The Democratic Attorney General of Virginia, Mark Herring, has made good on his statement that he did not think that his state's marriage law could survive constitutional scrutiny has filed a brief before a federal appellate court articulating this argument in no uncertain terms.
The following excerpt from the state's brief in Bostic v. Rainey filed with the 4th U.S. Circuit Court of Appeals is today's Queer Quote:
The ban cannot satisfy the rational-basis test, let alone more demanding scrutiny. McQuigg’s claim that the purpose of marriage is to channel couples into a procreative relationship for the benefit of children is belied by controlling Supreme Court authority that marriage protects those choosing not to procreate and those who are unable to. And the Clerks’ argument fails the rational-basis test because it is irrational to think that prohibiting gay people from marrying will make heterosexual couples more like to marry and have children.
The Clerks’ position cannot be reconciled with the Supreme Court’s three decisions to date protecting the rights of gay people. Those decisions, among others, also show why the Supreme Court’s one-sentence dismissal in Baker v. Nelson, in 1972, cannot be read to trivialize the issue presented here.
The Clerk’s slippery-slope arguments are the same ones used to oppose interracial marriage in 1967; they are no more persuasive today than then. And just as in 1967, the Court should not wait to protect the plaintiffs’ constitutional rights simply because political trends suggest that the public increasingly supports marriage equality.Hat/tip to Equality on Trial