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IN THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

CASIE JO MCGEE and SARA ELIZABETHADKINS; JUSTIN MURDOCK and WILLIAMGLAVARIS; and NANCY ELIZABETHMICHAEL and JANE LOUISE FENTON,Individually and as next friends of A.S.M.,minor child,

Plaintiffs,

v. Civil Action No. 3:13-24068

KAREN S. COLE, in her official capacity asCABELL COUNTY CLERK; and VERA J.MCCORMICK, in her official capacity asKANAWHA COUNTY CLERK,

Defendants,

and

STATE OF WEST VIRGINIA,

Defendant-Intervenor.

THE STATE OF WEST VIRGINIA ’S RESPONSE TOPLAINTIFFS ’ MOTION FOR ATTORNEYS ’ FEES, EXPENSES, AND COSTS

ORAL ARGUMENT REQUESTED

Case 3:13-cv-24068 Document 155 Filed 01/16/15 Page 1 of 42 PageID #: 4986

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TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................... .................................................... ........ i

TABLE OF AUTHORITIES ........................................................ ................................................. iii

TABLE OF EXHIBITS ................................................................................................................ vii

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

I. The State Intervened Under 28 U.S.C. § 2403(b) For The Limited Purpose Of ArguingThe Constitutionality Of Its Statutes While Reserving Sovereign Immunity............................. 2

II. The Court Dismissed Plaintiffs’ Non -Recognition Claim For Lack Of Standing. ............. 3

III. Plaintiffs Agreed That The State, As A Limited Intervenor, Did “Not Waive” ItsSovereign Immunity And Would Be “Liable Only For Certain Court Costs.” .......................... 4

IV. This Court Entered Judgment Against The Two County Clerks. .................................... 5

V.

Plaintiffs Now Seek A Fee Award. .................................................... ................................. 6

SUMMARY OF ARGUMENT .................................................... .................................................. 6

ARGUMENT .................................................... ...................................................... ........................ 8

I. THE STATE IS IMMUNE FROM ANY LIABILITY FOR ATTORNEY’S FEES. ........ 8

A. Section 1988 Does Not Abrogate The State’s Immunity From Attorney’s Fees. ........ 9

B. The State Did Not Waive Its Immunity To Fees. .................................................... ... 11

C. Plaintiffs Did Not Sue Any State Officials. .................................................... ............ 14

II. EVEN IF THE STATE IS NOT IMMUNE, NO FEES SHOULD BE RECOVEREDFROM THE STATE. ................................................................................................................ 19

III. IF AN AWARD OF FEES IS APPROPRIATE, THIS COURT MUST REDUCE THEAMOUNT. ................................................................................................................................ 21

A. This Court Must Subtract Hours Unreasonably Expended Due To Overstaffing. ..... 21

1. Eleven Attorneys Was Unnecessary Overstaffing. ................................................. 22

2. Any Hours Recoverable Should Be Limited To Non-Duplicative Work. .............. 24

3. The Hours Billed Were Excessive In Light Of Similar Arguments Researched AndAsserted In Other Cases. ................................................... ................................................ 25

4. Time Spent On Public Relations Is Non-Recoverable. ........................................... 26

5.

Certain Billing Entries Are Too Vague To Meet The Burden Of Proof. ................ 26

B. Under Section 1988, Plaintiffs’ Counsel May Only Be Reimburse d At LocalPrevailing Rates. ................................................................................................................... 27

C. This Court Should Subtract The Fees Attributable To Plaintiffs’ UnsuccessfulChallenge To The Non-Recognition Statute. .................................................. ...................... 29

D. The Requested Fees Are Unreasonable In Light Of The Fees Awarded In SimilarCases Across The Country. ................................................... ................................................ 29


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CONCLUSION ................................................. ...................................................... ...................... 30

CERTIFICATE OF SERVICE ..................................................................................................... 32


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TABLE OF AUTHORITIES

Cases A Helping Hand, LLC v. Baltimore Cnty. , MD,

515 F.3d 356 (4th Cir. 2008) ...................................................................................................... 9 Alyeska Pipeline Serv. Co. v. Wilderness Soc'y ,421 U.S. 240 (1975) ............................................... ..................................................... .............. 14

Arizonans for Official English v. Arizona ,520 U.S. 43 (1997) ................................................................................................................ 3, 12

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy ,548 U.S. 291 (2006) ............................................... ..................................................... .............. 14

B.E. v. Mount Hope High Sch. , No. 2:11-CV-00679, 2012 WL 3580091 (S.D.W. Va. Aug. 17, 2012) .............................. 11 – 12

Beers v. State ,61 U.S. 527 (1857) ................................................. ..................................................... .............. 11

Blum v. Stenson ,465 U.S. 886 (1984) ............................................... ..................................................... ........ 20, 27 Bockes v. Fields ,

999 F.2d 788 (4th Cir. 1993) .................................................................................................... 18 Boggs v. Bd. of Ed. of Clay Cnty .,

161 W. Va. 471, 244 S.E.2d 799 (1978) .................................................... ............................... 17 Bourke v. Beshear ,

No 14-574, 2015 WL 213651 (U.S. Jan. 16, 2015) ...................................................... ............ 20Clark v. Dunn ,

195 W. Va. 272, 465 S.E.2d 374 (1995) .................................................... ............................... 11Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. ,

527 U.S. 666 (1999) ............................................... ..................................................... .......... 8, 11Comfort ex rel. Neumyer v. Lynn School Committee ,131 F. Supp. 2d 253 (D. Mass. 2001) ............................................... ........................................ 13

Conde-Vidal v. Garcia-Padilla ,2014 WL 5361987 (D.P.R. Oct. 21, 2014) ................................................ ............................... 20

Crawford Fitting Co. v. J.T. Gibbons, Inc. ,482 U.S. 437 (1987) ............................................... ..................................................... .............. 14

Daly v. Hill ,790 F.2d 1071 (4th Cir.1986) ................................................................................................... 26

Deboer v. Snyder ,772 F.3d 388 (6th Cir. 2014) .................................................................................................... 20

DeBoer v. Snyder , No. 14-571, 2015 WL 213650 (U.S. Jan. 16, 2015) ..................................................... ............ 20 Dellmuth v. Muth ,

491 U.S. 223 (1989) ............................................... ..................................................... ................ 9 Echols v. Parker ,

909 F.2d 795 (5th Cir. 1990) .................................................................................................... 18 Ex parte Young ,

209 U.S. 123 (1908) ............................................... ..................................................... ................ 8


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Frew ex rel. Frew v. Hawkins ,540 U.S. 431 (2004) ............................................... ..................................................... .......... 8, 15

Glosen v. Barnes ,724 F.2d 1418 (9th Cir. 1984) .................................................................................................. 10

Grendel's Den, Inc. v. Larkin ,

749 F.2d 945 (1st Cir. 1984) ..................................................................................................... 17 H.J. Inc. v. Flygt Corp. ,925 F.2d 257 (8th Cir. 1991) .................................................................................................... 26

Hensley v. Eckerhart ,461 U.S. 424 (1983) ............................................... ..................................................... ....... passim

Indep. Fed'n of Flight Attendants v. Zipes ,491 U.S. 754 (1989) ............................................... ..................................................... .............. 19

Johnson v. City of Aiken ,278 F.3d 333 (4th Cir. 2002) .................................................................................................... 21

Kentucky v. Graham ,473 U.S. 159 (1985) ............................................... ..................................................... ........ 10, 19

Koster v. Perales ,903 F.2d 131 (2d Cir. 1990)...................................................................................................... 18 Leroy v. City of Houston ,

831 F.2d 576 (5th Cir. 1987) .................................................................................................... 27 Leroy v. City of Houston ,

906 F.2d 1068 (5th Cir. 1990) .................................................................................................. 26 Los Angeles County v. Humphries ,

562 U.S. 29 (2010) ................................................. ..................................................... .............. 18 McGee v. Cole,

993 F. Supp. 2d 639 (S.D. W. Va. 2014) .................................................. ............................. 3, 5 McGee v. Cole ,

2014 WL 5802665 (S.D. W. Va. Nov. 7, 2014) ................................................. ............... passim Missouri v. Jenkins by Agei ,

491 U.S. 274 (1989) ............................................... ..................................................... 6, 9, 10, 15 Monell v. New York City Dept. of Social Servs. ,

436 U.S. 658 (1978) ............................................... ..................................................... .............. 18 Nash v. Chandler ,

848 F.2d 567 (5th Cir. 1988) .................................................................................................... 13 Nat'l Wildlife Fed. v. Hanson ,

859 F.2d 313 (4th Cir.1988) ............................................................................................... 27 – 28Obergefell v. Hodges ,

No. 14-556, 2015 WL 213646 (U.S. Jan. 16, 2015) ..................................................... ............ 20Ohio Valley Contractors v. Bd. of Ed. of Wetzel Cnty .,

170 W. Va. 240, 293 S.E.2d 437 (1982) .................................................... ............................... 17 Pennhurst State Sch. & Hosp. v. Halderman ,

465 U.S. 89 (1984) ................................................. ..................................................... ................ 8 People for Ethical Treatment of Animals v. Doughney ,

263 F.3d 359 (4th Cir. 2001) .................................................................................................... 14 Plyler v. Evatt ,

902 F.2d 273 (4th Cir. 1990) .................................................................................................... 28


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Rules Fed. R. Civ. P. 5.1 ............................................. ...................................................... ........................ 2Fed. R. Civ. P. 24 .............................................. ...................................................... ........................ 3

Other Authorities Note, Federal Intervention in Private Actions Involving the Public Interest ,

65 Harv. L. Rev. 319 (1951) ..................................................... ................................................ 14


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INTRODUCTION

Plaintiffs’ request for an award of attorney’s fees and costs— seeking an astounding

$350,256.19 — is deeply flawed. It seeks fees on behalf of eleven attorneys from three different

entities (a local law firm, a national law firm, and a national advocacy group) at rates as high as

$789 per hour for work that in some cases appears to have been already generated in other

contemporaneous lawsuits around the country on these very same issues. It requests non-

recoverable payment for work relating to media and public relations, bills for significantly

overlapping work, and fails to subtract fees related to Plaintiffs’ unsuccessful challenge to West

Virginia’s non -recognition statute.

Most important, conspicuously missing from Plaintiffs’ request is any discussion of the

State’s sovereign immunity. As this Court well knows, a State is immune from any suit

(regardless of the relief sought) brought in federal courts by her own citizens as well as by

citizens of another state, unless certain exceptions apply. In this case, even Plaintiffs have

conceded that the State of West Virginia has properly and expressly preserved its immunity by

intervening in a limited capacity pursuant to 28 U.S.C. § 2403(b). And yet, their request

includes nary a mention of the State’s immunity— not a word even attempting to explain why

fees against the State could arguably be appropriate.

Plaintiffs’ silence is a telling acknowledgment. The Sup reme Court has recognized only

three exceptions to a State’s immunity from fees, and none applies here. There is no federal

statute that clearly abrogates that immunity, nor is there an unequivocal waiver of immunity by

the State. And the third exception — an award of fees ancillary to a grant of prospective relief

against a state official —is unavailable by Plaintiffs’ own deliberate choice not to join any state

officials. Even after the State asserted that it was necessary and appropriate to join state officials

to this suit, Plaintiffs resisted joinder and this Court agreed. While there may have been a lawful


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basis for shifting fees to the State had the State prevailed on its view of the case, there simply is

none now.

BACKGROUND

I. The State Intervened Under 28 U.S.C. § 2403(b) For The Limited Purpose OfArguing The Constitutionality Of Its Statutes While Reserving Sovereign Immunity.

Plaintiffs, who are several private citizens, brought this action under 42 U.S.C. §§ 1983

and 1988 challenging the constitutionality of certain West Virginia marriage laws and seeking

declaratory and injunctive relief against two county officials. Doc. 8, Compl. at ¶¶ 1, 9, 14 – 19,

21 – 22 & at 28 – 29. Because Plaintiffs drew into question the constitutionality of state statutes

without naming the State of West Virginia or any state “agency, officer, or employee ” as

defendants, the Court was required to notify the State of this lawsuit. Fed. R. Civ. P. 5.1(a); Doc.

14. Once Plaintiffs notified the Court that no state official was present, this Court certified the

challenge under 28 U.S.C. § 2403 to the state attorney general. Doc. 16.

Under 28 U.S.C. § 2403(b), a State may intervene in any federal case in which the

constitutionality of a state statute is “drawn in question ” and in which the “State or any agency,

officer, or employee thereof is not a party. ” 28 U.S.C. § 2403(b) (emphasis added); Fed. R. Civ.

P. 5.1. This intervention is limited to the “ presentation of evidence ” and “argument on the

question of constitutionality. ” 28 U.S.C. § 2403(b). Upon intervention, the State shall “have all

the rights of a party ” but will only “ be subject to all liabilities of a party as to court costs to the

extent necessary for a proper presentation of the facts and law relating to the question of

constitutionality. ” Id .

On November 22, 2013, the “State of West Virginia, through its Attorney General, ”

moved to intervene as of right under 28 U.S.C. § 2403(b). Doc. 25 at 1, 3. Consistent with the


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statutory language, the State asserted that it sought to intervene “for the sole and limited purpose

of defending the constitutionality of [its] statutes ” and expressly reserved its sovereign

immunity. Doc. 25 at 1 – 2. As the State noted at the time, “the statute explicitly provides, and

the Supreme Court has recognized, ” that “the State ’s intervention does not waive its sovereign

immunity or subject to it liability for damages as a party defendant. ” Doc. 25 at 2 (citing

Arizonans for Official English v. Arizona , 520 U.S. 43, 70 n.25 (1997)). The State also noted

that “as there are specific state entities that enforce or otherwise execute the statutes in question,

[it] d[id] not represent or concede that its presence alone is sufficient to accord Plaintiffs the

relief requested should they prevail. ” Id. at 3.This Court granted the State ’s motion to intervene under 28 U.S.C. § 2403(b) on

December 2, 2013. Doc. 28; Doc. 56 at 4 ( “The State of West Virginia filed a motion to

intervene as a defendant, pursuant to 28 U.S.C. § 2403(b) and Federal Rules of Civil Procedure

5.1(c) and 24(a), to defend the constitutionality of the marriage ban. The Court granted this

motion, allowing the State to proceed as an Intervenor Defendant. ”).

II. The Court Dismissed Plaintiffs ’ Non-Recognition Claim For Lack Of Standing.

Because Plaintiffs ’ complaint included no allegations that supported standing to

challenge to the state statute prohibiting the recognition of out-of-state same-sex marriages, the

State moved to dismiss the complaint to the extent that it challenged that statute. Doc. 34. This

Court agreed and “dismisse[d] from the case all claims that relate to West Virginia Code Section

48-2-603. ” 993 F. Supp. 2d 639, 657 (S.D. W. Va. 2014) (Doc. 56 at 27).


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is not necessary. ” 993 F. Supp. 2d at 658 (Doc. 56 at 13 – 14). Plaintiffs responded by filing its

explanation for not joining any additional parties. Doc. 61 at 3.

IV. This Court Entered Judgment Against The Two County Clerks.

On November 7, 2014, this Court entered judgment against the county clerks. McGee v.

Cole , 2014 WL 5802665, at *3 – 4, 10 (S.D. W. Va. Nov. 7, 2014) (Doc. 139). According to this

Court, the two clerks “are the officials directly responsible for effectuating the marriage ban and

causing Plaintiffs’ alleged injury.” Id. at *4 n.1. “By refusing to issue licenses,” this Court

explained, “the clerks themselves directly took action” that “violated [Plaintiffs’] rights under the

Fourteenth Amendment.” Id. at *1 . The clerks “are the officials responsible for issuing licenses

in their respective counties,” id. at *3 , and therefore “what the plaintiffs request is an injunction

requiring the county clerks to issue marriage licenses to same- sex couples,” id. at *2.

At the same time, this Court rejected the State’s contention that Plaintiffs should have

joined certain state officials to the suit. No state officials, the Court explained, were “necessary

to afford the plaintiffs injunctive relief.” Id. at *4. “Plaintiffs do not seek an injunction requiring

the State Registrar to change the marri age forms in West Virginia,” it held, “ nor do they seek to

compel the Secretary of State to change the manner in which religious celebrants are authorized

to perform marriages in the State. ” Id . at *3. “Plaintiffs’ injury here is directly traceable to the

defendants and the Court can thus afford the plaintiffs full relief with respect to Defendant

Clerks.” Id. at *4.

The Court ’s judgment thus did not mention the State or any state officials, but rather

enjoined only the two clerks. It first “declare[d] that West Virginia Code § 48– 2 – 104(a) & (c)

and West Virginia Code § 48 – 2 – 401 are unconstitutional in so far as they prohibit same-sex

marriage.” Then, the Court “enjoin[ed] Defendant Clerks from enforcing West Virginia Code §


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their motion, Plaintiffs have made no effort to address the question of sovereign immunity. 1 Nor

could they have, as shown in detail below.

A. Section 1988 Does Not Abrogate The State’s Immunity From Attorney’s

Fees.When Congress abrogates state sovereign immunity under its power to enforce the

Fourteenth Amendment, it must do so with clear and unequivocal language in the statute. The

Supreme Court has specifically and repeatedly required a “ clear statement in the text of the

statute ensur[ing] that Congress has specifically considered state sovereign immunity and has

intentionally legislated on the matter. ” Sossamon v. Texas , 131 S. Ct. 1651, 1661 (2011). This is

“a particularly strict standard .” Port Auth. Trans-Hudson Corp. v. Feeney , 495 U.S. 299, 305

(1990) (citations omitted). A statute that “makes no reference whatsoever to either the Eleventh

Amendment or the States’ sovereign immunity ,” for example, lacks the requisite clarity.

Dellmuth v. Muth , 491 U.S. 223, 231 (1989).

Although indisputably an exercise of Congress’s power to enforce the Fourteenth

Amendment, Section 1988 does not clearly abrogate state sovereign immunity for fees. As the

Supreme Court has explained, Congress could have set aside the States’ immunity under Section

1988 “in the exercise of its enforcement power under § 5 of the Fourteenth Amendment,” but

“the application of § 1988 to the States did not depend on congressional abrogation of the

States’ immunity.” Missouri v. Jenkins by Agyei , 491 U.S. 274, 279 (1989) (emphasis added).

The Supreme Court has concluded that Section 1988 only permits the award of fees against a

1 By failing to address this issue, Plaintiffs have waived any argument that the State should beliable for attorneys ’ fees. See A Helping Hand, LLC v. Baltimore Cnty. , MD, 515 F.3d 356, 369(4th Cir. 2008) ( “It is a well settled rule that contentions not raised in the argument section of theopening brief are abandoned. ” (citations omitted)); SEC v. Pirate Investor LLC , 580 F.3d 233,255 n.23 (4th Cir. 2009) ( “[W]e do not consider arguments raised for the first time in a reply

brief ”).


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State in a very limited circumstance where “the Eleventh Amendment d[oes] not apply”— i.e. ,

where the fees are “ancillary to a grant of prospective relief ” against a state official. Id. at 280;

see infra Part I.C. Congress did not , however, speak “suffici ently clearly to overcome Eleventh

Amendment immunity in enacting § 1988.” Jenkins by Agyei , 491 U.S. at 280 (emphasis added).

The lack of congressional intent to assess fees under Section 1988 against a State is

particularly apparent in cases arising under Section 1983, as this one does, because States are

immune from any liability in such cases. It is well settled that Congress did not abrogate state

sovereign immunity under Section 1983 and create a private cause of action against States. Will

v. Mich. Dep’t of State Police , 491 U.S. 58, 71 (1989). The language of § 1983, the SupremeCourt has held, “falls far short ” of the requirement that an abrogation of state sovereign

immunity be “ unmistakably clear. ” Id. at 65 (quotations omitted). But Section 1988 only

permits a court to award reasonable attorney’s fees against “ the losing party — the party legally

respon sible for relief on the merits.” Kentucky v. Graham , 473 U.S. 159, 164 (1985).

“[L]iability on the merits and responsibility for fees go hand in hand; where a defendant has not

been prevailed against, either because of legal immunity or on the merits, § 1988 does not

authorize a fe e award against that defendant.” Id . at 165. Because a State can never be

“prevailed against” on the merits in any case arising under Section 1983, it is especially clear

that Congress did not intend to permit fees under Section 1988 against a State here. 2

2

See Stevens v. Gay , 864 F.2d 113, 115 (11th Cir. 1989) (“Because the state itself cannot beliable on the merits, and because plaintiff failed to amend his complaint to add the state officialsacting in their official capacities, we affirm the district court’s dismissal of plaintiff's claim for

prospective inj unctive relief and denial of plaintiff’s petition for attorney’s fees.”); Glosen v. Barnes , 724 F.2d 1418, 1421 (9th Cir. 1984) (“It would be anomalous to require the state to payattorney’s fees when the Eleventh Amendment and [precedent] bar recovery of damages fromthe state.”).


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But even if the State could have waived its immunity, it did not. In its very first filing,

the State limited its intervention to “the sole and limited purpose of defending the

constitutionality of [its] statutes ” and “d[ id] not waive its right to soverei gn immunity.” Doc. 25

at 1 – 2. Similarly, in its Answer, the State raised the “affirmative defense” that “[s]overeign

immunity under the Eleventh Amendment bars any judgment against the State, including

injunctive relief, declaratory relief, damages, atto rneys’ fees, or costs under 42 U.S.C. § 1988.”

Doc. 65 at 20. And it repeated the reservation of immunity in filing after filing. See Doc. 25 at

2 – 3; Doc. 34 at 3 – 4; Doc. 49 at 3 & n.1; Doc. 65 at ¶¶ 12, 51, 60, 83 – 84, & at 20 – 21; Doc. 68 at

18; Doc. 86 at 3 – 4, 11 – 13; Doc. 92 at 4 – 6; Doc. 101 at n.1; Doc. 126 at 6 – 7; Doc. 128 at 2; Doc.134 at 1, 3 – 5.

Moreover, the federal statute pursuant to which the State intervened — 28 U.S.C.

§ 2403(b) — cannot be considered a waiver of immunity for anything more than court costs.

Section 2403(b) permits a State to intervene in federal lawsuits “to which a State or any agency,

officer, or employee thereof is not a party, wherein the constitutionality of any statute of that

State affecting the public interest is drawn in question.” 28 U.S.C. § 2403(b). Intervention is

limited to the purposes of “presentation of evidence” and “argument on the question of

constitutionality.” Id. An intervening State is given “all the rights of a party,” but is only

“subject to all liabilities of a party as to court costs to the extent necessary for a proper

presentation of the facts and law relating to the question of constitutionality.” 28 U.S.C. §

2403(b) (emphasis added).

As the Supreme Court and other courts have held, this language does not rise to the level

of an unequivocally expressed waiver of sovereign immunity. See Arizonans for Official English

v. Arizona , 520 U.S. 43, 70 n.25 (1997) ( “Section 2403(b) by its terms subjects an intervener ‘to


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all liabilities of a party as to court costs ’ required ‘for a proper presentation of the facts and law

relating to the question of constitutionality. ’ 28 U.S.C. § 2403(b) (emphasis added). It does not

subject an intervener to liability for damages available against a party defendant. ”); Tennessee v.

Garner , 471 U.S. 1, 22 (1985) ( “The State is a party only by virtue of 28 U.S.C. § 2403(b) and is

not subject to liability. ” ); see also Union Elec. Co. v. Mo. Dep't of Conservation , 366 F.3d 655,

660 (8th Cir. 2004) (“[T] he Attorney General's application to intervene” did not constitute a

“waiver of the State's Eleventh Amendment immunity. ”); Nash v. Chandler , 848 F.2d 567, 573

(5th Cir. 1988) (“The State of Texas, appearing in this action as an intervenor pursuant to 28

U.S.C. § 2403(b), is not subject to liability on the merits and consequently cannot be held jointlyand severally liable for attorney’s fees.”); Comfort ex rel. Neumyer v. Lynn School Committee ,

131 F. Supp. 2d 253, 254 n.2 (D. Mass. 2001) (holding that the Commonwealth had “ [p]lainly ”

not waived its sovereign immunity because its “ focused intervention [under Section 2403(b)]

[was] limited to ‘ presentation of evidence ’ and ‘argument on the questions of constitutionality, ’

and d[id] not unmistakably evidence an intent by the Commonwealth to subject itself in federal

court to the entire gamut of the plaintiffs ’ state and federal claims. ” ).

Even Plaintiffs agree. They have expressly conceded that “intervention under Section

2403(b) does not waive a State ’s sovereign immunity for purposes of damages liability. ” Doc.

61 at 5. Under the statute, they acknowledge, a State “shall be liable only for certain court

costs. ” Id. at 4 (emphasis added).

This understanding also comports with the purpose of Section 2403(b) to incentivize state

defense of laws. Before the statute’s enactment, courts had allowed the government to intervene

in private lawsuits to “ introduce evidence and to argue the facts and applicable law, ” but had not

granted the government “ the full status of a party since it was thought its sovereign immunity


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prevented any judgment for or against it from being conclusive.” Note, Federal Intervention in

Private Actions Involving the Public Interest , 65 Harv. L. Rev. 319, 320 (1951). This statute was

passed in 1937 to codify this precise practice — limited intervention —“in recognition of the

inadequate treatment constitutional issues had received in suits between private parties.” Id . at

322. To interpret this statute to entirely waive sovereign immunity would contravene this

purpose by discouraging the government to participate out of fear of financial liability.

Accordingly, the State could be liable at most for “court costs, ” which do not include

attorney’s fees. As a “general statutory rule,” when Congress uses the word “costs ,” it refers

only to the costs listed in 28 U.S.C. § 1920. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y , 421U.S. 240, 254 – 55, 260 (1975). 3 That provision includes a list of ordinary court costs, such as

docket fees and transcript fees, but does not include attorney’s fees. Courts are not to include

attorney’s fees within costs unless the statute in question provides some affirmative “evidence

that Congress intended to incorporate [] attorne y’s fee[s].” Roadway Exp., Inc. v. Piper , 447

U.S. 752, 761 (1980). For example, Section 1988 expressly permits an award of “a reasonable

attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). Because there is no such “specific

provision for attorneys’ fees” in Section 2403(b), Alyeska Pipeline Serv. Co. , 421 U.S. at 254,

the reference to court costs cannot be read to include such fees.

C. Plaintiffs Did Not Sue Any State Officials.

The third possible exception to State immunity from fees — beyond abrogation and

waiver — is where state officials are successfully sued in their official capacity for prospective

3 See, e.g. , Roadway Exp., Inc. v. Piper , 447 U.S. 752, 757 (1980); Arlington Cent. Sch. Dist. Bd.of Educ. v. Murphy , 548 U.S. 291, 297-98 (2006); Crawford Fitting Co. v. J.T. Gibbons, Inc. ,482 U.S. 437, 441 – 42 (1987); People for Ethical Treatment of Animals v. Doughney , 263 F.3d359, 371 (4th Cir. 2001).


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relief. Under Ex parte Young , the Eleventh Amendment does not bar “suits for prospective

injunctive relief against state officials ” in their official capacities. Hawkins , 540 U.S. at 437. It

also does not bar, the Supreme Court has further concluded, an award of attorney’s fees against

the State itself for the successful prosecution of such a suit. Jenkins by Agyei , 491 U.S. at 284

(1989) (holding that in an officialcapacity suit, “ the Eleventh Amendment has no application to

an award of attorney ’s fees, ancillary to a grant of prospective relief, against a St ate”). That is

because the award of fees “ reimburses [the plaintiff] for a portion of the expenses he incurred in

seeking prospective relief. ” Id. at 278.

As this Court has made quite clear, however, Plaintiffs have not sought or obtained prospective relief in this case against state officials sued in their official capacities. The State

sought dismissal for that very reason — arguing that there is no jurisdiction because Plaintiffs

failed to sue any state officials — and this Court rejected the argument. The state officials, this

Court determined, “are not necessary to afford the plaintiffs injunctive relief” or “declaratory

relief.” McGee v. Cole , 2014 WL 5802665, at *4 (S.D. W. Va. Nov. 7, 2014) (Doc. 139).

Rather, in this Court’s view, Plaintiffs properly sought relief solely against the two named county

clerks for acts “taken by the county clerks” for which the clerks themselves were

“responsible”—specifically, “issuing licenses in their respective counties.” Id. at *3. According

to this Court, the clerks themselves could and did “directly t[ake] action” that “violated

[Plaintiffs’] rights under the Fourteenth Amendment.” Id. As such, this Court entered an

injunction only against the defendant clerks. Id. at *10.

The consequence of this Court’s decision and Plaintiffs’ litigation choices, unfortunately,

is that the county governments of the two defendant clerks must solely bear any award of

attorney’s fees. As explained further below, the State contends that this Court should not, in its


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discretion, award any attorney’s fees. See infra Part II. But if this Court chooses to award fees,

the clerks are the only parties available from which to recover the fees, and there is no basis in

the law to shift that recovery to the State.

Had Plaintiffs voluntarily joined a state official (or been required by this Court to do so),

there would be no immunity and the fee award could be directed in part or in whole against the

State in this Court’s discretion. That is what happened in West Virginians for Life, Inc. v. Smith ,

952 F. Supp. 342 (S.D. W. Va. 1996), a successful constitutional challenge to a state law that had

been brought against both county and state officials. Noting that “[p] assage of the statute

involved in this case was the work of the West Virginia Legislature ,” the court determined that itwould be “patently unfair to require West Virginia’s fifty -five county governments to shoulder a

share of the cost of the State’s unconstitutional action .” Accordingly, the court exercised its

discretion to assess the entirety of the fee award against the defendant state official and thereby

against the state treasury. Id. at 348 & n.4.

The refusal by Plaintiffs and this Court to join a state official prevents this Court from

circumventing the State’s immunity , however, so any award of fees may only be assessed against

the defendant clerks, even though they merely enforced and did not create the challenged state

laws. That is the lesson of Supreme Court of Virginia v. Consumers Union of U.S., Inc. , 446

U.S. 719 (1980). There, the Virginia State Bar was responsible for enforcing certain challenged

rules. Noting that the rules were in fact promulgated by the Supreme Court of Virginia and that

the State Bar had actually recommended changes to the rules, the lower court “c onsidered it

unjust to require the State Bar defend ants to pay attorney’ s fees ” and instead assessed the fees

against the Virginia Court. Id. at 738. The United States Supreme Court reversed, finding the


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Virginia Court immune and suggesting that the State Bar instead be held liable for the fees, even

though the State Bar merely enforced and did not create the rules. Id. at 739.

This Court has suggested that the defendant clerks might be deemed state officials

because of their role in enforcing state law. See McGee , 2014 WL 5802665, at *4 n.1. But this

view cannot be squared with West Virginia law. In West Virginia, counties “are fundamentally

independent of the State, and accordingly, . . . cannot be considered arms of the State.” Boggs v.

Bd. of Ed. of Clay Cnty ., 161 W. Va. 471, 476, 244 S.E.2d 799, 802 (1978); see also W. Va.

Const. art. X, § 6 (“The credit of the state shall not be granted to, or in aid of any county, city,

township, corporation or person; nor shall the state ever assume, or become responsible for thedebts or liabilities of any county, city, township, corporation or person. ”). Moreover, while the

West Virginia Constitution prohibits waiving the immunity of the State or its agencies, see Ohio

Valley Contractors v. Bd. of Ed. of Wetzel Cnty ., 170 W. Va. 240, 241, 293 S.E.2d 437, 438

(1982), counties have no such immunity, see W. Va. Code § 29-12A-8 (waiving immunity for

suits against counties). 4

Several courts have also broadly rejected the notion of “exempting a local entity from

liability [for fees] on the theory that it is nothing more than an agent of the state and has no status

as a separate entity.” Grendel ’ s Den, Inc. v. Larkin , 749 F.2d 945, 959 (1st Cir. 1984). While on

the First Circuit, then-Judge Breyer observed that “civil rights a ction costs (including attorney’ s

fees) are often assessed against defendants who enforce the laws instead of those who enact

them ” and refused to “carv[e] out a special legal rule excepting cities from cost liability when

they seek to enforce state statutes.” Venuti v. Riordan , 702 F.2d 6, 8 (1st Cir. 1983) (Breyer, J)

4 Indeed, if the county clerks were state officers, this Court should not have certified the absenceof state officials as grounds for permitting the State to intervene under Section 2403(b). Doc. 16,25 at 1, 3.


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(citing several cases holding school districts and counties liable for fees when they “sought to

enforce state statutes”). And more recently, the D.C. Circuit has similarly noted that “‘[m]ere’

enforcers of unconstitutional laws may be held liable for attorneys’ fees” because the point of

Section 1988 is not to identify who was at “fault” for the underlying law . Turner v. D.C. Bd. of

Elections & Ethics , 354 F.3d 890, 897 – 98 (D.C. Cir. 2004). As the D.C. Circu it noted, “[t]he

Supreme Court has acknowledged that ‘[f]ee awards against enforcement officials are run -of-the

mill-occurrences .’” Id. at 898 (citing Supreme Court of Va. , 446 U.S. at 739); see also Koster v.

Perales , 903 F.2d 131, 137 (2d Cir. 1990) (rej ecting county official’s “agent of the State”

argument).Where local governments or officials truly have no discretion under a state law or policy,

they simply should not have been sued in the first place. The Supreme Court has held that local

governments and officials can be sued under Section 1983 — whether the suit is brought for

money damages or just for prospective relief, as here — only for a policy or custom of the local

government. See Monell v. New York City Dept. of Social Servs. , 436 U.S. 658 (1978); Los

Angeles County v. Humphries , 562 U.S. 29 (2010). Accordingly, the Fourth Circuit has held

that a local government or official is not subject to suit under Section 1983 for carrying out

policies set and determined solely by a State. Bockes v. Fields , 999 F.2d 788, 791 (4th Cir.

1993). The proper response to a suit against a local official acting as an agent of the State is thus

to dismiss and require the presence of the appropriate state officials, not to impose liability on

the local officials and then shift responsibility for the payment of fees. 5

5 Two Fifth Circuit cases from nearly two decades ago — Wyatt v. Cole , 928 F.2d 718 (5th Cir.1991), and Echols v. Parker , 909 F.2d 795 (5th Cir. 1990) — reached the opposite conclusion butshould not be followed. Unlike the decisions of the First, Second, and D.C. Circuits, the Fifth


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From the outset, the State has consistently and repeatedly contended that state officials

were necessary and appropriate defendants in this suit, but was rebuffed. Plaintiffs strongly

resisted joining any state officials, and this Court affirmed that decision. As a result, while there

may have been a lawful basis for shifting fees to the State had the State prevailed on its view of

the case, there simply is none now.

II. EVEN IF THE STATE IS NOT IMMUNE, NO FEES SHOULD BE RECOVEREDFROM THE STATE.

A. Should this Court conclude that the State lacks immunity against attorney’s fees,

it still should not impose a fee award against the State because Section 1988 only permits awards

against a liable party. As discussed above, “Section 1988 simply does not create fee liability

where merits liability is non-existent. ” Graham , 473 U.S. at 168. Where an intervenor has lost

but suffered no liability, the Supreme Court has held that courts may award “attorney’ s fees . . .

only where the intervenors ’ action was f rivolous, unreasonable, or without foundation.” Indep.

Fed'n of Flight Attendants v. Zipes , 491 U.S. 754, 761 (1989); see also Rum Creek Coal Sales,

Inc. v. Caperton , 31 F.3d 169, 176 (4th Cir. 1994). (“In Zipes , the Court held that a prevailing

plaintiff in a civil rights case can recover from an intervening party only when the intervening

party’s action is ‘frivolous, unreasonable or without foundation.’”).

This Court should award no fee against the State because the State is not liable under the

judgment. The order includes no finding of liability or injunction against the State. To the

contrar y, it states specifically that “Defendant Clerks are the officials directly responsible for

effectuating the marriage ban and causing Plaintiffs’ alleged injury” and enjoins only the clerks.

McGee , 2014 WL 5802665, at *4 n. 1. The most this Court held was that, by virtue of

Circuit cases cannot be squared with the reasoning of the Supreme Court in either SupremeCourt of Virginia or Monell .


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intervention , “the State is subject to any declaration by this Court that the ban is

unconstitutional” as “res judicata ,” such that “the State would be precluded from defending the

constitutionality of the marriage ban in the future .” Id . at *4 – 5 (emphasis added).

B. Separately, this Court should also award no fees because that would constitute the

appropriate fee under the circumstances. Section 1988 authorizes “a reasonable attorney’s fee as

part of the costs,” 42 U.S.C. § 1988, which is “one that is ‘adequate to attract competent

counsel,’ but” that does “not produce windfalls to attorneys.’” Blum v. Stenson , 465 U.S. 886,

897 (1984) (quoting S.Rep. No. 94 – 1011, 94th Cong., 2d Sess., 6 (1976)).

Here, the most appropriate award is no award. Same-sex marriage is a changing area oflaw in which a new constitutional rule was announced by the Fourth Circuit, and which is yet to

be finally resolved. There was no question of constitutionality when the West Virginia’s

challenged marriage laws were passed, and in at least five states and one territory, similar laws

have been held to be constitutional. See Deboer v. Snyder , 772 F.3d 388 (6th Cir. 2014);

Robicheaux v. Caldwell , 2 F. Supp. 3d 910 (E.D. La. 2014); Conde-Vidal v. Garcia-Padilla ,

2014 WL 5361987 (D.P.R. Oct. 21, 2014). The Supreme Court has also just agreed to decide the

very merits issue Plaintiffs raised. See Obergefell v. Hodges , No. 14-556, 2015 WL 213646

(U.S. Jan. 16, 2015), Tanco v. Haslam , No. 14-562, 2015 WL 213648 (U.S. Jan. 16, 2015),

DeBoer v. Snyder , No. 14-571, 2015 WL 213650 (U.S. Jan. 16, 2015), Bourke v. Beshear , No

14-574, 2015 WL 213651 (U.S. Jan. 16, 2015) (granting certiorari and consolidating cases to

examine whether “the Fourteenth Amendment require[s] a state to license a marriage between

two people of the same sex” ). In a time of declining government revenues, and many

worthwhile claims on public funds, it would be unfair and unjust to require payment of fees by

state and county officials acting in good faith in a case like this.


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III. IF AN AWARD OF FEES IS APPROPRIATE, THIS COURT MUST REDUCETHE AMOUNT.

Under Section 1988, a fee award “should reimburse the plaintiff for work ‘expended in

pursuit of’ the success achieved.” Johnson v. City of Aiken , 278 F.3d 333, 337 (4th Cir. 2002).

“To determine the appropriate amount, a district court should first iden tify the number of hours

reasonably expended on the litigation and multiply that number by a reasonable rate,” which

creates a lodestar amount. Id . “The court then should subtract fees for hours spent on

unsuccessful claims unrelated to successful ones.” Id . “Once the court has subtracted the fees

incurred for unsuccessful, unrelated claims, it then awards some percentage of the remaining

amount, depending on the degree of success enjoyed by the plaintiff.” Id .

Here, application of these standards yields an award dramatically lower than the

$350,256.19 in fees that Plaintiffs request. As such, even if an award were appropriate, this

Court must still reduce the amount requested in several ways. 6

A. This Court Must Subtract Hours Unreasonably Expended Due ToOverstaffing.

Under Section 1988, the court “ should exclude from this initial fee calculation hours that

were not reasonably expended,” and take into consideration that “cases may be overstaffed, and

the skill and experience of lawyers vary widely.” Hensley v. Eckerhart , 461 U.S. at 434 (1983).

The court should exclude “ hours that are excessive, redundant, or otherwise unnecessary, just as

a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. ”

Id . After all, “[h]ours that are not properly billed to one’s client also are not properly billed to

one’s adversary pursuant to statutory authority.” Id .

6 This brief outlines several reasons why Plaintiffs’ fee request merits reduction, but this list isnot to the exclusion of the many other troubling aspects of the request that the defendant countyclerks highlight in their response. Doc. 153.


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1. Eleven Attorneys Was Unnecessary Overstaffing.

The court should reduce Plaintiffs ’ request for reimbursement because this case did not

reasonably require the work of eleven separate attorneys, plus support staff.

First , Plaintiffs ’ local counsel (the Tinney Law Firm and John Tinney) possessed the

basic expertise and staff necessary for general litigation of a case like this. Doc. 146, at 12 – 13.

Lead local counsel on this case, John Tinney, is well qualified for federal litigation of this

stature: he served a clerkship on the Fourth Circuit Court of Appeals and had a tenure “of almost

three years” as an Assistant United States Attorney in the United States Attorney’s Office for the

Southern District of West Virginia, during which he represented the United States before the

Fourth Circuit Court of Appeals. Doc. 146 at 13. Now, in private practice, Mr. Tinney regularly

represents “diverse clients i n both state and federal courts ” in complex constitutional cases .” Id .

It is no surprise that according to the billing entries, local counsel made a significant contribution

this case, including, but not limited to, researching case law, drafting and reviewing pleadings,

and participating in internal strategy conferences. Doc. 146-2. This is reflected in: local

counsel’s assignment of four attorneys, plus one paralegal; its expenditure of 170.9 attorney

hours and 66.6 paralegal hours; and its individual request for $51,856.00 in fees. Doc. 146 at 16.

All of this indicates that local counsel could very have handled this case on their own.

Second , even if this Court were to find that it was reasonable for this qualified team of

four local attorneys to seek the assistance of outside counsel, it is far from clear that they

required two additional teams of lawyers: one from a national advocacy group and another from

a large national law firm. The first team from the national advocacy group, Lambda Legal,

became involved from the beginning and appears to have provided necessary subject-matter

expertise. Doc. 146-3 at 8. Lambda Legal describes itself as “the nation’s oldest and largest


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legal organization dedicated to achieving full recognition of the civil rights of lesbian, gay,

bisexual and transgender people ”; asserts that “it has been party counsel to in numerous

challenges to state laws banning same-sex couples from marriage ”; and claims that its role in this

litigation was essential given its unique and highly specialized expertise in constitutional

advocacy on behalf of lesbian and gay persons. Doc. 146-3, -4, -5. Even accepting that it was

reasonable to include an outside specialist in this area, however, it is not clear that more than one

attorney from Lambda Legal was necessary.

The necessity of the second team from the large national law firm, Jenner & Block, is

particularly suspect. Jenner became involved some months after the national advocacy group,Doc. 146-3, -4, -5, though it is unclear what Jenner added to this case that the advocacy group

and local counsel did not. Counsel asserts that appellate counsel at “Jenner became involved in

this litigation in September 2013 to provide Jenner’s unique expe rtise in litigation advancing the

rights of gay and lesbian individuals.” Doc. 146, 146 -1. But local counsel possessed federal

appellate expertise — to the extent any was necessary in this case, which never even proceeded to

argument — and the advocacy group possessed unique subject-matter expertise.

This lack of necessity is born out, for example, in the records for Plaintiffs ’ summary

judgment filings. The national firm states that it was the “primary drafter of almost all pleadings

and submissions, inclu ding Plaintiffs’ Motion for Summary Judgment.” Doc. 146 -1 at 3. In

particular, its junior associates “were primarily responsible for researching and drafting the briefs

and motions in this case, with oversight from Lindsay Harrison. ” Doc. 146-1 at 3. Nicholas

Tarasen and R. Trent McCotter, the junior associates, did bill a significant amount of time for on

the p laintiffs’ Motion for Summary Judgment and Reply — but their entries also indicate that

their work was performed in concert with Lambda Legal’s c ounsel, and that they relied upon


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ideas and research provided by Lambda Legal. Doc. 146-1. Lambda Legal’s billing entries

likewise show that Camilla Taylor, Karen Loewy and Elizabeth Littrell expended significant

amounts of time researching, drafting, revising, and reviewing each filing: Lambda Legal’s

attorneys spent 17.7 hours drafting and revising Plaintiffs’ Complaint, as well as 42.2 hours

drafting and revising Plaintif fs’ Motion for Summary Judgment and 53.1 hours drafting and

revising the Reply. Doc. 146-3 at 8-10; Doc. 146-4 at 8-10; Doc. 146-5 at 10.

The addition of this apparently duplicative national law firm is especially troubling

because its requested rates are significantly higher than co-counsel and because it billed a

substantial number of hours. T heir attorneys’ fees alone account for $150,707.75 of the total$350,256.19 in fees request. Doc. 146-1, -3, -4, -5. Plaintiffs simply do not explain why this law

firm was a prudent addition to the case, or that a reasonable, cost-conscious client would have

paid for its work.

2. Any Hours Recoverable Should Be Limited To Non-DuplicativeWork.

Even if the participation of all eleven attorneys were reasonable, their actual hours

recoverable should be limited to non-duplicative work. Despite co unsel’s assertions that they

exercised billing judgment to reduce duplicate expense, their billing records do not reveal any

cooperative effort to reduce duplicative time entries between the three teams of counsel. Doc.

146-1 at 3-4; Doc. 146-1 at 4; Doc. 146-2 at 3; Doc. 146-3 at 5; Doc. 146-4 at 6; Doc. 146-5 at 4.

Nearly every one of the eleven attorneys, for example, claims to have researched and

drafted every substantive filing. A side by side comparison of the billing entries from each firm

reveals that each attorney billed for drafting, researching, reviewing, editing, discussing,

summarizing, or reading an email about P laintiffs’ response to motions to dismiss filed by the


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State and the clerks. Doc. 146-1 at 12; Doc. 146-2 at 10-11; Doc. 146-3 at 9; Doc. 146-4 at 9;

Doc. 146-5 at 7. Similar records exist for every other filing, showing that the plaintiffs ’ counsel

did not in fact de-duplicate their records — or, if they did, that their case was grossly overstaffed.

Similarly, there are numerous examples of duplicate bills for travel and conference calls.

Doc. 146 at 9. The chart below reflects that many attorneys conducted the same travel and

conference calls, and billed for them, to the tune of $40,800. See Exh. 1 (Chart reflecting

duplicate communications charges). Given how much work product was produced jointly

among three firms and eleven attorneys, this court should proportionately reduce all hours billed

by a factor reflecting the number of attorneys actually necessary to work on this case.3. The Hours Billed Were Excessive In Light Of Similar Arguments

Researched And Asserted In Other Cases.

Contrary to Plaintiffs ’ assertion that the challenge to West Virginia’s marriage laws

“certainly was not a ‘relatively straightforward procedural analysis,’” the arguments and

substance of Plaintiffs ’ case are not novel. Doc. 146, pp. 9. The merits issues were being

briefed and litigated in dozens of cases contemporaneously, nearly all of whose filings were

publicly available online. Nor were the national law firm or the advocacy group new to this

subject matter. In fact, Plaintiffs’ counsel borrowed heavily from the legal arguments ra ised in

Harris v. McDonnell , where the same attorneys represented other plaintiffs’ in their challenge to

the Virginia marriage laws, filed in the Western District of Virginia. Exh. 1 & 2 ( Harris

Complaint and Motion for Summary Judgment). Any award should also proportionately reduce

fees in light of this factor.


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4. Time Spent On Public Relations Is Non-Recoverable.

This Court should also reduce the total hours to subtract fees, costs, and expenses related

to public relations or media outreach. In Rum Creek Coal Sales, Inc. , the Fourth Circuit affirmed

the lower court’s disallowance of $11,008.75 in attorney’s fees/costs related to “media

communications and public relations,” finding that “[t]he legitimate goals of litigation are almost

always attai ned in the courtroom, not in the media.” 31 F.3d at 176. Here, the billing entries

from both the Tinney Firm and Lambda Legal billing combine for $7,452 in attorneys’ fees for

media and public relations. Doc.146-2 at 6-37; Doc. 146-5 at 9; Exh. 16. These hours should be

subtracted from the award.

5. Certain Billing Entries Are Too Vague To Meet The Burden Of Proof.

Because Plaintiffs have the burden to provide this Court with the documentation

necessary to prove that their rate and the hours worked are reasonable, “[ w]here the

documentation of hours is inadequate, the district court may re duce the award accordingly.”

Hensley , 461 U.S. at 433. The Fourth Circuit has “ frequently exhorted counsel to describe

specifically the tasks performed, a practice which is especially necessary when we review an

award in a case where the plaintiff has not prevailed on all the claims. ” Rum Creek , 31 F.3d at

180 (citing Daly v. Hill , 790 F.2d 1071 (4th Cir.1986)). Entries limited to “‘legal research,’

‘revise, ’ ‘draft ,’ ‘discovery,’ ‘ email, ’ and ‘preparation,’” are an inadequate account of an

attorney’s time. (2013) Koontz v. Wells Fargo N.A ., 2013 WL 1337260 at 20 (2013) (imposing a

10% reduction of the total hours billed to address “t he impermissibly vague time entries.”); see

also H.J. Inc. v. Flygt Corp. , 925 F.2d 257, 260 (8th Cir. 1991) (reducing hours for vague entries

including “legal research,” “trial preparation,” and “met with client”); Leroy v. City of Houston ,

906 F.2d 1068, 1080 (5th Cir. 1990) (reducing fee award based on hours “not illuminating as to


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the subject matter” or “vague as to precisely what was done”); Leroy v. City of Houston , 831

F.2d 576, 585 (5th Cir. 1987) (reducing hours for “after -the- fact summaries” and entries

“lack[ing] explanatory detail’).

Here, many hours are simply too vague or abbreviated to permit a reasonable person to

understand their necessity to the case. In particular, Ms. Littrell’s Communication Log only

provides vague descriptions for several communications for which she seeks $8,800 in fees. For

example, her entry dated September 20, 2013 reflects .4 hours billed for “emails,” the topic of

which she describes as “complaint.” Doc. 146 -5 at 7. On entries dated October 7 & 9, 2014, she

billed 1.3 hours and 1.1 hours respectively , for “emails” the topic for which she simply describesas “settlement.” Doc. 146 -5 at 8. A further reduction is therefore appropriate to account for

these entries.

B. Under Section 1988, Plaintiffs ’ Counsel May Only Be Reimbursed At LocalPrevailing Rates.

As a general rule, “‘r easonable fees’ under § 1988 are to be calculated according to the

prevailing market rates in the relevant community, regardless of whether plaintiff is represented

by private or nonprofit counsel.” Blum v. Stenson , 465 U.S. 88 6, 895 (1984). “[T] his

determination is fact-intensive and is best guided by what attorneys earn from paying clients for

similar services in similar circumstances.” Rum Creek Coal Sales , 31 F.3d at 175. It is only

reasonable to go beyond this community w hen “t he complexity and specialized nature of a case .

. . mean that no attorney, with the required skills, is available locally .” Nat’l Wildlife Fed. v.

Hanson , 859 F.2d 313, 317 (4th Cir.1988) (internal cites and quotations omitted).

Here, not only was it questionable to add a national law firm with the same expertise as

local counsel and the national advocacy group, that firm charged rates out of line with both sets


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of co-counsel. Paul Smith seeks a rate of $771 to $789 per hour, and Lindsay Harrison seeks

$567 to $655 per hour. Doc. 146, 146-1. In contrast, the rates sought by local counsel and the

national advocacy group are half that, ranging from $300 to $350 per hour. Doc. 146, 146-2, -3,

-4 -5. Those rates show that $300 to $350 hour is at most the proper rate, whether viewed as the

prevailing local rate or the rate appropriate for lawyers recognized as national advocates in this

area. Plaintiffs assert that the Jenner attorneys brought appellate expertise and subject-matter

experience, but they have not shown that such expertise and experience was worth twice as much

as the contributions of their well-qualified co-counsel. There is no evidence in the record

suggesting that the “ complexity and specialized nature of [this] case ” put it beyond thecapabilities of local counsel and the national advocacy group.” Hanson , 859 F.2d at 317.

Moreover, even if it were appropriate to hire attorneys from Washington, D.C. when

similarly experienced attorneys were available and used in this case locally and at lower rates,

Plaintiffs have failed to provide this Court with satisfactory specific evidence of the prevailing

market rates in Washington, D.C. “In addition to the attorney’s own affidavits, the fee applicant

must produce satisfactory specific evidence of the prevailing market rates in the relevant

community for the type of work for which he seeks an award. ” Plyler v. Evatt , 902 F.2d 273,

277 (4th Cir. 1990). The Jenner attorneys have relied only on the Laffey Matrix and Paul

Smith’s declaration. Lindsay Harrison, R. Trent McCotter, and Nicholas Tarasen did not submit

any affidavits of their own with supporting evidence to support their requested rates or certify

their records and qualifications. Doc. 146-1, -6. In similar circumstances, the Fourth Circuit has

required more. Robinson v. Equifax Info. Servs., LLC , 560 F.3d 235, 245 (4th Cir. 2009). The

record lacked “affidavits of other local lawyers who are familiar both with the skills of the fee

applicants and more generally with the type of work in the relevant community. ” Id .


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C. This Court Should Subtract The Fees Attributable To Plaintiffs ’ Unsuccessful Challenge To The Non-Recognition Statute.

After identifying the lodestar fee, “the hours spent on the unsuccessful claim should be

excluded.” Hensley , 461 U.S. at 440. This ensures that “where the plaintiff achieved only

limited success, ” the court awards not an “excessive” amount but “only that amount of fees that

is reasonable in relation to the results obtained.” Hensley v. Eckerhart , 461 U.S. 424, 434, 440

(1983); see also Robinson, 560 F.3d at 244 (“After determining the lode star figure, the court then

should subtract fees for hours spent on unsuccessful claims unrelated to successful ones.”)

(internal quotations and citations omitted). Here, this Court should subtract at least $21,111.25

from any award for time spent on Plaintiffs ’ unsuccessful challenge t o West Virginia’s non -

recognition statute. See Exh. 3 (chart listing billing entries related to State’s motion to dismiss

and compiling the amount requested due to this claim). Contrary to Plaintiffs ’ assertion that they

“succeeded on every significant issue in this litigation,” Doc. 146 at. 4, this Court dismissed for

lack of standing their challenge to the non-recognition provision, W.Va. Code § 48-2-104(c).

See Doc. 56. Plaintiffs are thus not a prevailing party on that claim and any fees, costs, or

expenses associated with that challenge are not recoverable. According to their time sheets,

Plaintiffs’ counsel dedicated 58.5 hours to defending this claim from dismissal and seek

$21,111.25 in compensation. Exh. 3. Any award should therefore be reduced by at least that

amount.

D. The Requested Fees Are Unreasonable In Light Of The Fees Awarded InSimilar Cases Across The Country.

Finally, any award should be reasonable in light of similar efforts in other cases, but as

shown in the attached chart those cases’ fees are much lower than the sum requested here,

despite the fact that many of those cases required considerably more work. Exh. 4 (chart


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reflecting comparative fee requests in other same-sex marriage cases by number of hours and

hourly rate). The highest billable rate was $425 per hour, as opposed to the $789 per hour

requested here. These cases were staffed with three to seven attorneys, not the eleven attorneys

used here. The final fees in these cases have ranged from $60,000 to $133,657.50, as opposed to

the $350,256.19 Plaintiffs request here. And, unlike this case, the work in many of these cases

involved oral argument, appeals, petitions for certiorari, and motions to appeals courts or the

Supreme Court for stays. In fact, the total fees requested in a case that involved trial court

briefing, an appeal, and a petition for certiorari totaled $371,769.87 — just about what Plaintiffs

request here just for trial court briefing alone.CONCLUSION

The Court should hold oral argument on this motion and decline to enter any award

against the State or other parties.


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Respectfully submitted,

ATTORNEYS FOR DEFENDANT-INTERVENOR STATE OF WEST VIRGINIA

PATRICK MORRISEYATTORNEY GENERAL

/s/ Elbert LinElbert Lin (WV Bar #12171)

Solicitor GeneralJulie A. Warren (WV Bar #9789)Julie M. Blake (WV Bar #12271) Assistant Attorneys General

OFFICE OF THE WEST VIRGINIA

ATTORNEY GENERALState Capitol ComplexBuilding 1, Room E-26Charleston, WV 25305Telephone: (304) 558-2021Fax: (304) 558-0140E-mail: [email protected]

Dated: January 16, 2015


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IN THE UNITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

CASIE JO MCGEE and SARA ELIZABETHADKINS; JUSTIN MURDOCK and WILLIAMGLAVARIS; and NANCY ELIZABETHMICHAEL and JANE LOUISE FENTON,Individually and as next friends of A.S.M.,minor child,

Plaintiffs,

v. Civil Action No. 3:13-24068

KAREN S. COLE, in her official capacity asCABELL COUNTY CLERK; and VERA J.MCCORMICK, in her official capacity asKANAWHA COUNTY CLERK,

Defendants,

and

STATE OF WEST VIRGINIA,

Defendant-Intervenor.

CERTIFICATE OF SERVICE

I, Elbert Lin, counsel for Defendant-Intervenor, hereby certify that on January 16, 2015, I

electronically filed the foregoing The State Of West Virginia ’s Response To Plaintiffs ’ Motion

for Attorney ’s Fees, Expenses, and Costs with the Clerk of the Court using the CM/ECF system,

which will send notification of such filing to:


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R. Trent McCotterJENNER & BLOCKSuite 9001099 New York Avenue, NWWashington, DC 20001-4412

Email: [email protected] H. Tinney , Jr.THE TINNEY LAW FIRMP. O. Box 3752Charleston, WV 25337-3752Email: [email protected]

Lee Murray HallJENKINS FENSTERMAKERP. O. BOX 2688

Huntington, WV 25726-2688Email: [email protected]

Sarah A. WallingJENKINS FENSTERMAKERP. O. Box 2688Huntington, WV 25726-2688Email: [email protected]

Charles R. BaileyBAILEY & WYANTP. O. Box 3710Charleston, WV 25337-3710Email: [email protected]

Michael W. TaylorBAILEY & WYANTP. O. Box 3710Charleston, WV 25337-3710Email: [email protected]

s/ Elbert LinElbert Lin


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Exhibit 1. Chart Reflecting Duplicate

Communications Charges

Case 3:13-cv-24068 Document 155-1 Filed 01/16/15 Page 1 of 2 PageID #: 5028

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Exhi bit 1: Char t Ref lectin g Dupli cate Communi cations Charges

Date Activity: Participants: TotalTime:

FeeRequested

8/19-21/2013 Travel to Huntington C. TaylorE. LittrellK. Loewy

69.2 hours $23,007.50

9/19/2013 Conference Call C. TaylorE. LittrellK. Loewy

11.7 hours $3,580.00

9/25/2013 Conference Call C. TaylorK. Loewy

2 hours $700.00

10/9/2013 Conference Call K. LoewyP. SmithJohn Tinney, Jr.

2.3 hours $1,070.75

11/1/2013 Conference Call K. LoewyL. HarrisonR.T. McCotter

4.7 hours $1,974.00

11/27/2013 Conference Call K. LoewyC. TaylorL. HarrisonP. SmithR.T. McCotterH. Kittredge

2.8 hours $ 1,244.75

12/16/2013 Rule 26(f) ConferenceCall

P. SmithC. TaylorK. LoewyJ. Tinney, Jr.

3.5 hours $1,721.00

1/6/2014 Travel to, and participation in statusconference in

Huntington, WV, and subsequent ConferenceCall to discuss statusconference.

L. HarrisonJ. Tinney, Jr.H. KittredgeC. TaylorK. Loewy

27 hours $7,514.50

2/13/2014 Conference Call L. HarrisonC. TaylorK. LoewyH. Kittredge

2.9 hours $1,048.50


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Exhibit 2. H ar r i s Plaintiffs’

Complaint (W.D. Va.)


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IN THE UNITED STATES DISTRICT C OURT F OR THE W ESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

JOANNE HARRIS and JESSICA DUFF, andCHRISTY BERGHOFF and VICTORIA KIDD,on behalf of themselves and all others similarlysituated,

Plaintiffs ,

v.

ROBERT F. MCDONNELL, in his officialcapacity as Governor of Virginia; JANET M.

RAINEY, in her official capacity as State Registrarof Vital Records; THOMAS E. ROBERTS, in hisofficial capacity as Staunton Circuit Court Clerk,

Defendants .

No. _________________________

COMPLAINT FOR DECLARATORYAND INJUNCTIVE RELIEF

CLASS ACTION

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. INTRODUCTION

1. Named Plaintiffs Joanne Harris and Jessica Duff, and Christy Berghoff and

Victoria Kidd (collectively, “Named Plaintiffs”), and the members of the Plaintiff Class 1

(collectively, with the Named Plaintiffs, “Plaintiffs”) are loving, committed same-sex couples.

The Named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 on behalf of themselves and

the Plaintiff Class, seeking declaratory and injunctive relief for the violation of Plaintiffs’ rights

under the Fourteenth Amendment to the United States Constitution caused by the exclusion of

same-sex couples from the freedom to marry and from recognition of the marriages some

1 The Plaintiff Class is defined in Section V of this Complaint, below.


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Plaintiffs have entered into in other jurisdictions under the law of the Commonwealth of Virginia

(“Commonwealth” or “Virginia”).

2. Marriage plays a unique role in society as the universally recognized and

celebrated hallmark of a couple’s commitment to build family life together. It confers upon

couples a dignity and status of immense import. Plaintiffs have formed committed, enduring

bonds equally worthy of the respect afforded by the Commonwealth to different-sex couples

through marriage. Yet, the Commonwealth, without any adequate justification, has enacted an

unprecedented series of statutory and constitutional amendments to single out lesbian and gay

Virginians by excluding them from the freedom to marry, or by refusing to recognize theirexisting marriages from other jurisdictions, based solely on their sexual orientation and their sex.

3. Through the Commonwealth’s constitutional and statutory marriage bans and

through Defendants’ enforcement of them, the Commonwealth and Defendants send a purposeful

message that they view lesbians, gay men, and their children as second-class citizens who are

undeserving of the legal sanction, respect, protections, and support that heterosexuals and their

families are able to enjoy through marriage. This discrimination (referred to herein as the

Commonwealth’s “marriage ban”) is enshrined both in the Commonwealth’s statutes and in

article 1, section 15-A of the Commonwealth’s Constitution, which limits marriage to couples

composed of “one man and one woman.”

4. The marriage ban inflicts serious and irreparable harms upon same-sex couples

and their children. Joanne Harris and Jessica Duff are unmarried, and wish to marry for the same

reasons as different-sex couples – to publicly declare their love and commitment before their

family, friends, and community, and to give one another and their son J. H.-D. the security and

protections that only marriage provides. Christy Berghoff and Victoria Kidd have married in


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another jurisdiction, but are treated as legal strangers in the state they call home – a painful

invalidation of their relationship that also deprives them and their daughter L. B.-K. of the

protections that a legally recognized marriage most securely provides.

5. Our courts and our society have discarded, one by one, marriage laws that

violated the Constitution’s mandate of equality, such as anti-miscegenation laws and laws that

denied married women legal independence and the right to make decisions for themselves.

History has taught us that the vitality of marriage does not depend on maintaining such

discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has

enhanced the institution. Ending the exclusion of lesbian and gay couples from marriage is nodifferent. Indeed, in 13 states and the District of Columbia, same-sex couples are marrying and

the institution of marriage continues to thrive.

6. Plaintiffs seek equal access to marriage as the only means to secure their rights to

due process and equal protection of the law, and to eliminate the myriad serious harms inflicted

on them by the marriage ban and Defendants’ enforcement of it. Accordingly, Named Plaintiffs

bring this suit on behalf of themselves and all others similarly situated pursuant to 42 U.S.C.

§ 1983 seeking declaratory and injunctive relief on the grounds that the Commonwealth’s

exclusion of same-sex couples from marriage and refusal to recognize their valid marriages from

other jurisdictions and Defendants’ enforcement of the marriage ban violate the due process and

equal protection guarantees of the Fourteenth Amendment to the United States Constitution.

II. PARTIES

A. The Named Plaintiffs

7. Joanne Harris (“Joanne”), and Jessica Duff (“Jessi”), are a lesbian couple residing

in Staunton, Virginia, within the Harrisonburg Division of the Western District of Virginia.


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Joanne, age 37, is the Director of Diversity and Advocacy at Mary Baldwin College in Staunton,

Virginia. Jessi, age 33, previously worked for many years at an agency serving people with

developmental disabilities, and now works for child protective services, conducting child abuse

investigations with Shenandoah Valley Social Services. The couple has been in a committed,

loving relationship for 11 years, and are the devoted parents of a four-year-old son, J. H.-D.

8. Jessi fell in love at first sight with Joanne when they met in 2002 through mutual

friends. Joanne realized that she wanted to spend the rest of her life with Jessi when Jessi’s

grandmother wrapped her in a big hug and welcomed her into the family. The couple shares

many values, including a commitment to their Christian faith. In 2006, they were baptizedtogether in the backyard river of a fellow church member.

9. Both Joanne and Jessi also grew up in Virginia farmland. Joanne’s dad is a pig

farmer, and she lived on the family farm until she left for college. Jessi’s grandfather owned a

cow farm, which remains in the family, and Jessi remembers baling hay and feeding and

watering the cows as a child.

10. Joanne and Jessi have commingled their finances and pledged to support each

other financially. They maintain joint checking and savings accounts, and have designated each

other as beneficiaries on their retirement accounts. Both contribute to a 529 Plan (college

savings account) for J. H.-D.

11. Joanne and Jessi’s lives revolve around J. H.-D. Joanne is J. H.-D.’s biological

mother, and he calls her “Mommy,” and calls Jessi “Momma DeeDee,” or “DeeDee” (his chosen

name for Jessi). They all are members of their local YMCA, where J. H.-D. plays soccer and

basketball, and takes swimming lessons. Joanne and Jessi also take J. H.-D. to play Kiwanis tee-


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ball through the Staunton Parks and Recreation Department. They look forward all week to

Friday, which is “Family Movie Night.”

12. Religion is important to the couple, and when they decided to have a commitment

ceremony in 2006, they saw their pastor for marriage counseling, as other heterosexual members

of their church do. In their words, they “wanted to feel what normal couples feel, and to get

what heterosexual couples get, which is marriage counseling,” as well as to deepen their bond

through the process. Their attempts to recreate the experiences that different-sex fiancés and

spouses may take for granted, however, are severely limited by the Commonwealth’s marriage

ban and Defendants’ enforcement of it.13. While Joanne and Jessi’s commitment ceremony was one of the happiest days of

their lives, they remember how completely different it was when Jessi’s brother, Matt, got

married. The moment Matt was married he could cover his wife through his health insurance at

work, and feel secure that no one would question his right to make medical decisions if she were

incapacitated. Matt also instantly gained the ability to take parenting leave to care for any

children he might have with his wife. As Matt expressed to the couple, he was very conscious of

the fact that he could take those rights for granted, knowing that they were unavailable to Joanne

and Jessi.

14. Joanne and Jessi worry about the hurtful messages of stigma that their inability to

marry sends to J. H.-D. He is proud of their family, but even at the age of four is very aware that

his parents cannot marry. A picture from their commitment ceremony hangs in their home, and

J. H.-D. points to it and says to others, “Mommy and Momma DeeDee got married, and they

need to really get married.” Joanne and Jessi believe that a state-approved ceremony would

carry great significance for him because he has expressed that he wants to be a part of their


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wedding. J. H.-D. proudly told Joanne and Jessi that he went to school one day and told his

friends, “Barack Obama [who supports marriage equality] is president, and hopefully he will

help my mommies get married.”

15. The inability to marry leaves Joanne and Jessi vulnerable in a range of contexts.

Jessi has no legal relationship to J. H.-D., as she would have if Joanne and Jessi had been

married at the time of his birth. Because they cannot marry in Virginia, Jessi also is unable to

adopt J. H.-D. as a co-parent in Virginia. The couple is terrified about what might happen if, for

example, Joanne and J. H.-D. were both in an accident and J. H.-D. needed emergency medical

care. Jessi lacks clear legal authority to authorize such care, and they fear what would happen ifJoanne were injured and unable to consent. This fear is exacerbated by the fact that Joanne’s

relationship with her parents is tenuous, and both Joanne and Jessi worry that Joanne’s family

might seek to override or deny Jessi’s role as J. H.-D.’s mother in such circumstances. Although

some other same-sex couples raising children in Virginia have been able to obtain court orders

granting some forms of decision-making authority to both parents, at a substantial cost, Joanne

and Jessi know there is no guarantee that such papers would be respected in an emergency

situation. Moreover, under current Virginia law there is no way for Jessi to secure an order

recognizing what she is to J. H.-D.: a co-equal parent .

16. Especially because Joanne has epilepsy, the couple worries that their relationship

may be disrespected during a health crisis. They also are concerned because Joanne’s mother

disagrees with Joanne’s clear wishes for end-of-life decision-making. Jessi fully respects and is

prepared to carry out Joanne’s wishes not to receive life-prolonging measures, but Joanne’s

mother has expressed that she would vigorously fight that decision. Joanne also worries that her


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family might contest her will, which would inflict significant uncertainty and anxiety during the

very moment that Jessi would also be grieving.

17. Joanne and Jessi have struggled to identify their family on forms that require them

to indicate their marital status. They also are frustrated that Jessi cannot sign forms or make

school-related decisions that require a legal parent. They are unable to have a family

membership at the YMCA where J. H.-D. takes classes. On a daily basis, in ways both profound

and mundane, they are reminded that the Commonwealth views them as strangers – to each

other, and Jessi to her son. Joanne and Jessi long for the day that their family and commitment

to each other can be recognized for what it is: equally loving and devoted, and worthy of thesame vital protections that other families formed by couples who may marry receive.

18. Christy Berghoff (“Christy”) and Victoria Kidd (“Victoria”) of Winchester have

lived together in a committed relationship for more than nine years. Together, they are the

parents of a daughter, L. B.-K., who is eight months old.

19. Victoria, 34, is a small business owner as well as a stay-at-home mother to L. B.-

K. Victoria works part-time from home as a freelance writer and owner of a small consulting

business that provides writing, editing, and resume development services. She is a Certified

Professional Resume Writer and a Certified Professional Career Coach, and holds a master’s

degree in business administration.

20. Christy, also 34, works as an information technology program manager for the

U.S. Department of Justice in Washington, D.C. Christy is also currently working toward a

master’s degree in management information systems.


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21. In addition, Christy is a veteran of the United States Air Force. She served in an

intelligence unit from 1999 to 2003, when she was honorably discharged with the rank of Senior

Airman.

22. Victoria and Christy met online in the summer of 2004, when they were both

living in Ohio, and had their first date over coffee shortly thereafter. They quickly realized that

they shared important goals and values; in particular, Victoria was impressed with Christy’s

maturity as a 25-year-old Air Force veteran. They also came from similar backgrounds.

Victoria grew up in the small community of Roanoke Rapids, North Carolina, while Christy

grew up in the small community of Greenville, Ohio. Both Victoria and Christy were raised inthe Jehovah’s Witness faith.

23. Within less than a year after meeting, Victoria and Christy decided that they not

only loved one another, but wanted to permanently commit their lives to one another. In 2004,

Christy proposed to Victoria. Victoria accepted, and began wearing a diamond engagement ring

that Christy gave her. Less than a year later, Victoria also gave Christy a ring that Christy began

wearing as a symbol of their commitment.

24. In 2005, Victoria and Christy moved to Northern Virginia, in order to be near the

many job opportunities the area offers. In 2007, they purchased and moved into their home in

Winchester, Virginia, within the Harrisonburg Division of the Western District of Virginia.

Since then, they have established firm roots in Frederick County, Virginia. In addition to

running her business and serving as primary caretaker to L. B.-K., Victoria is an active member

of a local civic club and has also done volunteer work with many other groups including the

Taproot Foundation, the United Way, the United Service Organizations, and AIDS Response

Effort, a Winchester charity that serves people living with HIV and AIDS. Christy’s work and


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commute take up most of her time on weekdays, but she often helps out with Victoria’s service

projects on the weekends.

25. Victoria and Christy are legally married under the laws of the District of

Columbia. Getting legally married was important to Victoria and Christy because of the

legitimacy it afforded to their relationship, and because a government-sanctioned marriage

ceremony provided a way for them to officially pledge their lives to one another. Victoria and

Christy put off getting married for years because they wanted to do so in their home town rather

than travel to a faraway place. But after the District of Columbia granted same-sex couples the

freedom to marry in 2010, Victoria and Christy decided to take advantage of that freedom.26. Victoria and Christy’s wedding took place on August 20, 2011, at a church in

Washington, D.C., with about 20 friends and family members in attendance. After the

ceremony, they hosted a reception for the wedding guests in their backyard in Winchester.

27. Although their relationship was already committed and strong before they got

married, Victoria and Christy both feel that legally marrying has caused a positive change in

their relationship. Victoria in particular believes that calling Christy her “wife” rather than her

“partner” has helped other people understand the depth of their relationship.

28. But the Commonwealth’s disrespect of their marriage invites others to see them as

“less than.” Victoria and Christy started a family together when Christy gave birth to their

daughter, L. B.-K. in November 2012, at Winchester Medical Center. One nurse was overtly

hostile to both Victoria and Christy, delaying service and responding with unkind words so often

that the couple felt like they were “on their own” – even when Victoria called for help because

Christy needed medical attention the night after L. B.-K. was born. Victoria and Christy believe


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this kind of experience would be far less common for same-sex couples if the Commonwealth

recognized the equal dignity of their relationships.

29. Because the Commonwealth does not recognize Victoria as married to Christy,

Victoria initially had no legal relationship to L. B.-K. After their baby was born, Victoria and

Christy retained an attorney whom they paid hundreds of dollars to secure co-custodianship for

Victoria that gives her the legal right to make medical and other decisions for L. B.-K. when

Christy is not present. However, Victoria and Christy worry about whether the co-custodianship

papers they carry with them would be enough to make sure Victoria’s relationship with L. B.-K.

is respected in a time of crisis. Additionally, the papers do not confer full parental status onVictoria.

30. Victoria and Christy are considering seeking additional legal assistance with

preparation of wills, living wills, powers of attorney, and other legal documents to help protect

one another given that, due to the marriage ban and Defendants’ enforcement of it, their marriage

is not legally respected in the Commonwealth. However, this process would require a large

investment of time and money, and Victoria and Christy are aware that, even with every possible

private legal agreement in place, they would not have access to many of the rights and

responsibilities that come with marriage in Virginia.

31. When Victoria and Christy purchased their home in Winchester in 2007, they

wanted to get a home loan guaranteed by the federal Veteran’s Administration (the “V.A.”).

The V.A. guarantees certain types of home loans issued to veterans and their spouses, and those

loan products typically feature better interest rates and other financial advantages over other loan

products because of the V.A. guarantee. However, Christy and Victoria were not able to get a

V.A. loan, because Victoria was not Christy’s legal spouse and lenders were unwilling to issue


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loans with a V.A. guarantee covering only half of the total amount. Since then, Victoria and

Christy have married in the District of Columbia and the Supreme Court has struck down as

unconstitutional the section of the federal Defense of Marriage Act that previously forbade any

federal agency from recognizing the marriages of same-sex couples. However, if they were to

buy a new house in Virginia or seek to refinance their current mortgage, Victoria and Christy

today would still not be eligible for the full V.A. loan guarantee that other veterans’ families

receive, because the V.A. currently looks to the law of joint applicants’ state of residence to

determine whether they are legally married, and Virginia refuses to recognize Victoria and

Christy as married.32. Christy commutes more than 75 miles each way from the couple’s home in

Winchester to her office in the District of Columbia. The chance that one of them could suffer a

medical emergency during a weekday when the other is not immediately available makes

Victoria and Christy particularly concerned about needing to make sure they are respected as

spouses by first responders, hospital staff, and anyone else who might question their legal

relationship during an emergency situation. These concerns were further heightened when

Victoria suffered a minor stroke last year and required emergency medical treatment, and again

when Victoria and Christy had the painful experience of having a nurse disrespect them in the

hospital the night after L. B.-K.’s birth.

33. Victoria and Christy feel strongly that Virginia is their home and is where they

want their child to grow up, but they feel disrespected under current Virginia law. The couple

hopes their marriage is recognized in the Commonwealth before L. B.-K. is old enough to

understand that Virginia does not give her parents and family the same rights and respect it gives

other parents and families.


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B. The Defendants

34. Defendant Robert F. McDonnell is sued in his official capacity as Governor of the

Commonwealth of Virginia. As decreed by article 5, sections 1 and 7 of the Virginia

Constitution, Governor McDonnell is vested with the chief executive power of the

Commonwealth and has the duty to see that the Commonwealth’s laws, including the marriage

ban, are faithfully executed. Pursuant to Va. Code Ann. § 2.2-103, Governor McDonnell also

bears the authority and responsibility for the formulation and administration of the policies of the

executive branch, including administrative agency policies relating to health insurance coverage,

vital records, tax obligations, state employee benefits programs (including in GovernorMcDonnell’s role as Chief Personnel Officer of the Commonwealth), motor vehicles (including,

for example, changing one’s last name on a driver’s license), and regulation of health professions

(including, for example, implementation of laws governing medical decision-making by family

members and requests for autopsies) – all of which involve recognizing marital status. Governor

McDonnell appoints the heads of various agencies with responsibility for recognizing the

marriages of same-sex couples, and may remove those appointees for various reasons, including

for how they administer laws relating to the ability of same-sex couples to marry, or to have their

valid marriages from other jurisdictions recognized. Governor McDonnell also has authority to

remove from office members of boards, commissions, councils and collegial bodies for

misconduct, including a failure to comply with the obligations of the federal Constitution.

Governor McDonnell may also enforce such obligations through his ability to initiate suit to

protect the interests of the Commonwealth’s citizens. Governor McDonnell is a person within

the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to

this complaint.


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35. Defendant Janet M. Rainey is sued in her official capacity as the State Registrar

of Vital Records (“State Registrar”). Ms. Rainey’s duties include directing and supervising the

system of vital records and serving as the custodian of its records; directing, supervising, and

controlling the activities of all persons pertaining to the operation of the system of vital records;

as part of these vital records-related duties, furnishing forms for the marriage license, marriage

certificate, and application for marriage license used in the Commonwealth; maintaining a

publicly available online vital records index of marriages; and compiling, publishing, and

making available to the public aggregate data on the number of marriages occurring in the

Commonwealth, including the age and race of the spouses, and the number of minor childreninvolved. Ms. Rainey must ensure compliance through all of these functions with relevant

Commonwealth laws, including those that currently exclude same-sex couples from marriage.

Upon information and belief, this includes furnishing forms that prohibit same-sex couples from

marrying by requiring a “Bride” and a “Groom.” Ms. Rainey also enforces Virginia law with

respect to birth certificates, which disrespects same-sex couples’ valid marriages from other

jurisdictions by requiring that, for children resulting from assisted conception, the birth

certificate contain the name of the mother and her “husband.” Ms. Rainey is a person within the

meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this

complaint.

36. Defendant Thomas E. Roberts is sued in his official capacity as Staunton Circuit

Court Clerk, an office authorized by Article VII, Section 4 of the Commonwealth’s Constitution.

Mr. Roberts’ duties include issuing marriage licenses, which couples may seek from him

regardless of where they reside in Virginia; requiring the parties contemplating marriage to state

under oath the information required for the marriage record, and delivering certificates of that


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information to the parties along with the marriage license; levying and collecting a tax on each

marriage license; authorizing qualified ministers to perform marriage rites; filing and preserving

the originals and indexing the names of both spouses, upon return of the marriage license and

certificate from the officiant; forwarding a record of each marriage to the State Registrar;

providing an attorney for the Commonwealth a list of all marriage licenses issued during the

preceding calendar year that have not been returned by the person celebrating the marriage; and

correcting marriage records as needed. Mr. Roberts must ensure compliance through all of these

functions with relevant Commonwealth laws, including those that exclude same-sex couples

from marriage. Mr. Roberts is a person within the meaning of 42 U.S.C. § 1983 and was actingunder color of state law at all times relevant to this complaint.

37. Defendants, through their respective duties and obligations, are responsible for

enforcing the Commonwealth’s marriage ban. Each Defendant, and those subject to their

direction, supervision, and control, intentionally performed, participated in, aided and/or abetted

in some manner the acts alleged here, proximately caused the harm alleged herein, and will

continue to injure Plaintiffs irreparably if not enjoined. Accordingly, the relief requested herein

is sought against each Defendant, as well as all persons under their supervision, direction, or

control, including but not limited to their officers, employees, and agents.

III. JURISDICTION AND VENUE

38. Named Plaintiffs bring this action under 42 U.S.C. § 1983 on behalf of

themselves and the Plaintiff Class to redress the deprivation under color of state law of rights

secured by the United States Constitution.


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39. This Court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution

and laws of the United States.

40. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2) because

Defendant Roberts resides within the District and the Harrisonburg Division of it and all

Defendants reside within the Commonwealth of Virginia; and because a substantial part of the

events that gave rise to the Named Plaintiffs’ claims took place within the District and the

Harrisonburg Division of it.

41.

This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of

Civil Procedure, and 28 U.S.C. §§ 2201 and 2202.

42. This Court has personal jurisdiction over Defendants because they are domiciled

in the Commonwealth.

IV. STATEMENT OF FACTS

43. Plaintiffs are residents of the Commonwealth who experience the same joys and

challenges of family life as their heterosexual neighbors, co-workers, and other community

members who freely may marry. Plaintiffs are productive, contributing citizens who support

their families and nurture their children, but must do so without the same legal shelter, dignity,

and respect afforded by the Commonwealth to other families through access to the universally

celebrated status of marriage. The Commonwealth’s exclusion of Plaintiffs from marriage, and

Defendants’ enforcement of that exclusion, subjects Plaintiffs to an inferior “second class” status

relative to the rest of the political community and deprives them and their children of equal

dignity, security, and legal protections afforded to other Virginia families.


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Named Plaintiffs’ Respective Attempt To Marry And Marriage In Another Jurisdiction

44. But for the fact that they are of the same sex, Joanne Harris and Jessica Duff are

legally qualified to marry under the laws of the Commonwealth and wish to marry in Virginia.

Each is over the age of 18 and fully competent, and neither is precluded from marriage as a result

of having another spouse or being closely related to the other. They are willing to provide the

requisite information to receive a marriage license and to pay the required fee. Joanne Harris

and Jessica Duff are able and eager to assume the responsibilities of marriage.

45. On July 29, 2013, Joanne Harris and Jessica Duff appeared in person at the

Staunton Circuit Court to apply for a marriage license. Defendant Roberts refused their marriagelicense application because they are a same-sex couple.

46. Christy Berghoff and Victoria Kidd were validly married in Washington, D.C. on

August 20, 2011, and would be recognized as such by the Commonwealth but for the fact that

they are a same-sex couple.

The Plaintiff Class

47. The Class the Named Plaintiffs represent reflects the rich diversity of the

Commonwealth. Class members come from all walks of life, and include, by way of example,

people who put their lives on the line daily to serve the Commonwealth as police officers and

fire fighters; people who are doing or have done the same for their country as members of the

armed forces; doctors, nurses, social workers, attorneys, government officials and employees,

scientists, artists, engineers, sales people, office workers, small business owners, professors,

students, stay-at-home parents, and retirees; and members of diverse faith communities, as well

as some of their pastors and rabbis. Many are raising children together, and some have

grandchildren.


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48. Each member of the Plaintiff Class either has been unable to marry his or her

same-sex partner in Virginia because of the marriage ban or validly married a partner of the same

sex in another jurisdiction but is treated as a legal stranger to his or her spouse under Virginia

law.

The Commonwealth’s Statutory and Constitutional Amendments Single Out Same-SexCouples and Exclude Them From Marriage

49. Beginning in 1975, the Commonwealth has enacted a series of statutory and

constitutional bans designed to exclude same-sex couples from marriage. These marriage bans

cannot be explained by reference to legitimate public policies that could justify the disadvantages

the marriage bans impose on certain same-sex couples. Rather, the history of these enactments

and their own text demonstrate that interference with the equal dignity of same-sex couples was

more than a mere side effect of the various enactments – it was their essence.

50. In 1975, shortly after same-sex couples in other jurisdictions filed the first

lawsuits seeking the freedom to marry, the Commonwealth for the first time enacted a statutory

provision specifically to exclude same-sex couples from marriage. The new statute, Virginia

Code § 20-45.2, provided that, “A marriage between persons of the same sex is prohibited.”

51. In 1997, in response to court decisions in Hawaii that indicated Hawaii might

soon allow same-sex couples to marry, the Commonwealth reenacted Section 20-45.2 and added

sweeping language that not only voided “any marriage entered into by persons of the same sex in

another state or jurisdiction,” but also voided “any contractual rights created by such marriage,”

rendering them “unenforceable.”

52. In 2004, the Commonwealth went even further to ensure that same-sex couples

could not obtain any state-recognized status – even one significantly inferior to marriage – by

enacting Virginia Code Annotated § 20-45.3, which prohibits same-sex couples from obtaining a


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“civil union, partnership contract or other arrangement . . . purporting to bestow the privileges or

obligations of marriage.” One of the most extreme laws restricting the rights of same-sex

couples in the country, the statute also barred any and all recognition of a “civil union,

partnership contract or other arrangement entered into by persons of the same sex in another state

or jurisdiction,” providing that any such status “shall be void in all respects in Virginia and any

contractual rights created thereby shall be void and unenforceable.” The Virginia legislature

rejected an amendment offered by the then-Governor Mark Warner that would have mitigated

the adverse effects of the law on contractual rights.

53.

In 2005 the Virginia legislature took the first step required to refer a constitutionalamendment to the voters for approval, for the purpose of enshrining the marriage ban into the

Commonwealth’s Constitution. The legislature approved a proposed amendment providing:

That only a union between one man and one woman may be a marriage valid in orrecognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legalstatus 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 statusto which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

54. As required for a proposed constitutional amendment, the legislature approved the

measure again in early 2006, and the voters ratified Virginia Constitution article 1, § 15-A in

November 2006 by a 57% to 43% vote.

55. Pursuant to these laws, same-sex couples are prohibited from all access to

marriage; they can neither marry in the Commonwealth nor have a valid marriage from another

jurisdiction recognized.


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The Commonwealth’s Exclusion of Same-Sex Couples from Marriage Inflicts ProfoundHarms on Plaintiffs

56. Barring same-sex couples from marriage disqualifies them from critically

important rights and responsibilities that different-sex couples rely upon to secure their

commitment to each other, and to safeguard their families. By way of example only, same-sex

couples are denied:

a. The ability to solemnize their relationships through state-sanctioned

ceremonies. Va. Code Ann. § 20-13. The denial of state sanction or

recognition deprives same-sex couples of important legal protections that

automatically come with state-sanctioned marriage.

b. The ability to celebrate their marriage in their chosen faith tradition or in a

civil ceremony because ministers, rabbis, priests, other faith leaders, and

authorized marriage celebrants are specifically prohibited even from using the

word “marriage” in a religious ceremony (even if permitted or encouraged by

their faith tradition) or other ceremony celebrating their committed union and

could face criminal prosecution if they did. Va. Code Ann. § 20-28. The

important right to celebrate a “marriage” through religious ceremony or other

ceremony – which symbolizes the binding together of two lives and two

families, and creates memories that couples and families cherish for a lifetime

– is denied to same-sex couples in the Commonwealth.

c. The ability to safeguard family resources under an array of laws that protect

spousal finances, including for example, the exemption from taxable income

of the value of health insurance coverage that one partner receives through the

other’s employment; the exemption or deferral of taxes on the property of


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estate tax exemption for surviving spouses of military service members killed

in action, see , e.g. , Va. Code Ann. § 2.2-2001.

h. The ability to secure legal recognition for parent-child bonds through the

mechanisms afforded to spouses, including joint adoption, Va. Code Ann.

§ 63.2-1201; adoption of a spouse’s child, Va. Code Ann. § 63.2-1241; the

ability of a couple to legitimate their child by marrying, Va. Code Ann. § 20-

31.1; and the presumption of parentage for children born into a marriage, Va.

Code Ann. § 63.2-1202(D).

i.

In the event that a couple separates, access to an orderly dissolution processfor terminating the relationship and assuring an equitable division of the

couple’s assets and debts. Va. Code Ann. §§ 20-96, 20-107.3.

j. A range of important responsibilities that, like rights, enhance the dignity and

integrity of the person. As one example, same-sex couples are denied the

ability to be made formally accountable to each other through, obligations of

spousal support and child support. Va. Code Ann. §§ 20-107.1, 20-107.2.

k. A host of federal rights and responsibilities that span the entire United States

Code and the whole realm of federal regulations. Unmarried couples are

denied recognition for virtually all purposes throughout the more than 1,000

statutes and numerous federal regulations relating to marriage, including laws

pertaining to Social Security, housing, taxes, criminal sanctions, copyright,

and veterans’ benefits. Couples validly married in another jurisdiction and

living in the Commonwealth may qualify for some federal benefits and

protections, but will likely be denied others such as veteran’s spousal benefits


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and Social Security survivor benefits. Many of these deprivations drain

family economic resources, causing financial harm not only to same-sex

couples but to their children as well.

57. In addition to the tangible harms listed above, Plaintiffs are denied the unique

social recognition that marriage conveys. Without access to the familiar language and legal label

of marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and

permanence of their commitment, or to obtain respect for that commitment as others do simply

by invoking their married status.

58.

The substantive and dignitary inequities imposed on committed same-sex couplesinclude particular harms to same-sex couples’ children, who are equally deserving of the

stability, permanence, and legitimacy that are enjoyed by children of different-sex couples who

marry. Civil marriage affords official sanctuary to the family unit, offering parents and children

critical means to secure legal parent-child bonds, and a familiar, public way of demonstrating

those bonds to third parties. By denying same-sex couples marriage, the Commonwealth

reinforces the view held by some that the family bonds that tie same-sex parents and their

children are less consequential, enduring, and meaningful than those of different-sex parents and

their children. Same-sex couples and their children accordingly must live with the vulnerability

and stress inflicted by a lack of access to the same mechanisms for securing their legal

relationships, and the ever-present possibility that others may question their familial relationship

– in social, legal, educational, and medical settings and in moments of crisis – in a way that

spouses can avoid by simple reference to being married.

59. Children from a young age understand that marriage signifies an enduring family

unit, and likewise understand when the Commonwealth has deemed a class of families as less


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worthy than other families, undeserving of marriage, and not entitled to the same societal

recognition and support as other families. The Commonwealth has no adequate interest to justify

marking the children of same-sex couples, including the children of Named Plaintiffs, with a

badge of inferiority that will invite disrespect in school, on the playground, and in every other

sphere of their lives.

60. The government is a powerful teacher of discrimination to others. By decreeing

that the relationships of same-sex couples should be ignored in the Commonwealth and

enforcing that policy, the Commonwealth and Defendants instruct all persons with whom same-

sex couples interact, including those couples’ own children, that their relationships are lessworthy than others. Bearing the imprimatur of the government, the Commonwealth’s statutory

and constitutional marriage ban, and Defendants’ enforcement of it, communicates a view that

same-sex couples are unfit for the dignity, respect, and stature afforded to different-sex couples,

and this encourages others to follow the government’s example in discriminating against them.

61. Many private entities defer to the Commonwealth’s and Defendants’ conferral of

marital status in defining “family” for purposes of an array of important benefits, often resulting

in the exclusion of same-sex couples and their children from important safety nets such as

private employer-provided health insurance for family members. The Commonwealth and

Defendants also encourage disrespect of committed same-sex couples and their children by

others in workplaces, schools, businesses, and other major arenas of life, in ways that would be

less likely to occur and more readily corrected if marriage were available to same-sex couples.


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The Commonwealth’s Exclusion Of Same-Sex Couples from Marriage Is Not EvenRationally Related To A Legitimate Governmental Purpose, Let Alone SubstantiallyRelated To An Important Government Purpose Or Narrowly Tailored To A CompellingGovernmental Purpose

62.

No legitimate, let alone important or compelling, interest exists to exclude same-

sex couples from the historic and highly venerated institution of marriage. An individual’s

capacity to establish a loving and enduring relationship does not depend upon that individual’s

sexual orientation or sex in relation to his or her committed life partner, nor is there even a

legitimate interest in justifying same-sex couples’ exclusion from marriage and the spousal

protections it provides on such bases.

63. Neither history nor tradition can justify the Commonwealth’s discriminatory

exclusion of same-sex couples from marriage. Marriage has remained vital and enduring

because of, not despite, its resiliency in response to a dynamic society, as society and the courts

have cast off prior restrictions on interracial marriage and coverture. The Constitution is not

confined to historic notions of equality, and no excuse for the Commonwealth’s discriminatory

restriction can be found in the pedigree of such discrimination.

64. As the Supreme Court has made clear, the law cannot, directly or indirectly, give

effect to private biases. Liberty and equality, not moral disapproval, must be the guiding

framework for a state’s treatment of its citizens.

65. Excluding same-sex couples from marriage does nothing to protect or enhance the

rights of different-sex couples. Different-sex spouses will continue to enjoy the same rights and

status conferred by marriage regardless of whether same-sex couples may marry, unimpaired by

the acknowledgment that this freedom belongs equally to lesbians and gay men.

66. Although the Commonwealth has a valid interest in protecting the public fisc, it

may not pursue that interest by making invidious distinctions between classes of its citizens


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without adequate justification. Moreover, the Commonwealth not only lacks any such fiscal

justification but rather would generate additional revenues by allowing same-sex couples to

marry and to be recognized as married.

67. The Commonwealth’s interest in child welfare is affirmatively harmed rather than

furthered by the exclusion of same-sex couples from marriage. That exclusion injures same-sex

couples’ children without offering any conceivable benefit to other children.

68. Barring same-sex couples from marriage does not affect which couples raise

children together. Same-sex couples in Virginia can and do bear children through use of

reproductive technology that is available to both same-sex and different-sex couples, and bringchildren into their families through foster care and adoption. Marriage has never been the sole

province of couples who are parents. Neither Virginia nor any other state in this country has

ever restricted marriage to those capable of or intending to procreate.

69. There is no valid basis for the Commonwealth to assert a preference for parenting

by different-sex couples over same-sex couples. Based on more than 30 years of research, the

scientific community has reached a consensus that children raised by same-sex couples are just

as well-adjusted as children raised by different-sex couples. This consensus has been recognized

by every major professional organization dedicated to children’s health and welfare including the

American Academy of Pediatrics, the American Psychological Association, the American

Medical Association, the National Association of Social Workers, and the Child Welfare League

of America.

70. Other courts have found, after trials involving expert testimony, that there is no

rational basis for favoring parenting by heterosexual couples over gay and lesbian couples. See ,

e.g. , Perry v. Schwarzenegger , 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the


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research supporting the conclusion that “[c]hildren raised by gay or lesbian parents are as likely

as children raised by heterosexual parents to be healthy, successful and well-adjusted” is

“accepted beyond serious debate in the field of developmental psychology”), aff’d sub nom.

Perry v. Brown , 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom.

Hollingsworth v. Perry , No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013); In re Adoption of

Doe , 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) (“[B]ased on the robust nature of

the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute

that it would be irrational to hold otherwise; the best interests of children are not preserved by

prohibiting homosexual adoption.”), aff’d sub nom. Florida Dep’t of Children & Families v.

Adoption of X.X.G. , 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency

Review Bd. , Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir.

Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay

parents that “there was no rational relationship between the [exclusion of gay people from

becoming foster parents] and the health, safety, and welfare of the foster children.”), aff’d sub

nom. Dep’t of Human Servs. v. Howard , 238 S.W.3d 1 (Ark. 2006).

71. Excluding same-sex couples from marriage harms their children, including by

branding their families as inferior and less deserving of respect, and by encouraging private bias

and discrimination. Denying same-sex couples the equal dignity and status of marriage

humiliates the children now being raised by same-sex couples, and makes it more difficult for the

children to understand the integrity and closeness of their own family and its concord with other

families in their community and in their daily lives.

72. Excluding same-sex couples from civil marriage will not make the children of

different-sex spouses more secure. Different-sex spouses’ children will continue to enjoy the


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benefits that flow from their parents’ marriage regardless of whether same-sex couples are

permitted to marry. The marriage ban has no conceivable effect on the choices different-sex

couples make about such profound issues as whether to marry, whether to have children, and

whether to raise their children in wedlock.

73. The Commonwealth’s interest in the welfare of children parented by same-sex

couples is as great as its interest in the welfare of any other children. The family security that

comes from the Commonwealth’s official recognition and support is no less important for same-

sex parents and their children than it is for different-sex parents and their children.

V.

CLASS ACTION ALLEGATIONS74. Named Plaintiffs bring this action for themselves and, pursuant to Rules 23(a),

23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all same-sex couples

who are injured by the Commonwealth’s marriage ban (the “Plaintiff Class”). The class, as

proposed by Named Plaintiffs, consists of:

a. all persons residing in Virginia who are unmarried, and either

1. wish to marry a person of the same sex, have applied for a

marriage license in the Commonwealth with a person of the same sex,

and have been denied the license; or

2. wish to marry a person of the same sex in the Commonwealth, but

have not attempted to apply for a marriage license because the

marriage ban would render such an attempt futile; as well as

b. all persons residing in Virginia who are validly married to a person of the

same sex in another jurisdiction, and wish to have their marriage recognized

by the Commonwealth.


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75. The class is so numerous that joinder of all members is impracticable. Fed. R.

Civ. P. 23(a)(1). Upon information and belief, there are thousands of same-sex couples in

Virginia who are married or would marry if Virginia law permitted them to do so. The

Commonwealth’s marriage ban, and Defendants’ enforcement of it, prevents all of those couples

from either marrying or having their valid marriage from another jurisdiction recognized by the

Commonwealth.

76. There are questions of law and fact common to the members of the class. Fed. R.

Civ. P. 23(a)(2). Such questions include, but are not limited to:

a.

whether the Commonwealth’s marriage ban violates federal substantive due process guarantees, including the fundamental right to marry, and liberty

interests in autonomy, and family integrity and association;

b. whether the Commonwealth’s marriage ban violates guarantees of equal

protection regardless of an individual’s sexual orientation, and sex in relation

to the sex of his or her life partner; and

c. the level of constitutional scrutiny applicable to governmental discrimination

based on sexual orientation.

Defendants are expected to raise common defenses to those claims.

77. The claims of Named Plaintiffs are typical of those of the Plaintiff Class, as their

claims all arise from the Commonwealth’s marriage ban and are based on the same theories of

law.

78. Named Plaintiffs are capable of fairly and adequately protecting the interests of

the Plaintiff Class because they do not have any interests antagonistic to the class. Named

Plaintiffs as well as the Plaintiff Class all seek to enjoin the Commonwealth’s marriage ban.


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Moreover, Named Plaintiffs are represented by counsel experienced in civil rights litigation and

complex class action litigation.

79. This action is maintainable as a class action under Fed. R. Civ. P. 23(b)(1)

because prosecution of separate actions by individuals would create a risk of inconsistent and

varying adjudications, resulting in some Virginia same-sex couples having access to marriage, or

recognition for their valid marriage, and others not. In addition, prosecution of separate actions

by individual members could result in adjudications with respect to individual members that, as a

practical matter, would substantially impair the ability of other members to protect their interests.

80.

This action is also maintainable as a class action under Fed. R. Civ. P. 23(b)(2) because Defendants’ enforcement of the marriage ban applies generally to the class, by

precluding all class members from marrying or having a valid marriage from another jurisdiction

recognized. The injunctive and declaratory relief sought is appropriate respecting the class as a

whole.

VI. CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEFDeprivation of Due Process

U.S. Const. Amend. XIV

81. Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of

this complaint as though fully set forth herein.

82. Plaintiffs state this cause of action against Defendants in their official capacities

for purposes of seeking declaratory and injunctive relief.

83. The Fourteenth Amendment to the United States Constitution, enforceable

pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1.


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84. Virginia Constitution article 1, § 15-A, Virginia Code Annotated § 20-45.2, and

all other sources of state law that preclude marriage for same-sex couples or prevent recognition

of their marriages violate the due process guarantee of the Fourteenth Amendment both facially

and as applied to Plaintiffs.

85. The right to marry the unique person of one’s choice and to direct the course of

one’s life in this intimate realm without undue government restriction is one of the fundamental

liberty interests protected by the Due Process Clause of the Fourteenth Amendment.

Defendants’ actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs’

choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.86. The Due Process Clause also protects choices central to personal dignity and

autonomy, including each individual’s rights to family integrity and association. Defendants’

actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs’ deeply

intimate, personal, and private decisions regarding family life, and preclude them from obtaining

full liberty, dignity, and security for themselves, their family, and their parent-child bonds.

87. As the Commonwealth’s chief executive officer, Defendant McDonnell’s duties

and actions to enforce the Commonwealth’s marriage ban, including those taken pursuant to his

responsibility for the policies of the executive branch relating to, for example, health insurance

coverage, vital records, tax obligations, state employee benefits programs, and regulation of

motor vehicles and health professions, violate Plaintiffs’ fundamental right to marry and

constitutional rights to liberty, dignity, autonomy, family integrity, association, and due process

under the Fourteenth Amendment to the United States Constitution.

88. As the State Registrar, Defendant Rainey’s duties and actions to ensure

compliance with the Commonwealth’s discriminatory marriage ban by, for example, furnishing


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forms for marriage licenses that prohibit same-sex couples from marrying by requiring a “Bride”

and a “Groom,” and by requiring that birth certificates contain the name of a mother and her

“husband” for children resulting from assisted conception, violate the Plaintiffs’ fundamental

right to marry and constitutional rights to liberty, dignity, autonomy, family integrity,

association, and due process under the Fourteenth Amendment to the United States Constitution.

89. As Staunton Circuit Court Clerk, Defendant Roberts’ duties and actions to ensure

compliance with the Commonwealth’s discriminatory marriage ban by, for example, denying

same-sex couples marriage licenses, violate the fundamental right to marry and the rights,

protected under the Fourteenth Amendment to the United States Constitution, to liberty, dignity,autonomy, family integrity, association, and due process of Joanne Harris and Jessica Duff, and

the unmarried members of the Plaintiff Class.

90. Defendants’ actions thus deny and abridge Plaintiffs’ fundamental right to marry,

and liberty and due process interests in autonomy, and family integrity and association, by

penalizing Plaintiffs’ self-determination in the most intimate sphere of their lives.

91. Defendants cannot satisfy the Due Process Clause’s decree that governmental

interference with a fundamental right or liberty interest may be sustained only upon a showing

that the burden is narrowly tailored to serve a compelling or even important governmental

interest, as the marriage ban is not even tailored to any legitimate interest at all.

SECOND CLAIM FOR RELIEFDeprivation of Equal Protection

U.S. Const. Amend. XIV


this complaint as though fully set forth herein.


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93. Plaintiffs state this cause of action against Defendants in their official capacities

for purposes of seeking declaratory and injunctive relief.

94. The Fourteenth Amendment to the United States Constitution, enforceable

pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

95. Virginia Constitution article 1, § 15-A, Virginia Code Annotated § 20-45.2, and

all other sources of state law that preclude marriage for same-sex couples or prevent recognition

of their marriages violate the equal protection guarantee of the Fourteenth Amendment both

facially and as applied to Plaintiffs. Moreover, by enshrining discrimination in the form of aconstitutional amendment, Virginia Constitution article 1, § 15-A, deprives lesbian and gay

Virginians of equal protection of the laws by locking them out of the political process and

making it uniquely more difficult to secure legislation on their behalf. The conduct of

Defendants in enforcing these laws violates the right of Plaintiffs to equal protection by

discriminating impermissibly on the basis of sexual orientation and sex.

96. As the Commonwealth’s chief executive officer, Defendant McDonnell’s duties

and actions to enforce the Commonwealth’s discriminatory marriage ban, including those taken

pursuant to his responsibility for the policies of the executive branch relating to, for example,

health insurance coverage, vital records, tax obligations, state employee benefits programs, and

regulation of motor vehicles and health professions, violate Plaintiffs’ constitutional rights to

equal treatment, without regard to sexual orientation or sex, under the Fourteenth Amendment to

the United States Constitution.

97. As the State Registrar, Defendant Rainey’s duties and actions to ensure

compliance with the Commonwealth’s discriminatory marriage ban by, for example, furnishing


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forms for marriage licenses that prohibit same-sex couples from marrying by requiring a “Bride”

and a “Groom,” and by requiring that birth certificates contain the name of a mother and her

“husband” for children resulting from assisted conception, violate the constitutional rights of

Plaintiffs to equal treatment.

98. As Staunton Circuit Court Clerk, Defendant Roberts’ duties and actions to ensure

compliance with the Commonwealth’s discriminatory marriage ban by, for example, denying

same-sex couples marriage licenses, violate the constitutional rights to equal treatment of Joanne

Harris and Jessica Duff, and the unmarried members of the Plaintiff Class.

99.

The Commonwealth’s marriage ban, and Defendants’ actions to enforce it, deniessame-sex couples equal dignity and respect, and deprives their families of a critical safety net of

rights and responsibilities. The Commonwealth’s marriage ban brands lesbians and gay men and

their children as second-class citizens through a message of government-imposed stigma and

fosters private bias and discrimination, by instructing all persons with whom same-sex couples

interact, including their own children, that their relationship is less worthy than others. The

Commonwealth’s marriage ban and Defendants’ actions reflect moral disapproval and antipathy

toward lesbians and gay men.

100. Same-sex couples such as the plaintiff couples are identical to different-sex

couples in all of the characteristics relevant to marriage.

101. Same-sex couples make the same commitment to one another as different-sex

couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan

their futures together, and hope to grow old together. Like different-sex couples, same-sex

couples support one another emotionally and financially and take care of one another physically


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when faced with injury or illness, as for example Plaintiff Christy Berghoff did for her wife

Victoria Kidd when Victoria suffered a stroke last year.

102. Plaintiffs seek to marry for the same emotional, romantic, and dignitary reasons,

and to provide the same legal shelter to their families, as different-sex spouses.

103. Like some different-sex couples, some same-sex couples are parents raising

children together. All of the Named Plaintiffs are raising children jointly with their same-sex

partners.

104. Plaintiffs and their children are equally worthy of the tangible rights and

responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers ondifferent-sex couples and their children. For the many children being raised by same-sex

couples, the tangible resources and societal esteem that access to marriage confers is no less

precious than for children of different-sex couples.

105. Discrimination Based on Sexual Orientation. The Commonwealth’s marriage

ban targets lesbian and gay Virginians as a class for exclusion from marriage and discriminates

against each Plaintiff based on his or her sexual orientation both facially and as applied.

106. The exclusion of Plaintiffs from marriage based on their sexual orientation

subjects Defendants’ conduct to strict or at least heightened scrutiny, which Defendants’ conduct

cannot withstand because the exclusion does not even serve any legitimate governmental

interests, let alone any important or compelling interests, nor does it serve any such interests in

an adequately tailored manner.

107. Lesbians and gay men have suffered a long and painful history of discrimination

in the Commonwealth and across the United States.


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108. Sexual orientation bears no relation to an individual’s ability to perform in or

contribute to society.

109. Sexual orientation is a core, defining trait that is so fundamental to one’s identity

and conscience that a person may not legitimately be required to abandon it (even if that were

possible) as a condition of equal treatment.

110. Sexual orientation generally is fixed at an early age and highly resistant to change

through intervention. No credible evidence supports the notion that such interventions are either

effective or safe; indeed, they often are harmful and damaging. No mainstream mental health

professional organization approves interventions that attempt to change sexual orientation, andvirtually all of them have adopted policy statements cautioning professionals and the public

about these treatments.

111. Lesbians and gay men are a discrete and insular minority, and ongoing prejudice

against them continues seriously to curtail the operation of those political processes that might

ordinarily be relied upon to protect minorities. Gay people have fewer civil rights protections at

the state and federal level than racial minorities and women had when race- and sex-based

classifications were declared to be suspect and quasi-suspect, respectively.

112. Lesbians and gay men lack express statutory protection against discrimination in

employment, public accommodations, and housing at the federal level and in more than half the

states, including the Commonwealth; are systematically underrepresented in federal, state, and

local democratic bodies; have been stripped of the right to marry through 30 state constitutional

amendments and are currently not permitted to marry in a total of 37 states; and have been

targeted across the nation through the voter initiative process more than any other group.


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113. Discrimination Based on Sex . The Commonwealth’s marriage ban discriminates

against Plaintiffs on the basis of sex, both facially and as applied, barring Plaintiffs from

marriage or from being recognized as validly married, solely because each of the Plaintiffs

wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of

the Commonwealth’s laws, which restrict marriage to “one man and one woman,” Va. Const. art.

1, § 15-A, and prohibit marriage or recognition of a marriage from another jurisdiction between

“persons of the same sex,” Va. Code Ann. § 20-45.2.

114. Because of these sex-based classifications, Joanne Harris is precluded from

marrying her devoted life partner because she is a woman and not a man; were Joanne a man, shecould marry Jessica Duff. Similarly, Christy Berghoff is precluded from having her marriage to

Victoria Kidd recognized as valid because she is a woman and not a man; were Christy a man,

her validly-entered marriage to Victoria would be recognized as such under Virginia law.

115. The Commonwealth’s marriage ban also serves the impermissible purpose of

enforcing and perpetuating sex stereotypes by excluding Plaintiffs from marriage, or from being

recognized as validly married, because Plaintiffs have failed to conform to sex-based stereotypes

that men should marry women, and women should marry men.

116. Given that there are no longer legal distinctions between the duties of husbands

and wives, there is no basis for the sex-based eligibility requirements for marriage.

117. The exclusion of Plaintiffs from marriage based on their sex and the enforcement

of gender-based stereotypes cannot survive the heightened scrutiny required for sex-based

discrimination.

118. Discrimination With Respect to Fundamental Rights and Liberty Interests

Secured by the Due Process Clause . The marriage ban discriminates against Plaintiffs based on


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sexual orientation and sex with respect to the exercise of the fundamental right to marry, and

their liberty interests in dignity, autonomy, and family integrity and association. Differential

treatment with respect to Plaintiffs’ exercise of fundamental rights and liberty interests, based on

their sexual orientation and sex, subjects Defendants’ conduct to strict or at least heightened

scrutiny, which Defendants’ conduct cannot withstand.

DECLARATORY AND INJUNCTIVE RELIEF

28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65


this complaint as though fully set forth herein.120. This case presents an actual controversy because Defendants’ present and ongoing

denial of equal treatment to Plaintiffs subjects them to serious and immediate harms, warranting

the issuance of a declaratory judgment.

121. Named Plaintiffs seek injunctive relief on behalf of themselves and the Plaintiff

Class to protect their constitutional rights and avoid the injuries described above. A favorable

decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs

identified herein, for which Plaintiffs have no adequate remedy at law or in equity.

122. The Commonwealth will incur little to no burden in allowing same-sex couples to

marry and in recognizing the valid marriages of same-sex couples from other jurisdictions on the

same terms as different-sex couples, whereas the hardship for Plaintiffs of being denied equal

treatment is severe, subjecting them to an irreparable denial of their constitutional rights. The

balance of hardships thus tips strongly in favor of Plaintiffs.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:


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38

A. Declaring that the suit is maintainable as a class action pursuant to Federal Rules

of Civil Procedure 23(a) and 23(b)(1) and (2);

B. Declaring that the provisions of and enforcement by Defendants of article 1,

section 15-A of the Commonwealth’s Constitution, Virginia Code Annotated § 20-45.2, and any

other sources of state law that (1) exclude same-sex couples from marrying, or (2) refuse

recognition to the marriages of the Named Plaintiffs and members of the Plaintiff Class who

validly married a same-sex spouse in another jurisdiction, violate Plaintiffs’ rights under the Due

Process and Equal Protection Clauses of the Fourteenth Amendment to the United States

Constitution;C. Permanently enjoining enforcement by Defendants of article 1, section 15-A of

the Commonwealth’s Constitution, Virginia Code Annotated § 20-45.2, and any other sources of

state law to exclude same-sex couples from marriage or to refuse recognition to the marriages of

same-sex couples validly married in another jurisdiction;

D. Requiring Defendants in their official capacities to permit issuance of marriage

licenses to same-sex couples to marry, pursuant to the same restrictions and limitations

applicable to different-sex couples’ freedom to marry, and to recognize marriages validly entered

into by Plaintiffs;

E. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant

to, inter alia , 42 U.S.C. § 1988 and other applicable laws; and

F. Granting such other and further relief as the Court deems just and proper.

G. The declaratory and injunctive relief requested in this action is sought against

each Defendant; against each Defendant’s officers, employees, and agents; and against all


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39

persons acting in active concert or participation with any Defendant, or under any Defendant’s

supervision, direction, or control.

DATED: August 1, 2013

Respectfully submitted,

AMERICAN CIVIL LIBERTIES U NIONOF V IRGINIA FOUNDATION , I NC .

/s/ . Rebecca K. Glenberg (VSB No. 44099)701 E. Franklin Street, Suite 1412Richmond, Virginia 23219Phone: (804) 644-8080

Fax: (804) [email protected]

AMERICAN CIVIL LIBERTIES U NION

FOUNDATION

James D. Esseks*Amanda C. Goad*Joshua A. Block* 125 Broad Street, 18th Floor

New York, New York 10004

Phone: (212) 549-2500Fax: (212) 549-2650 [email protected]@aclu.org

[email protected]

LAMBDA LEGAL DEFENSE AND EDUCATIONFUND , I NC .

Gregory R. Nevins*730 Peachtree Street, NE, Suite 1070Atlanta, Georgia 30308Phone: (404) 897-1880Fax: (404) [email protected]

Tara L. Borelli*3325 Wilshire Boulevard, Suite 1300Los Angeles, California 90010Phone: (213) 382-7600Fax: (213) [email protected]

JENNER & BLOCK LLP

Paul M. Smith*Luke C. Platzer*Mark P. Gaber*1099 New York Avenue, NW Suite 900Washington, D.C. 20001-4412Phone: (202) 639-6000Fax: (202) 639-6066

[email protected]@[email protected]

* Pro hac vice applications pending

Counsel for Plaintiffs


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Exhibit 3. H ar r i s Plaintiffs’

Memorandum On Summary

Judgment (W.D. Va.)


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IN THE UNITED STATES DISTRICT C OURT F OR THE W ESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

JOANNE HARRIS and JESSICA DUFF, andCHRISTY BERGHOFF and VICTORIA KIDD,on behalf of themselves and all others similarlysituated,

Plaintiffs ,

v.

ROBERT F. MCDONNELL, in his officialcapacity as Governor of Virginia; JANET M.

RAINEY, in her official capacity as State Registrarof Vital Records; THOMAS E. ROBERTS, in hisofficial capacity as Staunton Circuit Court Clerk,

Defendants .

No. 5:13-cv-00077

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiffs Joanne Harris and

Jessica Duff, and Christy Berghoff and Victoria Kidd, and all others similarly situated

(collectively “Plaintiffs”), submit the following brief in support of their motion for summary

judgment.

Case 5:13-cv-00077-MFU-RSB Document 62 Filed 10/10/13 Page 1 of 75 Pageid#: 533Case 3:13-cv-24068 Document 155-3 Filed 01/16/15 Page 2 of 76 PageID #: 5071

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i

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

PROCEDURAL HISTORY.............................................................................................................2

BACKGROUND .............................................................................................................................3

I. History of Virginia’s Marriage Bans. ..................................................................................3

II. Marriage and Its Purposes Have Evolved in Virginia. ........................................................8

A. Virginia Has Cast Aside Prior Discriminatory Exclusions From Marriage. ...........8

B. Marriage in Virginia Today Serves Multiple Interests, and Is Not Limited toProcreative Purposes. .............................................................................................10

STATEMENT OF UNDISPUTED FACTS ..................................................................................11

ARGUMENT .................................................................................................................................15

I. Virginia’s Marriage Bans Deny Equal Protection of the Law. ..........................................15

A. Virginia’s Marriage Bans Are Subject to Heightened Scrutiny BecauseThey Discriminate Based on Sexual Orientation. ..................................................15

1. Lesbians and Gay Men Have Suffered a Long History ofDiscrimination............................................................................................17

2. Sexual Orientation Is Irrelevant to an Individual’s Ability to“Contribute to Society.” .............................................................................18

3. Lesbians and Gay Men Lack Sufficient Political Power to ProtectThemselves Against Invidious Discrimination. .........................................19

4. Sexual Orientation Is An “Immutable” Or “Defining” Characteristic. ......20

B. Virginia’s Marriage Bans Also Are Subject to Heightened Scrutiny BecauseThey Contain Explicit Sex-Based Classifications and Because TheyPerpetuate Improper Stereotyped Notions of the Spousal and Parental Rolesof Men and Women. ..............................................................................................23

C. Virginia’s Constitutional Marriage Ban Also Is Constitutionally SuspectBecause it Locks Same-Sex Couples Out of the Normal Political Processand Makes it Uniquely More Difficult to Secure Legislation on TheirBehalf. ....................................................................................................................27


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D. Virginia’s Marriage Bans Are Unconstitutional Under Any Standard ofReview. ..................................................................................................................29

1. Virginia’s Marriage Bans Cannot Be Justified by an AssertedInterest in Maintaining a Traditional Definition of Marriage. ...................32

2. Virginia’s Marriage Bans Cannot Be Justified by an AssertedInterest in Encouraging Responsible Procreation by HeterosexualCouples or Promoting a “Conjugal View” of Marriage.............................34

3. Virginia’s Marriage Bans Cannot Be Justified by an AssertedInterest in “Optimal Childrearing.”............................................................38

4. No Legitimate Interest Overcomes the Primary Purpose andPractical Effect of Virginia’s Marriage Bans to Disparage andDemean Same-Sex Couples and Their Families. .......................................42

II. Virginia’s Marriage Bans Infringe Plaintiffs’ Fundamental Rights and LibertyInterests and Thus Violate the Guarantees of Due Process and Equal Protection inthe Fourteenth Amendment................................................................................................47

A. The Fundamental Right to Marry Includes the Right to Choose One’sSpouse Free of Unwarranted Interference by the State. ........................................47

1. The Right to Marry Is a Fundamental Right that Belongs to theIndividual. ..................................................................................................47

2. The Scope of a Fundamental Right or Liberty Interest Under theDue Process Clause Does Not Depend on Who Is Exercising thatRight. ..........................................................................................................48

3. The Fundamental Right to Marry Is Not Contingent on the Ability toAccidentally Procreate. ..............................................................................51

B. Virginia’s Marriage Bans Infringe the Unmarried Plaintiffs’ FundamentalRight to Marry and Other Protected Liberty Interests. ..........................................53

C. Virginia’s Marriage Bans Also Violate the Equal Protection Clause BecauseThey Unjustifiably Discriminate Against Same-Sex Couples With Regardto the Exercise of Fundamental Rights and Liberty Interests. ...............................55

D. The Married Plaintiffs Also Suffer An Unconstitutional Denial of theirFundamental Rights and Liberty Interests. ............................................................57

E. Marriage and Its Recognition Cannot Be Denied to Plaintiffs Absent aCompelling State Interest, Which the Commonwealth of Virginia CannotDemonstrate. ..........................................................................................................57


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III. Baker v. Nelson is not Controlling. ....................................................................................58

CONCLUSION ..............................................................................................................................60


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iv

TABLE OF AUTHORITIES

Page(s)C ASES

Baehr v. Lewin ,910 P.2d 112 (Haw. 1996) ........................................................................................................ .3

Baker v. Nelson ,191 N.W.2d 185 (Minn. 1971), appeal dismissed , 409 U.S. 810 (1972) ........................... .3, 58

Board of Trustees of University of Alabama v. Garrett ,531 U.S. 356 (2001) ................................................................................................................ .30

Boddie v. Connecticut ,401 U.S. 371 (1971) ................................................................................................................ .50

Bottoms v. Bottoms ,457 S.E.2d 102 (Va. 1995)...................................................................................................... .45

Bowen v. Gilliard ,483 U.S. 587 (1987) .................................................................................................................. .1

Bowers v. Hardwick ,478 U.S. 186 (1986) ................................................................................................................ .15

Caban v. Mohammed ,441 U.S. 380 (1979) ................................................................................................................ .26

Califano v. Goldfarb ,430 U.S. 199 (1977) .................................................................................................................. .9

Califano v. Webster ,430 U.S. 313 (1977) ................................................................................................................ .25

Califano v. Westcott ,443 U.S. 76 (1979) .................................................................................................................. .26

Carey v. Population Services International ,431 U.S. 678 (1977) ................................................................................................................ .59

Centola v. Potter ,183 F. Supp. 2d 403 (D. Mass. 2002) ..................................................................................... .24

Christian Legal Society v. Martinez ,130 S. Ct. 2971 (2010) ............................................................................................................ .23

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ................................................................ .18 , 19 , 20 , 29 , 30 , 31 , 32 , 34 , 37


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Coalition to Defend Affirmative Action v. Regents of the University of Michigan ,701 F.3d 466 (6thCir. 2012) (en banc), cert. granted sub nom. Schuette v. Coalition to

Defend Affirmative Action (No. 12-682) ..................................................................... .27 , 28, 29

Cook v. Gates ,528 F.3d 42 (1st Cir. 2008) ..................................................................................................... .58

Department of Human Services. v. Howard ,238 S.W.3d 1 (Ark. 2006) ....................................................................................................... .41

Dorsey v. Solomon ,604 F.2d 271 (4th Cir. 1979) .................................................................................................. .58

Eisenstadt v. Baird ,405 U.S. 438 (1972) ............................................................................. 31 , 36-37 , 38 , 50 , 51, 59

Evans v. Romer ,

882 P.2d 1335 (Colo. 1994), aff’d on other grounds 517 U.S. 620 (1996) ............................ .28

Fatin v. INS ,12 F.3d 1233 (3d Cir. 1993).................................................................................................... .21

Frontiero v. Richardson ,411 U.S. 677 (1973) .................................................................................................... .18 , 19, 21

Golinski v. United States Office of Personnel Management ,824 F. Supp. 2d 968 (N.D. Cal. 2012) ........................ .16 , 17 , 18 , 19 , 22 , 23 , 33 , 34 , 39 , 41, 48

Goodridge v. Department of Public Health ,798 N.E.2d 941 (Mass. 2003) ........................................................................................... .33, 39

Griswold v. Connecticut ,381 U.S. 479 (1965) .................................................................................................... .47 , 51, 54

Hawkins v. Freeman ,195 F.3d 732 (4th Cir. 1999) (en banc) .................................................................................. .47

Heckler v. Mathews ,465 U.S. 728 (1984) ................................................................................................................ .46

Heller v. Doe by Doe ,509 U.S. 312 (1993) ................................................................................................................ .32

Hernandez v. Robles ,855 N.E.2d 1 (N.Y. 2006) ....................................................................................................... .36


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Hernandez-Montiel v. INS ,225 F.3d 1084 (9th Cir. 2000), overruled on other grounds , Thomas v. Gonzales , 409F.3d 1177 (9th Cir. 2005) ....................................................................................................... .21

Hicks v. Miranda ,422 U.S. 332 (1975) ................................................................................................................ .58

High Tech Gays v. Defense Industrial Security Clearance Office ,895 F.2d 563 (9th Cir. 1990) .................................................................................................. .23

Hodgson v. Minnesota .,497 U.S. 417 (1990) ................................................................................................................ .48

Howard v. Child Welfare Agency Review Board , Nos. 1999-9881, 2004 WL 3154530 (Ark. Cir. 2004), aff’d sub nom. Department of Human Services v. Howard , 238 S.W.3d 1 (Ark. 2006) ......................................................... .41

Hunter v. Erickson ,393 U.S. 385 (1969) .......................................................................................................... .27, 28

In re Adoption of Doe ,2008 WL 5006172 (Fla. Cir. Ct. Nov. 25, 2008), aff’d sub nom. Florida Departmentof Children & Families v. Adoption of X.X.G. , 45 So. 3d 79 (Fla. Dist. Ct. App. 2010) .. 41-42

In re Balas ,449 B.R. 567 (Bankr. C.D. Cal. 2011) .................................................................................... .17

In re Marriage Cases ,183 P.3d 384 (Cal. 2008) ........................................................ .17 , 22 , 33 , 35 , 36 , 46 , 48 , 49 , 52

J.E.B. v. Alabama ex rel. T.B. ,511 U.S. 127 (1994) .......................................................................................................... .24, 25

Jordan by Jordan v. Jackson ,15 F.3d 333 (4th Cir. 1994) .................................................................................................... .55

Kerrigan v. Commissioner of Public Health ,957 A.2d 407 (Conn. 2008) ................................................................................... .17 ,20 , 22, 33

Knussman v. Maryland ,

272 F.3d 625 (4th Cir. 2001) .................................................................................................. .26

Kramer v. Union Free School District No. 15 ,395 U.S. 621 (1969) ................................................................................................................ .57

Lawrence v. Texas ,539 U.S. 558 (2003) ............................ .15 , 22 , 33 , 37 , 38 , 43, 44, 46, 48, 49 , 50 , 51 , 52 , 54, 59


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vii

Loving v. Virginia ,388 U.S. 1 (1967) .............................................................................................. .8, 24, 47 , 48, 55

Manwani v. United States Department of Justice ,736 F. Supp. 1367 (W.D.N.C. 1990) ...................................................................................... .31

Marsh v. Chambers ,463 U.S. 783 (1983) ............................................................................................................... .33

McLaughlin v. Florida ,379 U.S. 184 (1964) ................................................................................................................ .24

Mississippi University for Women v. Hogan ,458 U.S. 718 (1982) ................................................................................................................ .26

Moore v. East Cleveland ,431 U.S. 494 (1977) .......................................................................................................... .47, 55

Norfolk & W. Railroad Co. v. Prindle ,82 Va. 122 (1886) ..................................................................................................................... .9

Nevada Department of Human Resources v. Hibbs ,538 U.S. 721 (2003) .......................................................................................................... .24, 26

Nyquist v. Mauclet ,432 U.S. 1 (1977) .................................................................................................................... .21

Orr v. Orr ,440 U.S. 268 (1979) ................................................................................................................ .26

Padula v. Webster ,822 F.2d 97 (D.C. Cir. 1987) .................................................................................................. .15

Pedersen v. Office of Personnel Management ,881 F. Supp. 2d 294 (D. Conn. 2012) ............................... .16 , 17 , 18 , 19 , 22 , 23 , 35 , 39, 40, 42

Perry v. Schwarzenegger ,704 F. Supp. 2d 921 (N.D. Cal. 2010), appeal dismissed sub nom. Perry v. Brown ,725 F.3d. 1140 (9th Cir. 2013) ....................................................................... .17 , 22 , 24 , 40, 52

Phan v. Commonwealth of Virginia ,806 F.2d 516 (4th Cir. 1986) .................................................................................................. .31

Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary ,268 U.S. 510 (1925) ................................................................................................................ .55

Planned Parenthood of SE Pennsylvania v. Casey ,505 U.S. 833 (1992) .......................................................................................................... .40, 49


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Plyler v. Doe ,457 U.S. 202 (1982) .......................................................................................................... .21 , 39

Prowel v. Wise Business Forms, Inc .,579 F.3d 285 (3d Cir. 2008).................................................................................................... .24

Roberts v. United States Jaycees ,468 U.S. 609 (1984) ................................................................................................................ .48

Roe v. Roe ,228 Va. 722 (1985) ............................................................................................................ 44 -45

Roe v. Wade ,410 U.S. 113 (1973) ................................................................................................................ .59

Romer v. Evans ,517 U.S. 620 (1996) .............................................................................. .5, 29 , 30 , 31 , 32, 34, 36

Rowland v. Mad River Local School District ,470 U.S. 1009 (1985) .............................................................................................................. .17

South Carolina Education Ass’n v. Campbell ,883 F.2d 1251 (4th Cir. 1989) ................................................................................................ .43

Santosky v. Kramer ,455 U.S. 745 (1982) ................................................................................................................ .54

Scott v. Raub ,14 S.E. 178 (Va. 1891).............................................................................................................. .8

Sell v. United States ,539 U.S. 166 (2003) ................................................................................................................ .58

Skinner v. Oklahoma ,316 U.S. 535 (1942) ................................................................................................................ .55

Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel ,20 F.3d 1311 (4th Cir. 1994) .................................................................................................. .29

Stanley v. Illinois ,

405 U.S. 645 (1972) ................................................................................................................ .26Stanton v. Stanton ,

421 U.S. 7 (1975) .................................................................................................................... .26

Sylvia Development Corp. v. Calvert County ,48 F.3d 810 (4th Cir. 1995) .............................................................................................. .36, 43


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Thomasson v. Perry ,80 F.3d 915 (4th Cir. 1996) (en banc) .................................................................................... .15

Turner v. Safley ,482 U.S. 78 (1987) .............................................................................. .47 , 48 , 50 , 51, 52 , 55, 59

United States v. Virginia ,518 U.S. 515 (1996) .......................................................................................................... .24, 25

United States v. Windsor ,133 S. Ct. 2675 (2013) ......... 1, 10 , 16-17 , 29 , 30 , 32, 34, 36 , 37 , 38 , 39 , 43, 44 , 46 , 47 , 54, 57

United States Dep’t of Agriculture v. Moreno ,413 U.S. 528 (1973) .............................................................................................. .29 , 30 , 31, 34

Vance v. Bradley ,440 U.S. 93 (1979) ..................................................................................................................43

Varnum v. Brien ,763 N.W.2d 862 (Iowa 2009) ....................................................... .17 , 25 , 33 , 34 , 35 , 39 , 41, 42

Veney v. Wyche ,293 F.3d 726 (4th Cir. 2002) .................................................................................................. .15

Vigilant Insurance Co. v. Bennett ,89 S.E.2d 69 (Va. 1955)............................................................................................................ .9

Village of Arlington Heights v. Metropolitan Housing Development Corp. ,429 U.S. 252, 266-68 (1977) ............................................................................................ .30, 44

Village of Willowbrook v. Olech ,528 U.S. 562 (2000) ................................................................................................................ .42

Washington v. Glucksberg ,521 U.S. 702 (1997) ................................................................................................................ .47

Washington v. Seattle School District No. 1 ,458 U.S. 457 (1982) .......................................................................................................... .27, 28

Watkins v. United States Army ,

875 F.2d 699 (9th Cir. 1989) .................................................................................................. .21Weinberger v. Wiesenfeld ,

420 U.S. 636 (1975) .................................................................................................................. .9

Williams v. Williams ,354 S.E.2d 64 (Va. 1987)............................................................................................ .11 , 12, 13


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Windsor v. United States ,699 F.3d 169 (2d Cir. 2012)........................................ .16 , 17 , 18 , 19 , 20 , 21 , 34 , 39 , 42, 58, 59

Witt v. Departmentt of Air Force ,527 F.3d 806 (9th Cir. 2008) .................................................................................................. .58

Womack and als. v. Tankersley and Wife , 78 Va. 242 (1883) ...................................................... .10

Youngberg v. Romeo ,457 U.S. 307 (1982) ................................................................................................................ .50

Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................................................................ .47 , 48 , 50 , 56, 59

C ONSTITUTIONAL PROVISIONS

Va. Const. art. I, § 15-A .................................................................................................................. .4

Va. Const. art. XII, § 2 ................................................................................................................ .6, 7

STATUTES

Va. Code Ann. § 2.2-2001 ............................................................................................................ .14

VA Code Ann. § 18.2-361(A)....................................................................................................... .44

Va. Code Ann. § 20-13 ................................................................................................................. .13

Va. Code Ann. § 20-28 ................................................................................................................. .13

Va. Code Ann. § 20-31.1 .............................................................................................................. .10

Va. Code Ann. § 20-45.2 ................................................................................................................ .3

Va. Code Ann. § 20-45.3 ................................................................................................................ .4

Va. Code Ann. § 20-96 ................................................................................................................. .14

Va. Code Ann. § 20-107.1 ...................................................................................................... .10, 14

Va. Code Ann. § 20-107.2 ...................................................................................................... .10, 14

Va. Code Ann. § 20-107.3 ............................................................................................................ .14

Va. Code Ann. § 20-107.3(E) ....................................................................................................... .11

Va. Code Ann. § 27-39 ................................................................................................................. .13

Va. Code Ann. § 32.1-285 ............................................................................................................ .13


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Va. Code Ann. § 32.1-291.9 ......................................................................................................... .13

Va. Code Ann. § 54.1-2986 .......................................................................................................... .13

Va. Code Ann. § 57-27.3 .............................................................................................................. .13

Va. Code Ann. § 58.1-100 et seq. ................................................................................................. .10

Va. Code Ann. § 58.1-3210 .......................................................................................................... .13

Va. Code Ann. § 58.1-3219.5 ....................................................................................................... .13

Va. Code Ann. § 63.2-1201 .......................................................................................................... .10

Va. Code Ann. § 63.2-1202(D) ..................................................................................................... .10

Va. Code Ann. § 63.2-1241 .......................................................................................................... .10

Va. Code Ann. § 64.2-200 ............................................................................................................ .13

Va. Code Ann. § 64.2-302 ...................................................................................................... .10, 13

Va. Code Ann. § 64.2-307 ............................................................................................................ .13

Va. Code Ann. § 64.2-311 ............................................................................................................ .13

Va. Code Ann. § 64.2-100 et seq. ................................................................................................. .10

Va. Code Ann. § 20-45.1 .............................................................................................................. .27

R ULES

Fed. R. Civ. P. 23(b)(2)................................................................................................................... .2

Fed. R. Civ. P. 56 Advisory Committee Notes for 2009 Amendments .......................................... .2

O THER AUTHORITIES

Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is SexDiscrimination, 69. N.Y.U. L. Rev. 197 (1994) ..................................................................... .24

Barbara S. Gamble, Putting Civil Rights to a Popular Vote , 41 Am. J. Pol. Sci. 245(1997) ...................................................................................................................................... .20

Bostic v. McDonnell , No. 2:13-cv-00395-AWA-LRL, ECF No. 14 (E.D. Va.) ............................. .2


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Brief of the American Psychological Association, et al. , as Amici Curiae on the Merits inSupport of Affirmance, 2013 WL 871958 (Mar. 1, 2013) ...................................................... .40

Brief of the American Sociological Ass’n, in Support of Respondent Kristin M. Perry andRespondent Edith Schlain Windsor, 2013 WL 840004 (Feb. 28, 2013) ................................ .40

Brief of Amicus Curiae GLMA: Health Professionals Advancing LGBT Equality (Gayand Lesbian Medical Association) Concerning the Immutability of Sexual Orientationin Support of Affirmance on the Merits, 2013 WL 860299 (Feb. 26, 2013) .......................... .22

Brief of the Organization of American Historians and the American Studies Associationas Amici Curiae Support of Respondent Edith Windsor, 2013 WL 838150 (Feb. 28,2013) .................................................................................................................................. 17-18

Carlos A. Ball, The Blurring of the Lines: Children and Bans on Interracial Unions andSame-Sex Marriage , 76 Fordham L. Rev. 2733 (2008) ............................................................ .8

Chemerinsky, Const. Law Principles and Policies ....................................................................... .55

Commonwealth of Virginia, November 7 th 2006 – General Election: Official Results,available athttp://www.sbe.virginia.gov/ElectionResults/2006/Nov/htm/index.htm#141. ......................... .8

Donald P. Haider-Markel et al., Lose, Win, or Draw?: A Reexamination of Direct Democracy and Minority Rights , 60 Pol. Res. Q. 304 (2007) ................................................ .20

Dulcey B. Fowler, Virginia Family Law: The Effect of The General Assembly’s 1975 Revisions , 1 Va. B. Ass’n J 7 (1975) ........................................................................................ .3

Erwin Chemerinsky, Constitutional Law Principles and Policies (3d ed. 2006) ..........................55

George Washington, General Orders at Valley Forge on 14 March 1778 (reprinted inWashington Papers), available at http://founders.archives.gov/documents/Washington/03-14-02-0138#GEWN-03-14-02-0138-fn-0004. ...................................................................................................................... .5

Richard A. Posner, Sex and Reason 291 (1992) ............................................................................17

Gregory M. Herek, et al., Demographic, Psychological, and Social Characteristics ofSelf-Identified Lesbian, Gay, and Bisexual Adults , 7 Sex Res. Soc. Policy 176 (2010) ..........22

Glenda Riley, Legislative Divorce in Virginia, 1803-1850 , Journal of the Early Republic, Vol. 11, No. 1 (Spring, 1991) ................................................................................................... .9

Jane Schacter, Courts and the Politics of Backlash: Marriage Equality Litigation, Thenand Now , 82 S. Cal. L. Rev. 1153 (2009) ................................................................................. .3


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Merits Brief of Bipartisan Legal Advisory Group in United States v. Windsor , 2013 WL267026 (2013) ..........................................................................................................................43

Virginia L. Hardwick, Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation , 60 N.Y.U. L. Rev. 275 (1985) ....................................................... .50

Virginia Legislative Information System, 2005 Session, House Joint Resolution 586,available at http://lis.virginia.gov/cgi-bin/legp604.exe?051+ful+HJ586H2 .....................4, 5, 6

Commonwealth of Virginia, November 7 th 2006 – General Election: Official Results,available athttp://www.sbe.virginia.gov/ElectionResults/2006/Nov/htm/index.htm#141 .......................7, 8

Virginia Legislative Information System, 2004 Session, Senate Bill 477, available at http://lis.virginia.gov/cgi-bin/legp604.exe?041+sum+SB477 .................................................45


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INTRODUCTION

This case involves the exclusion of same-sex couples in Virginia from one of the most

profoundly important and cherished relationships of a lifetime: civil marriage. As the Supreme

Court recently reaffirmed, marriage confers “a dignity and status of immense import,” and the

state’s “historic and essential” role in extending this status uniquely “enhance[s] the recognition,

dignity, and protection of [same-sex couples] in their own community.” United States v.

Windsor , 133 S. Ct. 2675, 2692 (2013). Virginia denies same-sex couples access to marriage by

constitutional amendment and statutory law (collectively, the “marriage bans”), barring same-sex

couples both from entering marriage, and from having a valid marriage entered in another

jurisdiction recognized as such in the Commonwealth.

Two loving and devoted same-sex couples (“Named Plaintiffs”) brought suit challenging

Virginia’s marriage bans as a violation of federal constitutional guarantees, seeking to represent

a class of unmarried same-sex couples in Virginia who wish to marry (“Unmarried Plaintiffs”)

and same-sex couples validly married elsewhere who wish to have their marriage recognized in

Virginia (“Married Plaintiffs”) (collectively, including Named Plaintiffs and all other class

members, “Plaintiffs”). Plaintiffs’ complaint raises two claims challenging the marriage bans as

a violation of Equal Protection Clause and Due Process Clause of the Fourteenth Amendment,

and Plaintiffs seek summary judgment on both claims as to all defendants.

After describing the procedural history of this case below, this brief sets forth the history

of Virginia’s marriage bans and describes the evolution of marriage and its purposes in the

Commonwealth as well as the harm the bans inflict upon same-sex couples and their children.

The brief then explains why Virginia’s marriage bans are subject to heightened scrutiny because

they discriminate based on both sexual orientation and sex and why the Commonwealth’s


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constitutional marriage ban is suspect based on how it discriminatorily affects the normal process

for political reform. The brief then demonstrates how the marriage bans are unconstitutional

under any standard of review. Finally, the brief explains how the bans also infringe Plaintiffs’

fundamental rights and liberty interests and violate the Fourteenth Amendment’s guarantees of

due process and equal protection for that reason as well.

PROCEDURAL HISTORY

Plaintiffs filed this putative class action on August 1, 2013, and moved to certify the case

as a class action pursuant to Fed. R. Civ. P. 23(b)(2) on August 16, 2013. On August 16,

Defendant Janet M. Rainey filed an Answer to the Complaint and Defendant Robert F.

McDonnell filed a motion to dismiss. Defendant Thomas E. Roberts filed another motion to

dismiss on August 30. The pending motions are fully briefed and set for argument before this

Court on October 29.

Federal Rule of Civil Procedure 56 “allows a party to move for summary judgment at any

time, even as early as the commencement of the action.” Fed. R. Civ. P. 56 Advisory Committee

Notes for 2009 Amendments.

In separate litigation pending in the Eastern District of Virginia also challenging the

constitutionality of Virginia’s marriage bans, the parties to that case (including Defendant

Rainey) have agreed to file cross-motions for summary judgment on September 30, 2013 without

any discovery. See Bostic v. McDonnell , No. 2:13-cv-00395-AWA-LRL, ECF No. 14 (E.D.

Va.). Plaintiffs have filed this motion for summary judgment simultaneously, seeking resolution

of their claims on a similar timetable, because the Named Plaintiffs and the class they seek to

represent suffer harms no less urgent than those of the plaintiffs in Bostic .


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BACKGROUND

I. History of Virginia’s Marriage Bans.

Virginia’s constitutional amendment barring same-sex couples from marrying and

refusing to recognize such marriages entered elsewhere is the final result of a long series of

legislative actions. First, in 1975, Virginia adopted a statute providing that “a marriage between

persons of the same sex is prohibited.” Va. Code Ann. § 20-45.2. That enactment was a

response to Baker v. Nelson , 191 N.W.2d 185 (Minn. 1971), appeal dismissed , 409 U.S. 810

(1972), the first freedom-to-marry case filed by a same-sex couple in the U.S.; see Va. Code

Ann. § 20-45.2; Acts 1975, c. 644; Dulcey B. Fowler, Virginia Family Law: The Effect of The

General Assembly’s 1975 Revisions , 1 Va. B. Ass’n J 7, 8-9 (1975). In 1997, the legislature

added a ban on recognizing same-sex marriages solemnized legally in other states declaring them

void: “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.” Va. Code Ann. § 20-45.2; Acts 1997, c. 354. This was part of a wave

of state and federal legislation in 1996 and 1997 responding to the Hawaii Supreme Court’s

decision in Baehr v. Lewin , 910 P.2d 112 (Haw. 1996). See Jane Schacter, Courts and the

Politics of Backlash: Marriage Equality Litigation, Then and Now , 82 S. Cal. L. Rev. 1153,

1185-86 (2009).

In 2004, the Commonwealth went a step further by also banning civil unions and

domestic partnerships—thus stripping from same-sex couples the possibility of any legal

recognition of their relationships in the Commonwealth. That law, sponsored by Delegate Bob

Marshall of Prince William and introduced as House Bill 751 (the “Affirmation of Marriage

Act”), provides:


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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 suchcivil union, partnership contract or other arrangement entered into by persons of the samesex in another state or jurisdiction shall be void in all respects in Virginia and anycontractual rights created thereby shall be void and unenforceable.

Va. Code Ann. § 20-45.3; Acts 2004, c. 983. The very next year, several state delegates and

senators, including Delegate Marshall, proposed competing versions of yet another ban on

marriage by same-sex couples—this time in the form of an amendment to the Virginia

Constitution. The version ultimately adopted provides:

That only a union between one man and one woman may be a marriage valid in orrecognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legalstatus 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 statusto which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

Va. Const. art. I, § 15-A.

The original version of the proposed constitutional amendment, adopted by the Virginia

House on February 8, 2005, was narrower in scope than the one ultimately enacted. First, it

included a “Savings Clause” providing that “[a]ny other right, benefit, obligation, or legal status

pertaining to persons not married is otherwise not altered or abridged by this section.” Virginia

Legislative Information System, 2005 Session, House Joint Resolution 586, available at

http://lis.virginia.gov/cgi-bin/legp604.exe?051+ful+HJ586H2. Second, it did not contain the ban

on recognition for relationships “that intend[] to approximate the design, qualities, significance,

or effects of marriage.” Compare id. with Va. Const. art. I, § 15-A. Finally, it included an

introductory clause providing:

marriage is essential to the liberty, happiness, and prosperity of a free and virtuous peopleand is, among other things, the natural and optimal institution for uniting the two sexes ina committed, complementary, and conjugal partnership; for begetting posterity; and for

providing children with the surest opportunity to be raised by their mother and father.


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Virginia Legislative Information System, 2005 Session, House Joint Resolution 586, available at

http://lis.virginia.gov/cgi-bin/legp604.exe?051+ful+HJ586H2.

The House debate indicates that the “Savings Clause” and this introductory clause, both

ultimately rejected, were viewed by some sponsors as critical to demonstrate that the measure

was not based on animus towards gay people. During the consideration of the original measure

on the House Floor, Delegate Marshall rejected the notion that the debate was about civil rights.

“Homosexuals are supposed to be portrayed as victims of circumstance, victims of bigotry, and

mainly seeking their civil rights. Some might ask, well is this really a civil rights question?”

Declaration of Mark P. Gaber (“Gaber Dec.”) ¶ 6. His answer was no. Id. ¶ 7. He explained tothe delegates that he included the introductory clause (referred to in the debates as the “Resolve

Clause”) specifically to insulate the measure against legal challenges, based on the Supreme

Court’s opinion in Romer v. Evans , 517 U.S. 620 (1996), that the bill was intended to reflect

animus. Id. ¶ 8. “We are not here about hatred, we’re here about marriage.” Id .1 He also

reasoned that, because of the “Savings Clause” included in the measure, “we’re not taking away

rights.” Id. ¶ 9.

1 Some of Delegate Marshall’s comments during the debate belie his assertion that the marriage bans did not reflect hostility toward lesbians and gay men and their relationships. For example,in discussing marriage, he said “I don’t know how you have a same sex marriage. I can’tcomprehend the meaning of the term of there being two husbands or two wives.” Id. ¶ 10.When asked how same-sex marriage would affect the marriages of heterosexual Virginians,Delegate Marshall quipped, to laughter from other delegates, “the same way that counterfeitmoney threatens the economy of the Commonwealth.” Id. ¶ 11. And, when another delegatequoted President George Washington in opposing the proposed amendment, Delegate Marshallresponded, “[i]s the Gentleman aware of what George Washington did to persons who exercisedsame-sex persuasions in his units? [laughter]” Id. ¶ 18. That statement presumably refers toGeorge Washington’s court-martial of a Continental Army Lieutenant for attempted sodomy.See George Washington, General Orders at Valley Forge on 14 March 1778 (reprinted inWashington Papers), available at http://founders.archives.gov/documents/Washington/03-14-02-0138#GEWN-03-14-02-0138-fn-0004.


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considered again during the first week of the next session. One of its chief proponents, Delegate

Marshall, said:

Marriage is a legal and moral union between a man and a woman, which has the form of

reproduction and the attendant responsibilities that ensue therefrom, even if the fact ofreproduction does not occur. Therefore any claim that two men or two women may marryeach other is simply nonsense . It does not make logical sense. However there areattempts to radically alter an institution that must antedate history. And this has comeabout by social engineering judges in Massachusetts, Vermont, and elsewhere who wishto do this.

Gaber Dec. at ¶ 19. (emphasis added). Marshall contended that the measure did not constitute

discrimination. “We have the – ah – notion that Virginia should not discriminate. Anybody can

apply for a marriage license; there’s no inquiry on there as to your sexual interest or appetites .

The only qualification is the qualifications of age and sex, nothing else. And to suggest

otherwise is to itself tamper with this institution.” Id. ¶ 20 (emphasis added).

During the debate, Delegate Ebbin of Alexandria argued that the legislature was using

gay people as “scapegoats” and that the 2004 law was already the third time the state had

banned marriage. Id. ¶ ¶ 12, 21. Marshall explained the history of Virginia’s legislative actions

with respect to marriage between same-sex couples: “In 1975 when the [Equal Rights

Amendment] was raging, we did define that. We further modified that to say we’re not going to

accept out of state same sex marriages,” and “we further modified that to say we won’t accept

these imitations , which are the further permutations of the legal staff of the Lambda Legal

Defense Fund.” Id. ¶ 21 (emphasis added).

Delegate Watts offered an amendment to re-insert the “Savings Clause” language that the

conferees had removed during the 2005 session. See Id. ¶ 22; Virginia Legislative Information

System, 2006 Session, House Joint Resolution 41, Amendments Rejected by the House,

available at http://lis.virginia.gov/cgi-bin/legp604.exe?061+amd+HJ41AHR. The House

rejected the amendment by a 36-60 vote. See Virginia Legislative Information System, 2006


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Session, House Joint Resolution 41, available at http://lis.virginia.gov/cgi-

bin/legp604.exe?061+sum+HJ41.

Ultimately, the amendment passed the House 73-22, and the Senate 29-11. See id. On

November 7, 2006, the measure was approved by Virginia voters by a 57% to 43% vote. 2

II. Marriage and Its Purposes Have Evolved in Virginia.

A. Virginia Has Cast Aside Prior Discriminatory Exclusions From Marriage.

Virginia has gradually eliminated restrictions on marriage that excluded minority groups

and imposed unequal treatment based on sex. During slavery, Virginia law provided that “a

slave cannot marry, because he cannot make a valid contract, because the duties of a slave are

inconsistent with the duties of a husband or a wife, and because a slave is property. So the

marriage of a slave is a mere nullity, though it is allowed a certain moral effect.” Scott v. Raub ,

14 S.E. 178, 179 (Va. 1891).

Virginia also banned interracial marriage in 1691. See Carlos A. Ball, The Blurring of

the Lines: Children and Bans on Interracial Unions and Same-Sex Marriage , 76 Fordham L.

Rev. 2733, 2740 (2008). The ban was designed to “prevent . . . that abominable mixture and

spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattoes, and

Indians intermarrying with English, or other white women, as by their unlawfull accompanying

with one another.” Id. (citing An Act for Suppressing Outlying Slaves, in 3 Being a Collection

of All the Laws of Virginia 86-87 (William Waller Hening ed. 1823)). That law remained in

effect for almost 300 years until the Supreme Court held it unconstitutional in Loving v. Virginia ,

388 U.S. 1 (1967).

2 Commonwealth of Virginia, November 7 th 2006 – General Election: Official Results, availableat http://www.sbe.virginia.gov/ElectionResults/2006/Nov/htm/index.htm#141.


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Virginia’s marriage laws also discriminated against women through coverture. Under

this doctrine, a husband and wife were treated as a single entity. The wife ceded her legal and

economic identity to her husband upon marriage and could not own property, represent herself in

court, sign a contract, or keep any money she earned. See , e.g. , Vigilant Ins. Co. v. Bennett , 89

S.E.2d 69, 71-75 (Va. 1955) (describing history of coverture in Virginia). This inequality, seen

as essential to marriage for centuries, was eliminated in response to changing values and Virginia

enacted its first statute regarding married women’s ownership of their own property in 1877. See

Norfolk & W. R. R. Co. v. Prindle , 82 Va. 122, 126 (1886). Today, Virginia and federal law treat

both spouses equally and in gender-neutral fashion with respect to marriage, and the UnitedStates Supreme Court has confirmed that such gender-neutral treatment for marital partners is

constitutionally required. See Califano v. Goldfarb , 430 U.S. 199 (1977); Weinberger v.

Wiesenfeld , 420 U.S. 636 (1975).

Finally, Virginia’s policy regarding divorce has evolved substantially. Virginia law

initially did not provide for divorce, but in the early nineteenth century the Virginia General

Assembly began granting divorces to particular couples interested in terminating their marriages.

1802 Va. Acts 46-47, c. 64. Gradually, the standards and procedures for obtaining a divorce

became less onerous. Glenda Riley, Legislative Divorce in Virginia, 1803-1850 , Journal of the

Early Republic, Vol. 11, No. 1, at 51 (Spring, 1991). In 1960, Virginia began treating an

extended period of separation as a valid basis for divorce, and in 1975 the legislature reduced the

required period of separation to one year, effectively establishing modern no-fault divorce. 1960

Acts, c. 108; 1975 Acts, c. 644.


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B. Marriage in Virginia Today Serves Multiple Interests, and Is Not Limited toProcreative Purposes.

In modern times, marriage in Virginia has been understood as a civil contract embodying

a couple’s free consent to create a long-lasting intimate and economic union. See Womack and

als. v. Tankersley and Wife , 78 Va. 242, 243 (1883) (characterizing marriage as a “civil

contract”). The institution of marriage has evolved to serve a number of important societal

purposes.

First, there are many tangible benefits pursuant to both federal and state laws, which form

a safety net for marital couples and households. The federal General Accounting Office reported

in 1997 that there are more than 1,000 references in federal law to marriage, see Windsor , 133 S.

Ct. at 2683, and the Commonwealth gives special recognition to spouses in areas ranging from

tax policy to probate rules. See , e.g. , Va. Code Ann. § 58.1-100, et seq. ; Va. Code Ann. § 64.2-

100, et seq.

Second, Virginia’s marriage laws afford the ability to secure legal recognition of parent-

child bonds, including joint adoption, Va. Code Ann. § 63.2-1201; adoption of a spouse’s child,

Va. Code Ann. § 63.2-1241; legitimization of children through marriage, Va. Code Ann. § 20-

31.1; and the presumption of parentage for children born into a marriage, Va. Code Ann. § 63.2-

1202(D). Virginia also makes spouses and parents accountable for economic support through,

for example, obligations of spousal and child support. Va. Code Ann. §§ 20-107.1, 20-107.2.

Such rules have put a critical limit on the public’s responsibilities to provide care and financial

support for the young and dependent.

Third, marriage organizes households and significantly determines property ownership

and inheritance. These are matters of civil society in which public authorities, including the

Commonwealth, are highly interested. See , e.g. , Va. Code Ann. § 64.2-302 (allowing surviving


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ceremony, he says “Mommy and Momma DeeDee got married, and they need to really get

married.” Id. ¶ 12. Jessica has no legal relationship with J. H.-D., as she could if she and Joanne

could marry. Id. ¶ 13.

4. Joanne and Jessica fear what might happen if Joanne and J. H.-D. were to be in an

accident—it would not be clear that Jessica had the authority to make medical decisions. Id.

Joanne’s tenuous relationship with her parents exacerbates this concern—the couple

understandably fears that Joanne’s family may seek to deny Jessica’s role as J. H.-D.’s mother.

Id. ¶ 14.

5. For Joanne and Jessica, the ability to make medical decisions for each other is notacademic; Joanne has epilepsy and her mother has expressed that she would not respect Joanne’s

desire not to receive life-prolonging measures should she experience a health crisis. Id. ¶ 15.

6. The harm comes in smaller ways too. Matters such as describing the family on

school forms, obtaining family memberships at organizations like the YMCA, and making

school-related decisions are all made more difficult because of the marriage ban. Id. ¶ 16.

7. Christy Berghoff and Victoria Kidd have been in a committed relationship for

nine years, Declaration of Christy Berghoff (“Berghoff Dec.”) at ¶ 2; Declaration of Victoria

Kidd (“Kidd Dec.”) ¶ 2, were legally married in Washington, D.C. in 2011, Id. ¶ 9, and together

have an infant daughter L. B.-K., Id. ¶ 11.

8. Because Virginia does not recognize their marriage, Christy and Victoria have

spent hundreds of dollars obtaining co-custodianship documents for Victoria, Id. ¶ 12, but they

fear those papers will not be respected in an emergency, id . They face the prospect of additional

costs associated with securing wills, living wills, powers of attorney, and other legal


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documents—all because they cannot receive the same protections and rights that other married

couples receive. Id. ¶ 13.

9. When Victoria and Christy sought a home loan guaranteed by the federal

Department of Veterans Affairs, they were unable to obtain it because lenders were unwilling to

issue loans with a V.A. guarantee covering only half the loan amount—due to their marriage not

being recognized by Virginia. Id. ¶ 14.

10. The threat of being prevented from making medical decisions is real for Victoria

and Christy too—Victoria suffered a minor stroke last year, and they had already experienced

disrespect during the birth of their daughter. Id. ¶ 15.11. More generally, all Plaintiffs face a host of harms at the state and federal level

based on their exclusion from the right to marry: they lack the ability to solemnize their

relationships through state-sanctioned ceremonies, Va. Code Ann. § 20-13; the ability to

celebrate their marriage in their chosen faith tradition or civil ceremony, because those

authorized to conduct marriages are prohibited, under threat of criminal sanction, from using the

word “marriage,” Va. Code Ann. § 20-28; the ability to safeguard family resources under an

array of laws that protect spousal finances, such as through exemption or deferral of taxes on the

property of certain elderly or disabled residents, Va. Code Ann. § 58.1-3210, and through

property tax exemptions for the surviving spouse of an eligible veteran, Va. Code Ann. § 58.1-

3219.5; the automatic ability and priority to make caretaking decisions in times of death and

disaster, see Va. Code Ann. §§ 54.1-2986, 32.1-285, 57-27.3, 32.1-291.9; the right of inheritance

under the laws of intestacy and other rights related to estates, see Va. Code Ann. §§ 64.2-200,

64.2-302, 64.2-307, 64.2-311, 27-39; benefits for surviving spouses of military service members

killed in action, such as educational benefits, home loan guarantees, and real estate tax


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exemptions, see e.g. , Va. Code Ann. § 2.2-2001; access to an orderly dissolution process in the

event a couple separates, Va. Code Ann. §§ 20-96, 20-107.3; and the ability to hold a partner

accountable for child support, Va. Code Ann. §§ 20-107.1, 20-107.2.

12. Virginia’s marriage bans also render Plaintiffs unable to benefit from a host of

federal rights that turn on marital status—under more than 1,000 statutes and numerous federal

regulations—including laws pertaining to Social Security, housing, taxes, criminal sanctions,

copyright, and veterans’ benefits.

13. In addition to these tangible harms, Plaintiffs suffer from the harm of being

excluded from the unique social recognition that marriage conveys. Without access to thefamiliar language and legal label of marriage, Plaintiffs are unable instantly or adequately to

communicate to others the depth of their commitment, or obtain respect for that commitment, as

other do by simply invoking their married status. Plaintiffs wish to express the nature, depth,

and quality of their lifelong commitment to each other in the way that they, their family, their

friends, and society at large best understand. See, e.g. , Harris Dec. ¶¶ 4, 8, 9; Duff Dec. ¶¶ 4, 8,

9.

14. Children of same-sex couples in Virginia are likewise harmed; the exclusion of

their parents from marriage reinforces the view held by some that the family bonds that tie same-

sex parents and their children are less consequential, enduring, and meaningful that those of

different-sex parents and their children. And the children must live with the stress of knowing

their legal relationship with one of their parents is tenuous—and may not be respected—in

social, legal, educational, or medical settings.

These harms—both tangible and intangible—are profoundly damaging and demand a

prompt remedy.


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ARGUMENT

I. Virginia’s Marriage Bans Deny Equal Protection of the Law.

A. Virginia’s Marriage Bans Are Subject to Heightened Scrutiny Because TheyDiscriminate Based on Sexual Orientation.

There is no controlling law in the Fourth Circuit regarding the appropriate level of

scrutiny for classifications based on sexual orientation. The only Fourth Circuit decisions to

address the issue— Thomasson v. Perry , 80 F.3d 915, 928-29 (4th Cir. 1996) (en banc), and

Veney v. Wyche , 293 F.3d 726, 732 (4th Cir. 2002)—were decided before the Supreme Court, in

Lawrence v. Texas , 539 U.S. 558 (2003), overruled Bowers v. Hardwick , 478 U.S. 186 (1986).

Like every other circuit court to address the issue before Lawrence , the Fourth Circuit in

Thomasson reasoned that, because the government could constitutionally criminalize private,

consensual sex between gay people, sexual orientation could not be considered a suspect or

quasi-suspect classification for purpose of equal protection. See Thomasson , 80 F.3d at 928-29

(“Given that it is legitimate for Congress to proscribe homosexual acts, it is also legitimate for

the government to seek to forestall these same dangers by trying to prevent the commission of

such acts.” (citations omitted)); accord Padula v. Webster , 822 F.2d 97, 103 (D.C. Cir. 1987)

(“After all, there can hardly be more palpable discrimination against a class than making the

conduct that defines the class criminal.”). In 2002, the Fourth Circuit relied on Thomasson as

precedent without conducting an independent analysis. See Veney , 293 F.3d at 731 n.4.

In 2003, however, the Supreme Court overruled Bowers and emphatically declared that it

“was not correct when it was decided and is not correct today.” Lawrence , 539 U.S. at 578. In

repudiating the Bowers decision, the Court stated that “[i]ts continuance as precedent demeans

the lives of homosexual persons” and represents “an invitation to subject homosexual persons to

discrimination both in the public and in the private spheres.” Id. By overruling Bowers , the


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Supreme Court in Lawrence necessarily abrogated Thomasson , Veney , and other decisions that

relied on Bowers to foreclose the possibility of heightened scrutiny for sexual orientation

classifications. See Pedersen v. Office of Pers. Mgmt ., 881 F. Supp. 2d 294, 312 (D. Conn.

2012) (“The Supreme Court’s holding in Lawrence ‘remov[ed] the precedential underpinnings of

the federal case law supporting the defendants’ claim that gay persons are not a [suspect or]

quasi-suspect class.”’ (citations omitted)); Golinski v. U.S. Office of Pers. Mgmt. , 824 F. Supp.

2d 968, 984 (N.D. Cal. 2012). (“[T]he reasoning in [prior circuit court decisions], that laws

discriminating against gay men and lesbians are not entitled to heightened scrutiny because

homosexual conduct may be legitimately criminalized, cannot stand post- Lawrence .”) Now that Lawrence has overruled Bowers , lower courts without controlling post-

Lawrence precedent on the issue must apply the criteria mandated by the Supreme Court to

determine whether sexual orientation classifications should receive heightened scrutiny.

The Supreme Court uses certain factors to decide whether a new classification qualifiesas a [suspect or] quasi-suspect class. They include: A) whether the class has beenhistorically “subjected to discrimination,”; B) whether the class has a definingcharacteristic that “frequently bears [a] relation to ability to perform or contribute tosociety,”; C) whether the class exhibits “obvious, immutable, or distinguishingcharacteristics that define them as a discrete group;” and D) whether the class is “aminority or politically powerless.”

Windsor v. United States , 699 F.3d 169, 181 (2d Cir. 2012) (quoting Bowen v. Gilliard , 483 U.S.

587, 602 (1987), and Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-41 (1985)

(citations omitted)). Of these considerations, the first two are the most important. See id.

(“Immutability and lack of political power are not strictly necessary factors to identify a suspect

class.”); accord Golinski , 824 F. Supp. 2d at 987.

As several federal and state courts have recently recognized, any faithful application of

those factors leads to the inescapable conclusion that sexual orientation classifications must be

recognized as suspect or quasi-suspect and subjected to heightened scrutiny. See , e.g. , Windsor ,


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699 F.3d at 181-85; Golinski , 824 F. Supp. 2d at 985-90; Pedersen , 881 F. Supp. 2d at 310-33;

Perry v. Schwarzenegger , 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010), appeal dismissed sub nom.

Perry v. Brown , 725 F.3d. 1140 (9th Cir. 2013); In re Balas , 449 B.R. 567, 573-75 (Bankr. C.D.

Cal. 2011) (decision of 20 bankruptcy judges); Varnum v. Brien , 763 N.W.2d 862, 885-96 (Iowa

2009); In re Marriage Cases , 183 P.3d 384, 441-44 (Cal. 2008); Kerrigan v. Comm’r of Pub.

Health , 957 A.2d 407, 425-31 (Conn. 2008).

1. Lesbians and Gay Men Have Suffered a Long History ofDiscrimination.

There can be no doubt that lesbians and gay men historically have been, and continue to

be, the target of purposeful and often grievously harmful discrimination because of their sexual

orientation. For centuries, the prevailing attitude toward gay persons has been “one of strong

disapproval, frequent ostracism, social and legal discrimination, and at times ferocious

punishment.” Richard A. Posner, Sex and Reason 291 (1992); see also Rowland v. Mad River

Local Sch. Dist. , 470 U.S. 1009, 1015 (1985) (Brennan, J., dissenting from denial of cert.) (gay

people “have historically been the object of pernicious and sustained hostility.”). As the Second

Circuit concluded, “It is easy to conclude that homosexuals have suffered a history of

discrimination. Windsor and several amici labor to establish and document this history, but we

think it is not much in debate.” Windsor , 699 F.3d at 182; see Pedersen , 881 F. Supp. 2d at 318

(“The long history of anti-gay discrimination which evolved from conduct-based proscriptions to

status or identity-based proscriptions perpetrated by federal, state and local governments as well

as private parties amply demonstrates that homosexuals have suffered a long history of invidious

discrimination.”); United States v. Windso r, No-12-307, Brief of the Organization of American

Historians and the American Studies Association as Amici Curiae Support of Respondent Edith


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Windsor, 2013 WL 838150 (Feb. 28, 2013) (summarizing history of discrimination against gay

people in America).

2. Sexual Orientation Is Irrelevant to an Individual’s Ability to

“Contribute to Society.”The other essential factor in the Court’s heightened scrutiny analysis is whether the group

in question is distinctively different from other groups in a way that “frequently bears [a] relation

to ability to perform or contribute to society.” City of Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432, 440-41 (1985) (citation omitted); see also Frontiero v. Richardson , 411 U.S. 677,

686 (1973) (plurality) (“[W]hat differentiates sex from such nonsuspect statuses as intelligence

or physical disability, and aligns it with the recognized suspect criteria, is that the sex

characteristic frequently bears no relation to ability to perform or contribute to society.”).

Courts discussing this prong have agreed with near unanimity that homosexuality is

irrelevant to one’s ability to perform or contribute to society. “There are some distinguishing

characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability

to contribute to society, at least in some respect. But homosexuality is not one of them.”

Windsor , 699 F.3d at 682; accord Golinski , 824 F. Supp. 2d at 986 (“[T]here is no dispute in the

record or the law that sexual orientation has no relevance to a person’s ability to contribute to

society.”); Pedersen , 881 F. Supp. 2d at 320 (“Sexual orientation is not a distinguishing

characteristic like mental retardation or age which undeniably impacts an individual’s capacity

and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have

been subjected to unique disabilities on the basis of stereotyped characteristics not truly

indicative of their abilities.”). See also Am. Psychiatric Ass’n, Position Statement On

Homosexuality and Civil Rights, 131 Am. J. Psychiatry 436, 497 (1974). In this respect, sexual

orientation is akin to race, gender, alienage, and national origin, all of which “are so seldom


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relevant to the achievement of any legitimate state interest that laws grounded in such

considerations are deemed to reflect prejudice and antipathy.” Cleburne , 473 U.S. at 440.

3. Lesbians and Gay Men Lack Sufficient Political Power to Protect

Themselves Against Invidious Discrimination.Lack of political power is not essential for recognition as a suspect or quasi-suspect class.

See Windsor , 699 F.3d at 181. But the limited ability of gay people as a group to protect

themselves in the political process also weighs in favor of heightened scrutiny of laws that

discriminate based on sexual orientation. In analyzing this factor, “[t]he question is not whether

homosexuals have achieved political successes over the years; they clearly have. The question is

whether they have the strength to politically protect themselves from wrongful discrimination.”

Id. at 184.

The political influence of lesbians and gay men today stands in sharp contrast to the

political power of women in 1973, when a plurality of the Court concluded in Frontiero that sex-

based classifications required heightened scrutiny. 411 U.S. at 688. After all, Congress had

already passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, both of

which protect women from discrimination in the workplace. See id. at 687-88. In contrast, there

is still no express federal ban on sexual orientation discrimination in employment, housing, or

public accommodations, and twenty-nine states have no such protections either. See Golinski ,

824 F. Supp. 2d at 988-89; Pedersen , 881 F. Supp. 2d at 326-27. As political power has been

defined by the Court for purposes of heightened scrutiny analysis, lesbians and gay men do not

have it. 4

4 Similarly, while there has been some improvement in recent years, lesbians and gay menremain “vastly under-represented in this Nation’s decisionmaking councils.” No openly gay

person has ever served in the United States Cabinet. In 2008, of the more than half a million people who then held political office at the local, state, and national levels in this country, only


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Moreover, while there have been recent successes in securing antidiscrimination

legislation (and even marriage equality) in some parts of the nation, those limited successes do

not alter the conclusion that lesbians and gay men “are not in a position to adequately protect

themselves from the discriminatory wishes of the majoritarian public.” Windsor , 699 F.3d at

185. Thus, in the last two decades, more than two-thirds of ballot initiatives that proposed to

enact (or prevent the repeal of) basic antidiscrimination protections for gay and lesbian

individuals have failed. Gay people “have seen their civil rights put to a popular vote more often

than any other group.” Barbara S. Gamble, Putting Civil Rights to a Popular Vote , 41 Am. J. Pol.

Sci. 245, 257 (1997).; see also Donald P. Haider-Markel et al., Lose, Win, or Draw?: A

Reexamination of Direct Democracy and Minority Rights , 60 Pol. Res. Q. 304 (2007).

Indeed, the notion that gay people are too politically powerful to warrant applying

heightened scrutiny is particularly misplaced because, by enshrining Virginia’s marriage bans in

the state constitution, Virginia has effectively locked gay people out of the normal political

process. See infra Argument, Part I.C (discussing why this “fencing out ” violates equal

protection). Having disabled gay people from remedying discrimination through the normal

legislative process, Virginia can hardly argue that this discrimination is likely “to be soon

rectified by legislative means.” Cleburne , 473 U.S. at 440.

4. Sexual Orientation Is An “Immutable” Or “Defining” Characteristic.

The heightened scrutiny inquiry sometimes also considers whether laws discriminate on

the basis of “‘immutable . . . or distinguishing characteristics that define [persons] as a discrete

about 400 were openly gay. See Kerrigan , 957 A.2d at 446; see also Windsor , 699 F.3d at 184-85 (underrepresentation of lesbians and gay men in positions of power “is attributable either to ahostility that excludes them or to a hostility that keeps their sexual preference private – which,for our purposes [assessing their political power], amounts to much the same thing”).


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group.’” Bowen v. Gilliard , 483 U.S. 587, 602 (1987) (citation omitted). This consideration

derives from the “basic concept of our system that legal burdens should bear some relationship to

individual responsibility.” Frontiero , 411 U.S. at 626; see also Plyler v. Doe , 457 U.S. 202, 220

(1982) (noting that illegal alien children “have little control” over that status). But there is no

requirement that a characteristic be immutable in order to trigger heightened scrutiny.

Heightened scrutiny applies to classifications based on alienage and legitimacy, even though

“[a]lienage and illegitimacy are actually subject to change.” Windsor , 699 F.3d at 183 n.4; see

Nyquist v. Mauclet , 432 U.S. 1, 9 n.11 (1977) (rejecting the argument that alienage did not

deserve strict scrutiny because it was mutable).

To the extent that “immutability” is relevant to the inquiry of whether to apply

heightened scrutiny, the question is not whether a characteristic is strictly unchangeable—it is

whether the characteristic is a core trait or condition that one cannot or should not be required to

abandon. See Fatin v. INS , 12 F.3d 1233, 1240 (3d Cir. 1993) (Alito, J.) (characteristic is

“‘immutable’” when “‘the members of the group either cannot change, or should not be required

to change because it is fundamental to their individual identities or consciences’”) (citation

omitted); Hernandez-Montiel v. INS , 225 F.3d 1084, 1093 (9th Cir. 2000) (“[S]exual orientation

and sexual identity are immutable; they are so fundamental to one’s identity that a person should

not be required to abandon them.”), overruled on other grounds , Thomas v. Gonzales , 409 F.3d

1177 (9th Cir. 2005); Watkins v. United States Army , 875 F.2d 699, 726 (9th Cir. 1989) (Norris,

J., concurring in judgment) (“It is clear that by ‘immutability’ the [Supreme] Court has never

meant strict immutability in the sense that members of the class must be physically unable to

change or mask the trait defining their class. . . . the Supreme Court is willing to treat a trait as


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effectively immutable if changing it would involve great difficulty, such as requiring a major

physical change or a traumatic change of identity.”).

Under any definition of immutability, sexual orientation clearly qualifies. There is now

broad medical and scientific consensus that sexual orientation is immutable. See Perry , 704 F.

Supp. 2d at 966 (“No credible evidence supports a finding that an individual may, through

conscious decision, therapeutic intervention or any other method, change his or her sexual

orientation.”); accord Golinski , 824 F. Supp. 2d at 986; Pedersen , 881 F. Supp. 2d at 320-24; see

also Gregory M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-

Identified Lesbian, Gay, and Bisexual Adults , 7 Sex Res. Soc. Policy 176 (2010); United States v.

Windsor , Brief of Amicus Curiae GLMA: Health Professionals Advancing LGBT Equality (Gay

and Lesbian Medical Association) Concerning the Immutability of Sexual Orientation in Support

of Affirmance on the Merits, 2013 WL 860299 (Feb. 26, 2013).

Even more importantly, as the Supreme Court has acknowledged, sexual orientation is so

fundamental to a person’s identity that one ought not be forced to choose between one’s sexual

orientation and one’s rights as an individual—even if such a choice could be made. See

Lawrence , 539 U.S. at 576-77 (recognizing that individual decisions by consenting adults

concerning the intimacies of their physical relationships are “an integral part of human

freedom”); see also In re Marriage Cases , 183 P.3d at 442 (“Because a person’s sexual

orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to

repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”);

Kerrigan , 957 A.2d at 438 (“In view of the central role that sexual orientation plays in a person’s

fundamental right to self-determination, we fully agree with the plaintiffs that their sexual

orientation represents the kind of distinguishing characteristic that defines them as a discrete


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group for purposes of determining whether that group should be afforded heightened protection

under the equal protection provisions of the state constitution.”); accord Golinski , 824 F. Supp.

2d at 987; Pedersen , 881 F. Supp. 2d at 325. 5

Sexual orientation discrimination accordingly meets not only the two essential criteria for

receipt of heightened scrutiny, but all considerations the Supreme Court has identified, and thus

defendants must sustain their burden to justify the Virginia marriage bans.

B. Virginia’s Marriage Bans Also Are Subject to Heightened Scrutiny BecauseThey Contain Explicit Sex-Based Classifications and Because TheyPerpetuate Improper Stereotyped Notions of the Spousal and Parental Rolesof Men and Women.

Virginia’s marriage bans must be subjected to heightened scrutiny for two additional

reasons: they classify explicitly based on gender, and they reflect stereotyped notions of the

proper role of men and women in the marital and family contexts. There is nothing inconsistent

about subjecting the Virginia marriage restrictions both to the scrutiny due classifications based

on sex and to the scrutiny due classifications based on sexual orientation. The confluence of

discrimination based on both sex and sexual orientation here is not mere happenstance; sexual

orientation is defined by one’s sex relative to the sex of those to whom one is attracted and the

5 In the past, some courts have asserted that sexual orientation is not immutable byarguing that sexual orientation refers merely to the conduct of engaging in sexual activity.See , e.g. , High Tech Gays v. Def. Indus. Sec. Clearance Office , 895 F.2d 563, 573-74 (9thCir. 1990) (arguing that homosexuality “is behavioral and hence is fundamentallydifferent from traits such as race, gender, or alienage, which define already existingsuspect and quasi-suspect classes.”). But the Supreme Court has now rejected thatartificial distinction between the conduct of engaging in same-sex activity and the statusof being gay, explaining that “[o]ur decisions have declined to distinguish between statusand conduct in this context.” Christian Legal Soc’y v. Martinez , 130 S. Ct. 2971, 2990(2010); see Pedersen , 881 F. Supp. 2d at 325 (“Supreme Court precedent has sincerejected the artificial distinction between status and conduct in the context of sexualorientation. Consequently, the precedential underpinnings of those cases declining torecognize homosexuality as an immutable characteristic have been significantly eroded.”(citations omitted)).


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opprobrium visited on lesbians and gay men by society is in large part because of their

contravention of gender norms and stereotypes. 6

There can be no doubt that Virginia’s marriage bans contain explicit gender

classifications. They only allow a person to marry if the person’s sex is different from that of the

person’s intended spouse. Such a distinction requires heightened scrutiny. United States v.

Virginia , 518 U.S. 515, 555 (1996) (“The Fourth Circuit plainly erred in exposing Virginia’s

VWIL plan to a deferential analysis, for ‘all gender-based classifications today’ warrant

‘heightened scrutiny.’” (quoting J.E.B. v. Ala. ex rel. T.B. , 511 U.S. 127, 136 (1994)); Nev. Dep’t

of Human Res. v. Hibbs , 538 U.S. 721, 728 (2003) (‘Statutory classifications that distinguish between males and females are subject to heightened scrutiny.”). “‘[O]ur Nation has had a long

and unfortunate history of sex discrimination,’ . . . a history which warrants the heightened

scrutiny we afford all gender-based classifications today.” J.E.B. v. Ala. ex rel. T.B. , 511 U.S.

127, 136 (1994) (quoting Frontiero , 411 U.S. at 684). 7

6 See Perry , 704 F. Supp. 2d at 996; see also Prowel v. Wise Bus. Forms, Inc ., 579 F.3d 285, 291(3d Cir. 2008) (reversing summary judgment for the employer on the gay male employee’s claimof discrimination based on failure to conform to gender stereotypes; “the line between sexualorientation discrimination and discrimination ‘because of sex’ can be difficult to draw.”);Centola v. Potter , 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Sexual orientation harassment isoften, if not always, motivated by a desire to enforce heterosexually defined gender norms. Infact, stereotypes about homosexuality are directly related to our stereotypes about the properroles of men and women.”); Andrew Koppelman, Why Discrimination Against Lesbians andGay Men Is Sex Discrimination, 69. N.Y.U. L. Rev. 197, 202-03 (1994) (“In the same way thatthe prohibition of miscegenation preserved the polarities of race on which white supremacyrested, the prohibition of homosexuality preserves the polarities of gender on which rests thesubordination of women. . . . [S]tigmatization of gays in contemporary American societyfunctions as part of a larger system of social control based on gender.”).

7 Virginia’s restriction on marriage is no less invidious because it equally denies men andwomen the right to marry a same-sex life partner. Loving discarded “the notion that the mere‘equal application’ of a statute containing racial classifications is enough to remove theclassifications from the Fourteenth Amendment’s proscription of all invidious racialdiscriminations.” 388 U.S. at 8; see also McLaughlin v. Florida , 379 U.S. 184, 191 (1964)


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Virginia’s marriage bans should be subject to heightened scrutiny for the additional

reason that they reflect and seek to enforce the perpetuation of sex stereotypes in life roles,

which the Supreme Court has held to be constitutionally impermissible. See, e.g., Virginia , 518

U.S. at 533 (justifications for gender classifications “must not rely on overbroad generalizations

about the different talents, capacities, or preferences of males and females”); Califano v.

Webster , 430 U.S. 313, 317 (1977) (under heightened scrutiny, a court looks at whether a gender

classification is the “result of ‘archaic and overbroad generalizations’ about women or of ‘the

role-typing society has long imposed’ upon women”).

Indeed, one of the asserted justifications for Virginia’s marriage bans is the notion that“optimal parenting” requires two parents of different sexes. See Ans. ¶¶ 62, 68. As discussed

below, that premise flies in the face of the overwhelming scientific consensus that has developed

through decades of rigorous studies. See infra Argument, Part I.D.3. As the Supreme Court of

Iowa explained: “The research appears to strongly support the conclusion that same-sex couples

foster the same wholesome environment as opposite-sex couples and suggests that the traditional

notion that children need a mother and a father to be raised into healthy, well-adjusted adults is

based more on stereotype than anything else.” Varnum , 763 N.W.2d at 899 n.26. A law

enforcing that stereotype must be subjected to heightened scrutiny.

(holding that equal protection analysis “does not end with a showing of equal application amongthe members of the class defined by the legislation”), and J.E.B. v. Ala. ex rel. T.B. , 511 U.S. 127(1994) (holding that the government may not strike jurors based on sex, even though such a

practice, as a whole, does not favor one sex over the other). Nor was the context of race centralto Loving ’s holding, which expressly found that, even if race discrimination had not been at playand the Court presumed “an even-handed state purpose to protect the integrity of all races,”Virginia’s anti-miscegenation statute still was “repugnant to the Fourteenth Amendment.” Id. at12 n.11.


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As a result of these decisions and attendant legislative reforms, laws relating to marriage

have become wholly gender-neutral, apart from their frequent exclusion of same-sex couples.

Men and women entering into marriage today have the liberty to determine for themselves the

responsibilities each will shoulder as parents, wage earners, and family decision-makers,

regardless of whether these responsibilities conform to or depart from traditional arrangements.

Laws based on the assumption that, for every family, the spousal and parental roles have to be

performed by a man and a woman must be tested under heightened scrutiny.

C. Virginia’s Constitutional Marriage Ban Also Is Constitutionally SuspectBecause it Locks Same-Sex Couples Out of the Normal Political Process and

Makes it Uniquely More Difficult to Secure Legislation on Their Behalf.The Virginia marriage ban is unconstitutional for an additional reason: it discriminatorily

fences out of the normal political process any citizen of the Commonwealth seeking to change

the law to allow marriage for same-sex couples by enshrining Virginia’s exclusion of same-sex

couples from marriage—and none of Virginia’s other marriage regulations—in the Virginia

Constitution. Unlike a citizen seeking to effect a different change in the Commonwealth’s

marriage eligibility rules, such as someone wishing to lower the age at which persons may marry

without parental consent (currently age 18 under Va. Code Ann. § 20-45.1), Plaintiffs cannot

simply lobby the General Assembly to change the Virginia Code. Instead, they are uniquely

burdened with having to amend the Virginia Constitution.

It is well established that such a selective disparity in the ability to advocate for a change

in the law, disadvantaging a single class of people, is constitutionally suspect. See Washington v.

Seattle Sch. Dist. No. 1 , 458 U.S. 457 (1982); Hunter v. Erickson , 393 U.S. 385 (1969); Coal. to

“[n]o longer is the female destined solely for the home and the rearing of the family, and only themale for the marketplace and the world of ideas”).


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Defend Affirmative Action v. Regents of the Univ. of Mich. , 701 F.3d 466, 477 (6th Cir. 2012) (en

banc), cert. granted sub nom. Schuette v. Coal. to Defend Affirmative Action (No. 12-682); Evans

v. Romer , 882 P.2d 1335 (Colo. 1994), aff’d on other grounds 517 U.S. 620, 633 (1996). Thus,

as Justice Harlan put it in Hunter , there is a clear distinction between general rules of

governance, such as the procedure for passing a law or amending a state constitution, that are

presumptively valid even if they sometimes make it more difficult for a particular group to

further its aims, and a law structured to prevent one single group from achieving its goals. 393

U.S. at 393 (Harlan, J., concurring). The latter type of provision has “the clear purpose of

making it more difficult for . . . minorities to further their political aims” and thus isdiscriminatory on its face. Id. ; see also Seattle Sch. Dist. No. 1 , 458 U.S. at 470 (adopting

Justice Harlan’s concurrence); Evans , 882 P.2d at 1339 (“[T]he Equal Protection Clause of the

United States Constitution protects the fundamental right to participate equally in the political

process, and . . . any legislation or state constitutional amendment which infringes on this right

by ‘fencing out’ an independently identifiable class of persons must be subject to strict judicial

scrutiny.” (internal quotation marks and citation omitted)).

Legislative history makes clear that the reason the marriage bans were incorporated into

the Virginia Constitution was a recognition that the reversal of statutory bans was a central goal

of lesbians and gay men—and a desire to thwart the efforts of people like Plaintiffs to persuade a

majority of their elected representatives to change the law. Like the constitutional amendment at

issue in Coalition to Defend Affirmative Action , Virginia’s constitutional marriage ban creates a

“comparative structural burden,” 701 F.3d at 470, imposed by the majority on the minority to

prevent them from using the normal processes of democratic governance to achieve their goals.


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Such a selective burden “undermines the Equal Protection Clause’s guarantee that all citizens

ought to have equal access to the tools of political change.” Coal. to Defend , 701 F.3d at 470.

D. Virginia’s Marriage Bans Are Unconstitutional Under Any Standard of

Review.If the requisite heightened scrutiny is applied, there is no possibility that Virginia

marriage bans can be viewed as consistent with the Commonwealth’s duty to accord equal

protection of the laws to all persons. But, regardless of whether heightened scrutiny is applied,

the marriage bans violate the Constitution’s equal protection guarantee. “Even in the ordinary

equal protection case calling for the most deferential of standards, [the Court] insist[s] on

knowing the relation between the classification adopted and the object to be attained.”

Romer , 517 U.S. at 632. “[S]ome objectives . . . are not legitimate state interests” and, even

when a law is justified by an ostensibly legitimate purpose, “[t]he State may not rely on a

classification whose relationship to an asserted goal is so attenuated as to render the distinction

arbitrary or irrational.” Cleburne , 473 U.S. at 446-47. “Because all, or almost all, state action

results in some persons being benefitted while others are burdened, the Equal Protection Clause

stands to ensure that the line drawn between the two groups has some modicum of principled

validity, through its scrutiny of both the purpose animating the statute as well as the way the line

is set.” Smith Setzer & Sons, Inc. v. S.C. Procurement Rev. Panel , 20 F.3d 1311, 1321 (4th Cir.

1994).

At the most basic level, by requiring that classifications be justified by an independent

and legitimate purpose, the Equal Protection Clause prohibits classifications from being drawn

for “the purpose of disadvantaging the group burdened by the law.” Romer , 517 U.S. at 633; see

also Windsor , 133 S. Ct. at 2693; Cleburne , 473 U.S. at 450; U.S. Dep’t of Agriculture v.

Moreno , 413 U.S. 528, 534 (1973). The Supreme Court invoked this principle most recently in


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Windsor when it held that the principal provision of the federal Defense of Marriage Act

(“DOMA”) violated equal protection principles because the “purpose and practical effect of the

law . . . [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into

same-sex marriages.” Windsor , 133 S. Ct. at 2693. The Court explained that the statute was not

sufficiently connected to a legitimate governmental purpose because its “interference with the

equal dignity of same-sex marriages . . . was more than an incidental effect of the federal statute.

It was its essence.” Id. The Supreme Court has sometimes described this impermissible purpose

as “animus” or a “bare … desire to harm a politically unpopular group.” Windsor , 133 S. Ct. at

2693; Romer , 517 U.S. at 633; Cleburne , 473 U.S. at 447; Moreno , 413 U.S. at 534. But animpermissible motive does not always reflect “malicious ill will.” Bd. of Trustees of Univ. of

Ala. v. Garrett , 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). It can also take the form of

“negative attitudes,” Cleburne , 473 U.S. at 448, “fear,” id. , “irrational prejudice,” id. at 450, or

“some instinctive mechanism to guard against people who appear to be different in some respects

from ourselves,” Garrett , 531 U.S. at 374 (Kennedy, J., concurring). 9

9 In determining whether a law is based on such an impermissible purpose, the Court has lookedto a variety of direct and circumstantial evidence, including the text of a statute and its obvious

practical effects, see, e.g. , Windsor , 133 S. Ct. at 2693; Romer , 517 U.S at 633; Village of Arlington Heights v. Metro. Housing Dev. Corp. , 429 U.S. 252, 266-68 (1977), statements bylegislators during floor debates or committee reports, see, e.g. , Windsor , 133 S. Ct. at 2693;

Moreno, 413 U.S. at 534-35, the historical background of the challenged statute, see, e.g. ,Windsor , 133 S. Ct. at 2693; Arlington Heights , 429 U.S. at 266-68, and a history ofdiscrimination by the relevant governmental entity, see, e.g. Arlington Heights , 429 U.S. at 266-68. Finally, even without direct evidence of discriminatory intent, the absence of any logicalconnection to a legitimate purpose can lead to an inference of an impermissible intent todiscriminate. See Romer , 517 U.S. at 632 (reasoning that the law’s “sheer breadth is sodiscontinuous with the reasons offered for it that the amendment seems inexplicable by anything

but animus toward the class it affects”); Cleburne , 473 U.S. at 448-50 (reasoning that because ahome for developmentally disabled adults did posed no threat to city’s interests other than thosealso posed by permitted uses, requiring a special zoning permit in this case “appears to us to reston an irrational prejudice”).


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In addition, even when the government offers an ostensibly legitimate purpose, “the

simple articulation of a justification for a challenged classification does not conclude the judicial

inquiry.” Phan v. Com. of Va. , 806 F.2d 516, 521 n.6 (4th Cir. 1986). The court must also

examine the statute’s connection to that purpose to assess whether it is too “attenuated” to

rationally advance the asserted governmental interest. Cleburne , 473 U.S. at 446; see, e.g. ,

Moreno , 413 U.S. at 535-36 (invalidating law on rational-basis review because “even if we were

to accept as rational the Government’s wholly unsubstantiated assumptions concerning [hippies]

. . . we still could not agree with the Government’s conclusion that the denial of essential federal

food assistance . . . constitutes a rational effort to deal with these concerns”); Eisenstadt v. Baird ,405 U.S. 438, 448-49 (1972) (invalidating law on rational-basis review because, even if deterring

premarital sex is a legitimate governmental interest, “the effect of the ban on distribution of

contraceptives to unmarried persons has at best a marginal relation to the proffered objective”);

see also Manwani v. U.S. Dep’t of Justice , 736 F. Supp. 1367, 1390 (W.D.N.C. 1990) (“[T]he

government must do more than articulate reasons why the stated purpose . . . is rational. The

inquiry that is constitutionally required is whether Congress’ response . . . rationally furthers the

congressional purpose.”) (emphasis in original). This search for a meaningful connection

between a classification and the asserted governmental interest also provides an additional

safeguard against intentional discrimination. As the Supreme Court has explained, “[b]y

requiring that the classification bear a rational relationship to an independent and legitimate

legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the

group burdened by the law.” Romer , 517 U.S. at 633. 10

10 The Supreme Court has been particularly likely to find a classification too attenuated to servean asserted government interest when the law imposes a sweeping disadvantage on a group that


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Virginia’s marriage bans share all the hallmarks of irrational discrimination that have

been present in prior Supreme Court cases that struck down laws violating even the lowest level

of equal protection scrutiny. Even if the Court does not apply heightened scrutiny (although it

should), none of the proffered rationales for Virginia’s marriage bans can withstand

constitutional review.

1. Virginia’s Marriage Bans Cannot Be Justified by an Asserted Interestin Maintaining a Traditional Definition of Marriage.

In order to survive constitutional scrutiny, Virginia’s marriage bans must be justified by

some legitimate state interest other than simply maintaining a “traditional” definition of

marriage. “Ancient lineage of a legal concept does not give it immunity from attack for lacking

a rational basis.” Heller v. Doe by Doe , 509 U.S. 312, 326-27 (1993). Indeed, the fact that a

form of discrimination has been “traditional” is a reason to be more skeptical of its rationality.

“The Court must be especially vigilant in evaluating the rationality of any classification

involving a group that has been subjected to a tradition of disfavor for a traditional classification

is more likely to be used without pausing to consider its justification than is a newly created

classification.” Cleburne , 473 U.S. at 454 n.6 (Stevens, J., concurring) (alterations incorporated;

is grossly out of proportion to accomplishing that purpose. For example, in Romer , the Courtinvalidated a Colorado constitutional amendment excluding gay people from eligibility fornondiscrimination protections because, the law “identifie[d] persons by a single trait and thendenie[d] them protection across the board.” 517 U.S. at 633. Similarly, in Windsor the SupremeCourt invalidated the challenged section of DOMA as not sufficiently related to any legitimate

governmental purpose in part because it was “a system-wide enactment with no identifiedconnection” to any particular government program. Windsor , 133 S. Ct. at 2694. In suchsituations, the law’s breadth may “outrun and belie any legitimate justifications that may beclaimed for it.” Romer , 517 U.S. at 635; see also id . (“The breadth of the amendment is so farremoved from these particular justifications that we find it impossible to credit them.”).Virginia’s sweeping marriage bans likewise exclude same-sex couples and their children system-wide from the protections and benefits afforded married couples and their families underVirginia and federal law.


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internal quotation marks omitted); see also Marsh v. Chambers , 463 U.S. 183, 791-92 (1983)

(even longstanding practice should not be “taken thoughtlessly, by force of long tradition and

without regard to the problems posed by a pluralistic society”); In re Marriage Cases , 183 P.3d

at 853-54 (“[E]ven the most familiar and generally accepted of social practices and traditions

often mask an unfairness and inequality that frequently is not recognized or appreciated by those

not directly harmed by those practices or traditions.”). As the Supreme Court has explained,

“times can blind us to certain truths and later generations can see that laws once thought

necessary and proper in fact serve only to oppress.” Lawrence , 539 U.S. at 579.

Regarding laws that exclude same-sex couples from marriage, “the justification of‘tradition’ does not explain the classification; it merely repeats it. Simply put, a history or

tradition of discrimination — no matter how entrenched — does not make the discrimination

constitutional. . . .” Kerrigan , 957 A.2d at 478 (citation omitted); accord Goodridge v. Dep’t of

Pub. Health , 798 N.E.2d 941, 961 n.23 (Mass. 2003) (“[I]t is circular reasoning, not analysis, to

maintain that marriage must remain a heterosexual institution because that is what it historically

has been.”); Varnum , 763 N.W.2d at 898 (asking “whether restricting marriage to opposite-sex

couples accomplishes the governmental objective of maintaining opposite-sex marriage” results

in “empty analysis”); see also Golinski , 824 F. Supp. 2d at 993 (“Tradition alone . . . cannot form

an adequate justification for a law. . . . Instead, the government must have an interest separate

and apart from the fact of tradition itself.”) (citations omitted).

Ultimately, “‘preserving the traditional institution of marriage’ is just a kinder way of

describing the [s]tate’s moral disapproval of same-sex couples.” Lawrence , 539 U.S. at 601

(Scalia, J., dissenting) (emphasis in original). That intent to discriminate is not a rational basis


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responsible procreation. See Ans. ¶ 64 (asserting that “the inquiry is not whether a same sex

marriage interferes with the purposes advanced by the traditional classification but whether it

advances them”). That argument fails on multiple levels.

As an initial matter, Defendant Rainey’s assertion that the governmental interest in

responsible procreation somehow does not apply to gay people is simply wrong. Lesbian and

gay couples have children through assisted reproduction and through adoption, and the

government has just as strong an interest in encouraging such procreation and child-rearing to

take place in the stable context of marriage. See Varnum , 763 N.W.2d at 902 (“Conceptually,

the promotion of procreation as an objective of marriage is compatible with the inclusion of gaysand lesbians within the definition of marriage. Gay and lesbian persons are capable of

procreation.”); In re Marriage Cases , 183 P.3d at 433 (“[A] stable two-parent family

relationship, supported by the state’s official recognition and protection, is equally as important

for the numerous children . . . who are being raised by same-sex couples as for those children

being raised by opposite-sex couples (whether they are biological parents or adoptive parents).”);

see also Pedersen , 881 F. Supp. 2d at 339 (“Assuming, as Congress has, that the marital context

provides the optimal environment to rear children as opposed to non-marital circumstances, it is

irrational to strive to incentivize the rearing of children within the marital context by affording

benefits to one class of marital unions in which children may be reared while denying the very

same benefits to another class of marriages in which children may also be reared.”).

Alternatively, by invoking an interest in “responsible procreation,” Defendant Rainey

may be alluding to the “accidental procreation” theory that was adopted by some courts in the

previous decade as a basis for limiting marriage to heterosexual couples. According to this

theory, the purpose of marriage is ostensibly to ensure that couples are in stable relationships if


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they accidentally procreate, and because same-sex couples cannot procreate by accident, it is

argued that it is rational not to include same-sex couples within the definition of marriage. See,

e.g. , Hernandez v. Robles , 855 N.E.2d 1, 7 (N.Y. 2006). But whether or not encouraging

accidental procreation to take place in the context of a stable relationship might be considered by

some people to be one of the purposes of marriage, it is indisputably not the only purpose that

marriage serves for Virginia families today. “[M]arriage is more than a routine classification for

purposes of certain statutory benefits” and is “a far-reaching legal acknowledgment of the

intimate relationship between two people.” Windsor , 133 S. Ct. at 2692. Marriage in Virginia is

tied a wide array of governmental programs and protections that have nothing to do with procreation (let alone, accidental procreation). See supra Background, Part II.B; see also In re

Marriage Cases , 183 P.3d at 432 (“[A]lthough promoting and facilitating a stable environment

for the procreation and raising of children is unquestionably one of the vitally important purposes

underlying the institution of marriage and the constitutional right to marry . . . this right is not

confined to, or restrictively defined by, that purpose alone.”).

The fact that same-sex couples cannot procreate by accident does not provide a rational

basis for excluding those couples from all the other protections that marriage provides in modern

society. Under rational-basis review, it is not enough for the government to identify some

difference between two classes; it must be “‘a ground of difference having a fair and substantial

relation to the object of the legislation.’” Sylvia Dev. Corp. v. Calvert County , 48 F.3d 810, 818

(4th Cir. 1995) (quoting Royster Guano Co. v. Virginia , 253 U.S. 412, 415 (1920)). As in

Romer , “[t]he breadth of the [marriage bans] is so far removed from these particular

justifications that [it is] impossible to credit them.” Romer , 517 U.S. at 635; see also Eisenstadt ,

405 U.S. at 449 (finding law discriminating between married and unmarried individuals in access


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to contraceptives “so riddled with exceptions” that the interest claimed by the government

“cannot reasonably be regarded as its aim”).

In any event, Virginia’s marriage bans simply do not classify based on the ability to

accidentally procreate; they classify based on the sex of the partners regardless of their

procreative abilities. See Lawrence , 539 U.S. at 604 (Scalia, J., dissenting) (“[W]hat justification

could there possibly be for denying the benefits of marriage to homosexual couples exercising

‘[t]he liberty protected by the Constitution’? Surely not the encouragement of procreation, since

the sterile and the elderly are allowed to marry.”). Because Virginia does not condition the right

to marry on procreative ability, the Commonwealth cannot selectively rely on accidental procreation only when it comes to same-sex couples. Cf. Cleburne , 473 U.S. at 450 (“[T]he

expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of

danger to other residents fail rationally to justify singling out a home [for people with

disabilities] for the special use permit, yet imposing no such restrictions on the many other uses

freely permitted in the neighborhood.”).

In a variation of the “accidental procreation” argument, Defendant Rainey also draws on

Justice Alito’s dissenting opinion in Windsor to argue that it is not irrational for Virginia to

choose to adopt a “conjugal” vision of marriage instead of a “consent-based” vision. Def. Ans.

¶¶ 101-04, 107-10; Windsor , 133 S. Ct. at 2718 (Alito, J., dissenting) (contrasting a “conjugal”

or “traditional” view, which “sees marriage as an intrinsically opposite-sex institution” that is

“inextricably linked to procreation and biological kinship,” and a “consent-based” vision, which

sees marriage as “the solemnization of mutual commitment” between two persons). Framing this

argument in philosophical terms does not rescue this procreation-based rationale. It fails for all

of the same reasons discussed above. Moreover, Virginia has long held the “consent-based”


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vision of marriage for heterosexual couples. See supra Background, Part II.A (discussing history

of Virginia laws creating gender parity in marriage, abolishing doctrine of coverture, and

instituting no-fault divorce). As Justice Alito noted, “[a]t least as it applies to heterosexual

couples, this [consent-based] view of marriage now plays a very prominent role in the popular

understanding of the institution. Indeed, our popular culture is infused with this understanding of

marriage.” Windsor , 133 S. Ct. at 2718 (Alito, J., dissenting).

On this equal-protection challenge, the question is not whether Virginia may in the

abstract adopt a “conjugal view” of marriage for everyone, but whether Virginia may impose a

“conjugal” vision of marriage when it comes to the rights of same-sex couples while adopting aconsent-based vision of marriage for everyone else. See Eisenstadt , 405 U.S. at 454 ( quoting Ry.

Express Agency v. New York , 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring)); accord

Lawrence , 539 U.S. at 585 (O’Connor, J., concurring).

3. Virginia’s Marriage Bans Cannot Be Justified by an Asserted Interestin “Optimal Childrearing.”

Defendant Rainey asserts that Virginia’s marriage bans also are justified by a state

interest in optimal parenting, which presumably refers to the notion that it is in the best interest

of children to be raised by married heterosexual parents rather than by two parents of the same

sex. But even if it were rational for legislators to speculate that children raised by heterosexual

couples are better adjusted than children raised by gay ones—and it is not—there is simply no

rational connection between Virginia’s marriage bans and the asserted goal. As Defendant

Rainey concedes, the marriage bans are not “law[s] respecting parenting.” Ans. ¶ 70. Virginia’s

marriage bans do not prevent gay couples from having children. And excluding same-sex

couples from marrying does nothing to prevent heterosexual couples from procreating out of

wedlock or encourage them to procreate within marriage. See Windsor , 699 F.3d at 188;


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Golinski , 824 F. Supp. 2d at 998; Pedersen , 881 F. Supp. 2d at 340-41; Varnum , 763 N.W.2d at

901.

The only effect that Virginia’s marriage bans have on children’s well-being is that they

harm the children of same-sex couples who are denied the protection and stability of having

parents who are married. See, e.g. , SUF ¶¶ 3, 4, 10, 13-14. Like the DOMA statute invalidated

in Windsor , Virginia’s marriage bans serve only to “humiliate” the “children now being raised

by same-sex couples” and “make[] it even more difficult for the children to understand the

integrity and closeness of their own family and its concord with other families in their

community and in their daily lives.” Windsor , 133 S. Ct. at 2694; see also, e.g. , SUF ¶¶ 3, 14.“Excluding same-sex couples from civil marriage will not make children of opposite-sex

marriages more secure, but it does prevent children of same-sex couples from enjoying the

immeasurable advantages that flow from the assurance of a stable family structure in which

children will be reared, educated, and socialized.” Goodridge , 798 N.E.2d at 964 (internal

quotation marks and citation omitted)). To the extent that Virginia’s marriage bans visit these

harms on children as a way to attempt (albeit irrationally) to deter other same-sex couples from

having children, the Supreme Court has invalidated similar attempts to incentivize parents by

punishing children as “‘illogical and unjust.’” Plyler , 457 U.S. at 220 (quoting Weber v. Aetna

Cas. & Sur. Co. , 406 U.S. 164, 175 (1972)). “‘Obviously, no child is responsible for his birth

and penalizing the . . . child is an ineffectual—as well as unjust—way of deterring the parent.’”

Id. (quoting Weber , 406 U.S. at 175). 11

11Moreover, any law adopted with the purpose of burdening gay people’s ability to procreatewould also demand strict scrutiny for implicating the fundamental right to decide “‘whether to

bear or beget a child.’” Planned Parenthood of SE Penn. v. Casey , 505 U.S. 833, 851 (1992)(quoting Eisenstadt , 405 U.S. at 453); see Pedersen , 881 F. Supp. 2d at 341.


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The lack of rational connection between the marriage bans and the asserted goals of

encouraging children to be raised by heterosexual couples is sufficient to render the marriage

bans unconstitutional, even without considering whether the government has a legitimate basis

for preferring different-sex over same-sex parents. But the overwhelming scientific consensus,

based on decades of peer-reviewed scientific research, shows unequivocally that children raised

by same-sex couples are just as well adjusted as those raised by heterosexual couples. This

consensus has been recognized by every major professional organization dedicated to children’s

health and welfare, including the American Academy of Pediatrics, American Academy of Child

and Adolescent Psychiatry, the American Psychiatric Association, the American PsychologicalAssociation, the American Psychoanalytic Association, and the Child Welfare League of

America. See United States v. Windsor , No. 12-307, Brief of the American Psychological

Association, et al. , as Amici Curiae on the Merits in Support of Affirmance, 2013 WL 871958, at

*14-26 (Mar. 1, 2013) (discussing this scientific consensus); Hollingsworth v. Perry , No. 12-144,

and United States v. Windsor , No. 12-307, Brief of the American Sociological Ass’n, in Support

of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor, 2013 WL 840004, at

*6-14 (Feb. 28, 2013).

This consensus has also been recognized by numerous courts. See Perry , 704 F. Supp. 2d

at 980 (finding that the research supporting the conclusion that “[c]hildren raised by gay or

lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful

and well-adjusted” is “accepted beyond serious debate in the field of developmental

psychology”); In re Adoption of Doe , 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008)

(“[B]ased on the robust nature of the evidence available in the field, this Court is satisfied that

the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests


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of children are not preserved by prohibiting homosexual adoption.”), aff’d sub nom. Fla. Dep’t of

Children & Families v. Adoption of X.X.G. , 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v.

Child Welfare Agency Rev. Bd. , Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL

3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the

well-being of children of gay parents that “there was no rational relationship between the

[exclusion of gay people as foster parents] and the health, safety, and welfare of the foster

children.”), aff’d sub nom. Dep’t of Human Servs. v. Howard , 238 S.W.3d 1 (Ark. 2006);

Varnum , 763 N.W.2d at 899 and n.26 (concluding, after reviewing “an abundance of evidence

and research,” that “opinions that dual-gender parenting is the optimal environment for children .. . is based more on stereotype than anything else”); Golinski , 824 F. Supp. 2d at 991 (“More

than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have

overwhelmingly demonstrated that children raised by same-sex parents are as likely to be

emotionally healthy, and educationally and socially successful as those raised by opposite-sex

parents.”).

In any event, even without considering the scientific consensus regarding parenting by

same-sex couples, the marriage bans still fail constitutional review as a matter of law because

there is no rational connection between the marriage bans and the asserted governmental interest

in optimal parenting, Children being raised by different-sex couples are unaffected by whether

same-sex couples can marry, and children raised by same-sex couples will not end up being

raised by different-sex couples because their current parents cannot marry. See Golinski , 824 F.

Supp. 2d at 997 (“Even if the Court were to accept as true, which it does not, that opposite-sex

parenting is somehow superior to same-sex parenting, DOMA is not rationally related to this


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alleged governmental interest.”); accord Windsor , 699 F.3d at 188; Pedersen , 881 F. Supp. 2d at

340-41; Varnum , 763 N.W.2d at 901.

4. No Legitimate Interest Overcomes the Primary Purpose and Practical

Effect of Virginia’s Marriage Bans to Disparage and Demean Same-Sex Couples and Their Families.

Because there is no rational connection between Virginia’s marriage bans and any of the

asserted state interests, this Court can conclude that the marriage bans violate equal protection

even without considering whether they are motivated by an impermissible purpose. See Vill. of

Willowbrook v. Olech , 528 U.S. 562, 565 (2000) (allegations of irrational discrimination “quite

apart from the Village’s subjective motivation, are sufficient to state a claim for relief under

traditional equal protection analysis”). In this case, however, the lack of any connection between

Virginia’s marriage bans and any legitimate state interest also confirms the inescapable

conclusion that they were passed—and reaffirmed multiple times—because of, not in spite of,

the harm they would inflict on same-sex couples. And, even if it were possible to hypothesize a

rational connection between Virginia’s marriage bans and some legitimate governmental

interest—and there is none—Virginia’s marriage bans would still violate equal protection

because no hypothetical justification can overcome the unmistakable primary purpose and

practical effect of the marriage bans to disparage and demean the dignity of same-sex couples in

the eyes of the Commonwealth and the wider community.

The Supreme Court in Windsor recently reaffirmed that when the primary purpose and

effect of a law is to harm an identifiable group, the fact that the law may also incidentally serve

some other neutral governmental interest cannot save it from unconstitutionality. In defending

the constitutionality of DOMA, the Bipartisan Legal Advisory Group (“BLAG”) argued that the

statute helped serve a variety of federal interests in promoting efficiency and uniformity, as well


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as the same purported state interests that Defendant Rainey relies upon in this case. According

to BLAG’s merits brief:

Congress could rationally decide to retain the traditional definition for the same basic

reasons that states adopted the traditional definition in the first place and that manycontinue to retain it: There is a unique relationship between marriage and procreation thatstems from marriage’s origins as a means to address the tendency of opposite-sexrelationships to produce unintended and unplanned offspring. There is nothing irrationalabout declining to extend marriage to same-sex relationships that, whatever their othersimilarities to opposite-sex relationships, simply do not share that same tendency.Congress likewise could rationally decide to foster relationships in which children areraised by both of their biological parents.

See Merits Brief of Bipartisan Legal Advisory Group in United States v. Windsor , 2013 WL

267026, at *21 (2013). But the Supreme Court held that none of BLAG’s rationalizations could

save the law. The Court explained that “[t]he principal purpose [of DOMA] [was] to impose

inequality, not for other reasons like governmental efficiency,” and “no legitimate purpose

overcomes the purpose and effect to disparage and injure” same-sex couples and their families.

Windsor , 133 S. Ct at 2694, 2696; see also Vance v. Bradley , 440 U.S. 93, 97 (1979) (rational-

basis review is deferential “absent some reason to infer antipathy”); Lawrence , 539 U.S. at 580

(O’Connor, J., concurring) (“When a law exhibits such a desire to harm a politically unpopular

group, we have applied a more searching form of rational basis review to strike down such laws

under the Equal Protection Clause.”).

It is indisputable that Virginia’s marriage bans were enacted because of, not in spite, of

their adverse effect on same-sex couples. Although courts are reluctant to examine the intent

behind legislation in other contexts, when a constitutional claim is based on equal protection,

legislative intent “may be relevant insofar as the Court has held that unlawful motive is a specific

element of the test of constitutionality.” S.C. Educ. Ass’n v. Campbell , 883 F.2d 1251, 1259 n.6

(4th Cir. 1989); see Sylvia Dev. Corp. , 48 F.3d at 819 (discussing “factors [that] have been


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recognized as probative of whether a decisionmaking body was motivated by a discriminatory

intent”).

The historical background of each of the marriage bans reflects a targeted attempt to

exclude same-sex couples, not a mere side-effect of some broader public policy. Cf. Windsor ,

133 S. Ct. at 2693 (examining historical context of DOMA); Arlington Heights , 429 U.S. at 266-

67 (explaining “historical background of the decision” is relevant when determining legislative

intent). The marriage bans were not enacted long ago at a time when “many citizens had not

even considered the possibility that two persons of the same sex might aspire to occupy the same

status and dignity as that of a man and woman in lawful marriage.” Windsor , 133 S. Ct. at 2689.They were enacted as specific responses to developments in other jurisdictions where same-sex

couples sought the freedom to marry. See supra Background, Part I. In each case, the marriage

bans did not simply represent a failure to include same-sex couples within the broader public

policies advanced by marriage; they were specific, targeted efforts to exclude same-sex couples.

Indeed, in targeting the relationships of same-sex couples as unworthy of equal dignity

and respect, the marriage bans were just part of a broader Virginia public policy to disparage gay

people and same-sex couples by declaring their sexual intimacy to be punishable as “crimes

against nature.” VA Code Ann. § 18.2-361(A). Like other sodomy statutes, Virginia’s ban

imposed a far-reaching social stigma on gay people that serves as an “invitation to subject

homosexual persons to discrimination both in the public and in the private spheres.” Lawrence ,

539 U.S. at 575. 12

12 Most dramatically, the criminal sodomy ban was frequently invoked by Virginia courts infamily law disputes to deny gay people custody of their children. In 1985, the Virginia SupremeCourt held that awarding custody to a gay father who shared a bedroom with his partner—oreven allowing visitation in the father’s home—“flies in the face . . . of society’s mores.” Roe v.


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The legislative debates similarly reflect an intent to disparage same-sex relationships as

“counterfeit” or “imitation[]” marriages driven solely by “sexual interest[s] or appetites.” See

Gaber Dec. ¶¶ 11, 20, 21. Most tellingly, as discussed above, although the proponents of the

constitutional amendment initially included a “Savings Clause” to clarify that the amendment did

not alter “[a]ny other right, benefit, obligation, or legal status” of unmarried persons—such as

the ability to control who may make medical decisions on one’s behalf—that purported “Savings

Clause” was stricken from the bill (along with an introductory provision setting forth the

purported purposes of marriage) and sweeping new language was added, barring creation or

recognition of relationships “that intend[] to approximate the design, qualities, significance, oreffects of marriage.” See supra Background, Part I. The legislature adopted these modifications

despite warnings from the one of the bill’s chief sponsors that doing so would support arguments

Roe , 228 Va. 722, 726 (1985) (internal quotation marks omitted). The court reasoned that thefather’s “immoral and illicit relationship render[ed] him an unfit and improper custodian as amatter of law;” described the “relative degree of abhorrence by which our society regards” same-sex relationships by pointing to Virginia’s felony sodomy law, “which is prosecuted withconsiderable frequency and vigor;” and claimed that the father’s relationship placed an“intolerable burden upon [the daughter] by reason of the social condemnation attached to them.”

Id. at 727-28. In another widely publicized case, a Virginia trial court in 1993 granted agrandmother’s petition to take Sharon Bottoms’ son away from her because, as the trial court

judge explained, her lesbian “conduct is illegal . . . a Class 6 felony in the Commonwealth ofVirginia.” Bottoms v. Bottoms , 457 S.E.2d 102, 109 (Va. 1995) (Keenan, J., dissenting) (quotingtrial transcript); see id . (trial judge went on to declare “that her conduct is immoral” and “rendersher an unfit parent.”). The Virginia Supreme Court upheld the trial court’s decision terminatingthe mother’s custody despite the presumption favoring her as a natural parent. Among thefactors it relied on was its assumption that having a lesbian mother would subject the child tosocial condemnation and thus disturb his relationships with peers and the community at large.

Id. at 419-420.After the Supreme Court invalidated Texas’s criminal sodomy statute in Lawrence , a bill

was introduced in the Virginia Senate in 2004 to bring Virginia’s statute into compliance withthe Constitution, but Virginia’s legislature refused to remove the unconstitutional andstigmatizing law from its books during the same legislative session that it passed the MarriageAffirmation Act. See Virginia Legislative Information System, 2004 Session, Senate Bill 477,available at http://lis.virginia.gov/cgi-bin/legp604.exe?041+sum+SB477.


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that the legislature was motivated primarily by animus toward gay people. See Gaber Dec. at ¶¶

14-16.

In addition to all the other contemporaneous evidence of an impermissible purpose, the

inescapable “practical effect” of Virginia’s marriage bans is “to impose a disadvantage, a

separate status, and so a stigma upon” same-sex couples in the eyes of the state and the broader

community. Windsor , 133 S. Ct at 2693; see also Heckler v. Mathews , 465 U.S. 728, 739-40

(1984) (“[A]s we have repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and

stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’

and therefore as less worthy participants in the political community . . . can cause seriousnoneconomic injuries to those persons who are personally denied equal treatment solely because

of their membership in a disfavored group.”) (footnote and citations omitted). The marriage bans

collectively “diminish[] the stability and predictability of basic personal relations” of gay people

and “demeans the couple, whose moral and sexual choices the Constitution protects.” Windsor ,

133 S. Ct. at 2694 (citing Lawrence , 539 U.S. 558 (2003)). The marriage bans thus constitute an

“official statement that the family relationship of same-sex couples is not of comparable stature

or equal dignity to the family relationship of opposite-sex couples” and that “that it is

permissible, under the law, for society to treat gay individuals and same-sex couples differently

from, and less favorably than, heterosexual individuals and opposite-sex couples.” In re

Marriage Cases , 183 P.3d 384 at 452. That official statement of inequality is “in and of itself is

an invitation to subject homosexual persons to discrimination both in the public and in the

private spheres.” Lawrence , 539 U.S. at 575.

The unmistakable intent of the marriage bans is to impose inequality on gay people and

their intimate relationships. As noted above, Virginia’s marriage bans are not rationally related


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to any legitimate purpose. But even if there were a rational connection to the marriage bans and

some legitimate purpose, that incidental connection could not “overcome[] the purpose and

effect to disparage and to injure” same-sex couples and their families. Windsor , 133 S. Ct at

2696.

II. Virginia’s Marriage Bans Infringe Plaintiffs’ Fundamental Rights and LibertyInterests and Thus Violate the Guarantees of Due Process and Equal Protection inthe Fourteenth Amendment.

A. The Fundamental Right to Marry Includes the Right to Choose One’s SpouseFree of Unwarranted Interference by the State.

1. The Right to Marry Is a Fundamental Right that Belongs to theIndividual.

“The freedom to marry has long been recognized as one of the vital personal rights

essential to the orderly pursuit of happiness by free men.” Loving , 388 U.S. at 12 (citation

omitted); accord Zablocki v. Redhail, 434 U.S. 374, 383 (1978); see generally Hawkins v.

Freeman , 195 F.3d 732, 747 (4th Cir. 1999) (en banc) (listing the right “to marry” first among

“the relatively few, more generally shared, unenumerated rights that over time have been found

by the Supreme Court (and not without difficulty) to have that ‘fundamental’ quality.”) (citation

omitted). 13

Although states have a legitimate interest in regulating and promoting marriage, the

fundamental right to marry belongs to the individual. “[T]he regulation of constitutionally

13 Many other cases describe the right to marry as fundamental. Turner v. Safley , 482 U.S. 78,95 (1987) (“The decision to marry is a fundamental right”); Moore v. East Cleveland , 431 U.S.494, 503 (1977) (“[T]he Constitution protects the sanctity of the family precisely because theinstitution of the family is deeply rooted in this Nation’s history and tradition”); Griswold v.Connecticut , 381 U.S. 479, 485-486 (1965) (intrusions into the “sacred precincts of marital

bedrooms” offend rights “older than the Bill of Rights”); id ., at 495-496 (Goldberg, J.,concurring) (the law in question “disrupt[ed] the traditional relation of the family--a relation asold and as fundamental as our entire civilization”); see generally Washington v. Glucksberg , 521U.S. 702, 727 n.19 (1997) (citing cases).


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protected decisions, such as where a person shall reside or whom he or she shall marry, must be

predicated on legitimate state concerns other than disagreement with the choice the individual

has made.” Hodgson v. Minnesota ., 497 U.S. 417, 435 (1990); see also Loving , 388 U.S. at 12

(“Under our Constitution, the freedom to marry, or not marry, a person of another race resides

with the individual and cannot be infringed by the State.”); Roberts v. United States Jaycees , 468

U.S. 609, 620 (1984) (““[T]he Constitution undoubtedly imposes constraints on the State’s

power to control the selection of one’s spouse . . . .”).

2. The Scope of a Fundamental Right or Liberty Interest Under the DueProcess Clause Does Not Depend on Who Is Exercising that Right.

This case is about the fundamental right to marry—not, as Defendant Rainey attempts to

reframe the issue, the “right to same sex marriage.” Rainey Ans. at ¶ 118. The Supreme Court

has consistently refused to narrow the scope of the fundamental right to marry by reframing a

plaintiff’s asserted right to marry as a more limited right that is about the characteristics of the

couple seeking marriage. Supreme Court cases addressing “the fundamental right to marry” do

not recast it as merely “the right to interracial marriage,” “the right to inmate marriage,” or “the

right of people owing child support to marry.” See Golinski , 824 F. Supp. 2d at 982 n.5 (citing

Loving , 388 U.S. at 12; Turner , 482 U.S. at 94-96; Zablocki , 434 U.S. at 383-86; accord In re

Marriage Cases , 183 P.3d at 421 n.33 ( Turner “did not characterize the constitutional right at

issue as ‘the right to inmate marriage.’”).

Indeed, Defendant Rainey’s argument is exactly the same argument that the Supreme

Court squarely rejected in Lawrence when it overruled Bowers . Lawrence explained that the

Bowers decision was flawed from the very outset in trying to distinguish the Court’s liberty

interest jurisprudence by characterizing the inquiry as “whether the Federal Constitution confers

a fundamental right upon homosexuals to engage in sodomy.” Lawrence , 539 U.S. at 566-67


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(quoting Bowers , 478 U.S. at 190). In doing so, Bowers “fail[ed] to appreciate the extent of the

liberty at stake,” Lawrence , 539 U.S. at 567, just as does Rainey’s attempt to recharacterize

Plaintiffs’ claims as seeking the “right to same-sex marriage.”

Lawrence held that the right of consenting adults (including same-sex couples) to engage

in private, sexual intimacy is protected by the Fourteenth Amendment’s protection of liberty,

notwithstanding the historical existence of sodomy laws and their use against gay people. For

the same reasons, the fundamental right to marry is “deeply rooted in this Nation's history and

tradition” for purposes of constitutional protection even though same-sex couples have not

historically been allowed to exercise that right. See Ans. ¶ 85. “[H]istory and tradition are thestarting point but not in all cases the ending point of the substantive due process inquiry.”

Lawrence , 539 U.S. at 572 (citation omitted). While courts use history and tradition to identify

the interests that due process protects, they do not carry forward historical limitations, either

traditional or arising by operation of prior law, on which Americans may exercise a right once

that right is recognized as one that due process protects. This critical distinction—that history

guides the what of due process rights, but not the who of which individuals have them—is

central to due process jurisprudence. “‘Fundamental rights, once recognized, cannot be denied to

particular groups on the ground that these groups have historically been denied those rights.’” In

re Marriage Cases , 183 P.3d at 430 (quoting Hernandez , 855 N.E.2d at 23 (Kaye, C.J.,

dissenting) (brackets omitted)).

For example, when the Court held that anti-miscegenation laws violated the fundamental

right to marry in Loving , it did so despite a long tradition of excluding interracial couples from

marriage. See supra Background, Part II.A; Planned Parenthood v. Casey , 505 U.S. 833, 847-48

(1992) (“[I]nterracial marriage was illegal in most States in the 19 th century, but the Court was


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no doubt correct in finding it to be an aspect of liberty protected against state interference by the

substantive component of the Due Process Clause in Loving . . . .”); Lawrence , 539 U.S. at 577-

78 (“[N]either history nor tradition could save a law prohibiting miscegenation from

constitutional attack.”) (citation omitted).

Cases subsequent to Loving have similarly confirmed that the fundamental right to marry

is available to even those who have not traditionally been eligible to exercise that right. The

traditional right to marry did not include a right to divorce and marry a second time, as divorce

was rare and difficult in the eighteenth and early nineteenth centuries in Virginia as elsewhere.

See supra , Background, Part II.A. But in the modern era, the Supreme Court has repeatedlyheld that states may not burden an individual’s right to remarry. Boddie v. Connecticut , 401 U.S.

371, 376 (1971) (states may not require indigent individuals to pay court fees in order to obtain a

divorce, since doing so unduly burdened their fundamental right to marry again); see also

Zablocki , 434 U.S. at 388-90 (state may not condition ability to marry on fulfillment of existing

child support obligations). Similarly, the right to marry as traditionally understood in this

country did not extend to people in prison. See Virginia L. Hardwick, Punishing the Innocent:

Unconstitutional Restrictions on Prison Marriage and Visitation , 60 N.Y.U. L. Rev. 275, 277-79

(1985). Nevertheless, in Turner v. Safley , 482 U.S. 78, 95-97 (1987), the Supreme Court held

that a state cannot restrict a prisoner’s ability to marry without sufficient justification. 14

14 When analyzing other fundamental rights and liberty interests in other contexts, the SupremeCourt has consistently adhered to the principle that a fundamental right, once recognized,

properly belongs to everyone. For example, in Youngberg v. Romeo , 457 U.S. 307, 315-16(1982), the Supreme Court held that an individual involuntarily committed to a custodial facility

because of a disability retained liberty interests including a right to freedom from bodilyrestraint, thus departing from a longstanding historical tradition in which people with seriousdisabilities were not viewed as enjoying such substantive due process rights and were routinelysubjected to bodily restraints in institutions. Similarly, in Eisenstadt , 405 U.S. at 438, the


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In sum, because the fundamental right to marry is firmly rooted in our nation’s history,

that right cannot be denied to interracial couples, divorced couples, prisoners, or same-sex

couples simply because they have historically been prevented from exercising that right.

3. The Fundamental Right to Marry Is Not Contingent on the Ability toAccidentally Procreate.

Defendant Rainey appears to argue that because same-sex couples cannot accidentally

procreate, they are incapable of exercising the fundamental right to marry. That argument

echoes statements made by the co-sponsor of the 2004 marriage ban and constitutional

amendment asserting that marriages between same-sex couples were “counterfeit” marriages.

See Background, Part I. But even if the ability to accidentally procreate were somehow an

essential attribute of marriage—and it is not—the Supreme Court in Turner v. Safley , 482 U.S.

78 (1987), rejected the notion that the freedom to marry could be denied because the people

seeking to marry could not engage in particular activities traditionally associated with a marital

relationship. Under the policy struck down in Turner , prisoners were permitted to marry only in

circumstances involving a pre-existing “pregnancy or the birth of an illegitimate child.” Turner ,

482 U.S. at 82. But the Supreme Court held that prisoners’ freedom to marry could not be so

restricted. Instead, the Turner Court methodically chronicled aspects of the marital relation that

remain unaffected by incarceration and determined that the sum total of the other attributes was a

Supreme Court struck down a ban on distributing contraceptives to unmarried persons, buildingon its prior holding in Griswold , 381 U.S. at 486, that states could not prohibit the use ofcontraceptives by married persons. Importantly, the Eisenstadt Court did not suggest that thiscountry had a specific history of protecting the sexual privacy of unmarried people. Rather, theCourt held that, “[i]f the right to privacy means anything, it is the right of the individual, marriedor single, to be free from unwarranted governmental intrusion into matters so fundamentallyaffecting a person as the decision whether to bear or beget a child.” Eisenstadt , 405 U.S. at 453.And in Lawrence , the Court followed Eisenstadt and other due process cases in holding thatlesbian and gay Americans could not be excluded from the existing fundamental right to sexualintimacy, even though historically they had often been prohibited from full enjoyment of thatright. Lawrence , 539 U.S. at 566-67.


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marital relationship entitled to constitutional protection. Id . at 95 (while acknowledging the

“substantial restrictions as a result of incarceration, . . . [m]any important attributes of marriage

remain, however, after taking into account the limitations imposed by prison life.”); cf.

Lawrence , 539 U.S. at 578 (“decisions by married persons, concerning the intimacies of their

physical relationship, even when not intended to produce offspring, are a form of ‘liberty’

protected by the Due Process Clause of the Fourteenth Amendment.”).

The marriages that Plaintiffs seek to enter into, which enjoy all of the legal and social

attributes of marriages of different-sex couples, save for the ability to beget children together as

the two biological parents, involve the same fundamental right to marriage invoked since Loving ,and Virginia’s restriction should be evaluated for what it is, a burden on the exercise of that

fundamental right. See Perry , 704 F. Supp. 2d at 993 (“same-sex couples are situated identically

to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage

under California law. . . . Plaintiffs do not seek recognition of a new . . . “right to same-sex

marriage” . . . . Rather, plaintiffs ask California to recognize their relationships for what they are:

marriages.”); In re Marriage Cases , 183 P.3d at 451 (“same-sex couples who choose to enter

into the relationship with that designation will be subject to the same duties and obligations to

each other, to their children, and to third parties that the law currently imposes upon opposite-sex

couples who marry.”).

In short, “[t]he personal enrichment afforded by the right to marry may be obtained by a

couple whether or not they choose to have children, and the right to marry never has been limited

to those who plan or desire to have children.” In re Marriage Cases , 183 P.3d at 432. Of

course, the Named Plaintiffs and countless other class members are in fact raising children, and

they seek the benefits of marriage in large part for their children. But the absence of children,


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now or in the future and biological or otherwise, does not vitiate the basic liberty and

fundamental right to marry all people enjoy.

B. Virginia’s Marriage Bans Infringe the Unmarried Plaintiffs’ Fundamental

Right to Marry and Other Protected Liberty Interests.Virginia’s marriage bans violate the due process rights of the Unmarried Plaintiffs, by

denying each the right to marry his or her chosen partner. Plaintiffs wish to express the nature,

depth, and quality of their lifelong commitment to each other in the way that they, their family,

their friends, and society at large best understand. See SUF ¶ 13. They wish to protect each

other, and their children, in a host of tangible ways through marriage. Id. ¶ ¶ 2-6, 8-12. Those

Plaintiffs who have or wish to have children seek to ensure that their children do not grow up

feeling as though their family is less legitimate than other families. Id. ¶ 14. Above all, they

wish to marry or have their marriages recognized because they love each other, and because they

wish to spend the rest of their lives committed to each other. Id. ¶ ¶ 1, 7.

Same-sex and different-sex couples seek to marry for the same reasons, and marriage

benefits spouses and their children in both tangible and intangible ways that are equally

important to same-sex and different-sex couples and their families. Just as heterosexual persons

do, lesbian and gay individuals form loving and lasted committed relationships, which serve

basic human needs for love, attachment, and intimacy. Like heterosexual individuals, lesbian

and gay people benefit not only from close intimate relationships but from social, emotional, and

material support for their relationships. Marriage affords material benefits to spouses, fostering

psychological well-being, physical health, and longevity. Marriage would provide Plaintiffs and

other same-sex couples with a well-understood social network of in-laws, friends, and others

who can provide emotional support and tangible assistance to them as a married couple, and

allow them to draw upon shared cultural expectations and respect for the relationship. See


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generally SUF ¶ 13. In all of these ways, Plaintiffs’ liberty interests in marrying the person each

Plaintiff loves are the same as all other Virginians’ liberty interests.

By denying the Unmarried Plaintiffs access to marriage (as well as to any equivalent

relationship status recognized by the state), Virginia’s marriage bans infringe not only their

fundamental right to marry, but also a host of other related fundamental liberty interests. The

marriage bans burden the Unmarried Plaintiffs’ protected interest in autonomy over “personal

decisions relating to . . . family relationships,” Lawrence , 539 U.S. at 573; see also Santosky v.

Kramer , 455 U.S. 745, 753 (1982) (“freedom of personal choice in matters of family life is a

fundamental liberty interest protected by the Fourteenth Amendment”). The marriage bansadditionally impair Plaintiffs’ ability to identify themselves to others as married couples and to

participate fully in society as married couples, thus burdening their fundamental liberty interests

in intimate association and self-definition. See Griswold , 381 U.S. at 482-83 (discussing

evolving concept of a protected liberty interest in intimate association); Windsor , 133 S. Ct. at

2689 (marriage permits same-sex couples “to define themselves by their commitment to each

other” and “so live with pride in themselves and their union and in a status of equality with all

other married persons.”)

In addition, the marriage bans interfere with constitutionally protected interests in family

integrity and association by precluding the Unmarried Plaintiffs from securing legal recognition

of their relationships with their children. By foreclosing the possibility that a parent like plaintiff

Jessica Duff can marry her partner and then become a legal parent of the child they are raising

together through a presumption of parenthood, adoption, or any other procedure, the marriage

bans impair the ability of these parents to make decisions with regard to their children’s school

enrollment, travel, health care, and other important matters, thus infringing their fundamental


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liberty interest in “direct[ing] the upbringing and education” of their children. Pierce v. Soc’y of

the Sisters of the Holy Names of Jesus & Mary , 268 U.S. 510, 534-35 (1925). Such

infringements on the bonds between children and the parents raising them violate the core of the

substantive guarantees of the Due Process Clause as recognized by the Supreme Court. Moore ,

431 U.S. at 503 (“Our decisions establish that the Constitution protects the sanctity of the family

precisely because the institution of the family is deeply rooted in this Nation’s history and

tradition.”); see also Jordan by Jordan v. Jackson , 15 F.3d 333, 343 (4th Cir. 1994) (“The bonds

between parent and child are, in a word, sacrosanct”).

Because the Unmarried Plaintiffs share the same fundamental interests as otherVirginians in accessing marriage, Virginia’s exclusion of same-sex couples, and therefore of

lesbian and gay individuals, from the freedom to marry infringes the Unmarried Plaintiffs’ due

process rights in the same ways prior attempts to exclude particular individuals and couples from

the institution of marriage have infringed the due process rights of those individuals and couples.

See Turner , 482 U.S. at 94-97; Loving , 388 U.S. at 12.

C. Virginia’s Marriage Bans Also Violate the Equal Protection Clause BecauseThey Unjustifiably Discriminate Against Same-Sex Couples With Regard tothe Exercise of Fundamental Rights and Liberty Interests.

Virginia’s marriage bans discriminate against Plaintiffs in their exercise of their

fundamental rights and liberty interests, and therefore implicate both the Due Process Clause and

the Equal Protection Clause. See Skinner v. Oklahoma , 316 U.S. 535, 541 (1942) (it is

“essential” that courts employ strict scrutiny when a state law denies “groups or types of

individuals” rights such as “[m]arriage and procreation [that] are fundamental”); see also Erwin

Chemerinsky, Constitutional Law Principles and Policies 793 (3d ed. 2006) (“[o]nce a right is

deemed fundamental, under due process or equal protection, strict scrutiny is generally used.”).

Specifically with respect to classifications restricting who can enter into marriage, the Court has


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held that “the right to marry is of fundamental importance, and since the classification at issue

here significantly interferes with the exercise of that right, we believe that ‘critical examination’

of the state interests advanced in support of the classification is required.” Zablocki , 434 U.S. at

383 (citation omitted).

At issue in Zablocki was Wisconsin’s rule that no state resident under a court order to

support a child not in his custody could marry without court permission, to be granted only upon

proof of compliance with the support obligation, and a showing that his children were not

presently, nor likely to become, public charges. Id . at 375. The Supreme Court assumed that

Wisconsin’s proffered goals of collecting child support and counseling those entering marriageof its financial consequences “are legitimate and substantial interests, but, since the means

selected by the State for achieving these interests unnecessarily impinge on the right to marry,

the statute cannot be sustained.” Id . at 388. The Court explained that, for those who could not

or would not satisfy the state’s concern of providing for existing offspring, the absolute

prevention of marriage was improper because it did not promote the welfare of those children

and it well might lead to harm for future children a man might beget, for whom the law’s “only

result [is] in the children being born out of wedlock, as in fact occurred in appellee’s case.” Id .

at 390. Just as Wisconsin’s “carrot and stick” approach was deemed a bad fit for the state’s

objectives, similarly, the Virginia marriage bans fail any measure of scrutiny, in that it is

irrational either to attempt to encourage lesbians and gay men to marry someone of a different

sex or to impose legal disabilities on them and their children because their family unit differs

from some ideal model proffered by the state.


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D. The Married Plaintiffs Also Suffer An Unconstitutional Denial of theirFundamental Rights and Liberty Interests.

Even though the Married Plaintiffs have validly married one another in jurisdictions that

do not exclude same-sex couples from the freedom to marry, the Married Plaintiffs continue to

suffer the practical and dignitary harms of being denied recognition of their marriage by their

home state of Virginia. See, e.g. , SUF ¶¶ 8, 13. The Supreme Court recently considered the

issue of refusal to recognize the valid marriages of same-sex couples in the context of a

constitutional challenge to DOMA. In striking down the statutory provision that had denied gay

and lesbian couples recognition of their otherwise valid marriages, the Court observed:

[The discriminatory statute] tells those couples, and all the world, that their otherwisevalid marriages are unworthy of . . . recognition. This places same-sex couples in anunstable position of being in a second-tier marriage. The differentiation demeans thecouple, whose moral and sexual choices the Constitution protects . . . . And it humiliatestens of thousands of children now being raised by same-sex couples. The law in questionmakes it even more difficult for the children to understand the integrity and closeness oftheir own family and its concord with other families in their community and in their dailylives.

Windsor , 133 S. Ct. at 2694. Virginia’s refusal to honor the marriages of those Plaintiffs who

have married in other jurisdictions similarly demeans them, humiliates their children, and

complicates the children’s understanding of their own families’ integrity, and in all of these ways

infringes Plaintiffs’ liberty and equality interests as protected by the Due Process and Equal

Protection Clauses.

E. Marriage and Its Recognition Cannot Be Denied to Plaintiffs Absent aCompelling State Interest, Which the Commonwealth of Virginia CannotDemonstrate.

Because the marriage bans discriminatorily burden Plaintiffs’ fundamental liberty

interests, they are subject to strict scrutiny. State infringement of fundamental rights is

constitutionally permissible only when “necessary to promote a compelling state interest.”

Kramer v. Union Free Sch. Dist. No. 15 , 395 U.S. 621, 627 (1969). And even if marriage were


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not a “fundamental right,” in order to justify infringing upon the “significant constitutionally

protected liberty interest at stake,” the marriage bans would, at a minimum, have to be necessary

to significantly serve important governmental interests in accordance with the heightened

scrutiny balancing test used in Sell v. United States , 539 U.S. 166, 179 (2003). See also Witt v.

Dep’t of Air Force , 527 F.3d 806, 818-19 (9th Cir. 2008); Cook v. Gates , 528 F.3d 42, 55 (1st

Cir. 2008). As discussed in Argument, Part I.C supra , not even a legitimate state interest, much

less a compelling or significant one, exists to justify the marriage bans. Virginia’s constitutional

and statutory exclusion of Plaintiffs from the freedom to marry and from full recognition of their

valid marriages cannot survive any level of scrutiny, and therefore violates the Due Process andEqual Protection guarantees of the U.S. Constitution.

III. Baker v. Nelson is not Controlling.

Defendant Rainey’s Answer prominently invokes the Supreme Court’s 1972 summary

dismissal of the appeal for want of a substantial federal question in Baker v. Nelson , 191 N.W.2d

185 (1971), appeal dismissed w/o op ., 409 U.S. 810 (1972). But the Supreme Court has

cautioned that, “‘when doctrinal developments indicate otherwise,’” the lower federal courts

should not “‘adhere to the view that if the Court has branded a question as unsubstantial, it

remains so.’” Hicks v. Miranda , 422 U.S. 332, 344 (1975) (quoting Port Auth. Bondholders

Protective Comm. v. Port of N.Y. Auth. , 387 F.2d 259, 263 n.3 (2d Cir. 1967)); see Dorsey v.

Solomon , 604 F.2d 271, 274-75 (4th Cir. 1979) (following guidance from “the Court’s

subsequent, reasoned opinion” as “better authority” than an earlier summary affirmance).

As the Second Circuit has explained, “In the forty years after Baker, there have been

manifold changes to the Supreme Court’s equal protection jurisprudence.” Windsor , 699 F.3d at

178-79. “When Baker was decided in 1971, ‘intermediate scrutiny’ was not yet in the Court's

vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect.


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The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake”

actually lacked a rational basis. And, in 1971, the government could lawfully ‘demean

[homosexuals’] existence or control their destiny by making their private sexual conduct a

crime.’” Id. at 179 (citations omitted). Baker did not and could not address how any of these

doctrinal developments bear on Plaintiffs’ equal protection claims. Similarly, Baker could not

and did not address how Plaintiffs’ substantive due process claims should be evaluated in light of

the court’s intervening decisions in Eisenstadt v. Baird , 405 U.S. 438 (1972), Roe v. Wade , 410

U.S. 113 (1973), Carey v. Population Services Int'l , 431 U.S. 678 (1977), Zablocki v. Redhail ,

434 U.S. 374 (1978); Turner v. Safley , 482 U.S. 78 (1987), and Lawrence v. Texas , 539 U.S. 558(2003). For all these reasons, Baker is irrelevant.


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CONCLUSION

For the foregoing reasons, Plaintiffs request the Court enter summary judgment in their

favor.

Dated: September 30, 2013

Respectfully submitted,AMERICAN CIVIL LIBERTIES U NIONOF V IRGINIA FOUNDATION , I NC .

/s/ . Rebecca K. Glenberg (VSB No. 44099)701 E. Franklin Street, Suite 1412Richmond, Virginia 23219Phone: (804) 644-8080Fax: (804) [email protected]

AMERICAN CIVIL LIBERTIES U NIONFOUNDATION

James D. Esseks, pro hac viceAmanda C. Goad, pro hac viceJoshua A. Block, pro hac vice125 Broad Street, 18th Floor

New York, New York 10004Phone: (212) 549-2500Fax: (212) 549-2650

[email protected]@aclu.org

[email protected]

LAMBDA LEGAL DEFENSE AND EDUCATION

FUND , I NC .

Gregory R. Nevins, pro hac vice 730 Peachtree Street, NE, Suite 1070Atlanta, Georgia 30308Phone: (404) 897-1880Fax: (404) [email protected]

Tara L. Borelli, pro hac vice 3325 Wilshire Boulevard, Suite 1300Los Angeles, California 90010Phone: (213) 382-7600Fax: (213) [email protected]

JENNER & BLOCK LLP

Paul M. Smith, pro hac vice Luke C. Platzer, pro hac vice Mark P. Gaber, pro hac vice 1099 New York Avenue, NW Suite 900Washington, D.C. 20001-4412Phone: (202) 639-6000Fax: (202) 639-6066

[email protected]@[email protected]

Counsel for Plaintiffs


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CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of September 2013, I effected service upon counselfor Defendants by electronically filing the foregoing with the Clerk of the Court using theCM/ECF system.

E. Duncan Getchell, Jr.Solicitor General of VirginiaOffice of the Attorney General900 East Main StreetRichmond, Virginia 23219(804) [email protected]

Rita W. BealeDeputy Attorney General

[email protected] K. TysingerSenior Assistant Attorney General/[email protected]

Michael H. BradyAssistant Solicitor [email protected]

Counsel for Defendants Robert F. McDonnell and Janet M. Rainey

Rosalie Pemberton FessierTimberlake, Smith, Thomas & Moses, P.C.25 North Central AvenueP.O. Box 108Staunton, VA 24402-0108(540) [email protected]

Counsel for Defendant Thomas E. Roberts

September 30, 2013 /s/ . Rebecca K. Glenberg (VSB No. 44099)701 E. Franklin Street, Suite 1412Richmond, Virginia 23219Phone: (804) 644-8080Fax: (804) [email protected]


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Exhibit 4. Chart With Breakdown Of

Time Spent On Standing

Opposition


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1

Exhibit 4 Char t with B reakdown of F ees, Ex penses, and Costs Bil led For Oppositi on to State’s Motion to Dismiss Non -Recogniti on Claim f or L ack of Standing 1 LawFirm

BillingAttorney

Date Memorandum entryFrom Billing Attorney

HoursBilled

FeeRequested

Jenner LH 12/17/2013 Reviewed MTDs, including

the State's andcommunicated with N.T.and T.M. re same.

3 hours $ 1701

LH 12/18/2013 Researched standing 1.5 hours $ 850.5LH 12/19/2013 Worked on MTD. 1.5 hours $ 850.5LH 12/20/2013 Worked on MTD. 2.5 hours $ 1,417.50LH 12/21/2013 Rev'd opp to State's MTD 1 hour $ 567LH 12/22/2013 Revised opp to State's

MTD1.25 hours $ 708.75

LH 12/27/2013 Rev'd opp to State's MTD 1.5 hours $ 850.5 NT 12/18/2013 Research/draft response to

Cole's MTD and researchopp to State's MTd

8.25 hours $ 2,640

NT 20-Dec Worked on response toCole's MTD and State's

MTD, rev'd Utal decision

4.75 hours $ 1,520

NT 12/21/2013 Research and draft opp toState's MTD

6.5 hours $ 2,080

PS 12/16/2103 Rev'd Defendants MTDs 1 hour $ 771PS 12/23/2013 Edited/comment on

response to State's MTD0.5 hours $ 385.5

TM 11/27/2013 Among other activities, helists discuss response toState's MTD.

0.25 hours $ 80

TM 12/22/2013 Comm re: completingaffidavits (Declarationswere attached to theirresponse to State's MTD)

0.25 hours $ 80

TM 12/23/2013 Read draft opp to State's MTD and comm with"team" re same

1 hour $ 320

1 On many instances, Plaintiffs’ counsel lumped a variety of tasks into one billing entry withoutaccounting for the specific time spent on each task. For example, Lindsay Harrison’s TimeReport states that on December 17, 2013, she spent a total of 3 hours, and requests $1,701, forhaving “reviewed State’s motion to dismiss and new motion t o dismiss by clerk andcorresponded with Lambda re responses; corresponded with N. Tarasen and T. McCotter resame.” Doc. 146-1. Because it was impossible to determine from this and other similar billingentries the specific amount of time dedicated to each task, the entire amount of time for that

billing entry is included in the total.


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2

LawFirm

BillingAttorney

Date Memorandum entryFrom Billing Attorney

HoursBilled

FeeRequested

TM 12/26/2013 Rev'd Lambda's edits toopp to State's MTD

0.25 hours $ 80

Lambda CT 12/16/2013 Rev'd State's MTD 1 hour $ 350

CT 12/17/2013 researched standing 0.5 hours $ 175CT 12/19/2013 -

12/21/13 Rev'd and revised opp to MTD

3.5 hours $ 1225

CT 12/23/2013 revised opp to State's MTD 1 hour $ 350CT 1/1/2013 Affidavits to and from

defendants (affidavits were filed in response to State's MTD)

FedEx $ 111.43

CT 1/9/2014 Rev'd State's Reply 0.7 hours $ 245KL 12/16/2013 Rev'd State's MTD 0.5 hours $ 162.5

KL 12/17/2013 Rev'd and revised plaintiffs' declarations 0.5 hours $ 162.5KL 12/20/2013 Rev'd and revised

plaintiffs' declarations0.5 hours $ 162.5

KL 12/25/2013 Rev'd Opp to State's MTD 2 hours $ 650KL 12/26/2013 Rev'd Opp to State's MTD 1.5 hours $ 487.5KL 1/9/2014 Rev'd State's Reply 1 hour $ 325

Tinney HK 12/16/2013 Analyzed MTD 0.6 hours $ 135 NK 12/17/2013 Rev'd State's MTD 0.5 hours $ 50JKT 12/20/2013 Rev'd draft opp and discuss

w/counsel1.1 hours $ 264

JHTJR 12/30/2013 Worked on finalizing draftbriefes and filing

2.5 hours $ 750

NK 12/30/2013 Among activities listed wasto analyze and revise draftresponse to State's MTD

3.3 hours $ 330

JHTJR 12/31/2013 Filed omitted exhibits toresp in opp to State's MTD

0.4 hours $ 120

NK 12/31/2013 Among activities listed wasanalyze memo in opp toState's MTD and calledclerk re missing exhibits

1.9 hours $ 190

HK 1/9/2014 Reviewed State's Reply to MTD

0.2 hours $ 45

NK 1/10/2014 Reviewed State's Reply to MTD

0.3 hours $ 30

Total $21222.68


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Exhibit 5. Chart Of Other

Jurisdictions’ Fee Awards


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1

Exh ibit 5 Chart Refl ecting Comparative Fee Requests I n Other Same-Sex M arr iage Cases By Jur isdiction, Number Of H ours, AndHour ly Rate 1

Case Name HighestBillableRate

NumberofAttorneys

Disposition HoursBilled

TotalRequested

Award

McGee v. Cole ,(S.D.W. Va).

$789.00 11 Trial court briefing; no appeal 959.15 $350,256.19 Pending

Hamby v. Parnell , (Alaska) Ex 5

$425 4 Oral argument on summary judgment briefing; appeal

788.6 $257,938.40 Pending

Burns v. Hickenlooper , (Colo.), Ex. 6

$500 5 Trial court briefing; appeal; stay motions

401.2 $134,028.75 Undisclosedsettlement.

Latta v. Otter ,(Idaho) Ex. 7

$400 6 Trial court briefing, stay motionon appeal

1,289.3 $467,843.08 Pending

Bourke v. Beshear ,(Ky.) Ex. 8

$250 6 Trial court briefing; stay motion 275.54 $66,688.00 $70,325.00(included reductions

plus a $10,000 bonus)

Obergefell v. Kasich ,(Ohio) Ex. 9

$450 4 Trial court briefing 718.45 $210,929.04 Stayed pendingappeal.

Bishop v. Oklahoma ,(Okla.) Ex. 10

$400 2 for trial;3 onappeal;4 forcertiorari

Trial court briefing; appeal; petition for certiorari

1,015.9 $371,769.87 Pending

Greiger v. Kitzhaber ,(Ore.) Ex. 11

$400 3 Trial court briefing; stay motionon appeal and to Supreme Court

523.30 $185,057.50 Settled for $132,690in fees and $967.50in costs.

1 For the column entitled “disposition,” this chart reflects work reported in the publicly-filed fee request. Some cases involvedsubsequent proceedings at other levels after the fee request was filed: these proceedings were not included in the fee request andtherefore are omitted from this chart ’s disposition column . Naturally, where the fee request was resolved in an undisclosed settlement,it is impossible to state whether the settlement reflected the work requested in the previously-filed fee request.


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2

Case Name HighestBillableRate

NumberofAttorneys

Disposition HoursBilled

TotalRequested

Award

Condon v. Wilson ,(S.C.) Ex. 12

$400 7 Trial court briefing; appeal; stay motion to Supreme Court

446.05 $152,709.98 Pending

Evans v. Utah , (Utah)Ex. 13

$350 7 Trial court briefing; appeal 310.45 $164,943.14 Settled for $95,000in fees and costs

Harris v. McDonnell ,(Va.) Ex. 14

N/A N/A Class certification , appeal; petition for certiorari

N/A $150,000 forappeal

Settled for $60,000


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Exhibit 6. Request For Attorney’s’

Fees In Alaska Federal Same-Sex

Marriage Case


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Fees In Colorado Federal Same-Sex

Marriage Case


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Fees In Idaho Federal Same-Sex

Marriage Case


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Fees In Kentucky Federal Same-

Sex Marriage Case


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Exhibit 10. Request For

Attorney’s’ Fees In Ohio Federal

Same-Sex Marriage Case


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8/9/2019 3:13-cv-24068 #155



8/9/2019 3:13-cv-24068 #155



Date post:	01-Jun-2018
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3:13-cv-24068 #155

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