QUEER QUOTE: VA AG Files Brief Arguing His State's Marriage Law Is Unconstitutional

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 

Oregon Becomes 6th State Where Attorney General Won't Defend Marriage Ban

Oregon Attorney General Ellen Rosenblum has announced that she will no longer defend that state's constitutional marriage ban in light of the recent 9th Circuit ruling in GlaxoSmithKline v Abbott that declared sexual orientation is a suspect class that requires the government to provide increased justification for laws that discriminate against LGBT people. Rosenblum said in a filing in the lawsuit Rummel v. Kitzhaber that:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

Interestingly, Rosenblum joins at least 5 other attorneys-general who have refused to defend their state's laws banning marriage equality. California's Jerry Brown was one of the most prominent (and significant) to do so way back in December 2008 and the election of Kamala Harris in 2010 insured that California's attorney general would continue to support marriage equality. Others have been Illinois's Lisa Madigan in June 2012, Pennsylvania's Kathleen Kane in July 2013, Virginia's Mark Herring in January 2014 and Nevada's Catherina Cortez Masto in February 2014.

Oregon is an interesting case because signatures have been collected to go back to the ballot but the attorney general's switch, the state of law in the 9th circuit and the fact that the case is being heard before openly gay federal judge Michael McShane makes it likely marriage equality will come to Oregon sooner rather than later and that the ballot fight might not be necessary. Signatures do not have to be submitted until July 2014 for the November election.

In fact, Mike Marshall the campaign manager for Oregon United for Marriage issued a  statement responding to AG Rosenblum's action:

"If we get marriage (from the federal court) in the spring and nobody appeals and marriage licenses are being issued, nobody has any hunger for a ballot measure we don't need."

It should be noted that every federal judge who has ruled on a marriage equality lawsuit since last year's United States v. Windsor Supreme Court ruling has found in favor of equality, and this has often been under a rational basis level of review and not the heightened scrutiny required in the 9th circuit.

NYT Urges U.S. Intervention In Prop 8 Case

The New York Times published an editorial on Sunday titled "Beyond Selma-to-Stonewall" which strongly urges the Obama administration to intervene in the Proposition 8 case Hollingsworth v. Perry:

The outcome of the Proposition 8 case is likely to affect the lives of gay, lesbian and bisexual Americans for years to come, even if the final disposition is not sweeping enough to wipe out all state laws currently banning same-sex marriage. A strong filing by the Justice Department, forthrightly declaring that denying the freedom to marry violates the Constitution, would put the full weight of the federal government on the side of justice and could influence the shape of the ruling.

For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land — impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.

Mr. Obama’s Inaugural Address appeared to reflect a deepened understanding that the right to marry the person of one’s choice is a fundamental right “under the law.” He needs to make sure his solicitor general conveys that sound legal view loud and clear in the Proposition 8 case.

The question of whether the federal government (as represented by the Department of Justice headed by Attorney-General Eric Holder) should take a position in the Perry case even though it is only about a particular state's marriage laws has been a slow boiling controversy in LGBT legal circles.

However, now it is clear that the heterosexual supremacist forces represented by Charles Cooper are explicitly hoping that the Obama administration does not intervene in the case while the pro-marriage equality forces represented by Ted Olson and David Boies are explicitly asking for the support of the Department of Justice on behalf of the appellee-defendants:

Olson and Boies, former opponents from the landmark Supreme Court case that decided the 2000 presidential election for George W. Bush, urged the government to enter the case and assert that gay and lesbian couples have the same right to marry as a man and a woman. According to lawyers in the room, Olson stressed that the administration's voice should be heard at this historic moment. Olson, who as solicitor general under Bush from 2001-04 once ran such meetings, was especially fervent. He compared the contention that states need more time to resolve the gay-marriage dilemma to arguments half a century ago that states needed more time before blacks and whites could share the same public accommodations such as drinking fountains. 

A former Reagan administration lawyer, Cooper argued in his session that marriage is the business of the states, so no federal constitutional interest can be asserted. Cooper referred to Obama's own comments suggesting that states should decide the matter and echoed much of what he had written in his recently submitted brief to the Supreme Court. In that, Cooper included Obama's remarks from a May 2012 interview with ABC News referring to the "healthy process and ... healthy debate" occurring in the states.

The text is referring to arguments made by the pro-LGBT and anti-LGBT sides to Solicitor General Donald Verrilli (who actually represents the interests of the United States before the United States Supreme Court) at meetings that occurred on January 18th. The Obama administration and other parties considered "friends of the court" have until close of business on Tuesday to file their amicus curiae briefs.

Kamala Harris Inaugurated As California Attorney General

California Attorney General Kamala Harris (left) with U.S. Senator Dianne Feinstein

Kamala Devi Harris was sworn in as the first female, first African-American and first Asian-American state attorney general today.

Harris, 46, was San Francisco's District Attorney from 2004-2011, and is the daughter of a Jamaican father and a Tamil Indian mother. She is unmarried.