Last night, I got a tweet. And another. And another. It seemed that a judge in Virginia decided to give same-sex marriage advocates an early Valentine's Day present.
And so, in an eloquently-worded opinion, another state's ban on gay marriage falls. Here are five takeaways from another landmark case:
5. Marriage Equality Undefeated Since Perry and Windsor
It has been widely-assumed that, since the Supreme Court punted on gay marriage in Perry, that the issue would inevitably make its way back to the Court's docket. Maybe not.
By my count, there have now been 5 pro marriage equality decisions (UT, OK, OH, KY & VA) since Windsor Zero judges sided against equality-- Ian Millhiser (@imillhiser) February 14, 2014
Maybe the Sup Ct need not take a gay marriage case - if no lower court upholds a ban. No fed ct has yet ruled against gay marriage.-- Ilya Shapiro (@ishapiro) February 14, 2014
4. VA Legislature, Former Attorney General Ken Cuccinelli Called Out
Calling the state's motives for the ban "moral condemnation," U.S. District Court Judge Arenda L. Wright Allen noted:
"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 the like classification" from the institutions' non-discrimination policies. [citation] This record alone gives rise to suspicions of prejudice sufficient to decline to defer to the state on this matter. (emphasis added.)
Yep, the anti-sodomy crusader got called out, and the state's past seems to have cost them any presumption of deference to legislative judgment.
3. Standards? We Don't Need Specific Review Standards
The Supreme Court notably declined to elucidate a specific standard of review in Windsor, whose vague reasoning has become the basis for the wave of court decisions out of Utah, Oklahoma, Ohio, Kentucky, and now Virginia, as well as abandoned battles elsewhere.
Here, the court held that Virginia's Marriage Laws fail under any standard:
"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."
2. But, Gun to Head, Heightened Scrutiny Would Apply
In a footnote to the above passage, the court noted that if it had to decide the issue of scrutiny standards, it certainly would be inclined to apply a heightened one. Judge Allen cited the district court opinion in Perry (applying strict scrutiny, later vacated for want of standing) and the nonspecific heightened scrutiny recently applied in the Ninth Circuit's gay juror case.
1. Virginia is For Lovers
Happy Valentine's Day! We'll leave you with this:
"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."
- Bostic v. Rainey (Scribd)
- Developments in Va., W. Va, Gay Marriage Battles (FindLaw's Fourth Circuit Blog)
- Utah and Oklahoma Get Same Judges for Gay Marriage Appeals (FindLaw's Tenth Circuit Blog)