United States District Court, E.D. Virginia
TIMOTHY B. BOSTIC, TONY C. LONDON, CAROL SCHALL, and MARY TOWNLEY, Plaintiffs,
JANET M. RAINEY, in her official capacity as State Registrar of Vital Records, and GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, Defendants; and MICHÈLE B. McQUIGG, in her official capacity as Prince William County Clerk of Circuit Court, Intervenor-Defendant
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For Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley, Plaintiffs: Charles Barnet Lustig, Robert Eugene Ruloff, Thomas Brady Shuttleworth, II, Andrew Mitchell Hendrick, Erik C. Porcaro, LEAD ATTORNEY, Shuttleworth Ruloff Swain Haddad & Morecock PC, Virginia Beach, VA; Amir C Tayrani, Chantale Fiebig, Matthew D McGill, Theodore B Olson, PRO HAC VICE, Gibson Dunn & Crutcher LLP (DC-NA), Washington, DC; David Boies, PRO HAC VICE, Boies, Schiller & Flexner LLP, Armonk, NY; Jeremy Michael Goldman, PRO HAC VICE, Boies, Schiller & Flexner LLP, Oakland, CA; Joshua Seth Lipshutz, PRO HAC VICE, Gibson, Dunn & Crutcher LLP (CA-NA), San Francisco, CA; Joshua I Schiller, Robert Brian Silver, PRO HAC VICE, Boies, Schiller & Flexner LLP (NY-NA), New York, NY; Theodore J Boutrous, Jr, PRO HAC VICE, Gibson, Dunn & Crutcher LLP (CA-NA), Los Angeles, CA; William Isaacson, PRO HAC VICE, Boies, Schiller & Flexner (DC-NA), Washington, DC.
For Janet M. Rainey, in her official capacity as State Registrar of Vital Records, Defendant: Earle Duncan Getchell, Jr., Rhodes Beahm Ritenour, LEAD ATTORNEY, Office of the Attorney General (Richmond), Richmond, VA; Stuart Alan Raphael, LEAD ATTORNEY, Hunton & Williams LLP (McLean), McLean, VA; Catherine Crooks Hill, Office of the Attorney General, Richmond, VA; Trevor Stephen Cox, Hunton & Williams LLP (Richmond), Richmond, VA.
For George E. Schaefer, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, Defendant: David Brandt Oakley, LEAD ATTORNEY, Poole Mahoney PC, Chesapeake, VA.
For Michele McQuigg, Intervenor Defendant: Michael Casey Mattox, LEAD ATTORNEY, Alliance Defending Freedom (DC), Washington, DC; Byron Jeffords Babione, PRO HAC VICE, Alliance Defense Fund (AZ), Scottsdale, AZ; David Austin Robert Nimocks, PRO HAC VICE, Alliance Defending Freedom, Washington, DC; Jonathan Caleb Dalton, Kenneth John Connelly, Alliance Defending Freedom, Scotsdale, AZ; Jordan Woodard Lorence, Alliance Defense Fund (DC), Washington, DC.
For The Family Foundation of Virginia, Amicus: Mark Randolph Matney, Michael C. Tillotson LLC, Newport News, VA.
For Lynn D. Wardle, Jennifer Jesusa Truitt, William C. Duncan, Joseph P. Price, Robert A. Destro, Lynne Marie Kohm, LEAD ATTORNEY, The Law Office of Jennifer J. Truitt PLLC, Newport News, VA.
For Liberty Counsel, Inc, Amicus, Mary Elizabeth McAlister, Liberty Counsel, Lynchburg, VA.
Arenda L. Wright Allen, United States District Judge.
We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is? . . . I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the " wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. . . . I support the freedom to marry for all. That's what Loving, and loving, are all about.
-- Mildred Loving, " Loving for All" 
AMENDED OPINION AND ORDER
A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Declaration of Independence recognizes that " all men" are created equal. Surely this means all of us. While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary's noblest endeavors is to scrutinize laws that emerge from such roots.
Before this Court are challenges to Virginia's legislated prohibition on same-sex marriage. Plaintiffs assert that the restriction on their freedom to choose to marry the person they love infringes on the rights to due process and equal protection guaranteed to them under the Fourteenth Amendment of the United States Constitution. These challenges are well-taken.
A. Procedural History
Plaintiffs Timothy B. Bostic and Tony C. London are two men who have been unable to obtain a marriage license to marry each other in Virginia because of Virginia's Marriage Laws. On July 18, 2013, Mr. Bostic and Mr. London filed a Complaint pursuant to 42 U.S.C. § 1983 against former Governor Robert F. McDonnell, former Attorney General Kenneth T. Cuccinelli, and George E. Schaefer III in his official capacity as the Clerk of Court for Norfolk Circuit Court (ECF No. 1). This Complaint sought declaratory and injunctive relief regarding the treatment of same-sex marriages in the Commonwealth of Virginia under the Virginia Constitution and the Virginia Code. The Complaint also asked this Court to find Article I, Section 15-A of the Virginia Constitution and Sections 20-45.2, 20-45.3 of the Virginia Code unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
On September 3, 2013, Mr. Bostic and Mr. London filed an Amended Complaint dismissing the former Governor and the former Attorney General as defendants. The Amended Complaint added two plaintiffs, Carol Schall and Mary Townley. Plaintiffs Mr. Bostic, Mr. London, Ms. Schall and Ms. Townley are herein collectively referred to as " Plaintiffs." One new defendant was added in the Amended Complaint: Ms. Janet Rainey, in her official capacity as State Registrar of Vital Records. Ms. Rainey and Mr. Schaefer are collectively referred to as " Defendants."
The parties advanced cross motions seeking summary judgment (ECF Nos. 25, 38, 40), and Plaintiffs also filed a Motion for Preliminary Injunction (ECF No. 27). These motions were the subject of a hearing conducted before this Court on February 4, 2014.
Two motions for leave to file amici curiae briefs in support of Defendants' motions were filed and granted. Additionally, Ms. Michèle McQuigg (" Intervenor-Defendant" ) moved to intervene as a defendant in her official capacity as Prince William County Clerk of Circuit Court, and this was granted in part on January 21, 2014.
On January 23, 2014, Defendant Rainey, in conjunction with the Office of the Attorney General, submitted a formal change in position, and relinquished her prior defense of Virginia's Marriage Laws. Intervenor-Defendant
was granted leave to adopt Ms. Rainey's prior motion and briefs in support of that motion.
Accordingly, for the purposes of analyzing the arguments presented in this matter, the Plaintiffs and Ms. Rainey are hereinafter referred to as the " Opponents" of Virginia's Marriage Laws, and Defendant Schaefer, Intervenor-Defendant, and the amici are hereinafter referred to as the " Proponents" of Virginia's Marriage Laws. Where necessary for the following analysis, this Opinion and Order will identify the individual parties and their arguments.
1. Plaintiffs Timothy B. Bostic and Tony London
Plaintiffs Timothy B. Bostic and Tony C. London live in Norfolk, Virginia, where they own a shared home. Mr. Bostic is an Assistant Professor of English Education in the Department of English at Old Dominion University in Norfolk, Virginia. He teaches English Education to undergraduate students.
Mr. London is a veteran of the United States Navy. He also worked as a real estate agent in Virginia for sixteen years.
Mr. Bostic and Mr. London have enjoyed a long-term, committed relationship with each other since 1989, and have lived together continuously in Virginia for over twenty years. They desire to marry each other, publicly commit themselves to one another, participate in a State-sanctioned celebration of their relationship, and undertake the solemn rights and responsibilities that Virginia's Marriage Laws confer presently upon other individuals who marry.
On July 1, 2013, Mr. Bostic and Mr. London applied for a marriage license from the Clerk for the Circuit Court for the City of Norfolk. They completed the application for a marriage license and affirmed that they are over eighteen years of age and are unrelated. Mr. Bostic and Mr. London meet all of the legal requirements for marriage in Virginia except for the fact that they are the same gender. Va. Code § § 20-38.1, 20-45.1 (2014). Their application for a marriage license was denied by the Clerk of the Circuit Court for the City of Norfolk.
2. Plaintiffs Carol Shall and Mary Townley
Plaintiffs Carol Schall and Mary Townley live in Chesterfield County, Virginia, with their fifteen-year-old daughter, E. S.-T. Ms. Schall is an Assistant Professor in the School of Education at Virginia Commonwealth University (" VCU" ) in Richmond, Virginia. She specializes in research on teaching autistic children.
Ms. Townley is the Supervisor of Transition at Health Diagnostic Laboratory, Inc. (" HDL" ). She trains individuals with significant disabilities so that they may work at HDL.
Ms. Townley and Ms. Schall have enjoyed a committed relationship since 1985. They have lived together continuously in Virginia for almost thirty years.
In 2008, Ms. Schall and Ms. Townley were legally married in California. They obtained a marriage license in California because the laws of Virginia did not permit them to do so in their home state.
Ms. Schall and Ms. Townley meet the legal requirements to have their marriage recognized in Virginia, except that they are the same gender. See id. § § 20-38.1, 20-45.2, 20-45.3 (2014). Because the Commonwealth will not recognize their legal California marriage, Ms. Schall and Ms. Townley face legal and practical challenges that do not burden other married couples in Virginia.
Ms. Townley gave birth to the couple's daughter, E. S.-T., in 1998. During her pregnancy, she was admitted to the emergency room at VCU's Medical Center due to complications that left her unable to speak. Ms. Schall was denied access to Ms. Townley, and could obtain no information about Ms. Townley's condition, for several hours because she is not recognized as Ms. Townley's spouse under Virginia law. See id. § 54.1-2986 (2014).
Since E. S.-T.'s birth, Ms. Schall has yearned to adopt her. Virginia law does not permit second-parent adoption unless the parents are married. Because Ms. Schall is not considered to be Ms. Townley's spouse, Ms. Schall is deprived of the opportunity and privilege of doing so. Id. § § 63.2-1201, 63.2-1202 (2014).
Ms. Schall and Ms. Townley also incurred significant expenses to retain an estate planning attorney for necessary assistance in petitioning a court to grant Ms. Schall full joint legal and physical custody of E. S.-T. Although their petition was granted, Ms. Schall remains unable to legally adopt E. S.-T.
Despite being deprived of the opportunity to participate in a legal adoption of her daughter, Ms. Schall is a loving parent to E. S.-T., just as Ms. Townley is. The family lives together in one household, and both parents provide E. S.-T. with love, support, discipline, protection and structure.
Ms. Schall and Ms. Townley cannot obtain a Virginia marriage license or birth certificate for their daughter listing them both as her parents. Id. § § 20-45.2, 32.1-261 (2014).
In April 2012, Ms. Schall and Ms. Townley sought to renew E. S.-T.'s passport, a process that requests the consent of both parents. When Ms. Schall and Ms. Townley presented the passport renewal forms on behalf of their daughter, a civil servant at a United States Post Office in Virginia told Ms. Schall that " You're nobody, you don't matter." Schall Decl. para. 17, ECF No. 26-3; Townley Decl. para. 12, ECF No. 26-4.
After E. S.-T. was born, Ms. Townley had to return to work in part because her own health insurance was expiring and she could not obtain coverage under Ms. Schall's insurance plan. Until February 2013, neither Ms. Schall nor Ms. Townley could obtain insurance coverage for each other under their respective employer-provided health insurance plans.
In February 2013, Ms. Townley obtained health insurance coverage under her employer-provided plan for Ms. Schall. She must pay state income taxes on the benefit because she and Ms. Schall are not recognized as married under Virginia's Marriage Laws.
Ms. Schall and Ms. Townley were ineligible for protections under federal laws governing family medical leave when their daughter was born and when one of their parents passed away. 29 U.S.C. § 2612 (2014). If the Commonwealth of Virginia recognized Ms. Schall's and Ms. Townley's legal marriage and permitted both to be listed on their daughter's birth certificate, their daughter could inherit the estate of both parents in the event of their death, and could avoid tax penalties on any inheritance from Ms. Schall's estate. Va. Code § 64.2-309 (2014).
Under Virginia's Marriage Laws, agreements between Ms. Schall and Ms. Townley concerning custody, care, or financial support for their daughter could be declared void and unenforceable. Id. § 20-45.2. Because the Commonwealth does not recognize their legal marriage, benefits of Virginia's Marriage Laws that promote the
integrity of families are denied to Ms. Schall, Ms. Townley and their child.
3. Virginia's Marriage Laws
The laws at issue here, referred herein as Virginia's Marriage Laws, include two statutory prohibitions on same-sex unions, and an amendment to the Virginia Constitution. Specifically, Plaintiffs seek relief from the imposition of Article I, § 15-A, of the Virginia Constitution and Sections 20-45.2 and 20-45.3 of the Virginia Code.
Plaintiffs also seek relief from the imposition of any " Virginia law that bars same-sex marriage or prohibits the State's recognition of otherwise-lawful same-sex marriages from other jurisdictions." See Am. Compl., Prayer for Relief, paras. 1-2, ECF No. 18. Plaintiffs also request that their constitutional challenge extend to any Virginia case or common law upon which the Proponents or other parties might rely in attempts to withhold marriage from same-sex couples or deny recognition to the legal marriage of same-sex couples.
There is little dispute that these laws were rooted in principles embodied by men of Christian faith. By 1819, Section 6 of the Code of Virginia also made it lawful for all religious persuasions and denominations to use their own regulations to solemnize marriage. 1 Thomas Ritchie, The Revised Code of the Laws of Virginia 396 (1819). However, although marriage laws in Virginia are endowed with this faith-enriched heritage, the laws have nevertheless evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia, with protections and benefits extended to portions of Virginia's citizens. See Womack v. Tankersley, 78 Va. 242, 243 (1883).
The Virginia Code in 1819 declared that every license for marriage " shall be issued by the clerk of the court of that county or corporation . . . ." Id. at 398. The authority to conduct marriages was then bestowed upon civil servants, Id. at 396-97 (" [T]here is no ordained minister of the gospel . . . within this Commonwealth, authorised to celebrate the rites of matrimony.... [I]t shall be and may be lawful for the courts ... to appoint two persons of each of the said counties . . . who, by virtue of this act, shall be authorised to celebrate the rites of marriage, in the counties wherein they respectively reside." ).
In 1997, Virginia law limited the institution of civil marriage to a union between a man and a woman. Va. Code § 20-45.2. The Virginia legislature amended the Code to provide that " a marriage between persons of the same sex is prohibited." Id. " Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable." Id.
In 2004, following successful challenges to state prohibitions against same-sex marriage in other states, Virginia's General Assembly, through Joint Resolution No. 91 and House Joint Resolution No. 187, proposed
an amendment to the Virginia Constitution. See S.J. Res. 91, Reg. Sess. (Va. 2004) (enacted) (citing " challenges to state laws have been successfully brought in Hawaii, Alaska, Vermont, and most recently in Massachusetts on the grounds that the legislature does not have the right to deny the benefits of marriage to same-sex couples and the state must guarantee the same protections and benefits to same-sex couples as it does to opposite-sex couples absent a constitutional amendment" as a basis for amending the Virginia Constitution).
On November 7, 2006, a majority of Virginia voters ratified a constitutional amendment (the " Marshall/Newman Amendment" ), which was implemented as Article I, Section 15-A of the Virginia Constitution. The Marshall/Newman Amendment provides:
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
Va. Const. art. I, § 15-A.
The Virginia Legislature also adopted the Affirmation of Marriage Act in 2004. This provides:
A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in ...