More great work by Virginia Attorney General Mark Herring – thank you! Also, check out the “flip” of this post for selected quotes from Virginia’s brief in the Bostic case (oral arguments will begin on May 13). As Herring’s office says, “Hopefully this will make it a little easier to identify the conclusions of the Commonwealth’s arguments, as well as some of Attorney General Herring’s more noteworthy points.”

*This Court should affirm the district court’s decision because it correctly held that Virginia’s ban on same-sex marriage could not satisfy rational-basis review, let alone heightened or strict scrutiny. [Pg. 13]

*Although the Attorney General agrees that Virginia’s ban is unconstitutional, he has made clear that Rainey will continue to enforce the ban until a definitive judicial decision can be rendered. [Pg. 15.]

*And the zealous defense of the ban by Schaefer and McQuigg, and by their twenty-one amici, ensures that this Court has the benefit of a “sharp adversarial presentation” of the issues. [Pg. 16]

*All individuals means all individuals. Loving teaches that the Fourteenth Amendment protects the  fundamental right to marry, even if the way in which it is practiced would have surprised the Framers or made them feel uncomfortable. [Pg. 21]

In other words, the fundamental right at issue here is the right to marriage: not the right to interracial marriage, Loving, 388 U.S. at 6; not the right of prison inmates to marry, Turner, 482 U.S. at 96; not the right of people owing child support to marry, Zablocki, 434 U.S. at 383; and not the right to same-sex marriage. See Obergefell, note 9 supra, at 31 n.10.

*As Judge Shelby put it: “[b]oth same-sex and opposite-sex marriage are . . . simply manifestations of one right-the right to marry-applied to people with different sexual identities.” Kitchen, 961 F. [Pg. 24]

*The Commonwealth agrees that heightened scrutiny is the proper test for laws that discriminate based on sexual orientation. [Pg. 26]

*What the Federal Government said in Windsor cannot be denied: “[g]ay and lesbian people have suffered a significant history of discrimination in this country.” Brief of the United States, supra note 15, at 22. “No court to consider the question has concluded otherwise, and any other conclusion would be insupportable.” [Pg. 28]

The district court was correct when it recognized that prejudice against gay people in Virginia has tended “seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities[.]” Bostic, supra, at (JA 382) (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4

*(1938)). For example, Virginia’s hate-crime law does not protect against crimes motivated by sexual-orientation bias. Neither Virginia’s Human Rights Act21 nor its Fair Housing Law prohibits discrimination on the basis of sexual orientation. And repeated efforts have failed to expand those laws to protect gay citizens. In fact, the prior Virginia Attorney General catalogued those repeated failures (JA 180 n.4) as evidence of Virginia’s “consistent public policy” not to recognize sexual orientation “as a protected class” (JA 181), advising Virginia’s colleges and universities to remove sexual orientation as a protected class from their existing anti-discrimination policies. (JA 181-82.) [Pg. 33-34]

*”As political power has been defined by the Supreme Court for purposes of heightened scrutiny analysis, gay people do not have it.” Obergefell, note 9 supra, at *55. The fact that the Attorney General of Virginia has now taken up their defense does not mean that laws discriminating against gay people are no longer “suspect,” any more than courts stopped applying strict scrutiny to racial discrimination when Attorney General Robert F. Kennedy urged passage of the Civil Rights Act of 1964. [Pg.35]

*Courts are suspicious of laws that discriminate based on race, national origin, gender, alienage, and illegitimacy. Such classifications are “suspect” because, in our nation’s history, they often spring from prejudice. So we put a heavy burden on the State to justify them. It is simply not credible to argue that courts have no similar reason to be suspicious of laws that discriminate on the basis of sexual orientation. [Pg. 36]

*Although McQuigg argues there is no gender classification here because “both sexes are treated equally” (McQuigg Br. 18), the Supreme Court rejected the same argument in Loving. In Loving, Virginia’s Attorney General claimed that the Commonwealth’s ban on interracial marriage treated the races equally because Virginia “punished equally both the white and the Negro participants in an interracial marriage.” [Pg. 37]

*In writing its opinion, this Court should reject the pejorative phrases “genderless marriage” and “marriage-mimicking construct” that McQuigg (but not Schaefer) uses to describe the core freedom at stake here. (McQuigg Br. 6-7.) Marriage between gay people is no more “genderless” than marriage between heterosexuals; gender plays a vital role. And Plaintiffs do not seek to mimic marriage; they seek to marry. Calling it “genderless” and “marriage mimicking” is insulting, “just as it would demean” heterosexuals to say that their marriage is “simply about” opposite-sex “intercourse.” Lawrence, 539 U.S. at 567. [Pg. 38]

*Many good and decent Virginians undoubtedly voted for the Marshall-Newman Amendment because of sincerely held religious beliefs that homosexuality is wrong or that gay marriage conflicts with Biblical teachings. For them, the ban ensured that their “strongly held values” are “reflected in the law.” (U.S. Conference of Catholic Bishops Br. 29-30 (Doc. 95-1).) But religion cannot justify State-sponsored discrimination… recognizing that the Constitution prevents the State from enforcing such beliefs does not pronounce the beliefs themselves “illegitimate.” (U.S. Conference of Catholic Bishops Br. 30.) It simply recognizes that such views cannot deprive other citizens of their rights. It should go without  saying that striking down Virginia’s ban will not obligate religious institutions to perform same-sex weddings. [Pg. 39-40]

*Second, McQuigg’s procreation-channeling theory cannot justify Virginia’s ban because it is irrational to think that banning same-sex marriage will make heterosexual couples more likely to marry and have children of their own. [Pg. 43]

In the record in this case (not to mention every other case), “[n]o one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages, individually or collectively.” Bourke, note 9 supra, at 36-37. [Pg. 44-45]

*Third, the responsible-procreation/optimal-child-rearing rationale is outright demeaning to both same-sex and opposite-sex couples. It tells those who are not interested in having children, or unable to have them the “natural” way, that their relationships are less important, if not “unworthy.” Windsor, 133 S. Ct. at 2694. It also “humiliates tens of thousands of children now being raised by same-sex couples,” making it “even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. [Pg. 45]

*'[a] law which condemns, without hearing, all the individuals of a class to so harsh a measure . . .because some or even many merit condemnation, is lacking in the first principles of due process.'” Bostic, supra, at *19 n.13 (JA 379) (quoting Skinner v. Okla. ex rel. Williamson, 316 U.S. 535, 545 (1942) (emphasis added)). [Pg. 46]

Two separate federal trials have resulted in courts finding no scientifically reliable evidence to support the claim that children raised in same-sex marriages are worse off than children raised in opposite-sex marriages. DeBoer, note 9 supra, at 8-30, *35-40; Perry, 704 F. Supp. 2d at 980-81.

DeBoer found that the expert witnesses called by Michigan to support its same-sex-marriage ban failed to apply scientific methods and lacked credibility. DeBoer, note 9 supra, at 19-30. The court found the testimony of Michigan’s lead witness, sociologist Mark Regnerus, “entirely unbelievable and not worthy of serious consideration,” id. at 22, and that a recent study he completed was unreliable because, among other reasons, it was rushed through for a third-party funder for use in litigation. Id. at *22-23. Many of the Clerks’ amici cite Regnerus’s work without mentioning the district court’s scathing criticism in DeBoer. (Soc. Sci. Profs. Br. (Doc. 83-1); Alvare Br. (Doc. 88-1); Liberty Counsel & Am. Coll. of Pediatricians Br. (Doc. 91-1); Lopez Br. (Doc. 100-1).) [Footnote 24; Pg. 26-47]

*McQuigg (but not Schaefer) argues that the ban is justified by the State’s compelling interest in protecting children, but she fails to explain why it has a compelling interest in excluding gay people from marriage, thereby making it harder for gay parents to raise their children. (McQuigg Br. 34.)… And McQuigg does not even mention the legal and economic benefits of marriage that are locked away from same-sex couples-such as spousal privilege, tenant-by-entirety ownership, inheritance rights, statutory beneficiary status, and medical decision-making authority, to name a few. [Pg. 48]

*It takes only a moment’s reflection to realize that the Fourteenth Amendment necessarily trumps the federalism claim… And when the Court in Windsor discussed the States’ traditional role in regulating marriage, it made clear, citing Loving, that “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” 133 S. Ct. at 2691 (emphasis added). [pg. 51-52]

*The Clerks and many of their amici resort to slippery-slope arguments, warning that, if States cannot ban same-sex marriage, they will have to allow plural marriage, marriage between siblings, and marriage to young children. Virginia’s counsel raised the same specter in Loving, arguing that Virginia’s “prohibition of interracial marriage” stood “on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.” These tactics are no more persuasive in 2014 than they were in 1967…no bogeyman can justify denying same-sex couples the right to marry when marriage equality is compelled by cases like Loving, Romer, Lawrence, and Windsor. [Pg. 55-56]

*As Romer shows, the fact that a discriminatory law is embedded in the State’s constitution does not insulate it from being struck down under the Fourteenth Amendment. [Pg. 57]

*The equality-of-right principle in the Fourteenth Amendment is not frozen in time. Its application does not depend on how we think the Framers might answer our legal questions. If it did, the Constitution would not today forbid segregated schools, ensure the freedom to marry persons of a different race, or guarantee equal justice in countless other situations that the Framers did not anticipate. [Pg. 59]

*Because Virginia’s same-sex couples are entitled to equal justice under law, the Court should affirm the judgment of the District Court. [Pg. 60]

1. They absolutely, positively should NOT back off on the streetcar project. All the evidence indicates that this is a huge winner for Arlington, generating billions of dollars in development and enough tax revenue to more than pay for the streetcar. If that’s not a “no brainer,” I don’t know what it is. Also, politically, backing off the streetcar at this point will just look politically craven, phony, etc, after all the strong arguments made by the Board and by Alan Howze in favor of the project. Flip-flopping now, after a low-turnout special election, would be a lose-lose any way you look at it.

2. They absolutely, positively SHOULD forcefully counter the disinformation, distortions, and outright lies about the streetcar project. For instance, the claim that the streetcar has taken away from “core services” is utterly absurd, since the county hasn’t even spent any money (other than a small amount in studying it) on the streetcar yet — so how could it have taken away funds from anything else? Also, in the future, the streetcar will NOT take money away from “core services,” since it will a) have a dedicated funding source that isn’t “fungible” with other things; and b) again, it will bring in enough new revenues to MORE than pay for itself. Finally: if anything, the streetcar will – ceteris parabis – results in lower tax rates for Arlingtonians, not higher ones. The list goes on and on…call out the lies!

3. The Board absolutely, positively SHOULD examine the way it does business. The perceptions of “arrogance,” “insularity,” “non-communicativeness”  and “opacity” are most definitely NOT figments of people’s imaginations. Heck, I’ve experienced them many times myself. So did Cord Thomas, who told the story about how hard it was to get a simple response from County officials, when he was offering to create jobs and economic activity in Arlington County. That’s unacceptable. It’s also unacceptable that the Clarendon businesses assessment fiasco reported by ArlNow back in February has STILL not been seriously addressed. Also, why on earth aren’t those assessments available online, for all Arlingtonians to see, on a real-time basis? And why can’t reporters get any answers from the Director of Real Estate Assessments in Arlington County? I tried weeks ago, for instance, and never heard back. Why not?

4. Alan Howze needs to give people reasons to vote FOR him. That includes calling out – angrily/passionately when justified – Arlington County government when it’s seriously off course, as with the assessment fiasco. It also includes giving voters a vision for what he might bring to the board, for instance from his experience at IBM. As an Arlington Democratic friend of mine said yesterday: “How about making the county a wi-fi hot spot? turning crystal city into a tech incubator? working with his old boss Warner to bring tech businesses here. upgrading county computer systems so people have an easier time doing x, y, z. Gimme something. Honest to god that was what he came up with. GPSs on snowplows.”

5. Any Democrat who says that we should chill out because we’ll “win easily” in November, when Mark Warner is on the ballot and turnout is way up, needs to stop talking. Immediately. And everyone else needs to stop listening to them if they DO talk. Seriously, that’s one of the stupidest and most arrogant/clueless things I’ve ever heard in my life. Whether in sports, business, politics, or any other field, the LAST thing you want to do is take your opponent lightly (especially when said opponent just kicked your a**), to assume you’re going to win (which is exactly when you are most likely to lose!), and in general to take your pedal off the metal. Instead, assume we’re a run or two down in the final innings of the baseball game, and play like your future career in the major leagues depends on how you perform in the final weeks/months of the season! I’d also argue that the argument’s just fundamentally flawed, that just because turnout will be higher, that those voters will go overwhelmingly for the Democratic candidate for County Board. To the contrary, I’d argue that if voters could easily split their ballots, going for Mark Warner, the Democratic nominee for House of Representatives, and John Vihstadt for County Board (especially if he performs well from now through election day in November). Assuming anything else is simply political malpractice of the highest order.

From the Democratic Party of Virginia: 

RICHMOND — As Senator Mark Warner travels the Commonwealth speaking to constituents about real issues facing Virginia, it has been 84 days since the launch of Ed Gillespie's campaign and he's yet to hold an event open to press. While he's found plenty of time to talk to right-wing reporters and pundits, we have found no evidence that Ed allowed Virginia reporters into a single campaign event in March.

“As a seasoned spokesman, Ed Gillespie has never been one to shy from the cameras. However, now that he's the candidate, he's in hiding,” said DPVA Spokesperson Ashley Bauman. “It's time Ed Gillespie show his face and answer questions on some of the most pressing issues facing the Commonwealth today, including where he stands on closing the coverage gap, helping unemployed Virginians, protecting health care choices for Virginia women, and other important issues.“