court so that Carol
can have full joint legal and physical custody of E. S.-T.
10. The court granted our petition but Carol still cannot adopt E. S.-T. In addition, Carol and
I carmot obtain a marriage license or a birth certificate for our daughter that lists us both as E.
S.-T.'s parents because Virginia will not recognize my marriage to Carol.
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127
11. Carol is equally a parent to E. S.-T., and I am frustrated that Virginia law does not
recognize Carol as her parent or the three of us as a family. Each year, I have to tell E. S.-T.'s
school that Carol can pick up her own daughter.
12. In 2012, Carol and I went to the post office to renew E. S.-T.'s passport. When we
presented her documentation, the postal employee servicing us told Carol, "You're nobody, you
don't matter." Then she crossed a line through her name on the renewal form.
13. These types of situations are difficult for all of us. In spite of them, E. S.-T. is a happy
and confident teenager, even though she feels (as do I) that her family is being singled out,
stigmatized, and discriminated against.
14. After E. S.-T. was born, I had to return to work largely because my health insurance
coverage was expiring and I could not get coverage through Carol's employer. Since February
2003, I have been able to cover Carol through my employer's insurance plan, but I still have to
pay state income taxes on that benefit. I do not believe that I would have to pay those taxes if
Virginia recognized our marriage.
15. Carol and I have been denied additional benefits in Virginia that are available to other
legally married couples. For example, we cannot file income tax returns as a married couple in
Virginia. As a result, we pay more in state income taxes than we would otherwise have to pay.
Also, though Carol is my designated beneficiary for my employee benefit and insurance plans, if
I were to be seriously injured or die, she would owe state taxes on those benefits as well (and
vice versa).
16. Because Virginia does not recognize our marriage, we have fewer legal and property
rights than other legally married couples. Those rights include the right to make medical
decisions for one another without an advance medical directive; the right to inherit one another's
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128
estate without a will aud without being subject to certain taxes; the right to jointly own a home as
tenauts in the entirety; or the right to have our mutual property acquired during the course of our
marriage deemed marital property.
17. Carol aud I do not qualify for favorable rates that are available to other legally married
couples in Virginia for automobile, home, and life insurance plaus. And we are not able to take
advantage of mauy federal benefits that are only available to legally married couples, like the
Family Medical Leave Act.
18. Carol aud I are concerned about the arrangements that we have made for E. S.-T.'s future
because Virginia will not recognize our marriage and courts in the Commonwealth could declare
our agreements about her care aud custody to be void aud unenforceable.
19. I waut the Commonwealth of Virginia to recognize my legal marriage to Carol. We are a
loving, married couple aud our greatest gift is being parents to E. S.-T. We waut the same legal
protections for our relationship aud our family that Virginia provides to other legally married
couples aud we waut to live proudly as married residents of Virginia.
20. I am saddened, hurt, angered, aud humiliated that the Commonwealth will not recognize
my marriage to Carol. I feel that our marriage is deemed "less thau" and unequal to other
marriages in Virginia. The Commonwealth's discrimination impacts me, Carol, aud E. S.-T.
because we all suffer from the stigma that we feel. We waut to be treated equally to other
couples aud Virginia's refusal to recognize our marriage makes me feel hopeless aud ashamed.
4
129
I declare under penalty ofpetjury, under the laws of the Commonwealth ofVirginia and
Dated: 20 13
5
130
TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v.
Defendants.
DECLARATION OF CHARLES B. LUSTIG IN SUPPORT OF PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
PRELIMINARY INJUNCTION
I, Charles B. Lustig, declare as follows:
1. I am an attorney licensed to practice law in the Commonwealth of Virginia and a member
of the Bar of this Court. I am an associate at the law firm of Shuttleworth, Ruloff, Swain,
Haddad & Morecock, P.C., counsel for Plaintiffs Timothy B. Bostic, Tony C. London, Carol
Schall, and Mary Townley. I make this declaration in support of Plaintiffs' Motion for Summary
Judgment Or, In The Alternative, Preliminary Injunction. I have personal knowledge of the
matters set forth in this Declaration and, if called, could and would competently testify to the
matters set forth below.
131
2. Attached hereto as Exhibit A is a true and correct copy of the following news article from
the Washington Times website: 'Gay-straight' Clubs in Schools Anger Foes, Washington Times
(Nov. 17, 2004), available at http://www.washingtontimes.com/news/2004/nov/17/20041117-
l 00457-5569r/print/.
3. Attached hereto as Exhibit B is a true and correct copy of the following letter to the editor
from the Washington Post website: Del. Robert G. Marshall, No 'New Jim Crow' in Virginia,
Washington Post (Jul. 3, 2004), available at http://www.washingtonpost.com)wp-
dyn/ articles/ A24 784-2004Jul2 .html.
4. Attached hereto as Exhibit C is a true and correct copy of a letter, dated September 14,
2006, from Robert McDonnell, as Attorney General, to several members of the Virginia
legislature, providing an advisory opinion on the proposed amendment to Virginia's Constitution
to restrict marriage to opposite-sex couples.
5. Attached hereto as Exhibit Dis a true and correct copy of the following news article from
the Washington Post website: Chris L. Jenkins, Gay Marriage Ban Advances in Va., Washington
Post (Jan. 14, 2006), available at http://www.washingtonpost.comJwp-
dyn/contentlarticle/2006/01113/ AR2006011301785.html.
6. Attached hereto as Exhibit Eisa true and correct copy of the following news article from
the Washington Post website: Rosalind S. Helderman & Chris L. Jenkins, Va. Senate Backs Ban
on Gay Marriage, Washington Post (Feb. 8, 2005), available at
http://www .washingtonpost.comJwp-dyn/articles/ A6204-2005F eb 7 .html.
7. Attached hereto as Exhibit F is a true and correct copy of the following editor's weblog
entry from the Washington Post website: Marc Fisher, Cuccinelli Basks in Richmond's Warmer
2
132
Climate, Washington Post (Feb. 5, 2008), available at http:/larticles.washingtonpost.com/2008-
02-05/opinions/36844496 I ken-cuccinelli-virginia-senate-divorce-law.
8. Attached hereto as Exhibit G is a true and correct copy of the following editorial from the
Virginian-Pilot website: Steve Shannon for Attorney General, Virginian-Pilot (Oct. 26, 2009),
available at http://hamptonroads.com/2009/1 0/steve-shannon-attorney-general.
9. Attached hereto as Exhibit His a true and correct copy of the following news article from
the Hujjington Post website: Luke Johnson, Ken Cuccinelli Loses Petition to Uphold Anti-
Sodomy Law, Huffington Post (Apr. 10, 2013), available at
http:/lwv.'W.huftim!tonpost.com/2013/04/1 0/ken-cuccinelli-sodomy n 3051758.html.
I 0. Attached hereto as Exhibit I is a true and correct copy of an Executive Order given by
Governor Robert McDonnell on February 5, 2010 regarding equal opportunity in state
employment.
II. Attached hereto as Exhibit J is a true and correct copy of a letter, dated March 4, 20 I 0,
from Attorney General Kenneth Cuccinelli to the presidents, rectors, and visitors of Virginia's
public colleges and universities regarding the exclusion of sexual orientation from many
nondiscrimination policies at public colleges and universities in Virginia.
12. Attached hereto as Exhibit K is a true and correct copy ofthe following news article from
the Washington Post website: Ned Martel, Gay Rights Advocates Welcome Election Day Results
for a Change, Washington Post (Nov. 8, 2012), available at
http://articles.washingtonrost.com/20 12-11-07 /politics/35507005 I marriage-ban-opponents-of-
gay-marriage-marriage-law.
3
133
13. Attached hereto as Exhibit Lis a true and correct copy of the Virginia Department of
Health's website page titled "Marriage Requirements," available at
http://www.vdh.state.va.us/vital records/marrv.htm.
14. Attached hereto as Exhibit M is a true and correct copy of the following journal article:
Alexis Dinno & Chelsea Whitney, Same Sex Marriage and the Perceived Assault on Opposite
Sex Marriage, PLoS ONE 8(6): e65730 (2013), available at
http://www.plosone.org/article/info%3Adoi%2Fl 0.13 71 %2Fjournal.pone.006573 0.
15. Attached hereto as Exhibit N is a true and CO!Tect copy of the following news article from
the NBC Chicago website: Edward McClelland, States That Allow Same-Sex Marriage Have
Lower Divorce Rates, NBC (Jun. 27, 2013), available at
http: I /www.nbccbicago.com/blogs/ward-room/States-That-Allow-Same-Sex -Marriage-Have-
Lower-Divorce-Rates-213 33535l.html.
16. On September 24,2013, I accessed a video on the Internet site YouTube, available at
http://www.youtube.com/watch?v=293IMA2san4. The video's title is "For God's Design," and
the video is captioned as "[a] commercial that promotes passage of Virginia's marriage
amendment on November 7. Produced for va4marriage.org." I accurately transcribed the
commercial and included portions of that transcription in the Motion supported by this
Declaration.
17. On September 24, 2013, I accessed the Federal Bureau oflnvestigation's publicly
available hate crimes statistics website available at http://www.fbi.gov/about-us/cjis/ucr/ucr-
publications#Hate. For each year from 2004 through 2011, I accessed the table displaying hate
crime incidents per bias motivation and quarter in Virginia. I accurately tallied the number of
4
134
incidents reported because of a bias against minority sexual orientations and included that
number in the Motion supported by this Declaration.
I declare under penalty of perjury, under the laws of the Commonwealth of Virginia and
under the laws of the United States of America, that the foregoing is true and correct.
Executed this 30th day of September, 2013.
By:
5
~ 1
Charles B. Lustig
135
EXHIBIT A
PRELMINARY INJUNCTION
136
'Gay-straight' clubs in schools anger foes -Washington Times
Case 2:13-cv-00395-AWA-LRL Document 26-6 Filed 09/30/13
NEWS
EDITORS' PICKS:
'Gay-straight' clubs in schools anger foes
COMMENTS (0: SIZE + I- P ~ J \ " 1
By The Washington T:mes Wednesday November 17 2004
Family groups and state lawmakers say gay-straight" student clubs In the region - some even are
operating at middle schools - promote homosexuality and encourage teens to be sexually active.
Students in Virginia, Maryland and the District have formed dozens of such school clubs In an attempt
to foster tolerance.
The formation of these clubs has become an issue in Virginia, where homosexual..nghts advocates say
the clubs help communities bridge divisions - but more conservative groups fear students will be lured
into engaging in behavior they don't support.
"They are teaching acceptance and that it's OK to be a homosexual and to practice homosexual sex
acts: said John Elledge chairman of the Republican Party of Harrisonburg, Va. "I'm all for just getting
along, but I'm not at all for having a sexually oriented club in our high school.
Students in Prince William County's C.D. Hylton High School want to form a Gay-Straight Alliance after-
school club, and have a petition on the Internet. They claim the club will be a safe environment" in
which students can talk about homosexual issues in school and that they will discuss coming out and
bullying by other students.
Some clubs are being formed at schools that have even younger students.
For example, the Garrison Forest School in Owings Mills, Md., has a Gay-Straight Alliance student club,
according to the Gay, Lesbian and Straight Education Network (GLSEN), which registers such clubs.
OffiCials at Garrison Forest School, which has elementary, middle and high school students, did not
return calls.
The Oldfields School in Glencoe, Md., a boarding school that also has eighth-grade students, has a
Gay-Straight Alliance.
GLSEN officials said there are at least 40 gay-straight clubs at schools in Virginia, 54 in Maryland and
two In the District.
George Mason Middle School in Falls Church is listed with GLSEN, as is George Mason High School.
But school offiCials at George Mason Middle School said this week there is no such group on campus.
Mr. Elledge, who recenUy learned about Harrisonburg High School's Gay-Straight Alliance, wants it
disbanded. He has been lobbying the local school board to discontinue the club.
somewhere, you have to draw a line, said Mr. Elledge. who also serves as the legislative assistant for
Delegate Glenn M. Weatherholtz, Harrisonburg Republican. n may be that they think the community is
approving of this.
But Rhonda Buckner, executive director of the Metro D.C. Parents, Families and Friends of Lesbians
and Gays (PFLAG}, said the clubs are a "valuable resource" that help to enlighten students, their
parents and the greater communities.
Page I of2
Page 2 of 3 PageiD# 199
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137
'Gay-straight' clubs in schools anger foes -Washington Times
"Parents are afraid of these groups because they don't understand them," Miss Buckner said. "They
hear the word 'gay,' and they are afraid their kid is going to catch it. lfs not catchable."
Miss Buckner noted the clubs usually are supervised by a teacher, who has a responsibility to keep the
conversation "age-appropriate:
Harrisonburg High School Principal Irene Reynolds told the Associated Press that students have the
right under federal law to form the group.
Advocates for the clubs say they have nothing to do with sex.
"When gay-straight alliances get started, they receive opposition from extremists in the area, who feel
somehow it's promoting a homosexual agenda,ft said Dyana Mason, executive director of Equality
Virginia. ''Thafs just blatantly not true. Students come together to create an environment where
everyone Is treated equally and respectfully. It's a support group for gay students and their friends, as
much as it is a group to educate the population."
Delegate Richard H. Black called that perspective "nonsense.
"The whole agenda of the homosexual movement is to entice children to submit to sex practices," the
Loudoun County Republican said. "Those groups lead children to experiment with potentially fatal sex
practices that spread AIDS and other sexually transmitted diseases."
GLSEN offers tips on its Web site for students to fonn such clubs.
Harassment of homosexual students is "a daily reality in schools," and the clubs are a proactive way to
address that, said Eliza Byard, deputy executive director of GLSEN.
"These student clubs represent a student response to a problem they see in school every day," she
said, noting an increase in gay-straight clubs across the country over the past decade. "Students are
trying to improve their school climate."
GLSEN has 2,500 gay-straight clubs registered with its organization, and Miss Byard estimates there
are probably many more.
Victoria Cobb, director of legislative affairs for the Family Foundation of VIrginia, said
she worries that while clubs are growing, religious education is being "forced" from schools.
Such clubs are violating the state's curriculum of teaching abstinence, and should be disbanded, she
said.
"Taxpayers should not be asked to fund homosexual dating services in our schools," Mrs. Cobb said.
"Schools have the ability and the right to disband these groups.
This article is based in part on wire service reports.
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138
EXHIBITB
139
No 'New Jim Crow' in Virginia (washingtonpost.com)
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No 'New Jim Crow' in Virginia
Saturday, July 3, 2004; Page A25
If Virginia can't pass a law that limits marriage to a man and a woman and
rejects all counterfeits ["Virginia's New Jim Crow," oped, June 13], then the
legislature cannot reject the claims of bisexuals who say they can love and be
committed to both a male and a female.
.... A Dl' 111111r; Counterfeit money hurts our wallets. Counterfeit marriage will
do the same to real marriage. Homosexuals need no special institution parallel
to marriage, such as civil unions or domestic partnerships, to enjoy the same
rights under law to vote, buy a house, go to public colleges, start businesses,
and exercise rights and opportunities now available to all Virginians.
In 1997 Virginia prohibited same-sex marriage; it also declared that a same-sex
marriage approved elsewhere would "be void in all respects in Virginia and any
contractual rights created by such marriage shall be void and unenforceable."
What? No complaints about overbroad language and void contracts? Virginia
homosexuals could have gotten "married'' in Holland and returned. Did that
void their power of attorney, joint bank accounts or wills in Virginia? No! Did
Gov. Mark Warner "correct" the 1997law? No!
Attorney General Jerry Kilgore said that the Marriage Affirmation Act
"provides a needed safeguard for the institution of marriage while not depriving
any individual of rights currently available t(l all citizens .... The purpose of
this legislation is not to prohibit business partnership agreements, medical
directives, joint bank accounts, or any other rights or privileges not exclusive to
the institution of marriage."
Two-thirds of the Virginia Geneml Assembly-- Democrats, Republicans and
independents - simply added civil unions and domestic partnerships to the
existing prohibition against same-sex marriage. The law is needed to resist the
agenda of activist homosexuals. The danger is real.
In Massachusetts, public schools teach about gay marriage and gay sex. In New
York City, the Salvation Army may walk away from $250 million in city
contracts to help the poor, abandoned children, battered women and AIDS
patients because the city requires its contract()J'S to provide partner benefits to
same-sex and unmarried couples, which offends the Salvation Army's religious
beliefs. In Virginia, activist homosexuals opposed legislation that criminalizes
sex in public. They called it "anti-gay." They also opposed a law allowing the
Boy Scouts to meet in public schools because they consider the Scouts "anti-
gay." In 2004, homosexual couples went to courthouses across Virginia
demanding marriage licenses.
Drawing a clear line on marriage in Virginia law does not deny equal rights.
-Robert G. MarshaH
Richmond
The writer, a Republican, represents the 13th District, which includes parts of
Pn"nce Wilh"am and Loudoun counties, in the Virginia House of Delegates.
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EXHIBITC
142
COMMONWEALTH of VIRGINIA
Robert F. McDonnell
Attorney General
The Honorable Stephen D. Newman
Member, Senate of Virginia
P.O. Box 480
Forest, Virginia 24551
The Honorable David B. Albo
Member, House of Delegates
6350 Rolling Mill Place, Suite 102
Springfield, Virginia 22152
The Honorable Kathy J. Byron
523 Leesville Road
Lynchburg, Virginia 24502
The Honorable John A. Cosgrove
P.O. Box 15483
Chesapeake, Virginia 23328
The Honorable Robert G Marshall
P.O. Box421
Manassas, Virginia 20108
September 14, 2006
Dear Senator Newman and Delegates Albo, Byron, Cosgrove and Marshall:
Richmond, Vrrginia 23219
804-786-2071
fAX 804-786-1991
Virginia Relay Services
800-828-!120
7-1-1
I am responding to your request for an official advisory opinion in accordance with 2.2-505 of
the Code of Virginia.
Issue Presented
You ask whether House Joint Resolution 41
1
and Senate Joint Resolution 92,
2
the proposed
Virginia constitutional amendment to ban same-sex marriage, civil unions, or comparable relationships
("marriage amendment"), would affect the current legal rights of unmarried persons involving contracts,
1
See 2006 H.J. Res. 41, available at Resolution 41
passed the House ofDelegates by a vote of73 yeas to 22 nays and passed the Senate by a vote of29 yeas to II nays.
See id. (status), available at http://legl.state. va.uslcgi-bin/legp504.exe?ses-061 &typ-bil&va!-hj41.
2
See 2006 S.J. Res. 92, available at http:/ilegl.state.va.uslcgi-bin/legp504.exe?061 +fui+SJ92. Resolution 92
passed the Senate by a vote of28 yeas to II nays and passed the House of Delegates by a vote of76 yeas to 22nays.
See id. (status), available at http://legl.state.va.us/cgi-bin/legp504.exe?ses=061&typ=bil&val=sj92.
143
TI1e Honorable John A. Cosgrove
The Honorable Robert G. Marshall
September 14, 2006
Page2
wills, advance medical directives, shared equity agreements, group accident and sickness insurance
policies, or could modifY the application of domestic violence laws.
Response
It is my opinion that passage of the marriage amendment will not affect the current legal rights of
unmarried persons involving contracts, wills, advance medical directives, shared equity agreements, or
group accident and sickness insurance policies, or alter any other rights that do not "approximate the
design, qualities, significance, or effects of marriage" or create "the rights, benefits, obligations, qualities,
or effects of marriage." It further is my opinion that passage of the marriage amendment will not modifY
the application and enforcement ofVirginia's domestic violence laws.
Background
In accordance with the procedures outlined in the Constitution of Virginia, the 2005 Session of
the General Assembly passed a constitutional amendment defining marriage as the "union between one
man and one woman."' After the intervening elections for the House of Delegates in November 2005, the
General Assembly returned for its 2006 Session and again considered the constitutional amendment
defining marriage.' The 2006 Session of the General Assembly again passed the marriage amendment in
its identical form, requiring it to be placed on the November 2006 ballot for voters to approve or reject.
5
The proposed marriage amendment provides:
That only a union between one man and one woman may be a marriage valid in or
recognized by this Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions shall not create or recognize a
legal status for relationships of unmarried individuals that intends to approximate the
design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or
its political subdivisions create or recognize another union, partnership, or other legal
status to which is assigned the rights, benefits, obligations, qualities, or effects of
marriage.
1
'
1
The General Assembly's clear and express intent in passing the marriage amendment, as
annunciated in its official explanation,
7
is to preserve traditional marriage as solely between one man and
one woman, while not infringing upon the current legal rights of unmarried individuals to execute
'see 2005 Va. Acts chs. 946,949, at 1857, 1860, respectively.
4
See 2006 H.J. Res. 41, supra note 1; 2006 S.J. Res. 92, supra note 2.
5
See supra notes I and 2.
6
ld.; see also 2005 Va. Acts chs. 946, 949, supra note 3.
7
See il!fi'a note 8.
144
The Honorable David B. Alba
September 14, 2006
Page3
contracts, wills, advance medical directives, or shared equity agreements, or lessening protections under
domestic violence laws.
Applicable Law and Discussion
The General Assembly must comply with Article XII, 1 of the Virginia Constitution when
seeking to amend the Constitution. Article XI!, I provides that:
Any amendment or amendments to this Constitution may be proposed in the Senate or
House of Delegates, and if the same shall be agreed to by a majority of the members
elected to each of the two houses, such proposed amendment or amendments shall be
entered on their journals, the name of each member and how he voted to be recorded, and
referred to the General Assembly at its first regular session held after the next general
election of members of the House of Delegates. If at such regular session or any
subsequent special session of that General Assembly the proposed amendment or
amendments sbalJ be agreed to by a majority of all the members elected to each house,
then it shall be the duty ofthe General Assembly to submit such proposed amendment or
amendments to the voters qualified to vote in elections by the people, in such manner as
it shall prescribe and not sooner than ninety days after final passage by the General
Assembly. If a majority of those voting vote in favor of any amendment, it shall become
part of the Constitution on the date prescribed by the General Assembly in submitting the
amendment to the voters.
The Virginia Constitution does not define marriage. Current statutory law, however, prohibits
marriage between certain individuals, including a brother and sister;' a couple where one of the parties is
married to another person;" and "persons of the same sex."
11
The 1997 Session of the General Assembly
'section 3019.10 directs the Division of Legislative Services to provide a "neutral" explanation "in plain
English" of proposed ballot questions. The House Committee on Privileges and Elections (by a vote of 1263) and
the Senate Committee on Privileges and Elections (by a vote of 9-5-1) directed the State Board of Elections to
include in its official explanation of the marriage amendment the following statement: "There are other legal rights,
benefits, and obligations which will continue to be available to unmarried persons, including the naming of an agent
to make end-of life decisions by an Advance Medical Directive (Code of Virginia 54.12981 ), protections afforded
under Domestic Violence laws (Code of Virginia 18.2-57.2), ownership of real property as joint tenants with or
without a right of survivorship (Code of Virginia 55-20.1), or disposition of property by will (Code of Virginia
64.1-46)." See VIRGINIA STATE BOARD OF ELECTIONS, PROPOSED CONSTITUTIONAL AMENDMENT TO BE VOTED
ON AT THE NOVEMBER 7, 2006, ELECTION (Final Copy), *2, available at http://www.sbe.virginia.gov/cms/
documents/2006 Constitutional Amendmentsl2006gues marriage APPROVED.pdf.
9
VA. CODE ANN. 20-38.1 (2004).
10
/d
11
Section 20-45.2 (2004); see also 20-38.1 to 20-40, 20-43, 20-45.1 to 20-45.3, 20-48 to 20-49 (2004)
("Unlawful Marriages Generally").
145
September 14, 2006
Page4
enacted 20-45.2,
12
which provides that "[a]ny marriage entered into by persons of the same sex in
another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by
such marriage shall be void and unenforceable."
In 2004, the General Assembly enacted legislation prohibiting civil unions, partnership contracts,
and like arrangements between persons of the same sex." Section 20-45.3 provides that:
A civil union, partnership contract or other arrangement between persons of the same sex
purporting to bestow the privileges or obligations of marriage is prohibited. Any such
civil union, partnership contract or other arrangement entered into by persons of the same
sex in another state or jurisdiction shall be void in all respects in Virginia and any
contractual rights created thereby shall be void and unenforceableY'
1
Thus, on several occasions, the General Assembly has prohibited marriage between persons of the
same sex, as well as civil unions, partnership contracts, or other that purport to create a
legal union approximating marriage between individuals of the same sex. ' The state courts in four states,
Vermont,
16
Massachusetts," Hawaii," and Maryland,
19
have altered or struck down statutory definitions of
marriage. Apparently, to prevent similar judicial actions from occurring in Virginia, the General
Assembly acted to affirm the Commonwealth's long-standing statutory policy by elevating to the Virginia
Constitution the definition of marriage as solely between one man and one woman."
"see 1997 Va Acts cbs. 354, 365, at 513,513, 538,538, respectively.
"see 2004 Va. Acts ch. 983, at 1920, 1920 (adding 20-45.3 to Affirmation of Marriage Act).
14
Section 20-45.3 (2004).
15
Seesupra notes 9-ll, 13-14 and accompanying text.
16
Baker v. State of Vermont, 170 Vt. 194, 744 A.2d 864 (1999) (holding that Vermont was constitutionally
required to provide same-sex couples with benefits and protections of marriage; court charged Vermont legislature
with task of creating appropriate remedy).
17
Goodridge v. Dep't of Pub. Health, 440 Mass. 309,798 N.E.2d 941 (2003).
18
Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). The Supreme Court of Hawaii ordered that the lower court
conduct an equal protection analysis of Hawaii's marriage statute. It held that the marriage statute was subject to
strict scrutiny and was presumed to be unconstitutional unless the state demonstrated that the statute was nan-owly
drawn and a compeUing state interest in prohibiting same-sex marriage existed. The lower court determined that the
maniage statute was unconstitutional and that the state was required to issue marriage licenses to same-sex couples.
The State of Hawaii subsequently passed a constitutional amendment limiting the right of marriage to heterosexual
couples. Therefore, the Hawaii Supreme Court reversed the lower court in Baehr v. Miike, No. 20371, 1999 Haw.
LEXIS 391 (Haw. Dec. 9, 1999).
19
Deane v. Conaway, Case No: 24-C-04-005390 (Cir. Ct. Baltimore City, Md. Pt. 30, entered Jan. 20, 2006).
20
0nce before, the General Assembly has acted to elevate a statutory and public policy position to constitutional
standing. The 1995 Session of General Assembly passed a constitutional amendment regarding the rights of victims
of crime. See 1995 Va. Acts cbs. 706, 710, at 1165, 1165, 1168, 1168-69, respectively (adding 8-A to Article I of
Virginia Constitution). At that time, Virginia had a victims' rights statute encompassing the provisions included in
the constitutional amendment See VA. CODE ANN. 19.2-tl.Ol (1995). The amendment was referred to tl1e 1996
session, was again agreed to, and was submitted to the voters. See 1996 Va. Acts cbs. 33, 488, 906, 910, at 39, 818.
1736, 1740, respectively. The constitutional amendment was ratified November 5, 1996, and became effective
January 1, 1997. See VA. CoNST. art. I, 8-A annot.
146
September 14, 2006
Page 5
In considering the prospective application of the marriage amendment to contracts, wills, advance
medical directives, shared equity agreements, accident and sickness insurance policies, and other ordinary
legal rights of Virginia citizens, the dispositive analysis is to determine whether the rights in question are
derived from a legal relationship that "intends to approximate the design, qualities, significance, or effects
of marriage" or to which is assigned the "rights, benefits, obligations, qualities, or effects of marriage."''
The application of the marriage amendment language to the specific documents and rights about which
you inquire demonstrates that passage of the marriage amendment will have no impact on such
contractual and other statutory rights not created by or imitating marriage.
21
Additionally, most of the rights, benefits, and obligations created solely by a lawful marriage, to
which unmarried persons of either sex are not entitled, are defined by statute or long-standing case law.
Among the legal benefits unique to marriage are a spouse's share of a decedent's estate," the right to hold
real property as tenants by the entireties," the authority to act as a "spouse" to make medical decisions in
the absence of an advance medical directive," the right as a couple to adopt children," and the
enumerated rights and obligations included in Title 20 of the Code of Virginia regarding marriage,
divorce, and custody matters. The general legal rights to enter into contracts, wills, advance medical
directives, shared equity agreements, and other legal instruments, are not rights that arise from marriage.
Rather, such general rights find their sources in other statutes or common Jaw. Thus, these rights would
remain unaffected after enactment of the marriage amendment. Any Virginian, subject to any other
existing legal limitations, may enter into any lawful contract, dispose of property to any person of his
choosing by will or deed, or appoint any person to act on his behalf pursuant to a power of attorney or
advance medical directive.
Finally, Virginia's Jaws are presumed to be constitutional." The Supreme Court of Virginia has
concluded that "reasonable doubt as to the constitutionality of a legislative enactment must be resolved in
favor of its validity. The courts will declare the legislative judgment null and void only when the statute
is plainly repugnant to some provision of the state or federal constitution.',z
8
Therefore, any challenges to
21
See supra notes 1, 2.
22
1 note that in this context, similar questions concerning the enforceability of 18.2-57.2 -regarding contracts,
wills, advance medical directives, and shared equity agreements- were raised when the 2004 Session ofthe General
Assembly considered and passed House Bill 751 prohibiting civil unions. See 2004 H.B. 751, available at
http://legl.state.va.uslcgi-binllegp504.exe?04l+fui+HB751ER; see also 2004 Va. Acts ch. 983, supra note 13, at
1920. The facts show that Virginia courts have not diminished or altered these legal rights in the almost two years
that the prohibition against civil unions has been law.
"
VA. CODE ANN. 64.1-13(A); 64.1-16.1 (2002).
24
VA. CODE ANN. 55-20.2 (Supp. 2006).
25
VA. CODE ANN. 54.1-2986(A) (2005).
26
VA. CODE ANN. 63.2-1201 (Supp. 2006).
27
Coleman v. Pross, 219 Va. 143, 246 S.E.2d 613 (1978).
28
Blue Cross ofVa. v. Commonwealth, 221 Va. 349,358,269 S.E.2d 827 (1980).
147
September 14, 2006
Page6
Virginia's existing or future statutes relating to contracts, wills, advance medical directives, financial
issues, accident and sickness insurance policies, and domestic violence would succeed only if the
respective statute is "plainly repugnant" to the marriage amendment. As discussed in detail below, the
statutes governing such matters do not "approximate the design, qualities, significance, or effects of
marriage" or assign the "rights, benefits, obligations, qualities, or effects of marriage."
29
Consequently,
these statutes are not repugnant to the marriage amendment and would survive any constitutional
challenge to their validity.
1. Contraet Law
You relate that in passing the marriage amendment it was not the intent of the General Assembly
to infringe on contractual or other legal rights of two unmarried individuals of either sex. The plain
language of the amendment and the official support that intent. The basic elements of a
contract are offer, acceptance, and consideration.
0
Unless a contract is void for a specific policy reason
under existing law, any competent individual may enter into a contract, regardless of his marital status.
The Virginia Supreme Court has held that:
Generally speaking every adult person bas a right to contract with respect to his property
rights and when they have done so, courts are without authority to annul their obligations
thus assumed unless they have been entered into under such circumstances as to indicate
PI!
that therr procurement had been brought about by fraud.
Moreover, "'[t]he law presumes that there is in everyone [the] capacity to contract."'
32
Therefore,
the right to contract, pursuant to well-established and long-standing principles of contract law," is not a
right that finds its origin in the "design, qualities, significance, or effects of marriage," nor the "rights,
benefits, obligations, qualities, or effects of marriage." Passage of the marriage amendment would not,
therefore, infringe upon the rights of unmarried individuals to enter into or enforce lawful contracts.
2. Wills
You inquire whether the marriage amendment would impede the ability of an individual to
execute a will leaving property to another individual of either sex. It is an accepted principle of Virginia
law that a testator may, by will, dispose of his property as he desires. Section 64.1-46 provides:
Every person not prohibited by 64.1-47 may, by will, dispose of any estate to which he
shall be entitled, at his death, and which, if not so disposed of, would devolve upon his
29
See supra notes I and 2.
30
Adams v. Hazen, 123 Va. 304, 319, 96 S.E. 741, 745 (1918) (noting that written contracts must contain
essential elements: competent parties; legal subject matter; valuable consideration; and mutual assent).
31
Moore v. Gregol)', 146 Va. 504, 523, 131 S.E. 692, 697 (1925).
32
Chesapeake & Ohio Ry. Co. v. Mosby, 93 Va. 93, 94, 24 S.E. 916, 9!6 (1896) (quoting I Chitty on Contracts
186).
33
See supra notes 30, 31 and accompanying text.
148
September 14, 2006
Page 7
heirs, personal representative or next of kin. The power hereby given shall extend to any
estate, right or interest to which the testator may be entitled at his death, notwithstanding
he may become so entitled subsequently to the execution of the will.
The Virginia Supreme Court has explained that wills are designed, by statute, to permit
individuals to leave property in the manner they choose:
"It may be safely stated that as a general rule the right of a testator to dispose of his estate
as be likes depends neither on the justice of his prejudice nor the soundness of his
reasoning. He may do what he will with his own; and, as to his relatives, all that is
required of him at the time of making his will is that he shall possess ability to
comprehend those who appear as the natural objects of his bounty and appreciate the duty
which recommends them to consideration."
1
"
1
The Court clearly indicates that the motivations of the testator (the '"justice of his prejudice"' and "'the
soundness of his reasoning"') have no effect on the disposition of his estate." The right of an individual
to dispose of property by will in any legal manner he desires is not created by marriage, nor does that
right "approximate the design, qualities, significance, or effects of marriage" or assign the "rights.
benefits, obligations, qualities, or effects of marriage." Thus, the marriage amendment will not affect the
ability of unmarried persons to execute or inherit under a lawful will."
3. Advance Medical Directives
You also inquire about the effect of the marriage amendment upon advance medical directives.
The procedure for making an advance medical directive is set out in the Health Care Decisions Act."
Specifically, 54.1-2983 of the Act provides, in part, that:
Any competent adult may, at any time, make a written advance directive authorizing the
providing, withholding or withdrawal of life-prolonging procedures in the event such
person should have a terminal condition. A written advance directive may also appoint
an agent to make heahh care decisions for the declarant under the circumstances stated in
the advance directive if the declarant should be detennined to be incapable of making an
infonned decision. [Emphasis added.]
The Health Care Decisions Act does not require that the agent be related to the declarant by blood
or marriage." Further, the process of making an advance directive and naming an agent to carry out the
instructions of the declarant are acts established by the General Assembly apart from the marriage statutes
34
Wohlford v. Wohlford, 121 Va. 699, 706, 93 S.E. 629, 631 (1917) (quoting McDonald's Ex'rs v. McDonald,
117 Am. St. Rep. 582 (1905)).
"Id
36
See 64.1-1 (2002) (outlining the rights of a spouse in absence of a will).
"see 54.1-2981 to 54.1-2993 (2005).
38
'"Agent' means an adult appointed by the declarant under an advance directive, executed or made m
accordance with the provisions of 54.1-2983, to make health care decisions for him .... " Section 54.1-2982.
149
TI1e Honorable John A. Cosgrove
September 14, 2006
Page 8
and are not acts that intend "to approximate the design, qualities, significance, or effects of marriage" or
assign the "rights, benefits, obligations, qualities, or effects of marriage." While a lawful marriage creates
in one spouse the legal right by default to make medical decisions without a written instrument for the
other spouse, an unmarried individual may, by executing an advance medical directive, affinnatively
grant the same right to any person of his choosing. It is, therefore, my opinion that the marriage
amendment would not affect the legitimacy of any properly executed advance medical directive
39
giving
authority to any person to act as agent.
4. Financial Issues
You inquire whether passage of the marriage amendment will invalidate shared equity
agreements.
40
The General Assembly has established that "[aJny persons may own real or personal
property as joint tenants with or without a right of survivorship."
1
A mortgage, properly called a deed of
trust, is a conveyance of real property from the owners to a trustee to secure payment of a note to a
lender." The act of borrowing money and the right to hold and convey property" are not regulated by
statutes related to marriage and thus are not intended ''to approximate the design, qualities, significance,
or effects of marriage" or assign the "rights, benefits, obligations, qualities, or effects of marriage."
Persons of the same sex or any unmarried persons can hold and transfer real estate and borrow money
against real property under current law and may continue to do so should the marriage amendment be
adopted.
Joint bank accounts are agreements between multiple parties, regardless of marital status. Banks
hold the money of the depositors, honor demands on the account, and disburse the funds in the account
pursuant to the agreement entered into between the depositors and the bank. "Every financial institution
in [Virginia) offering joint accounts" must clearly label the accounts "[Joint Account With Survivorship)"
39
The General Assembly has provided a procedure for obtaining substitute consent in the absence of an advance
directive appointing an agent. See 54.1-29S6(A). Decisions in such cases may be made by statutorily defined
persons in a specified order of priority. Id Thus, no person, whether of the same sex or opposite sex, may make
decisions regarding treatment if that person does not fall into one of the statutorily created classes. Any person
could, however, petition an appropriate court to be appointed guardian or conservator. See VA. CODE ANN.
37.2-1002(A) (Supp. 2006). The duties of a guardian or conservator are not acts that intend "to appraximate the
design, qualities, significance, or effects of marriage" or assign the "rights, benefits, obligations, qualities, or effects
of marriage." See 37.2-1020 (2005) (setting forth duties and powers of guardians).
'"virginia law does not specify what constitutes a "shared equity agreement." For purposes of this opinion, the
term "shared equity agreement" includes deeds of trust and joint bank accounts.
41
See 55-20.1 (2003).
"A "deed of truSt" ''resembles a mortgage" and is "[a] deed conveying title to real property to a trustee as
security until the grantor repays a loan" See BLACK'S LAW DICTIONARY 445 (8th ed. 2004).
43
The holding of real and personal property as tenants by the entireties is limited to a husband and wife. See
5520.2; see also supra note 24 and accompanying text.
150
September 14, 2006
Page9
or "[Joint Account - No Survivorship].'"' The acts of maintaining an account with another person.
entering into an agreement with a bank, making demands on the account, and naming a beneficiary are
not related to marriage and are not relationships that intend "to approximate the design, qualities,
significance, or effects of marriage" or assign the "rights, benefits, obligations, qualities, or effects of
marriage."
Group accident and sickness insurance coverage provided by private companies to its employees
and their designated beneficiaries likewise will not be invalidated by the marriage amendment. The
General Assembly established in 2005" that coverage under a group accident and sickness insurance
policy may be extended to insure "[a]ny other class of persons as may mutually be agreed upon by the
insurer and the group policyholder."
46
Thus, the creation of such a policy is a private contractual matter
between an insurer and the policyholder. The fact that unmarried individuals involved in a same-sex
relationship may re<:eive benefits pursuant to such a policy is not recognition by the Commonwealth of "a
legal status for relationships of unmarried individuals that intends to approximate the design, qualities,
significance, or effects of marriage.'"' This conclusion further is supported by the fact that in 2005 the
General Assembly enacted the new statutory expansion of accident and sickness insurance coverage with
full knowledge of Virginia's existing statutory prohibitions on same-sex marriage and civi I unions" and
concurrently passed the marriage amendment for the first time." The General Assembly, in passing a new
law or amending an existing law, "is presumed to act with full knowledge of the law as it stands . .,'o In
addition, when new provisions are added to existing legislation by amendment, a presumption arises "that
in making the amendment the legislature acted with full knowledge of, and in reference to, the existing
law upon the same subject and the construction placed upon it by the courts.""
5. Domestic Violence
Finally, you inquire whether passage of the marriage amendment would provide a defense to a
party charged with domestic assault and battery pursuant to 18.2-57.2, which prohibits assault and
battery against "a family or household member." You question whether, pursuant to this statute, the
prosecution of a person involved in a same-sex relationship with another person would amount to
44
See VA. CODE ANN. 6.1-l25.15(A) (1999). All matters pertaining to multiple party accounts are addressed in
Chapter2.1 ofTitle6.1, 6.1-125.1 to 6.1-125.16(1999).
"see 2005 Va. Acts ch. 871, at 1516, 1516 (adding subsection A 2 to 38.2-3525).
46
VA. CoDE Al'i"N. 38.2-3525(A)(2) (Supp. 2006).
a 6 d
See supra note an accompanymg text.
"see 2005 Va. Acts ch. 871, supra note 45 (adding subsection A 2 to 38.2-3525); 2004 Va. Acts ch. 983, supra
note 13 (adding 20-45.3); 1997 Va Acts cbs. 354, 365, supra note 12 (adding 20-45.2).
49
See 2005 Va. Acts chs. 946, 949, supra note 3.
50
See Sch. Bd. v. Patterson, Ill Va. 482,487-88, 69 S.E. 337, 339 (1910).
"City of Richmond v. Sutherland, 114 Va. 688,693,77 S.E. 470,472 (1913).
151
The Honorable Robert (i Marshall
September 14, 2006
Page 10
recognition of such a relationship as one "that intends to approximate the design, qualities, significance,
or effects of marriage," thus invalidating the application of the statute to unmarried couples of the same
sex.
The General Assembly has the authority to create and define by statute a class of potential victims
for which enhanced punishment for assault and battery will be available. Section 18.2-57 .2(A) provides
that "[a]ny person who commits an assault and battery against a family or household member is guilty of
a Class 1 misdemeanor." Section 18.2-57.2(0) provides that "[t)he definition of family or household
member' in 16.1-228 applies to this section." Section 16.1-228 provides that:
"Family or household member" means (i) the person's spouse, whether or not he or she
resides in the same home with the person, ... or (vi) any individual who cohabits or who,
within the previous 12 months, cohabited with the person, and any children of either of
them then residing in the same home with the person.
Therefore, subsection "i" clearly covers a victim who is a spouse. Additionally, in determining the
protections for unmarried domestic violence victims, cohabitation is the key element in the definition of
"household member" in subsection "vi" of 16.1-288. In customary legal usage, "cohabitation" means
"[t]he fact or state of living together, esp[ecially] as partners in life, usu[ally] with the suggestion of
sexual relations:"' The Virginia Supreme Court has held that the term "cohabit" means "to live together
in the same house as married persons live together, or in the manner of husband and wife"" and "imports
the continuinjl. condition of living together and carrying out the mutual responsibilities of the marital
relationship." More recently, the Court of Appeals of Virginia offered extensive guidance regarding the
determination of cohabitation.
;z
In determining in Rickman whether the evidence was sufficient to sustain the defendant's
conviction for domestic assault and battery under Code 18.2-57.2, we noted that '"the
essential elements of "cohabitation" are (I) sharing of familial or financial
responsibilities and (2) consortium."' 33 Va. App. at 557, 535 S.E.2d at 191 (quoting
State v. Williams, 79 Ohio St. 3d 459, 1997 Ohio 79, 683 NE.2d 1126, 1130 (Ohio 1997)).
We also noted that "'possible factors establishing shared familial or financial
responsibilities might include provisions for shelter, food, clothing, utilities, and/or
commingled assets"' and that "'factors that might establish consortium include mutual
respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other,
friendship, and conjugal relations."' Id. (quoting Williams, 683 NE.2d at 11 30) .... We
further noted, however, that "'domestic violence arises out of the nature of the
BLACK'S LAW DICTIONARY, supra note 42, at 277.
53
Schweiderv. Schweider, 243 Va. 245, 248,415 S.E.2d 135, 137 (1992) (quoting Johnson v. Commonwealth,
152 Va. 965,970, 146 S.E. 289, 291 (1929)).
54
Id. (quoting Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986)).
152
September 14, 2006
Page 11
relationship itself, rather than the exact circumstances of the victim and perpetrator'" and
emphasized that "[t]he factors to be applied 'are unique to each case and how much
weight, if any, to give to each of these factors must be decided on a case-by-case basis by
the trier of fact."' ld at557, 535 S.E.2d at 191 (first emphasis added) (quoting Williams,
683 N.E.2d at 1129-30 (second emphasis added)) .... Thus, as we indicated in Rickman,
the trier of fact must employ a "totality-of-the-circumstances analysis" to determine
whether the victim of the assault and battery and the defendant "cohabited," "as that term
is used in Code 18.2-57.2." ld. at 558, 535 S.E.2d at 191.1''
1
Thus, while the institution of marriage provides an illustrative and objective standard by which
"cohabitation" may be identified by a trier of fact, the use of marriage as a comparative standard does not
confer upon the cohabiting relationship any of the "rights, benefits, obligations, qualities, or effects of
marriage," nor is it a recognition of a relationship "that intends to approximate the design, qualities,
sigttificance, or effects of marriage." Were such a construction plausible, a prosecution pursuant to
18.2-57.2 could not be maintained against an individual involved in an unmarried heterosexual
relationship. imRlicitly a marriage, which, like
sex marnage, ts not permttted tn Vtrgtma. In addttton, m definmg "famtly or household member; the
General Assembly specifically listed "spouse" in a distinct and separate subsection of 16.1-228 and
placed individuals who cohabit in another subsection. This distinct placement clearly indicates that the
General Assembly wished to establish a new and distinct class of potential domestic violence victims
among unmarried, cohabitating persons other than spouses. Finalll, customary legal usage also
distinguishes between "cohabitation" and "matrimonial cohabitation.'" Thus, Virginia's existing law
does not confer a legal right unique to marriage on another class of persons that might be invalidated by
the marriage amendment, but rather creates five distinct classes of potential victims (other than spouses)
of domestic violence.
It is my opinion that "cohabitation" is determined by a variety of factors, and that the institution
of marriage may be used as an illustrative and objective standard to determine whether unmarried parties
are cohabitating. Applying this standard pursuant to 18.2-57.2 does not confer upon the cohabiting
relationship any of the "rights, benefits, obligations, qualities, or effects of marriage," nor is it a
recognition of a relationship "that intends to approximate the design, qualities, significance, or effects of
marriage." Passage of the amendment, therefore, would not prevent prosecution of an individual
"cowell v. Commonwealth, Record No. 3198-03-1, 2005 Va. App. LEXIS 42, *8-9 (Va. Ct. App. 2005)
(unpublished mem. op.).
56
See mfra note 58.
57
BLACK'S LAW DICTIONARY, supra note 42, at 277. N. such, the opinion of the Attorney General in 1994 Op.
Va. Att'y Gen. 60 has been superseded by the Cowell opinion and customary legal usage of the term "cohabitation."
153
September 14, 2006
Page 12
cohabitating in a same-sex or other unmarried relationship for assault and battery of the other individual
"
pursuant to 18.2-57.2.
"In 2005, Ohio passed a constitutional amendment similar to Virginia's proposed marriage amendment.
Defendants charged with violating Ohio's domestic violence statute have challenged whether the domestic violence
laws may be enforced against unmarried couples in light of Ohio's marriage amendment. As of September 12, 2006,
ten of Ohio's twelve appellate courts have addressed whether Ohio's domestic violence law is constitutional in light
of the marriage amendment. Eight of the ten appellate courts have concluded that Ohio's domestic violence law is
constitutional, and the Ohio marriage amendment does not provide a defense to a party charged with assault
pursuant to Ohio's domestic violence law. The eight appellate courts have concluded that the term "person living as
a spouse" is a descriptive term useful in determining the applicability of the statute, but does not create a legal status
prohibited by the marriage amendment In addition, these Ohio courts found that the legislature intended to protect
household violence in all fonns and in doing so did not create a legal status that approximates marriage. See State v.
Goshorn, 2006 Ohio 2755, 2006 Ohio App. LEXIS 2593 (May 23, 2006); State v. Newell, 2005 Ohio 2848, 2005
Ohio App. LEXIS 2658 (May 31, 2005); State v. Rodriguez, 2006 Ohio 3378, 2006 Ohio App. LEXIS 3289 (June
30, 2006); Gough v. Triner, 2006 Ohio 3522,2006 Ohio App. LEXIS 3436 (June 28, 2006); State v. Burk 164 Ohio
App. 3d 740, 843 N.E.2d 1254 (2005), discretionary appeal accepted, 2006 Ohio 2226, 847 N.E.2d 5 (2006);
State v. Nixon, 165 Ohio App. 3d 178, 845 N.E.2d 544 (2006); State v. Rodgers, 2006 Ohio 1528, 2006 Ohio App.
LEXIS 1391 (Mar. 30, 2006); State v. Carswell, 2005 Ohio 6547, 2005 Ohio App. LEXIS 5903 (Dec. 12, 2005),
discretionary appeal accepted, 109 Ohio St. 3d 1423, 2006 Ohio LEXlS 1033 (Apr. 26, 2006). An Ohio appellate
court has also determined the domestic violence statute was facially constitutional. See State v. Rexroad, 2005 Ohio
6790, 2005 Ohio App. LEX!S 6114 (Dec. 13, 2005). Two Ohio appellate courts have reached a contrary conclusion.
See State v. Ward, 2006 Ohio 1407, 2006 Ohio App. LEX!S 1318 (Mar. 24, 2006), discretionary appeal accepted
2006 Ohio 3862, 2006 Ohio LEXIS 2298 (Aug. 2, 2006); State v. McKinley, 2006 Ohio 2507, 2006 Ohio App.
LEXIS 2379 (May 22, 2006). The Ward court in direct contravention to the holding of the eight other appellate
courts, determined that Ohio's domestic violence statute created a relationship" because the statute
protected a class of citizens defined as "person[s] living as a spouse." Ward, 2006 Ohio at 1407, 2006 Ohio App.
LEXIS, at *16. As such, the court ruled that "cohabitation" equated to a "person living as a spouse'' ld. at 1407,
2006 Ohio App, LEXIS, at *15-16. The McKinley court determined that the section of Ohio's domestic violence
statute relating to "person[s]living as a spouse" "clearly categorize[ d) victims based on marital-type relationships"
and that cohabitation under Ohio law intends to approximate marriage. McKinley, 2006 Ohio at _, 2006 Ohio
App. LEXIS, at *14-15; see also id. at_, 2006 Ohio App. LEXIS, at *15-18. Since the McKinley decision
conflicts with cases in other appellate courts, the court certified "the record ... to the Ohio Supreme Court for review
and fmal determination" regarding the constitutionality of the domestic violence statute. ld. at_, 2006 Ohio App.
LEXIS, at *33. The conclusion of the Ward and McKinley courts could not be reached in Virginia. Virginia law
does not equate cohabitation to a legal status similar to marriage, nor does its domestic violence statute categorize
victims based on martial-type relationships. See supra notes 52-55 and accompanying text. Similarly, Virginia law
does not provide for the establishment of common-law marriage or any other "quasi-marital relationship" within the
Commonwealth. See VA. CODE ANN. 20-13 (2004) (providing that every marriage in Commonwealth is under
license and officially solemnized); see also Offield v. Davis, IOOVa. 250,263,40 S.E. 910,914 (1902) (enactment
of 2222, predecessor to 20-13, abrogated common law marriage); cf Kelderhaus v Kelderhaus, 21 Va. App. 721.
725-26, 467 S.E.2d 303, 305 (1996) (noting that Commonwealth does not recognize common-law marriages;
however, it extends comity to such unions that are valid under laws of jurisdiction where relationship was created).
154
The Honorable Robert Q Marshall
September 14, 2006
Page 13
Conclusion
Accordingly, it is my opinion that passage of the marriage amendment will not affect the current
legal rights of unmarried persons involving contracts, wills, advance medical directives, shared equity
agreements, or group accident and sickness insurance policies, or alter any other rights that do not
"approximate the design, qualities, significance, or effects of marriage" or create "the rights, benefits,
obligations, qualities, or effects of marriage." It further is my opinion that passage of the marriage
amendment will not modify the application and enforcement of Virginia's domestic violence laws.
Thank you for letting me be of service to you.
Robert F. McDonnell
6:990; 1:310; 1:941/06-003
155
EXHIBITD
156
Gay Marriage Ban Advances in Va.
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washingtonpost.com > Melro >Virginia "FOLLOW METRO ON:
lilil.ii The Breaking News Blog
CI!l!lJ All the lutst newsfi'Om the I:tistrict, Mury/and and Virginia
By Chris L. Jenkins
Washington Post Staff Writer
Saturday, January 14, 2006
RICHMOND, Jan. 13 --The House of Delegates gave
preliminary approval Friday to legislation that will place
a state constitutional amendment banning same-sex
marriage before Virginia voters in November.
The delegates voted 73 to 22 on House Joint Resolution
41, overriding appeals from opponents who said the
measure could have far-reaching consequences for all
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unmarried couples in the state. The House must vote a final time on the resolution, but
passage is almost certain. The Senate will also take up the measure during the 60-day General
Assembly session, which began Wednesday.
Although the proposal passed overwhelmingly in both chambers last year, it must be
approved in identical form this session before it can go to Virginia voters.
State law bans same-sex unions, but supporters of the constitutional amendment say it's
necessary to clarify that Virginia is not compelled to recognize same-sex marriages or civil
arrangements permitted in other states.
"We're advancing this amendment today because we trust the judgment of the people of
Virginia and not the courts," said Del. Kathy J. Byron {R-Lyncbburg), one of the measure's
chief supporters. "Marriage is much more than just two people sharing a committed
relationship. By changing the definition of marriage, the family, too, would be redefined,
ultimately destroying the traditional family. And if the traditional structure of family no
longer matters, what is marriage fur?"
Several Democrats who oppose the measure, which would alter the state's Bill of Rights, said
the language that would be presented to voters is too vague because it says in part that the
Virginia Constitution should not recognize "a legal status for relationships of unmarried
individuals." They said this could include unwed heterosexual couples and people in other
arrangements.
The Democrats and other opponents also said such language could interfere with all
unmarried couples making health care decisions and with property ownership. They said the
measure as written could threaten protective orders and additional safeguards for unmarried
victims of domestic violence by barring all legal recognition of unmarried family or
household members.
The amendment "is really dangerous and has the potential of taking away other rights from
Virginians," said Del. Kristen J. Amundson (D-Fairfax), who tried unsuccessfully to amend
the measure on the floor. "If we're going to do this, let's do it right."
"We are far down the road of unintended consequences," said Del. James M. Scott (D-
Fairfax). "We don't need to go any further. This is way over the top."
An authority on the state constitution expressed concern in an interview about the
amendment's wording.
"It's pretty clear what the proposers are trying to do, but there may be some overkill here that
could raise more questions than it actually answers," said A.E. Dick Howard, a professor of
law at the University of Virginia and one of the drafters of the state's modern constitution.
Supporters said unmarried couples have other legal protections.
"We give the power of attorney independent of a marital relationship or a marriage-like
relationship," Del. Robert G. Marshall (R-Prince William), who was an original sponsor of
the amendment.
http://www. washingtonpost.com/wp-dyn/contentfartic1e/2006/0 1/13/ AR20060 11301785 .ht... 9/23/2013
157
Del. David B. Albo (R-Fairfax), chairman of the House Courts of Justice Committee and a
supporter of the amendment, said he will ask for a legal opinion from Robert F. McDonnell
(R) after he is sworn in Saturday as attorney general.
"Our intent wasn't to affect private contracts or anything like that ... and we can't invalidate
wilts and shared equity agreements and things like that," Albo said.
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EXHIBITE
159
Va. Senate Backs Ban On Gay Marriage (washingtonpost.com)
MERRILL
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washington post. com >Metro> VIrginia> Government
Print This Article
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Va. Senate Backs Ban On Gay Marriage
Vote Urges Change To Constitution
By Rosalind S. Helderman and Chris L. Jenkins
Washington Post Staff Writers
Tuesday, February 8, 2005; Page B01
RICHMOND, Feb. 7- The Virginia Senate passed a resolution
Monday calling for an amendment to the state Constitution that
would define marriage as a union between a man and a woman, in an
effort to permanently prohibit same-sex unions.
RSS NEWS FEEDS Virginia is one of more than three dozen states that ban the
Top News recognition of same-sex marriages. But proponents of the resolution
Govemmont said a constitutional amendment is necessary to protect state law
What is RSs? I All Rss Feeds from court challenges that have given gay men and lesbians the right
to marry in Massachusetts and recently in New York City.
"America will only be as strong
as its families," said Sen. Nick
Rerras (R-Norfolk). "We must
do all we can to uphold the
sanctity and dignity of marriage,
which is the foundation of our
society, our conununity and our
nation."
Similar legislation is expected
to pass in the House of
Delegates on Tuesday. To
become part of the constitution,
the proposal must pass the
General Assembly again during
the next legislative session and
then must win approval from
the state's voters in November
2006.
The marriage amendment
resolutions are among many
measures this year that address
the issue of marriage and the
rights of gays in the state.
Lawmakers in the House have
passed a measure to allow
motorists to request a license
plate supporting wTraditional
Marriage."
In Virginia, "we sUgmatize and marginalize" gay
men and lesbians, sa)"> Sen. Janet D. Howell
{D-Fairfax).
-Yirglnill Govemmant--
" Seniltol Panel Approves Indoor
Smoking Ban (The Washington Post,
Feb 3, 2005}
Va. Assemblv Pillsse$ Mine Safety
lMI! (Associated Press, Feb 2, 2005}
yjrojnja Bjl! Wayld Alter Ryles on
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The House gave preliminary approval Monday to a measure
mandating that background investigations of Virginians seeking to
adopt children include the question of whether the applicants are
practicing homosexuals.
Before expressing support for Senate Joint Resolution 337 by a vote
of 30 to I 0 Monday, senators conducted an emotional debate in
which some Democrats invoked the memory of the Holocaust-
when thousands of homosexuals were among the 11 million people
the Nazis killed-- to urge its defeat.
In the Senate's version, marriage would be defined as a union
between a man and a woman, and legal relationships that
approximate marriage also would be off limits. That would make
civil unions and domestic partnerships between same-sex couples
unconstitutional.
Sen. Ken Cuccinelli (R-Fairfax) told colleagues to adopt the
amendment and push back against the "tyranny of judges that has
http://www.washingtonpost.com/wp-dyn/articles/A6204-2005Feb7.html
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160
Va. Senate Backs Ban On Gay Marriage (washingtonpost.com)
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The Washington Post
More ways lo gel us
dslveoy
Mobile & ''lil'"
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f acebook
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f'artnen;
"',....'"'"
largely come to pass in the last 30 or 40 years."
"The homosexual left has been on the attack against marriage and
family for 40 years, and we've been taking it," Cuccinelli said in an
interview last week. "If you're going to start a war, if you're going to
invade a country, expect a counterattack. All we're doing is regaining
lost ground."
Every Senate Republican and six Democrats voted for the
amendment. Those who opposed it, however, argued passionately,
recalling the words of Martin Luther King Jr. and Virginia's history
of slavery and segregation.
Sen. Janet D. Howell (D-Fairfax) recounted a recent visit to the
Virginia Holocaust Museum in Richmond and an exhibit that showed
Nazi concentration camp prisoners, forced to wear pink triangles on
their dirty uniforms as a mark that they were gay.
"In Virginia today, we do not require pink triangles," she said. "We
stigmatize and marginalize people in other ways, as we gu duwn a
path that we do not know where it will end."
House Votes Proffer limits
A bill to limit the ability of counties to collect proffers -- fees
developers pay localities to offset the costs of new roads, schools and
other services -- was given preliminary approval by delegates
Monday.
The measure, sponsored by Terrie Lynne Suit (R-Virginia Beach), is
aimed at Prince William County, which has asked developers for the
fees upfront to cover at least some of the added costs that come with
burgeoning development and new residents.
Suit said the practice has made it difficult fur small developers to
compete because they must pay the county before they have sold a
house.
Opponents of the bill, including lawmakers from such outer
suburban jurisdictions as Loudoun, Prince William and Spotsylvania,
said the measure would place an unfair burden on quickly growing
counties that need proffers to ease development costs.
-Chris L. Jenkins
Print This Article E-Mall This Artk:le Perm lesion to Republish
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161
Va. Senate Backs Ban On Gay Marriage (washingtonpost.com) Page 3 of3
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EXHIBITF
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Cuccinelli Basks in Richmond's Wanner Climate- Washington Post
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HODll! > COllections Northern Vkginta
Cuccinelli Basks in Richmond's Warmer Climate
By Raw Fisherl'rom Marc Fisher's Blog. Fehl'Llu!': Loo8
Just a few months back, while still on the campaign trail, Sen. Ken Cuccinelli (R-Fairfax) was
eager to talk about transportation, taxes, schools and development-- meaty issues that nicely
turned voters' attention away from his reputation as the Virginia Senate's leading voice for
conservative social policy.
Cuccinelli's campaign strategy of emphasizing his hard stance against expansive state spending
worked, even in a district that's trending Democratic. He won reelection, swimming against a
Democratic tide in Northern Vrrginia. But now he's back in Richmond, back among friends who
appreciate and relish the real Ken Cuccinelli.
"I come to you as the only conservative on the Senate side from Northern Virginia." Cuccinelli
told a meeting of the Family Foundation, the lobby that fights in Richmond against abortion, no-
fault divorce, embzyonic stem cell research and pornography. The crowd responded with warm
applause, leading the senator to quip, "I can't get this in Fairfax."
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Cuccinelli told the friendly audience that he was
here to stand tall on "abortion bills and the fight
over the homosexual a phrase he used
five times in a 10-minute talk.
The senator focused on his effort to tum back
V'uginia's no-fault divorce law with a bill that
would eliminate automatic divorce for couples
with children, requiring the consent of both
partners before a marriage could be legally
ended. "If you are sued for divorce in Virginia.
there's virtually nothing you can do to stop it,"
he said. "This law has everything to do with the
breakdown of the family. 11Ie state says
marriage is so unimportant that if you just
separate for a few months, you can basically nullify the marriage.
''What we're trying to do is essentially repeal no-fault divorce when there are children involved."
Cuccinelli knows he's hardly likely to win this time. "We're the Giants up against the Patriots,"
he said last week, when that meant something rather different. But his effort is what counts to
the Family Foundation crowd, which included state Attorney General Bob McDonnell and
several other legislators.
But in the Senate, where Cuccinelli is often the sole no vote on bills that pass 39 to 1, his true-
believer approach to politics leaves his colleagues flat. "Cuccinelli --he could be here 2,000 years
and he'd never says Senate Majority Leader Dick Saslaw, a Fairfax Democrat. "I mean,
he's the Jesse Helms of this operation."
Saslaw sees Cuccinelli as a prime example of the kind of social conservative who is too willing to
appeal to voters by tapping into popular discomfort with an outsider group in society. "It's been
pretty fashionable around here for the past four or five years to pound gays into the ground,"
Saslaw says. "Now it's immigrants. When they get done with them, it'll be someone else. They
make their living on that."
But although Cuccinelli has introduced some of the tougher bills aimed at discouraging illegal
immigrants from Jiving in Virginia, he says he is not as driven by that issue as some of his
colleagues. not the be-ali, end-all for me," he says. "It is an issue, but not the top issue."
Page I of2
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164
Cuccinelli Basks in Richmond's Warmer Climate- Washington Post
Cuccinelli told the Family Foundation that the ranks of conservatives who still focus on the
social issues are quite small in the state Senate, with but six conservatives among 19 Republican
senators. That's a tally many on the other side of the aisle would find all too stinting. But
Cuccinelli said all is not lost. Despite the Democrats taking back the Senate this year, a few
Democrats support the right on social issues. "And on the homosexual agenda," the senator said,
"we will sometimes get members of the Black Caucus with us."
''Your prayers strengthen us," Cuccinelli said, telling about his effort to defeat a resolution
expressing support for a Richmond gay organization. "When you look at the homosexual agenda,
I cannot support something that I believe brings nothing but self-destruction, not only physically
but of their soul."
And with that, the senator stepped out into the unusually balmy Richmond night, ready for the
next battle.
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The issue Our pick for the state's top
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Where we stand Shannon's opponent
is likely to spend too much time
dragging Virginians through tl1e mire of
divisive social issues.
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October 26, 2009
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In the attorney general's race, Virginians have a choice between a low-key fellow partial to brown suits, and a pugnacious culture warrior more apt to need
flameproof gear.
Steve Shannon's style is the better fit for Virginia. His thoughtful approach would preserve the reputation of the state's law firm as a source of reliable legal
advice. Ken Cuccinelli's antics would be more entertaining, but drama is something best left to TV shows.
Shannon may be unsteady in the political realm, but he isn't a newcomer to law enforcement. He served as an assistant prosecutor in Fairfax County,
specializing in child pornography cases. He and his wife helped create a chapter of Amber Alert, a national network for rescuing abducted children.
As a Democratic delegate, Shannon has been a centrist who gravitated toward bipartisan compromises on budget and transportation issues. That background
will lend him a steady hand as he guides the legislature through what promises to be a tumultuous effort to redraw political districts in 2011.
Shannon says he would partner with local law officials to batHe computer crimes. He understands the need to enforce clean wa1er and air regulations. He will
work to curb predatory lending by subjecting the industry to a 36 percent cap on interest rates.
Cuccinelli's experience as a court-appointed attorney for the mentally ill made him a valuable participant in efforts to reform state laws after the Virginia Tech
massacre. His intellect could be an asset, but he relies instead on inflammatory appeals.
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As a Republican state senator, his limited-government philosophy led him to oppose common-sense safety measures and some crime bills. He voted against
allowing cities to enforce traffic laws with red-lght cameras and even argued against stricter laws for cocldighting.
He reconciles his anti-government record and his desire to be the state's lawyer by promising to sue the federal government over environmental and union
issues.
"The government's your client, but you're responsible to the citizens of the commonwealth,w he said. But would he feel an obligation to all Virginians?
He sponsored a bill to waive unemployment compensation costs for companies that fire workers for not speaking English on the job. The measure would have
affected only legal workers because illegal immigrants don't qualify for unemployment benefits.
Cuccinelli's views on reproductive rights don't align with those of most Virginians. He favors legislation that would grant legal rights to fetuses at conception. He
has sponsored bills requiring strict regulations that would put most abortion clinics out of business. He voted against a bill stating that contraception is not
abortion.
He declined to commit to a nondiscrimination policy against gays and lesbians observed by former Attorney General Bob McDonnell: " My view is that
homosexual acts, not homosexuality, but homosexual acts are wrong. They're intrinsically wrong. And I think in a natural law based country it's appropriate to
have policies that reflect that. ... They don't comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite)
behavior that is not healthy to an individual and in aggregate is not healthy to
To put It politely, Cuccinelli's election would bring embarrassment to Virginia, instability to the state's law firm and untold harm to the long list of people who
don't fit his personal definition of morality.
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EMBARRASSMENT
Submitted by Brian Kirwin on Mon, 1 012612009 at 6:52 am.
The Pilot would endorse a ham sandwich if it had a (D) after it.
That's the embarrassment.
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SO WHO DO WE VOTE FOR
Submitted by ptown49 on Mon, 1012612009 at 7:03am.
After looking at the way what we have in office has behaved and pelfonned, I would actually have to consider voting for the ham sandwich instead of the
incumbents!
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DEPENDS
Submitted by lrgun on Mon, 1012612009 at 4:10pm.
If it were on rye with mustard, I dont know ....
But white bread and a little mayo (and perhaps a nice slice of tomato?) its got my vote!!
HA! THAT MADE MY DAY. THROW
Submitted by tinydancer75 on Mon, 1012612009 at 8:53pm.
Ha! That made my day. Throw some dill pickle chips on there and you've got a deal!
But seriously, I'll be voting for Shannon. He's the better fit for my view of limited government: Keep your hand out of my wallet and keep your nose out
of my bedroom.
NICE
Submitted by Ptown67 on Mon. 1 012612009 at 6:24 pm.
You've hit the nail on the head here. I think the VP should drop all pretense and change their name to the "Virginian Democrat Pilot.
I laughed so hard tears were rolling down my cheeks.
HAM SANDWICH
Submitted by Rick_ Sincere on Wed, 1 012812009 at 5:25 pm.
I hear that Ham Sandwich is running as a write-in candidate in the 99th House district- though I think he's running as an independent, so no o next to
his name.
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Steve Shannon for attorney general! HarnptonRoads.com I PilotOnline.com Page 3 of7
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o' or '0
HOHUM.
Submitted by jpjones on Mon, 10/2612009 at 6:57am.
Another endorsement. Uke the Deeds' endorsement, I'm sure it was made after wlong and careful consideration." Jody Wagner's will be coming
soon.
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nDIVISIVE SOCIAL ISSUES"
Submitted by HenryR on Mon, 10/2612009 at 8:50am.
What liberals (and Libertarians) don't get is that the moral base of society is it's guard against ballooning social spending. If you can maintain- if not boost-
the moral fabric of sOCiety, citizens engage in better behavior and social problems can be contained.
Undercut society's moral base and you have to increase spending on public safety, health, social services, etc. An ounce of public morality can save
government a pound of spending.
YOU REALLY DON'T GET LIBERTARIANS AT AL.L.
Submitted by Wm D Tabor DDS on Mon, 1012812019 at 9:06am.
While I agree that poor moral choices often place people in need of assistance, the Libertarian approach is to not allow those who make those
irresponsible choices to force others to bear the consequences. If people had to live with the consequences of their choices, instead of being bailed out by
public subsidy, and rely on charitable institutions for help when they needed assistance, those consequences would lead to better moral choices.
Just as welfare has seduced generations into fatherless homes, other subsidies lead people into lives of dependency as well. So, Libertarians would
eliminate public subsidy of Immoral lifestyles so the consequences of those choices would encourage better choices, not try to use force to compel moral
behavior In hopes of reducing the need for the subsidy.
You use force to compel good behavior in children, not adults. Libertarians know the difference.
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so
Submln.d by HenryR on Mon, 1012612009 at 10:02 am.
If the behavior doesn't change and the private charitable donations don't materialize, Libertarians let society go to pot.
I rest my case.
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GOOD POINT
Submitted by ptownbc on Mon, 1012812009 at 1:11 pm.
Our church leaders and politicians are SO good at teaching us the "right" way. By the way, when has society been "good" or "moral"? What age did
that exist? I appreciate your sentiment, but how long have drugs been illegal, and how long has it been a "sin" to commit adultery? It amazes me how
much people fear freedom. Tell me a time when a society failed because of too much freedom. I can give you plenty which have been convinced that
they should fear the "other guy" to the point that they give up all to an oppressive regime.
''The men the American public admire most extravaganUy are the most daring liars; the men they detest most violently are those who try to tell them
the H. L Mencken
HUH?
Submitted by Beachguy on Mon, 1012ti12009 at 2:56 P'"
It is not the govemmenfs job to provide for those who refuse to provide for themselves. Try reading the Constitution.
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SOCIETY GOING TO POT?
Submitted by Wm D Tabor DDS on Mon, 1 012612009 at 4:50 pm.
No, we allow individuals who consistently make bad choices to experience their own failure, rather than facilitate their continued bad choices until they
drag society down with them.
HUH?
Submitted by Beachguy on Mon,1012612009 at 10:01 am.
While I disagree with some of the stands of Ubertarians on some social issues, I agree with them that it is not the govemmenrs job to bail everyone out
agree with you about the cost of immorality on society.
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TWO DEMOCRATS
Submltlad by sailboat on Mon, 1012612009 at 8:59am.
I want to thank the VA Pilot for their two endorsements. I always vote just the opposite of what the VA Pilot endorses.
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WHAT A SHOCK
Submitted by Beachguy on Mon, 1012612009 at 1 0:04 am.
Does anyone really care who the five people who make up the Pilot's editorial board endorses for anything? The editors are nothing but mouthpieces for the
liberals.
MODERATE MOUTHPIECE
Submitted by Mike Barratt on Mon, 1012t12G0911112:04 pm,
Or alternately, a mouth piece for moderate, hard working citizens who expect their elected officials to do their jobs, like support education, transportation,
and public safety. We can leave the pursuit of a radical social agenda on the side for others to deal with, not our elected officials. And it is baffling tflat
conservatives would choose the republican ticket when they have caused the collapse of our transportation system according to the Virginia Chapter of
the American Society of Civil Engineers, a group which is not partisan nor political; they just want safe and adequate infrastructure. For example, if
Joannou et al had supported the Yes Campaign, the mid town tunnel expansion would be built today; now Portsmouth and Norfolk's citizens face a toll of
$2.50 one way. I guess all the Lexus' will get through, the rest of us can take the bus. Welcome to VIrginia; pay a toll, but cross your legs until you get to
Maryland.
HUH?
Submitt8d by Beachguy on Mon, 1012812009 at 1:25pm.
you say ... Or alternately, a mouth piece (Editorial Board) for moderate, hard working citizens who expect their elected officials to do their jobs .. " Wow,
talk about spin. I know those folks. While I like them personally, there is nothing moderate in their political views.
I am not saying that the Republicans are not without blame on the transportation problems. But increasing taxes without guarantees that the money will
actually be spent on roads etc will only cause more problems.
ONE CANNOT POSSIBLY ...
Submitted by theguyfromchesapeake on Mon, 1012612009 .t 4:08pm.
refer to themselves as 'moderate' or 'cenbisf and support the modem day Dem Party. It's almost an oxymoron to link those tenns with that organization!
There is nothing moderate or cenbist about that party, not with the faces they have leading them.
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IN CASE YOU MISSED IT KAINE IS A DEMOCRAT
Submitted by plerreg18059 on Mon, 10/2fil2009 at 8:22pm.
He signed an illegal bill remember?
BREAKING NEWS! DEVELOPING STORY! TEAM COVERAGE! WOW!
Submitted by JockamoRasputin on Mon, 1 012612009 at 11 :31 am.
" Virginian Pilot Editorial Staff Endorses Democrat l ! ! ! ! ! !
THE PILOT
Submitted by bmcallister on Mon, 1012612009 at 12:50 pm.
This editorial and the one endorsing Sen. Deeds are reasoned and well supported by the Pilot's moderate tradition.
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I UKE THE JUSTIFICATION!
Submitted by ptownbc on Mon, 1012612009 at 1 :33 pm.
These "issues are "devisive" because there are so many people on EACH side! Just say you don't agree with limited government and you are against
conservative views on social issues, and be done with it lfs not going to change with ANY election, so we can just get rid of this section every election
period. We should call this section "Platitudes". It sounds cool, but it's neither cool nor fresh.
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SHOCKER
Submitted by VA_Down on M011,1012612009 at 3:06pm.
The staunch republicans who post on these message boards support a candidate who would treat women, legal immigrants, and homosexuals as second
class citizens ... shocker ...
I HAVE TO BELIEVE THAT ...
Submitted by theguyfromchesapeake on Man, 1012812009 at4:12 pm.
Cuccinelli is quite formidable given the vileness of the attacks leveled against him here by the (ahem) always objective, always impartial, always non-
partisan Pilot Editorial Board. The sheer, unabashed hatred that is present in this editorial suggests that they fear him as a true candidate for higher office,
and will be quite successful in such endeavors. The more they try to villify him, the better and better he will look!
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AGREE
Submitted by Ptown67 on Mon, 1012612008 at 7:17pm.
lfs getting so you can judge the quality of a Conservative candidate by the vileness of the attacks leveled against them by the Liberal media. The more
afraid they are of the person running against their leftist ideals, the more shrill and personal these attacks get.
TWO BIGGOTED EDITORIALS
Submllted by ODU 1977 on Mon, 10126/2G09 .t 5:44pm.
Isn't it interesting that the Republican Party Nominated three pro life individuals but the Virginian Pilot only endorses two democrats- those pro abortion
candidates running against Roman Catholics who follow their faith. In the third race where the Republican nominee is a prolife protestant the paper
demurrers.
I guess the Pilot can't stomach a Catholic who follows his faith.
As for me I'll happily vote for McDonnell and Cuccinelli
Virginia has come a long way since 1g28, even if the Pilot has not.
YUP, YOU HIT THE NAIL ON THE
Submltlad by tinydancor75 on Mon,10/2612009 at 9:06pm.
Yup, you hit the nail on the head. You know, in those secret Virginian Pilot editorial board meetings, they have a contest to come up with the best ways to
up the number of abortions. Winner gets a canned ham!
(sarcasm off, now)
It disheartens me how people on bott1 sides of the political spectrum can be so divisive. There are a lot of us in the middle who are not only fed up with
certain things about our government, but also with the partisan bickering and name calling that both sides have stooped to.
No one has all of the answers. Working together, perhaps we can come up with most of them. By bickering, we continue to sink even lower. The sad part
is, for many of us, the together" part is too hard. For our politidans, ifs easier to scream on lV. For many of us, it's simpler to scream on places
like this message board.
It would be nice if for one day, we could log on to find thoughtful debate on here instead of socialist-this ... or bible-thumper-that. Also, changing candidates
names to make fun of them (like NOBama ... etc) doesn't really help your argument. It makes you look like a third grader.
And before you label me a socialist, I voted for McCain.
THIS ENDORSEMENT, SUCH A SHOCK FOR VAPILOT
Submilted by Bill14 on Mon, 1012612009 at 7:27pm.
The guy who does not even know what the office of Attorney General is gets the endorsement. He was asked to name the divisions and what each does
and had NO CLUE. Watch the video as the audience is laughing at how pathetic he is in avoiding the answer. VaPilot smears the Republican but makes no
mention of what a total know nothing Shannon is for the office.
http:l/campaignspot.nationalreview.com/post/?q=MGM1MjA10DdkZWYOYTkxZTA2Zm110GM1N2ViZmVmMGE=
This comment is VERY true
At the recent debate of the candidates for Virginia's attorney general, Republican Ken Cuccinelli put one to Democrat Steve Shannon thafs probably not
that hard: name each division of the attorney general's office and explain what each does. With a question like that, a candidate is probably hoping his
opponent forgets one, or mixes two up, or offers an answer that suggests incomplete knowledge of the duties they seek.
HE KNEW NOTHING
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AMAZING I
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Steve Shannon for attorney general! HamptonRoads.com I PilotOnline.com Page 6 of7
Submitted by pierreg18059 on Mon,1012ti12009 at 8:20pm.
The far left Op Ed board endorses a democrat No need for balance or any real thinking here. Just endorse the democratic candidate. Just a continuation
from being in the tank for Obama.
RACIST!
Submitted by VaSteve on Tue, 1012712009 at 7:03am.
Ham sandwich on what? WHITE breadlll? AHA!It comes out every time.'White' bread. Typical racist republican.
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EXHIBITH
174
Ken Cuccinelli Loses Petition To Uphold Anti-Sodomy Law
H l_i!'l
P<f':d POLITICS
Page 1 of 1
...
Luke Johnsonluke.johnson@huffingtonpost.com
Ken Cuccinelli Loses Petition To
Uphold Anti-Sodomy Law
Posted: 041101201310:28 am E.DT I Updated: 04110/2013 3:40pm EDT
WASHINGTON - A court has denied Virginia Attorney General and 2013 gubernatorial candidate Ken Cuccinelli a full hearing to
challenge a ruling that struck down the state's anti-sodomy statute as unconstitutional.
The court issued a short, two-sentence statement on Monday denying the petition, filed on March 26, for an en bane hearing. The court
noted that no judge requested the full hearing in front of 15 judges, after a three-judge panel ruled the statute unconstitutional on March
12.
The decision is a blow for the attorney general, a steadfast social conservative who is running in an increasingly liberal state.
The particular case challenging the law concerned William Scott McDonald, a 47-year-old who was convicted under the "Crimes
Against Nature" statute in 2005 for soliciting a 17-year-old girt to commit sodomy. Historically, anti-sodomy laws have taraeted
homosexual activitv, but the laws have been used to outlaw acts between those of the opposite sex as well.
The Virginia court ruled that the entire state statute was unconstitutional based on the U.S. Supreme Court's 2003 decision in Lawrence
v. Texas striking down Texas' anti-sodomy law. The Virginia court said the statute could not be used to convict the defendant, but that
the state Legislature could pass a new, constitutional law covering sodomy between minors and adults.
Cuccinelli's office said the case was about sexual predators in a statement last week. "This case is not about sexual orientation, but
using current law to protect a 17-year-old girt from a 47-year-old sexual predator,M said Caroline Gibson, deputy director of
communications at the Attorney General's Office, in a statement.
The attorney general, however, has spoken out against LGBT rights. "My view is that homosexual acts - not homosexuality, but
homosexual acts- are wrong. They're intrinsically wrong. And I think in a natural law-based country, it's appropriate to have policies
that reflect that. ... They don't comport with natural law. I happen to think that It represents (to put it politely; I need my thesaurus to be
polite) behavior that is not healthy to an individual and in aggregate is not healthy to society," he said to the Viminian-Pilot in 2009.
Cuccinelli's office did not immediately respond to a request for comment Wednesday.
http://www.huffingtonpost.com/20 13/04/1 0/k:en-cuccinelli-sodomy _ n _3051758.html?view... 9/23/2013
175
EXHIBIT I
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATNE,
176
COMMONWEALTH OF VIRGINIA
OFFICE OF THE GOVERNOR
Executive Order No.6 (2010)
Equal Opportunity
By virtue of the authority vested in me as Governor, I hereby declare that it is the firm and
unwavering policy of the Commonwealth of Virginia to assure equal opportunity in all facets of
state govermnent.
This order is in furtherance of the stated policy enacted by the General Assembly, and specifically
prohibits discrimination on the basis ofrace, sex, color, national origin, religion, age, political
affiliation, or against otherwise qualified persons with disabilities. The policy permits appropriate
employment preferences for veterans and specifically prohibits discrimination against veterans as
contemplated by state and federal law.
State appointing authorities and other managers are hereby directed to take appropriate measures, as
determined by the Director of the Department of Human Resource Management, to emphasize the
recruitment and appointment of qualified minorities, veterans, women, disabled persons, and older
Virginians to serve at all levels of state govermnent. This directive does not in any way permit nor
requires the lowering of any job requirements, performance standards, or qualifications so as to give
preference to any state employee or applicant for state employment.
Allegations of violations of this policy shall be brought to the attention ofthe Office of Equal
Employment Services of the Department of Human Resource Management. No state appointing
authority, other managers, or supervisor shall take retaliatory actions against persons making such
allegations.
Any state employee found in violation of this policy shall be subject to appropriate disciplinary
action.
The Secretary of Administration is directed to review annually state procurement, employment, and
other relevant policies for compliance with the non-discrimination mandate contained herein and in
general law, and shall report to the Governor her findings together with such recommendations as
she deems appropriate. The Director ofthe Department of Human Resource Management shall
177
assist io this review.
This Executive Order supersedes and resciods Executive Order Number One (2006), Equal
Opportunity, issued by Governor Timothy M. Kaine on January 14, 2006.
This Executive Order shall become effective upon its signing and shall remaio io full force and
effect until amended or rescinded by further executive order.
Given under my hand and under the Seal of the Commonwealth of Virginia this 5th day of February
2010.
/s/ Robert F. McDonnell, Governor
Attest:
/s/ Secretary of the Commonwealth
178
EXHIBITJ
179
l(g IJ IJ .1.

Document 26-15 Filed 09130113 Page 2 of 5 PageiD# 242

COMMONWEALTH of VIRGINIA
Of/It: II/ rile (Jcmrlll
March4, 2010
Presideuts, Rectors, 1l!ld Visitors of
Virginia's Public Colleges and Universities
Prtvllegd C011111N11icatlon
Dear Ladies and Gentlemen;
1100-)loin 9-
!liobmoDd, Vhrioia 21Z19
81J4.786..2071
FAX
v--Rclo!Y sorn...
800-82S..II20
711
SeYenll inquiries mlelltly bave been made rogarding the authority of Virginia's
public colleges and universities to approve inclusion of "sexual orientation, n "gender
idClltity," "gender expression," or like classifiCillions in the non-discrimination policy of
the respeati.ve institution. Simultaneously with these inqllirlllfl, lettets &om this office to
various colleges addressing this issue have been releucd into the public arena, prompting
more questions regarding the application of this office's advice.
In order to ensure that no confusion exists with regard to the advice of this office
or to the leplstatus of any existil!g or atttioipated policy of a specific college, pleue
consider this letter as the opinion and advice of the Office ofthe Attomey General.
It is my advice that the law aDd public policy of the Commonwealth of Vll'ginia
probt."bit a college or university from including orientation," "gender identity,"
"gender expression," or like classification, as a protected class within its non-
discrimination policy, absent specific authorization from the General Assembly.
Virginia's c<illeges and universities are public inmtutions. Each Board of Visitors
is vested with broad rights and powers confemld by the provisio1111 of the Code of
. Virginia In addition, Boards have the autbority to make needful rules and regulati01111
and generally dire the affairs of the college. Beyond this statutory framework. the
Commonwealth recoguiz:es tbat a university "hu not only the power expressly oontemKI
upon it, but it also has the implied power to do whatever is reasonably neclessary" to
effectuate its granted powers.
1
Examples are numerous - particularly in the area of
student safety and discipline - where universitiell operate within a wide range of implied
1
BatdNPerv. CommoiiWIIlllh, 176 Va. 109 (1940).
03/05/2010 2:15PM (GMT-05:00)
180
07/11/2020 02: 46 FAX i4J 002
authority. This broad authority, however, is not without liWlts. Virginia's public
unhremtiw are, at all timw, subject to the control of the General AHembly.
2
They are
state agencies - arms of the state - tasked with iblfilling the commitment of the
Commonweal1h to provide education to the students of Virainia. As such, they have no
$Uthority greater than that of the body that created it and from whom they derive their
expressed and implied authority. Tbat body is the General Assembly of Virginia.
The Genenl AsHIDbly bas contidered aod defined the protected classes for
purposes of non-discrimination statutes. It bas specifically defined lllllawtbl
discrimination at educational institutions. The Virginia. Human Rights Act states that it is
the policy of the Commonwealth to "safeguard all individuals within the Commonwealth
from Ulll.a.wful discrimination because of xace, color, religion, naticmal origin, sex,
pregnancy, childbirth or related medical conditions, age, marital statm, or disability, in
places of public accommodation, Including educational institutions ... "' (emphasis added).
In addition to this aflirmative statement, the General Assembly ha.s on numerous
occasions considered and rejected creating a protected class defined by "sexual
orientation," "gender identity" or "gender expression."
4
I .acking this clear authority, no
state agency can reach beyond the boundaries established by the General Assembly.
Analogous to tbe General Assembly's legislative stance, prior opinions of tbe
Attorney General have found that localities have no authority to expand their non-
discrimination policies. In 1982, Attorney General Gerald L. Baliles addressed the
gerunl issue of expantion of a state discrinlination law by a looality. He concluded: "1'o
the extent that [amendments to the Human Rishts Ordinance of the County of Fairfax)
either eohuge upon the definitions of the protected of peiliOIIS as presently defined
by State statute, or declare particular acts to be unlawfW under local ordinance and
thereby provide aeparate local peoalties or exactions for violations, I am constrained to
conclude that the amendments are invalid because the board of supervisors does not
prescmtly bave the authority to enact thent. "
5

2
"It ill plain 1bin the Ulliwrsi1y of VqiDia is in tbe lll1'ic:telt lleiiSe a Jlllblic iDslitulinD ... IIIIi COD.b'olled
solely by the State ... rmd tba1 the illlerest oftbe plhlic o::onstitutes iu ends and aims." Phlllipn. Rlwlr)l' &
Jllslto" of UIIIWI'IIIIy qf'Jilf8inla. 97 VL 472, 47S-476 (1899).
VA. CODE ANN. 2.2-3900. Se.t also the Virginia l';dr l!mploymatt Coatracling Act, which elllablillhes
the Commonweahh's prohibition apinst disorimiDalioD, rmd defines p-..d QIIIIISCS as
"rice, color,ldlalao, sex, ornadDDalarlgin." VA. CoDB.ANN. 4200.
4
Sioc:e 1997, the Gcaem1 Assembly !las Qll-lhan 25 occasiODS CXIJISideted and "liOited bills addiDg
"rexual orientallmt" M various statutes. Last sessioll, tbe J1bt*e "gender ldcatlly or
expreaion" 'Mill iacludlld among tbe 8ft 2009 SB 1247 (A billtn add -.91 oriemMiM 1D
the definition ofUDlawfbl diserilllina!OJY pmetice in the Vqinia Human Rigbls Act. S1m:keD of
Patron in Gmlnl Unnl and Tellimolo!IY 15-{1); HB 2668 (A bill tn add to the !'air H<lllsing Law
discriminatibn based <IIJ. -..al orilm1al:ion 0111 1111 lllllawfQl discriminato<y lwusiug praetic;o. Lcdt an tbe
table m Gcaem1 Laws Sullconnnittcc); HB 2385 (A bill to prolu'bit dillcrimiDalio. in public employmcn1
based 011 IJI!XIIa]. orieataliOD. ThD bill dcl!nld "-..! oriGDIIIIioo" u "a p111011's aciDol or
bela()$1!>vaJUy, m-aii!y, homoielluality, or geod;lr ideodly Ldt an the table in General
Laws Subcommiflee).
5
1982-1983 0p. Va. Att'yGen. 286.
03/05/2010 2:15PM (GMT-05:00)
181
07/11/2020 02:47 FAX ljgJ003
In 198S, Attorney General William G. Broaddus concluded that the city of
d.id not ba:ve the authority to enlarge the cateaories of protected persons as
defined in stato statutes by enacting an ordinange prohibi.tin.g discrimination on the basis
of sexual prelerence.
6
In 1993, Attorney General Stephen D. Rosenthal concluded that
Arlingtoll County was not authorized to prohibit discrimination based on sexual
orientation to any gr.ater extent than It is prohibited by state law.' Two opinions in 2002
by Attornoy Genora!Jerry Kilgore reached the same conclusion as did bis predelleiSOrS.
1
In 2006, this office concluded that the addition of sexual orientation as a protected
employment class by way of an order of the Governor was inteoded to, arid did,
alter the publio polioy of the Commonwealth. "Changing public policy of the
Commonwealth is within the purview of the General Assembly and, thecefore, beyond
the scope of exeoutive authority and is unconstitutional."
9
Acting consistently with this
advioe, the current Governor bas revised and reissued the executive order to bring it in
1in1:1 with the law and policy of Virginia.
Taken togetlulr, these legi5lative, executive, and legal actiollS establish a
consistent public policy of the Commonwealth regarding the classification of sexuAl
orientation and gender expression u a protected class. A Board of Visiton cannot adopt
a policy position for wbicb no authority bas been granted or that has repeatedly been
rejected by the Geun Assembly. Ti!is applies as well, by CJrtension, to the Board's
agent -the president ofthe college.
Apart from the lack of authority to create such a protected class, the inclusion of
suoh classlfica1.'i.ODG in iDstitutional non-discrimination policies invites cmmve litigants to
deem a university's benign non-discrimination statement to mandate, by contract,
Partlculat benefits or privileges to individuals based on such classifications. This
outcome would alsO stand in stark contrast to the Commonwealth's public policy.
Aeeo.rdingly, it is my ad ville that the law aad public policy of' the Commouwealth
of Virginia prohibit a college or university fi'om including orientation," "gender
identity," "gender expression," or like terms in its non-discrimination policy as. a
protected class absent specific authorization from the General Assembl'y. I see no
significant di:treteace in this policy being adopted by formal Board resolution or by
presidential action.
'1985-1986 Op. Va. Att'y GcG. 16.
7
1993 Op. Va. Alt'y Gen. 68.
8
S.. 200Z 0p. Va. Alt'y 01!11. lOS; 2002 ()p. Va. An'y Gem. 107.
9
20015 Op. VII. Att'y Gen.
03/05/2010 2:15PM (GMT-05:00)
182
07/11/2020 02: 48 FAX 11!1 004
I am llW8te that several Virginia colleges and universities have included "seJtUal
orientation'' in their respective policies. For the reasons stated, any college or university
that baa dODe so has acted without proper autbotity. Such invalid policies create, at a
minimum, cOIIfusion about the law and, at worst, a litany of instances in which the
sohool' s opemion would need to change in order to cmne into eonfmmance.
AccordiDgly, I would advise the Boards of each college to take appropriate actions to
1niDs their policies ill OODtbnnance with the law and public policy ofVuglnia.
Please &el free to contact me if you have any further questions. I apprecill:te the
opportunity to be of semce to you.
aeth T. U
Attorney General
03/05/2010 2:15PM (GMT-05:00)
183
EXHIBITK
184
Gay rights advocates welcome Election Day results for a change- Washington Post Page I of 3
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Gay rights advocates welcome Election Day
results for a change
By Ned Martel, Nov<>mhero:, 2<n2
On Tuesday, American politics became much
more Wisconsin voters elected a
lesbjap senator. Three gay men, and potentially
one bisexual woman, will join the House of
Representatives. And the approval of ballot
initiatives means homosexuals can marry in
three more states.
The gay rights movement had come to dread
election days, when voters often reversed
measures that legislatures and governors had
backed And opponents of same-sex marriage
consistently won decisive statewide votes with
far less money and manpower than its
advocates.
C
VIew Photo Gallery - : #2012tJnfiltered: Your
election Images: Election Images from reade
111
... As recently as May, North Carolina voters
delivered another drubbing in a string of 30-
plus statewide losses for gay-marriage activists,
adding the state's ban on same-sex marriage to its constitution. In Tuesday's vote, those
advocates welcomed a different result. "Winning for the first time at the ballot box in Maryland,
Maine, Minnesota and Washington is truly historic," said Chad Griffin who recently took over
the Human Rights Campaign (HRC), the nation's largest gay rights organization. "You're seeing
how fair-minded Americans are, coming down on the side of full equality and inclusion in this
country."
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Griffin attn'buted the win to new gay-straight
alliances - outreach efforts with church
leaders, African American activists,
corporations and business leaders. Many
prominent executives took the risk of alienating
their customer base and ponied up chunks of
their own fortunes, including the founders of
Amazon and Microsoft in Washington state. The
chief executive of General Mills, Ken Powell,
spoke for his company against a same-sex
marriage ban in the conglomerate's home state
of Minnesota.
A leading opponent to same-sex marriage
discounted the victories as waged on uneven
terrain. Maryland, Maine, Minnesota and Washington are "four deep-blue states," where
Democratic voters are more likely to back gay causes, said Brian Brown president of the
National Organization for Marriage (NOM).
Only four years ago, opponents of gay marriage triumphed in California's Proposition 8 vote,
which stopped a same-sex marriage law in that blue state. Brown noted that NOM achieved a
decisive win there despite many newspaper editorials in favor of same-sex marriage, plus
corporate behemoths such as Google and Levi's lining up with gay rights organizations. "That's
not new" to face off against such players, Brown said. "What's new this year is just the level of
money."
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185
Gay rights advocates welcome Election Day results for a change - Washington Post Page 2 of 3
Griffin cited the $2.5 million check that Jeff Bezos, Amazon's billionaire founder, wrote in
support ofWashington's gay-marriage effort- funds that mingled with $6oo,ooo each from
Microsoft founder Bill Gates and chief executive Steve Ballmer. By Brown's estimation, Bezos's
act oflargess was a historic feat: "As far as I know, that's the largest single donation" in the
dozens of gay-marriage ballot initiatives to date.
The money spent this year was the most lopsided in favor of advocates of same-sex marriage
thus far. By HRC's tally of the Washington state race, gay rights organizations poured in nearly
$12 million, while advocates of traditional marriage spent $3 million. Nationwide, HRC and
NOM spent the most money, and the Catholic Chureh contributed large sums in its effort to
prevent same-sex couples from marrying.
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Earlier in the year in Maryland and Washington, legislatures passed bills to allow same-sex
marriage, with the blessings, respectively, of Govs. Martin O'Malley and Chris Gregoire, both
Catholic Democrats. Then traditional-marriage petitioners pushed for ballot initiatives. Maine's
vote arose after gay-marriage activists gathered enough signatures to send the same-sex
marriage question directly to the voters, three years after a similar measure failed. In Minnesota,
voters were asked a different question: Should the state's existing ban on gay marriage become
an amendment to the state's constitution?
The decisive wins for same-sex marriage come shortly before what is expected to be a
momentous week in the Supreme Court. Griffin said the justices could decide to hear challenges
to California's Proposition 8 and the 1996 federal Defense of Marriage Act. "We have never seen
in the history of the Supreme Court where so many cases are pending before the
justices," he said.
Many gay rights activists were optimistic that Tuesday's sweep would inform the proceedings.
"There's no question that these votes affect the court," said Brian Ellner, a prominent advocate
for gay equality issues. "These victories make clear what the polling is already demonstrating."
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Gay rights advocates welcome Election Day results for a change- Washington Post Page 3 of3
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Case 2:13-cv-00395-AWA-LRL Document 26-17 Filed 09/30/13 Page 1 of 3 PagelD# 250
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Marriage Requirements
Page 1 of2
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Search Vlrglnla.gov
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Questions & Answers
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Code of Virginia
Pertaining to the
Division of Vital
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VItal Records Home
Age Requirements and Consent
The minimum age for marriage In the Commonwealth of Virginia Is sixteen (16) years for both the bride and groom;
however, if either party Is under eighteen (18), consent to the marriage must be given by the father, mother or
legal guardian. This may be done in person by the parent or legal guardian before the person issuing the license or
by written consent properly sworn to before a notary public. Special provisions are made In Virginia law to allow
marriage for under age parties when the female Is pregnant and for situations in which under age applicants have
no parent or legal guardian.
Prohibited Marriages
A marriage entered Into prior to the dissolution of an earlier marriage of one or both parties.
A marriage between an ancestor and or descendant; or between a brother and a sister; or between an
uncle and a niece; or between an aunt and a nephew; whether the relationship is by half or the whole
blood or adoption.
When either of the parties lacks capacity to consent to the marriage because of mental incapacity or
infirmity.
A marriage between persons of the same gender {same sex).
ftCommon Law" marriages are not valid lf entered into in Virginia or any other jurisdiction, which does not
permit them for its residents.
Llcen Requirements
Blood Test - There is no blood test requirement for marriage in Virginia.
Where to obtain license - A license for marriage in Virginia is issued by the clerk or his/her deputy clerk of
a circuit court in any county or city in the Commonwealth of Virginia. The ceremony may be performed
anywhere in the State. Applicants must, under oath, furnish information required to complete the
marriage record. These items are material and the applicant may be subject to prosecution for perjury for
violation of the portion of the statutes which requires this information. For divorced persons, there is no
statutory waiting period before marriage after the divorce is granted unless remarriage is specifically
prohibited by a court. In some cases, clerks may require documentary proof Of age or termination of
previous marriage. Most of the offices of the clerks of court are closed on Saturdays.
Time Limitations- The marriage must be performed within sixty {60) days after the license is issued.
There is no waiting period required between application and Issuance of the license and a couple may be
married immediately after the issuance of a license.
Fees - Any person authorized to celebrate the rites of marriage shall be permitted to charge a fee not to
exceed $50, Section 20-27, Code of Virginia, Domestic Relations. This information should be
confirmed with the court as we may not always be notified of changes that occur.
Virginia issued license- The marriage license issued in Virginia is for marriages to be performed in Virginia
ONLY.
Marriages performed outside of Virginia - Marriages performed outside of Virginia are filed in the state or
country in which the marriage was performed. You must contact the state or country you were married in
to obtain a copy of the marriage record.
Marriage Ceremony
Who may perform?- A minister of any religious denomination must be authorized by a circuit court to
celebrate the rites of matrimony. To obtain such authorization, the minister must produce proof of his
ordination and regular communion with the religious society of which he is a reputed member. In addition,
the court in each city and county has appointed persons who are eligible to perform civil marriage
ceremonies. For marriages between persons belonging to any religious society which has no ordained
minister, refer to Section 20-26, Code of Virginia, Domestic Relations.
Witnesses- There is no statutory requirement that witnesses be present at the marriage ceremony.
Marriage Record - The minister or other person officiating at the marriage must complete and sign the
Marriage Register and the Marriage Return and forward both forms to the clerk of the court who issued the
s,t
http://www. vdh.state. va. us/vital_records/marry .htm 9/24/2013
189
Page 2 of2
license within five (5) days after the ceremony is perlormed. The Marriage Return is forwarded by the
clerk of the court to the State Division of Vital Records. In addition to the forms to be returned to the
clerk, the officiate may also prepared a certificate to be given to the newly married couple. If the minister
or person who performs the marriage ceremony does not return the Marriage Register and the Marriage
Return to the clerk of the court who issued the license, there will be no record of the marriage in the
courts or with the state.
Certified Copies
If a certified copy of the marriage is required, it may be obtained from the office of the clerk of court who issued
the license (contact the court for the cost) or from the Virginia Division of Vital Records in Richmond, Virginia, for a
fee of $12.00 for each copy, When application is made for a copy of a marriage record from the Division of VItal
Records, the following information should be Included: full name of groom, full maiden name of bride, date and
place of marriage and the name of the circuit court that issued the marriage license.
E-mail This Page Last Updated: 07-30-2011
Horne 1 Jobs 1 Meetings Calcnc1ar I CoGt<lrt \J<; I FDTA Poiicy i Web Policy 1 Search I VDH Code of Eth1cs
-:r:; Copynght 2013 VinJinia Department of Health. All rights reserved. WAI Level A Compliant.
http://www.vdh.state.va.us/vital_records/marry.htm 9/24/2013
190
EXHIBITM
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PLOS ONE: Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage Page 1 of 9
1fPLOSIOMI
Same Sex Marriage and the Perceived Assault on Opposite
Sex Marriage
Alexis Dlnno , Chelsea Whitney
Abstract
Background
Marriage benefits both individuals and societies, and is a fundamental determinant of health. Until recently same sex couples have been excluded from legally
recognized marriage in the United States. Recent debate around legalization of same sex marriage has highlighted for anti-same sex maniage advocates and policy
makers a concern that allowing same sex couples to marry will lead to a decrease in opposite sex marriages. Our objective is to model state trends in opposite sex
marriage rates by implementation of same sex marriages and other same sex unions.
Methods and Findings
Marriage data were obtained for all fifty states plus the District of Columbia from 1989 through 2009. marriage rates are non-stationary, a generalized error
correction model was used to estimate long run and short run effects of same sex marriages and strong and weak same sex unions on rates of opposite sex marriage.
We found that there were no significant long-run or short run effects of same sex marriages or of strong or weak same sex unions on rates of opposite sex marriage.
Conclusion
A deleterious effect on rates of opposite sex marriage has been argued to be a motivating factor for both the withholding and the elimination of existing rights of same
sex couples to many by policy makers-incll.lding presiding jusUces of current litigation over the rights of same sex couples to legally marry. Such claims do not appear
credible in the face of the existing evidence, and we conclude that rates of opposite sex marriages are not affected by legalization of same sex civil unions or same sex
marriages.
Citation: Din no A, Whitney C (2013) Same Sex Marriage and the Perceived Assault on Opposite 58)( Marriage. PloS ONE 8(6): 965730.
doi:1 0.1371J}oumal.pone.0065730
Editor: Yamir Moreno, University of Zaragoza, Spain
Received: May23, 2012; Accepted: May 3, 2013; Published: June 11, 2013
Copyright: @ 2013 Dinno, Whitney. This is an open-access article distributed under the terms of the Creative Commons Attribution licellSe, which permits unrestricted
use, distribution, and reproduction in any medium, provided the original author and source are credited.
Funding: The authors have no support or funding to report.
Competing Interests: The authors have declared that no competing interests exist.
Introduction
Marriage has many values to individuals and societies. The codification of marriage into U.S. Federal law alone provides over a thousand conditions in which married
couples are treated differently than non-married couples. While some disadvantages may result to married couples relative to unmarried couples in these taws-as when
there are married couple penally provisions in the tax code-most of these laws provide substantive benefits to married couples relative to unmarried couples [1].
Marriage Is well understood as a basic determinant of the health of aduHs [2] and their children [3], [4]. Married individuals are less likely than non-married individuals to
report their health as fair or poor, less likely to suffer from physical ailments or report poor psychological health, and across the lifespan report fewer health ailments [5].
Marriage is associated with greater life satisfaction and improved mental health [6], {7].
Until recently same sex couples in the United States have been excluded from legally recognized marriage. The current national policy debate over same sex marriage
intensified in 1993, when in the Hawaii's Supreme Court ruled in BaeiY v. Mike "that under that states constitution, a marriage statute which resbicts the status and
benefits of marriage to male-female couples discr'lminates on the basis of sex." [8]1n 1996 the federal Defense of Marriage Act (DOMA) restricted marriage to a legal
union between one man and one woman, and, responding to concerns that some states would at some point be required to recognize same sex marriages from other
states, gave states the power to restrict marriage to opposite sex couples and to not recognize same sex marriages from other states. Thirty states have passed state
DOMAs and statute restrictions on marriage [9]. In most states, same sex couples are still excluded from marriage and all same sex couples are excluded from the
federal benefits of marriage.
Massachusetts became the first state to anow same sex marriages on May 17, 2004 following the ruling in Goodridge v. Department of Public Health (440 Mass. 309
Mass: Supreme Judicial Court, 2003). Subsequently, Connecticut (November 12, 2008), Iowa (April27, 2009), New Hampshire (January 1, 2010), New Yori< (July 24,
2011), Vermont (September 1, 2009), Wasi"ington (December 6, 2012), Maine (December 29, Maryland (January 1, 2013) and the District of Columbia
(December 18, 2009) have joined Massachusetts in legalizing same sex marriages (see Table 51 in File 51). California's Supreme Court ruled in 2008 that prohibiting
same sex couples from marrying was unconstitutional (In reMARRIAGE CASES, 2008, 43 Cal.4th 757). Same sex marriages were allowed in California between June
17th, 2008 and November 4th, 2008 during which time approximately 18,000 couples were married [2]. In November of 2008, CA voters passed Proposition 6 [10]
defining marriage as one man and one woman. While the federal lawsuit challenging California's PropositiOn 8 is wori<ing its way through the appeals process (See:
Penyv. Brown, No. 10-16696, 9th Cir. Feb 7, 2012), the 18,000 CA same sex marriage licenses issued in 2008 remain valid (Strauss v. Horton, 2009,46 Cal.4th 364).
http:/ /www.plosone.org/article/info%3Adoi %2F 10.13 71 %2Fj ournal.pone. 0065730 9/24/2013
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PLOS ONE: Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage Page 2 of9
In 2000, Vermont became the flrst stale to ak>w civil unions for same sex couples following a supreme court ruling that marriage benefrts could not be restricted to
opposite sex couples (Baker v. Vermont, 744 A. 2d 864 Vermont: Supreme Court, 1999). Following Vermont, eleven states, including California, Connecticut, Delaware,
Hawaii, Illinois, Nevada, New Hampshire, New Jersey, Oregon, Rhode Island, and Washington as well as the District of Columbia enacted legislation recognizing same
sex 'domestic partnerships' or 'civil unions' which do or did extend most or all of the state-level benefits of maniage, explicitly reserving the legal designation of
marriage to opposite sex couples (see Table 51 in File 51). Several states, including Colorado. Maine, Maryland, Wisconsin, and previous to stronger same sex union
laws, in California, the District of Columbia, New Jersey and Washington enacted legislation recognizing same sex 'domestic partnerships' or 'designated beneficiaries,'
which have provided a limited subset of state-level benefits of marriage to registered couples (see Table 51 in File 51).
Is Same Sex Marriage a Detriment to Opposite Sex Marriage?
Opponents to legalization of same sex marriage have positioned It as an "assaulr [111 seeking to "weaken," [12] "destroy" [13H16] and "undermine [17). [18] opposite
sex marriage. Anti-same sex marriage lawmakers, advocates, and journalists have raised concerns over the social effects of legalizing same sex marriage. One such
use of language has positioned same sex marriage as literally harmful to opposite sex marriage: in a recent ruling of the United States Court of Appeals for the Ninth
Circuit in Perry the proponents argue "if the definition of marriage between a man and a woman is changed. it would fundamentally redefine the term from its original
and historical procreative purpose. This shift in purpose would weaken society's perception of the importance of entering into marriage to have children, which would
increase the likelihood that couples would choose to cohabltate rather than get married" (Peny v. Brown, No. 1 0-16696, 111-112-9th Cir. Feb 7, 2012). David
Blankenhorn, an expert witness for the defendants in Perry testified under oath "that allowing same-sex marriage would undermine respect for the unique status of
traditional marriage, and this could lead to further deinstitulionalization, induding an increase in out-of- wedlock births, divorce, etc [19). The argument that same sex
marriage literally destroys opposite sex maniages translates directly to the question of what has happened to rates of opposite sex marriage in states that allow same
sex marriage as compared to other states which do not? A similar question has been posed in the academic arena with respect to opposite sex marriage rates in
Denmark, Norway, SWeden, Iceland, and the Nethen&nds, and no significant change in opposite sex marriage and divOrce rates following enactment or same sex
maniage laws was found [20}. The academic literature quantitatively assessing the effect of same sex marriage laws on rates of opposite sex marriage in the U.S. is
tiny, with, we believe, just one study that analyzed a static model of marriage rates from three years (1990, 2000, and 2004) and fo\rld a signifk:ant positive association
between ""gay marriage, or full legal recognition like civil unions" and state marriage rates [21].
Despite the argument that legalizing same sex marriage will decrease the rates of opposite sex marriage, some opposite sex couples in the U.S. are currently
boycotting marriage until II Is available to all [22), (23]. Heterosexual and bisexual individuals and opposite sex couples across the country have pledged to boycott
marriage until it is available to all by joining the National Marriage Boycott, started after the passage of Proposition 8 [24). The movement has been joined by churches
as well who have stopped signing marriage licenses in support of marriage equality (25), [26}. That some opposite sex couples will not many unless same sex
marriages are lawful suggests, contrary to the prognostications of some opponents of same sex marriage, that a probable increase in marriage rates over time will
follow the legalization of same sex marriage. The fact that some opposite sex couples are postponing maniage until it is legal also for same sex couples implies that
there may also be a limited period of Increase in opposite sex marriages following enactment of same sex marriage laws. A helpful anonymous reviewer of this article
conjectures that same sex marriage laws could be expected to have two kinds of effects on rates of opposite sex marriage. Because by legitimizing same sex
relationships, same sex marriage laws could help reduce the number of homosexuals living doseted lives and entering into unhappy opposite sex marriages, such laws
might both contribute to decreased numbers of new opposite sex marriages, but also reduce the number of opposite sex marriages likely to end in divorce because the
marriage was undertaken to keep up heterosexual appearance by a homosexual participant. Therefore caution must be taken about conflating causes of state-level
rates of opposite sex marriage with causes of Individual-level or couple-level participation in opposite sex marriage.
We aim to test the claims that rates of opposite sex marriage will change as a result of same sex marriage or strong or weak same sex union laws. Our primary formal
hypothesis is twofold: (1) that there is in the short or long-term a decreasing trend in rates of opposHe sex marriage following Implementation of same sex marriage
laws, and (2) that states enacting same sex marriage laws experience an increase in opposHe sex marriages in the short-term following implementation. These primary
hypotheses are accompanied by four parallel secondary hypotheses for comparable short-term and long-term effects following implementation of strong same sex
union laws providing most or all of the benefits of marriage excepting the term marriage, and for weak same sex union laws providing a small subset of the benefits of
marriage.
Materials and Methods
We model marriage rates in the thirteen states plus the Oistricl of Columbia where same sex marriage or strong or weak same sex union laws were implemented before
2009 relative to rates in the remaining states ..
Variables and Data
Marriages by state and year from 1988 to 2009 were obtained from National Center for Health Statistics (NCHS) marriage publications )27t{41], excepting Louisiana in
2006 when NCHS data were unavailable. We used the Louisiana Department of Health and Hospitals marriage rate figure for 2006 because NCHS marriage figures
from 2005 and 2007 are identical to the Louisiana Department of Health and Hospitals figures for those same years (42]. Mid-year (July, 1) estimates of the U.S.
population 18 years and older by state were obtained from the U.S. Census Bureau Population Estimates historical data by state
(http:ltwww.census.gov/popestldatalhistorical/). The adult population in each state was used as this represented those 'at risk' of marriage for purposes of analytic
precision (and not intended as a substantive redefinition marriage rate). The total number of marriages in each study state were adjusted downward by the
corresponding number of same sex marriages [43]-{461 appropriate to each year from enactment to 2009. Because Cslifomia did not track same sex marriages in
2008, we used the widely-reported figure of 18,000 same sex marriages in Cslifornia during 2008)2]. Marriage rates were calculated as all control states marriages
minus the total number of reported same sex marriages (i.e. zero in most states and years), divided by the in-stale adult population at mid-year. The sample size was
1071.
Data for state same sex maniage, and strong and weak same sex union laws were taken from public legislative and court records (see Data 51). In each year, same
sex marriage and union laws were separately encoded in each state with a proportion representing how much of that year the law was in effect For example,
Massachusetts implemented same sex marriage on May 17, 2004, so during the first year following enactment the same sex marriage variable for this state had the
value 0.623 in 2004, the value 1.0 in all subsequent years, and the value 0.0 in all previous years. A multiplicative interaction term for same sex marriages and strong
same sex unions to capture those occasions when both laws were in force simultaneously.
Missing Data
Marriage data were missing for Cslifomia in 1991 and for Oklahoma for 2000.....2004. The portion of missing marriage data was 0.0045. We accounted for increased
uncertainty in our estimates due to data missingness using bootstrap estimation maximization multiple imputation methods developed for missing time series data with
the amelie package version 1.5-5 for R. version 2.14. [47] Reported are the results of identical analyses on ten imputed data sets combined )48] to reflect increased
uncertainty due to data missingness. See File S1 for further details.
http://www.plosone.org/article/info%3Adoi%2FIO.l371 %2Fjournal.pone.0065730 9/24/2013
193
Nonstationarity of Marriage Rates
A fin;;t-lag random intercept model (1) provided an estimate of p =0. 961 (95% CI:0.953, 0.970), suggesting that marriage rates durtlg the study period were strorgty
autoregressive and near-integrated (i.e. non..stationary) processes (49), [50). Application of Hadri's test for unit root in panel data allowing for cross-sectional
dependence and subtracting cross-sectional means [51] conflnned that marriage rates in some states were neither trend stationary (p < 0.000 )) nor level stationary (
p < 0.000 )). The lm-Pesaran-Shin test for unit root with a single lag and subtracting cross-sectional means [52] failed to reject the null hypothesis that all states
contain unit roots both with time trend (J' = 0.21 06) and without (p > 0.981 0).
(1)
where:
f
11
is the maniage rate at timet in state j,
P
1
measures autocorrelation and is permitted to vary for each state,
r, _ 1
1
is the first lag of the marriage rate in each state,
:
11
measures all disturbances tor in each tme f (assumed distributed noonal), and
11;,, measures state-level variation in p (assumed distributed normal).
Data Analysis
We modeled state-level differences in opposite sex marriage rates by differences in their enactment of same sex marriage laws and strong and weak same sex union
laws. Because marriage rates are near-integrated, stationary models of change in marriage rates cannot provide reliable estimates (53]. Instead, change in marriage
rates in year t and state i was fit using a single-equation generalized error correction model (GECM) [49], [50] (equation 2), permitting inference about the short term
and long term effects on opposite sex maniage rates of same sex marriage and union laws. The GECM is an appropriate model both because GECMs are appropriate
for modeling near-integrated outcome variables irrespective of a co-integration between outcome and predictor variables [50], [54], and because we infer that same sex
marriage, and strong and weak same sex unions all have level unit root (same sex marriage and strong same sex unions have trend unit root, although in some states
weak same sex unions may be stationary) from both Hadri's test allowing for cross-sectional dependence and subtracting cross-sectional means and the lm-Pesaran-
Shin test with a single lag and subtracting cross-sectional means. The interaction term, 111S
11
, is stationary (see discussion of the homogeneity of the error correction
process in the discussion).
The random intercept term, flo,. was permitted to vary by state, both to renect the fact that states have different average changes in marriage rates at equilibrium (i.e. it
would be unreasonable to fit the model by assuming, for example, that Hawaii and Mississippi experience similar challQBS in marriage rates), and in order to produce
more accurate standard error estimates of the fixed effect parameters.
!ir,. '= /io; + /lc!r:---1<- (Ill,. 11 +.\,_ lt + ll't- I + TJI.\r--JJ)]
where:
1 _ 1 in the subscript indicates the first lag for a variable in year t:
/).is the one-year change function for a vaiable (e.g. dr
11
=f
11
-r
1
_ 1;):
rn is the marriage rate in year r in the ;th state;
111
11
is the proportion ofyeart that same sex marriage laws were in force in the ph slate;
S
11
is the proportion of year t that strong same sex union laws were in force in the ;
1
h slate;
tt'
11
is the proportion of year t that weak same sex union laws were in force in the ph slate;
msl.' is the multiplicative interaction of m and sin year tin the ;1h state;
{1
01
is the model constant for the ;1h state;
/(.is the 'correction rate' at which marriage rates return to equilibrium after a perturbation;
flu,,. is the 'short run instantaneous effect' of same sex marriage law implementation in the absence of concurrent strong same unions <P .i< {I
and p !'.ttl\ are the

'short run instantaneous effects' of the respective covariates):
{J,. is the 'lagged effect' of same sex marriage law implementation in the absence of concurrent strong same unions (/J,. J3,,., and {1
1
m are the 'lagged effects' of the
respective covariates):
( ti is the residual at timet in the (lh study state;

is the model constant term for the ;1hstudy state, and where1:
1
,- and llu, .....
(2)
The parameters in (2) provide different possible interpretations of our hypotheses in the form of short and long term effects of same sex marriage and strong and weak
same sex union laws on opposite sex marriage rates. Short run instantaneous effects are given by {l,.'iJ,, and {1
6
,.. and, for same sex marriages concurrent with
strong same sex unions, by (/1 Jm + fi ,l., .._ "\1"). Short run lagged effects (for example, for marriage in the absence of concurrent strong same sex union laws) are
given by(/3
111
- ftc- and (for same sex marriages concurrent with strong same sex unions) by(/},+ j), + Pm.- 3/lc- Pu.m- P.ru- flw
113
). Finally, long run
effects (for example, for marriage in tho absence of concurrent strong same sex union laws) are given by ( {1, ,_ Jl,,) j and (for same sex marriages concurrent with
http://www .plosone.org/article/info%3Adoi%2F I 0.13 71 %2Fjournal.pone.0065730 9/24/2013
194
strong same sex unions) by (3/f. - ff,,- {1, -- p," 1/ ffc We estimated the model in equation (2) for all fifty states plus the District of Columbia In order to evaluate the
short and long term effects of same sex marriage and union laws against opposite sex maiTiage rates in control states using the xtmixed command in Stata version
11.2. Estimates and standard errors for long run effects, lagged short run effects and the instantaneous short run combined effect of same sex marriages
contemporaneous with strong same sex unions were calculated using the deHa method using the nlcom command In Stata.
Results
All short term and long term effects of same sex marriages and strong and weak same sex unions were close to zero and statistically undifferentiable from the null
hypothesis of no effect on rates of opposHe sex marriage with %95 confidence intervals uniformly spanning zero (Table 1 ). This finding holds even for very large values
Of course absence of evidence, is not the same thing as evidence of absence [55). Therefore we also performed equivalence hypothesis tests on each of the
dynamic effects reported in Table 1 by posing as null hypotheses differences between the reported effects and zero within a given tolerance, E, deciding whether to
reject them in favor of alternative hypotheses of effects within the range- E,f. by using uniformly most powerful tests of equivalence [56). We employed and report
results for liberal(/: ., 0.5). strict Cc= 0.5l and very strict {( = 0.125) tolerance values (( Is measured in units of(, see, for example, page 16 of[56}). The results of the
equivalence tests (Table 2) were unambiguous: we rejected all null hypotheses of difference in of the dynamic effects of favor of equivalence to no effect for liberal,
strict and very strict tolerances. In Table 2 we report P-values adjusted for the False Discovery Rate (FOR) [57] only for l """ 0.125, as the FOR adjustments mak.e no
difference within the precision of of the reported figures fore= 0.5 0.:!:5. Thus, we found that adult rates of opposite sex marriage in states implementing same
sex marriage laws. both with and without contemporaneous strong same sex union laws, were equivalent to rates in states with no such laws, and we find that any
differences appear to due to chance alone, as reflected In very wide oonfidence Intervals around the predicted differences in states Implementing same sex marriage
laws (Figure 1). Figure 51 in File 51 shows graphs for all states with any same sex maniage or same sex union laws. The raw model parameter estimates and standard
errors from (2) are presented in Table 52 in File 51.
I' /\ ...... ="
. . I

-
l
: .. -

r' 1
!h cl
""

I; I 'c"'\

,

;:1)10
Figure 1. Projected differences in annual opposite sex marriages in states enacting same sex marriage laws.
Solid black lines represent our modeled marriages in each year and state, and dashed black. lines projed opposite sex marriages if same sex marriage laws had
not been enacted in each state and year. Observed numbers of marriages are plotted as dots--note that the model follows very dosely on the previous year's
observed number of marriages. The gs% confidence intervals of the difference in predicted opposite sex marriages with and without same sex marriage laws in
effect are centered on the average of those two predictions. Galifomia licensed 18000 same sex marriages in 2008. Connecticut enacted a same sex marriage
Jaw in 2008. Iowa enacted a same sex marriage law in 2009. Massachusetts enacted a same sex marriage law in 2004. Vermont enacted a same sex marriage
lawin2009.
doi: 1 0.1371 /joumal.pone.0065730.g001
Table1. Effects of same sex marria(tll and union laws on opposite sex marriage rates (N"' 1071).
doi:1 0.1371fj0Umal.pone.0065730.1001
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195
........._

, __ ,_,.,, .- ...
Table 2. Equivalence tests for dynamic effects on opposite sex marriage rates {N =1071).
dol: 1 0.1371/joumal.pone.0065730.to02
Across analyses of all ten imputed data sets, Hadri's test for unit root for panel data allowing for cross-secllonal dependence and subtracting cross-sectional means [51]
failed to reject both the null hypothesis that the error terms from all states were trend stationary (mean p = 0.9995) and the null hypothesis that the error terms from all
states were level stationary (mean p =0.9353): we conclude that our model was appropriate to test our hypotheses.
Models models with additional lags includirg up through the fourth lags of marriage rates gave substantively similar results with no in inferences from Tables
1 and 2.
Discussion
We found that state rates of opposite sex marriage in the U.S. from 1989-2009 do not significantly differ when same sex maniage and union laws are in force
compared to when they are not in force, contrary both to concerns raised by opponents of same sex marriage and same sex civil unions, and to the positive association
reported by Langbein and Yost (21]. We found no evidence of an increase in state-level opposite sex marriage rates corresponding to a first year effect of same sex
marriage, contradicting the marriage equality hypothesis. Indeed. per our equivalence tests. we found evidence of an absence of any effects. Our analysis allows
Inference into changes in opposite sex marriage rates by year and state, but we cannot readily translate this inference into relationships between opposite sex couple
level marriage decisions and state-level policies without committing the ecological fallacy [58], [59]. Given the nuances we raised in the background section regarding
individuals' and couples' motivations for choosing to many a partner of the opposite sex or not, it is clear that only further research including both individual-level and
state-level data will illuminate the effects of state marriage laws on individuals" and couples' marriage choices. Such a study could also examine the psychological
effects of anticipated changes to marriage law on maniage behavior.
The question of whether slates ought to legally provide same sex couples with the legal status of maniage, or a related, though tess regarded and less beneficial status
of same sex union cannot be answered solely in terms of the effect on opposite sex marriages. However, a deleterious effect on rates of state rates of opposite sex
marriage has been argued to be a motivating factor for both the withholding and the elimination of existing rights of same sex couples to marry by policy makers-
including presiding justices of current IHigation over same sex couples rights to legally many. Such claims do not appear credible In the face of the existing evidence.
We began by framing marriage as a social determinant of health. Marriage is an important social resource for the health of both opposite sex and same sex couples,
and their children. If rates of opposite sex marriage are threatened by same sex marriage, then part of the societal measure of that threat is the llmttlng of a basic
resource for the health of opposite sex couple-based families (through, for example, pension benefits, hospital visitation rights, immigration rights, child support, medical
benefits due manied affordable housing benefits, etc.) who remain unmarried. This view is not supported by our findings. Conversely, if rates of opposHe sex
marriage are not threatened by same sex marriage, then the denial of marriage rights to same sex couples is a denial of a basic resource for the health of same sex
couple-based families. This view Is supported by our findings.
Limitations
More sla1es currently have same sex marriage and union laws in force than during our study period. lnduding such states would provide greater precision in our
estimates, and potentially permitting an posttive assessment of both the marriage equality hypothesis and the threat to opposite sex marriage hypothesis. Unfortunately
there is a trend away from reporting the number of marriages by state at the national level, and in many states, making later data more difficult to obtain.
Our analysis assumes no slate-level confounding factors are biasing the estimates of the effects of same sex marriage and union laws. This is appropriate in that our
hypotheses were directly informed by conjectures and assertions within a recent and ongoing nation-wide discussion on the legitimacy of providing or denying same
sex couples the right to legally recognized marriage, and this discourse has not generally been chamcterized by conjecture about confounding effects. For example,
presiding justices making the argument that same sex marriage could discoumge opposite sex marriage have not suggested that this effect varies depending on
economic conditions, or on demographic makeup within a state. However, further research in the subject may produce insights in examining such possibiiHies both at
the state and individual level.
Our model assumes that the effects of same sex marriage and union laws on change in rates of opposite sex marriage do not differ by state. If this assumption poorly
reflects the reality (e.g. same sex marriages increase rates of opposite sex marriage in some slates, but decrease rates of opposHe sex marriage in other states), we
may be blind to nunces of the cuHural force of same sex marriages and unions. Unfortunately, the size of the current data set, in particular, the limited number of
states and years implementing same sex marriage or union laws, provides poor power kl dscriminate random effects at the state level. Relatedly, differences in same
sex marriage or same sex union laws in neighboring states might produce cross-border marriage effects which our data and study design cannot readily address. This
is a complex issue. for many reasons: some states require residency for a marriage; there is likely limited legal benefrt to being married in another stale when it is illegal
in one's own; the role of geographic isolation (e.g. California versus Rhode Island) in limiting travel. While such 'marriage migration' may mismatch the numerator
(maniages) from the denominator (marriageable-age population). the random intercept term ,14Ji captures state-specific differences in marriage rates which are relatively
constant across the study's duration.
We also made an assumption of homogeneity of error correction rates by state, and by same sex marriage or union laws. This assumption appears reasonable for two
reasons. First, the error correction process is dominated by the first lag of maniage rates, and the lagged same sex marriage and union terms cancel with t1 to produce
near-zero estimates. Second, models accounting for only one kind of the same sex marriage, strong, or weak same sex union laws (see Tables S3-S8 in File 51)
produced very similar values for flc as that which we report here.
Ideally, we would have wanted to extend this analysis to divorce: inherent in the critiques against same sex marriage described above are concerns about opposite sex
divorce. For example, formM Arkansas Governor Mike Huckabee articulated this perspective against same sex marriage clearly "There is a quantified impact of broken
http://www. plosone.org/article/info%3Adoi%2F I 0.13 71 %2Fjournal.pone.0065730 9/24/2013
196
families" [13]. However, many more divorce data are missing: twelve states are missing divorce data from 1990-2009-Callfomla, Indiana, and Louisiana In particular
are missing most years' data-and the overall rate of missingness Is 7 .93%. In addition, we encounter an analytic conundrum with divorce rates by state, which present
neither uniformly stationary nor uniformly near-Integrated processes, making the appropriate choice of model unclear.
Conclusion
We conclude that there is no relationship between implementation of same sex marriage or strong or weak same sex union laws and rates of opposite sex marriage.
Because the history of same sex marital rights is young in the U.S., ongoing examination of these relationships is warranted.
Supporting Information
Fila_S1.docx
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download
Supporting Information File S1 is a word processing document (in.docx format) containing
Tabla S1: State same sex marriage and strong and weak same sex union laws; details of
the imputations, including equations S1-S3; Table S2: Fixed and random effect model
estimates of change in opposite sex marriage rates by state and year; Figure S1 Projected
differences in annual opposite sex marriages in states enacting same sex marriage or
strong or weak same sex union laws; separate generalized error correction models for
same sex maniage and strong and weak same sex union laws, Including equations 84-
SB; Table S3: Effects of only same sex marriage laws an opposite sex marriage rates;
Table 84: Fixed and random effect model estimates of change in opposite sex maniage
rates by state and year for same sex maniage only; Table S5: Effects of only strong same
sex union laws on opposite sex maniage rates; Table 86: Fixed and random effect model
estimates of change in opposite sex marriage rates by state and year for strong same sex
unions only; Table S7: Effects of only weak same sex union laws an opposite sex marriage
rates; Table S8: Fixed and random effect model estimates of change in opposite sex
marriage rates by slate and year for weak same sex unions only; and References S 1.
File S1.
Supporting Information File S1 is a word processing document (in.docx format) containing Table S1: State same sex marriage and strong and weak same sex union
laws; details of the imputations, including equations S1-53; Table S2: Fixed and random effect model estimates of change in apposite sex marriage rates by state and
year; Figure 51 Projected differences in armual opposite sex marriages in states enacting same sex man1age or strong or weak same sex union laws; separate
generalized error correction models for same sex marriage and strong and weak same sex union laws, including equations S4-S6; Table S3: Effects of only same sex
marriage laws on opposite sex marriage rates; Table 84: Fixed and random effect model estimates of dlange in opposite sex marriage rates by state and year for same
sex marriage only; Table S5: Effects of orly strong same sex union laws on opposite sex marriage rates; Table 86: Fixed and random effect model estimates of change
in opposite sex marriage rates by state and year for strong same sex unions only; Table S7: Effects of only weak same sex urton laws on opposite sex marrBge rates;
Table 88: Fixed and random effect model estimates of change in opposite sex marriage rates by state and year for weak same sex unions only; and References S1.
doi: 1 0.1371fJOUmal.pone.0065730.s001
(DCCX)
Data S1.
Supporting Information Data S1 is a spreadsheet (in.xlsx fonnat) containing Sheet S1: Reported US marriages by state and year (annotated); Sheet S2: Reported
number of US same sex marriages by slate and year; and SheetS3: Estimated US population age 18+ by state and year: US Bureau of the Census.
doi: 1 0.1371/joumal.pone.0065730.s002
{XLSX}
http:/ /www.plosone.org/article/info%3Adoi%2F 10.1371 %2FjournaLpone.0065730 9/24/2013
197
Acknowledgments
We thank James Honaker for insights about multiple imputation, and James Lightwood for insights about error correction models.
Author Contributions
Analyzed the data: AD. Wrote the paper: AD CW. Conceived and designed time series analysis: AD. Obtained and prepared secondary data: AD CW.
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53. Granger CWJ (1981) Some properties of time series data and their use in econometric model specification. Journal of Econometrics 16: 121-130. dol:
http://dx.doi.orgf1 0.1 016/0304-4076(81 )90079-8.
54. Beck N (1991) Comparing dynamic speciftcations: The case of presidential approval. Political Analysis 3: 51-87. doi: http:/ldx.doi.org/10.1093/panf3.1.51.
55. AHman DG, Bland JM (1995) StatEtics notes: Absence of evidence is not evidence of absence. Bmj 311: 485. dol: http:lldx.doi.org/10.1136Jbmj.311.7003.485.
56. Wellek S (2010) Testing Statistical Hypotheses of Equivalence and Noninferiority. Chapman and Haii/CRC Press, second edition.
57. Benjamini Y, Yekutieli D (2001) The control of the false discovery rate in multiple testing under dependency. Annals of statistics 29: 1165-1188. doi:
httpJ/dx.doi.org11 0.1214/aosf1013699998.
58. Robinson W (1950) Ecological correlation and the behavior of individuals. American Sociological Review 15: 351-357. dol: http:lldx..doi.org/10.2307/2087176.
59. Oiez-Roux AV (1998) Bringing context back into epidemiology: variables and fallacies in multilevel analysis. American Journal of Public HeaHh 88: 216-222. doi:
http:ffdx..doi.orgf1 0.21 OS/ajph.88.2.216.
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60. Tryon WW, Lewis C (2008) An inferential confidence interval method of establishing statistical equivalence that corrects Tryon's (2001) reduction factor.
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200
EXHIBITN
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATNE,
201
States That Allow Same-Sex Marriage Have Lower Divorce Rates I NBC Chicago Page 1 of2
(i@ PRINTTHIS
ft:. NBCCHICAGO.COM
Powered by """"

\JfJIIi
Getty Images
Confetti with the word divorce written on it
Here's an answer to claims that allowing gays to marry will destroy the institution for everyone: the
divorce rate in the states that allow gay marriage is 20 percent lower than in states that prohibit it. The
state with the lowest divorce rate, Massachusetts, was also the first state to legalize same-sex marriage,
in 2004. (Massachusetts's divorce rate has actually declined since then.) Of the 15 states with the highest
divorce rates, all ban gays and lesbians from marrying.
With 2.5 divorces per 1,000 people, Illinois has the lowest divorce rate of any state that bans same-sex
marriage. Clearly, a pro-marriage state like ours belong in the other category. Are you listening, House
of Representatives? Here's a complete breakdown, using statistics provided by the U.S. Census Bureau.
STATES THAT PROHIBIT GAY MARRIAGE:
Alabama4.4
Alaska4.4
Arizona 3.5
Arkansas 5.7
California 4.3
Colorado 4.2
Florida 4.2
Georgia 3.3
Hawaii 3.9
Idaho 5.0
Illinois 2.5
Indiana N/A
Kansas 3.7
Kentucky 4.6
http://www.printthis.clickability.com/pt/cpt?exoire=&title=States+That+Allow+Same-Sex... 9/25/2013
202
States That Allow Same-Sex Marriage Have Lower Divorce Rates I NBC Chicago Page 2 of 2
Louisiana N/A
Michigan 3.3
Mississippi 4.1
Missouri 3.7
Montana4.1
Nebraska 3.4
Nevada6.7
New Jersey 2.8
New Mexico 4.0
North Carolina 3.8
North Dakota 2.9
Ohio 3.3
Oklahoma 4.9
Oregon 3.9
Pennsylvania 2.7
South Carolina 3.0
South Dakota 3.3
Tennessee 3.9
Texas 3.3
Utah3.6
Virginia 3.7
West Virginia 5.2
Wisconsin 3.0
Wyoming5.2
AVERAGE: 3.9
STATES THAT ALLOW GAY MARRIAGE:
Connecticut 3 .1
Delaware 3.6
D.C.2.6
lowa2.4
Maine 4.1
Maryland 2.8
Massachusetts 2.2
Minnesota 3.2
New Hampshire 3.7
NewYork2.6
Rhode Island 3.0
Vermont3.5
Washington 3.9
AVERAGE: 3.1
Find this article at:
http://www.nbcchicago.comlblogs/ward-room/States-That-AIIow-Same-Sex-Maniage-Have-Lower-Divorce-Rates-213335351.html
0 Check the box to include the list of links referenced in the article.
10 NBC Universal. Inc. I All Rights Reserved.
http://www.printthis.c1ickability.com/pt/cpt?exnire=&title=States+That+Allow+Same-Sex... 9/25/2013
203
TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v.
Defendants.
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
OR. IN THE ALTERNATIVE. PRELIMINARY INJUNCTION
Plaintiffs Timothy B. Bostic, Tony C. London, Carol Schall, and Mary Townley
("Plaintiffs"), by and through counsel, hereby move the Court to grant summary judgment in
their favor or, in the alternative, to enter a preliminary injunction in this matter. Plaintiffs'
motion is made pursuant to Rules 56 and 65 of the Federal Rules of Civil Procedure, and Local
Rules 7 and 56, on the grounds that Virginia Code Sections 20-45.2 and 20-45.3; Article I,
Section 15-A of the Constitution of Virginia; and any other Virginia law that bars marriage
between individuals of the same sex or prohibits the Commonwealth's recognition of otherwise-
lawful marriages between individuals of the same sex from other jurisdictions (collectively,
204
"Virginia's Marriage Prohibition'') are facially unconstitutional. Virginia's Marriage Prohibition
should be declared unconstitutional and permanently enjoined throughout the Commonwealth.
As further set forth in the accompanying Memorandum In Support Of Plaintiffs' Motion,
Plaintiffs are entitled to summary judgment because Virginia's Marriage Prohibition violates the
Fourteenth Amendment of the United States Constitution as a matter oflaw. Virginia's Marriage
Prohibition violates Plaintiffs' rights to due process because it impermissibly impairs Plaintiffs'
fundamental constitutional right to marry. Virginia's Marriage Prohibition also violates
Plaintiffs' rights to equal protection because it burdens a fundamental constitutional right and
because it discriminates against Plaintiffs on the basis of their sexual orientation and their sex.
At a minimum, this Court should preliminarily enjoin the application of Virginia's
Marriage Prohibition to Plaintiffs pending trial. Plaintiffs are likely to succeed on the merits of
their claims, they will continue to suffer irreparable harm absent an injunction, a balance of the
equities favors Plaintiffs, and a preliminary injunction serves the public interest.
The points and authorities that further support Plaintiffs' motion are fully set forth in the
accompanying Memorandum In Support Of Plaintiffs' Motion For Summary Judgment Or, In
The Alternative, Preliminary Injunction, along with the Declarations of Timothy B. Bostic, Tony
C. London, Carol Schall, Mary Townley, and Charles B. Lustig, and the attached Exhibits.
For these reasons and those set forth in the accompanying Memorandum and
Declarations, Plaintiffs respectfully request this Court grant their motion for summary judgment
or, in the alternative, for a preliminary injunction.
2
205
Dated: September 30,2013
dboies@bsfllp.com
333 Main St.
Armonk, NY 10504
T: (914) 749-8200
F: (914) 749-8300
rsilver@bsfllp.com
New York, NY 10022
T: (212) 446-2300
F: (914) 446-2350
T: (202)237-2727
F: (202)237-6131
jgoldman@bsfllp.com
tshutt1eworth@srgslaw.com
rruloff@srgslaw.com
clustig@srgslaw .com
T: (757) 671-6000
F: (757) 671-6004
Amir Tayrani, pro hac vice pending
T: (202) 955-8668
F: (202) 467-0539
T: (213) 229-7000
F: (213) 229-7520
3
206
Oakland, CA 94612
T: (510) 874-1000
F: (51 0}874-1460
4
207
I hereby certifY that on this 30th day of September, 2013, I electronically filed the
foregoing Plaintiffs' Motion For Summary Judgment Or, In The Alternative, Preliminary
Injunction with the Clerk of the Court using the CM/ECF system which will send electronic
notification of such filing to E. Duncan Getchell, Jr., Esq., Counsel for Defendant Rainey, and to
David B. Oakley, Esq., Counsel for Defendant Schaefer.
dboies@bsfllp.com
333 Main St.
Armonk, NY 10504
T: (914) 749-8200
F: (914) 749-8300
rsilver@bsfllp.com
New York, NY 10022
T: (212) 446-2300
F: (914) 446-2350
tshuttleworth@srgs1aw.com
rruloff@srgslaw.com
clustig@srgslaw.com
T: (757) 671-6000
F: (757) 671-6004
Amir Tayrani, pro hac vice pending
T: (202) 955-8668
F: (202) 467-0539
208
T: (202)237-2727
F: (202)237-6131
jgoldman@bsfllp.com
Oakland, CA 94612
T: (510) 874-1000
F: (510)874-1460
GillSON, DUNN & CRUTCHER LLP
T: (213) 229-7000
F: (213) 229-7520
2
209
NORFOLK DIVISION
TIMOTHY B. BOSTIC, eta/.,
Plaintiffs,
V.
JANET M. RAINEY, eta/.,
Defendants.
)
)
)
)
)
)
)
)
)
DEFENDANT JANET M. RAINEY'S MOTION FOR SUMMARY JUDGMENT
COMES NOW, Janet M. Rainey, by counsel, in her official capacity as State Registrar of
Vital Records, in accordance with the Court's order of August 30, 2013, (Doc. 17), and
respectfully moves for sununary judgment pursuant to Federal Rule of Civil Procedure 56. For
the reasons set forth in the accompanying memorandum of law, she requests that the Court grant
this Motion for Summary Judgment and dismiss Plaintiffs' cause of action with prejudice.
E-mail: rbeale@oag.state.va.us
Allyson K Tysinger, VSB #41982
/s/
(VSB No. 14156)
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
dgetchell@oag.state.va. us
Counsel for Defendant Rainey
210
2
211
I hereby certify that on the 30th day of September 2013, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system, which will send a copy to
counsel listed below.
Erik C. Porcaro, VSB # 84793
(757) 671-6000 (phone)
(757) 671-6004 (fax)
Counsel for Plaintiffi
3
Jeffrey F. Brooke, VSB #28699
David Oakley, VSB #72226
Poole Mahoney PC
4705 Columbus St.
(757) 552-6053 (phone)
(757) 552-6016 (fax)
JBrooke@poolemahoney.com
DOakley@poolemahoney.com
Counsel for Defendant
George E. Schaefer, IlL Clerk of Court,
Norfolk Circuit Court
Is/
212
.3-cv-00395-AWA-LRL Document 39-1 Filed 09/30/13 Page 1 of 3 PagE
Commonwealth of Virginia
Proposed Constitutional
Amendments to be Voted on
at the November 7, 2006
Special Election
Proposed Amendment #1
Marriage
Proposed Amendment #2
Powers of the General Assembly;
Limitations
ProP-osed Amendment #3
Exempt Property
Authorized By
State Board of Elections
Jean R. Jensen, Secretary
200 North 9th Street, Suite 101
Richmond, VA 23219-3497
213
c"'' ''13*IA*LRL Doc"m'"' 3!>-1
Proposed Constitutional Amendment
ARTICLE I. BILL OF RIGHTS.
SECTION 15-A. MARRIAGE.
BALLOT QUESTION NUMBER 1
Shall Artie/ I (the Bill of Rights) of the Constitution of
Virginia be amended to state:
"That only a union between one man and one woman
may be a marriage valid in or recognized by this
Commonwealth and its pohtical subdivisions.
This Commonwealth and its political subdivisians shall not
create or recognize a kgal status far relationships of unmarned
individuals that intends to approximate the design, qualities,
significance, or effects of marriage. Nor shall this
Commonwealth or its pohtical subdivisians create or recognize
another union, partnership, or other legal status to which is
assigned the rights, benefits, obhgations, qualities, or effects of
. "7
marrwge . .
EXPLANATION
Present Law
The Constitution does not define marriage. Under
current statutory law in Virginia, persons who marry must
have a license and be married by a licensed minister,
judge, or other person authorized by law to perform mar*
riages. Present law prohibits marriages between certain
individuals. For example, the law prohibits a marriage
between a brother and sister, between a couple where one
of the parties is married to someone else, and between
couples of the same sex.
In 1975, the General Assembly enacted a statute
(present Code of Virginia 20-45.2) that states "A mar-
riage between persons of the same sex is prohibited." In
1997, the General Assembly added a sentence to 20-
45.2 that states that:
Any marriage entered into by persons of the same sex
in another state or jurisdiction shall be void in all respects
in Virginia and any contractual rights created by such
Filed 09t'ln{13 PLtae 2 oj,3 PaaeiD# 341
mamage sf'ial De void-ana nnemorcea:b'te.
In 2004, the General Assembly passed a law to prohib-
it certain civil unions or other arrangements between per ...
sons of the same sex. That law (COde of Virginia 20-
45.3) states that:
A civil union, partnership contract or other arrange ..
ment between persons of the same sex purporting to
bestow the privileges or obligations of marriage is prohib-
ited. Any such civil union, partnership contract or other
arrangement entered into by persons of the same sex in
another state or jurisdiction shall be void in all respects in
Virginia and any contractual rights created thereby shall
be void and unenforceable.
Thus, civil unions or other arrangements which pur-
port "to bestow the privileges or obligations of marriage"
are prohibited by statute.
Proposed Amendment
If approved by the voters, this proposed amendment
will become part of the Constitution of Virginia. The pro-
posed amendment adds a definition of marriage as the
"union between one man and one woman" to the
Constitution's Bill of Rights and prohibits Virginia and its
counties, cities, and towns from creating or recognizing
any legal status by any name which is comparable to mar-
riage.
Marriage in the Commonwealth creates specific legal
rights, benefits, and obligations for a man and a woman.
There are other legal rights, benefits, and obligations
which will continue to be available to unmarried persons,
including the naming of an agent to make end-of-life
decisions by an Advance Medical Directive (Code of
Virginia 54.1-2981), protections afforded under
Domestic Violence laws (Code of Virginia 18.2-57.2),
ownership of real property as joint tenants with or with ..
out a right of survivorship {Code of Virginia 55-20.1),
or disposition of property by will (Code of Virginia
64.1-46).
A "yes" vote on the proposed amendment will result
in the addition of the proposed Section 15-A to Article I,
the Bill of Rights. A "no" vote will mean that there will
be no change made in Article I, the Bill of Rights.
FULL TEXT OF AMENDMENT [Proposed new lan-
guage is underlined. Existing language that is deleted is
shown as stricken (stridten).]
214
Case 2:13-cv-00395-AWA-LRL Document 39-1
Amend Article I of the Constitution of Virginia by
adding a section numbered 15-A as follows:
ARTICLE!
BILL OF RIGHTS
Section 15-A. Marriage.
That only a union between one man and one woman
may be a marriage valid in or recognized by this
Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions
shall not create or recognize a legal status for relationshios
of unmarried individuals that intends to approximate the
design. qualities. significance. or effects of marriage. Nor
shall this Commonwealth or its political subdivisions cre-
ate or recognize another union. parmership. or other legal
status to which is assigned the rights. benefits. obliga-
tions. qualities. or effects of marriage.
Proposed Constitutional Amendment
ARTICLE IV. LEGISLATURE.
SECTION 14. POWERS OF
THE GENERAL ASSEMBLY;
LIMITATIONS.
BALLOT QUESTION NUMBER 2
Shall Section 14 of Article N of the Constitution of
Virginia be amended by deleting the jrrovision that jrrohibits the
incorporation of churches, a jrrovision that was ruled to be
unconstitutional and therefore now is obsolete?
EXPLANATION
Present Law
Section 14 of Article IV of the Constitution of
Virginia now states in part:
The General Assembly shall not grant a charrer of
incorporation to any church or religious denomination,
Filed 09/30/13 Page 3 of 3 PagelD# 342
but may secure the tide to church property to an extent
to be limited by law.
The federal district court for the Western District of
Virginia ruled in April 2002 that this provision of the
Virginia Constitution is unconstitutional because it
lates the federal constitutional right to the free exercise of
religion. Falwell v. Miller, 203 E Supp.2d 624 (W.D.Va.
2002). The court found that it is unconstitutional to deny
a church the option to incorporate under state law when
any other group can incorporate. It noted that the
Virginia Commission on Constitutional Revision in its
1969 report had recognized that the prohibition was
probably invalid.
Following the court's decision in 2002, the State
Corporation Commission, which is charged with the duty
of administering the corporate statutes of the
Commonwealth, began routinely to grant certificates of
incorporation to churches and religious denominations
that filed for incorporation under Virginia law.
The 2004 General Assembly established a joint sub-
committee to study issues related to the incorporation of
churches and other appropriate matters. Senate Joint
Resolution 89 (2004 ). In the executive summary for its
report, the joint subcommittee recommended the repeal
of the provision quoted above. Senate Document No. 9
(2005).
Proposed Amendment
The proposed amendment would delete the provision
found to be unconstitutional. It would not change the
current law on other powers of the General Assembly.
A "yes" vote on the proposed amendment will result
in the deletion of the current paragraph in Section 14 of
Article IV that prohibits the General Assembly from
granting charters of incorporation to churches and reli-
gious denominations. A "no" vote will leave that para,
graph in Section 14 of Article IV.
FULL TEXT OF AMENDMENT !Proposed new lan-
guage is underlined. Existing language that is deleted is
shown as
Amend Section 14 of Article IV of the Constitution
of Virginia as follows:
215
THE EASTERN DISTRICT OF VIRGINIA
-NORFOLK DMSION-
Plaintiffs,
JANET M. RAINEY, et al.,
Defendants.
MOTION FOR SUMMARY JUDGMENT
NOW COMES Defendant George E. Schaefer, III, by counsel and files this Motion for
Summary Judgment pursuant to Federal Rules of Civil Procedure Rule 56, the grounds for which
are set forth in detail in Defendant Schaefer's Brief in Support of this Motion for Summary
Judgment.
For the reasons set forth in Defendant Schaefer's Brief in Support of this Motion for
Summary Judgment filed herewith, Defendant Schaefer respectfully requests this Court enter an
Order dismissing all claims against him with prejudice and awarding such further relief deemed
necessary and just.
Respectfully submitted this 30th day of September, 2013.
By: /s/
216
POOLE MAHONEY PC
Phone:757-962-6625
Fax: 757-962-6180
in his official capacity as Clerk of Court for Noifolk Circuit Court
I hereby certify that on the __ day of , 2013, I electronically filed the
foregoing with the Clerk of Court using the CMIECF system which will then send a notification
of such filing (NEF) to the following:
Thomas B. Shuttleworth, Esq., tshuttleworth@srgslaw.com
Charles B. Lustig, Esq., clustig@srgslaw.com
Erik Porcaro, Esq., eporcaro@srgslaw.com
and
E. Duncan Getchell, Jr.- dgetchell@oag.state.va.us
And I hereby certify that I will mail the document by U.S. Mail to the following non-
By: Is!
POOLE MAHONEY PC
Phone: 757-962-6625
Fax:757-962-6180
Email: doaklev@poolemahoney.com
217
Jordan W. Lorence, VA Bar No. 33655
M. Casey Mattox, VA BarNo. 47148
801 G StreetN.W., Suite 509
Tel: (202) 393-8690
Fax: (480) 444-0028
jlorence@alliancedefendingfreedom.org
crnattox@alliancedefendingfreedom.org
Byron J. Babione,* AZ Bar No. 024320
Kenneth J. Connelly,* AZ Bar No. 025420
J. Caleb C. Dalton, VA Bar No. 83790
15100 N 90th Street
Scottsdale, Arizona 85260
Tel: (480) 444-0020
Fax: ( 480) 444-0028
bbabione@alliancedefendingfreedom.org
kconnelly@alliancedefendingfreedom.org
cdalton@alliancedefendingfreedom.org
* Pro Hac Vice Applications pending
Counsel for Intervenor-Defendant
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA- NORFOLK DIVISION
Plaintiffs,
v.
JANET M. RAINEY, in her official capacity
as State Registrar of Vital Records, et al.,
Defendants,
and
MICHELE B. MCQUIGG, in her official
capacity as Prince William County Clerk of
Circuit Court,
Proposed Intervenor-Defendant.
MOTION TO INTERVENE
1
218
Proposed Intervenor-Defendant, Michele B. McQuigg, in her official capacity as Prince
William County Clerk of Circuit Court (hereinafter "Proposed Intervenor McQuigg"), by and
through her undersigned counsel, and pursuant to Rule 24(a)(2), or alternatively, Rule 24(b) of
the Federal Rules of Civil Procedure, and Rule 7 of the Rules of Practice and Procedure of the
United States District Court for the Eastern District of Virginia, files this Motion to Intervene of
Right, or in the Alternative, for Permissive Intervention ("Motion"), as defendant in this action.
In support of this Motion, Proposed Intervenor McQuigg sets forth that:
I. This motion is timely and will not prejudice the interests of the other parties.
2. Proposed Intervenor McQuigg seeks to intervene as Intervenor-Defendant to
oppose Plaintiffs and be conferred all of the rights of a party to participate fully in all aspects of
the above-captioned case.
3. Intervention by Proposed Intervenor McQuigg in this matter is necessary because
she has significant, distinct interests in this litigation and her ability to protect such interests may
be impaired by the disposition of this case.
4. Counsel for Defendant Rainey has consented to the Motion. Counsel for
Defendant Schaefer has stated that he has no objection to the Motion. Counsel for Plaintiffs are
opposed to the Motion.
5. In support of this Motion, Proposed Intervenor McQuigg relies on the Declaration
of Proposed Intervenor-Defendant, Prince William County Clerk of Circuit Court Michele B.
McQuigg, and Proposed Intervenor-Defendant's Memorandum of Law filed contemporaneously
herewith.
2
219
Respectfully submitted this the 20th day of December, 2013.
801 G Street N.W., Suite 509
Tel: (202) 393-8690
Fax: ( 480) 444-0028
KennethJ. Connelly,* AZ BarNo. 025420
15100 N 90th Street
Tel: ( 480) 444-0020
Fax: ( 480) 444-0028
* Pro Hac Vice Applications pending
By: Is/
3
M. Casey Mattox, VA Bar No. 47148
Tel: (202) 393-8690
Fax: ( 480) 444-0028
cmattox@alliancedefendingfreedom.org
220
I hereby certify that on December 20, 2013, I will electronically file the foregoing
document with the Clerk of Court using the CMIECF system, which will then send a notification
of such filing (NEF) to the following participants:
David B. Oakley
Poole Mahoney PC
Attorneys for Defendant George E. Schaefer, III
Robert E. Ruloff
rruloff@srgslaw.com
Charles B. Lustig
clustig@srgslaw.com
ahendrick@srgslaw.com
Erik C. Porcaro
eporcaro@srgslaw.com
Shuttleworth, Ruloff, Swain, Haddad &
Morecock, P.C.
Gibson, Dunn & Crutcher LLP
555 Mission St., Suite 3000
Robert Brian Silver
rsilver@bsfllp.com
Joshua I. Schiller
575 Lexington Ave., 7th Floor
New York, NY I 0022
4
Earle Duncan Getchell, Jr.
dgetchell@oag.state. va. us
900EMainSt
Richmond, VA23219
Attorney for Defendant Janet M. Rainey
Chantale Fiebig
Amir C Tayrani
Theodore B Olson
Matthew D McGill
Gibson Dunn & Crutcher LLP
David Boies
dboies@bsfllp.com
Boies, Schiller & Flexner, LLP
333 Main St.
Armonk, NY 10504
jgoldrnan@bsfllp.com
1999 Harrison St., Suite 900
Oakland, CA 94612
221
Theodore J Boutrous, Jr
Gibson, Dunn & Crutcher LLP (CANA)
333 South Grand Ave.
William Isaacson
Boies, Schiller & Flexner
Attorneys for Plaintiffs
5
Is/
M. Casey Mattox, VA BarNo. 47148
Tel: (202) 393-8690
Fax: (480) 444-0028
222
UNITED STATES DISTRICT COURT
Norfolk Division
CAROL SCHALL, and MARY TOWNLEY,
Plaintiffs,
v.
as State Registrar of Vital Records, and
capacity as the Clerk of Court for Norfolk
Circuit Court,
Defendants.
ORDER
CASE NO. 2: 13-cv-395
Before this Court is a motion from Proposed Intervenor-Defendant, Michele B. McQuigg,
("Proposed Intervenor"), appearing in her official capacity as Prince William County Clerk of
Circuit Court. Proposed Intervenor seeks to intervene in this action pursuant to Rule 24(a)(2), or
alternatively, Rule 24(b) of the Federal Rules of Civil Procedure.
Defendant Janet M. Rainey, State Registrar of Vital Records, has consented to the
Motion, and Defendant George E. Schaefer, Ill, Clerk of the Court for Norfolk Circuit Court, has
no objection to the Motion. Plaintiffs Timothy B. Bostic, Tony C. London, Carol Schall, and
Mary Townley oppose the Motion in part.
!.PROCEDURAL BACKGROUND
This action was filed on July 18, 2013. An Amended Complaint was filed on September
3, 2013, and previously filed motions to dismiss and for the Commonwealth of Virginia to
intervene were withdrawn by the parties as moot. On September 30, 2013, Plaintiffs filed a
motion for summary judgment and a motion for a preliminary injunction. Both Defendants filed
223
motions for summary judgment on that date as well. Oral argument on these motions will be
heard on January 30, 2014.
Before the summary judgment motions were fully briefed, two motions for leave to file
amici curiae briefs in support of Defendants' motions were tiled. The motions for leave to file
the amici curiae briefs were granted on December 3, 2013.
On December 20, 2013, Proposed Intervenor filed her Motion (ECF No. 72). The motion
is fully briefed and ripe for consideration. For the following reasons, the motion is GRANTED
IN PART.
II. APPLICABLE STANDARQS OF LAW
In order to prevail on a motion to intervene as of right under Rule 24(a) of the Federal
Rules of Civil Procedure, Proposed Intervenor must show that (I) the motion to intervene is
timely; (2) Proposed Intervenor possesses a "direct and substantial interest" in the subject matter
of the litigation; (3) denying intervention would significantly impair or impede the ability of
Proposed Intervenor to protect her interests; and (4) Proposed Intervenor's interests are
inadequately protected by the existing parties. In re Richman, I 04 F .3d 654, 658-59 (4th Cir.
1997); see also Scardel/elli v. Debarr, 265 F.3d 195, 202 (4th Cir. 200 I), rev 'don other grounds
sub nom. Devlin v. Scardellelti, 531 U.S. I (2002).
A proposed intervenor "bears the burden of demonstrating to the court a right to
intervene," and must prove each element in order for a court to grant intervention as of right.
Richman, 104 F.3d at 658; see also Uniled Guar. Residential Ins. Co. of Iowa v. Philadelphia
Sav. Fund Soc., 819 F.2d 473,474 (4th Cir. 1987). The United States Supreme Court construed
Rule 24(a)(2) as requiring that a "significantly protectable interest" be at risk. Donaldson v.
United States, 400 U.S. 517, 531 (1971). Similarly, the Fourth Circuit looks to determine
2
224
whether a proposed intervenor stands "to gain or lose by the direct legal operation of the district
court's judgment" in the action into which intervention is sought. Teague v. Bakker, 931 F.2d
259, 261 (4th Cir. 1991 ).
Pursuant to Rule 24(b), "the court may permit anyone to intervene who: (A) is given a
conditional right to intervene by a federal statute; or (B) has a claim or defense that share with
the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(l) (emphasis added).
This section also provides that "the court may permit a federal or state governmental officer or
agency to intervene if a party's claim or defense is based on: (A) a statute or executive order
administered by the officer or agency; or (B) any regulation, order, requirement, or agreement
issued or made under the statute or executive order." Fed. R. Civ. P. 24(b)(2) (emphasis added).
A court that is determining whether permissive intervention is proper "must consider whether the
intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed.
R. Civ. P. 24(b)(3).
Ill. ANALYSIS
Whether Proposed Intervenor has a right to intervene in this action is a close question.
The timeliness of the motion - filed after three dispositive motions have been fully briefed and
two motions to file amici curiae briefs have been considered and granted - is questionable.
Similarly, the existence of a "direct and substantial interest" in the subject matter of the litigation
on the part of Proposed Intervenor is arguable, as is whether Proposed Intervenor's ability to
protect those possible interests would be in any way significantly impaired. Finally, it is difficult
to see how any interests in this action that Proposed Intervenor may have will not be represented
fully and adequately protected by the existing parties.
3
225
However, in light of Plaintiffs' decision to decline to object to Proposed Intervenor
intervening under Federal Rule of Civil Procedure 24(b), this Court need not resolve the
challenges as to whether Proposed Intervenor has met the burden of establishing intervention as
of right under Rule 24(a). As recognized above, under Rule 24(b), this Court may permit an
entity to intervene if the entity has a defense that shares a common question of law or fact with
the main action. The Court may also permit a governmental officer to intervene if a defense in
the case is based on a statute administered by the officer, or any regulation or requirement issued
under the statute.
In the absence of any challenges to the assertion that Proposed Intervenor has a "defense"
that shares a common question of law or fact with the main action here, or the assertion that
Proposed Intervenor is a government officer and a defense in the action is based upon a statute or
regulation being administered by the officer, this Court concludes that the intervention as
requested is proper. The Court rejects the conditions on the intervention that Plaintiffs suggest.
After determining that permissive intervention is proper, this Court is compelled to
"consider whether the intervention will unduly delay or prejudice the adjudication of the original
parties' rights." Fed. R. Civ. P. 24(b)(3). Here, Proposed Intervenor has agreed to take no steps
to delay the adjudication of the pending motions. Reply Br. Supp. Mot. Intervene at 8-9, ECF
No. 88 ("Clerk McQuigg affirms that while both of the motions for summary judgment that she
joined remain pending, she will not file additional motions or otherwise take steps to delay the
prompt resolution of those motions."). In light of this assurance, this Court concludes that under
the totality of the circumstance presented, this intervention, under these qualifications, will not
unduly delay or prejudice the adjudication of the original parties' rights. The Court explicitly
reserves the discretion and authority to examine any future intervention proposals and to make
4
226
independent detenninations as to whether such proposals are timely, proper and risk undue delay
and prejudice.
By granting this intervention under the qualifications presented by Proposed Intervenor in
the Reply brief, the Court STRIKES the filings attached to Proposed Intervenor's Motion, which
include a proposed motion for summary judgment (ECF No. 72-3). That proposed dispositive
motion is presented in direct contradiction to the offer to file no additional motions to avoid
undue delay in the adjudication of pending motions.
Moreover, in accordance with the responsibility to prevent undue delay or prejudice, this
Court directs that if Proposed Intervenor wishes to present oral argument at the January 30,2014
hearing, Proposed Intervenor must file a memorandum not exceeding seven pages detailing the
aspects of the oral argument that fall outside the scope of the positions of the other Defendants,
and the reasons why these aspects are unlikely to be adequately protected by the other parties.
This memorandum must be filed no later than close of business on January 22, 2014.
The Court will detennine after that time whether Proposed Intervenor will participate in
oral argument and, if so, how much time will be allotted for such argument. Plaintiffs are
granted leave to file responsive briefing to any oral argument presented by Proposed Intervenor.
This briefing shall be filed no later than February 7, 20I4.
IV. CONCLUSION
Proposed Intervenor's Motion to Intervene (ECF No. 72) is GRANTED IN PART.
IT IS SO ORDERED.

January.!]_, 2014
Norfolk, Virginia
United States District Judge
s
227
Tel: (202) 393-8690
Fax: ( 480) 444-0028
crnattox@alliancedefendingfreedom.org
15100 N 90th Street
Tel: (480) 444-0020
Fax: ( 480) 444-0028
* Admitted Pro Hac Vice
Plaintiffs,
v.
Defendants,
and
Circuit Court,
Intervenor-Defendant.
1
ANSWER AND AFFIRMATIVE
DEFENSES OF INTERVENOR-
DEFENDANT MICHELE B. MCQUIGG
228
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, Intervenor-Defendant, Michele B. McQuigg, in her official capacity as
Prince William County Clerk of Circuit Court (hereinafter "Intervenor McQuigg"), by counsel,
and files her Answer and Affirmative Defenses to Plaintiffs' First Amended Complaint for
Declaratory, Injunctive and Other Relief as follows:
ANSWER TO COMPLAINT
1. Plaintiffs cite numerous marriage cases in Paragraph 1. These cases speak for
themselves and require no response. All remaining allegations of Paragraph 1 are DENffiD.
2. The cases, Va. Const. Art. I, 15-A, and Va. Code 20-45.2, 20-45-3
(collectively referred to as "Virginia's Marriage Laws'') cited by Plaintiffs in Paragraph 2 speak
for themselves and require no response. All remaining allegations of Paragraph 2 are DENlED.
3. The Virginia marriage statute cited by Plaintiffs speaks for itself and requires no
response. All remaining allegations of paragraph 3 are DENIED.
4. Intervenor McQuigg DENIES that Plaintiffs are entitled to the relief they request
in Paragraph 4. All remaining allegations are DENIED.
5. Plaintiffs advance federal constitutional claims, but Intervenor McQuigg DENIES
that they are entitled to any of the relief they seek.
6. Intervenor McQuigg ADMITS that venue is proper in this Court.
7. Intervenor McQuigg ADMITS that Plaintiffs have brought this suit pursuant to 42
U.S.C. 1983 and that they seek declaratory and injunctive relief from Virginia's Marriage
Laws, but DENIES that Plaintiffs are entitled to any of the relief requested in Paragraph 7.
8. Intervenor McQuigg is without knowledge or information sufficient to admit or
deny the allegations personal to Plaintiffs in Paragraph 8, and thus the allegations in their entirety
2
229
are DENIED. The legal conclusions advanced by Plaintiffs require no response, but to the extent
a response is required they are DENIED in their entirety.
deny the allegations personal to Plaintiffs in Paragraph 9, and thus the allegations in their entirety
are DENIED. The legal conclusions advanced by Plaintiffs require no response, but to the extent
a response is required they are DENIED in their entirety.
10. Intervenor McQuigg ADMITS that Plaintiffs have brought this suit pursuant to 42
U.S.C. 1983, that they seek declaratory and injunctive relief from Virginia's Marriage Laws,
and that they seek to recover attorneys' fees, costs, and expenses, but DENIES that Plaintiffs are
entitled to any of the relief whatsoever.
II. Intervenor McQuigg is without knowledge or information sufficient to admit or
deny the allegations in Paragraph 11, and thus the allegations in their entirety are DENIED.
15. The laws applicable to Defendant Schaefer speak for themselves and require no
response. The legal conclusions asserted by Plaintiffs in Paragraph 15 similarly require no
response. Intervenor McQuigg ADMITS that Defendant Schaefer is the Clerk of the Circuit
Court for the City of Norfolk. All other remaining allegations in Paragraph 15 are DENIED.
3
230
16. The laws applicable to Defendant Rainey speak for themselves and require no
response. The legal conclusions asserted by Plaintiffs in Paragraph 16 similarly require no
response. Intervenor McQuigg ADMITS that Defendant Rainey is the State Registrar of Vital
Records. All other remaining allegations in Paragraph 16 are DENIED.
17. Intervenor McQuigg ADMITS that she, along with those under her supervision,
direction, or control, is bound by Virginia law in the performance of her official duties, and
states that upon information and belief that Defendants Rainey and Schaefer are also so
obligated. The remaining legal conclusions and the statement of relief asserted by Plaintiffs
require no response. All other allegations are DENIED.
19. The Virginia Marriage Laws cited by Plaintiffs in Paragraph 19 speak for
themselves and require no response. To the extent Plaintiffs draw legal conclusions from those
laws, no response is required. Similarly, Plaintiffs' assertions based on United States v. Windsor,
133 S. Ct. 2675 (2013), are legal conclusions and thus require no response. All remaining
allegations in Paragraph 19 are DENIED.
20. The Virginia Marriage Laws cited by Plaintiffs in Paragraph 20 speak for
themselves and require no response. All remaining allegations in Paragraph 20 are DENIED.
21. The conclusions of law proffered by Plaintiffs in Paragraph 21 require no
response. Intervenor McQuigg is without knowledge or information sufficient to admit or deny
the allegations asserted Paragraph 21 regarding federal marital privileges and benefits, and thus
those allegations are DENIED. All remaining allegations are DENIED.
4
231
22. The Virginia Marriage laws cited by Plaintiffs, along with United States v.
Windsor, speak for themselves and require no response. To the extent legal conclusions are
proffered by Plaintiffs, these too require no response. Intervenor McQuigg is without knowledge
or information sufficient to admit or deny the remaining allegations asserted in Paragraph 22,
and thus those allegations are DENIED.
23. The Virginia Marriage laws cited by Plaintiffs, along with United States v.
Windsor, speak for themselves and require no response. To the extent legal conclusions are
proffered by Plaintiffs, these too require no response. All remaining allegations asserted in
Paragraph 23 are DENIED.
24. The legal conclusions contained in Paragraph 24 require no response, and the
Virginia Marriage Laws cited by Plaintiffs speak for themselves. All remaining allegations in
Paragraph 24 are DENIED.
deny the allegations personal to plaintiffs, including the ability of Plaintiffs Bostic and London to
marry each other, and thus these allegations are DENIED in their entirety. The legal conclusions
asserted by Plaintiffs in Paragraph 27 require no response, but to the extent any response is
required, those allegations are DENIED.
5
232
Case 2:13-cv-00395-AWA-LRL Document 92 Filed 01120/14 Page 6 of 12 PageiD# 745
deny the allegations in Paragraph 29, and thus the allegations in their entirety are DEN1ED.
30. The laws referenced by Plaintiffs speak for themselves and require no response.
Intervenor McQuigg is without knowledge or information sufficient to admit or deny the
remaining allegations in Paragraph 30, and thus the allegations in their entirety are DENIED.
deny the allegations in Paragraph 31, and thus the allegations in their entirety are DEN1ED.
remaining allegations in Paragraph 32, and thus the allegations in their entirety are DENIED.
remaining allegations in Paragraph 33, and thus the allegations in their entirety are DEN1ED.
34. The legal conclusions asserted by Plaintiffs require no response. Intervenor
McQuigg is without knowledge or information sufficient to admit or deny the remaining
allegations in Paragraph 34, and thus the allegations in their entirety are DEN1ED.
35. The legal conclusions asserted by Plaintiffs require no response. Intervenor
McQuigg is without knowledge or information sufficient to admit or deny the remaining
allegations in Paragraph 35, and thus the allegations in their entirety are DENIED. Intervenor
McQuigg expressly DEN1ES that Plaintiffs are entitled to any of the relief they seek.
COUNTl
DUE PROCESS
36. Intervenor McQuigg incorporates here by reference Paragraphs 1 through 35 as if
6
233
37. Intervenor McQuigg DENIES the allegations in Paragraph 37.
COUNT II
EQUAL PROTECTION
40. Intervenor McQuigg incorporates here by reference Paragraphs 1 through 39 as if
42. The Virginia Marriage Laws cited by Plaintiffs speak for themselves, and the
legal conclusions asserted by Plaintiffs require no response. To the extent a response is required,
all allegations in Paragraph 42 are DENIED.
43. The Virginia Marriage Laws cited by plaintiffs speak for themselves, and the
7
234
COUNT ill
48. Intervenor McQuigg incorporates here by reference Paragraphs I through 4 7 as if
IRREPARABLE INJURY
50. Intervenor McQuigg incorporates here by reference Paragraphs I through 49 as if
deny the allegations in Paragraph 51 regarding benefit entitlements, and thus those allegations
are DENIED. The Virginia Marriage Laws cited by Plaintiffs speak for themselves, and the
53. Intervenor McQuigg DENIES that Plaintiffs are entitled to any relief on any
asserted theory.
54. All allegations not expressly admitted are DENIED.
8
235
1. Plaintiffs fail to state a claim upon which relief can be granted.
2. Plaintiffs' claims are barred by the Tenth Amendment.
3. Intervenor McQuigg is entitled to absolute and qualified immunity.
4. Some or all Plaintiffs lack standing to assert the claims presented in the
Complaint.
5. Some or all of Plaintiffs' claims are not ripe for judicial determination by this
Court.
Wherefore, Intervenor McQuigg, in her official capacity as Clerk of the Court for Prince
William County, Virginia, respectfully requests that Plaintiffs' Amended Complaint be
disruissed with prejudice, that she be awarded costs and attorneys' fees in this matter, and that
she be awarded such further relief as is deemed necessary and just.
9
236
Respectfully submitted this the 20th day of January, 2014.
Tel: (202) 393-8690
Fax: (480) 444-0028
15100 N 90th Street
Tel: (480) 444-0020
Fax: ( 480) 444-0028
By: lsi
Tel: (202) 393-8690
Fax: (480) 444-0028
cmattux@alliancedefendingfreedom.org
10
237
I hereby certify that on January 20, 2014, I will electronically file the foregoing document
with the Clerk of Court using the CM/ECF system, which will then send a notification of such
filing (NEF) to the following participants:
David B. Oakley
Poole Mahoney PC
Robert E. Ruloff
rruloff@srgslaw.com
Charles B. Lustig
clustig@srgslaw.com
ahendrick@srgslaw .com
Erik C. Porcaro
Morecock, P.C.
11
Michael H. Brady
mbrady@oag.state.va.us
cchill@oag.state.va.us
Stuart Raphael
sraphael@oag. state. va. us
900EMainSt
Richmond, VA 23219
Attorney for Defendant Janet M Rainey
Chantale Fiebig
Amir C Tayrani
Theodore B Olson
Matthew D McGill
David Boies
dboies@bsfllp.com
333 Main St.
Armonk, NY 10504
jgoldman@bsfllp.com
Oakland, CA 94612
238
Robert Brian Silver
rsilver@bsfllp.com
Joshua I. Schiller
New York, NY 10022
William Isaacson
Attorneys for Plaintiffs
Is/
Tel: (202) 393-8690
Fax: (480) 444-0028
12
239
Norfolk Division
TIMOTHY B. BOSTIC, et al., )
)
)
)
)
)
)
)
)
Plaintiffs,
v. Civil Action No. 2: 13-cv-00395
JANET M. RAINEY, et al.,
Defendants.
NOTICE OF
CHANGE IN LEGAL POSITION
BY DEFENDANT JANET M. RAINEY
PLEASE TAKE NOTICE that the Office of the Attorney General of Virginia, on behalf
of Defendant Janet M. Rainey, in her official capacity, hereby changes the legal position of the
Commonwealth in this action. Having exercised his independent constitutional judgment,
consistent with his oath of office, the Attorney General has concluded that Virginia's laws
denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United
States Constitution. The Attorney General will not defend the constitutionality of those laws,
will argue for their being declared unconstitutional, and will work to ensure that both sides of the
issue are responsibly and vigorously briefed and argued before the courts to facilitate a decision
on the merits, consistent with the rule oflaw. Rainey will continue to enforce the provisions of
Virginia law at issue until the judicial branch can render a decision in this matter.
The reasons for this change in legal position are set forth in the accompanying
memorandum oflaw.
240
Mark R. Herring
Cynthia E. Hudson
Chief Deputy Attorney General
H. Lane Kneedler, VSB #007722
Senior Counsel
Rhodes B. Ritenour, VSB #71406
E-mail: rritenour@oag.state.va.us
Senior Assistant Attorney General
Catherine Crooks Hill, VSB #43505
E-mail: cchill@oag.state.va.us
Is/
Stuart A. Raphael, VSB #30380
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
sraphael@oag.state.va.us
2
241
I hereby certify that on the 23rd day of January 2014, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send a copy to counsel of
record.
Is/
Stuart A. Raphael
3
242
Norfolk Division
TIMOTHY B. BOSTIC, et al., )
)
)
)
)
)
)
)
)
Plaintiffs,
v. Civil Action No. 2: 13-cv-00395
JANET M. RAINEY, eta/.,
Defendants.
MEMORANDUM IN SUPPORT OF
CHANGE IN LEGAL POSITION BY DEFENDANT JANET M. RAINEY
January 23, 2014
Mark R. Herring
Cynthia E. Hudson
Counsel of Record
Senior Counsel
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
243
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
Preliminary Statement ..................................................................................................................... 1
I. Having exercised his independent judgment that denying the right to marry to
same-sex couples violates the United States Constitution, the Attorney General
will not defend Virginia's ban ............................................................................................. 1
II. Virginia's same-sex-marriage ban violates the Due Process and Equal Protection
Clauses by improperly restricting the fundamental right to marry ...................................... ?
A. Strict scrutiny applies to same-sex-marriage bans because the right to
marry is a fundamental right. ................................................................................... 7
B. Baker v. Nelson does not control the outcome here ............................................... 1 0
C. The proffered governmental interests fail to support banning same-sex
marriage ................................................................................................................. 12
D. Windsor's federalism rationale does not support Virginia's ban ........................... l6
E. Loving rejected the same arguments offered in support of the marriage ban
here ......................................................................................................................... l7
III. Virginia's ban impermissibly discriminates on the basis of sexual orientation and
gender, in violation of the Equal Protection Clause .......................................................... 18
lV. The judiciary has a duty to protect civil rights without waiting for elected bodies
to act. .................................................................................................................................. 21
CONCLUSION ............................................................................................................................. 22
CERTIFICATE OF SERVICE ..................................................................................................... 23
ii
244
Preliminary Statement
The Plaintiffs sued Defendant Janet M. Rainey, in her official capacity as State Registrar
of Vital Records, because the State Registrar has primary responsibility for carrying out
Virginia's laws in a manner that complies with Virginia's constitutional and statutory ban on
same-sex marriage. This official-capacity suit obligates the Attorney General to appear on
Rainey's behalf and to present the Commonwealth's legal position, as informed by his sworn
oath to uphold the Constitution of the United States and his independent judgment of the
constitutionality of Virginia's laws.
Having duly exercised his independent constitutional judgment, the Attorney General has
concluded that Virginia's laws denying the right to marry to same-sex couples violate the
Fourteenth Amendment to the United States Constitution. The Attorney General will not defend
Virginia's ban on same-sex marriage, will argue for its being declared unconstitutional, and 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 oflaw. Rainey will continue to
enforce the disputed provisions of Virginia law, in her official capacity as State Registrar of Vital
Records, until the judicial branch renders a decision that conclusively adjudicates the question.
I. Having exercised his independent judgment that denying the right to marry to
same-sex couples violates the United States Constitution, the Attorney General will
not defend Virginia's ban.
Upon entering office 12 days ago, the Attorney General swore an oath to support both
''the Constitution of the United States, and the Constitution of the Commonwealth of
Virginia .... " Va. Const. art. II, 7; Va. Code Ann. 20-49.1 (2013). The issue in this case is
whether Virginia's laws denying the right to marry to same-sex couples, Va. Const. art. I, 15-
A; Va. Code Ann. 20-45.2, 20-45.3 (2008), violate the Equal Protection and Due Process
Clauses of the Fourteenth Amendment to the United States Constitution, U.S. Const. amend.
1
245
XIV. If a conflict exists, the United States Constitution must prevail; it is the "supreme Law of
the Land ... any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." U.S. Const. art. VI, cl. 2.
When the Attorney General, exercising his independent constitutional judgment,
concludes that a provision of the Virginia Constitution (or Act of the General Assembly) violates
the federal Constitution, he is not duty bound to defend it. Although the practice is rare for
Virginia Attorneys General, it is not unprecedented. Last year, former Attorney General
Kenneth T. Cuccinelli, II, declined to defend a constitutional challenge to the law establishing
the Opportunity Educational Institution, 2013 Va Acts ch. 805.
1
In 2003, former Attorney
General Jerry W. Kilgore, on behalf of the Commonwealth, joined an amicus curiae brief with
43 other States, explaining 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 Attorney General has both a legal and a professional duty to uphold
the law. When, as here, he believes a statute violates the constitution, he
has a paramount obligation to defend the constitution he is sworn to
uphold.
The independence of the Attorney General ... adds another layer of
separation to the ingenious American scheme of divided powers, further
ensuring that no one branch of government- be it legislative, executive,
or judicial- acquires total power to direct the legal affairs of the state.
2
1
Letter from Kenneth T. Cuccinelli, II, Attorney General of Virginia, to Robert F. McDonnell,
Governor of Virginia (Aug. 27, 2013), available at
http://www.roanokefreepress.com/Viewfiles/OEI%20Special%20Counsel%20letter%208 27 13
.pdf.
2
Brief of Thurbert E. Baker, Attorney General of Georgia, and Lawrence E. Long, Attorney
General of South Dakota, and the Attorneys General of 42 Other States and Territories as Amici
2
246
Thus, governors and attorneys general in other States have declined to defend same-sex-
marriage bans after concluding that they violated the federal Constitution.
3
And the President
and U.S. Attorney General argued against the constitutionality of 3 of the Defense of Marriage
Act ("DOMA"), 1 U.S.C. 7, but continued to enforce it, until the Supreme Court declared it
unconstitutional last year in United States v. Windsor, 133 S. Ct. 2675, 2696 (2013).
The propriety of not defending unconstitutional laws is well established under the federal
Constitution. It was espoused by our founders, including Thomas Jefferson
4
and James Wilson.
5
The Department of Justice has consistently advised the Executive Branch that it is appropriate
for the President to decline to enforce a statute that he believes to be unconstitutional,
6
Curiae in Support ofResp't at 9-10, Davidson v. Salazar, No. 03SA147, 2003 WL 23221412, at
*9-11 (Colo. Jul. 10, 2003). The Colorado Supreme Court upheld the authority of the state
attorney general to challenge the constitutionality of the Colorado general assembly's
redistricting legislation. Colorado ex rei. Salazar v. Davidson, 79 P.3d 1221, 1231 (Colo. 2003).
3
See, e.g., Hollingsworth v. Perry, 133 S. Ct. 2652, 2660 (2013) (noting that California's
Governor, Attorney General, and various other officials declined to defend California's same-
sex-marriage ban); Governor of the State of Hawaii, The Department of the Attorney General
Files Answers to Same-Sex Marriage Lawsuit, Press Release (Feb. 12. 2013), available at
http://governor.hawaii.gov/blog/the-department-of-the-attorney-general-files-answers-to-same-
sex-marriage-lawsuit/; see also Juliet Eilperin, State Officials Balk at Defending Laws They
Deem Unconstitutional, Wash. Post (July 18, 2013).
4
The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable
Legislation, 4A Op. O.L.C. 55,58 (1980) (citing VIII Writings of Thomas Jefferson 310 (P. Ford
ed., 1897)).
5
Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 48 (1990) (citing 2
The Documentary History of the Ratification of the Constitution 450 (Merrill Jensen ed. 1976)
(statement of James Wilson on Dec. 1, 1787)).
6
See, e.g., Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C.
199, 199-203 (1994), available at http://www.justice.gov/olc/nonexcut.htrn; Issues Raised by
Provisions Directing Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. 18, 31-36
(1992); 14 Op. O.L.C. at 46-52; Recommendation that the Department of Justice Not Defend the
Constitutionality of Certain Provisions of the Bankruptcy Amendments and Federal Judgeship
3
247
describing that proposition as "uncontroversial" and "unassailable. "
7
Moreover, the Supreme
Court implicitly approved the President's power not to enforce an unconstitutional statute in
Myers v. United States, 272 U.S. 52 (1926). As the U.S. Attorney General wrote in 1980,
"Myers holds that the President's constitutional duty does not require him to execute
unconstitutional statutes; nor does it require him to execute them provisionally, against the day
that they are declared unconstitutional by the courts."
8
Justice Scalia has likewise said that the
President's powers to resist legislative encroachments by Congress include the power "to
disregard them when they are unconstitutional." Freytag v. Commissioner, 501 U.S. 868, 906
(1991) (Scalia, J., concurring in part).
Carrying out that position in court has led to differing approaches by different attorneys
general and solicitors general. In 1989, for example, then-Acting Solicitor General John G.
Roberts, Jr., filed an amicus curiae brief expressing the views of the United States that the statute
in question was unconstitutional, while allowing the agency to defend its constitutionality
through its own counsel.
9
And in Buckley v. Valeo, 424 U.S. 1 (1976}, then-Solicitor General
Robert H. Bork filed two briefs, one defending the constitutionality ofthe election-law rules at
issue, and another, as amicus curiae on behalf of the Attorney General and the United States, that
Act of 1984,8 Op. O.L.C. 183, 195 (1984); 4A Op. O.L.C. at 55; Memorial of Captain Meigs, 9
Op. Att'y Gen. 462, 469-70 (1860).
7
18 Op. O.L.C. at 199-200.
8
4A Op. O.L.C. at 59.
9
Brief for the United States as Amicus Curiae Supporting Resp't Shurberg Broad. of Hartford,
Inc., Astroline Commc'ns Co. v. Shurberg, No. 89-700, 1990 U.S. S. Ct. Briefs LEXIS 954, at *1
n.3, 1989 WL 1127048, at *2 n.3 (U.S. Mar. 6, 1990).
4
248
provided a counterargument to aid the Court in resolving the First Amendment questions
presented
10
An attorney general must exercise "conscientious judgment"
11
in determining whether a
duly enacted law violates the federal Constitution. That task "is inescapably his."
12
Such a
decision is "necessarily specific to context,"
13
and an attorney general "should proceed with
caution and with respect for the obligation that each of the branches shares for the maintenance
of constitutional govemment."
14
The U.S. Attorney General has opined that it also is proper,
when considering whether the Executive Branch should continue to enforce a law it believes to
be unconstitutional, to take account of the effect that such a decision would have on a court's
ability to decide the constitutional question.
15
The Virginia Constitution adds an additional layer to these considerations. While the
President's obligations under the "Take Care" clause, U.S. Const. art. II, 3, permit him to
refuse to enforce an act of Congress that he believes unconstitutional, Virginia's Constitution has
an additional restriction on executive branch power (beyond Virginia's own "Take Care" clause,
Va. Const. art. V, 7), which is not found in its federal counterpart. Article I, 7 of the Virginia
10
See Seth P. Waxman, Defending Congress, 79 N.C. L. Rev. 1073, 1082-83 (2001).
11
4A Op. O.L.C. at 55.
12 !d.
13
18 Op. O.L.C. at 200-01.
14
!d. at 203.
15
!d. at 201 ("Also relevant is the likelihood that compliance or non-compliance will permit
judicial resolution of the issue. That is, the President may base his decision to comply (or
decline to comply) in part on a desire to afford the Supreme Court an opportunity to review the
constitutional judgment of the legislative branch.").
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Constitution provides that "all power of suspending laws, or the execution of laws, by any
authority, without consent of the representatives of the people, is injurious to their rights, and
ought not to be exercised."
In view of all these considerations, and under the unique circumstances presented here,
the Attorney General has concluded, for the reasons set forth below, that the constitutionality of
Virginia's ban on same-sex marriage cannot be defended under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. Defendant Rainey, however, will continue to
enforce the law until the important constitutional question presented can be adjudicated.
Despite Rainey's change in legal position, two other parties, represented by highly
qualified counsel, will continue to defend the legality of Virginia's same-sex-marriage ban, thus
ensuring that the judicial branch can adjudicate the legal question with both sides of the
argument properly represented. The Plaintiffs sued the Clerk of the Circuit Court for the City of
Norfolk, George E. Schaefer, III, in his official capacity. And the Clerk of the Circuit Court of
Prince William County, Michele B. McQuigg, has been permitted to intervene and will also
defend the ban. (Doc. 91.) Clerk McQuigg, in fact, moved to intervene precisely because she
anticipated Rainey's change of position here. (Doc. 73 at 13-14.) As McQuigg points out,
circuit court clerks are constitutional officers who would have standing to appeal an injunction
barring them from refusing to issue marriage licenses to otherwise qualified same-sex couples.
(!d. at 9-10.) This Court, moreover, also has the benefit of the previous briefing by the former
Solicitor General in support of the ban (Docs. 39, 57, 65), as well as amicus briefs supporting the
ban by the Family Foundation of Virginia (Doc. 62-1 ), and by various amici curiae Professors
(Doc. 64-1), which the Court permitted on December 3, 2013 (Dkt. 70, 71).
Thus, the argument for the constitutionality of Virginia's same-sex-marriage ban has
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been and will continue to be zealously advocated, ensuring a continuing "case or controversy" as
this case proceeds. See Windsor, 133 S. Ct. at 2687-88 ("[T]he attorneys for BLAG [the
Bipartisan Legal Advisory Group of the House of Representatives] present a substantial
argument for the constitutionality of 3 ofDOMA. SLAG's sharp adversarial presentation of
the issues satisfies the prudential concerns that otherwise might counsel against hearing an
appeal from a decision with which the principal parties agree.").
Satisfied that the change of position here (1) is required by the independent duty of the
Attorney General to uphold the United States Constitution, and (2) will facilitate the proper
judicial resolution of the question presented in accordance with the rule of law, we now explain
why Virginia's same-sex-marriage ban cannot withstand constitutional scrutiny.
II. Virginia's same-sex-marriage ban violates the Due Process and Equal Protection
Clauses by improperly restricting the fundamental right to marry.
A. Strict scrutiny applies to same-sex-marriage bans because the right to marry
is a fundamental right.
The Supreme Court has consistently ruled that marriage is a fundamental right protected
by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
16
It is among
the rights '"of basic importance in our society,' rights sheltered by the Fourteenth Amendment
16
ML.B. v. S.L.J., 519 U.S. 102, 116 (1996); Planned Parenthood ofSe. Pa. v. Casey, 505 U.S.
833, 847-48 (1992); Turner v. Safley, 482 U.S. 78, 95 (1987); Zablocki v. Redhail, 434 U.S. 374,
382-84 (1978); Carey v. Population Servs. Int'l, 431 U.S. 678,684-85 (1977); United States v.
Kras, 409 U.S. 434,444 (1973); Boddie v. Connecticut, 401 U.S. 371,376 (1971); Loving v.
Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Skinner v.
Oklahoma ex rei. Williamson, 316 U.S. 535, 541 (1942); Meyer v. Nebraska, 262 U.S. 390, 399
(1923); Andrews v. Andrews, 188 U.S. 14, 30 (1903); Maynard v. Hill, 125 U.S. 190, 205 (1888).
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Mark R. Herring
Cynthia E. Hudson
Senior Counsel
/s/
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
with the Clerk of the Court using the CM/ECF system, which will send a copy to counsel of
record.
/s/
Stuart A. Raphael
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Norfolk Division
Plaintiffs,
V.
JANET M. RAINEY and
GEORGE E. SCHAEFER, III,
in their official capacities,
Defendants.
)
)
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)
)
AMENDED ANSWER OF JANET M. RAINEY
Defendant Janet M. Rainey, by counsel, in her official capacity, and in accordance with
Fed. R. Civ. P. 8(b) and Fed. R. Civ. P. 15(a)(2), having obtained written consent from counsel
for Plaintiffs to file this Amended Answer, answers the allegations in the Amended Complaint in
the numbered paragraphs below, corresponding to the numbers in the Amended Complaint.
INTRODUCTION
I. Defendant admits that entry into the civil institution of marriage is a fundamental
right protected by the federal Constitution, including the Fourteenth Amendment.
2. Defendant admits that current Virginia law, specifically Article I, 15-A of the
Virginia Constitution, Virginia Code 20-45.2 and Virginia Code 20-45.3, does not permit
persons of the same sex to marry or enter into other recognized civil unions.
3. Defendant admits that current Virginia law does not recognize out-of-state, same-
sex civil marriages.
4. Defendant admits that the Plaintiffs seek the specified relief requested and that
current Virginia law, constitutional and statutory, improperly denies same-sex couples access to
the institution of civil marriage, a fundamental right, without legal justification, and therefore
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violates the federal constitutional guarantees of due process of law and the equal protection of
the laws.
5. Admitted.
6. Admitted.
NATURE OF DISPUTE
7. Defendant admits that this action is brought pursuant to 42 U.S.C. 1983 and that
it seeks declaratory as well as preliminary and permanent injunctive relief against enforcement of
Virginia Code 20-45.2 and 20-45.3 and Article I, 15-A ofthe Virginia Constitution to
vindicate same-sex couples' fundamental right to civil marriage.
8. Defendant lacks knowledge or information sufficient to form a belief about the
truth of allegations personal to Plaintiffs Bostic and London. Defendant admits that current
Virginia law denies to same-sex couples civil marital recognition, in violation of the Fourteenth
Amendment to the U.S. Constitution.
truth of allegations personal to Plaintiffs Schall and Townley. Defendant admits that current
Virginia law precludes recognition of Plaintiffs' California civil marriage, in violation of the
Fourteenth Amendment to the U.S. Constitution.
10. Defendant admits that the Plaintiffs seek the specified relief requested.
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THE PARTIES
truth of allegations personal to Plaintiff Bostic.
truth of allegations personal to Plaintiff London.
truth of allegations personal to Plaintiff Schall.
truth of allegations personal to Plaintiff Townley.
15. The laws applicable to Defendant George E. Schaefer, III, in his official capacity
as the Clerk of the Circuit Court for the City of Norfolk speak for themselves. The allegations
with respect to his status as a defendant under 42 U.S.C. 1983 and whether he is a proper Ex
parte Young defendant are legal conclusions that require no response.
16. The laws applicable to Defendant Janet M. Rainey in her official capacity as the
State Registrar of Vital Records speak for themselves. Defendant Rainey admits that she is a
proper official capacity defendant for this suit challenging Virginia's marriage laws under 42
U.S.C. 1983.
17. Defendant admits that she, her agents and other Virginia officials enforce Article
I, 15-A of the Virginia Constitution, Virginia Code 20-45.2 and Virginia Code 20-45.3 and
that Plaintiffs bring this action to have those laws declared unconstitutional and continued
enforcement by Defendant Rainey and her agents enjoined.
18. Defendant admits that a history exists of invidious discrimination against gay and
lesbian individuals.
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19. Defendant admits that Virginia Code 20-45.2 was adopted in 1975, that "[i]n
November 2006, a majority of Virginia voters ratified" Article I, 15-A, that these enactments
codified, and then constitutionalized, a definition of marriage that prevents same-sex couples
from having their relationships recognized by the Commonwealth, which thereby denies gays
and lesbians the fundamental right to marry, and that their effect is to deny those relationships
the privileged legal status and social standing accorded opposite-sex relationships. The Supreme
Court's decision in United States v. Windsor, 133 S. Ct. 2675 (2013), speaks for itself.
20. Admitted.
21. Defendant admits that Virginia's definition of marriage affects the availability of
certain federal benefits and, by not permitting same-sex couples to marry, results in those
benefits not being available to them under current federal law.
22. Defendant admits that Virginia law denies same-sex couples the legal affirmation,
recognition, and protection that it extends opposite-sex couples, as well as the resulting social
affirmation of their relationships. The Supreme Court's decision in Windsor speaks for itself.
23. Defendant admits that Virginia law does not recognize same-sex marriages
entered into in other States, denying same-sex couples who were married outside Virginia the
legal affmnation, recognition, and protection extended to opposite-sex couples, as well as
denying them the resulting social affirmation of their relationships. The decision in Windsor
speaks for itself.
24. Defendant admits that the Virginia laws in question unconstitutionally
discriminate against same-sex couples. The decisions in Windsor and Romer v. Evans, 517 U.S.
620, 635 (1996), speak for themselves.
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25. Defendant lacks knowledge or information sufficient to form a belief about tbe
trntb of allegations personal to Plaintiffs Bostic and London.
26. Defendant Rainey lacks knowledge or information sufficient to form a belief
about the trntb of allegations personal to Plaintiffs Bostic and London, but does not contest that
tbese facts, iftrne, suffice to establish Plaintiffs Bostic and London's standing to challenge
Virginia's same-sex-marriage ban.
27. Defendant admits tbat, under current Virginia law, same-sex couples may not
enter civil marriage and are denied a fundamental right enjoyed by opposite-sex couples.
Defendant Rainey lacks knowledge or information sufficient to form a belief about tbe trntb of
allegations personal to Plaintiffs Bostic and London.
trntb of allegations personal to Plaintiffs Schall and Townley.
trntb of allegations personal to Plaintiffs Schall and Townley, but does not contest tbat tbese
facts, iftrne, suffice to establish Plaintiffs Schall and Townley's standing to challenge Virginia's
same-sex-marriage ban.
30. Defendant admits tbat Virginia law does not permit a parent to co-adopt a child
witb someone who is not the parent's spouse, tbus preventing same-sex couples in Virginia from
adopting. Defendant Rainey lacks knowledge or information sufficient to form a belief about tbe
trntb of allegations personal to Plaintiffs Schall and Townley, but does not contest tbat these
facts, iftrne, suffice to establish Plaintiffs Schall and Townley's standing to challenge Virginia's
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257
truth of allegations personal to Plaintiffs Schall and Townley, but does not contest that these
facts, if true, suffice to establish Plaintiffs Schall and Townley's standing to challenge Virginia's
32. Defendant admits that Virginia law denies marriage licenses to same-sex couples
and does not permit two persons of the same sex to be recognized on birth certificates as parents.
Defendant lacks knowledge or information sufficient to form a belief about the truth of
allegations personal to Plaintiffs Schall and Townley, but does not contest that these facts, if true,
suffice to establish Plaintiffs Schall and Townley's standing to challenge Virginia's same-sex-
marriage ban.
33. Defendant admits that Virginia's current definition of civil marriage affects
entitlement to certain state and federal rights and benefits and, by not permitting same-sex
couples to marry, results in their not enjoying those rights and benefits under current Virginia
and federal law. Defendant lacks knowledge or information sufficient to form a belief about the
truth of allegations personal to Plaintiffs Schall and Townley, but does not contest that these
facts, if true, suffice to establish Plaintiffs Schall and Townley's standing to challenge Virginia's
34. Defendant admits that current Virginia law denies Plaintiffs the right to enter civil
marriage in violation of the Fourteenth Amendment to the U.S. Constitution. Defendant lacks
knowledge or information sufficient to form a belief about the truth of allegations personal to
Plaintiffs.
35. Defendant admits that she and her agents, acting in their official capacities as
Virginia officers, will continue faithfully to enforce the challenged state statutes and
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constitutional provision unless and until declared unconstitutional by the judicial branch.
Defendant also admits that such a declaration would require a revision of Virginia law, but lacks
Plaintiffs.
CLAIMS FOR RELIEF
COUNT I:
DUE PROCESS
36. Defendant restates her responses to paragraphs 1 through 35.
37. Defendant admits that Virginia's denial of marital rights to same-sex couples
violates the Fourteenth Amendment's guarantee of due process oflaw. Defendant Rainey lacks
Plaintiffs.
38. Defendant admits that Virginia's laws denying marital rights to same-sex couples,
including Virginia Code 20-45.2 and 20-45.3 and Article I, 15-A of the Virginia
Constitution, impinge upon fundamental liberties. Defendant lacks knowledge or information
sufficient to form a belief about the truth of allegations personal to Plaintiffs.
39. Admitted.
COUNT II:
EQUAL PROTECTION
41. Defendant admits that Virginia's denial of marital rights to same-sex couples
violates the Fourteenth Amendment's guarantee of equal protection of the laws. Defendant lacks
Plaintiffs.
42. Admitted.
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43. Admitted.
44. Defendant admits that a history exists of invidious discrimination against gay men
and lesbians. Defendant further admits that by denying same-sex couples the right to civil
marriage enjoyed by opposite-sex couples, current Virginia law denies same-sex couples access
to civil marriage and prevents them from enjoying equal rights under the law. The Supreme
Court's decision in Windsor speaks for itself.
45. Admitted.
46. Admitted.
47. Admitted.
COUNT III:
49. Defendant admits that she and her agents, acting in their official capacities as
Virginia officers, will continue faithfully to enforce the challenged state laws and constitutional
provision unless and until they are declared unconstitutional by the judicial branch. Defendant
lacks knowledge or information sufficient to form a belief about the truth of allegations personal
to Plaintiffs.
IRREPARABLE INJURY
50. Defendant restates her responses to paragraphs I through 49.
51. Defendant admits that current Virginia law denies marital status to same-sex
couples, a status that secures various state and federal benefits, and that she and her agents will
continue faithfully to enforce the challenged state laws and constitutional provision unless and
until it is declared unconstitutional by the judicial branch. Defendant lacks knowledge or
information sufficient to form a belief about the truth of allegations personal to Plaintiffs, but
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260
does not contest that these facts, if true, suffice to establish those Plaintiffs' standing to challenge
Virginia's same-sex-marriage ban.
52. Admitted.
53. All allegations not expressly admitted are denied.
Mark R. Herring
Cynthia E. Hudson
H. Lane Kneedler, VSB 0007722
Senior Counsel
JANET M. RAINEY,
in her official capacity
By: /s/
Riclnnond, Virginia 23219
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
9
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with the Clerk of the Court using the CMIECF system, which will send a copy to counsel of
record.
Is/
Stuart A. Raphael
10
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Norfolk Division
Plaintiffs,
v.
Circuit Court,
Defendants;
and
MICHELE B. MCQUIGG, in her official capacity
As Prince William Clerk of Circuit Court,
ORDER
CASE NO. 2: 13-cv-395
Intervenor-Defendant Michele B. McQuigg, ("Intervenor") requests an Order allowing
her to adopt the Motion for Summary Judgment formerly filed on behalf of Defendant Janet M.
Rainey, State Registrar of Vital Records, by the Office of the Virginia Attorney General, as well
as all briefing that supported that motion and opposed the motions filed by Plaintiffs Timothy B.
Bostic, Tony C. London, Carol Schall, and Mary Townley. This request is GRANTED, and by
this Order, Intervenor is permitted to adopt the Motion (ECF No. 38) and briefing (ECF Nos. 44
and 65) as requested.
263
This Court notes, however, that the intervention into this action was permitted after the
Court fulfilled its obligation to determine "whether the intervention will unduly delay or
prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). The
intervention was permitted after Intervenor offered to take no steps to delay the adjudication of
the pending motions. Reply Br. Supp. Mot. Intervene at 8-9, ECF No. 88 ("Clerk McQuigg
affirms that while both of the motions for summary judgment that she joined remain pending, she
will not file additional motions or otherwise take steps to delay the prompt resolution of those
motions."). By that offer, this Court was assured that the intervention would not unduly delay or
prejudice the adjudication of the original parties' rights.
The Court is dismayed at Intervenor's subsequent arguments regarding her request to
adopt the desired motion and briefing. Counsel contended that if the adoption were not allowed,
Intervenor should be entitled to file her own dispositive motion. Counsel also objected to the
Court's decision to allow Intervenor to file only an expedited five-page response to the recent
Memorandum from the Office of the Attorney General, asserting that this somehow violated the
"governing rules" that are applicable to the filing of responses to pending motions. Counsel
asserted that if the requested adoption of briefing were disallowed, Intervenor should be given
until February 6, 2014 to file a thirty-page "response" to the Memorandum from the Office of the
Attorney General. Counsel then asserted that the hearing to resolve the original parties' motions
should be postponed.
Counsel's proposed "remedies" sought in the event that adoption was denied misinterpret
the application of "governing rules" (the Attorney General has not filed a pending motion that
necessitates a response). Worse, these proposed "remedies" fly in the face of counsel's prior
vow to take no steps to delay the adjudication of the original parties' pending motions, the
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264
significance of which was clearly stated in this Court's Order allowing intervention. Intervenor
is advised that pennission to adopt the motion and briefing as requested is granted despite these
disingenuous arguments.
IT IS SO ORDERED.
r
2014
Norfolk, Virginia
3
Arenda L. Wright Allen
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Norfolk Division
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TIMOTHY B. BOSTIC, TONY C. )
LONDON, CAROL SCHALL, and MARY )
TOWNLEY, )
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Plaintiffs, )
)
v. )
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JANET M. RAINEY, in her )
official capacity as State )
Registrar of Vital Records, )
and GEORGE E. SCHAEFER, III, )
in his official capacity as )
the Clerk of Court for Norfolk )
Circuit Court, )
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Defendants. )
CIVIL ACTION NO.
2:13 cv 395
TRANSCRIPT OF PROCEEDINGS
Norfolk, Virginia
February 4, 2014
20 BEFORE: THE HONORABLE ARENDA WRIGHT ALLEN
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25
TAMORA TICHENOR, Official Court Reporter
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APPEARANCES:
GIBSON DUNN & CRUTCHER LLP
By: Theodore B. Olson
and
By: David Boies
Counsel for the Plaintiffs
HUNTON & WILLIAMS LLP
By: Stuart Alan Raphael
With Mark Herring, Attorney General
POOLE MAHONEY PC
By: David Brandt Oakley
Counsel for George E. Schaefer, III
By: David Austin Robert Nimocks
Counsel for Intervenor Clerk,
Prince William County, Michelle McQuigg.
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1 (Hearing commenced at 10:01 a.m.)
2 THE CLERK: Civil number 2:13 CV 395, Timothy B.
3 Bostic, Tony C. London, Carol Schall and Mary Townley,
4 plaintiffs, versus Janet M. Rainey, in her official capacity
5 as State Registrar of Vital Records, and George E. Schaefer,
6 the III, in his official capacity as Clerk of Court for
3
7 Norfolk Circuit Court, defendants, and Michelle B. McQuigg in
8 her official capacity as Prince William Clerk of Circuit
9 Court, Intervenor-defendant.
10
11
12
13
14 proceed?
Are counsel for the plaintiffs ready to proceed?
MR. OLSON: We are.
THE COURT: All right. It's good to see you.
THE CLERK: Are counsel for defendants ready to
15 MR. RAFAEL: We're ready.
16 THE COURT: Mr. Shuttleworth.
17 MR. SHUTTLEWORTH: Yes, ma'am. I would like to
18 introduce Theodore Olson and David Boies. They are both
19 members of the Supreme Court United States bar and they are
20 going to be arguing today.
21 THE COURT: All right. Good to meet you both.
22 Welcome to our court.
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MR. OLSON: Good morning, Your Honor. Thank you.
MR. BOIES: Good morning. Thank you.
MR. RAFAEL: Good morning, Your Honor. Stuart
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1 Rafael. I'm Solicitor General of Virginia. With me is Mark
2 Herring, the Attorney General.
3 THE COURT: All right. Good to have you both as
4
5
well.
MR. OAKLEY: Good morning, Your Honor. David
6 Oakley. I represent the Norfolk Circuit Court Clerk George
7 Schaefer in his official capacity.
8 THE COURT: All right. Good to meet you as well.
9 MR. NIMOCKS: Good morning, Your Honor. My name is
10 Austin We represent the intervenor clerk, Prince
11 William County, Michelle McQuigg.
12 THE COURT: All right. Good to meet you as well.
4
13 If we could start with counsel for the plaintiff, who's going
14 to be arguing first?
15 MR. OLSON: Thank you, Your Honor. Theodore B.
16 Olson.
17
18
THE COURT: All right, Mr. Olson.
MR. OLSON: If it pleases the court, I will take
19 10 minutes of our allotted time, and Mr. Boies will address
20 the preliminary injunction issue for the remaining 10 minutes
21 of the opening part of our presentation.
22 THE COURT: That will be fine.
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MR. OLSON: Thank you, Your Honor.
THE COURT: You're welcome.
MR. OLSON: Virginia erects a wall around its gay
269
1 and lesbian citizens excluding them from the most important
2 relation in life because of their sexual orientation and
3 labels their intimate personal relationships as second rate,
4 interior, unequal, unworthy, and void.
5 We believe that there are four fundamental issues
5
6 before you today: What right is being denied; to whom is it
7 being denied; what is the standard of review in examining the
8 denial of that right; and what is the Commonwealth's
9 justification for its discriminatory laws.
10 First, marriage. Marriage is a fundamental right.
11 The United States Supreme Court has said that 14 times
12 according to my count, going back to something like 1888. It
13 has said that in the context of miscegenation, Loving versus
14 Virginia. Persons in prison, deadbeat spouses, divorce,
15 contraception, maternity leave, custody, family occupancy all
16 across the board. Every time the United States Supreme Court
17 has dealt with the issue of marriage it has said-- it states
18 that it is a fundamental right vital to Americans.
19 Fundamental -- a fundamental importance to all citizens. And
20 what the court has said is that that is a right of privacy, a
21 right of liberty, a right of association, a right of
22 spirituality and a right of self identification. It is
23 fundamental to the core of the individual and the
24 individual's identity in life.
25 You will hear possibly on behalf of the defense of
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6
1 the Commonwealth that the Commonwealth has some justification
2 with respect to procreation or other things. But the point
3 that the Commonwealth misses when it makes those arguments or
4 those speaking on behalf of the Commonwealth when they make
5 those it is that it's the right of the individual.
6 It is not the right of the state. That is the country that
7 we live in. We have rights as individuals which are
8 fundamental and cannot be taken away.
9 Now that is what has been taken away from gay and
10 lesbian citizens in the United States. It has been denied to
11 those gay and lesbian citizens because of their status. What
12 the Supreme Court has said in the Christian Legal Society, in
13 the Lawrence case, and in the Windsor case most recently is
14 that gay and lesbian individuals, a person's sexual
15 orientation, makes them a member of a class. It defines them
16 as a status.
17 So what the Commonwealth of Virginia is doing is
18 taking away this fundamental right from a group of
19 individuals because of who they are. This is something that
20 is fundamental to them as individuals. And the purpose and
21 affect of that, according to the Supreme Court in the Windsor
22 case, is to impose a disadvantage, a separate status, a
23 stigma. It denies them equal dignity because of who they
24 are. So those are the first two points. It is a fundamental
25 right to our citizens, vital to our identity and it's being
271
1 taken away from these individuals, the plaintiffs here and
2 others like them in Virginia, because of who they are.
3 What the Supreme Court has said that these are
7
4 characteristics that are fundamental to an individuals, their
5 sexual orientation just like their gender, just like race,
6 just like other things that we have identified and put in
7 categories where we discriminate historically from time to
8 time against individuals because of who they are. That is
9 not American. That is not consistent with the due process
10 clause of the constitution or the equal protection clause of
11 the constitution.
12 The next point is how must that be evaluated. What
13 standard does the court apply to evaluate the taking away of
14 a fundamental right from a group of citizens because of their
15 class, because of their status. We submit that that requires
16 the strictest of scrutiny.
17 The Zablocki case, which is cited in the briefs, one
18 of the marriage cases, specifically says that when -- and
19 that case was dealing with people who hadn't paid child
20 support. The Supreme Court said that that requires
21 heightened scrutiny because of marriage is the fundamental
22 right. And the United States Court of Appeals for the Fourth
23 Circuit in the Waters versus Gaston County specifically
24 addressed that issue. That was a decision that involved
25 nepotism and the court was evaluating whether nepotism and
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8
1 the restriction against nepotism was something that should be
2 overturned.
3 And the court, specifically citing the Zablocki
4 case, said nepotism wasn't related to marriage so it didn't
5 require strict scrutiny. And then cited the Zablocki case as
6 stating that restrictions substantially interfere with
7 fundamental rights must be subjected to strict scrutiny.
8 That's what the Fourth Circuit said.
9 Now strict scrutiny requires a careful examination
10 of whether the state has the compelling governmental interest
11 to withdraw a right and whether the right being withdrawn is
12 necessary narrowly tailored to accomplish that compelling
13 governmental interest. We submit it's not even close. I
14 don't think anyone ever argued that the restrictions that
15 Virginia's applying to marriage satisfies strict scrutiny.
16 We submit that it would not even be close.
17 And that leads us to the fourth question: What is
18 the justification by the Commonwealth of Virginia for taking
19 away this right? We hear words like procreation. But the
20 Supreme Court itself has said that procreation has never been
21 a standard for getting married. In the argument on the
22 marriage cases last March in the United States Supreme Court,
23 Justice Kagan asks specifically a number of questions about
24 this and said people over a certain age are not going to have
25 children.
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9
1 The District Court in the Perry case, that carne from
2 California, the Proposition 8 case, the Judge said -- in
3 response to our opponent was arguing about procreation, he
4 said I performed a marriage last week between two people were
5 in their 80s. They are not going to have children.
6 Procreation has never been a condition. You don't
7 have to establish that you are going to procreate, that you
8 want to procreate, or you're capable of procreating in order
9 to get married. So that can't be a justification.
10 Then we hear arguments based upon something called
11 responsible procreation. The State wants to have marriage
12 for people of opposite sexes so that they will channel their
13 sexual activity into the institution of marriage. But
14 there's two points with respect to that. It's not the
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state's right to impose a restriction on marriage because it
wants to accomplish some social objective. The state could
decide tomorrow we don't want procreation or we don't care
about responsible procreation and change the rules. No
because it's an individual right. It goes to the heart of
who the individual is, their liberty, spirituality, and so
forth.
The Romer case by the United States Supreme Court
said that even in the context of a rational basis standard,
the objective must be tied to the ends that are being sought
by the statute. It must be -- what is sought by the statute
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10
1 must attain those means, the ends or the objective or the aim
2 of the statute itself. There is no connection between
3 something called responsible procreation, whatever that might
4 be, and what Virginia has set out to do.
5 Allowing gays and lesbians to get married and have
6 that fundamental right does not discourage heterosexuals from
7 getting married. It doesn't discourage heterosexuals from
8 having children. It can't possibly do that.
9 So what we have in this statute and this stricture
10 of statutes and legislation and constitutional provisions is
11 exactly what the Supreme Court was talking about in Windsor.
12 The purpose and effect of the statute is to put gay and
13 lesbian citizens into a second class status. Their marriage
14 or their relationship is second tier. It can't be called
15 marriage. And the Virginia statute goes far beyond that
16 because it prohibits any relationship, any legal contract
17 between individuals of the same sex who aren't married that
18 might approximate or might be anything like marriage or might
19 have the same effect of marriage. Virginia goes further than
20 California ever went in the Proposition 8 case or where a
21 number of other states have gone. Virginia prohibits
22 relationships between individuals that attempt to attain
23 anything like maybe a division of property or something like
24 that that is remotely like marriage.
25 I will reserve the balance of my time and then for
275
1 rebuttal and turn it over to my colleague David Boies, and
2 just finish by summarizing. This is taking away a
3 fundamental right from individuals because their immutable
4 characteristics because of who they are. It is subject to
5 very strict scrutiny, but whether with strict scrutiny or
6 rational basis the final point is that justification which
7 has been offered by the state does not begin to give a good
8 valid reason for why this is being done. In fact, the
9 purpose and effect as the Supreme Court said in the Windsor
10 case, and might have been talking about Virginia, is to
11 demean, humiliate and put our citizens into a separate
12 subordinate status.
13 THE COURT: All right. Thank you very much.
14 MR. OLSON: Thank you, Your Honor.
15 THE COURT: Mr. Boies.
16 MR. BOIES: May it please the court, my name is
17 David Boies.
18 THE COURT: Good to see you again.
11
19 MR. BOIES: Your Honor, every court to consider this
20 issue has held that laws that prohibit gay and lesbian
21 citizens from marrying the person they love seriously harms
22 them and seriously harms the children that they are raising.
23 Even where there has been as it was in the Ninth Circuit a
24 dissenting opinion, the dissent did not take issue, and
25 indeed I submit to the court it is impossible on the state of
276
1 the record before this court, to take issue with the
2 seriousness of that harm.
3 Whether or not that harm violates the constitution
4 has been argued primarily based on whether the state has a
12
5 justification for this classification. Because there can be
6 no doubt that depriving gay and lesbian citizens of the right
7 that the United States Supreme Court has talked about as the
8 most important right in a person's life, basic to their
9 concept of liberty and privacy, spirituality, there is simply
10 no basis of which I believe it can be seriously argued that
11 this does not seriously harm them. And the record before the
12 court, that we put before the court, demonstrates that that
13 harm goes to the children that gay and lesbian couples are
14 raising as well. That these children are seriously harmed by
15 the -- and this is evidence that comes not just from experts
16 that we have identified but experts from the various
17 defendants that have identified throughout the country.
18 Seriously harms the children by depriving them of the
19 stability and the recognition and legitimacy that marriage
20 conveys.
21 So in looking at a motion for preliminary injunction
22 we begin with a proposition that we have here serious
23 irreparable harm.
24 Now in the Rainey brief, at page 20, they say that
25 in a constitutional case the traditional four factors that
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13
1 the court considers in determining whether a preliminary
2 injunction should issue, actually claps into the first factor
3 of likelihood of success on the merits. Whether or not that
4 is true, and we are prepared to accept that that is true, but
5 whether or not that is true, we believe the case from
6 preliminary injunction hearing is compelling.
7 First, there is clearly irreparable harm. The
8 plaintiffs and the child they are raising are -- one of the
9 couples is raising clearly evidence of irreparable harm.
10 As the Fourth Circuit held just last year in Centro
11 Tepeyac against Montgomery County, 722 F.3d, and particularly
12 at pages 190 and 191, that where you have a constitutional
13 violation at issue the irreparable harm is clear, and the
14 need for a preliminary injunction is particularly important.
15 And here, the likelihood of success on the merits as
16 Mr. Olson has identified is again clear. So you have
17 likelihood of success on the merits and you have irreparable
18
19
harm.
And as the Fourth Circuit again said in Centro
20 Tepeyac against Montgomery County, where you have
21 constitutional rights at issue there is no harm to the state
22 in issuing an injunction. Indeed, as the court says in page
23 191, what that does is it improves the system because the
24 State's function is to provide rights and protect the rights
25 of its citizens. And so where the court issues a preliminary
278
1 injunction it validates important constitutional rights.
2 That is something where the state, contrary to having an
3 adverse interest, actually has a positive interest once the
4 court concludes, if the court does, that there is a
5 likelihood of success of merits.
6 And I suggest if you look at what the court's have
7 done in -- and I understand these are not binding decisions
8 but they are very well written and we would urge the court
14
9 persuasive decisions in Utah, in Oklahoma, in the SmithKline
10 Beecham case, unanimous Ninth Circuit case holding heightened
11 scrutiny applies, in the Supreme Court's decision in Windsor,
12 in the District Court in California's decision in Perry, in
13 the Ninth Circuit opinion in Perry, which while vacated is
14 not authoritative is still persuasive we submit to the court.
15 All of those go to the likelihood of success on the merits.
16 And so you have likelihood of success on the merits, you have
17 irreparable injury, you have a balance of hardships tilting
18 decidedly in favor of the plaintiffs, and you obviously have
19 the public interest in preserving the constitution.
20 Now what do you have on the other side, if anything?
21 At the other side all you have is a desire to preserve the
22 status quo. And what we have done in our preliminary
23 injunction is we've narrowly tailored to protect the rights
24 of these four plaintiffs. We have narrowly tailored so that
25 there could be no argument that there is any disruption to
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15
1 the state, that there is any interference with administrative
2 functions. This is not a situation in which we are asking in
3 a preliminary injunction to enjoin the statute statewide. We
4 are asking that as part of our permanent relief, and if and
5 when we ever get there, we urge the court that that
6 preliminary relief -- that that permanent relief should not
7 be stayed, but at this point in terms of our preliminary
8 injunction, which is important to protecting the vital
9 irreparable rights of these plaintiffs, we are asking only
10 for a preliminary injunction that affects these four
11 plaintiffs. And we have done that consciously in order to
12 prevent any kind of argument that this is going to disrupt
13 the statewide system. We have done this consciously to
14
15
16
17
18
19
20
21
22
23
24
25
provide any argument that says this is going to require us to
rework all of our tax tables, or change all of our forms.
All we are asking is that these four plaintiffs who have come
to court seeking this relief get that relief and get it now.
We also would ask the court in considering the
motion for preliminary injunction to take into account the
extent to which these plaintiffs have for a long period of
time already been deprived of these rights. And that the
message that the Commonwealth of Virginia sends to people
when they enforce this law is a message that says these are
second-class citizens. These are people who it is
appropriate for the state to discriminate against based on
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16
1 their status. These are not people who belong in our
2 society. And I would ask -- I would ask -- I would say to
3 the court as the Ninth Circuit said of the Windsor decision
4 that when the government sends this message and continues to
5 send this message, it is a terribly disabling harmful
6 message. Harmful not only to the plaintiffs but harmful to
7 our broader society because when we discriminate based on
8 status, we discriminate and we harm not only the people that
9 we discriminate against, we undermine the culture of this
10 country. The culture of this country is a culture of
11 equality, openness, privacy, and liberty. We are a country
12 that doesn't have common ancestry. We don't have common
13 language today. We don't have common ancestral lands. What
14 binds us together as a country is our culture. That is a
15 culture of equality and open opportunity and
16 nondiscrimination. And as we have -- as we have over the
17 last many, many decades, we move one barrier of official
18 discrimination after another. We have become more true to
19 that culture.
20 What we are asking to the court to do today is take
21 the next step with respect to these plaintiffs and give them
22 immediate preliminary injunction relief.
23 If there is an argument, and we saw some argument in
24 the papers, that somehow there may be a danger that this
25 could get reversed on appeal and that would put their
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17
1 marriage in jeopardy, that is a risk that the plaintiffs
2 take. That is not a risk for the state. The plaintiffs are
3 prepared to take that risk. The plaintiffs ask this court
4 urgently to allow them to do that. Thank you.
5 THE COURT: All right. Thank you very much. All
6 right. Counsel for Defendant Rainey.
7 MR. RAFAEL: Good morning, Your Honor. Stuart
8 Rafael.
9 THE COURT: Mr. Rafael, good to see you. You may
10 proceed.
11 MR. RAFAEL: Your Honor, I wanted to cover four
12 issues today: The fundamental rights analysis, the equal
13 protection analysis, the fact that we agree with the
14 plaintiffs that the marriage ban cannot satisfy a rational
15 basis scrutiny, let alone heightened or strict scrutiny, and
16 I want to end by talking about what I think the Virginia
17 Attorney General brings to this issue in this case.
18 So let me start with the fundamental rights
19 analysis. The main flaw we think, Your Honor, and the
20 argument that has been made in support of the ban on the
21 same-sex marriage is the argument that there is no
22 traditional right to same-sex marriage. That's the same
23 argument that was made in Brown versus Board and the same
24 argument that was made in Loving versus Virginia.
25 In Brown versus Board, the Virginia, my predecessor,
282
1 stood here and said there is no traditional right to
2 integrated schools. In fact, when Virginia approved the
3 Fourteenth Amendment, the same legislators who did that
4 mandated segregation in schools. There is no traditional
5 right to integrated schools. And then in 1967, my
18
6 predecessor stood here and told the court and ultimately the
7 Supreme Court that there was no traditional right to
8 interracial marriage because Virginia had banned interracial
9 marriage since colonial days.
10 So we know from these cases they teach that
11 tradition is not the basis for determining whether the right
12 that is at issue here, the equality of principle, the
13 equality of right principle, whether that right applies in
14 this case.
15 I think, Your Honor, that the court in Obergefell,
16 the District Court of Ohio in their recent decision that we
17 cited, really nailed it when it said that in individual cases
18 regarding parties to potential marriages with the wide
19 variety of characteristics. The Supreme Court consistently
20 describes a general "fundamental right to marry" rather than
21 a right to interracial marriage, the right to inmate
22 marriage, or the right of people owing child support to
23 marry. The issue is the right to marriage and how that
24 applies to the class at issue in this case.
25 I also noticed in preparing for the argument today
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19
1 that the court said something quite similar to this in the
2 Lawrence versus Texas case. You recall Lawrence versus Texas
3 reversed the Bowers versus Hardwick decision. Lawrence held
4 that state laws prohibiting consensual homosexual intercourse
5 violate the Fourteenth Amendment. And in analyzing what the
6 court did wrong in Bowers it said that the court had defined
7 the right too narrowly. This is from the Lawrence discussion
8 at page 566 to 67. The court began its substantive
9 discussion in Bowers as follows: "The issue presented is
10 whether the federal constitution confers a fundamental right
11 upon homosexuals to engage in sodomy." And the court went on
12 to say that statement we now conclude discloses the court's
13 own failure to appreciate the extent of the liberty at stake.
14 To say that the issue in Bowers was simply the right to
15 engage in certain sexual conduct demeans the claim the
16 individual put forward just as it would demean a married
17 couple where it said that marriage is simply about the right
18 to have sexual intercourse.
19 The rational in Lawrence was that persons in a
20 homosexual relationship may seek autonomy for these purposes
21 just as heterosexual persons do. And it's very interesting,
22 if you look Evans and you look at -- Romer versus Evans, you
23 look at Lawrence, and you look at Windsor, Justice Kennedy
24 was the deciding vote in all three of those cases and Justice
25 Scalia was the dissent in all three.
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20
1 In Romer, which struck down Colorado's
2 constitutional amendment voted by majority of Colorado
3 people, that amendment said that laws that discriminated
4 against -- that prevented discrimination on the basis of
5 sexual orientation could not be enacted by local government.
6 The Supreme Court struck that down in an opinion by Justice
7 Kennedy and Justice Scalia wrote a dissent.
8 Well we know from Bowers that the state can prohibit
9 homosexual intercourse, and if it can do that it can
10 disapprove of homosexuals too. Well of course Bowers was
11 overruled in Lawrence. Lawrence comes along. Justice
12 Kennedy writes the opinion there striking down Texas's ban on
13 sodomy laws. And at that point Justice Scalia writes a
14 dissent well if you can't have laws based on immorality like
15 this, then there is going to be no basis to prohibit laws
16 against same-sex marriage. And he was right.
17 And the same thing happened in Windsor. When the
18 Supreme Court struck down section three of DOMA, Justice
19 Scalia again in dissent said well if you can't have laws
20 based on immorality, then we know what's next. And we think
21 that he got -- we think that he was correct in his prediction
22 and we think that Justice Kennedy got it right each time
23 because the principle at issue is the ancient principle of
24 equality of right.
25 Let me turn to the next point which is I think that
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21
1 this case is legally, legally is indistinguishable from
2 Loving. Now prior government counsel for Rainey argued that
3 Loving was distinguishable because racial discrimination was
4 the main purpose of the Fourteenth Amendment, and we are not
5 dealing with racial discrimination here. But as we point out
6 in our papers, that exact rational was rejected specifically
7 by the Supreme Court in the Zablocki case where it said that
8 interracial marriage had not been recognized by the founders
9 and yet it was struck down as unconstitutional in Loving.
10 I would point out, Your Honor, that Zablocki has not
11 been cited by our predecessors as counsel for Rainey and I
12 don't believe it's been cited by either Clerk McQuigg or
13 Clerk Schaefer.
14 The arguments that were made by Virginia's counsel
15 in Loving are the same arguments that have been made in
16 support of the same-sex marriage ban here. That it's a
17 matter of state's rights to determine who should be married.
18 That it was the intent of the framers that they would not be
19 interracial marriage.
20 And then lastly they pointed to the latest in
21 eugenics evidence in 1967 that suggested that the children of
22 same-race marriages were developmentally disadvantaged
23 compared to the children of same-race marriage. At oral
24 argument in 1967 Virginia's Attorney General condensed those
25 down to two points. One, the tradition point, the framers
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22
1 never thought that the Fourteenth Amendment would apply to
2 interracial marriage. We know the Supreme Court didn't agree
3 with that point. Then he argued secondly that there was a
4 rational basis for bans on interracial marriage because the
5 legislature might find from the social science evidence that
6 the children of those marriages were worse off. The court
7 would have none of it.
8 I actually listened to the oral argument on oyez.org
9 of the argument that was made in the Loving case, and it
10 really is illuminating. Chief Justice Earl Warren pressed
11 Virginia's counsel about the lack of a limiting principle in
12 what he was arguing. He said well could the state prohibit
13 marriage between interreligious couples and his answer was I
14 think the evidence in support of the prohibition of the
15 interracial marriage is stronger than that for the
16 prohibition of interreligious marriage.
17 It's scary to contemplate that somebody could
18 actually justify this type of discrimination. And as of
19 course the court is aware the Supreme Court was unpersuaded.
20 Now if you think about it, even assuming for
21 argument sake that the children of same-sex couples raised in
22 that -- in a same-sex couple environment, even assuming for
23 the sake of argument that some of those children might be
24 worse off than children raised by quote natural parents,
25 opposite-sex marriages, that cannot possibly justify the type
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23
1 of sweeping categorical prohibition at issue in this case.
2 It is no better than the unconstitutional presumption in the
3 Stanley versus Illinois case that unwed fathers could never
4 ever be good parents so those fathers had to see their
5 children taken away from them if the mother -- the natural
6 mother died. The Supreme Court would have none of it.
7 In this case neither our predecessors nor counsel
8 for McQuigg or Schaefer are arguing I believe that the
9 children of same-sex couples are at some kind of disadvantage
10 compared to the children of opposite-sex couples. The amici
11 professors who you offered leave to argue here, even they
12 don't make that argument. What they say in their papers
13 at -- this is Document 64 at pages 3 to 4. They say that a
14 claim that another parenting structure provides the same
15 level of benefit should be rigorously tested and based on
16 sound methodology and representative samples. And they go on
17 to say at page four, what is clear is that much more study
18 must be done on these questions. Really? I mean we have to
19 study that issue and then based on that we are going to allow
20 the state to prohibit an entire category, a class of citizens
21 from marrying? That just can't be right. It just can't be
22 right. It's the same argument that the Supreme Court
23 rejected in Loving and in Stanley.
24 Let me turn if I can to the other main error I think
25 in the position of those in favor of the ban on same-sex
288
1 marriage, and that's the assumption that marriage is about
2 procreation only. That's really a major flaw. You cannot
24
3 square that position with the Supreme Court's decision in the
4 Griswold and Turner cases. Again cases not even cited by
5 prior government counsel here.
6 Griswold upheld the right not to procreate. It
7 struck down Connecticut's law that prohibited married couples
8 from having contraception. And the court went on to say in
9 words far more eloquent than I could have written. That
10 marriage is about the coming together for better or for
11 worse, in intimacy to the degree of being sacred, a harmony
12 in living, a bilateral loyalty, as noble a purpose as any
13 involved in prior decisions.
14 And the court in Turner upheld the right to marry
15 even by prison inmates who couldn't consummate the marriage.
16 And again talked about these beautiful eloquent things about
17 what marriage is: An expression of emotional support, public
18 commitment, spiritual significance, an expression of personal
19 dedication, but the court went on to say it's about more than
20 that too because there are lots of economic and legal
21 benefits that go along with being married that prisoners have
22 a right to enjoy. All of those same considerations apply
23 equally to same-sex couples who wish to marry. And we cited
24 former Attorney General Robert McDonnell's opinion from 2006
25 that lists all the things that same-sex couples can't get in
289
1 Virginia. Leaving off things like being a wrongful death
2 beneficiary, spousal privilege, but most importantly the
25
3 right to adopt children. I mean what more important right is
4 there than that? And same-sex couples can't exercise it.
5 Let me touch on the equal protection analysis. As
6 we pointed out in our papers that we think that apply strict
7 scrutiny because this is a determination on a basis of a
8 fundamental right. You don't really need to decide the
9 doctrinal questions under the equal protection clause about
10 whether, you know, this is gender discrimination or whether
11 heightened scrutiny applies to discrimination based on sexual
12 orientation, but we think you certainly could decide those
13 things.
14 We disagree with our predecessor who argued that
15 Baker versus Nelson controls the decision here. Clerk
16 Schaefer in her latest paper argues that Windsor had an
17 opportunity to reverse Baker but said nothing about it. I
18 would take -- I would actually draw the opposite inference.
19 The fact that none of the justices said anything about Baker
20 versus Windsor, it's actually-- Baker versus Nelson is
21 actually quite amazing in light of the fact that the parties
22 argued it vigorously in their papers. The only time it came
23 up in front of the Supreme Court was at oral argument in the
24 Hollingsworth case where the Charles Cooper, counsel arguing
25 to defend Prop 8, relied on it and Justice Ginsburg said,
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26
1 Mr. Cooper, Baker versus Nelson was 1971. The Supreme Court
2 hadn't even decided that gender-based classifications get any
3 kind of heightened scrutiny, and the same-sex intimate
4 conduct was considered criminal in many states in 1971, so I
5 don't think we can extract much from Baker versus Nelson.
6 And that's why, Your Honor, we didn't see it in any opinion
7 in Windsor or Perry.
8 There is no response from any of the clerks or from
9 our prior counsel on the fact that there have been major
10 doctrinal developments since that case.
11 Clerk McQuigg in her recent filing, document 116,
12 argued that the Agostini versus Felton line of cases applied.
13 Case that says when the Supreme Court decides something in a
14 full written opinion and you think it's been erased, you
15 know, a lower court shouldn't act contrary to that until the
16 Supreme Court says you can. That line of cases does not
17 apply in my judgment to summary dispositions like you had in
18 Baker versus Nelson. The Supreme Court has given us a
19 decision, a rule of decision in the Miranda -- Hicks versus
20 Miranda case and actually points to the idea that you can
21 have doctrinal developments that undermine a summary
22 affirmance. And of course the two most recent courts that
23 have looked at this in Utah and Oklahoma agree that Baker
24 versus Nelson was no longer controlling.
25 Let me turn if I can to the argument that the ban
291
1 here satisfies rational basis review. We don't think it
2 does. Neither prior government counsel nor McQuigg nor
27
3 Schaefer tries to defend the ban under heightened or strict
4 scrutiny. I think that omission is telling. I think it's a
5 concession. I think the court can take that as a concession
6 that if heightened scrutiny applies, the ban is clearly
7 unconstitutional. The only basis for the defense has been it
8 satisfies the rational basis test. And I think the way the
9 argument has been made is it is wrong. Because what the
10 argument you have heard from our prior government counsel was
11 the state just has to come up with some reason to justify
12 opposite-sex marriage. And if we have any good reason for
13 that, and it doesn't matter that we don't let anybody else
14 get married. That just can't be right. Because the reason
15 they have come up with is this responsible appropriation
16 optimal child rearing rational but as Mr. Olson pointed out
17 that would justify barring marriage by the infertile, elderly
18 or by people who have no interest in having children. We are
19 going to subject those laws to rational basis review? Those
20 would be totalitarian laws everybody would agree. So it just
21 can't be right that that hassles muster under rational basis
22 review.
23 Moreover, the main case that Court Clerk McQuigg
24 relies on, Johnson versus Robison, I think demonstrates that
25 it's not enough simply to come up with a reason for the group
292
1 you're favoring. You have to come up with a reason for
2 disfavoring the other group. In that case it was
3 conscientious objectives. Veterans of the military got
28
4 educational benefits but conscientious objectors didn't. And
5 the Supreme Court said there is a good reason for offering
6 these benefits to veterans because it makes them willing to
7 serve. Conscientious objectors aren't going to serve either
8 way, so there is a good reason they don't need to get those
9 benefits. At least the court looked at a rational basis for
10 denying the excluded class. Here, they don't do that. It's
11 a little bit like the Romer case where Colorado tried to
12 justify its ban, its constitutional amendment prohibiting
13 laws against discrimination against homosexuals. They had
14 two grounds for that. Number one, they said we want to
15 protect the right of heterosexuals to associate, and number
16 two, we want to -- the court said protect -- limit the -- or
17 protect the state's resources in enforcing antidiscrimination
18 laws.
19 Justice Kennedy thought that those reasons fail even
20 rational basis review. He said the breath of the amendment
21 is so far removed from these particular justifications that
22 we find it impossible to crack. And you should have the same
23 conclusion about the arguments that Virginia's prior counsel
24 made in this case.
25 I do want to take issue with one thing that my
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29
1 friends for the plaintiffs have argued. I don't think the
2 court -- we agree with them on the merits. But I don't think
3 the court should issue an injunction that's not stayed. I
4 think the better course would be to follow the lead of the
5 Federal District Judge in Oklahoma who looked at what the
6 Supreme Court did in the Utah case. Right, in Utah the
7 District Court issued the injunction without a stay. That
8 was appealed to the Tenth Circuit. The Tenth Circuit let the
9 injunction stand. The Supreme Court without opinion set it
10 aside. You know, we're going to wait until this goes up.
11 When the Oklahoma judge issues the injunction in that case,
12 the court took note of what the Supreme Court had done and
13 issued a stay right away. I think that's the better course
14 here. It's not enough to say that this case is limited to
15 these four plaintiffs because if you issued a rule saying
16 that Virginia's ban is unconstitutional and limited it to
17 these four plaintiffs, tomorrow you would have 100 or 1,000
18 or 10,000 people banging on your door saying that they are
19 entitled to that same rule as well.
20 From the state standpoint, if you had -- we think
21 this issue is ultimately going to go to the Supreme Court and
22 the Supreme Court is ultimately going to agree, but if it
23 didn't, it would be a very difficult thing to undo marriages
24 that took place in the interim. What would you do with the
25 children who are adopted by same-sex couples in the interim
294
30
1 if the marriage is subsequently set aside? What would you do
2 with insurance benefits that were paid based on spousal
3 status if that status were set aside? What would happen to
4 property that passes by intestate succession if the marriage
5 were later set aside? And Utah faced all kinds of problems
6 when it went through this roller coaster of marriages and
7 then having them stayed. It was -- it's a huge mess there
8 because of what happened. So we think that the court would
9 be well advised to follow the Oklahoma court's lead.
10 Now I would point out that Virginia's position here,
11 Your Honor, is that we are going to continue to enforce this
12 ban until we are told not to because we think that that's the
13 right thing to do procedurally. It's very similar to what
14 the Obama administration did in the Windsor case. And I
15 think that that creates the ideal vehicle for getting this
16 case ultimately decided by the Fourth Circuit and the Supreme
17 Court.
18 This is not an Attorney General detail. The
19 Attorney General is not rolling over and agreeing the law is
20 unconstitutional. We want both sides of this argument to be
21 fully heard. And you're going to hear from the clerk's
22 counsel, I imagine a very vigorous defense of the law, but
23 only the US Supreme Court can decide this issue. It's got to
24 get there and this is a great vehicle for it to do that.
25 Let me end by just saying what I think that the
295
1 Virginia Attorney General brings to bare here. Number one,
2 we are not going to make the mistake that our predecessor's
31
3 made in Loving. They could have not defended Virginia ban on
4 interracial marriage and they chose to defend it. We think
5 that the law is clearly on our side here. We think the
6 majority of the Supreme Court is going to go our way on this
7 and that therefore the Attorney General made a courageous
8 decision not to defend the Virginia constitutional provision
9 because in our judgment it clearly conflicts with the US
10 constitution.
11 The second thing we bring to bare is the history of
12 Virginia on this. Predecessors have stood here in Brown
13 versus Board and Loving, the VMI case, and in all of those
14 cases -- we point this out in the conclusion of our
15 submission. All of those cases were really controversial
16 when they were decided. Really controversial. We look back
17 now and we wonder, gosh, how could they have been so
18 controversial, but at the time they were really
19 controversial. They weren't controversial because of the
20 legal principle. The legal principle is an ancient one, a
21 quality of right. They were controversial because of the
22 perception about how that principle applied at that time in
23 history. And I'm confident that we are going to look back
24 maybe even two years from now on today and say well of course
25 that was the right outcome. It's kind of like what John
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32
1 Kennedy said to a friend after he approved the 1963 Civil
2 Rights Act after the violence in Birmingham and the march on
3 Washington, and he said sometimes you look at what you do and
4 you ask why didn't I do it sooner.
5 Thank you, Your Honor.
6
7
8
9
10 Oakley.
THE COURT: Thank you very much. Mr. Oakley.
MR. OAKLEY: Good morning, Your Honor.
THE COURT: Good morning.
MR. OAKLEY: May it please the court, I am David
I'm here representing Norfolk Circuit Court Clerk
11 George Schaefer in his official capacity. He's been brought
12 into this lawsuit because two of the plaintiffs in this case,
13 Mr. Bostic and Mr. London, came to his office and -- this was
14 shortly after the decision in Windsor -- and sought a
15 marriage application. They are two men. And because of that
16 under Virginia's existing laws, the statutory and under
17 Virginia's constitution, George Schaefer's office could not
18 issue that marriage license, and that's why he's being
19 brought into this case. And I do believe he probably is a
20 proper party for that reason. His office is in charge of
21 enforcing -- enforcing Virginia marriage laws to the extent
22 that he is issuing these licenses.
23 And what I would like to start off with is what this
24 case is about for George Schaefer and what it's not about.
25 This case is about the constitutionality of the definition of
297
1 marriage as only being between one man and one woman, and
2 that's -- and whether or not that definition is
3 constitutional under the due process and equal protection
33
4 clauses of the Fourteenth Amendment. In other words, can he
5 constitutionally continue to refuse issuing marriage licenses
6 to same-sex couples. And this case is also about the process
7 and respect for the process of passing our laws due to the
8 general assembly and enforcing our laws and eventually as we
9 are doing here testing the constitutionality.
10 What this case is not about for Clerk Schaefer, it's
11 not about whether or not the plaintiffs have love for each
12 other, whether or not they are in a committed relationship,
13 whether or not they can adopt children, whether or not they
14 can raise children. This case is not -- for George Schaefer
15 it is not about whether the Commonwealth has to recognize
16 civil unions or marriages that are entered into in other
17 states. Those sorts of allegations are not made against
18 Clerk Schaefer in his official capacity.
19 And that leads me into the issue of standing, the
20 Plaintiffs Shaw and Townley. Plaintiffs Schall and Townley
21 they were married in California and that's -- and part of
22 their claim is that the Commonwealth of Virginia does not
23 recognize their California marriage.
24 Well they have made no allegations that Clerk
25 Schaefer has committed any act or omission which affects
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1 them. He has not done anything to create any injury,
2 Plaintiffs Shaw and Townley. They haven't sought to have
3 their marriage recognized by his office. They haven't sought
4 to get a marriage license from his office. And they have
5 filed this as Section 1983 claim for a violation of their
6 civil rights. And one of the most basic premises of the 1983
7 claim is that you have to have someone who's acting under
8 color of state law that denies you a civil right. And the
9 way that this has been alleged with Plaintiffs Shaw and
10 Townley, Clerk Schaefer simply hasn't done that. He's not
11 denied them of any civil right, so therefore we ask that the
12 claims brought by Miss Shaw and Townley be dismissed as they
13 pertain to Clerk Schaefer.
14 And it's important for a couple of reasons.
15 First, it's possible that this court could decide
16 that Virginia's definition of marriage is constitutional. It
17 passes rational basis review. And that would still leave the
18 question open well what do we do about the recognition
19 portion of the Virginia constitution? Does Virginia still
20 have to does Virginia have to recognize a California
21 marriage or a New Jersey marriage? And George Schaefer is
22 not involved in that portion of the argument.
23 And also, secondly, it's an important issue because
24 Miss Schall and Miss Townley, they are seeking their
25 attorney's fees against Clerk Schaefer and to the extent they
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1 haven't stated a claim against him, they should not be
2 entitled to those attorney's fees.
3 As I said, this case really it's about the process.
4 The voters of Virginia they elect their legislators in the
5 General Assembly. 2004 the General Assembly passed a bill
6 saying that a marriage is -- confirming that a marriage is
7 only between a husband and a wife, a man and a woman. And
8 then in 2006, the process continued and there was a
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9 constitutional amendment under the Marshall-Newman Amendment
10 which was voted on by both the legislature and approved by
11 57 percent of the voters that again confirming the definition
12 of marriage is only between a man and a woman. And that
13 legislative process is to be respected. It allows for more
14 open and public debate, and it really is the better avenue to
15 create -- to effectuate a great social change like this when
16 you're changing the basic understanding of concept what is
17 marriage. It's always been between man and a woman.
18 Throughout history -- and Miss Rainey in her original brief
19 she filed in support of her motion for summary judgment
20 brought by prior counsel, they went to great length to show
21 the long history of marriage is only being between a man and
22 a woman.
23 And one of the another lesson that we can take
24 from Windsor is that -- in this case the plaintiffs -- if you
25 decide in favor of the plaintiffs -- actually I take that
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1 back. If you decide against the plaintiffs, if you determine
2 that the definition of marriage is constitutional, then
3 you're not taking away a right that the plaintiffs already
4 have. But once plaintiffs have that right to same-sex
5 marriage, then taking it back away from them is very
6 difficult. And as we found out in Windsor, the individual
7 state -- certain states had provided the right to same-sex
8 marriage but then the federal government took that right away
9 in the eyes of the federal law because of the federal
10 definition of marriage under DOMA.
11 And the Windsor court goes on to talk about how it
12 truly is a state's right to define marriage, and in their
13 concepts of federalism throughout the Windsor case, and they
14 say the states have a historical right and have always
15 defined marriage. And it really is best to leave that to
16 general assembly and to the voters so that that legislative
17 process can continue. And that legislative process indeed is
18 continuing.
19 I checked the other day and I believe there are
20 seven different resolutions before the General Assembly that
21 are pending today to unwind the Marshall-Newman Amendment and
22 allow for same-sex marriage. And if it truly has been a
23 shift in political opinion, and if you read the newspapers,
24 maybe there has been a shift and maybe the Marshall-Newman
25 Amendment would not pass today. And if that is the case,
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1 it's more appropriate to allow the General Assembly and the
2 voters to make that decision.
3 But until that law is changed, until either the
4 legislature or there is a binding court precedence saying
5 otherwise, Clerk Schaefer has to continue to follow laws as
6 well as all the other circuit court clerks across the
7 Commonwealth.
8 He is an independent elected state official. His
9 office is created by the constitution of Virginia. He is
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10 considered a constitutional officer much like a sheriff. And
11 he is not controlled by the state government. He is not
12 beholding to the state government and just like he is not
13 beholding to the local government, the City of Norfolk. He
14 has specific duties that he has to carry out and those are
15 all prescribed by statute but he also takes note that he's
16 sworn to uphold the constitution.
17 And in light of the binding precedent that we do
18 have, and there is nothing to show that same-sex marriages
19 are entitled to anything other than rational basis review, so
20 these laws are presumed constitutional. Virginia's
21 definition of marriage is presumed constitutional. So Clerk
22 Schaefer is bound to continue to follow that law, to enforce
23 that law, because we are a nation and Commonwealth of laws.
24 And if state officials and state officers could have the
25 ability to go around and just decide which laws they wanted
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1 to enforce, we would have anarchy. And there are serious
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
repercussions if Clerk Schaefer decides that he is not going
to follow the laws. If he had issued a license, a marriage
license to Mr. London and Mr. Bostic or any other same-sex
couple, he is subject to penalties. He could be put in jail.
He could be taken out of office.
And with all due respect with the Attorney General's
new position on this issue, that change in position does not
affect Clerk Schaefer. He is an independent officer and he
is entitled -- I believe he is required to continue to defend
the constitutionality of these laws and continue to enforce
this definition of marriage in Virginia.
And the idea of the concept, the definition of
marriage, it does go back a long ways and all of the binding
precedent that is out there says that same-sex couples are
not -- for constitutional reasons are not viewed as a suspect
classification.
There is there are several cases from the United
States Supreme Court that deal with the idea of marriage and
what -- and the idea of marriage it is a fundamental right.
I believe all of those cases that specifically say marriage
22 is fundamental right. They do so in the context of marriage
23 between a man and a woman.
24 Loving v Virginia which is cited by the plaintiffs
25 and by the attorney general now is a basis for this -- for
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1 their arguments. Loving v Virginia was obviously between a
2 man and a woman. And one of the cases that continues to be
3 binding is Baker v Nelson.
4 Baker v Nelson is the case which challenged
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5 Minnesota's -- challenged Minnesota's definition of marriage
6 which was interpreted to be only between a husband and wife,
7 a man and woman. And two men attempted to get a marriage
8 license. And they were denied such license by their local
9 court clerk. They appealed it all the way to the Minnesota
10 Supreme Court, who analyzed it under several different
11 constitutional provisions but specifically Fourteenth
12 Amendment under due process and under equal protection. And
13 they found that the institution of marriage as a union of a
14 man and woman, uniquely involving the procreation and rearing
15 of children within the family, is as old as the book of
16 Genesis. This historic institution manifestly is more deeply
17 founded than the asserted contemporary concept of marriage
18 and societal interests for which petitioners contend. The
19 due process clause of the Fourteenth Amendment is not a
20 charter for restructuring it by judicial legislature.
21 And what's really interesting about that case, which
22 eventually was appealed to the US Supreme Court and summarily
23 dismissed, is that all of this happened in the wake of Loving
24 v Virginia. So that idea of a fundamental right to marriage
25 was fresh in everyone's mind at that point in time both in
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1 the Minnesota Supreme Court and eventually when it went up to
2 the United States Supreme Court and the Minnesota Supreme
3 Court in Baker, specifically addressed Loving and said it was
4 inapplicable in that situation.
5 It appears that for the most part everybody here
6 agrees that a summary dismissal like that is binding
7 precedent on the merits. It is a decision on the merits but
8 where we appear to disagree is whether or not there has been
9 a doctrinal change coming from the United States Supreme
10 Court sufficient to ignore Baker.
11 And the line of cases that I think are cited most
12 often are Romer v Evans, Lawrence v Texas, and United States
13 versus Windsor.
14 Romer v Evans is sufficiently different than the
15 definition of marriage that we are dealing with here today.
16 Romer v Evans was a case where they passed a statute in
17 Colorado saying you couldn't have any protection for
18 homosexuals whatsoever essentially and the Supreme Court
19 found that was discrimination against homosexuals as a class
20 undertaken for its own sake. Well in this case we are not
21 dealing with discrimination only against homosexuals and it's
22 against same-sex couples and that's a different
23 classification.
24 So I want to talk in a little bit about how are we
25 going to define the class here. And I believe the Romer v
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1 Evans was sufficiently different from the case at bar to show
2 that it was not a doctrinal change but another interesting
3 fact from Romer v Evans they didn't analyze that case that
4 under rational basis review not strict scrutiny. There was
5 no finding that homosexuals were a suspect class or a had
6 fundamental right in that case. It was a solely limited to
7 rational basis review.
8 And same goes for Lawrence v Texas. That was also
9 cited under rational basis review and that dealt with
10 criminal penalties. The only criminal penalties that are
11 issued here is the potential that George Schaefer could go to
12 jail if he violated the law. There are no criminal penalties
13 at issue here for the same-sex couples that are seeking
14 marriage licenses.
15 And finally in United States versus Windsor, that
16 was a very narrow holding. The majority opinion at the end
17 of the case they wrote was specifically limited to the facts
18 of that case, and that it didn't necessarily make any sort of
19 other doctrinal changes, and because they limited the
20 holding -- and also because the idea of federalism was
21 implicit or explicit throughout that case. It was the
22 Supreme Court recognized that the federal government was
23 invading something that was historically left to the states,
24 the definition of marriage, and by allowing certain states to
25 define marriage as including same-sex couples, and then the
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1 federal government going in and taking that right away, the
2 federal government was overstepping its bounds.
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3 And they -- one of the other lessons from Windsor is
4 they define that class very narrowly to only be those
5 same-sex couples who had a valid marriage that was recognized
6 in their state and then lost that recognition when it came to
7 federal law. For those reasons I believe that there has not
8 been an explicit doctrinal change by the Supreme Court. If
9 anything, they have been consistent. They have continued to
10 review these cases under rational basis review.
11 I think Windsor, Justice Scalia says a lot of things
12 in his dissent and one of the things that he touches on is
13 well what is the -- what is the level of scrutiny that we are
14 applying here. And he says that well obviously it's not
15 strict scrutiny. It's not intermediate scrutiny. It's maybe
16 not necessarily our traditional idea of rational basis
17 review. It's not heightened scrutiny. And unfortunately the
18 Windsor court didn't explicitly say what level of scrutiny
19 they were providing, but as Justice Scalia said, the lower
20 courts are free to distinguish away.
21 And there have been many, many cases that have been
22 cited in both the briefs that I've submitted and the briefs
23 submitted on behalf of Clerk Rainey and -- Miss Rainey and
24 Clerk McQuigg where Baker v Nelson has been followed by
25 district courts from around the country. And obviously there
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1 are -- there are cases going both ways. Some follow it,
2 some and the case out of -- recent case out of Oklahoma,
3 both of those have gone the other way so there is a split in
4 the decisions that have come out, but Baker v Nelson has
5 continued to be followed.
6 And so since we are dealing with rational basis
7 review, there is no fundamental right to marriage between
8 same-sex couples. The only fundamental right to marriage is
9 as it is traditionally known, between one man and one woman,
10 a husband and a wife. But we do, if we are going to look at
11 this under rational basis review, we do have to identify the
12 class. And following the lead on Windsor, we need to define
13 this class as narrowly as possible. And that class should be
14 same-sex couples who are seeking to have a marriage license
15 in the Commonwealth of Virginia.
16 The class here it's not -- it's not all homosexuals.
17 Not all homosexuals desire to be married. It is solely
18 limited to those same-sex couples that want a Virginia
19 marriage license. And so if we are going to talk about
20 rationale basis review, a standard for rationale basis review
21 is that rationale basis review will sustain a law, and
22 according to Romer v Evans, if it can be said to advance a
23 legitimate government interest, even if the law seems unwise
24 or to the disadvantage of a particular group, or if the
25 rationale for it seems tenuous. And it is the plaintiff's
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1 heavy burden here to disprove and show that there is
2 absolutely no conceivable rational legitimate reason for this
3 law, for Virginia's definition of marriage.
4 It doesn't have to be the legitimate policy
5 reason doesn't necessarily have to be in the legislative
6 record. It doesn't necessarily have to be supported by
7 empirical evidence. The -- it's truly not the government
8 who's defending a law under rational basis. It's not the
9 government's duty to absolutely prove what that policy is but
10 we will talk about some of the reasons that have been put out
11 there but it's just some possible conceivable reason that
12 could have been relied upon by the legislature.
13 And there are certainly a lot of reasons that have
14 been put out there for the -- there are posed as the
15 legitimate reason for this definition of marriage. And my
16 client on a personal basis may or may not agree with any or
17 all of them but he's been sued in his official capacity, and
18 just because he doesn't agree with the justification, Your
19 Honor, you don't have to agree with the justification as long
20 as it was legitimate.
21 Some of the reasons that have been put out there are
22 first marriage as has been traditionally defined is
23 longstanding and the plaintiffs certainly make the case that
24 well just having a longstanding reason or longstanding law,
25 law of antiquity, that in itself is not enough to affirm the
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1 agreement under rationale basis for review. And I concede
2 that is true. That by itself is not enough but when you have
3 a law like this, really an idea that's been accepted by
4 society for so many years, unwinding that shouldn't be done.
5 It can't be arbitrarily set aside unless there is a very
6 strong case. Certainly the antiquity of the law is something
7 even though it may not be determinative by itself is
8 something the court should seriously consider.
9 Another idea that is often put out there is the idea
10 of promoting natural procreation. We also hear a lot about
11 promoting stable families, having children raised in a
12 two-parent household. Some people even go so far as to say
13 it needs to be the natural parents.
14 There is also the idea that by disallowing -- by
15 keeping this traditional definition of marriage you're
16 discouraging people from going out and abusing the idea of
17 marriage, going out and getting married solely to qualify for
18 benefits, tax benefits, death benefits, health care, whatever
19 else that they would not otherwise qualify for.
20 Some people have put forward the argument that it
21 prevents the weakening of traditional family values and a lot
22 of people also argue that marriage as an institution is not
23 as strong as it once was and by allowing same-sex marriage
24 you continue to erode that marriage is an institution. And
25 those are ideas that are certainly out there. Those are
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1 purposes they have been put forth as legitimate reasons.
2 And another idea that's out there is really it's a
3 combination of a lot of those factors, the idea of natural
4 procreation, family stability and also maintaining a physical
5 responsibility because there is a simple biological
6 difference between same-sex couples and opposite-sex couples.
7 Opposite sex couples are the only ones where there is a
8 possibility of an accidental marriage and it certainly could
9 be the government's legitimate interest to prefer that if
10 there is an accidental marriage, that it should be -- or if
11 there is an accidental pregnancy, it should be in the
12 relationship of the marriage. And that would prevent
13 children from being born out of wedlock and promote the idea
14 that they are raised in a two-parent household because
15 presumably it would be more stable. There is the possibility
16 of dual income, things of that nature. And it's just not
17 simply possible for a same-sex couple to have an accidental
18 pregnancy. And the plaintiffs talk about well how does
19 excluding same-sex couples further this policy. Well you
20 could flip that argument around and say well how would
21 including them further that policy. And the answer is well
22 including them in that there would not further the policy
23 because they simply could not have an accidental pregnancy
24 and including them would only increase the burden that -- the
25 cost to the government because they would then be qualifying
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1 for certain benefits that they wouldn't otherwise get.
2 Also this distinction is drawn as narrowly as it
3 could be. Under rational basis review a law can be over
4 inclusive and to the extent that this law allows people who
5 can't procreate either because of their age or for whatever
6 reason, because of infertility, then they are still allowed
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7 to marry, but just because it is over inclusive does not mean
8 it is unconstitutional.
9 And I would like to change gears a little bit and
10 talk about the requirement for preliminary injunctive relief.
11 Under the Winter versus Natural Resources Defense Council
12 there is a four-part test on whether or not a preliminary
13 injunction should be granted, and the first is likelihood of
14 success on the merits. And plaintiffs put together a very
15 good argument and I'm sure they are very confident that they
16 are going to ultimately be successful. But if you just look
17 at the split decisions across the country, the question of
18 whether or not they eventually are going to succeed on the
19 merits is certainly up in the air.
20 And I join in with the Solicitor General's argument
21 in opposition to the preliminary injunction. I don't want to
22 repeat his argument too much but I just want to emphasize
23 that a preliminary injunction, it is an extraordinary remedy
24 and it's to be rarely granted, and especially in a situation
25 where the preliminary injunction requires something which
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1 would require my client to take some sort of affirmative
2 action rather than just keeping the status quo. If the
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3 preliminary injunction were granted Clerk Schaefer would have
4 to actively go out and issue these marriage or at least a
5 marriage license to Mr. Bostic and Mr. London and potentially
6 if other cases are filed many other people.
7 And so what we are asking the court to do here today
8 is to defer to the legislative process and the reasoning and
9 the open debate that it went on when the 2004 bill was passed
10 and when the Marshall-Newman Amendment was passed in 2006,
11 and recognize it that they were just simply reaffirming the
12 traditional concept of marriage is only being between a man
13 and a woman. And we ask this court to recognize that this
14 definition of marriage passes constitutional scrutiny under
15 rational basis review. Thank you.
16 THE COURT: All right. Thank you, Mr. Oakley, very
17 much. Mr. Nimocks.
18 MR. NIMOCKS: Good morning, Judge Allen. May it
19 please the court, again my name is Austin Nimocks, and I have
20 the privilege of representing Michelle McQuigg, the Clerk of
21 Prince William County.
22 Your Honor, until very recently it was an accepted
23 truth for almost anyone who ever lived in any society in
24 which marriage existed that there could only be marriages
25 between participants of a different sex. These are the words
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1 of the New York high court just a few years ago in looking at
2 a case virtually identical to this one. And that notion was
3 affirmed by the Supreme Court this last June when the Supreme
4 Court in the Winter case uttered that it seems fair to
5 conclude that until recent years
6 THE COURT: Mr. Nimocks.
7 MR. NIMOCKS: Yes, ma'am.
8 THE COURT: I don't mean to interrupt you but can
9 you lower your voice. I can hear you just fine.
10 MR. NIMOCKS: I will be happy to.
11 THE COURT: All right.
12 MR. NIMOCKS: Until recent years many citizens had
13 not even considered the possibility that two persons of the
14 same sex may aspire to occupy the same status and dignity of
15 that of a man and woman in lawful marriage.
16 Your Honor, I believe it is against this backdrop
17 that this case and the extreme novelty of same-sex marriage
18 must be considered. And this court should identify I believe
19 a clear starting point for the question before the court.
20 And I believe that the starting point is this, that we have
21 marriage laws in society because we have children, not
22 because we have adults.
23 The fact that marriage laws are contingent upon age
24 and consanguinity restrictions underscores the fact that we
25 have marriage laws because we have children, and it harkens
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1 to its essentially procreated dynamic central to marriage
2 from the foundation of time. This is why the Supreme Court
3 multiple times has said that marriage and procreation are
4 fundamental to the very existence and survival of the race.
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5 And beyond the Supreme Court when the court looks at
6 renowned jurists or philosophers like Joseph Story or
7 Montesquieu or even the ancient philosopher Bertrand Russell
8 who said that but for children there would be no need of any
9 institution concerned with sex. The starting point for this
10 law and the laws of Virginia since the 1600s regarding
11 marriage is that we have marriage laws because we have
12 children.
13 And just last year the Virginia Supreme Court
14 reaffirmed these abiding principles in the State of Virginia
15 in a case L.F. versus Breit, B R E I T, at 285 Virginia 163.
16 Where the Virginia Supreme Court just a year ago said that we
17 have consistently recognized that the Commonwealth has a
18 significant interest in encouraging the institution of
19 marriage. The high court of Virginia went on to say that a
20 governmental policy that encourages children to be born into
21 families with married parents is legitimate. In fact it is
22 laudable and to be encouraged. And they concluded by saying
23 we reject the notion that children have a purported right or
24 interest in not having a father. The issue in the case was
25 whether a father had parental rights. To the contrary
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1 Virginia case law makes clear that it is in a child's best
2 interest to have the support and involvement of both a mother
3 and a father. That is the public policy that has animated
4 the marriage laws in Virginia now for over 400 years and it
5 has not changed. It has not changed because every child has
6 a mother and a father. And we know from statistics produced
7 by the federal government that -- I think it's around
8 99 percent, from the most recent statistics produced that by
9 the CDC, that 99 percent of the children born in this country
10 are the products of sex between men and woman. Meaning that
11 99 percent of the children who are born have a known mother
12 and father that can be pointed to and identified in that
13 regard.
14 That is the starting point for the law and the
15 analysis before this court. Therefore, Judge, it is
16 immanently reasonable and constitutional for Virginians to
17 accept for now hundreds of years that it is better-- all
18 other things being equal, for children to grow up with both a
19 mother and a father. That is something that is not just
20 reasonably conceived by a legislature or by the people of
21 Virginia, but in fact as a proven track record.
22 Intuition and experience suggest that a child
23 benefits from having before his or her eyes every day living
24 models of what both a man and a woman are like. Again
25 quoting the New York high court.
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1 Your Honor, marriage is not constitutional because
2 it's ancient. It's ancient because it is rational and it is
3 animated the laws in this country and in this Commonwealth
4 since the very beginning. Obviously there are exceptions to
5 the rule. Things happen. People die. Life goes on, and not
6 every child will be raised by a mother and a father. But all
7 other things being equal that ideal is not unreasonable for
8 the people to strive for.
9 More importantly celebrating the diversity of the
10 sexes is a legitimate government action, which is exactly
11 what marriage does. Recognizing that every child has a
12 mother and a father, encouraging through those marriage laws,
13 the mom and dad responsible for children to come together,
14 and in enduring union to raise the children that they are
15 responsible for bringing into the world, is imminently
16 reasonable and celebrates the diversity of the sexes, men and
17 women, recognizing that mother's and fathers are uniquely
18 different and brings something different to the table of
19 parenting and our communities.
20 That's why the Supreme Court of the United States I
21 believe has said multiple times that the sexes are not
22 fungible. A community made up exclusively of one is
23 different from a community composed of both. The subtle
24 interplay of one on the other is among the imponderables.
25 Inherent differences between men and women we have come to
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1 appreciate remain cause for celebration. And that is exactly
2 what the marriage laws of Virginia do. They celebrate the
3 diversity of the sexes, the diversity of men and women, and
4 of mothers and fathers and their importance to children.
5 What the plaintiffs are asking this court to do is
6 to strike down the marriage laws that have existed now for
7 400 years, rationally so, and make a policy in this state
8 that mothers and fathers don't matter. That it is
9 unreasonable as a matter of constitutional principle for the
10 citizens of Virginia to enact a policy that says we believe
11 that mothers and fathers are important and are important
12 components of the family and necessary for children. The
13 citizens of Virginia have consciously chosen for hundreds of
14 years to celebrate the unique complementary and fundamental
15 differences between men and women, and we have elected to
16 celebrate in our most fundamental institution the diversity
17 of the human race, moms --excuse me, men and women.
18 While times have changed over the last several
19 hundred years, Your Honor, what cannot be disputed is that
20 humanity as a gender species has not changed. How children
21 come into the world by and large has not changed. The fact
22 that children have moms and dads has not changed and that is
23 why it is imminently rational for the citizens of Virginia to
24 continue to believe in and uphold marriages to union of
25 one man and one woman. Certainly they could change their
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1 minds if they chose to do so. That's why we have
2 legislatures and that's why we have ballot boxes. And they
3 would be entitled, as the Supreme Court has recently
4 recognized, to make a change if they so chose in that
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5 definition as many states have chosen to do so, but it is not
6 unconstitutional for them to choose not to make that change
7 and to continue to uphold marriage.
8 Your Honor, it is that celebration of the diversity
9 of the sexes I believe that animated our nation's first
10 female Supreme Court Justice Sandra Day O'Connor to conclude
11 in the Lawrence case, talking about the impact of that
12 decision, that there are "other reasons that exist to promote
13 the institution of marriage beyond moral disapproval of an
14 excluded group. "
15 In that very case, Lawrence against Texas, upon
16 which the plaintiffs rely heavily, the court expressly
17 excluded the application or potential application of that
18 holding to marriage laws saying that it does not apply to any
19 relationship that the government must be compelled to
20 recognize with regard to same-sex couples. Lawrence ergo did
21 not create a change in the legal principle surrounding Baker
22 versus Nelson.
23 And that's the point I want to go to now is Baker
24 versus Nelson. That decision controls I believe the question
25 before this court. I believe the question before this court
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1 is very simple, Your Honor, in looking at Baker versus Nelson
2 because Baker court addressed the very questions before this
3 court, whether there is a fundamental right to same-sex
4 marriage, whether same-sex couples have a right under the
5 equal protection clause of the Fourteenth Amendment to
6 receive a marriage license issued by a court.
7 And the Supreme Court has made it very clear that
8 with regard to summary dismissals like Baker versus Nelson
9 and they said this in Hicks versus Miranda, that it is the
10 Supreme Court and only the Supreme Court that can release
11 lower courts from the precedential value of a summary
12 affirmance of dismissal like Baker versus Nelson.
13 I quote from Hicks, that the district court should
14 have followed the second circuit's advice that the lower
15 courts are bound by summary decisions by this Court until
16 such time as this court informs them that they are not. It
17 is the sole prerogative of the Supreme Court and no other
18 court to indicate when its summary affirmances or dismissals
19 are no longer binding. The Supreme Court to this point has
20 not.
21 And that's why I believe multiple federal courts
22 around the country continue to uphold and adhere to Baker.
23 The First Circuit in looking at the case that went through
24 the First Circuit against the Defense of Marriage Act
25 expressly affirmed that Baker does operate to limit the
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1 arguments to ones that do not presume or rest on a
2 constitutional right to same-sex marriage, acknowledging
3 Baker's precedential value. That was in Massachusetts versus
4 HHS in 2012.
5 The Second Circuit exactly or made a similar finding
6 talking about the question on section three of DOMA. It's
7 sufficiently distinct from the question in Baker as to the
8 state's rights with regard to marriage laws.
9 The District Court of Connecticut, the Northern
10 District of California, the Central District of California,
11 the District of Hawaii, and the District of Nevada are all
12 cases that have used recently Baker versus Nelson I believe
13 is precedent for closing the question that the plaintiffs ask
14 this court to decide. I believe that this court's job is
15 much easier than the states -- excuse me, than the plaintiffs
16 would like it to be as far as that concern.
17 Looking beyond Baker though at the fundamental
18 rights question that has been raised by Mr. Olson, Your
19 Honor, we respectfully disagree that there is in fact a
20 fundamental right here to same-sex marriage.
21 Fundamental rights as this court is well aware are
22 those that are deeply rooted in this country's history and
23 traditions. There can be no argument that marriage between
24 same-sex couples is deeply rooted in this country's history
25 and tradition. Every single case that the United States
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1 Supreme Court has issued and that Mr. Olson referenced or
2 alluded to in his argument about marriage is a case involving
3 opposite-sex couples. Marriage is as it is always been
4 understood between one man and one woman.
5 The Glucksberg case has instructed that when we are
6 talking about fundamental rights, the rights need to be
7 carefully described. And the Supreme Court went on to say
8 that even though its fundamental rights are due process
9 jurisprudence is unable to be specific as to every single
10 thing, concrete examples are things that they have relied on
11 to animate what is and what is not a fundamental right and
12 the concrete examples were used.
13 There are no concrete examples of same-sex marriage
14 in the history of this country or elsewhere in the world that
15 can be used to demonstrate that it is in fact deeply rooted
16 in the history and traditions of this country.
17 And then I think finally the Windsor case from last
18 June when the Supreme Court acknowledged that it was only
19 until recent years that citizens even considered the
20 possibility of same-sex marriage forecloses any reasonable
21 argument that same-sex marriage is part of the fundamental
22 right to marriage that is deeply rooted. When the Supreme
23 Court itself says it's only in recent years that we have
24 actually started to have this argument and this debate.
25 So I don't believe there is any question, Your
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Honor, that there is a fundamental or that there is not a
fundamental eight to marriage.
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Notwithstanding all of that, I think that this court
can simply look at Baker against Nelson the same way that
other federal courts around the country, district courts and
circuit courts alike, and that is dispositive of the issue,
both the fundamental right question and the equal protection
question. I don't think that the argument that heightened
scrutiny applies, is applicable here.
If you look at cases involving classifications
regarding sexual orientation, the Romer case for example, the
Lawrence case, both of those cases are rational basis for
this.
The Fourth Circuit acknowledged in the Veney case
that the Romer case in fact was a rational basis case. And
the Fourth Circuit decision in Veney I think does foreclose
the issue of heightened scrutiny as it pertains to this
court. That the only basis that could be or standard of
review for this court in looking at this question would be
20 rational basis. And so as far as rational basis is
21 concerned, as this court is well aware, anything that can be
22 conceived as rationally supporting or animating the marriage
23 laws. And as I've already articulated, we believe those
24 exist.
25 Marriage laws have never required people to intend
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1 to procreate to enter into marriage. They have never
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required that a proclamation of procreation or continued
procreation.
Again, Judge, marriage laws exist because we have
children. It is when people come together, if they have
children, if they have children, marriage exists to provide
structure and stability for the benefit of the child, giving
them every opportunity possible to know, to be loved by and
raised by a mom and dad who are responsible for their
existence. That is why. And when we are drawing classes as
it pertains to equal protection, the government is not
required to draw classes with a razor-like precision. Over
inclusiveness or under inclusiveness does not damage, fatally
damage the classification in this case, and so the
classification is very simple. It is potentially procreative
couples versus all other non potentially procreative couples.
That is eminently rational to do. It is rooted in many years
of practice proven true. And when we know that children
again come into this world because of sex between men and
women, the state is eminently reasonable in trying to tie
those children as best it can or encourage without being
coercive those children to enter into a union with a loving
mom and dad, specifically the mom and dad that are
responsible for bringing them into this world.
Beyond the Veney case, Your Honor, as far as the
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1 question of heightened scrutiny is concerned because there is
2 no fundamental right -- obviously we don't believe heightened
3 scrutiny applies, but even looking at the prongs of
4 heightened scrutiny, the plaintiffs are unable we believe to
5 satisfy any of the prongs or requirements of heightened
6 scrutiny.
7 The plaintiffs in their briefing don't even really
8 address I think substantively the political power question.
9 They don't even address the standard, the appropriate
10 standard for whether there is political power is whether
11 there is the ability to catch the attention of the law
12 makers.
13 And I don't mean to make light of the circumstance,
14 but the fact that the Attorney General is taking their side
15 of the case is immanent evidence, not only the ability to
16 catch the attention of the lawmakers but to have the
17 lawmakers arguing on their behalf in court.
18 The plaintiffs, gays and lesbians not only in
19 Virginia but around the country have immense political power
20 and the ability to have their agenda, the issues about which
21 they are concerned, carefully considered by the lawmakers,
22 whether they be the people themselves or elected
23 representatives, and have been able to do so in multiple
24 instances.
25 And so the other prongs, the contribution to
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1 society, again the plaintiffs are same-sex couples are not
2 naturally procreating. As counsel previously mentioned, they
3 cannot accidentally create children.
4 I know that there was in the briefing some
5 statistics showing that I think it was half of the
6 pregnancies were unintended pregnancies or 70 percent between
7 unwed couples, that is a real life general dynamic that
8 happens, accidental procreation, and that is a legitimate
9 governmental concern. It does not apply with regard to
10 same-sex couples. Every procreative dynamics that would
11 happen with the same-sex couple is very intentional and very
12 planned.
13 As it pertains to marriage the plaintiffs have
14 brought forth no evidence whatsoever that there is a history
15 of discrimination against gays and lesbians as pertains to
16 the history of Virginia's marriage laws. They can bring
17 forth no evidence that when these marriage laws were first
18 brought into existence that they were done with any intent or
19 desire to harm gays and lesbians.
20 That in all the changes that have occurred over the
21 hundreds of years of Virginia, that they were done so, and
22 then they hand pick a couple of quotes from a couple of
23 public officials in recent years and intend to impute that to
24 the $1.3 million Virginians that voted in 2006 to
25 constitutionalize marriage, which I think is important to
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1 note, did not substantively change, Your Honor, the law in
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the state of Virginia. It had remained one man one man.
The citizens of Virginia are entitled as they do
with all kinds of constitutional amendments to ingrain
bedrock principles and remove them from the hands of the
judiciary into their constitution, which is exactly what they
did in 2006. And so as it pertains to marriage, and I'm
talking about the full history of marriage in the State of
Virginia, and the fact that it has been unchanged throughout
that history, the plaintiffs can prove and bring forth no
history of discrimination.
And as far as the ability is concerned, Judge, it is
a consensus within the scientific community that there is no
clear answer as to the nature of -- the pure nature etiology
of sexual orientation. It is not in the record here but it
was in the record in the Prop 8 case of which we were a part.
That even the experts brought by the plaintiffs were unable
to indicate exactly the origins of sexual orientation and the
19 standard, Your Honor, is an accidental birth. There is no
20 doubt in the record whatsoever but again I don't think this
21 court has to go through that analysis. Not only is there not
22 enough evidence for the court to look at but I think the
23 Fourth Circuit precedent in Rainey is very clear and is
24 dispositive of that question before this court.
25 And finally, Judge, I will address the -- very
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1 briefly the question with regard to the preliminary
2 injunction.
3 Obviously Clerk McQuigg believes that because the
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4 plaintiffs do not have a likelihood of success on the merits,
5 given the arguments that we've made that there should be no
6 injunctive relief, but we do concur with the solicitor
7 general and the clerk from Norfolk that if this court were to
8 issue injunctive relief, that it should stay the injunctive
9 relief in light of what the Supreme Court did with the Tenth
10 Circuit and the Northern District of Oklahoma case.
11 Thank you, Your Honor.
THE COURT: All right. Thank you.
Anything else from plaintiffs?
12
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14 MR. OLSON: If it please the court, the Solicitor
15 General would go first and I'll finish.
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THE
MR.
MR.
THE
MR.
COURT:
OLSON:
RAFAEL:
COURT:
RAFAEL:
That's fine.
Thank you.
Thank you, Your Honor.
You're welcome.
I will start with the Glucksberg case
21 that Mr. Nimocks cited. That's the case that tells us there
22 was no fundamental right to assisted suicide. We are talking
23 here about the fundamental right to marriage, which is
24 clearly a fundamental right, as Mr. Olson said recognized by
25 the Supreme Court 14 times.
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1 The other point I think is worth noting on this is
2 you recall our citation to the Casey case, Planned Parenthood
3 versus Casey. It's at page nine of our memorandum. And the
4 court did something in that case that is really quite
5 notable. It said -- it was dealing with this notion of
6 defining the right at such a specific level that you define
7 it away. Like the Bowers versus Hardwick case said there is
8 no fundamental right to sodomy. When you define it at that
9 level, it's the wrong way to approach it.
10 The court in Casey said it's tempting to suppose
11 that the due process clause protects only those practices
12 defined at the most specific level they were protected
13 against governmental appearance when the Fourteenth Amendment
14 was ratified. See Michael H., citing the plurality decision
15 by the court in 1989, Michael H versus Gerald D, an opinion
16 of Scalia, J, footnote 6. I'm going to come back to that.
17 The court goes on to say, "But such a view will be
18 inconsistent with our law. Marriage is mentioned nowhere in
19 the Bill of Rights and interracial marriage was illegal in
20 most states in the 19th Century, but the Court was no doubt
21 correct in finding it to be an aspect of liberty protected
22 COURT REPORTER: I'm sorry, sir. Would you slow
23 down please.
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MR. RAFAEL: Yes.
COURT REPORTER: Thank you.
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THE COURT: Thank you, Tami. 1
2 MR. RAFAEL: -- protected against state interference
3 by the substantive component of the due process clause in
4 Loving.
5 Now the reference to Michael H -- when you go back
6 and look at that footnote 6, it was joined Scalia wrote
7 that opinion. It was joined that footnote six was joined
8 only by Chief Justice Rehnquist, and that's where he lead out
9 this theory that you have to look at the right at the most
10 narrow level that you can define it.
11 The majority -- majority of the Supreme Court
12 rejected that approach in Casey and that is still the law of
13 the land. That's why we don't talk about the right to
14 interracial marriage or the rights of prison inmates to
15 marry. We talk about the right to marriage and that is
16 clearly a fundamental right.
17 Counsel for Clerk Schaefer argues that you should be
18 persuaded by the Ninth Circuit's approach that looked at --
19 tried to narrow the ruling in California involving Prop 8 to
20 a situation where the state was taking away a right that had
21 previously been granted. That is not a distinction that
22 makes a difference. As the courts in Oklahoma and Utah said,
23 the denying the right to marry to same-sex couples even when
24 they didn't have it before violates the constitution.
25 In this regard I would point the court to a
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1 statute -- I don't know that the plaintiffs cited it. My
2 predecessor cited this to the court in their summary judgment
3 papers. House Joint Resolution 187 from 2004. This was the
4 same year that the General Assembly enacted the law banning
5 civil unions. House Joint Resolution 187 was the one that
6 asked the US Congress to enact a constitutional amendment
7 barring same-sex marriage.
8 I want to read to the court three of the recitals
9 from that. The first one was -- of one of them was this.
10 Whereas the unique legal status of marriage in the
11 Commonwealth is in danger from constitutional challenges to
12 these state marriage laws and the Federal Defense of Marriage
13 Act which may succeed in light of the recent decisions on
14 equal protection from the United States Supreme Court.
15 And it goes on then to talk about the successful
16 legal challenges that were brought in Hawaii, Alaska, Vermont
17 and most recently in Massachusetts. Then it says a federal
18 constitutional amendment is the only way to protect the
19 institution of marriage and resolve the controversy created
20 by these recent decisions by returning the issue to its
21 proper form in state legislatures. That's 2004. One year
22 after the court decides Lawrence and Justice Scalia predicts
23 there is no way to stop same-sex marriage now.
24 So the General Assembly knew exactly what it was
25 doing when it enacted the ban on same-sex marriage in
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1 Virginia's law in 2004 and again in 2005 and 2006. That -- I
2 think that that is probably some of the best evidence that
3 the ban here was designed to prevent a court from recognizing
4 that there is a right to marriage that applies to same-sex
5 couples.
6 Let me turn to the heightened scrutiny issue based
7 on sexual orientation. We agree with Mr. Olson's position on
8 this. It's not just his position, it's the position that the
9 United States has expressed in its briefing in the Windsor
10 case, which we cited in our papers.
11 I don't think it's fair or more accurate to say that
12 as my colleagues do that Romer and the decision in Lawrence
13 applied only rational basis review. I don't think you can
14 really extract that from this. I think what the court was
15 saying was that even if rational basis review applied, the
16 laws at issue there couldn't pass muster.
17 But the oral argument in the Hollingsworth case was
18 very telling. And I don't know if you had a chance to ever
19 listen to that or read it, but at page 14 of the transcript,
20 Justice Sotomayor asks Charles Cooper, the lawyer defending
21 Prop 8, if he could identify any context outside of marriage
22 where the government would have a rational basis for denying
23 homosexuals any benefits or imposing any burden on them. He
24 couldn't think of a single instance where the state could do
25 that. And she followed up and said well if that's the case
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1 isn't it reasonable to be suspicions of laws that burden
2 homosexuals. And I don't think he really gave an answer to
3 that.
4 We submit that the United States was correct in
5 Windsor. That it is very suspicious when the state
6 discriminates against people based on their sexual
7 orientation. There is an undisputed history of
8 discrimination against homosexuals in this country and
9 therefore we should be inherently distrustful of laws that
10 discriminate.
11 Let me turn to a subject that you haven't heard a
12 lot about. The issue of whether this is gender
13 discrimination. And we think it is as well. Because it's
14 undisputed -- and I should start by saying it's undisputed
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15 that gender discrimination is subject to hyper scrutiny. And
16 I think that there is a very compelling argument that
17 same-sex marriage bans constitute gender discrimination
18 because the test for who you can marry is based on the gender
19 of the opposite person.
20 It's the same argument -- and to me this is the
21 clincher. This is the same argument Virginia made to defend
22 the ban on interracial marriage in Loving. The Supreme Court
23 characterized Virginia's position as this: That the
24 interracial marriage ban did not discriminate on the basis of
25 race "because its miscegenation statutes punish equally both
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1 the white and the negro participants in interracial
2 marriage." That's the argument that was made in Loving.
3 It's the same argument made here for why this is not gender
4 discrimination. The Supreme Court thought they rejected it
5 there. The same principle apply here. Virginia's ban on
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6 same sex marriage prohibits people from marrying based on the
7 gender of the other person.
8 I don't believe my colleagues have done a very good
9 job explaining the rational basis for Virginia's law. The
10 fundamental flaw is that allowing same-sex couples to marry
11 is not going to make heterosexual couples less likely to
12 marry and have children. That's the Achilles' heel in the
13 argument and you have not heard any good answer to that. No
14 answer.
15 I also think, Your Honor, that Clerk McQuigg in her
16 papers have conceded this point. If you take a look at
17 Document 94 at page 5, Clerk McQuigg says that same-sex
18 couples "neither advance nor threaten society's interest in
19 responsible natural procreation." That's the point.
20 Allowing same-sex couples to marry is not going to threaten
21 heterosexual couples and prevent them from getting married
22 and raising children.
23 Mr. Nimocks also cited the Virginia Supreme Court
24 decision in L.F. versus Breit. He said it's laudable for
25 children to be born into families with the mother and a
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1 father, but that ignores the fact not only that allowing same
2 sex marriages and is going to prevent or discourage that from
3 happening but that there are thousands of children in the
4 Commonwealth and tens of thousands nationwide who are being
5 raised by same-sex couples, and telling them that their
6 parents can't be married is not only insulting but it treats
7 them as second-class citizens just like Justice Kennedy
8 described in the Windsor case.
9 A couple of points on Baker versus Nelson.
10 Mr. Nimocks quoted one of the sentences from Hicks versus
11 Miranda talking about the jurisprudential -- the precedential
12 value of summary affirmances. And he -- we quoted a sentence
13 before the one he read. He didn't read the one which we
14 quote, which is unless and until the Supreme Court should
15 instruct otherwise, inferior courts had best adhere to the
16 view that, if the court has branded a question as
17 unsubstantial, it remains so except when doctrinal
18 developments indicate otherwise.
19 That's the hook for looking at whether there have
20 been subsequent doctrinal developments that have been changed
21 the law. And there clearly have been. And at the end of the
22 day the question the court has to ask about Baker versus
23 Nelson is is it an unsubstantial question whether bans on
24 same-sex marriage are unconstitutional. You cannot stand up
25 in a courtroom now and say that that is true. You cannot say
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1 it with a straight face. Of course it's a substantial
2 question. There is no way you can say Baker versus Nelson
3 controls on that.
4 Counsel for Clerk Schaefer argues that because we
5 are making progress society seems to be moving towards
6 supporting same-sex marriage, just wait for the General
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7 Assembly to act. We cited, Your Honor, the opinion by the US
8 Supreme Court in the Barnett case where the court talks about
9 why courts can't wait for legislatures to act. The very
10 purpose of the Bill of Rights was to withdraw certain
11 subjects from the vicissitudes of political controversy. To
12 place them beyond the reach of majority as officials and to
13 establish them as legal principles to be applied by the
14 courts. Ones right to life, liberty and property, to free
15 speech, free press, freedom of worship and assembly and other
16 fundamental rights may not be submitted to vote. They depend
17 on the outcome of no elections. And that's true today as
18 much as it was true in 1943 when the Supreme Court wrote
19 those words.
20 You also heard an argument that gays and lesbians
21 are not politically powerless. Look, they have the Attorney
22 General on their side now. But that's focusing on the wrong
23 thing. The issue that that goes to is whether we should be
24 suspicious of laws that discriminate. We have an
25 African-American president. Does that mean we no longer
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1 apply strict scrutiny the laws that discriminate on the basis
2 of race? Of course not. We apply strict scrutiny the laws
3 that discriminated on the basis of race, and heightened
4 scrutiny the laws that discriminate on the basis of gender
5 because we don't trust it when the legislature uses those
6 types of classifications. It doesn't matter how powerful
7 women or African-Americans have become. We apply heightened
8 scrutiny and strict scrutiny because we don't trust
9 legislative judgment based on those classifications and that
10 rational applies just as equally to laws that discriminate on
11 the basis of sexual orientation.
12 Mr. Nimocks said that it's been accepted-- it's
13 been an accepted truth until only a few years ago that
14 marriage was between men and women. Well the same argument
15 was made in justice segregation in 1954 and to justify the
16 ban on interracial marriage and justify not allowing women in
17 the VMI. It had been an accepted truth in all of the
18 situations that not to permit those practices, and yet the
19 court in each case applied the overarching equality of right
20 principle to recognize that those practices were wrong.
21 Let me wind up by saying that we think that Justice
22 Kennedy got it right writing for the majority in the Lawrence
23 case. That the constitutional framers knew the times can
24 blind us to certain truths and later generations can see that
25 laws once thought necessary and proper in fact only serve to
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1 oppress. That's exactly what's going on here.
2 And he said something simpler in a case that the
3 plaintiffs cite -- the Clerk McQuigg cites, the Board of
4 Trustees versus Garrett from 2001. He said there when he was
5 talking about disability discrimination in that case, he said
6 knowledge of our own human instincts, he said, should teach
7 us that some things might at first seem unsettling to us
8 unless we are guided by the better angels of our nature.
9 The equality of right principle here is an ancient
10 one. It hasn't changed, and it applies here just as it did
11 in cases involving segregation, miscegenation and gender
12 discrimination.
13 Thank you.
15
16
17
MR. OLSON: Thank you, Your Honor.
THE COURT: You're welcome.
MR. OLSON: Very patient with us.
18 Let me start by saying something that the Supreme
19 Court Justice Ginsburg said in the VMI case, US versus
20 Virginia. The history of our country is the story of the
21 extension of constitutional rights to people once ignored or
22 excluded. That is what we are talking about here today.
23 Marriage is a fundamental right. Fourteen times the
24 Supreme Court has said that and not once did the Supreme
25 Court say that we are talking about marriage between a man
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1 and a woman. Yes, those cases involved persons of different
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gender, but when the court talked about what was fundamental
about that right, the court talked about the right to
privacy, to liberty association.
The Supreme Court's decision in MLB versus SLJ,
1996, said it this way, choices about marriage, family life,
and the upbringing of children are among associational rights
this court has ranked as of basic importance in our society,
sheltered by the Fourteenth Amendment against the state's
unwarranted usurpation, disregard, or disrespect.
The court goes on to say, the Supreme Court has said
that in connection with marriage, procreation, raising
children. The court has also said the same thing in the
Lawrence case about homosexuals. It said the same thing
about abortion in Roe versus Wade and Casey. It said the
same thing about contraception in other cases of the Supreme
Court. It said the same thing about divorce. Marriage is
not all about children. It is about freedom. It is about
19 liberty.
20 And the testimony in the Perry case in California,
21 the witness who's an expert, renowned expert on marriage,
22 talked about the fact that slaves were not allowed to be
23 married until the time of the emancipation proclamation and
24 at the time of that doctrine, the time of that pronouncement
25 by President Lincoln, slaves flocked to get married because
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1 it was a sign that they were free, that they had liberty.
2 That is what we are talking about here today. People may
3 choose to procreate and by the way same-sex couples
4 procreate as well. We know that.
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5 So we are talking about the right of people to come
6 together, to bond with one another, to become a part of our
7 society, to associate with one another freely, to form a
8 family, to be accepted.
9 And what the Supreme Court said just last June is
10 that laws that prohibited people from getting married or
11 prohibited the recognition of their marriage, that's what
12 this does, that's what this constitutional provision does,
13 said the marriage relationship won't be recognized. It will
14 be void. Served to demean, put people in a second-class
15 status, put them in second-tier, tell them that their
16 relationships, that same relationships that slaves flocked to
17 become a part of, is unequal. That relationship that the
18 plaintiffs who are sitting in the back of this courtroom wish
19 to have for themselves and their children is no good. It's
20 invalid. It's disrespected. That is what the United States
21 Supreme Court said a few months ago.
22 What the Romer case said is, Justice Kennedy,
23 one century ago, the first Justice Harlan in his dissent in
24 Plessy versus Ferguson, admonished this court that the
25 constitution neither knows nor tolerates classes among
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1 citizens. That's what we are talking about today.
2 And Justice Scalia in the Lawrence versus Texas
3 case, said at the end of its opinion -- he is dissenting. At
4 the end of his opinion the court says that the present case
5 does not involve whether the government must give formal
6 recognition to any relationship that homosexuals seek to
7 enter such as marriage. He said do not believe it. He said
8 personal decisions -- this is what the court held in that
9 case. This is Justice Scalia. He was as close as you can
10 get. He was unhappy with it when he said personal decisions
11 relating to marriage, procreation, contraception, family
12 relationships, child rearing and education and persons in a
13 homosexual relationship may seek autonomy for these purposes
14 just as heterosexual persons do.
15 And he said the same thing again last June. He said
16 in my opinion the view that this court will take of state
17 prohibition of same sex marriage is indicated beyond mistaken
18 by today's opinion. And he looked at the purpose and affect
19 of the Defense of Marriage Act. And he said the purpose and
20 the affect is to disregard, demean and disparage people in a
21 homosexual relationship.
22 Should this case be examined under strict scrutiny
23 because this is a suspect class? Mr. Nimocks said gays and
24 lesbians don't fit any one of the various categories that the
25 court has talked about with respect to suspect class. Well
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1 it does fit fundamental right to marriage. That's what the
2 Zablocki said. So you have to look at this with strict
scrutiny because of the due process law requires it because
it's a fundamental right to marriage. It's not fundamental
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3
4
5
6
7
8
9
right to same sex marriage. It's not a fundamental right to
10
11
interracial marriage. It's not a fundamental right to any of
other things. It's a fundamental right to marriage. So
therefore you have to look at it very carefully.
And with respect to whether this is a suspect class
involved, Supreme Court has already decided that and this is
a class of our citizens. That's the Christian Legal Society.
12 That's the Windsor case. And with respect to the four
13 characterization tests that the Supreme Court has set out,
14 the history of discrimination. This country has got a
15 history of discrimination against gay and lesbian citizens.
16 In the Eisenhower administration, the President of the United
17 States issued an executive order that said if you were gay or
18 lesbian you could be fired from federal service. You could
19 not be an employee of the United States government if you
20 were gay. That's a history of discrimination.
21 And Judge Walker in the case in California, examined
22 the expert testimony with respect to that and issued
23 comprehensive findings with respect to history of
24 discrimination. In fact our opponents didn't even contest
25 that point in that case, and didn't contest it in the United
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1 States Supreme Court.
2 Immutable characteristics, Mr. Nimocks says there is
3 no conclusive evidence about that. Well he has missed of
4 what every psychiatrist and psychologist said in the Perry
5 case in California, the findings of the District Court and
6 the findings of court after court after that. This is a
7 characteristic that you don't choose. It affects who you
8 are. And the Supreme Court said that again in the Windsor
9 case last June.
10 With respect to political power, powerlessness,
11 Mr. Rafael already answered that. We don't change the care
12 that we scrutinize these laws with because someone gets
13 elected president of the United States, or someone gets an
14 Attorney General to come in and support them because of their
15 fundamental rights and because of the discrimination.
16 What the court is looking at there is people who
17 have been discriminated against because of their
18 characteristic often are the victims of discrimination by our
19 society, by the majority.
20 Our opponents say well let the voters decide, let
21 the legislature decide. The reason that we have Article III
22 to the Constitution, the reason we have an independent
23 judiciary, the reason we have a Bill of Rights, and the
24 reason we have a Fourteenth Amendment is because sometimes
25 the voters and the legislatures get it wrong. And when they
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1 do they often select for discrimination people who are in the
2 minority, who don't have the power to defend themselves. So
3 we have you. We have the judges of this federal government
4 to protect the minorities from that discrimination. So we
5 don't let the voters decide all the time because we have
6 discrimination and we continue to have it in this country.
7 As far as contributions to society, that's an
8 important part of the test. Gays and lesbians participate in
9 every way equally in society except where the law prevents
10 them from doing it. They can procreate the same way that
11 males and females can but they can procreate. They are
12 procreating all over the country.
13 Justice Kennedy noted during the oral argument in
14 the Perry case in the Supreme Court last March, what about
15 the 40,000 children in California that were a part of
16 same-sex households? Don't they need protection too?
17 Mr. Nimocks says it's all about children. Marriage isn't all
18 about children, but the constitution is all about children.
19 And to protect the rights of our citizens, including their
20 children, to equality and the respect when they are growing
21 up in families of gay and lesbian citizens, they are entitled
22 to be able to talk about their two moms or two dads or their
23 family in the same way that everybody else does.
24 Now I've been a Virginian for 30 some years and I'm
25 very, very proud of this state, and I'm proud of the fact
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1 that it's -- I can tell my grandchildren it's George
2 Washington and it's Thomas Jefferson and it's James Madison,
3 it's Patrick Henry, it's all those things that we learn about
4 Virginia.
5 As Mr. Rafael says Virginia has had it wrong from
6 time to time, egregiously wrong. And I submit it's wrong
7 now.
8 Mr. Nimocks said there is no history of
9 discrimination in Virginia with respect to gays and lesbians.
10 Look at page three and four and five of our brief, and you
11 have resolution after resolution after resolution in the
12 Virginia legislature talking about gays are -- the only
13 reason that they exist is so they can exploit children. It's
14 outrageous some of that history. Unfortunately, it is there.
15 And it's sadly a part of Virginia's history. And it's now
16 written into the constitution and laws of Virginia that gays
17 and lesbians cannot have relationships that the rest of us
18 can have. Their relationship even if it looks like marriage
19 is void in this state. It's tragic, and it's very, very sad
20 and we need to fix that. And I hope that you will.
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Thank you.
THE COURT: All right. Thank you.
Anything else from any of the parties on this side?
MR. BOIES: No, Your Honor, I think you have our
25 points from the brief.
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1 The only thing I would add is the preliminary
2 injunction point, one of the advantages is it can celebrate
3 the resolution of this and I think that is something that is
4 in everybody's interest.
6 And how about Defendant Rainey? Counsel, anything
7 additional, gentlemen.
8 MR. RAFAEL: No, Your Honor.
9 THE COURT: All right. And our last two defendants,
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anything additional?
MR. NIMOCKS : No, Judge.
THE COURT: All right. I would like to thank all
the parties for their briefing, your time and attention.
like to thank the parties that you represent as well. And
I'd
15 I'd also like to thank all of those that are in attendance.
16 And I'm going to take this matter under advisement and you
17 will be hearing from me soon.
18 Thank you.
19 (Hearing adjourned at 11:56 a.m.)
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CERTIFICATION
I certify that the foregoing is a correct transcript
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X ______ ______ x
Tamara Tichenor
X _ ___::2:!_/_:::6.!_/ :::_2 O::.:l::_c4:____x
Date
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Norfolk Division
Plaintiffs,
v.
Circuit Court,
Defendants;
and
MICHELE B. McQUIGG, in her official capacity
as Prince William County Clerk of Circuit Court,
Civil No. 2: 13cv395
We made a commitment to each other in our love and lives, and now had the legal
commitment, called marriage, to match. lsn '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 malter their race, no
molter their sex, no molter 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.
- Mildred Loving, "Loving for Al1"
1
1
Mildred Loving, Loving for All, Public Statement on the 40th Anniversary of Loving v. Virginia (June 12, 2007).
348
AMENDED OPINION AND ORDER
A spirited and controversial debate is underway regarding who may enjoy the right to
marry in the United States of America. America has pursued a journey to make and keep our
citizens free. This journey has never been easy, and at times has been painful and poignant. The
ultimate exercise of our freedom is choice. Our Declaration of Independence recognizes that "all
men" are created equal. Surely this means all of us. While ever-vigilant for the wisdom that can
come from the voices of our voting public, our courts have never long tolerated the perpetuation
of laws rooted in unlawful prejudice. One of the judiciary's noblest endeavors is to scrutinize
laws that emerge from such roots.
Before this Court are challenges to Virginia's legislated prohibition on same-sex
marriage. Plaintiffs assert that the restriction on their freedom to choose to marry the person
they love infringes on the rights to due process and equal protection guaranteed to them under
the Fourteenth Amendment of the United States Constitution. These challenges are well-taken.
I. BACKGROUND
A. PROCEDURAL HISTORY
Plaintiffs Timothy B. Bostic and Tony C. London are two men who have been unable to
obtain a marriage license to marry each other in Virginia because of Virginia's Marriage Laws.
2
On July 18, 2013, Mr. Bostic and Mr. London filed a Complaint pursuant to 42 U.S.C. 1983
against former Governor Robert F. McDonnell, former Attorney General Kenneth T. Cuccinelli,
and George E. Schaefer III in his official capacity as the Clerk of Court for Norfolk Circuit Court
(ECF No. I). This Complaint sought declaratory and injunctive relief regarding the treatment of
same-sex marriages in the Commonwealth of Virginia under the Virginia Constitution and the
'Unless otherwise noted, "Virginia's Marriage Laws" refer to Anicle I, Section IS-A of the Virginia Constitution,
the statutory provisions cited herein, and any other law relating to marriage within the Commonwealth of Virginia.
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Virginia Code. The Complaint also asked this Court to find Article I, Section I S-A of the
Virginia Constitution and Sections 20-45.2, 20-45.3 of the Virginia Code unconstitutional under
the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
On September 3, 2013, Mr. Bostic and Mr. London filed an Amended Complaint
dismissing the former Governor and the former Attorney General as defendants.
3
The Amended
Complaint added two plaintiffs, Carol Schall and Mary Townley. Plaintiffs Mr. Bostic, Mr.
London, Ms. Schall and Ms. Townley are herein collectively referred to as "Plaintiffs." One new
defendant was added in the Amended Complaint: Ms. Janet Rainey, in her official capacity as
State Registrar of Vital Records. Ms. Rainey and Mr. Schaefer are collectively referred to as
"Defendants."
The parties advanced cross motions seeking summary judgment (ECF Nos. 25, 38, 40),
and Plaintiffs also filed a Motion for Preliminary Injunction (ECF No. 27). These motions were
the subject of a hearing conducted before this Court on February 4, 2014.
Two motions for leave to file amici curiae briefs in support of Defendants' motions were
filed and granted. Additionally, Ms. Michele McQuigg ("Intervenor-Defendant") moved to
intervene as a defendant in her official capacity as Prince William County Clerk of Circuit Court,
and this was granted in part on January 21,2014.
On January 23,2014, Defendant Rainey, in conjunction with the Office of the Attorney
General, submitted a formal change in position, and relinquished her prior defense of Virginia's
Marriage Laws. Intervenor-Defendant was granted leave to adopt Ms. Rainey's prior motion and
briefs in support of that motion.
3
After those parties were dismissed as defendants, then-pending motions to dismiss from those parties were
dismissed as moot.
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Accordingly, for the purposes of analyzing the arguments presented in this matter, the
Plaintiffs and Ms. Rainey are hereinafter referred to as the "Opponents" of Virginia's Marriage
Laws, and Defendant Schaefer, Intervenor-Defendant, and the amici are hereinafter referred to as
the "Proponents" of Virginia's Marriage Laws. Where necessary for the following analysis, this
Opinion and Order will identify the individual parties and their arguments.
B. FACTS
I. Plaintiffs Timothy B. Bostic and Tony London
Plaintiffs Timothy B. Bostic and Tony C. London live in Norfolk, Virginia, where they
own a shared home. Mr. Bostic is an Assistant Professor of English Education in the Department
of English at Old Dominion University in Norfolk, Virginia. He teaches English Education to
undergraduate students.
Mr. London is a veteran of the United States Navy. He also worked as a real estate agent
in Virginia for sixteen years.
Mr. Bostic and Mr. London have enjoyed a long-term, committed relationship with each
other since 1989, and have lived together continuously in Virginia for over twenty years. They
desire to marry each other, publicly commit themselves to one another, participate in a State-
sanctioned celebration of their relationship, and undertake the solemn rights and responsibilities
that Virginia's Marriage Laws confer presently upon other individuals who marry.
On July I, 2013, Mr. Bostic and Mr. London applied for a marriage license from the
Clerk for the Circuit Court for the City of Norfolk. They completed the application for a
marriage license and affirmed that they are over eighteen years of age and are unrelated. Mr.
Bostic and Mr. London meet all of the legal requirements for marriage in Virginia except for the
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fact that they are the same gender. Va. Code 20-38.1, 20-45.1 (2014). Their application for a
marriage license was denied by the Clerk of the Circuit Court for the City of Norfolk.
2. Plaintiffs Carol Shall and Marv Townley
Plaintiffs Carol Schall and Mary Townley live in Chesterfield County, Virginia, with
their fifteen-year-old daughter, E. S.-T. Ms. Schall is an Assistant Professor in the School of
Education at Virginia Commonwealth University ("VCU") in Richmond, Virginia. She
specializes in research on teaching autistic children.
Ms. Townley is the Supervisor of Transition at Health Diagnostic Laboratory, Inc.
("HDL"). She trains individuals with significant disabilities so that they may work at HDL.
Ms. Townley and Ms. Schall have enjoyed a committed relationship since 1985. They
have lived together continuously in Virginia for almost thirty years.
In 2008, Ms. Schall and Ms. Townley were legally married in California. They obtained
a marriage license in California because the laws of Virginia did not permit them to do so in their
home state.
Ms. Schall and Ms. Townley meet the legal requirements to have their marriage
recognized in Virginia, except that they are the same gender. See id. 20-38.1, 20-45.2, 20-
45.3 (2014). Because the Commonwealth will not recognize their legal California marriage, Ms.
Schall and Ms. Townley face legal and practical challenges that do not burden other married
couples in Virginia.
Ms. Townley gave birth to the couple's daughter, E. S.-T., in 1998. During her
pregnancy, she was admitted to the emergency room at VCU's Medical Center due to
complications that left her unable to speak. Ms. Schall was denied access to Ms. Townley, and
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could obtain no information about Ms. Townley's condition, for several hours because she is not
recognized as Ms. Townley's spouse under Virginia law. See id. 54.1-2986 (2014).
Since E. S.-T.'s birth, Ms. Schall has yearned to adopt her. Virginia law does not permit
second-parent adoption unless the parents are married. Because Ms. Schall is not considered to
be Ms. Townley's spouse, Ms. Schall is deprived of the opportunity and privilege of doing so.
/d. 63.2-1201,63.2-1202 (2014).
Ms. Schall and Ms. Townley also incurred significant expenses to retain an estate
planning attorney for necessary assistance in petitioning a court to grant Ms. Schall full joint
legal and physical custody of E. S.-T. Although their petition was granted, Ms. Schall remains
unable to legally adopt E. S.-T.
Despite being deprived of the opportunity to participate in a legal adoption of her
daughter, Ms. Schall is a loving parent to E. S.-T., just as Ms. Townley is. The family lives
together in one household, and both parents provide E. S.-T. with love, support, discipline,
protection and structure.
Ms. Schall and Ms. Townley cannot obtain a Virginia marriage license or birth certificate
for their daughter listing them both as her parents. !d. 20-45.2, 32.1-261 (2014).
In April2012, Ms. Schall and Ms. Townley sought to renew E. S.-T.'s passport, a process
that requests the consent of both parents. When Ms. Schall and Ms. Townley presented the
passport renewal forms on behalf of their daughter, a civil servant at a United States Post Office
in Virginia told Ms. Schall that "You're nobody, you don't matter." Schall Decl. para. 17, ECF
No. 26-3; Townley Dec!. para. 12, ECF No. 26-4.
After E. S.-T. was born, Ms. Townley had to return to work in part because her own
health insurance was expiring and she could not obtain coverage under Ms. Schall's insurance
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plan. Until February 2013, neither Ms. Schall nor Ms. Townley could obtain insurance coverage
for each other under their respective employer-provided health insurance plans.
In February 2013, Ms. Townley obtained health insurance coverage under her employer-
provided plan for Ms. Schall. She must pay state income taxes on the benefit because she and
Ms. Schall are not recognized as married under Virginia's Marriage Laws.
Ms. Schall and Ms. Townley were ineligible for protections under federal laws governing
family medical leave when their daughter was born and when one of their parents passed away.
29 U.S.C. 2612 (2014). If the Commonwealth of Virginia recognized Ms. Schall's and Ms.
Townley's legal marriage and permitted both to be listed on their daughter's birth certificate,
their daughter could inherit the estate of both parents in the event of their death, and could avoid
tax penalties on any inheritance from Ms. Schall's estate. Va. Code 64.2-309 (2014).
Under Virginia's Marriage Laws, agreements between Ms. Schall and Ms. Townley
concerning custody, care, or financial support for their daughter could be declared void and
unenforceable. ld 20-45.2. Because the Commonwealth does not recognize their legal
marriage, benefits of Virginia's Marriage Laws that promote the integrity of families are denied
to Ms. Schall, Ms. Townley and their child.
4
3. Virginia's Marriage Laws
The laws at issue here, referred herein as Virginia's Marriage Laws, include two statutory
prohibitions on same-sex unions, and an amendment to the Virginia Constitution. Specifically,
Plaintiffs seek relief from the imposition of Article I, 15-A, of the Virginia Constitution and
Sections 20-45.2 and 20-45.3 of the Virginia Code.
4
These benefits include, but are not limited to, protections regarding how and when a marriage may be allowed to
dissolve, which acknowledge the importance of families and children in Virginia. Va. Code 20-91 (2014).
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Plaintiffs also seek relief from the imposition of any "Virginia law that bars same-sex
marriage or prohibits the State's recognition of otherwise-lawful same-sex marriages from other
jurisdictions." See Am. Compl., Prayer for Relief, paras. 1-2, ECF No. 18. Plaintiffs also
request that their constitutional challenge extend to any Virginia case or common law upon
which the Proponents or other parties might rely in attempts to withhold marriage from same-sex
couples or deny recognition to the legal marriage of same-sex couples.
There is little dispute that these laws were rooted in principles embodied by men of
Christian faith. By 1819, Section 6 of the Code of Virginia also made it lawful for all religious
persuasions and denominations to use their own regulations to solemnize marriage. I Thomas
Ritchie, The Revised Code of the Laws of Virginia 396 ( 1819). However, although marriage
laws in Virginia are endowed with this faith-enriched heritage, the Jaws have nevertheless
evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia, with
protections and benefits extended to portions of Virginia's citizens. See Womack v. Tankersley,
78 Va. 242,243 (1883).
The Virginia Code in 1819 declared that every license for marriage "shall be issued by
the clerk of the court of that county or corporation .... " /d. at 398. The authority to conduct
marriages was then bestowed upon civil servants. ld at 396-97 ("(T]here is no ordained
minister of the gospel . . . within this Commonwealth, authorised to celebrate the rites of
matrimony. . . . [l]t shall be and may be lawful for the courts ... to appoint two persons of each
of the said counties ... who, by virtue of this act, shall be authorised to celebrate the rites of
marriage, in the counties wherein they respectively reside.").
5
' The extension of those protections and benefits has sometimes occurred after anguish and the unavoidable
intervention of federal jurisprudence. See, e.g., Loving v. Virginia, 388 U.S. I ( 1967) (balancing the state's right to
regulate marriage against the individual's rights to equal protection and due process under the law).
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In 1997, Virginia law limited the institution of civil marriage to a union between a man
and a woman. Va. Code 20-45.2. The Virginia legislature amended the Code to provide that
"a marriage between persons of the same sex is prohibited." Jd. "Any marriage entered into by
persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia
and any contractual rights created by such marriage shall be void and unenforceable." Id.
In 2004, following successful challenges to state prohibitions against same-sex marriage
in other states, Virginia's General Assembly, through Joint Resolution No. 91 and House Joint
Resolution No. 187, proposed an amendment to the Virginia Constitution. See S.J. Res. 91, Reg.
Sess. (Va. 2004) (enacted) (citing "challenges to state laws have been successfully brought in
Hawaii, Alaska, Vermont, and most recently in Massachusetts on the grounds that the legislature
does not have the right to deny the benefits of marriage to same-sex couples and the state must
guarantee the same protections and benefits to same-sex couples as it does to opposite-sex
couples absent a constitutional amendment" as a basis for amending the Virginia Constitution).
On November 7, 2006, a majority of Virginia voters ratified a constitutional amendment
(the "Marshall/Newman Amendment"), which was implemented as Article I, Section 15-A of the
Virginia Constitution. The Marshall/Newman Amendment provides:
That only a union between one man and one woman may be a marriage valid in or
recognized by this Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions shall not create or recognize a
legal status for relationships of unmarried individuals that intends to approximate
the design, qualities, significance, or effects of marriage. Nor shall this
Commonwealth or its political subdivisions create or recognize another union,
partnership, or other legal status to which is assigned the rights, benefits,
obligations, qualities, or effects of marriage.
Va. Const. art. I, I 5-A.
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The Virginia Legislature also adopted the Affirmation of Marriage Act in 2004. This
provides:
A civil union, partnership contract or other arrangement between persons of the
same sex purporting to bestow the privileges or obligations of marriage is
prohibited. Any such civil union, partnership contract or other arrangement
entered into by persons of the same sex in another state or jurisdiction shall be
void in all respects in Virginia and any contractual rights created thereby shall be
void and unenforceable.
Va. Code 20-45.3.
II. STANDARDS OF LAW
A. SUMMARY JUDGMENT
The Proponents and Opponents of Virginia's Marriage Laws have moved for summary
judgment on the constitutional challenges to the laws. Summary judgment is proper "if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56( a) (2013). "[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material
fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247-48 (1986).
Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be considered by a court in its determination. !d. at 248.
After a motion for summary judgment is properly made and supported, the opposing
party has the burden of showing that a genuine dispute of fact exists. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,586-87 (1986).
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At that point, the Court's function is not to "weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial." Anderson, 411 U.S. at
249.
In doing so, the Court must construe the facts in the light most favorable to the non-
moving party, and may not make credibility determinations or weigh the evidence. /d. at 255.
However, a court need not adopt a version of events that is "blatantly contradicted by the record,
so that no reasonable jury could believe it." Scott v. Harris, 550 U.S. 372, 380 (2007). There
must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 417 U.S. at 249-50 (citations omitted). If there is "sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party," the motion
for summary judgment must be denied. /d. at 249.
B. PRELIMINARY INJUNCTION
Plaintiffs also request a preliminary injunction. A plaintiff requesting the extraordinary
remedy of a preliminary injunction must establish a likelihood of success on the merits, that the
plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, that the balance
of equities tips in the plaintiffs favor, and that an injunction is in the public interest. Winter v.
Natural Res. Dej Council. Inc., 555 U.S. 7, 20 (2008).
III. ANALYSIS
The Opponents contend that that Virginia's Marriage Laws violate Plaintiffs' due process
and equal protection rights under the United States Constitution as a matter of law. They raise
facial constitutional challenges to the provision of Virginia's Constitution, and to several
Virginia statutes, that prohibit same-sex marriage.
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Alternatively, Plaintiffs argue that if the Court declines to grant summary judgment, it
should issue a preliminary injunction compelling Defendants to cease enforcement of Virginia's
Marriage Laws as against these Plaintiffs pending a final judgment.
The Proponents oppose these motions, and defend the constitutionality of Virginia's
Marriage Laws. They maintain that the Commonwealth has the right to define marriage
according to the judgment of its citizens.
A. PRELIMINARY CHALLENGES
Before turning to the more substantive arguments, the Court first addresses two
preliminary challenges advanced by Defendant Schaefer and Intervenor-Defendant McQuigg.
The first challenge asks whether Plaintiffs have standing to maintain this action. The second
challenge pertains to whether sufficient doctrinal developments regarding the questions
presented have evolved to overcome the possibly precedential impact of the Supreme Court's
1972 summary dismissal of a constitutional challenge to a state's same-sex marriage laws.
I. Plaintiffs have standing
Defendant Schaefer argues that Plaintiffs Bostic and London lack standing to bring this
suit against him because they failed to submit an application to obtain a marriage license.
Therefore, Defendant Schaefer contends, Plaintiffs Bostic and London suffered no injury for the
purposes of standing as provided by Article Ill of the United States Constitution. Br. Supp. Def.
Schaefer's Mot. Summ. J. 6, ECF No. 41.
Defendant Schaefer also argues that Ms. Schall and Ms. Townley "have not alleged any
injury created by[,] or tangentially related to[,] any act or omission by him." Jd. at 7. Defendant
Schaefer argues that the relief requested would not correct the harms alleged by Plaintiffs Schall
and Townley. /d. Defendant Schaeffer contends that Ms. Schall and Ms. Townley have sought
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no recognition of their California marriage through him, and have not attempted to obtain a
marriage license from him in Norfolk. /d. Defendant Schaefer contends that even if he were
ordered to issue marriage licenses to same-sex couples, Ms. Schall and Ms. Townley would be
unaffected because they are already married under the laws of California. /d.
A plaintiff must meet three elements to establish standing. First, a plaintiff must have
suffered an ~ n u r y in fact" which is "concrete and particularized." Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Second, a plaintiff must establish "a causal connection
between the injury and the conduct complained of." /d. "Third, it must be 'likely,' as opposed
to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" /d. (quoting
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)).
There is no dispute that Plaintiffs are loving couples in long-term committed relationships
who seek to marry in, or have their marriage recognized by, the Commonwealth of Virginia.
Bostic Decl. paras. 3-5, ECF No. 26-1; London Decl. paras. 4-6, ECF No. 26-2; Schall Dec I.
paras. 5-7, 31, ECF No. 26-3; Townley Decl. paras. 6-19, ECF No. 26-4. They claim to suffer
real and particularized injuries as a direct result of Defendants' enforcement of Virginia's
Marriage Laws, including far-reaching legal and social consequences, and the pain of
humiliation, stigma, and emotional distress that accumulates daily.
Plaintiffs Bostic and London plainly did submit an application for a marriage license.
They tried to obtain a marriage license, and these efforts were unsuccessful. Br. Supp. Def.
Schaefer's Mot. Summ. J. 2, ECF No. 41; Bostic Decl. paras. 6-10, ECF No. 26-1; London Decl.
paras. 7-10, ECF No. 26-2. This establishes an Article Ill injury. See Parker v. District of
Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (holding that courts have "consistently treated a
license or permit denial pursuant to a state or federal administrative scheme as an Article III
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injury"). This Court accepts oral argument from counsel for Defendant Schaefer as a concession
on this point. Tr. 32:16-20, Feb. 4, 2014, ECF No. 132 ("[U]nder Virginia's existing laws, ...
George Schaefer's office could not issue that marriage license .... I do believe he probably is a
proper party for that reason.").
The standing challenges against Plaintiffs Schall and Townley also must fail. In Virginia,
currently all marriages between opposite-sex couples that have been solemnized outside of the
Commonwealth are recognized as valid in the Commonwealth as long as the parties met the legal
requirements for marriage in the foreign jurisdiction. Even the status of "common law
marriage," while prohibited in Virginia, is nevertheless accepted by the Commonwealth if the
marriage was valid in the state in which it occurred.
6
Plaintiffs Schall and Townley allege stigma and humiliation as a result of the
enforcement of Virginia Code 20-45.3. See Am. Compl. para. 34, ECF No. 18. Stigmatic
injury is sometimes sufficient to support standing. See Allen v. Wright, 468 U.S. 737, 755 (1984)
(finding that "stigmatizing injury often caused by racial discrimination" is a type of
"noneconomic injury" that is "sufficient in some circumstances to support standing"). A plaintiff
must first identity a "concrete interest with respect to which [he or she is] personally subject to
discriminatory treatment," and "[t]hat interest must independently satisfY the causation
requirement of [the] standing doctrine." /d. at 757 n.22; see also Lebron v. Rumsfeld, 670 F.3d
540, 562 (4th Cir. 2012) (explaining that Article III standing based on ongoing stigma requires
that a plaintiff establish the suffering of harm).
Plaintiffs Schall and Townley satisfy the first requirement predicating standing on
stigmatic injuries. Virginia Code 20-45.3 prohibits the recognition of their valid California
6
Marriage Requirements, Virginia Department of Heallh, hup://www.vdh.state.va.uslvital_recordslmany.htm (last
visited Feb. 13, 2014); see also Marriage in Virginia, Virginia State Bar: An Agency or the Supreme Court of
Virginia, hup://www.vsb.org/sitelpublicationslmarriage-invirginia (last visited Feb. 13, 2014).
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marriage. Similarly married opposite-sex individuals do not suffer this deprivation. Plaintiffs
Schall and Townley suffer humiliation and discriminatory treatment on the basis of their sexual
orientation. This stigmatic harm flows directly from current state law. See Bishop v. United
States ex rei. Holder, 04-CV-848-TCK-TLW, 2014 WL 116013, at *9 (N.D. Okla. Jan. 14,
2014).
The claims of Plaintiffs Schall and Townley also satisfy the causation element required
for standing. A plaintiff must establish a sufficient connection between the state official sued
and the alleged injury. See Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.
2001); see also Bishop v. Oklahoma, 333 F. App'x 361, 365 (lOth Cir. 2009) (holding that the
duties of the Oklahoma Governor or the Oklahoma Attorney General were insufficiently
connected to the challenged Oklahoma laws). Defendant Schaefer is a proper defendant here
because he is a city official responsible for issuing and denying marriage licenses and recording
marriages. Va. Code 20-14, 20-33, 32.1-267(8) (2014). Defendant Rainey is a proper
defendant because she is a city official responsible for providing forms for marriage certificates.
An injunction prohibiting Defendants from enforcing Virginia's Marriage Laws will allow
Plaintiffs Bostic and London to obtain a marriage license in the Commonwealth, and will allow
the valid marriage between Plaintiffs Schall and Townley to be recognized in the
Commonwealth of Virginia.
Intervenor-Defendant McQuigg, after adopting Defendant Rainey's former arguments,
asserts that Plaintiffs lack standing because gay and lesbian individuals would be prohibited from
marrying even in wake of a judicial invalidation of Article I, Section lSA of the Virginia
Constitution and Virginia Code Sections 20-45.2 and 20-45.3. Plaintiffs seek relief not only
from these provisions, however, but also from "any other Virginia law that bars same-sex
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marriage or prohibits the State's recognition of otherwise-lawful same-sex marriages from other
jurisdictions." Am. Compl., Prayer for Relief, paras. 1-2, ECF No. 18. If this Court issues the
injunction sought by Plaintiffs, their injuries will be redressed. They will be allowed to marry, or
have their marriage recognized, in Virginia. Challenges to Plaintiffs' standing are overruled.
2. Doctrinal developments
The next preliminary challenge pertains to determining the appropriate impact of a
specific summary disposition by the United States Supreme Court. Summary dispositions by
that Court, as well as dismissals "for want of a substantial federal question," must be construed
as rejecting "the specific challenges presented in the statement of jurisdiction," and leaving
"undisturbed the judgment appealed from." Mandel v. Bradley, 432 U.S. 173, 176 ( 1977) (these
dispositions "prevent lower courts from coming to opposite conclusions on the precise issues
presented and necessarily decided by those actions").
In 1972, the Supreme Court summarily dismissed an appeal from a decision of the
Supreme Court of Minnesota, which had held that I) although a Minnesota statute defining
marriage did not prohibit same-sex marriages explicitly, neither did that statute provide any
authority for such marriages, and 2) the statute did not violate the Fourteenth Amendment to the
United States Constitution. Baker v. Nelson, 191 N.W.2d 185, 185, 187 (Minn. 1971), appeal
dismissed 409 U.S. 810 ( 1972). The dismissal by the Supreme Court read, "The appeal is
dismissed for want of a substantial federal question." Baker, 409 U.S. at 810. Defendants here
contend that because the Supreme Court found a substantial federal question lacking in Baker,
this Court is precluded from exercising jurisdiction.
There is no dispute that such summary dispositions are considered precedential and
binding on lower courts. There is also no dispute asserted that questions presented in Baker are
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similar to the questions presented here. Both cases involve challenges to the constitutionality of
a state statute which prohibits same-sex marriage. Both challenges assert principles of due
process and equal protection. The ruling of the Supreme Court of Minnesota rejected arguments
largely similar to those presented by Plaintiffs. See Baker, 191 N.W.2d at 187 ("The equal
protection clause of the Fourteenth Amendment, like the due process clause, is not offended by
the state's classification of persons authorized to marry."). However, summary dispositions may
lose their precedential value. They are no longer binding "when doctrinal developments indicate
otherwise." Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Pori Au/h. Bondholder's
Pro/eclive Comm. v. Pori ofN. Y. Auih., 387 F.2d 259, 263 n.3 (2d Cir. 1967)) (internal quotation
marks omitted).
This Court concludes that doctrinal developments since 1971 compel the conclusion that
Baker is no longer binding. The Second Circuit recognized this explicitly, holding that "[e]ven if
Baker might have had resonance ... in 1971, it does not today." Windsor'' Uniled Sia/es, 699
F.3d 169, 178 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013) (holding that Baker did not foreclose
jurisdiction over review of the federal Defense of Marriage Act ("DOMA")). In so holding, the
Second Circuit relied upon doctrinal developments from Supreme Court decisions, including
cases creating the term "intermediate scrutiny" in Craig v. Boren, 429 U.S. 190, 218 (1976)
(Rehnquist, J., dissenting); discussing classifications based on sex and illegitimacy in Lalli v.
Lalli, 439 U.S. 259, 264-65 (1978); and finding no rational basis for "a classification of
[homosexuals] undertaken for its own sake" in Romer v. Evans, 517 U.S. 620, 635 (1996).
Windsor, 699 F.3d at 178-79.
More recently, the District Court for the District of Utah concluded that after considering
the significant doctrinal developments in equal protection and due process jurisprudence, the
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Supreme Court's summary dismissal in Baker "has little if any precedential effect today."
Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 6697874, at *8 (D. Utah Dec. 20, 2013); see
also McGee v. Cole, Civil Action No. 3:13-24068,2014 WL 321122, at *9-10 (S.D.W. Va. Jan.
29, 2014) (holding that the reasoning in these cases is persuasive and rejecting Baker as no
longer binding).
This Court concludes that doctrinal developments in the question of who among our
citizens are permitted to exercise the right to marry have foreclosed the previously precedential
nature of the summary dismissal in Baker.
7
The Baker summary dismissal is no longer binding.
8. PLAINTIFFS' CONSTITUTIONAL CHALLENGES TO VIRGINIA'S MARRIAGE LAWS
Having resolved the preliminary challenges advanced against Plaintiffs' claims, the Court
now turns to the more substantive questions presented by the parties. This Court must determine
whether Virginia's Marriage Laws violate Plaintiffs' rights guaranteed to them under the
Fourteenth Amendment of the United States Constitution. This Amendment provides: "No State
shall make or enforce any law which shall abridge the privileges and immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV, I.
Plaintiffs' due process claims are addressed first. Next, the examination turns to whether
Virginia's Marriage Laws violate Plaintiffs' rights under the Equal Protection Clause of the
Fourteenth Amendment. Finally, the Court resolves whether Plaintiffs' claims brought under 42
7
Some federal courts have ruled that Baker remains binding. See Massach11se11s v. HHS, 682 F.3d I, 8 (1st Cir.
2012): Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012); Wilson v. Ake, 354 F. Supp. 2d 1298,
1304-05 (M.D. Fla. 2005). This Coun respectfully disagrees and cites with approval the thorough reasoning on the
issue in Windsor, Kitchen, and Bishop.
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U.S.C. 1983 have merit, and whether the Court should stay this ruling pending further
guidance from the Supreme Court.
I. Plaintiffs' rights under the Due Process Clause
The Due Process Clause of the Fourteenth Amendment applies to "matters of substantive
Jaw as well as to matters of procedure. Thus all fundamental rights comprised within the term
liberty are protected by the Federal constitution from invasion by the States." Planned
Parenthood ofSe. Pa. v. Casey, 505 U.S. 833, 846-47 (1992) (quoting Whitney v. California,
274 U.S. 357, 373 (1927) (Brandeis, J., concurring)) (internal quotation marks omitted).
Accordingly, the initial question is whether Plaintiffs are seeking protection for a fundamental
right. The second question is whether Virginia's Marriage Laws properly or improperly
compromise Plaintiffs' rights.
a. Marriage is a fundamental right
There can be no serious doubt that in America the right to marry is a rigorously protected
fundamental right. The Supreme Court has recognized repeatedly that marriage is a fundamental
right protected by both the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. ML.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401
U.S. 371, 376 (1971)) (finding that choices about marriage "are among associational rights this
Court has ranked as 'of basic importance in our society[.]"'); Casey, 505 U.S. at 848 (finding
marriage "to be an aspect of liberty protected against state interference by the substantive
component of the Due Process Clause"); Turner v. Safley, 482 U.S. 78,97 (1987) (finding that a
regulation that prohibited inmates from marrying without the permission of the warden
impermissibly burdened their right to marry); Zablocki v. Redhail, 434 U.S. 374,383-84 (1978)
(defining marriage as a right of liberty); Carey v. Population Servs. Int '1, 431 U.S. 678, 684-85
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(1977) (finding that the right to privacy includes personal decisions relating to marriage); United
States v. Kras, 409 U.S. 434, 446 (1973) (concluding that the Court "has come to regard
(marriage] as fundamental"); Boddie, 401 U.S. at 376 (defining marriage as a "basic importance
in our society"); Loving, 388 U.S. at 12 (finding prohibition on interracial marriage
unconstitutional); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (defining marriage as a
right of privacy and a "coming together for better or for worse, hopefully enduring, and intimate
to the degree of being sacred"); Skinner v. Oklahoma ex rei. Williamson, 316 U.S. 535, 541
(1942) (finding marriage to be a "basic civil right[] of man"); Meyer v. Nebraska, 262 U.S. 390,
399 (1923) (finding that marriage is a liberty protected by the Fourteenth Amendment); Andrews
v. Andrews, 188 U.S. 14, 30 (1903) (quoting Maynard v. Hill, 125 U.S. 190, 205 (1888))
(internal quotation marks omitted) (finding marriage to be "most important relation in life"),
abrogated on other grounds, Sherrer v. Sherrer, 334 U.S. 343,352 (1948); Maynard, 125 U.S. at
205 (same).
Marriage rights are '"of basic importance in our society,' rights sheltered by the
Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect."
ML.B., 519 U.S. at 116 (quoting Boddie, 401 U.S. at 376) (citations omitted).
The right to marry is inseparable from our rights to privacy and intimate association. In
rejecting a Connecticut law prohibiting the use of contraceptives, the Court wrote of marriage's
noble purposes:
We deal with a right of privacy older than the Bill of Rights - older than our
political parties, older than our school system. Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social projects.
Yet it is an association for as noble a purpose as any involved in our prior
decisions.
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Griswold, 381 U.S. at 486.
The parties before this Court appreciate the sacred principles embodied in our
fundamental right to marry. Each party cherishes the commitment demonstrated in the
celebration of marriage; each party embraces the Supreme Court's characterization of marriage
as "the most important relation in life" and "the foundation of the family and society, without
which there would be neither civilization nor progress." Maynard, 125 U.S. at 205, 211.
Regrettably, the Proponents and the Opponents of Virginia's Marriage Laws part ways despite
this shared reverence for marriage. They part over a dispute regarding who among Virginia's
citizenry may exercise the fundamental right to marry.
b. The Plaintiffs seek to exercise a fundamental right
Just as there can be no question that marriage is a fundamental right, there is also no
dispute that under Virginia's Marriage Laws, Plaintiffs and Virginia citizens similar to Plaintiffs
are deprived of that right to marry. The Proponents' insistence that Plaintiffs have embarked
upon a quest to create and exercise a new (and some suggest threatening) right must be
considered, but, ultimately, put aside.
The reality that marriage rights in states across the country have begun to be extended to
more individuals fails to transform such a fundamental right into some "new" creation.
8
Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of
Virginia's adult citizens. They seek "simply the same right that is currently enjoyed by
heterosexual individuals: the right to make a public commitment to form an exclusive
relationship and create a family with a partner with whom the person shares an intimate and
1
Nor should this doctrinal development be construed as any dilution of the sanctil)' of marriage. Similar fears were
voiced and ultimately quieted after Virginia unsuccessfully defended its anti-miscegenation laws by referring to a
need "'to preserve the racial integriry of its citizens,' and to prevent 'the corruption of blood, 'a mongrel breed of
citizens,' and 'the obliteration of racial pride' .... " Loving, 388 U.S. at 7 (quoting Naim v. Naim, 87 S.E.2d 749,
756 (Va. 1955)).
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sustaining emotional bond." Kitchen, 2013 WL 6697874 at *16. "This right is deeply rooted in
the nation's history and implicit in the concept of ordered liberty because it protects an
individual's ability to make deeply personal choices about love and family free from government
interference." !d.
Virginia's Marriage Laws impose a condition on this exercise. These laws limit the
fundamental right to marry to only those Virginia citizens willing to choose a member of the
opposite gender for a spouse. These laws interject profound government interference into one of
the most personal choices a person makes. Such interference compels careful judicial
examination:
Our law affords constitutional protection to personal decisions relating to
marriage, procreation, contraception, family relationships, child rearing, and
education. Our cases recognize the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child. Our
precedents have respected the private realm of family life which the state cannot
enter. These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one 's own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs about these matters could not
define the attributes of personhood were they formed under compulsion of the
State.
Casey, 505 U.S. at 851 (1992) (second emphasis added) (quoting Eisenstadt v. Baird, 405 U.S.
438, 453 (1972); Prince v. Massachusel/s, 321 U.S. 158, 166 (1994)) (internal quotation marks
and citations omitted); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) (our federal
Constitution "undoubtedly imposes constraints on the State's power to control the selection of
one's spouse").
Gay and lesbian individuals share the same capacity as heterosexual individuals to form,
preserve and celebrate loving, intimate and lasting relationships. Such relationships are created
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through the exercise of sacred, personal choices-choices, like the choices made by every other
citizen, that must be free from unwarranted government interference.
c. Virginia's Marriage Laws are subject to strict scrutiny
In general, state regulations are presumed valid, and are upheld, when the regulations are
rationally related to a legitimate state interest. Washington v. Glucksberg, 521 U.S. 702, 728
(1997).
However, strict scrutiny is imposed as substantive due process protection to "those
fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and
tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed." /d. at 72Q-21 (quoting Moore v. City of E. Cleveland, Ohio, 431
U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319, 325 (1937))
(internal quotation marks and citations omitted).
Under strict scrutiny, the regulations pass constitutional muster only if they are narrowly
tailored to serve a compelling state interest. /d. at 721; see also Zablocki, 434 U.S. at 388
(striking down a requirement that non-custodial parents paying child support seek court approval
before marrying); Boddie, 401 U.S. at 38Q-81 (holding that a divorce could not be denied to an
indigent person who was unable to afford the filing fees).
Because marriage is a fundamental right, therefore, Virginia's Marriage Laws cannot be
upheld unless they are justified by "compelling state interests" and are "narrowly drawn to
express only those interests." Carey, 431 U.S. at 686; accord Zablocki, 434 U.S. at 388 ("When
a statutory classification significantly interferes with the exercise of a fundamental right, it
cannot be upheld unless it is supported by sufficiently important state interests and is closely
tailored to effectuate only those interests.").
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The Court turns to the three primary justifications the Proponents proffer in support of
Virginia's Marriage Laws and their significant interference with Plaintiffs' freedom to exercise
their fundamental right to marry: (1) tradition; (2) federalism; and (3) "responsible procreation"
and "optimal child rearing."
d. Tradition
Virginia has traditionally limited marriages to opposite-sex relationships. The
Proponents assert that preserving and perpetuating this tradition is a state interest that is
sufficiently important to justify the impact of Virginia's Marriage Laws on Plaintiffs and other
citizens in Virginia who are lesbian and gay.
9
Proponents suggest that these state interests in tradition arise from a legitimate desire to
discourage individuals from abusing marriage rights by marrying for the sole purpose of
qualifying for benefits for which they would otherwise not qualify. Tr. 45:14-19, ECF No. 132.
The "[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a
rational basis." Heller v. Doe, 509 U.S. 312, 326 (1993). This proffer lacks any rational basis.
Virginia's purported interest in minimizing marriage fraud is in no way furthered by excluding
one segment of the Commonwealth's population from the right to marry based upon that
segment's sexual orientation.
9
At oral argument, counsel for Intervenor-Defendant McQuigg contended that "[m]aniage is not constitutional
because it's ancient. It's ancient because it is rational and it [has] animated the laws in this country and in this
Commonwealth since the very beginning." Tr. 52:t-4, ECF No. 132. While no one disputes that some persons
have enjoyed the right and privilege to many since ancient times, beliefs based on ancient roots that this exercise
should properly remain limited to one portion of our population, however dearly held, contribute little to the judicial
endeavor of evaluating whether the PurPOrted state interests in such timelines are sufficienlly imponant to
rationalize the impact of the Marriage Laws under current scrutiny. Other profound infringements upon our
citizens' rights have been explained as a consequence of heritage, and those explanations have been found wanting.
lntenacial marriage "was illegal in most States in the 19th century, but the Court was no doubt correct in finding it
to be an aspect of libeny protected against state interference by the substantive component of the Due Process
Clause in Loving v. Virginia." Casey, SOS U.S. at847-48; see also Perry v. Sclnvarzenegger, 704 F. Supp. 2d 921,
992 (N.D. Cal. 20 I 0) (recognizing that the Supreme Court rejected race restrictions despite their historical
prevalence because the restrictions "stood in stark contrast to the concepts of libeny and choice inherent the right to
marry").
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Judicial evaluation of the importance of tradition as a state rationale for infringing upon
Plaintiffs' rights must draw a focus on the history of the laws that are under scrutiny. Virginia's
Affirmation of Marriage Act, known as House Bill 751, was drafted in response to fears that
"homosexual marriage or same sex unions [are] . . . directed at weakening the institution of
marriage," and that "defining marriage or civil unions as permissible for same sex individuals as
simply an alternate form of 'marriage' [would] radically transform the institution of marriage
with serious and harmful consequences to the social order." Affirmation of Marriage Act, H.B.
751 (2004)(enacted).
Concerns that schools might be compelled "to teach that 'civil unions' or 'homosexual
marriage"' should be "equivalent to traditional marriage" and that "churches whose teachings
[do] not accept homosexual behavior as moral will lose their tax exempt status," fueled the
proposed legislation. /d. The promotion of "tradition" was evident in the Bill's language
regarding the "profound moral and legal difference between private behavior conducted outside
the sanction ... of the law ... and granting such behavior a legal institutional status in society."
/d. This "radical change" would trigger "unforeseen legal and social consequences," and the
provision of "same sex unions would obscure certain basic moral values and further devalue the
institution of marriage and the status of children." /d.
The inescapable conclusion regarding the Commonwealth's interest in tradition is that an
adherence to a historical definition of traditional marriage is desired to avoid "radical changes"
that would result in the diminishing one common, long-held view of what marriage means. The
Supreme Court has rejected the assertion that a prevailing moral conviction can, alone, justify
upholding a constitutionally infirm law: '"the fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a
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law prohibiting the practice; neither history nor tradition could save a law prohibiting
miscegenation from constitutional attack.'" Lawrence v. Texas, 539 U.S. 558, 577-78 (2003)
(alteration provided) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J.,
dissenting)) (holding that a Texas statute making it a crime for two persons of the same sex to
engage in certain intimate sexual conduct was unconstitutional, as applied to adults engaging in
consensual acts in the privacy of a home); see also Kitchen, 2013 WL 6697874, at *27
("[T]radition alone cannot form a rational basis for a law."). Our courts are duty-bound to define
and protect "the liberty of all, not to mandate our own moral code." Lawrence, 539 U.S. at 571
(quoting Casey, 505 U.S. at 850).
Nearly identical concerns about the significance of tradition were presented to, and
resolved by, the Supreme Court in its Loving decision. The Loving Court struck down Virginia's
ban on interracial marriage despite the ban's existence since "the colonial period." 388 U.S. at 6.
Notwithstanding the undeniable value found in cherishing the heritages of our families, and
many aspects of the heritages of our country and communities, the protections created for us by
the drafters of our Constitution were designed to evolve and adapt to the progress of our
citizenry. The Supreme Court recognized this eloquently:
It is ... tempting ... to suppose that the Due Process Clause protects only those
practices, defined at the most specific level, that were protected against
government interference ... when the Fourteenth Amendment was ratified. But
such a view would be inconsistent with our law.
Casey, 505 U.S. at 847 (citation omitted).
Tradition is revered in the Commonwealth, and often rightly so. However, tradition
alone cannot justify denying same-sex couples the right to marry any more than it could justifY
Virginia's ban on interracial marriage.
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e. The appropriate balance regarding federalism
The Proponents also assert that Virginia maintains a significant interest in reserving the
power to regulate essential state matters, and to shield the exercise of that power from intrusive,
improper federal interference. The Supreme Court recently addressed the long-standing
deference our federal government pays to state-law policy decisions with respect to domestic
relations:
State laws defining and regulating marriage, of course, must respect the
constitutional rights of persons, see, e.g., Loving, 388 U.S. I (1967); but, subject
to those guarantees, "regulation of domestic relations" is "an area that has long
been regarded as a virtually exclusive province of the States." Sosna v. Iowa, 419
u.s. 393, 404 (1975).
The recognition of civil marriages is central to state domestic relations law
applicable to its residents and citizens. See Williams v. North Carolina, 317 U.S.
287, 298 (1942) ("Each state as a sovereign has a rightful and legitimate concern
in the marital status of persons domiciled within its borders"). The definition of
marriage is the foundation of the State's broader authority to regulate the subject
of domestic relations with respect to the "[p ]rotection of offspring, property
interests, and the enforcement of marital responsibilities." Ibid. "[T]he states, at
the time of the adoption of the Constitution, possessed full power over the subject
of marriage and divorce ... [and] the Constitution delegated no authority to the
Government of the United States on the subject of marriage and divorce."
Haddock v. Haddock, 201 U.S. 562, 575 (1906); see also In re Burrus, 136 U.S.
86, 593-94 (1890) ("The whole subject of the domestic relations of husband and
wife, parent and child, belongs to the laws of the States and not to the laws of the
United States").
Windsor, 133 S. Ct. at 2691 (alterations and omission in original).
10
This Court remains mindful that the federal intervention is best exercised rarely, and that
the powers regarding domestic relations properly rest with the good offices of state and local
government. This deference is appropriate, and even essential. However, federal courts have
intervened, properly, when state regulations have infringed upon the right to marry. The
10
In Windsor the Supreme Court struck down Section 3 of DOMA because it violated the due process and equal
protection principles of the Fifth Amendment by denying federal recognition of a marriage lawfully entered into in
another jurisdiction. 133 S. Ct. at 2693. The Court ruled that DOMA improperly instructed "all federal officials,
and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less
worthy than the marriages of others." /d. at2696.
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Windsor Court prefaced its analysis about deference to the state laws defining and regulating
marriage by citing Loving's holding that recognized that "of course," such laws "must respect the
constitutional rights of persons." !d. In signaling that due process and equal protection
guarantees must trump objections to federal intervention, Windsor's "citation to Loving is a
disclaimer of enormous proportion." Bishop, 2014 WL 116013, at *18.
Similarly, in Zablocki, the Court upheld the right of prison inmates to marry, while
acknowledging domestic relations "as an area that has long been regarded as a virtually exclusive
province of the States." 434 U.S. at 398-99 (Powell, J., concurring) (quoting Sosna, 419 U.S. at
404) (internal quotation marks omitted).
In Windsor, our Constitution was invoked to protect the individual rights of gay and
lesbian citizens, and the propriety of such protection led to upholding state law against
conflicting federal law. The propriety of invoking such protection remains compelling when
faced with the task of evaluating the constitutionality of state laws. This propriety is described
eloquently in a dissenting opinion authored by the Honorable Antonin Scalia:
As I have said, the real rationale of [the Windsor opinion] is that DOMA is
motivated by "bare ... desire to harm" couples in same-sex marriages. How
easy it is, indeed how inevitable, to reach the same conclusion with regard to
state laws denying same-sex couples marital status.
Windsor, 133 S. Ct. at 2709 (Scalia, J., dissenting) (alteration provided) (omission in original)
(quoting Windsor, 133 S. Ct. at 2691) (citations and some internal quotation marks omitted);
see also Kitchen, 2013 WL 6697874 at *7 (agreeing with this analysis).
The Proponents' related contention that judicial intervention should be suspended in
deference to the possibility that the Virginia legislature and Virginia's electorate might resolve
Plaintiffs' claims also lacks merit. The proposal disregards the gravity of the ongoing significant
harm being inflicted upon Virginia's gay and lesbian citizens. Moreover, the proposal ignores
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the needless accumulation of that pain upon these citizens, and the stigma, humiliation and
prejudice that would be visited upon these citizens' children, as they continue to wait for this
possibility to become realized.
11
When core civil rights are at stake the judiciary must act. As the Supreme Court said in
West Virginia State Board of Education v. Barnette:
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to
vote; they depend on the outcome of no elections.
319 U.S. 624, 638 (1943). Accordingly, this Court must perform its constitutional duty in
deciding the issues currently presented before it. Notwithstanding the wisdom usually residing
within proper deference to state authorities regarding domestic relations, judicial vigilance is a
steady beacon searching for an ever-more perfect justice and truer freedoms for our country's
citizens. Intervention under the circumstances presented here is warranted, and compelled.
f. The "for-the-children" rationale
The Proponents of Virginia's Marriage Laws contend that "responsible procreation" and
"optimal child rearing" are legitimate interests that support the Commonwealth's efforts to
prohibit some individuals from marrying. Counsel for Intervenor-Defendant asserted at oral
argument that marriage is about children. Tr. 49:20-22, ECF No. 132. He asserted that the
Commonwealth has a legitimate interest in "trying to tie those children as best it can or
encourage without being coercive those children to enter into a union with a loving mom and
11
In Virginia, this proposal would require majorities in both chambers of the General Assembly to vote, in two
separate legislative years, before and after a general election of the members of the House of Delegates, to repeal
Virginia's constitutional amendment banning same-sex marriage, as well as a subsequent majority vote by the
elec1orate at a general election. Va. Const. art. XII, I.
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dad, specifically the mom and dad [who] are responsible for bringing them into this world." /d.
at 59:20-24. This counsel also argued that the Commonwealth has a legitimate interest in
celebrating the "diversity of the sexes," but failed to establish how prohibiting some Virginia
citizens from marrying is related rationally to such a celebration. !d. at 52:9-10.
In sum, Proponents contend that Virginia should be permitted to "rationally conclude
that, all things being equal, it is better for the natural parents to also be the legal parents." Br.
Supp. Def. Rainey's Mot. Summ. J. 23, ECF No. 39.
The Amici Professors refer to evidence that purports to demonstrate that children benefit
from the unique parenting contributions of opposite-sex parents. The Amici Professors reject
recent studies that found that children raised by gay and lesbian parents are no different from
children raised by "intact biological parents," asserting that the studies are empirically
undermined by methodological limitations.
This rationale fails under the applicable strict scrutiny test as well as a rational-basis
review. Of course the welfare of our children is a legitimate state interest. However, limiting
marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing
and humiliating children who are being raised by the loving couples targeted by Virginia's
Marriage Laws betrays that interest. E. S.-T., like the thousands of children being raised by
same-sex couples, is needlessly deprived of the protection, the stability, the recognition and the
legitimacy that marriage conveys.
"Like opposite-sex couples, same-sex couples have happy, satisfying relationships and
form deep emotional bonds and strong commitments to their partners." Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 967 (N.D. Cal. 2010). Gay and lesbian couples are as
capable as other couples of raising well-adjusted children. See id. at 980 (''Children raised by
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gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy,
successful and well-adjusted"). In the field of developmental psychology, "the research
supporting this conclusion is accepted beyond serious debate." /d.
12
Additionally, the purported "for-the-children" rationale fails to justify Virginia's ban on
same-sex marriage because recognizing a gay individual's fundamental right to marry can in no
way influence whether other individuals will marry, or how other individuals will raise families.
"Marriage is incentivized for naturally procreative couples to precisely the same extent
regardless of whether same-sex couples (or other non-procreative couples) are included."
Bishop, 2014 WL 116013, at *29. As was recognized in Kitchen:
[l]t defies reason to conclude that allowing same-sex couples to marry will
diminish the example that married opposite-sex couples set for their unmarried
counterparts. Both opposite-sex and same-sex couples model the formation of
committed, exclusive relationships, and both establish families based on mutual
love and support.
2013 WL 6697874, at *25.
Counsel for Intervenor-Defendant McQuigg proclaimed at oral argument that
"[P]laintiffs are asking this court to ... strike down the marriage laws that have existed now
for 400 years ... and make a policy in this state that mothers and fathers [do not] matter." Tr.
at 53:5-8, ECF No. 132. This is a profound distortion of what Plaintiffs seek. Plaintiffs honor,
and yearn for, the sacred values and dignity that other individuals celebrate when they enter
into marital vows in Virginia, and they ask to no longer be deprived of the opportunity to share
these fundamental rights.
12
See, e.g., Brief for Amici The Am. Psychological Ass'n, et al. at I 8-26, Windsor v. Unired Srares, 133 S. Ct. 2675
(2013) (No. 12-307); Brief for Amici The Am. Psychological Ass'n, et al. at 22-30, Hol/ingsworlh v. Perry, 133 S.
Ct. 2652 (2013) (No. 12-144); Brief for Amicus The Am. Sociological Ass'n at6-14, Windsor v. Unired States, 133
S. Ct. 2675 (2013) (No. 12-307); Brief for Amicus The Am. Sociological Ass'n at 6-14, Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) (No. 12-144). This Court notes that the Amici Professors in this case did not refute this
research, but represented only that more research would be beneficial.
31
378
The "for-the-children" rationale also fails because it would threaten the legitimacy of
marriages involving post-menopausal women, infertile individuals, and individuals who choose
to refrain from procreating. See Bishop, 2014 WL 116013, at *30.
The "for-the-children" rationale rests upon an unconstitutional, hurtful and unfounded
presumption that same-sex couples cannot be good parents. Forty years ago a similarly
unfortunate presumption was proffered to defend a law in Illinois that removed children from the
custody of unwed fathers upon the death of the mother. Stanley v. Illinois, 405 U.S. 645, 653
(1972). Proponents of the law asserted "that Stanley and all other unmarried fathers can
reasonably be presumed to be unqualified to raise their children." /d. (emphasis added). The
Supreme Court said that such a startling presumption "cannot stand." /d. at 657. The Stanley
Court's holding has been construed to mean "that the State could not conclusively presume that
any particular unmarried father was unfit to raise his child; the Due Process Clause required a
more individualized determination." Cleveland Bd of Educ. v. LaFleur, 414 U.S. 632, 645
(1974) (discussing the holding in Stanley v. Illinois).
"[T)he demographic changes of the past century make it difficult to speak of an average
American family." Troxel v. Granville, 530 U.S. 57, 63 (2000). Attempting to legislate a state
sanctioned preference for one model of parenting that uses two adults over another model of
parenting that uses two adults is constitutionally infirm. "The composition of families varies
greatly from household to household," id., and there exist successful, well-adjusted children from
all backgrounds. "Certainly same-sex couples, like other parenting structures, can make quality
and successful efforts in raising children. That is not in question." Amici Profs.' Br. Supp.
Defs.' Mots. Summ. J. II, ECF No. 64-1.
32
379
This Court endorses the portion of the oral argument from counsel for Intervenor
Defendant in which he acknowledged that "marriage exists to provide structure and stability for
the benefit of the child, giving them every opportunity possible to know, to be loved by and
raised by a mom and dad who are responsible for their existence." Tr. 59:6-I 0, ECF No. 132.
Same-sex couples can be just as responsible for a child's existence as the countless couples
across the nation who choose, or are compelled to rely upon, enhanced or alternative
reproduction methods for procreation.
13
Finally, the "for-the-children" rationale misconstrues the dignity and values inherent in
the fundamental right to marry as primarily a vehicle for "responsibly" breeding "natural"
offspring.
14
Such misconstruction ignores that the profound non-procreative elements of marriage,
including "expressions of emotional support and public commitment," "spiritual significance,"
and "expression of personal dedication." Turner, 482 U.S. at 95-96. In recognizing that prison
inmates have the right to wed notwithstanding that incarceration may prevent them from
consummating the marriage, the Turner Court heralded the legal, economic, and social benefits
of marriage, teaching that "marital status often is a precondition to the receipt of government
benefits ... , property rights ... , and other, less tangible benefits." ld at 96.
In sum, the "for-the-children" rationale fails to justify denying an individual the benefits
and dignity and value of celebrating marriage simply because of the gender of the person whom
that individual loves. The state's compelling interests in protecting and supporting our children
are not furthered by a prohibition against same-sex marriage.
" Even assuming as true, for argument's sake, the notion that some same-sex couples might be worse parents than
some opposite-sex couples, "[a] law which condemns, without hearing, a// the individuals of a class to so harsh a
measure as the present because some or even many merit condemnation, is lacking in the first principles of due
process." Skinner, 316 U.S. at 545 (emphasis added).
14
Intervenor-Defendant asserted at oral argument that "but for children there would be no need of any institution
concerned with sex." Tr. at 50:8-9, ECF No. 132. Bulthe Supreme Court has already held that"it would demean a
married couple were ilto be said marriage is simply about the right to have sexual intercourse." Lawrence, 539 U.S.
at 567.
33
380
2. Plaintiffs' Rights under the Equal Protection Clause
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, I. 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." Zablocki, 434 U.S. at 388. For the
reasons provided above, this Court concludes that Virginia's Marriage Laws significantly
interfere with a fundamental right, and are inadequately tailored to effectuate only those
interests. Therefore, the laws are unconstitutional under the Equal Protection Clause as well.
However, even 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." City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216
( 1982)). The Clause places no limitation on a state's power to treat dissimilar people differently.
Sylvia Dev. Corp. v. Calvert Cnty., Md, 48 F.3d 810, 818 (4th Cir. 1995) ("[It] does not mean
that persons in different circumstances cannot be treated differently under the law.").
These constitutional protections are invoked instead when a state statute treats persons
who are standing in the same relation to the statute in a different manner, either on its face or in
practice. Individuals need only be similarly situated for the purposes of the challenged law. /d.
34
381
("It requires that the states apply each law, within its scope, equally to persons similarly situated,
and that any differences of application must be justified by the Jaw's purpose.").
The parties do not dispute that same-sex couples may be similarly situated to opposite-
sex couples with respect to their Jove and commitment to one another. However, the Proponents
contend that the Commonwealth's primary purpose for recognizing and regulating marriage is
responsible procreation and child-rearing. By construing the definition of these activities to refer
to the capacity of a married couple to naturally produce children, the Proponents assert that
same-sex couples must be viewed as fundamentally different from heterosexual couples.
This recent embrace of "natural" procreation as the primary inspiration and purpose for
Virginia's Marriage Laws is inconsistent with prior rationalizations for the Jaws. 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. Even assuming (but not deciding) that the Marriage Laws do
not significantly interfere with the fundamental rights of the class created by the laws (gay and
lesbian individuals), this Court must nevertheless detennine how closely to scrutinize the
challenged regulation.
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
35
382
seriously to curtail the operation of those political processes ordinarily to be relied upon to
protect minorities[.]" United States v. Carolene Prods. Co., 304 U.S. 144, !52 n.4 (1938).
Although the parties disagree
15
on the extent of animus that has been directed toward gay
and lesbian people, "for centuries there have been powerful voices to condemn homosexual
conduct as immoral." Lawrence, 539 U.S. at 571.
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 Dec!. 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.
It is well-settled that the Supreme Court has developed levels of scrutiny for purposes of
deciding whether a state law discriminates impermissibly against members of a class in violation
of the Equal Protection Clause, depending upon the kind of class affected. The greatest level of
scrutiny is reserved for race or national origin classifications. Clark v. Jeter, 486 U.S. 456, 461
(1988).
An "intermediate" level of scrutiny has been employed by the Court as well, and is
reserved for laws that employ quasi-suspect classifications such as gender, Craig. 429 U.S. at
197, or illegitimacy, Mills v. Habluetzel, 456 U.S. 91,98-99 (1982). This intermediate level of
scrutiny upholds state laws only if they are "substantially related to an important governmental
objective." Clark, 486 U.S. at 461.
"See Tr. 62:10-tl, ECF No. 132 ("[P]IaintitTs can prove and bring fonh no history of discrimination.").
36
383
The least rigorous kind of scrutiny is reserved for legislative classifications that are not
"suspect." This kind of legislation passes constitutional muster if it bears a rational relationship
to some legitimate end. Romer, 517 U.S. at 631.
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.'
6
The Proponents' contentions that a rational relationship exists between Virginia's
Marriage Laws at issue and a legitimate purpose have been considered carefully. These
contentions have been evaluated fully under the analysis of Plaintiffs' substantive due process
claims.
The legitimate purposes proffered by the Proponents for the challenged laws-to promote
conformity to the traditions and heritage of a majority of Virginia's citizens, to perpetuate a
generally-recognized deference to the state's will pertaining to domestic relations laws, and,
finally, to endorse "responsible procreation"-share no rational link with Virginia Marriage
Laws being challenged. The goal and the result of this legislation is to deprive Virginia's gay
and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving,
rewarding, monogamous relationship with a partner to whom they are committed for life. These
results occur without furthering any legitimate state purpose.
16
Although this Court need not decide whether Virginia's Marriage Laws warrant heightened scrutiny, it would be
inclined to so find. See Perry, 704 F. Supp. 2d at 997 ("[S]trict scrutiny is the appropriate standard of review to
apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear
suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on
their sexual orientation.fl), a.fTd sub nom. Perry v. Brown, 671 F.3d 1052, 108Hl2, 1095 (9th Cir. 2012), vacated
for want of standing sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (20 13); SmithK/ine Beecham Corp. v.
Abbott Labs, Nos. 11-17357, 11-17373,2014 WL 211807, at 9 (9th Cir. Jan. 21, 2014) (holding that Windsor
compels heightened scrutiny of a lawyer's peremptory strike of jurors based on their sexual orientation).
37
384
3. Plaintiffs are entitled to relief under Section 1983
To state a claim for relief in an action brought under Section 1983, Plaintiffs must
establish that they were deprived of a right secured by the Constitution or laws of the United
States, and that the alleged deprivation was committed under color of state law. Am. Mfrs. Mut.
Ins. Co. 1. Sullivan, 526 U.S. 40, 49-50 (1999). The Proponents declined to challenge Plaintiffs'
Section 1983 claims. The validity of these claims warrant brief review.
"The ultimate issue in determining whether a person is subject to suit under [Section]
1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged
infringement of federal rights 'fairly attributable to the State?"' Rende/1-Baker v. Kohn, 457
U.S. 830, 838 (1982) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)). Plaintiffs
allege that Virginia's Marriage Laws, and their enforcement by the state officials who are named
defendants, violate their rights under the Equal Protection Clause of the Fourteenth Amendment.
Because Virginia's Marriage Laws are herein struck as unconstitutional, and there is sufficient
state action to permit relief under the Federal Due Process and Equal Protection Clauses,
Plaintiffs' Section 1983 claims are well-taken.
IV. CONCLUSION
Each of the parties before the Court recognizes that marriage is a sacred social institution.
The commitment two individuals enter into to love, support each other, and to possibly choose to
nurture children enriches our society. 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
38
385
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.
Ultimately, this is consistent with our nation's traditions of freedom. "[T]he history of
our Constitution ... is the story of the extension of constitutional rights and protections to people
once ignored or excluded." United States v. Virginia, 518 U.S. 515, 557 (1996). Our nation's
uneven but dogged journey toward truer and more meaningful freedoms for our citizens has
brought us continually to a deeper understanding of the first three words in our Constitution: we
the people. "We the People" have become a broader, more diverse family than once imagined.
17
Justice has often been forged from fires of indignities and prejudices suffered.
18
Our
triumphs that celebrate the freedom of choice are hallowed.
19
We have arrived upon another
moment in history when We the People becomes more inclusive, and our freedom more perfect.
11
See U.S. CONST. amend. XV (granting African American men the right to vote); U.S. CONST. amend XIX
(f!nting women the right to vote).
1
See Powell v. Stale of Ala., 287 U.S. 45 (1932) (guaranteeing legal counsel in criminal proceedings in state and
federal courts); Shelley v. Kraemer, 334 U.S. I (1948) (prohibiting courts from enforcing "restrictive covenants"that
prevent people of a certain race from owning or occupying property); Brown v. Board of Ed. of Topeka, 347 U.S.
483 (1954) (allowing desegregation of schools); Gideon v. Wainwright, 372 U.S. 335 (1963) (finding defendants in
criminal cases have an absolute right to counsel); Heart of Atlanta Motel. Inc. v. United Stales, 379 U.S. 241 (1964)
(finding that any business participating in interstate commerce would be required to follow all rules of the federal
civil rights legislation); Loving v. Ylrginia, 388 U.S. I (1967) (finding prohibition on interracial marriage
unconstitutional); Reedv. Reed, 404 U.S. 71 (1971) (finding for the first time that a law that discriminates against
women is unconstitutional); Frontiero v. Richardson, 411 U.S. 677 (1973) (striking down a federal statute that
automatically granted male members of the uniformed services housing and benefits for their wives, but required
female members to demonstrate the "actual dependency" of their husbands to qualify for the same benefit); Craig v.
Boren, 429 U.S. 190 (1976) (adopting a "heightened scrutiny" standard of review to evaluate legal distinctions based
39
386
Almost one hundred and fifty four years ago, as Abraham Lincoln approached the
cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take
his life and the lives of hundreds of thousands of others, he wrote these words: "/1 can not have
failed to strike you that these men ask for just ... the same thing-fairness, and fairness only.
This, so far as in my power, they, and all others, shall have. "
20
The men and women, and the children too, whose voices join in noble harmony with
Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court's power,
they and all others shall have.
ORDER
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
on gender); Dotllardv. Rawlingson, 433 U.S. 321 (1977) (invalidating Alabama's height and weight requirements
for prison guards that have the effect of excluding the majority of female candidates); Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265 (1978) (finding affirmative action unfair if it resulted in reverse discrimination); United Stotes
v. Virginia, 518 U.S. SIS (1996) (ruling that the all-male Virginia Military Institute's discriminatory admissions
p,olicy violated women's equal protection rights).
9
See Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (implying a right to privacy in matters of contrsception
between married people); Loving v. Virginia, 388 U.S. I ( 1967) (protecting an individual's choice to marry the
person he or she loves); Roe v. Wode, 410 U.S. 113 (1973) (finding an implied right to privacy protects a woman's
choice in matters of abortion); Cruzan by Cruzan v. Dir., Missouri Dep 't of Health, 497 U.S. 261 (1990) (finding that
while the Constitution protects a person's right to reject life-preserving medical treatment (their "right to die"), states
can regulate that interest if the regulation is reasonable).
,. Letter from Abraham Lincoln to the Hon. Leonard Swett (May 30, 1860), in 4 The Collected Works of Abraham
Lincoln 51 (Roy P. Basler et al. eds. 1953).
40
387
Virginia Code and Article I, 15-A of the Virginia Conslitution 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 1. 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.
Counsel for Plaintiffs, Defendants, and Intervenor-Defendant nrc ordered to me proposed
Judgments for the Court's consideration. These proposals shall be filed by March 14,2014.
IT IS SO ORDERED.
FEB 1 4 2014
Norfolk, Virginia
41
QJ_A_ u !1:1 afl-
1 Arcnda L. Wright Allen-b
388
Norfolk Division
TIMOTHY B. BOSTIC, eta/., )
)
)
)
Plaintiffs,
v.
) Civil Action No. 2:13-cv-00395-ALWA
)
JANET M. RAINEY, eta/., )
)
Defendants. )
JUDGMENT
THIS ACTION having come before the Court on the parties' respective cross-motions for
summary judgment, and the Court having rendered its Opinion and Order of February 13, 2014
(Doc. 135), as amended February 14,2014 (Doc. 136), it is hereby
ORDERED, ADJUDGED AND DECREED that:
I. Virginia's marriage laws are facially unconstitutional under the Due Process and
Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution to the
extent they deny the rights of marriage to same-sex couples or recognition of lawful marriages
between same-sex couples that are validly entered into in other jurisdictions.
2. The Clerk of the Circuit Court of the City of Norfolk, the Clerk of the Circuit
Court of Prince William County, and their officers, agents, and employees, and the officers,
agents, and employees of the Commonwealth of Virginia including the State Registrar of Vital
Records are hereby ENJOINED from enforcing: Article I, 15-A, of the Constitution of
Virginia; Virginia Code 20-45.2; Virginia Code 20-45.3; and any other Virginia law if and to
389
the extent that it denies to same-sex couples the rights and privileges of marriage that are
afforded to opposite-sex couples.
3. The effect of this judgment and the injunction set forth above are hereby
STAYED pending final disposition by the United States Court of Appeals for the Fourth Circuit
of the forthcoming appeal.
4. By agreement of the parties, Plaintiffs' claim for attorneys' fees and costs under
42 U.S.C. 1988 is hereby severed and will be considered by the Court after the final disposition
of the appeal.
This Judgment is FINAL.
/
Arenda L. Wright AU
W:EB 2 4
2
390
THE EASTERN DISTRICT OF VIRGINIA
-NORFOLK DIVISION-
TIMOTHY B. BOSTIC, et a!.
Plaintiffs,
JANET M. RAINEY, eta!.
Defendants.
NOTICE OF APPEAL
Notice is hereby given that Defendant George E. Schaefer, III, in his official capacity as
Clerk of Court for Norfolk Circuit Court, hereby appeals to the United States Court of Appeals
for the Fourth Circuit from the Final Judgment entered in this action on the 24
1
h day of February
2014 (NEF Doc. 139.)
POOLE MAHONEY PC
Phone: 757-962-6625
Fax: 757-962-6180
By: ___ ....t.l!i!l.sl____ _
in his official capacity as Clerk of Court for Norfolk Circuit Court
l
391
I hereby certify that on the 24th day of February, 2014, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system which will then send a notification of such
filing (NEF) to the following:
David Boies
dboies@bsfllp.com
Michael Hugh Brady
mbrady@oag.state.va.us,ktaylor@oag.state.va.us
Kenneth John Connelly
Jonathan Caleb Dalton
cdalton@alliancedefendingfreedom.org,adiaz@alliancedefendingfreedom.orgjbollig@all
iancedefendingfreedom.org
Chantale Fiebig
Earle Duncan Getchell, Jr
dgetchell@oag.state.va.us,mbrady@oag.state.va.us,wrussell@oag.state.va.us,KTaylor@o
ag. state. va. us
jgoldman@bsfllp.com
cchill@oag.state.va.us,shott@oag.state.va.us,pmessitt@oag.state.va.us
William Isaacson
Liberty Counsel, Inc
court@lc.org
Jordan Woodard Lorence
jlorence@telladf.org,bbabione@alliancedefendingfreedom.org,kconnelly@alliancedefen
dingfreedom.org,ahayes@alliancedefendingfreedom.orgjcampbell@alliancedefendingfre
edom.org
Charles Barnet Lustig
clustig@srgslaw.com,mjones@srgslaw.com,dreidy@srgslaw.com
Mark Randolph Matney
matneylaw@gmail.com
2
392
cmattox@alliancedefendingfreedom.org,ejobnson@alliancedefendingfreedom.org,rnrupp
aner@alliancedefendingfreedom.orgjhallock@alliancedefendingfreedom.org,adiaz@alli
ancedefendingfreedom.org
Mary Elizabeth McAlister
court@lc.org
Matthew D McGill
David Brandt Oakley
doakley@poolemahoney.com,cjones@poolemahoney.com
Theodore B Olson
Erik C. Porcaro
eporcaro@srgslaw.com,eclark@srgslaw.com
Stuart Alan Raphael
sraphael@oag. state. va. us,atysinger@oag.state. va. us,ktaylor@oag.state. va. us
Joshua I Schiller
Thomas Brady Shuttleworth , II
tshuttleworth@srgslaw.com,pmerullo@srgslaw.com,pburford@srgslaw.com,cvaugban@
srgslaw.com,clustig@srgslaw.com
Robert Brian Silver
rsilver@bsfllp.com
Amir C Tayrani
Norman Allan Thomas
ntbomas@oag.state.va.us
And I hereby certify tbat I will mail the document by U.S. Mail to the following non-
By: Is/
POOLE MAHONEY PC
860 Greenbrier Circle, Suite 40 I
Phone:757-962-6625
3
393
Fax: 757-962-6180
Email: doakley@ooolemahoney.com
4
394
Norfolk Division
Plaintiffs,
v.
JANET M. RAINEY, et at.,
Defendants.
)
)
)
)
) Civil Action No. 2:13-cv-00395-ALWA
)
)
)
)
NOTICE OF APPEAL
PLEASE TAKE NOTICE that Defendant Janet M. Rainey, in her official capacity as the
State Registrar of Vital Records, hereby appeals to the United States Court of Appeals for the
Fourth Circuit from the District Court's Judgment (Doc. 139), entered February 24, 2014, and
from the Opinion and Order dated February 13, 2014 (Doc. 135), as amended on February 14,
2014 (Doc. 136).
Mark R. Herring
Cynthia E. Hudson
/s/
(804) 786-7240- Telephone
(804) 371-0200- Facsimile
sraphael@oag.state. va. us
395
Senior Counsel
Trevor S. Cox, VSB #78396
Deputy Solicitor General
E-mail: tcox@oag.state.va.us
I hereby certify that on February 24, 2014, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, which will send a copy to counsel of record.
Is/
Stuart A. Raphael
2
396
Plaintiffs,
v.
Defendants,
and
Circuit Court,
NOTICE OF APPEAL
Notice is hereby given that Michele B. McQuigg, Intervenor-Defendant in the above
captioned case, in her official capacity as Prince William County Clerk of Circuit Court, hereby
appeals to the United States Court of Appeals for the Fourth Circuit from (1) the Judgment
entered on February 24, 2014 (ECF No. 139), and (2) the Opinion and Order entered on February
13, 2014 (ECF No. 135), as amended on February 14, 2014 (ECF No. 136), granting Plaintiffs'
Motion for Summary Judgment and Denying Defendant Schaefer's and Intervenor-Defendant
McQuigg's Motions for Summary Judgment.
Dated: February 25, 2014
By: Is/
J. Caleb Dalton, VA Bar No. 83790
15100 N 90th Street
Tel: ( 480) 444-0020
Fax: (480) 444-0028
397
David Austin R. Nimocks,* D.C. Bar No.
992409
Tel: (202) 393-8690
Fax: ( 480) 444-0028
animocks@alliancedefendingfreedom.org
Kenneth J. Connelly,* AZ BarNo. 025420
15100 N 90th Street
Tel: (480) 444-0020
Fax: ( 480) 444-0028
398
I hereby certify that on February 25, 2014, I will electronically file the foregoing
document with the Clerk of Court using the CMIECF system, which will then send a notification
of such filing (NEF) to the following participants:
David B. Oakley
Poole Mahoney PC
Robert E. Ruloff
rruloff@srgslaw .com
Charles B. Lustig
clustig@srgslaw.com
Erik C. Porcaro
Morecock, P.C.
Michael H. Brady
mbrady@oag.state.va.us
cchill@oag. state. va. us
Stuart Raphael
900EMainSt
Richmond, VA 23219
Attorneys for Defendant Janet M. Rainey
Chantale Fiebig
Amir C Tayrani
Theodore B Olson
Matthew D McGill
David Boies
dboies@bsfllp.com
333 Main St.
Armonk, NY 10504
jgoldman@bsfllp.com
Oakland, CA 94612
399
Robert Brian Silver
rsilver@bsfllp.com
Joshua I. Schiller
New York, NY 10022
William Isaacson
Attorneys for Plaintiffi
Mark Randolph Matney
Michael C. Tillotson LLC
13195 Warwick Blvd
Suite 2A
(757) 969-5197
Fax: (757) 969-5988
Email: matneylaw@gmail.com
Jennifer Jesusa Truitt
The Law Office of Jennifer J. Truitt PLLC
11848 Rock Landing Dr
Suite 202A
(757) 806-6592
Email: mailbox@jennifeljtruitt.com
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14-1167 #72

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14-1167 #72

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RECORD NO.

Document 26-15 Filed 09130113 Page 2 of 5 PageiD# 242

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