Cuccinelli cites 600-year-old law, religion in brief defending Va. gay marriage ban

Ken Cuccinelli

Ken Cuccinelli

Citing antiquated laws, using arguments that have previously failed constitutional muster, and referencing religion as the basis for state law, Virgina Attorney General Ken Cuccinelli has filed a brief in a federal court defending Virginia‘s constitutional ban on same-sex marriage.

Ken Cuccinelli

Ken Cuccinelli

The 30+ page brief submitted to the Eastern District Court comes in response to a lawsuit filed in July on by Timothy B. Bostic and Tony C. London, a same-sex couple who we denied a marriage license in Norfolk Circuit Court.

Their lawsuit argues that Virginia’s treatment of gays and lesbians is unequal and deprives them of benefits associated with marriage, including favorable tax treatment.

The lawsuit also claims the ban denied Bostic and London liberties that are guaranteed by the 14th Amendment.

In his rebuttal, Cuccinelli paints an interesting argument intending to demonstrate why the 2006 voter approved Marshall-Newman amendment, which defines legal marriage between one man and one woman, should remain intact:

The first section of Cuccinelli’s brief cites laws dating back as far as the 1500′s, specifically a law from the Book of Common Prayer.

“I pronounce that they be man and wife together”; “wee beseach thee assist with thy blessing these two persons, that they may both bee fruitfull in procreation of children.”

Michael Hamar, an openly gay Norfolk, Va., attorney, said the citing of outdated laws is not usually a legal tactic.

“If you look at it, it shows he’s trying to enshrine what started out as a clearly religious definition,” said Hamar. “When you’re citing the Book of Common Prayer, I don’t quite get what they were trying to accomplish.”

While citing law for precedent is certainly not out of the question, Hamar said the consistent uses of laws rooted in faith were sure to cause a legal problem for the defense. “You can make statements saying (marriage) dates back to the birth of Virginia, but why do you want to tie it to religious definitions? We’re not supposed to have an established religion in this country.”

The Cuccinelli brief also uses the Noah Webster Dictionary definition of marriage in its evidence list:


17. Matrimony was defined in this way:

MAT’RIMONY, n. [L. matrimonium, from mater, mother.] Marriage; wedlock; the union of man and woman for life; the nuptial state.

If any man know cause why this couple should not be joined in holy matrimony, they are to declare it. Com. Prayer.

Hamar said he was confused by this move, as dictionaries aren’t usually used as legal precedent, and many modern dictionaries have already updated their definition of marriage to be gender neutral.

The next section of the brief deals mostly with marriage being based on a couple’s ability to procreate.

Traditional marriage was not born of animus against homosexuals, but is predicated instead on the positive, important and concrete societal interests in the procreative nature of opposite-sex relationships.

Hamar said the procreation argument is part of the “standard justification” for denying marriage equality.

“If that’s the case, anyone who’s past child-bearing years shouldn’t be able to get married,” said Hamar. “What about couples who marry and never have children?”

The final sections of the document make reference to the U.S. Supreme Court rulling which overturned section 3 of the Defense of Marriage Act.

The brief cites several quotes from Justice Samuel Alito’s dissenting minority opinion on the DOMA decision.

“The first and older view, . . . the ‘traditional’ or ‘conjugal’ view, sees marriage as an intrinsically opposite-sex institution.” Id. It takes this nature from the possibility of conception and childrearing.

Hamar noted that pulling quotes from the minority opinion doesn’t make sense because the arguments he’s using were from losing opinions.

“They didn’t win the day, so their arguments clearly weren’t compelling,” said Hamar.

Hamar also said referencing the DOMA decision was a moot point because state level bans on same-sex marriage were not part of the case — Section 3 of DOMA dealt with the federal recognition of same-sex marriage, not states’ rights.

“(The Supreme Court) didn’t rule on state level marriage because that wasn’t the issue before them,” said Hamar. “It’s somewhat disingenuous, saying they ruled when they didn’t rule.”

With Cuccinelli in the race for Governor, there is little doubt the brief and possible trial could play a part in the 2013 election.

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And with 56 percent of Virginians supporting same-sex marriage, it could be a contentious issue – one that Hamar believes Cuccinelli could have avoided.

“The AG’s office could have just said ‘based on the logical extension of the (DOMA) ruling, this is unconstitutional and I don’t want to defend it’.”

The Bostic case’s first stop is at the Eastern District Court, which Hamar jokingly called the “rocket docket” for the fast pace in which cases are tried.

Earlier this week, famed attorneys David Boies and Theodore B. Olson, who successfully challenged California’s Proposition 8, that state’s voter approved gay marriage ban, announced their participation in the case on behalf of the plaintiffs.

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