Lambda Legal and ACLU File Federal Class Action Challenging Virginia's Gay Marriage Ban

Following up on their previously announced intention to challenge Virginia's anti-gay marriage ban, Lambda Legal and the ACLU filed a class action suit this morning in the U.S. District Court for the Western District of Virginia, Harrisonburg Division.  This comes in the wake of a suit filed last month in the U.S. District Court for the Eastern District of Virginia, Norfolk Division, filed by a Norfolk couple.  The new lawsuit, as noted is a class action suit, and the plaintiffs are  Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, and seeks to represent all same-sex couples in Virginia who wish to marry there or who have married in other jurisdictions.  Here are excerpts from Lambda Legal's blog that discusses the lawsuit:

“Virginia is home for us. Our families are here, our jobs are here, and our community is a great support for us, but it makes us sad that we cannot get married where we live,” said Joanne Harris, a lifelong Virginian and the daughter of Bedford, Va., farmers. “It hits me in the gut that two hours from our house same-sex couples in Maryland and D.C. can marry. I have a serious medical condition and we’ve had to spend lots of money to try to make sure that Jessi can make decisions for me if there were ever a crisis.”

"I’m an Air Force veteran, and if Virginia would just respect our marriage from D.C., it would ensure that my spouse and family could access all the benefits I’ve earned," said Christy Berghoff, from Winchester. "I’ve been with Victoria for almost a decade now; and it hurts to have our home state say we are not married when it recognizes marriages entered into by different-sex couples who may have only recently met.”

“More than half of the people of Virginia believe all Virginians should have the freedom to marry the person they love, said Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia. “Every day that same-sex couples in Virginia are denied the freedom to marry, the government sends a message that they are second class citizens and their families are not worthy of equal dignity and respect.”

The press release on the filing of the suit is here.  The complaint itself can be found here.  The following are some excerpts from the complaint:

The Named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 on behalf of themselves and the Plaintiff Class, seeking declaratory and injunction relief for the violation of Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution caused by the exclusion of same-sex couples from the freedom to marry and from recognition of the marriages some Plaintiffs have entered into in other jurisdictions under the law of the Commonwealth of Virginia (“Commonwealth” or “Virginia”).

Marriage plays a unique role in society as the universally recognized and celebrated hallmark of a couple’s commitment to build family life together.   It confers upon couples a dignity and status of immense import.  Plaintiffs have formed committed, enduring bonds equally worthy of the respect afforded by the Commonwealth to different - sex couples through marriage. Yet, the Commonwealth, without any adequate justification, has enacted an unprecedented series of statutory and constitutional amendments to single out lesbian and gay Virginians by excluding them from the freedom to marry, or by refusing to recognize their existing marriages from other jurisdictions, based solely on their sexual orientation and their sex.

The marriage ban inflicts serious and irreparable harms upon same sex couples and their children.   Joanne Harris and Jessica Duff are unmarried, and wish to marry for the same reasons as different - sex couples to publicly declare their love and commitment before their family, friends, and community, and to give one another and their son J. H. D. the security and protections that only marriage provides.   Christy Berghoff and Victoria Kidd have married in another jurisdiction, but are treated as legal strangers in the state they call home a painful invalidation of their relationship that also deprives them and their daughter L. B. K. of  the protections that a legally recognized marriage most securely provides.

[T]he Commonwealth’s exclusion of  same - sex couples from marriage and refusal to recognize their valid marriages from other jurisdictions and Defendants’ enforcement of the marriage ban violate the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution.

As the Supreme Court has made clear, the law cannot, directly or indirectly, give effect to private biases.   Liberty and equality, not moral disapproval, must be the guiding framework for a state’s treatment of its citizens.

Excluding same - sex couples from marriage does nothing to protect or enhance the rights of different - sex couples. Different - sex spouses will continue to enjoy the same rights and status conferred by marriage regardless of whether same - sex couples may marry, unimpaired by the acknowledgment that this freedom belongs equally to lesbians and gay men.

The Commonwealth’s interest in child welfare is affirmatively harmed rather than furthered by the exclusion of same - sex couples from marriage. That exclusion injures same - sex couples’ children without offering any conceivable benefit to other children.  . . . Other courts have found, after trials involving expert testimony, that there is no rational basis for favoring parenting by heterosexual couples over gay and lesbian couples.

 

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Virginian Pilot: It Is Time for Marriage Equality in Virginia

While anti-gay bigotry and animus remain synonymous with the Republican Party of Virginia and its puppet masters at The Family Foundation, things are shifting rapidly in Virginia - a new poll showed that a majority of Virginians now favor gay marriage - especially in the urban areas of the Commonwealth which when voter turn out is high readily determine which candidates are elected to statewide offices.  With a federal lawsuit now pending in Virginia seeking to have Virginia's gay marriage ban struck down and a recent ruling in Ohio, the Virginian Pilot calls out for marriage equality now and rightly identifies what motivated the passage of Virginia's foul Marshall-Newman Amendment which wrote discrimination into the Bill of Rights of the Virginia Constitution: malice and animus.  Not surprisingly, some of the local knuckle draggers are none too happy with the truth being stated based on their delusional comments (which underscore the malice and animus cited).  Here are highlights from the main editorial:

The ballot measure [the Marshall-Newman Amendment] was a political tactic to drive voter turnout. It was crafted by Republican strategists, designed to leverage social conservatism in the name of partisan advantage. It worked to a degree in both states, although former Sen. George Allen might disagree.

The human cost was and remains immense. Gay couples were marginalized, unwelcome in their own states. Even minor legal arrangements within a family were subject to challenge.

No matter the rationalizations mouthed by organizations like the Family Foundation, the basic truth is that each vote excluded homosexual Virginians from fundamental rights because of how they were born.

As has become increasingly clear, history will look unkindly upon the day the amendment was passed and will hold its most vicious and opportunistic supporters accountable.

Earlier this year, the U.S. Supreme Court began the process of unwinding such discriminatory measures.

It is only a matter of time before that process effects change in Virginia, where the constitutional amendment that carries the names of Sen. Steve Newman and Del. Bob Marshall will be undone. This week, it arrived in Ohio, courtesy of a federal judge.

"This is not a complicated case," wrote U.S. District Judge Timothy Black. "The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated."

Even though Black's opinion came in an Ohio case, the same reasoning applies in Virginia, which has also historically respected marriages from other states. Even though there's no such institution as a common-law marriage in Virginia, for example, the commonwealth recognizes such unions from other states.

As Black wrote, the only reason to refuse to recognize gay unions performed in states that permit them - as the Supreme Court found in the United States vs. Windsor - is to "impose inequality." Furthermore, the judge made clear that Ohio didn't come close to meeting the standard required for withholding such basic rights:

"Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association."

Anti-gay amendments - as in Ohio and Virginia and 29 other states - undo that protection. They impose inequality out of malice and animus, elevating the will of the majority over the rights of individuals. Thankfully, the days of such measures are numbered.

Unfortunately, The Family Foundation and its triumvirate of hate merchants on the GOP statewide ticket -  Ken Cuccinelli, E.W. Jackson, and Mark Obenshain - care nothing about equality or the U. S. Constitution,  Instead, their sole goal is to impose Christofascist religious views on all Virginians.

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Federal Court Orders Ohio Officials To Recognize Gay Couple’s Marriage

In a surprisingly fast reaction to the lawsuit filed by a couple in Ohio challenging that state's gay marriage ban, a federal judge in Ohio ordered Ohio state officials on Monday to recognize the marriage of two men that was performed in Maryland on the death certificate of an Ohio resident in hospice care who the judge says “is certain to die soon.”  While the merits of the case have yet to be decided, the ruling my indicate how the Court plans to ultimately rule in the wake of the Windsor decision last month.  One can only wonder how the folks at NOM will try to describe this development as a "victory.  The New Civil Rights Movement has details.  Here are story highlights:

 

A federal judge has just ordered the state of Ohio to recognize a same-sex couple’s marriage, noting that not doing so would likely be considered discrimination and therefore unconstitutional. While the judge’s ruling does not invalidate Ohio’s constitutional amendment banning same-sex marriage, the wording of the judge’s ruling certainly calls it into question.

On July 11, after spending 20 years together, John Arthur and James Obergefell were married in Maryland, where same-sex marriage became legal this year. John Arthur is terminally ill with ALS, and the couple flew to Maryland to marry before Arthur’s death.

The couple had “hoped to be buried next to each other, to spend eternity together, but the state of Ohio and his spouse’s relatives won’t let him – because he married another man, John Arthur,”

Federal U.S. District Magistrate Judge Timothy Black has just ordered the state of Ohio to recognize the couple’s marriage.

“Black found that the Ohio Constitution on the issue ‘violates rights secured by the … United States Constitution in that same-sex couples married in jurisdictions where same sex marriages are valid who seek to have their out-of-state marriage accepted as legal in Ohio are treated differently than opposite sex couples who have been married in states where their circumstances allow marriage in that state but not in Ohio,’” Cincinnati.com also reported.

“According to the order, Obergefell and Arthur live in Cincinnati, Ohio, and ‘have been living together in a committed and intimate relationship for more than twenty years,’” Chris Geidner at Buzzfeed adds:

The order also notes “they were very recently legally married in the state of Maryland pursuant to the laws of Maryland recognizing same sex marriage.”

“The end result here and now is that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthur’s status at death as ‘married’ and James Obergefell as his ‘surviving spouse,’” Judge Timothy Black wrote in an order Monday.

Theoretically, this ruling could be the first step in tossing out as unconstitutional Ohio’s ban on same-sex marriage, but it’s important to note the ruling is a temporary restraining order and can only be applied, at least for now, to John Arthur and James Obergefell.

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Cuccinelli Confirms Anti-Gay Stance; Liberty Counsel: ‘The life of the Average Homosexual is Controlled by Lust’

In the first debate between Terry McAuliffe and Ken "Kookinelli" Cuccinelli, Kookinelli again confirmed his anti gay animus and refused to renounce any of his past statements denigrating LGBT Virginians.   Meanwhile, his supporters at Liberty Counsel were providing evidence of the anti-gay animus that was the sole motivation behind the passage of Virginia's gay marriage ban by describing gays as being controlled by lust.   First these highlights from The Hill on the debate sparring on gay rights:

On gay marriage, Cuccinelli was asked by moderator Judy Woodruff about prior comments that homosexuality was against nature.

“My personal beliefs about the personal challenge of homosexuality haven't changed,” he replied.

McAuliffe said such comments would drive businesses away from Virginia and said he would support changing the Virginia Constitution to allow same-sex marriage. Cuccinelli retorted that the suggestion business would suffer was laughable and offensive.

With Virginia dependent on tourism, apparently Kookinelli thinks alienating the $70 billion domestic LGBT tourism market is laughable.
 
As noted above, the folks at Virginia based Liberty Counsel are busy providing proof that anti-gay animus is what moved The Family Foundation and Liberty Counsel to back the Marshall-Newman Amendment in 2006.   LGBTQ Nation provides details:

Crampton and Barber warned that these sorts of attacks on anti-gay Christians will only increase in the months and years ahead because, as Crampton explained, “the life of the average homosexual is not controlled by reason” but a perverted lust and passion that has “overwhelmed them.” And thus, when you couple that “a lack of self-control” with “the taste of blood,” you have a recipe for further bloodletting.

Barber agreed, declaring that gays “define their entire identity based up aberrant sexual behaviors and sexual temptations and acting on those temptations” and so, as Scripture proclaims, they are eventually consumed by this “lust-filled, sex-centric, perversion-centric lifestyle” and ultimately driven by a “dark soul” to commit this sort of violent behavior:

Let's hope statements like that from 2006 are found and presented at trial in the gay marriage case now pending in the U.S. District Court for the Eastern District of Virginia.  They definitely suggest that some other than "protecting the sanctity of marriage" was/is involved.

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PA Pastors Attack Attorney General for Refusing to Defend Unconstitutional Law

With all the corruption, hypocrisy and batshitery that surrounds much of organized religion - not to mention the fact that there is supposed to be no established religion in America - elected officials and the media continue give far to much attention and deference to those peddling myths based on stories passed down from wandering nomads of 2,500+ years ago and the unkown authors of the New Testament.  A case in point is the collective conniption fit by a bunch of wingnut pastors in Pennsylvania who are beside themselves with Pennsylvania Attorney General Kathleen Kane who has refused to defend that state's unconstitutional DOMA law against a lawsuit filed by the ACLU.  The Pittsburg Gazette looks at the spittle flect protestations of these windbags.  Here are highlights:

Citing Biblical verses, a group of pastors and conservative GOP state House members called on Attorney General Kathleen Kane to reconsider her decision not to defend the state's law against same-sex marriage.

Ms. Kane, a Democrat, made national headlines last week when she announced her decision not to defend the 1996 law, saying she believes it is unconstitutional. The law will now most likely be defended in a federal lawsuit by the Corbett administration's Office of General Counsel.

 

On Wednesday morning, a group from the Pennsylvania Pastors Network and several Republican House members said they believe Ms. Kane must reconsider.

 

"The issue is one of defending heterosexual marriage," said Sam Rohrer, president of the pastors network. Mr. Rohrer is a former state representative and 2010 Republican gubernatorial candidate before losing in the primary to now- Gov. Tom Corbett.

 

Mr. Rohrer added, "We see a moral imperative for heterosexual marriage due to the revealed truth of God based on eternal law."

It is far past time that fundamentalist religious belief be eliminated from the nation's laws both  at the state and federal level.  These pastors are free to belive whatever garbage they want, but they do NOT have the right to force their ignorance and bigotry on others.  Would that politicians had the spine to tell them so.  One article reader summed up reality well:

Nothing at all is happening to heterosexual marriage. There is nothing about "traditional marriage" that needs defending. The marriage equality movement was never an effort to make homosexuality compulsory for everyone. The overwhelming majority of humans are Straight, and they will continue to date, get engaged, marry, and build lives and families together as they always have. None of that is going to change when Gay couples do the same.

These laws are all about stigmatizing and punishing gays for refusing to conform to the Christofascists' dogma.  It's all about animus and nothing else.  Which is precisely why DOMA was struck down in the Windsor ruling.  

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Supreme Court Strikes Down DOMA and Dodges Larger Gay Marriage Issue.

Today the United States Supreme Court ruled that Section 3 of the federal Defense of Marriage Act ("DOMA") is unconstitutional.  The Court also ruled that  Proposition 8 proponents lacked standing to appeal the U.S. District Court ruling striking down Proposition 8 and ordered the Ninth Circuit to dismiss the appeal, thereby reinstating the District Court ruling.  While I am not surprised in many ways, I'd be lying if I did not admit that I had secretly hoped for a broad pro-gay marriage in Perry.

Back when the Supreme Court took the cases of Hollingsworth v. Perry and United States v. Windsor, I suspected that the Court would chicken out and avoid the larger issue of gay marriage on a national scale and I speculated that the issue of standing would be used to dodge making a larger decision.  I even referenced the case of  Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) and Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), that were both cited in today's ruling in Perry that the Proposition 8 proponents lacked standing to appeal the U.S. District Court ruling striking down Proposition 8.   Here are excerpts from the ruling in Perry:

Article III [of the United States Constitution which established the federal court system] demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U. S. ___, ___. Standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64. The parties do not contest that respondents had standing to initiate this case against the California officials responsible for enforcing Proposition 8. But once the District Court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in the District Court, but they had not been ordered to do or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this Court has repeatedly held, such a “generalized grievance”—no matter how sincere—is insufficient to confer standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574.

A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” 

Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’” Diamond, 476 U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their]advocacy,” post, at 4 (KENNEDY, J., dissenting), that is not a “particularized” interest sufficient to create a case or controversy under Article III.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

As noted, the ruling striking down Sec. 3 of DOMA is also not surprising and is in some ways reminiscent of the ruling in Romer v. Evans which was also authored by Justice Kennedy.   Here are some core excerpts from the ruling in Windsor that found that DOMA deprived same sex married couples equal rights and protections under the law and that DOMA was motivated by anti-gay animus:

The design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges.

DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may  vary, subject to constitutional guarantees, from one State to the next. 

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.  Depart­ment of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motivated by an improper animus or purpose, “[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles.

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.  The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. 

A future post will sort out where these rulings leave us - especially those of us living in anti-gay states like Virginia. We will also look at the shrieks and wailing coming from the Christofascists.

 

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