Tuesday, February 25, 2014

Why did the Attorney General change the Commonwealth's legal position in Bostic v. Rainey?

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After a thorough and comprehensive legal analysis of precedents and recent court rulings, Attorney General Herring has determined that Virginia's ban on marriage for same-sex couples is unconstitutional because it improperly denies the fundamental right to marry, which is guaranteed by the U.S. Constitution, to thousands of Virginians on the basis of their sexual orientation. The Supreme Court has consistently said that marriage is a fundamental right that the government cannot limit without a very strong reason. Because there is no sufficiently strong reason to  deny same-sex couples the right to marry, Attorney General Herring has concluded the Supreme Court would strike down Virginia's ban if it were presented with the case. For these reasons, he has notified the federal court deciding Bostic that he is changing Virginia's legal position to reflect his determination that the state's marriage ban is unconstitutional.

What are the legal precedents that led to this decision?

There is considerable Supreme Court precedent stating that marriage is a fundamental right guaranteed by the U.S. Constitution and rulings stating that the federal government cannot discriminate against same-sex couples. There are also rulings from other federal courts striking down similar same-sex-marriage bans in other states.
  • First, the Supreme Court’s 2013 decision in United States v. Windsor struck down section 3 of the federal Defense of Marriage Act.  Justice Kennedy’s opinion for the Court made clear that the Due Process Clause in the Fourteenth Amendment to the U.S. Constitution is violated by laws treating same-sex married couples as second-class citizens.  Justice Scalia’s dissent also made clear that the Court’s rationale would justify invalidating State bans on same-sex marriage.  I agree with that assessment.
  • Second, the Supreme Court’s 2003 decision in Lawrence v. Texas made clear that laws criminalizing homosexual conduct were unconstitutional, regardless of how such activity may traditionally have been viewed.  Justice Scalia predicted then that the decision would justify invalidating laws that ban same-sex marriage.
  • Finally, the Supreme Court has repeatedly held that the right to marriage -- not a particular kind of marriage -- is fundamental:  

    • In Loving v. Virginia, the Supreme Court upheld the right to marriage, not the right to interracial marriage.
    • In Turner v. Safley, the Supreme Court upheld the right to marriage, not the right to prisoner inmate marriage.
    • In Zablocki v. Redhail, the Supreme Court upheld the right to marriage, not the right of people owing child support to marry.
As a fundamental right, the right to marriage cannot be denied unless (among other things) limiting that right serves a compelling State interest.  The reasons offered in support of Virginia’s same-sex-marriage ban do not meet even the most deferential legal standard of review, let alone this heightened scrutiny. 

Based on these precedents, among others, the Attorney General has concluded that if the Supreme Court were to be presented with the facts of this case, it follows that it would again uphold the right to marry and find the exercise of that fundamental right may not be denied to these loving couples based solely on their sexual orientation.   The two federal courts that have most recently considered this issue agreed, striking down the bans on same-sex-marriage in Utah and Oklahoma.

Is the Attorney General within his power to change the state's position?

Yes. The Attorney General is the sole person empowered to present the Commonwealth's position in legal matters and it is up to him or her to determine that position through rigorous legal analysis.

Doesn't the Attorney General have to defend the state's laws?

The Attorney General has a duty to support laws that are constitutional, and has just as strong a duty not to defend laws that he has concluded after careful and thorough analysis are unconstitutional. The Attorney General swears an oath to support the United States Constitution and the Constitution of Virginia. When a state law or part of the Virginia Constitution is in conflict with the United States Constitution, as Attorney General Herring has concluded in this case, the United States Constitution prevails because it is the supreme law of the land.

Furthermore, the Attorney General's primary client is the people of Virginia, not just state agencies. When the constitutional rights of the people of Virginia are being violated, he has a duty to protect their interests.

Have other attorneys general done things like this before?

Yes. There is precedent for an attorney general  or executive branch official refusing to defend a law that he or she has determined is unconstitutional.
  • Former Attorney General Ken Cuccinelli declined to defend the Opportunity Educational Institution, often referred to as Virginia's "school takeover bill," last year.
  • Former Attorney General Jerry Kilgore joined with 43 other State attorneys general in 2003 to argue that an attorney general is properly carrying out his constitutional duties when he seeks to invalidate a State law that he believes, in his independent judgment, to be unconstitutional.  In that brief, Kilgore and the other attorneys general  say that when the  Attorney General believes a state law "violates the constitution, he has a paramount obligation to defend the constitution he is sworn to uphold.”
  • Former Attorney General Kilgore also declined to defend a federal constitutional challenge to a provision in Virginia's constitution that prohibited the incorporation of churches and religious denominations.  That provision was struck down in the 2002 case Falwell v. Miller.
  • Justice Antonin Scalia has stated that the President can resist unconstitutional laws, saying an executive has the power “to disregard them when they are unconstitutional.”
  • In 1989, then-acting Solicitor General John Roberts, now Chief Justice of the United States Supreme Court, filed a friend-of-the-court brief declaring that the United States considered a particular law to be unconstitutional.
  • In a 1976 election-law case, then-Solicitor General Robert Bork filed two contradictory briefs, one which defended the law at issue, and another, on behalf of the Attorney General and the United States, which provided a counterargument to help the Court resolve the First Amendment questions presented.
Does this mean Virginia's same-sex marriage ban is over?
No. Virginia's ban on same-sex marriage will continue to be enforced until and unless a court or the legislature acts to end its enforcement . The State Registrar of Vital Records will continue to enforce the ban, and clerks are not legally permitted to issue marriage certificates to same-sex couples.

Does this mean the case is over?

No. Before announcing the Commonwealth's change in legal position, Attorney General Herring took steps to ensure the case could continue and the court could hear both sides of the issue.  The Circuit Court Clerks for the City of Norfolk and Prince William County remain defendants.  Lawyers for both clerks will provide a full and capable defense for the ban in court.

Does this mean Virginia's marriage ban will be undefended in court?

No. The Circuit Court Clerks of Norfolk and Prince William County are both represented by able lawyers who will make their best possible case for the marriage ban's legality. They also have a brief filed by previous Attorney General Ken Cuccinelli to assist them in their defense of the ban.

Why didn't the Attorney General appoint special counsel to defend the ban?

Special counsel is not necessary in this case because there are still two other parties  in the case, the Circuit Court Clerks for the City of Norfolk and Prince William County, who are vigorously defending the ban's legality.

Is Attorney General Herring just doing this because he thinks same-sex couples should be able to marry?

Attorney General Herring's decision to oppose Virginia's marriage ban is based on his legal analysis of the facts in this case and relevant court rulings, especially those in recent years that address this specific issue.

Our Notes:  Did these people ever hear of God's Law? Demoralization of the population.  It has nothing to do with rights from what we see.
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