2:13-cv-00395 #26

UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIANORFOLK DIVISION

TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v. CASE NO. 2:13-cv-395

JANET M. RAINEY, in her official
capacity as State Registrar of Vital Records, and
GEORGE E. SCHAEFER, III, in his official
capacity as the Clerk of Court
for Norfolk Circuit Court,
Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, PRELIMINARY INJUNCTION

Case 2:13-cv-00395-AWA-LRL Document 26 Filed 09/30/13 Page 1 of 45 PageID# 129
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TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1
STATEMENT OF UNDISPUTED MATERIAL FACTS ............................................................. 2
ARGUMENT ................................................................................................................................ 10
I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE
VIRGINIAS MARRIAGE PROHIBITION IS UNCONSTITUTIONAL. ........................... 10
A. By Denying Gay Men And Lesbians The Right To Marry, Virginias
Marriage Prohibition Violates Due Process. ................................................................... 11
B. By Denying Gay Men And Lesbians The Right To Marry, Virginias
Marriage Prohibition Violates Equal Protection. ............................................................ 15
1. Heightened Scrutiny Applies Because Virginias Marriage Prohibition
Discriminates On The Basis Of Sexual Orientation. ............................................ 15
Discriminates On The Basis Of Sex. .................................................................... 21
3. Virginias Marriage Prohibition Cannot Survive Rational Basis
Review, Let Alone Heightened Scrutiny. ............................................................. 22
C. Baker v. Nelson Does Not Control The Outcome Of This Case. .................................... 30
II. AT A MINIMUM, THIS COURT SHOULD PRELIMINARILY ENJOIN
APPLICATION OF VIRGINIAS MARRIAGE PROHIBITION TO THE
PLAINTIFFS. ......................................................................................................................... 32
A. Plaintiffs Are Likely To Succeed On Their Constitutional Claims. ............................... 32
B. Plaintiffs Are Likely To Suffer Irreparable Harm In The Absence Of A
Preliminary Injunction. ................................................................................................... 33
C. A Balance Of The Equities Favors Plaintiffs. ................................................................. 34
D. An Injunction Is In The Public Interest. .......................................................................... 35
CONCLUSION ............................................................................................................................. 35

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TABLE OF AUTHORITIES
Page(s)
Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) .................................................................................................................. 16
Alizai v. MVM, Inc.,
40 F. Supp. 2d 752 (E.D. Va. 1998) ......................................................................................... 11
Baker v. Nelson,
409 U.S. 810 (1972) ............................................................................................................ 30, 31
Barghout v. Bureau of Kosher Meat and Food Control,
66 F.3d 1337 (4th Cir. 1994) .................................................................................................... 11
Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) .................................................................................................................. 24
Bowen v. Gilliard,
483 U.S. 587 (1987) .................................................................................................................. 16
Carey v. Population Servs. Intl, Inc.,
431 U.S. 678 (1977) .................................................................................................................. 15
Centro Tepeyac v. Montgomery Cnty.,
No. 11-1314, 2013 WL 3336825 (4th Cir. July 3, 2013) ......................................................... 35
City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985) ...................................................................................................... 16, 19, 23
Cleveland Bd. of Educ. v. LaFleur,
414 U.S. 632 (1974) .............................................................................................................. 1, 34
Craig v. Boren,
429 U.S. 190 (1976) .................................................................................................................. 31
Darr v. Massinga,
699 F. Supp. 508 (D. Md. 1988) ............................................................................................... 33
Dewhurst v. Century Aluminum Co.,
649 F.3d 287 (4th Cir. 2011) .................................................................................................... 32
Elrod v. Burns,
427 U.S. 347 (1976) .................................................................................................................. 33
Fatin v. INS,
12 F.3d 1233 (3d Cir. 1993) ..................................................................................................... 20
Faust v. S.C. State Highway Dept,
721 F.2d 934 (4th Cir. 1983) .................................................................................................... 17
Fla. Star v. B.J.F.,
491 U.S. 524 (1989) .................................................................................................................. 24
(continued)
Page(s)

iii
Frontiero v. Richardson,
411 U.S. 677 (1973) ............................................................................................................ 21, 31
Goldberg v. Kelly,
397 U.S. 254 (1970) .................................................................................................................. 35
Griffin v. Illinois,
351 U.S. 12 (1956) .................................................................................................................... 16
Griswold v. Connecticut,
381 U.S. 479 (1965) ............................................................................................................ 11, 23
Harper v. Va. Bd. of Elections,
383 U.S. 663 (1966) .................................................................................................................. 16
Heller v. Doe,
509 U.S. 312 (1993) ............................................................................................................ 22, 25
Henry v. Greenville Airport Commn,
284 F.2d 631 (4th Cir. 1960) .................................................................................................... 33
Hernandez-Montiel v. INS,
225 F.3d 1084 (9th Cir. 2000) .................................................................................................. 20
Hicks v. Miranda,
422 U.S. 332 (1975) .................................................................................................................. 31
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) .................................................................................................. 20, 26, 35
Johnson v. Bergland,
586 F.2d 993 (4th Cir. 1978) .................................................................................................... 33
Kerrigan v. Commr of Pub. Health,
957 A.2d 407 (Conn. 2008) ...................................................................................................... 18
Kramer v. Union Free Sch. Dist. No. 15,
395 U.S. 621 (1969) .................................................................................................................. 16
Lawrence v. Texas,
539 U.S. 558 (2003) ........................................................................................................... passim
Loving v. Virginia,
388 U.S. 1 (1967) ............................................................................................................... passim
Lyng v. Castillo,
477 U.S. 635 (1986) .................................................................................................................. 16
M.L.B. v. S.L.J.,
519 U.S. 102 (1996) .............................................................................................................. 1, 11
MacDonald v. Moose,
710 F.3d 154 (4th Cir. 2013) .................................................................................................... 17
(continued)
Page(s)

iv
Mandel v. Bradley,
432 U.S. 173 (1977) .................................................................................................................. 30
Mass. Bd. of Ret. v. Murgia,
427 U.S. 307 (1976) ........................................................................................................... 16, 19
Massachusetts v. U.S. Dept of Health & Human Servs. (Gill),
682 F.3d 1 (1st Cir. 2012) .................................................................................................. passim
Meyer v. State of Nebraska,
262 U.S. 390 (1923) .................................................................................................................. 27
Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd.,
354 F.3d 249 (4th Cir. 2003) .................................................................................................... 35
Palmore v. Sidoti,
466 U.S. 429 (1984) .................................................................................................................. 28
Plessy v. Ferguson,
163 U.S. 537 (1896) .................................................................................................................... 1
Plyler v. Doe,
457 U.S. 202 (1982) .................................................................................................................. 15
Republican Party of Minn. v. White,
536 U.S. 765 (2002) .................................................................................................................. 24
Romer v. Evans,
517 U.S. 620 (1996) ........................................................................................................... passim
The News and Observer Publg Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570 (4th Cir. 2010) .................................................................................................... 11
Thomasson v. Perry,
80 F.3d 915 (4th Cir. 1996) ...................................................................................................... 17
Turner v. Safley,
482 U.S. 78 (1987) .................................................................................................. 12, 23, 27, 31
United States v. Virginia,
518 U.S. 515 (1996) ............................................................................................................ 16, 22
United States v. Windsor,
133 S. Ct. 2675 (2013) ....................................................................................................... passim
Vance v. Bradley,
440 U.S. 93 (1979) .................................................................................................................... 22
Veney v. Wyche,
293 F.3d 726 (4th Cir. 2002) ........................................................................................ 16, 17, 18
Washington Post v. Robinson,
935 F.2d 282 (D.C. Cir. 1991) .................................................................................................. 11
(continued)
Page(s)

v
Waters v. Gaston Cnty.,
57 F.3d 422 (4th Cir. 1995) ...................................................................................................... 14
Williams v. Illinois,
399 U.S. 235 (1970) .................................................................................................................. 25
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ............................................................................................... 17, 20
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) ...................................................................................................................... 32
Zablocki v. Redhail,
434 U.S. 374 (1978) ........................................................................................................... passim
Statutes
29 U.S.C. 2612 ............................................................................................................................. 9
42 U.S.C. 1983 ............................................................................................................................. 6
Affirmation of Marriage Act, House Bill No. 751 (2004) .................................................. 3, 23, 29
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) ................................ passim
Va. Code 107.3 ............................................................................................................................ 9
Va. Code 1202 ............................................................................................................................. 8
Va. Code 18.2-57(B) .............................................................................................................. 5, 19
Va. Code 2.2-3901 ........................................................................................................... 5, 18, 21
Va. Code 20-13 ............................................................................................................................ 5
Va. Code 20-14 ............................................................................................................................ 5
Va. Code 20-33 ............................................................................................................................ 5
Va. Code 20-38.1 ..................................................................................................................... 7, 8
Va. Code 20-45.2 ......................................................................................................... 2, 8, 11, 29
Va. Code 20-45.3 ............................................................................................................... 2, 3, 29
Va. Code 20-61 .......................................................................................................................... 10
Va. Code 20-91 ............................................................................................................................ 9
Va. Code 32.1-252 ....................................................................................................................... 6
Va. Code 32.1-261 ................................................................................................................... 6, 8
Va. Code 32.1-262 ....................................................................................................................... 6
Va. Code 32.1-267 ....................................................................................................................... 6
Va. Code 32.1-268.1 .................................................................................................................... 6
Va. Code 36-96.3 ............................................................................................................. 5, 18, 21
(continued)
Page(s)

vi
Va. Code 45.1 .......................................................................................................................... 7, 8
Va. Code 45.2 .............................................................................................................................. 9
Va. Code 45.3 ............................................................................................................................ 11
Va. Code 54.1-2986 ............................................................................................................... 8, 10
Va. Code 55-20.2 ....................................................................................................................... 10
Va. Code 58.1-322 ....................................................................................................................... 9
Va. Code 63.2-1201 ..................................................................................................................... 8
Va. Code 63.2-1709.3 ............................................................................................................ 5, 18
Va. Code 64.2-302 ..................................................................................................................... 10
Va. Code 64.2-305 ..................................................................................................................... 10
Va. Code 64.2-309 ....................................................................................................................... 9
Va. Const. Art. I, 15-A ................................................................................................. 2, 4, 11, 29
Virginia Senate Bill 884 (1997) ...................................................................................................... 2
Rules
Fed. R. Civ. P. 56 .......................................................................................................................... 11
Fed. R. Evid. 201(b) ...................................................................................................................... 11
Fed. R. Evid. 201(c)(2) ................................................................................................................. 11
Other Authorities
Alexis Dinno & Chelsea Whitney, Same Sex Marriage and the Perceived Assault on
Opposite Sex Marriage, PLoS ONE 8(6) (2013) ...................................................................... 27

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INTRODUCTION
This case is about the freedom to marry, which has long been recognized as one of the
vital personal rights essential to the orderly pursuit of happiness by free men. Loving v. Virgin-
ia, 388 U.S. 1, 12 (1967). The Supreme Court has reaffirmed fourteen times that marriage is
the most important relation in life, and that the right to marry is of fundamental importance
for all individuals. Zablocki v. Redhail, 434 U.S. 374, 384 (1978); see also Cleveland Bd. of
Educ. v. LaFleur, 414 U.S. 632, 639 (1974). As a result, [c]hoices about marriage are shel-
tered by the Fourteenth Amendment against the States unwarranted usurpation, disregard, or
disrespect. M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (internal quotation marks omitted).
This case is also about equalitythe most essential ingredient of the American dream
and the dignity and integrity that come with it. United States v. Windsor, 133 S. Ct. 2675,
2694 (2013). It is beyond dispute that the Constitution neither knows nor tolerates classes
among citizens. Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163
U.S. 537, 559 (1896) (Harlan, J., dissenting)). Moreover, the Supreme Court repeatedly has held
that the Constitution prohibits laws that impose a disadvantage, a separate status, and so a stig-
ma upon gay men and lesbians. Windsor, 133 S. Ct. at 269394; see also Lawrence v. Texas,
539 U.S. 558, 574 (2003); Romer, 517 U.S. at 635. The tragic time has long passed when our
government could target its gay and lesbian citizens for discriminatory, disfavored treatment
even imprisonmentbecause those in power deemed gay relationships deviant, immoral, or dis-
tasteful. See Lawrence, 539 U.S. at 57576.
Despite these bedrock constitutional principles, Virginia has decided to single out gay
men and lesbians and enshrine in Virginias Constitution and statutory code that they are differ-
ent, that their loving and committed relationships are ineligible for the designation marriage,
and that they and the children they raise are unworthy of that most important relation in life.

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See Va. Cont. Art. I, 15-A; Va. Code 20-45.2, 45.3 (collectively, Virginias Marriage Pro-
hibition). No less than the provision of the federal Defense of Marriage Act (DOMA) struck
down by the Supreme Court earlier this year, Virginias Marriage Prohibition demeans same-
sex couples, places [them] in an unstable position, humiliates tens of thousands of children
now being raised by same-sex couples, and instructs all [State] officials, and indeed all persons
with whom same-sex couples interact, including their own children, that their [relationship] is
less worthy than the [relationships] of others. Windsor, 133 S. Ct. at 269496. The Fourteenth
Amendment does not permit such discriminatory treatment.
Just as the Supreme Court vindicated the foundational principles of freedom and equality
that were being trammeled by Virginias anti-miscegenation laws nearly 50 years ago, see Lov-
ing, 388 U.S. at 1112, this Court now should act to halt Virginias policy, enshrined in its con-
stitution and its laws, of walling off gay men and lesbians from the institution of marriage. Vir-
ginias ban on interracial marriages violated the constitutional commands of due process and
equal protection, and Virginias sweeping ban on marriage for gay men and lesbians violates
those constitutional commands no less. The Court should grant summary judgment to Plaintiffs
and declare Virginias Marriage Prohibition facially unconstitutional.
STATEMENT OF UNDISPUTED MATERIAL FACTS
The Evolution Of Virginias Marriage Prohibition
1. Since 1975, Virginia law has limited the institution of civil marriage to a union between a
man and a woman. Va. Code. 20-45.2.
2. In 1997, the Virginia legislature amended Virginia Code Section 20-45.2 to provide that mar-
riages legally obtained by same-sex couples in other States shall be void in all respects in
Virginia and that any contractual rights created by such marriage shall be void and unen-
forceable. Va. Code 20-45.2; Va. Senate Bill 884, ch. 354 (1997).
3. In 2004, the Virginia legislature adopted the Affirmation of Marriage Act, which amended
Virginia law to prohibit not only marriage between individuals of the same sex, but also any

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civil union, partnership contract or other arrangement between persons of the same sex pur-
porting to bestow the privileges or obligations of marriage. Va. Code 20-45.3.
4. The Affirmation of Marriage Act also provides that same-sex civil unions or partnerships le-
gally established in other States are void in all respects in Virginia and any contractual
rights created by the union shall be void and unenforceable. Va. Code 20-45.3.
5. The Affirmation of Marriage Act was known as House Bill Number 751 in the Virginia
House of Delegates and was sponsored by, among others, Richard Black and Robert Mar-
shall. Affirmation of Marriage Act, House Bill No. 751 (2004).
6. House Bill Number 751 stated that homosexual marriage . . . is directed at weakening the
institution of marriage. Id.
7. House Bill Number 751 also claimed that while heterosexual marriage requires sexual ex-
clusivity, same-sex couples who marry merely prefer sexual exclusivity, but do not de-
mand it. In addition, House Bill 751 declared that marriage between homosexuals . . . con-
tains an understanding of the need for extramarital outlets. Id.
8. House Bill Number 751 stated that marriage should be limited to a male and female, wheth-
er or not they are reproductive in effect or motivation. Id.
9. House Bill Number 751 also stated that allowing same-sex couples to marry would devalue
the status of children because children need not just parents, but a mother and a father, and
to deprive children of a mother and a father is harmful to their development. Id.
10. House Bill Number 751 stated that neither marriage nor civil unions are needed for the ex-
ercise or enjoyment of civil rights by citizens with same sex attractions. Id.
11. House Bill Number 751 included in its legislative findings the fact that in 1996, the Unit-
ed States Congress passed the Defense of Marriage Act (Pub. L. No. 104-199, 110 Stat. 2419
(1996)), which recognized the traditional definition of marriage as between one man and one
woman for all aspects of federal law. Id.
12. House Bill Number 751 also included in its legislative findings that there are life-
shortening and health compromising consequences of homosexual behavior that inure to
the detriment of all citizens regardless of their sexual orientation or inclination. Id.
13. In 2004, Richard Black, one of the co-sponsors of House Bill Number 751, publicly stated,
The whole agenda of the homosexual movement is to entice children to submit to sex prac-
tices. Those groups lead children to experiment with potentially fatal sex practices that
spread AIDS and other sexually transmitted diseases. Lustig Decl. Ex. A (The Washington
Times, Gay-Straight Clubs in Schools Anger Foes, Nov. 17, 2004).
14. In 2004, Robert Marshall, one of the co-sponsors of House Bill Number 751, authored an ar-
ticle in The Washington Post in which he referred to marriage between gay and lesbian indi-

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viduals as counterfeit marriage and stated that the Affirmation of Marriage Act was need-
ed to resist the agenda of activist homosexuals because the danger they posed was real.
Lustig Decl. Ex. B (The Washington Post, No New Jim Crow in Virginia, July 3, 2004).
15. In 2006, a majority of Virginias voters ratified a constitutional amendment (the Mar-
shall/Newman Amendment) that defines marriage as a union between one man and one
woman. Va. Const. Art. I, 15-A; Rainey Answer 19.
16. The Marshall/Newman Amendment provides that the Commonwealth and its political subdi-
visions will not create or recognize any legal status between unmarried people intended to
approximate the design, qualities, significance, or effects of marriage. Va. Const. Art. I,
15-A.
17. In addition, the Marshall/Newman Amendment provides that the Commonwealth and its po-
litical subdivisions will not create or recognize any union, partnership, or other legal status
to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. Id.
18. In 2006, then-Attorney General Robert McDonnell issued an official advisory opinion con-
cerning the proposed Marshall/Newman Amendment, which recognized that [a]mong the
legal benefits unique to marriage [under Virginia law] are a spouses share of a decedents
estate, the right to hold real property as tenants by the entireties, the authority to act as a
spouse to make medical decisions in the absence of an advance medical directive, the right
as a couple to adopt children, and other enumerated rights and obligations under the Virgin-
ia Code. Lustig Decl. Ex. C (Letter from Attorney General R. McDonnell to S. Newman, D.
Albo, K. Byron, J. Cosgrove, and R. Marshall, dated Sept. 14, 2006).
19. Campaign materials in support of the Marshall/Newman Amendment included a television
commercial that told voters, [God] created them male and female. For this reason, a man
will leave his father and mother and be united with his wife and they will become one flesh,
for Gods design. Lustig Decl. 16 (attesting to accuracy of transcription of
va4marriage.org commercial).
20. Before the Marshall/Newman Amendment was adopted, Virginia Delegate Kathy J. Byron
advocated in its favor stating, By changing the definition of marriage, the family, too, would
be redefined, ultimately destroying the traditional family. Lustig Decl. Ex. D (The Wash-
ington Post, Gay Marriage Ban Advances in Va., Jan. 14, 2006).
21. Then-Virginia Senator (now-Attorney General) Kenneth Cuccinelli urged his colleagues to
adopt the Marshall/Newman Amendment by claiming [t]he homosexual left has been on the
attack against marriage and family for 40 years, and that the amendment was necessary for
regaining lost ground. Lustig Decl. Ex. E (The Washington Post, Va. Senate Backs Ban on
Gay Marriage, Feb. 8, 2005).
22. More recently, Attorney General Cuccinelli publicly stated that homosexuality brings noth-
ing but self-destruction, not only physically but of their soul. Lustig Decl. Ex. F (The
Washington Post, Cuccinelli Basks in Richmonds Warmer Climate, Feb. 5, 2008).

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23. Similarly, Attorney General Cuccinelli has stated that homosexual acts are intrinsically
wrong and dont comport with natural law; and that homosexual behavior is not healthy
to an individual and in aggregate is not healthy to society. Lustig Decl. Ex. G (The Virginia
Pilot, Steve Shannon for Attorney General, Oct. 26, 2009); Ex. H (Huffington Post, Ken
Cuccinelli Loses Petition to Uphold Anti-Sodomy Law, Apr. 10, 2013).
24. In 2010, Virginia Governor Robert McDonnell signed an Executive Order that banned state
discrimination in the state workforce on grounds that include race, sex, religion, and age, but
he removed sexual orientation. Attorney General Cuccinelli then issued an official opinion
instructing colleges and universities in Virginia to eliminate from their non-discrimination
policies protections on the basis of sexual orientation, gender identity, gender expres-
sion, or like classification. Lustig Decl. Ex. I (Executive Order No. 6 (2010)); Ex. J (Letter
from Kenneth T. Cuccinelli, II, to Presidents, Rectors, and Visitors of Virginias Public Col-
leges and Universities, dated Mar. 4, 2010).
25. Virginia law permits private adoption agencies to refuse adoptions based on the sexual orien-
tation of the prospective parents. Va. Code 63.2-1709.3.
26. Neither Virginias Human Rights Act nor its Fair Housing Law prohibits discrimination on
the basis of sexual orientation. Va. Code 2.2-3901, 36-96.3.
27. Virginias hate crime law does not punish violence against individuals based on their sexual
orientation. Va. Code 18.2-57(B).
28. From 2004, when the Affirmation of Marriage Act was adopted, to today, there have been at
least 270 hate crimes in Virginia targeting individuals based on their sexual orientation.
Lustig Decl. 17 (attesting to tabulation of statistics available at www.fbi.gov).
Defendants Responsibilities For Enforcing Virginias Marriage Prohibition
29. Defendant George E. Schaefer, III, is Clerk of the Circuit Court for the City of Norfolk. First
Am. Compl. 15; Schaefer Answer 15.
30. Every marriage license in Virginia must be issued by the clerk or deputy clerk of a circuit
court of any county or city. First Am. Compl. 15; Va. Code 20-14.
31. Defendant Schaefer, in his official capacity as Clerk, has the duty to issue marriage licenses
in Norfolk, Virginia, to residents of his city seeking to marry. First Am. Compl. 15; Va.
Code 20-14, 20-13; Schaefer Answer 15.
32. Defendant Schaefer, in his official capacity as Clerk, is responsible for determining whether
individuals meet the requirements for marriage in Virginia as reflected in the couples appli-
cation for a marriage license. First Am. Compl. 15; Va. Code 20-14, 20-33.
33. If the Circuit Court Clerk knowingly issues a marriage license that is contrary to law, the
Clerk can be sentenced to up to one year in jail and fined up to $500. Va. Code 20-33.

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34. Defendant Schaefer is a person under 42 U.S.C. 1983 and was acting under the color of
state law at all relevant times. First Am. Compl. 15.
35. Defendant Rainey is the Virginia State Registrar of Vital Records. First Am. Compl. 16;
Rainey Answer 16.
36. Defendant Raineys duties include directing and supervising the system of vital records in the
Commonwealth. First Am. Compl. 16; Rainey Answer 16; Va. Code 32.1-252.
37. Defendant Rainey also serves as the custodian of official records and directs, supervises, and
controls the actions of all persons relating to the operation of the state-wide system of main-
taining vital records. First Am. Compl. 16; Rainey Answer 16; Va. Code 32.1-252.
38. Defendant Raineys responsibilities include providing forms for marriage licenses, marriage
certificates, and applications for marriage licenses used in Virginia. First Am. Compl. 16;
Rainey Answer 16; Va. Code 32.1-267.
39. Defendant Raineys office also compiles, publishes, and makes available to the public aggre-
gate data on the number of marriages that take place in Virginia. This data includes the age
and race of married couples, the number of minor children, if any, and other information.
First Am. Compl. 16; Rainey Answer 16; Va. Code 32.1-268.1.
40. Defendant Rainey acts in her official capacity to publish and furnish to local clerks offices
the marriage forms that require applicants to list a Bride and a Groom. First Am. Compl.
16; Rainey Answer 16; Va. Code 32.1-252.
41. Defendant Rainey also acts in her official capacity to issue new birth certificates upon proof
that a child has been adopted or legitimated through the marriage of the childs parents.
First Am. Compl. 16; Rainey Answer 16; Va. Code 32.1-261, 262.
42. Defendant Rainey is a person under 42 U.S.C. 1983 and was acting under the color of state
law at all relevant times. First Am. Compl. 16.
Plaintiffs Bostic And London
43. Plaintiffs Timothy B. Bostic and Tony C. London live in Norfolk, Virginia, where they own
their own home. Bostic Decl. 1, 3; London Decl. 12, 3.
44. Plaintiff Bostic is an Assistant Professor of English Education in the Department of English
at Old Dominion University in Norfolk, Virginia. He teaches English Education to under-
graduate students. Bostic Decl. 2.
45. Plaintiff London is a veteran of the United States Navy. He has worked as a real estate agent
in Virginia for 16 years. London Decl. 3.

7
46. Plaintiffs Bostic and London have been in a long-term, committed relationship with each
other since 1989. They have lived together continuously in Virginia for over 20 years. Bos-
tic Decl. 3; London Decl. 4.
47. Plaintiffs Bostic and London desire to marry each other. They seek to publicly commit
themselves to one another, participate in a State-sanctioned celebration of their relationship,
and receive the same rights and responsibilities that Virginia law confers on opposite-sex
couples who marry. Bostic Decl. 5; London Decl. 6.
48. Plaintiffs Bostic and London meet all of the legal requirements for marriage in Virginia (in-
cluding that they are over the age of 18, they are not related, and they reside in the Com-
monwealth), except that they are a same-sex couple. Bostic Decl. 7; London Decl. 8; Va.
Code 20-38.1, 45.1.
49. On July 1, 2013, Plaintiffs Bostic and London applied for a marriage license from the Clerk
for the Circuit Court for the City of Norfolk. They completed the application for a marriage
license and affirmed that they are over the age of 18 and unrelated. Bostic Decl. 68;
London Decl. 79.
50. Plaintiffs Bostics and Londons application for a marriage license was denied by the Clerk
of the Circuit Court for the City of Norfolk because they are a same-sex couple. Bostic Decl.
910; London Decl. 910.
Plaintiffs Schall And Townley And Their Daughter E. S.-T.
51. Plaintiffs Carol Schall and Mary Townley live in Chesterfield County, Virginia, with their
15-year-old daughter, E. S.-T. Schall Decl. 12; Townley Decl. 12, 7.
52. Plaintiff Schall is an Assistant Professor in the School of Education at Virginia Common-
wealth University (VCU) in Richmond, Virginia. She specializes in research on teaching
autistic children. Schall Decl. 3.
53. Plaintiff Townley is the Supervisor of Transition at Health Diagnostic Laboratory, Inc.
(HDL). She helps train individuals with significant disabilities so that they can work at
HDL. Townley Decl. 5.
54. Plaintiffs Townley and Schall have been in a committed relationship since 1985. Throughout
their nearly 30 years as a couple, they have lived continuously in Virginia. Schall Decl.
56; Townley Decl. 23.
55. Plaintiff Townley gave birth to the couples daughter, E. S.-T., in 1998. Schall Decl. 8;
Townley Decl. 7.
56. During Plaintiff Townleys pregnancy, she was admitted to the emergency room at VCUs
Medical Center due to complications that left her unable to speak. For several hours during
her stay, Plaintiff Schall was denied access to her or to information about her condition be-

8
cause Plaintiff Schall is not Plaintiff Townleys spouse under Virginia law. Schall Decl. 8;
Townley Decl. 9; Va. Code 54.1-2986.
57. Since E. S.-T. was born, Plaintiff Schall has desired to adopt her. Because Virginia law does
not permit second-parent adoption unless the couple is married, Plaintiff Schall cannot legal-
ly do so. Schall Decl. 12; Va. Code 63.2-1201, 1202.
58. Plaintiffs Schall and Townley retained an estate planning attorney to petition a court to grant
Plaintiff Schall full joint legal and physical custody of E. S.-T., incurring significant expens-
es in legal fees. Although the court granted their petition, Plaintiff Schall remains unable to
legally adopt E. S.-T. Schall Decl. 1314; Townley Decl. 910.
59. Despite being unable to legally adopt E. S.-T., Plaintiff Schall acts as a parent to E. S.-T., just
as Plaintiff Townley does. Together, they provide her with love, support, structure, and dis-
cipline. Plaintiffs Schall and Townley each share in E. S.-T.s triumphs and defeats, and they
are guided in their lives by E. S.-T.s best interests. They live together in one household as a
family. Schall Decl. 11, 1819; Townley Decl. 7.

60. In 2008, Plaintiffs Schall and Townley were legally married in California. Schall Decl. 6;
Townley Decl. 6.
61. Plaintiffs Schall and Townley seek to have the Commonwealth recognize their legal mar-
riage. Schall Decl. 2630; Townley Decl. 19.
62. Plaintiffs Schall and Townley meet all of the legal requirements to have their marriage rec-
ognized in Virginia (including that they were over the age of 18 at the time of their marriage,
they are not related, and they reside in the Commonwealth), except that they are a same-sex
couple. Schall Decl. 6; Townley Decl. 6; Va. Code 20-38.1, 45.1.
63. Because the Commonwealth will not recognize their legal California marriage, Plaintiffs
Schall and Townley cannot obtain a marriage license or a birth certificate for their daughter
listing them both as her parents. Schall Decl. 7, 15; Townley Decl. 10; Va. Code
20-45.2, 32.1-261.
64. In April 2012, Plaintiffs Schall and Townley sought to renew E. S.-T.s passport, a process
that typically requires the consent of both parents. When Plaintiffs Schall and Townley pre-
sented E. S.-T.s renewal forms, the civil servant at the post office told Plaintiff Schall,
Youre nobody, you dont matter. Schall Decl. 17; Townley Decl. 12.
65. After E. S.-T. was born, Plaintiff Townley had to return to work in part because her own
health insurance was expiring and she could not obtain coverage under Plaintiff Schalls in-
surance plan. Schall Decl. 21; Townley Decl. 14.
66. Until February 2013, neither Plaintiff Schall nor Plaintiff Townley was able to cover the oth-
er on their employer-provided health insurance. Schall Decl. 21; Townley Decl. 14.

9
67. Since February 2013, Plaintiff Townley has been able to obtain health insurance coverage
under her employer-provided plan for Plaintiff Schall but must pay state income taxes on the
benefit because she and Plaintiff Schall are not recognized as married by Virginia law.
Schall Decl. 21; Townley Decl. 14.
68. Plaintiffs Schall and Townley were not eligible for protections under the federal laws govern-
ing family medical leave when their daughter was born, and when one of their parents passed
away. Schall Decl. 22; Townley Decl. 17; 29 U.S.C. 2612.
69. If the Commonwealth recognized Plaintiffs Schalls and Townleys legal marriage and per-
mitted them to both be listed on their daughters birth certificate, even without a will, E. S.-T.
would inherit the estate of both parents in the event of their death, and may avoid tax penal-
ties on any inheritance from Plaintiff Schall. Schall Decl. 15, 26, 28; Townley Decl.
10, 1518; Va. Code 64.2-309.
70. Under Virginias Marriage Prohibition, agreements between Plaintiff Schall and Townley
concerning custody, care, or financial support for E. S.-T. could be declared by a court to be
void and unenforceable. Schall Decl. 29; Townley Decl. 18; Va. Code 45.2.
71. Because the Commonwealth does not recognize their legal marriage, neither Plaintiff Schall
nor Plaintiff Townley nor E. S.-T. receive the benefit of Virginias laws that promote keeping
families intact, including Virginias requirement of a one-year separation before a no-fault
divorce may be granted. Schall Decl. 30; Townley Decl. 15; Va. Code 20-91.
Additional Effects Of Virginias Marriage Prohibition On Plaintiffs
72. Plaintiffs inability to marry in Virginia or to have their legal marriage recognized by the
Commonwealth has caused them severe humiliation, emotional distress, pain, suffering, psy-
chological harm, and stigma. Bostic Decl. 18; London Decl. 20; Schall Decl. 31;
Townley Decl. 20.
73. Because of Virginias Marriage Prohibition, Plaintiffs have been unable to file tax returns as
married individuals. This has caused them to incur tax obligations that they would not have
incurred if Virginia law permitted them to marry or recognized their legal marriage. Bostic
Decl. 13; London Decl. 15; Schall Decl. 23; Townley Decl. 15; Va. Code 58.1-322.
74. Because of Virginias Marriage Prohibition, Plaintiffs cannot name their partner as their ben-
eficiary on employee benefit plans without paying state taxes on the benefits that would ac-
crue if one of them died. Bostic Decl. 13; Schall Decl. 21; Townley Decl. 14.
75. Because of Virginias Marriage Prohibition, the property Plaintiffs have acquired during the
course of their relationships that would be deemed by Virginia law to belong to both spouses
only belongs to one individual. Bostic Decl. 13; London Decl. 13; Schall Decl. 26; Va.
Code 107.3.

10
76. Because of Virginias Marriage Prohibition, Plaintiffs are not eligible for favorable insurance
rates for automobile, life, and other insurance coverages regulated by Virginia law. Bostic
Decl. 13; London Decl. 16; Schall Decl. 25; Townley Decl. 17.
77. Because of Virginias Marriage Prohibition, Plaintiffs are not mutually responsible for sup-
porting their same-sex partner in the event of their separation. London Decl. 13; Va. Code
20-61.
78. Because of Virginias Marriage Prohibition, without a will, Plaintiffs would not inherit the
estate of their same-sex partner in the event of his or her death. Bostic Decl. 15; London
Decl. 14; Schall Decl. 26, 28; Townley Decl. 16; Va. Code 64.2-302, 305.
79. Because of Virginias Marriage Prohibition, upon one partners death, the other partner
would not automatically assume full ownership of their jointly purchased home (as tenants
by the entirety) without being subject to estate taxes or the probate process. Bostic Decl.
16; London Decl. 12, 14; Schall Decl. 26, 28; Townley Decl. 16; Va. Code
55-20.2.
80. Because of Virginias Marriage Prohibition, Plaintiffs could not make a medical decision as
their partners spouse without an advance medical directive. Bostic Decl. 15; London
Decl. 17; Schall Decl. 27; Townley Decl. 8; Va. Code 54.1-2986.
81. Now that the Supreme Court has invalidated the federal Defense of Marriage Act, Virginias
Marriage Prohibition also causes Plaintiffs to be denied federal benefits to which they would
be entitled if their marriages were legal or recognized in Virginia. Bostic Decl. 17; London
Decl. 18; Schall Decl. 22; Townley Decl. 17.
82. The Plaintiffs feel shame, stigma, and humiliation as a result of Virginias Marriage Prohibi-
tion. Plaintiffs feel that they have been singled out for discriminatory treatment and that the
Commonwealth has deemed them to be second-class citizens. They feel that the laws reflect
the Commonwealths rejection of their decision or desire to marry one another. Plaintiffs al-
so feel that the laws classify them, their relationships, and their families as less than others,
not good enough for the Commonwealths sanction, and undeserving of recognition or pro-
tection under Virginias laws. Plaintiffs are ashamed and embarrassed that they cannot marry
the person they love in Virginia and it causes each of them great pain. Bostic Decl. 18;
London Decl. 20; Schall Decl. 31; Townley Decl. 20.
ARGUMENT
I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE
VIRGINIAS MARRIAGE PROHIBITION IS UNCONSTITUTIONAL.
This Court should grant summary judgment to Plaintiffs because Virginias Marriage
Prohibition violates Plaintiffs due process and equal protection rights under the United States

11
Constitution as a matter of law. Accordingly, Virginias Marriage Prohibition should be declared
facially unconstitutional and permanently enjoined throughout the Commonwealth.
1

This case raises a facial constitutional challenge to a Virginia constitutional provision and
several Virginia statutes and the material facts are undisputed.
2
Thus, summary judgment is ap-
propriate. See Fed. R. Civ. P. 56; The News and Observer Publg Co. v. Raleigh-Durham Air-
port Auth., 597 F.3d 570, 576 (4th Cir. 2010); Barghout v. Bureau of Kosher Meat and Food
Control, 66 F.3d 1337, 1340 (4th Cir. 1994).
A. By Denying Gay Men And Lesbians The Right To Marry, Virginias
Marriage Prohibition Violates Due Process.
The right to marry is one of the most fundamental rightsif not the most fundamental
rightof an individual. Loving, 388 U.S. at 12. The Supreme Court has defined marriage as a
right of liberty (Zablocki, 434 U.S. at 384), privacy (Griswold v. Connecticut, 381 U.S. 479, 486
(1965)), intimate choice (Lawrence, 539 U.S. at 574), and association (M.L.B., 519 U.S. at 116).
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred. Griswold, 381 U.S. at 486.

1
Plaintiffs seek relief not only from Va. Const. Art. I, 15-A, and Va. Code 20-45.2, 45.3,
but also from any other Virginia law that bars same-sex marriage or prohibits the States
recognition of otherwise-lawful same-sex marriages from other jurisdictions. See First Am.
Compl., Prayer for Relief, 1, 2. Plaintiffs constitutional challenge therefore extends also
to any Virginia case or common law that Defendants would enforce to withhold marriage
from same-sex couples or deny recognition to the legal marriage of a same-sex couple.

2
In addition to considering the undisputed facts described above, this Court should take judi-
cial notice of facts that are generally known within the trial courts territorial jurisdiction or
that can be accurately and readily determined from sources whose accuracy cannot reasona-
bly be questioned. Fed. R. Evid. 201(b). Where a party requests that the Court take judicial
notice and supplies the Court with the necessary information, the Court must take notice of
those facts. Id. at 201(c)(2). Plaintiffs request that this Court take judicial notice of the facts
contained in Exhibits A, B, DH, K, and N, attached to the Lustig Declaration. See Alizai v.
MVM, Inc., 40 F. Supp. 2d 752, 756 (E.D. Va. 1998); Washington Post v. Robinson, 935 F.2d
282, 291 (D.C. Cir. 1991).

12
The right to marry has always been based on, and defined by, the constitutional liberty to
select the partner of ones choice. See generally Loving, 388 U.S. 1; Turner v. Safley, 482 U.S.
78 (1987). As the Supreme Court explained in Lawrence, our laws and tradition afford consti-
tutional protection to personal decisions relating to marriage . . . [and] family relationships be-
cause of the respect the Constitution demands for the autonomy of the person in making these
choicesand [p]ersons in a homosexual relationship may seek autonomy for these purposes,
just as heterosexual persons do. 539 U.S. at 574. It is therefore unconstitutional to deprive
some couples . . . , but not other couples, of [the] rights and responsibilities [of marriage].
Windsor, 133 S. Ct. at 2694.
Defendants may contend that marriageand thus the fundamental right to marry
excludes same-sex couples as a definitional matter, and that Plaintiffs are seeking access to a
new right of same-sex marriage. But just as striking down Virginias prohibition on marriage
between persons of different races did not require the Supreme Court to recognize a new consti-
tutional right to interracial marriage in Loving, invalidating Virginias Marriage Prohibition
would not require recognition of a new right to same-sex marriage. See Lawrence, 539 U.S. at
566, 574 (invalidating Texass criminal prohibition on same-sex intimate conduct because it vio-
lated the fundamental right to personal sexual autonomy guaranteed by the Due Process Clause,
and refusing to describe the fundamental right at stake narrowly as the right of homosexuals
to engage in sodomy). Instead, it would vindicate the longstanding right of all persons to exer-
cise freedom of personal choice in deciding whether and whom to marry, id., and to accord to
each citizens decision the same status and dignity. Windsor, 133 S. Ct. at 2689.
The fundamental right of marriage is not limited to couples that might procreate, as some
have asserted. At the threshold, when the Virginia legislature passed the Affirmation of Mar-

13
riage Act, it declared that marriage should be consummated . . . whether or not [the spouses] are
reproductive in effect or motivation, thereby disavowing any connection between marriage and
procreation. House Bill No. 751 (2004). And appropriately so, because the Supreme Court has
never defined the right to marry in terms of the couples ability or desire to produce or raise chil-
dren. Rather, the Supreme Court has expressly recognized that the right to marry extends to in-
dividuals unable to procreate with their spouse, see Turner, 482 U.S. at 95, and that married cou-
ples have a fundamental right not to procreate, see Griswold, 381 U.S. at 485. In fact, the Su-
preme Court has held that even incarcerated prisoners with no right to conjugal visits have a fun-
damental right to marry because [m]any important attributes of marriage remain . . . after taking
into account the limitations imposed by prison life . . . [including the] expressions of emotional
support and public commitment, the exercise of religious faith, and the expression of per-
sonal dedication, which are an important and significant aspect of the marital relationship.
Turner, 482 U.S. at 9596.
3

As in other States, the purposes of marriage in Virginia include the state recognition and
approval of a couples choice to live with each other, to remain committed to one another and to
form a household based on their own feelings about one another and to join in an economic part-
nership and support one another and any dependents. Perry v. Schwarzenegger, 704 F. Supp.
2d 921, 961 (N.D. Cal. 2010); see also id. at 993 (The right to marry has been historically and

3
In any event, it is indisputable that thousands of gay and lesbian couplesincluding Plain-
tiffs Schall and Townleydo procreate. See Windsor, 133 S. Ct. at 2694 (recognizing laws
prohibiting gay men and lesbians from marrying humiliate[] tens of thousands of children
now being raised by same-sex couples). Thus, to the extent Virginia relies on responsible
procreation (which is to say procreation within marriage) to justify Virginias Marriage Pro-
hibition, that interest would be served only by letting gay men and lesbians marrynot by
prohibiting it and thus depriving the tens of thousands of children being raised by same-sex
couples of the financial, social, and legal benefits of marriage.

14
remains the right to choose a spouse and, with mutual consent, join together and form a house-
hold.). Marriage is a far reaching legal acknowledgement of the intimate relationship between
two people, and reflects the States determination that a couple is worthy of dignity in the
community. Windsor, 133 S. Ct. at 2692. This is precisely the venerated, officially sanctioned
relationship that Plaintiffs seek to enter because for Plaintiffsas for the rest of society
marriage is the most important relation in life. Zablocki, 434 U.S. at 384.
Virginias withholding of this fundamental right from Plaintiffs has far-reaching implica-
tions, denying them many of the legal, social, and financial benefits enjoyed by opposite-sex
couples. As in other States, Virginias definition of marriage is the foundation of the States
broader authority to regulate the subject of domestic relations with respect to the protection of
offspring, property interests, and the enforcement of marital responsibilities. Windsor, 133 S.
Ct. at 2691 (internal quotation marks omitted); see also Massachusetts v. U.S. Dept of Health &
Human Servs. (Gill), 682 F.3d 1, 11 (1st Cir. 2012) (Loss of survivors social security,
spouse-based medical care and tax benefits are major detriments on any reckoning. Provision for
retirement and medical care are, in practice, the main components of the social safety net for vast
numbers of Americans.); Perry, 704 F. Supp. 2d at 963 (Material benefits, legal protections
and social support resulting from marriage can increase wealth and improve psychological well-
being for married spouses.).
For those reasons, lawslike the laws that comprise Virginias Marriage Prohibition
that interfere[ ] directly and substantially with the fundamental right to marriage are subject to
strict scrutiny, Waters v. Gaston Cnty., 57 F.3d 422, 426 (4th Cir. 1995), and can be sustained
only where the government meets its burden of establishing that the statutes are narrowly
drawn to further a compelling state interest[ ]. Carey v. Population Servs. Intl, 431 U.S. 678,

15
686 (1977). Because Defendants lack a compelling justification for prohibiting individuals of
the same sex to marry, Virginias Marriage Prohibition violates Plaintiffs due process rights for
the same reasons that they violate Plaintiffs equal protection rights (described below). See Lov-
ing, 388 U.S. at 12 (striking down anti-miscegenation law on both equal protection and due pro-
cess grounds); see also Lawrence, 539 U.S. at 575 (Equality of treatment and the due process
right to demand respect for conduct protected by the substantive guarantee of liberty are linked
in important respects, and a decision on the latter point advances both interests.). Indeed, far
from satisfying the rigorous demands of strict scrutiny, Virginias Marriage Prohibition cannot
satisfy even rational basis review. See infra Part B.3.
B. By Denying Gay Men And Lesbians The Right To Marry, Virginias
Marriage Prohibition Violates Equal Protection.
Virginias Marriage Prohibition also is antithetical to the principles of equality on
which this Nation . . . prides itself. Plyler v. Doe, 457 U.S. 202, 219 (1982). It creates a per-
manent underclass of hundreds of thousands of gay and lesbian Virginians, id., who are denied
the fundamental right to marry available to all other Virginians simply because of public disap-
proval of their constitutionally protected sexual identities. See Windsor, 133 S. Ct. at 2694 (cit-
ing Lawrence, 539 U.S. at 588). Virginias Marriage Prohibition instructs all state and federal
officials within Virginia, and indeed all persons with whom same-sex couples interact, includ-
ing their own children, that same-sex relationships are unworthy of dignity and respect. Id. In
doing so, the laws relegate gay men and lesbians to a disadvantaged, stigmatized, second-class
status in violation of the Equal Protection Clause.
Discriminates On The Basis Of Sexual Orientation.
Because Virginias Marriage Prohibition classifies Virginia citizens on the basis of sexual
orientation, denying gay men and lesbians the right to marry, this Court should apply strict scru-

16
tiny. The Supreme Court consistently has applied heightened scrutiny to laws that discriminate
against a group that has experienced a history of purposeful unequal treatment or ha[s] been
subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of
their abilities. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam) (internal
quotation marks omitted); see also United States v. Virginia, 518 U.S. 515, 531 (1996) (noting
long and unfortunate history of sex discrimination).
4

In addition to a history of discrimination based on a characteristic that frequently
bears no relation to ability to perform or contribute to society, City of Cleburne v. Cleburne Liv-
ing Ctr., Inc., 473 U.S. 432, 440441 (1985) (internal quotation marks omitted), the Supreme
Court has identified two additional factors that may be relevant to whether a classification trig-
gers heightened scrutiny: (1) whether the distinguishing characteristic is immutable or beyond
the group members control, see Lyng v. Castillo, 477 U.S. 635, 638 (1986), and (2) whether the
group is a minority or politically powerless, Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (in-
ternal quotation marks omitted). The Supreme Court has not considered these additional factors
in every case (see, e.g., Murgia, 427 U.S. at 313), and the Supreme Court has applied heightened
scrutiny in cases where those factors were not present. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 235 (1995) (holding that all racial classifications are inherently suspect, even
though many racial groups exercise substantial political power).
Although the Fourth Circuit has held that discrimination based on sexual orientation is
subject to rational basis review, see Veney v. Wyche, 293 F.3d 726, 73132 (4th Cir. 2002);

4
This Court should also apply strict scrutiny under the Equal Protection Clause because Vir-
ginias Marriage Prohibition directly and substantially interferes with Plaintiffs fundamental
right to marry. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966); Kramer
v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 632-33 (1969); Griffin v. Illinois, 351 U.S. 12,
18 (1956) (plurality op.).

17
Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996), those decisions were premised on the ab-
sence of constitutional protection for same-sex intimate conducta premise that is now false.
See Veney, 293 F.3d at 731 n.4 (noting that there is no fundamental right to engage in homosex-
ual acts generally); Thomasson, 80 F.3d at 929 (noting that it is legitimate for Congress to pro-
scribe homosexual acts). In Lawrence, the Supreme Court plainly held that statutes criminaliz-
ing private acts of consensual sodomy between adults are inconsistent with the protections of lib-
erty assured by the Due Process Clause of the Fourteenth Amendment. MacDonald v. Moose,
710 F.3d 154, 163 (4th Cir. 2013) (citing Lawrence, 539 U.S. at 578). This Court accordingly is
free to reexamine whether discrimination based on sexual orientation is subject to heightened
scrutiny. See Faust v. S.C. State Highway Dept, 721 F.2d 934, 936 (4th Cir. 1983) (decisions
that have been sufficiently undermined by subsequent Supreme Court decisions . . . should no
longer be followed).
Further, the Supreme Courts recent decision in Windsor demonstrates that a standard far
more exacting than traditional rational basis review applies to laws that discriminate on the basis
of sexual orientation. See 133 S. Ct. at 2707 (Scalia, J, dissenting) (noting that the majority did
not apply rational basis review); see also Windsor v. United States, 699 F.3d 169, 181 (2d Cir.
2012) (applying heightened scrutiny to DOMA); Gill, 682 F.3d at 11 (same). In Windsor, the
Court invalidated Section 3 of DOMA, which precluded federal recognition of marriages be-
tween individuals of the same sex. Rather than defer to the rationales that DOMAs proponents
advanced to justify the law, see Br. for Bipartisan Legal Advisory Group of the U.S. House of
Representatives, at 3049, United States v. Windsor (No. 12-307), the Windsor Court explained
that the design, purpose, and effect of the law were only the beginning point in deciding
whether it is valid under the Constitution. Id. at 2689. The Court then took into account the

18
fact that gay men and lesbians historically had been excluded unjustly from marriage, id. at
2689; that there was no principled basis for departing from the long-established precept that
the incidents, benefits, and obligations of marriage should be uniform within each State, id. at
2692; and that the law was impermissibly motivated by a bare . . . desire to harm couples in
same-sex marriages, id. at 269394, 2707. The Windsor Courts conclusionthat DOMA vio-
lated due process and equal protection because the purpose and practical effect of the law . . .
[was] to impose a disadvantage, a separate status, and so a stigma upon same-sex couples
comports with heightened scrutiny review, not rational basis, and confirms that heightened scru-
tiny is appropriate here.
History of Discrimination. It is beyond dispute that gay persons historically have been,
and continue to be, the target of purposeful and pernicious discrimination due solely to their sex-
ual orientation. Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 432 (Conn. 2008). [F]or
centuries there have been powerful voices to condemn homosexual conduct as immoral. Law-
rence, 539 U.S. at 571; see also Veney, 293 F.3d at 733-34 ([W]e cannot ignore the fact that
homosexuals are subject to bias-motivated attacks from heterosexuals.). Federal courts there-
fore consistently recognize that [g]ays and lesbians have been victims of a long history of dis-
crimination. Perry, 704 F. Supp. 2d at 981; Gill, 682 F.3d at 11 (As with the women, the poor,
and the mentally impaired, gays and lesbians have long been the subject of discrimination.).
This moral condemnation continues to find expression today in state-sanctioned discrimi-
nation. Indeed, just last year, the Virginia legislature passed a law permitting adoption agencies
to refuse adoptions based on the sexual orientation of the prospective parents. See Va. Code
63.2-1709.3. Neither Virginias Human Rights Act nor its Fair Housing Law prohibits dis-
crimination on the basis of sexual orientation. See Va. Code 2.2-3901, 36-96.3. Virginias

19
hate crime law does not punish violence against individuals on the basis of their sexual orienta-
tion, despite the fact that, since 2004, there have been at least 270 attacks in Virginia alone
against individuals based on their sexual orientation. See Va. Code 18.2-57(B); Lustig Decl.
17. And, in 2010, after Governor McDonnell issued an Executive Order that allowed discrimi-
nation on the basis of sexual orientation in the state workforce, Attorney General Cuccinelli in-
structed colleges and universities in Virginia to eliminate from their non-discrimination policies
protections on the basis of sexual orientation, gender identity, gender expression, or like
classification. See Lustig Decl. Exs. I, J. This history of purposeful unequal treatment based
on the sexual orientation of gay and lesbian individuals is the hallmark of a suspect classifica-
tion. Murgia, 427 U.S. at 313 (internal quotation marks omitted).
Contribution to Society. Like the suspect classifications of race, alienage, national
origin, and religion, sexual orientation has absolutely no relation to [the] ability of a person to
perform or contribute to society. City of Cleburne, 473 U.S. at 44041 (citation omitted). Sex-
ual orientation is simply irrelevant to whether someone can make a meaningful contribution to
the social, political, or cultural life of this Nation. Unlike age or mental disabilitytwo classifi-
cations that receive rational basis scrutiny (Murgia, 427 U.S. at 314; City of Cleburne, 473 U.S.
at 446)it is impossible to identify real and undeniable differences in the ability of gay men
and lesbians and heterosexuals to function in, and contribute to, society. City of Cleburne, 473
U.S. at 444. Indeed, the only limitations on the ability of gay and lesbian individuals to partici-
pate in all aspects of American life are those imposed by discriminatory laws or private discrimi-
natory conduct.
Same-sex couples are no less able to form long-lasting and successful relationships than
opposite-sex couples. Indeed, [s]ame-sex couples are identical to opposite-sex couples in the

20
characteristics relevant to the ability to form successful marital unions. Like opposite-sex cou-
ples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and
strong commitments to their partners. Perry, 704 F. Supp. 2d at 967. Gay and lesbian couples
also are just as capable of raising well-adjusted children. See id. at 98081 (Children raised by
gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, suc-
cessful and well-adjusted.). In the field of developmental psychology, the research supporting
this conclusion is accepted beyond serious debate. Id.
5

Immutability. Federal courts have recognized that [s]exual orientation and sexual iden-
tity are immutable, Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000), because
[s]exual orientation is fundamental to a persons identity, Perry, 704 F. Supp. 2d at 96466.
Homosexuality is as deeply ingrained as heterosexuality, Hernandez-Montiel, 225 F.3d at 1093
(internal quotation marks omitted), and denying gay men and lesbians access to marriage rights
will not affect the gender choices of those seeking marriage. Gill, 682 F.3d at 1415. There-
fore, sexual orientation is an immutable and distinguishing characteristic that defines gays and
lesbians as a discrete group. Perry, 704 F. Supp. 2d at 96466; see also Windsor v. United
States, 699 F.3d 169, 185 (2d Cir. 2012); cf. Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)
(Alito, J.) (accepting definition of an immutable characteristic as one that 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) (internal quotation marks omitted).

5
See, e.g., Amicus Br. for The Am. Psychological Assn, et al., at 22-30, Hollingsworth v.
Perry (No. 12-144); Amicus Br. for The Am. Psychological Assn, et al., at 18-26, United
States v. Windsor (No. 12-307); Amicus Br. for The Am. Sociological Assn, at 6-14, United
States v. Windsor (No. 12-307) & Hollingsworth v. Perry (No. 12-144).

21
Political Power. Although gay men and lesbians have enjoyed some recent success at the
ballot box in some areas of the country, they unquestionably lack sufficient political power to
eliminate significant statutory disadvantages at the state and federal levelparticularly in Vir-
ginia. Cf. Frontiero v. Richardson, 411 U.S. 677, 68586 (1973) (plurality op.) (even though
the position of women in America has improved markedly in recent decades, the long and
unfortunate history of sex discrimination requires application of heightened scrutiny). Voters
nationwide have used initiatives or referenda to repeal or prohibit marriage rights for gay and
lesbian individuals 34 times; in contrast, such measures have been defeated just five timesand
one of those victories was undone by voters in the next election cycle. See Lustig Decl. Ex. K
(The Washington Post, For a Change, Gay Rights Activists Welcome Election Day Results, Nov.
8, 2012 (describing victories in Maryland, Maine, Minnesota, and Washington, but noting that
North Carolina voters delivered another drubbing in a string of 30-plus statewide losses for gay-
marriage activists)).
Moreover, gay and lesbian individuals have been unable to secure federal legislation to
protect themselves from discrimination in housing, employment, or public accommodations; and
they lack similar protections in 29 States, including Virginia. See Va. Code 2.2-3901,
36-96.3. Indeed, even setting aside their dismal record in plebiscites concerning their right to
marry, gay men and lesbians have lost approximately 70% of initiatives pertaining to other issues
in the last 20 yearstypically initiatives to pass, or prevent the repeal of, basic antidiscrimina-
tion protections that the majority and other minority groups already enjoy.
Discriminates On The Basis Of Sex.
Virginias Marriage Prohibition should also be subject to heightened scrutiny because it
classifies Virginia citizens on the basis of sex. Classifications based on sex can be sustained on-

22
ly where the government demonstrates that they are substantially related to an important gov-
ernmental objective. Virginia, 518 U.S. at 533 (internal quotation marks omitted); Gill, 682
F.3d at 9 (Gender-based classifications invoke intermediate scrutiny and must be substantially
related to achieving an important governmental objective.).
Virginias Marriage Prohibition classifies Plaintiffs based on their sex because Plaintiffs
Bostic and London would be able to marry each other in Virginia if one of them were female,
and Plaintiffs Schalls and Townleys marriage would be recognized in Virginia as valid if one
of them were male. The Equal Protection Clause prohibits such differential treatment or denial
of opportunity based on a persons sex in the absence of an exceedingly persuasive justifica-
tion. Virginia, 518 U.S. at 53233 (internal quotation marks omitted). The Commonwealth of-
fers none.
3. Virginias Marriage Prohibition Cannot Survive Rational Basis
Review, Let Alone Heightened Scrutiny.
Virginias Marriage Prohibition is unconstitutional even under rational basis review be-
cause it irrationally deprives gay and lesbian individuals of the right to marry. Rational basis
review does not mean no review at all. Government action that discriminates against a discrete
class of citizens must bear[ ] a rational relation to some legitimate end. Romer, 517 U.S. at
631. The States supposed rationales for enacting the law at issue must find some footing in the
realities of the subject addressed by the legislation, Heller v. Doe, 509 U.S. 312, 321 (1993),
and must be ones that could reasonably be conceived to be true by the governmental deci-
sionmaker. Vance v. Bradley, 440 U.S. 93, 111 (1979).
Even where there is a legitimate purpose that the government conceivably might have
adopted in enacting the law, the Equal Protection Clause further requires that the States dispar-
ate treatment bear at least a rational relationship to the governmental objective. City of

23
Cleburne, 473 U.S. at 446. A State may not rely on a classification whose relationship to an
asserted goal is so attenuated as to render the distinction arbitrary or irrational. Id. at 447. By
insist[ing] on knowing the relation between the classification adopted and the object to be at-
tained, courts ensure that classifications are not drawn for the purpose of disadvantaging the
group burdened by the law. Romer, 517 U.S at 632, 633.
In this case, Defendants cannot identify any rational basis for excluding gay and lesbian
individuals from all of the benefits and responsibilities of marriage. None of the grounds typical-
ly advanced by proponents of such prohibitions bears even a rational relationship to the sweeping
laws at issue here.
a. Virginias Marriage Prohibition Cannot Be Justified By A
Desire To Promote Responsible Procreation Or Create
Optimal Child-Rearing Conditions.
Defendants cannot rely on an asserted interest in promoting so-called responsible pro-
creation or creating a child-rearing environment they believe to be optimal. At the threshold,
there is simply no evidence to suggest and no reason to believe that prohibiting gays and lesbians
from marrying will increase responsible procreation among heterosexuals or the number of
children raised in assertedly optimal conditions. The availability of marriage to gay men and
lesbians has no effect on the ability of heterosexual couples to have and raise children.
The Virginia legislature accordingly disavowed any such purpose when it enacted the Af-
firmation of Marriage Act, declaring that marriage should be limited to opposite-sex couples
whether or not they are reproductive in effect or motivation. House Bill No. 751. That is con-
sistent with the Supreme Courts recognition that the right to marry extends to individuals unable
to procreate with their spouse, see Turner, 482 U.S. at 95, and that married couples have a fun-
damental right not to procreate, see Griswold, 381 U.S. at 48586. And insofar as Virginia (like
all States) permits marriage between individuals who are unable or unwilling to bear children, or

24
who simply have no desire for children, see Lustig Decl. Ex. L (Va. Dept of Health, Marriage
Requirements, http://www.vdh.state.va.us/vital_records/marry.htm), Virginias Marriage Prohi-
bition is a tellingly underinclusive means of achieving whatever procreative ends the Common-
wealth may assert as justifying the sweeping restrictions Virginias Marriage Prohibition places
on marriage.
Sometimes, a means of pursuing [an] objective can be so woefully underinclusive as
to render belief in that purpose a challenge to the credulous. Republican Party of Minn. v.
White, 536 U.S. 765, 780 (2002); see also Romer, 517 U.S. at 633; Fla. Star v. B.J.F., 491 U.S.
524, 54041 (1989). If Virginias Marriage Prohibition was intended to reserve marriage for
couples that can procreate or raise children, it makes no sense in light of how [it treats] other
groups similarly situated in relevant respects. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.
356, 366 n.4 (2001); cf. Lawrence, 539 U.S. at 60405 (Scalia, J., dissenting) (Absent moral
disapprobation . . . what justification could there possibly be for denying the benefits of marriage
to homosexual couples exercising the liberty protected by the Constitution? Surely not the en-
couragement of procreation, since the sterile and the elderly are allowed to marry.) (citations
and alteration omitted). The far more logical and obvious reason that Virginia denies marriage to
gay men and lesbians is that they are gay.
Indeed, far from aiding children, or ensuring they are raised in more optimal environ-
ments, Virginias Marriage Prohibition in fact does great damage to the many thousands of chil-
dren in the Commonwealth being raised by gay men and lesbians, including Plaintiffs Schalls
and Townleys daughter, E. S.-T. Virginias Marriage Prohibition bring[s] financial harm to
children of same-sex couples by, among other things, rais[ing] the cost of health care for fami-
lies by taxing health benefits provided by employers to the workers same-sex spouses. Wind-

25
sor, 133 S. Ct. at 2695. And even more seriously, laws like Virginias Marriage Prohibition
humiliate[] children raised by gay and lesbian couples, making it more difficult for the chil-
dren 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. Thus, if
Plaintiffs Schalls and Townleys marriage were recognized in Virginia, for example, they would
have more resources to provide for E. S.-T.; they would spend less money on attorneys, taxes,
and insurance; and the States custodial and support laws would provide E. S.-T. with the protec-
tions they provide to children of opposite-sex married couples. Schall Decl. 21, 2829;
Townley Decl. 9, 1719. And E. S.-T. would not have to live with the daily pain and humilia-
tion of having her State declare in its governing charter that her family is second-rate and unwor-
thy not only of marriage, but of any relationship or status that might approximate it. Only allow-
ing same-sex couples to marry would benefit children in Virginia. See Perry, 704 F. Supp. 2d at
963 (The tangible and intangible benefits of marriage flow to a married couples children.).
b. Virginias Marriage Prohibition Cannot Be Justified By
Tradition Or A Fear Of Change.
Tradition and history are a manifestly insufficient basis for a State to impair a persons
constitutionally protected right to marry. [N]either the antiquity of a practice nor the fact of
steadfast legislative and judicial adherence to it through the centuries insulates it from constitu-
tional attack[.] Williams v. Illinois, 399 U.S. 235, 239 (1970); see also Heller, 509 U.S. at 326
(Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational
basis.). A States practice of restricting its citizens constitutional rights thus cannot be perpet-
uated merely for its own sake. Romer, 517 U.S. at 635. As the Supreme Court recognized
when invalidating a criminal prohibition on same-sex intimate conduct, times can blind us to

26
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.
Accordingly, Virginias longstanding tradition of prohibiting marriage between individu-
als of the same sex cannot shield its marriage laws from federal constitutional scrutiny any more
than Virginias longstanding tradition of prohibiting marriage by individuals of different races
which dated back to the colonial periodcould shield its anti-miscegenation law from the
Fourteenth Amendments requirements. Loving, 388 U.S. at 6; see also Lawrence, 539 U.S. at
57778 ([N]either history nor tradition could save a law prohibiting miscegenation from consti-
tutional attack.) (citation omitted).
In any event, prohibiting marriage by gay and lesbian individuals does not plausibly pre-
serve or strengthen the tradition of marriage in Virginia. Allowing same-sex couples to marry
will not impair in any way the ability of individuals who wish to marry a person of the opposite
sex to exercise their own constitutional right to marry. Cf. Hollingsworth v. Perry, 133 S. Ct.
2652, 2659 (2013) (although heterosexuals might have a keen interest in the issue, permitting
marriages between individuals of the same sex does not cause opposite-sex couples to suffer any
concrete and particularized injury). Removing the unconstitutional state-law impediment to
marriage by gay and lesbian individuals will simply put an end to the irrational denial of the right
to marry to a group of individuals who have historically been excluded from this most basic civ-
il right[ ] of man. Loving, 388 U.S. at 12 (internal citation omitted).
Indeed, allowing same-sex couples the right to marry will not impair the institution of
marriage any more than discarding the earlier race restrictions or gender inequality that once
were prominent features of civil administration of marriage. See Perry, 704 F. Supp. 2d at 960
(Eliminating gender and race restrictions in marriage has not deprived the institution of mar-

27
riage of its vitality.). The marriage rate for opposite-sex couples in States that allow same-sex
couples to marry has not declined. See Lustig Decl. Ex. M (Alexis Dinno and Chelsea Whitney,
Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage, PLoS One (2013)).
Indeed, according to statistics from the United States Census Bureau, the divorce rate in the
states that allow gay marriage is 20% lower in than in states that prohibit it. Lustig Decl. Ex. N
(Edward McClelland, States That Allow Same-Sex Marriage Have Lower Divorce Rates, NBC
Chicago, Jun. 27, 2013).
Because [p]ermitting same-sex couples to marry will not affect the number of opposite-
sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect
the stability of opposite-sex marriages, Perry, 704 F. Supp. 2d at 972, a misguided desire to
cling to tradition or guard against change cannot justify Virginias Marriage Prohibition.
c. Virginias Marriage Prohibition Cannot Be Justified By
Federalism Or An Interest In Democratic Self-Governance.
Nor can Defendants justify Virginias Marriage Prohibition by pointing to principles of
federalism or Virginias interest in democratic self-governance. Although marriage has tradi-
tionally been regulated by the States, the States power to regulate marriage unquestionably is
constrained by the commands of the Fourteenth Amendment. Loving, 388 U.S. at 7 (citing
Meyer v. State of Nebraska, 262 U.S. 390 (1923)); see also Windsor, 133 S. Ct. at 2691 (State
laws defining and regulating marriage, of course, must respect the constitutional rights of per-
sons[.]) (citing Loving, 388 U.S. at 7). Where States have exceeded their powers by imposing
unconstitutional restrictions on marriage, federal courts have not hesitated to invalidate those re-
strictions. See, e.g., Loving, 388 U.S. at 1113; Turner, 482 U.S. at 9499; Perry, 704 F. Supp.
2d at 1003.

28
d. Undisputed Evidence Demonstrates That Virginias Marriage
Prohibition Was Motivated By A Bare Desire To Make Gay
Men And Lesbians Unequal To Everyone Else.
Undisputed evidence demonstrates that Virginias Marriage Prohibition was premised
principally upon moral disapproval of homosexuality. This is a demonstrably improper ground
for abridging constitutional rights. The Supreme Court has made clear that [m]oral disapprov-
al of gay men and lesbians, like a bare desire to harm the group, is an interest that is insuffi-
cient to satisfy even rational basis review. Lawrence, 539 U.S. at 582. While [p]rivate biases
may be outside the reach of the law, the law cannot, directly or indirectly, give them effect at
the expense of a disfavored groups fundamental constitutional rights. Palmore v. Sidoti, 466
U.S. 429, 433 (1984); see also Lawrence, 539 U.S. at 577 ([T]he fact that the governing majori-
ty in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice.) (citation omitted) (internal quotation marks omitted).
In examining the statutory language and legislative history of DOMA earlier this year,
the Supreme Court found that interference with the equal dignity of same-sex marriages was
the essence of the lawand that the law was unconstitutional for that reason. Windsor, 133 S.
Ct. at 2693. As the Court explained, the avowed purpose and practical effect of the law was to
impose a disadvantage, a separate status, and so a stigma upon gay and lesbian relationships,
relegating them to an inferior status. Id. The stated purpose of the law was to promote an inter-
est in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.
Id. Even the name of the lawthe Defense of Marriage Actsuggested an improper pur-
pose. Id.
Virginias Marriage Prohibitionwhich includes the Affirmation of Marriage Act
suffers from exactly the same failings and must therefore suffer the same fate. These laws, just
like DOMA, were enacted to deprive some couples . . . , but not other couples, of both rights

29
and responsibilities, thereby writ[ing] inequality into the Virginia Constitution and statutory
code. Windsor, 133 S. Ct. at 2694. In enacting the laws, members of Virginias legislature and
executive branch publicly denounced gay and lesbian relationships as intrinsically wrong and
in contravention of natural law, Lustig Decl. Exs. G, H, and made legislative findings pro-
nouncing that homosexual behavior is detriment[al] [to] all citizens regardless of their sexual
orientation or inclination. House Bill No. 751. These same officials and others promoted Vir-
ginias Marriage Prohibition as a necessary shield to protect the traditional family, which gay
men and lesbians had purportedly been attacking for 40 years. Lustig Decl. Exs. D, E. Simi-
larly, campaign materials supporting the Marshall/Newman Amendment decried same-sex cou-
ples as contravening Gods Design, and proponents of the Amendment claimed it was neces-
sary to resist the real danger of gay and lesbian individuals attacking the traditional family.
Lustig Decl. 16, Ex. B. The laws even cited DOMA itself as a leading justification. House
Bill No. 751. Like DOMA, interference with the equal dignity of same-sex marriages is un-
questionably the essence of Virginias Marriage Prohibition. Windsor, 133 S. Ct. at 2693.
The sweeping breadth of Virginias Marriage Prohibitionwhich prohibits gay men and
lesbians not only from marrying, but from participating in any of the rights, benefits, obliga-
tions, qualities, or effects of marriage, Va. Const. art. I, 15-Aalso itself provides strong
evidence of a law having the purpose and effect of disapproval of that class. Windsor, 133 S.
Ct. at 2693. Whatever inadequate justifications Defendants muster for depriving gay men and
lesbians the fundamental right to marry cannot possibly justify the Commonwealths refusal to
recognize couples who have already been lawfully married elsewhere. Va. Code 20-45.2. Nor
can they possibly justify depriving same-sex couples the ability to enter into basic contract[ual]
. . . arrangement[s]. Va. Code 20-45.3. By its great reach, [Virginias Marriage Prohibition]

30
touches many aspects of married and family life, from the mundane to the profound, causing
same-sex . . . couples [to] have their lives burdened, by reason of government decree, in visible
and public ways. Windsor, 133 S. Ct. at 2694. As with DOMA, no legitimate purpose over-
comes the purpose and effect to disparage and injure gay men and lesbians in this manner, and
Virginias Marriage Prohibition must be struck down as unconstitutional. Id. at 2696.
* * *
Based solely on their sexual orientation, Plaintiffs and thousands of other Virginians are
being deprived of their fundamental right to enjoy lifes most sacred and important relationship.
Allowing them to marry the person they love (or, in the case of Plaintiffs Schall and Townley,
recognizing that they have already married the person they love) will not diminish the value or
status of anyone elses marriage or harm a single Virginian in any conceivable way. But contin-
uing to refuse gay men and lesbians the basic dignity that is afforded to every other Virginian
causes pain, stigma, and humiliation to same-sex couples and to their children, including E. S.-T.
The federal Constitutionas well as bedrock principles of liberty, equality, and decencydoes
not permit Virginia to inflict such needless harm on its citizens. This Court should grant sum-
mary judgment to Plaintiffs, declare Virginias Marriage Prohibition to be facially unconstitu-
tional, and permanently enjoin its enforcement throughout the Commonwealth.
C. Baker v. Nelson Does Not Control The Outcome Of This Case.
In Baker v. Nelson, the Supreme Court dismissed for want of a substantial federal ques-
tion an appeal from a Minnesota Supreme Court decision rejecting federal due process and
equal protection challenges to the States refusal to issue a marriage license to a same-sex cou-
ple. 409 U.S. 810 (1972). The Supreme Courts summary dismissals are binding on lower
courts only on the precise issues presented and necessarily decided, Mandel v. Bradley, 432
U.S. 173, 176 (1977) (per curiam), and only to the extent that they have not been undermined by

31
subsequent doctrinal developments in the Supreme Courts case law. Hicks v. Miranda, 422
U.S. 332, 344 (1975) (internal quotation marks omitted).
The Supreme Courts summary disposition of the due process question in Baker is not
controlling here because Baker cannot be reconciled with the Courts subsequent decisions in
Lawrence or Windsor. Lawrence explicitly recognized that the Constitution afford[s] . . . pro-
tection to personal decisions relating to marriage, procreation, contraception, family relation-
ships, [and] child rearing and that [p]ersons in a homosexual relationship may seek autonomy
for these purposes, just as heterosexual persons do. 539 U.S. at 574. Similarly, Windsor recog-
nized that individuals moral and sexual choices, including their decision to enter into a lawful
marriage with a person of the same sex, are protected by the Constitution. 133 S. Ct. at 2694;
see also Turner, 482 U.S. at 95; Zablocki, 434 U.S. at 384 (the right to marry is of fundamental
importance for all individuals).
Bakers equal protection ruling also has no precedential force in this case. As an initial
matter, Baker presented an equal protection challenge based solely on sex discrimination
grounds and therefore cannot foreclose Plaintiffs claim that Virginias Marriage Prohibition dis-
criminates against gay and lesbian individuals on the basis of their sexual orientation. See Juris-
dictional Statement at 16, Baker v. Nelson (No. 71-1027) (The discrimination in this case is one
of gender.). And Baker was decided before the Supreme Court recognized that sex is a quasi-
suspect classification, see Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero, 411 U.S. at 688
(plurality op.), and before the Court recognized in Romer and Windsor that the Constitution shel-
ters gay men and lesbian from discrimination based on their sexual orientation. Finally, Baker,
of course, could not and did not address a record, like that of Romer, Perry, Windsor, and now

32
here, where a legislature or electorate had enacted state laws to impose second-class (or worse)
status on homosexual individuals and their relationships and families.
II. AT A MINIMUM, THIS COURT SHOULD PRELIMINARILY ENJOIN
APPLICATION OF VIRGINIAS MARRIAGE PROHIBITION TO THE
PLAINTIFFS.
If this Court is not inclined to grant summary judgment at this time, then it should, at a
minimum, provide Plaintiffs with a preliminary injunction that requires the Defendants to cease
enforcement of Virginias Marriage Prohibition as to them pending final judgment. A plaintiff
seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2]
that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the bal-
ance of equities tips in his favor, and [4] that an injunction is in the public interest. Dewhurst
v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (quoting Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008)).
Because Plaintiffs are likely to succeed on the merits of their claims that Virginias Mar-
riage Prohibition violates their due process and equal protection rightsand because prohibiting
the Commonwealth from continuing to impair Plaintiffs due process and equal protection rights
would prevent irreparable harm to Plaintiffs, impose no material burden on Defendants, and
promote the public interest in safeguarding fundamental constitutional rightsthis Court should
preliminarily enjoin Defendants from enforcing Virginias Marriage Prohibition insofar as it pre-
cludes Plaintiffs from getting married or being recognized as married in Virginia.
A. Plaintiffs Are Likely To Succeed On Their Constitutional Claims.
As explained above, Virginias Marriage Prohibition violates Plaintiffs right to due pro-
cess under the Fourteenth Amendment because it impermissibly impairs Plaintiffs fundamental
constitutional right to marry. The laws also violate Plaintiffs right to equal protection under the
Fourteenth Amendment because they burden a fundamental constitutional right and because they

33
discriminate unlawfully against Plaintiffs on the basis of their sexual orientation and their sex.
Therefore, Plaintiffs are likely to prevail in this litigation.
B. Plaintiffs Are Likely To Suffer Irreparable Harm In The Absence Of A
Preliminary Injunction.
The denial of Plaintiffs constitutional rights constitutes per se irreparable harm. See El-
rod v. Burns, 427 U.S. 347, 373 (1976); Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978);
Darr v. Massinga, 699 F. Supp. 508, 535 (D. Md. 1988). Indeed, a district court has no discre-
tion to deny relief by preliminary injunction to a person who clearly establishes by undisputed
evidence that he is being denied a constitutional right. Henry v. Greenville Airport Commn,
284 F.2d 631, 633 (4th Cir. 1960) (per curiam). Plaintiffs Bostic and London have attempted to
exercise their fundamental constitutional right to marry by applying for a marriage license in
Virginia, and they have been denied a marriage license on the sole ground that they are seeking
to marry a person of the same sex. They feel tremendous pain and sadness as a result the
Commonwealths refusal to allow them to marryhumiliation borne of the knowledge that Vir-
ginia views their relationship as not good enough for marriage and worth less than other
couples. Bostic Decl. 18; London Decl. 20. They carry that pain with them every day
their fundamental rights are denied. Bostic Decl. 18; London Decl. 20.
Plaintiffs Schall and Townley likewise have been denied the social and legal benefits
they would enjoy if the Commonwealth recognized their lawful California marriage. But be-
cause the Commonwealth rejects the decision that [they] have made to marry, they are denied
the benefits afforded to married opposite-sex couples. Schall Decl. 3031; Townley Decl.
20. They and, cruelly, their daughter, E. S.-T., must suffer the Commonwealths stigmatization
of their family as second-rate and unworthy of either the States approbation or its protection.
Schall Decl. 3031; Townley Decl. 20 (The Commonwealths discrimination impacts me,

34
Carol, and E. S.-T. because we all suffer from the stigma that we feel.). Thus, as long as Vir-
ginias Marriage Prohibition remains on the books, Plaintiffs will be denied their freedom of
personal choice in matters of marriage . . . protected by the Due Process Clause, Cleveland Bd.
of Educ., 414 U.S. at 639, and their right to be free from arbitrary and invidious discrimination
guaranteed by the Equal Protection Clause. Loving, 388 U.S. at 10.
There is no adequate remedy at law for the denial of these fundamental constitutional
guarantees, and for the emotional distress, psychological harm, and humiliation that Plaintiffs
have suffered as a result of being denied the right to marry the person they love. Plaintiffs are
involved in a loving and committed relationship with a person with whom they plan to spend the
rest of their lives, and they seek nothing more than the same official respect, recognition, and
approval of that relationship that is accorded to opposite-sex couples. Bostic Decl. 45, 18;
London Decl. 56; Schall Decl. 5, 7, 26, 31; Townley Decl. 3, 6, 19. Financial damages
cannot make Plaintiffs whole for being excluded from the most intimate and sacred of lifes
relationships. Zablocki, 434 U.S. at 384 (citation omitted).
C. A Balance Of The Equities Favors Plaintiffs.
A preliminary injunction is appropriate because an order enjoining the enforcement of
Virginias Marriage Prohibition against Plaintiffs in this case would not burden the rights of De-
fendants or third parties, and would promote the Nations commitment to equal rights.
Requiring the Commonwealth of Virginia to issue marriage licenses to two otherwise-
qualified same-sex couples would not remotely burden Defendants rights. It would impose no
significant administrative hardship for Defendants to issue a marriage license to Plaintiffs Bostic
and London, or to recognize the legal marriage of Plaintiffs Schall and Townley. It is equally
implausible that extending the right to marry to these two couples would impose a material bur-
den on the public fisc. As the Fourth Circuit recently explained, a state is in no way harmed by

35
issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to
be found unconstitutional. If anything, the system is improved by such an injunction. Centro
Tepeyac v. Montgomery Cnty., No. 11-1314, 2013 WL 3336825, at *190 (4th Cir. July 3, 2013)
(citation omitted).
Nor will a preliminary injunction burden the rights of third parties. Preliminarily enjoin-
ing the enforcement of Virginias Marriage Prohibition insofar as applied to Plaintiffs alone will
not impair the right of opposite-sex couples to marry. Cf. Hollingsworth, 133 S. Ct. at 2659.
Moreover, any risk that the validity of Plaintiffs marriages would be compromised if this Court
or an appellate court later upheld Virginias Marriage Prohibition falls squarely on Plaintiffs
alone.
D. An Injunction Is In The Public Interest.
Far from burdening the rights of third parties, a preliminary injunction upholding consti-
tutional rights serves the public interest. Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd.,
354 F.3d 249, 261 (4th Cir. 2003). A preliminary injunction vindicating Plaintiffs fundamental
constitutional rights would advance the shared interest of all citizens in enforcing the Constitu-
tions guarantees and reinforce this Nations basic commitment . . . to foster the dignity and
well-being of all persons within its borders. Goldberg v. Kelly, 397 U.S. 254, 26465 (1970).
CONCLUSION
For the foregoing reasons, Plaintiffs request that the Court grant them summary judgment
or, in the alternative, enter a preliminary injunction precluding application of Virginias Marriage
Prohibition to Plaintiffs pending final judgment.
Dated: September 30, 2013 Respectfully submitted,
/s/ Charles B. Lustig
Thomas B. Shuttleworth, VSB # 13330
tshuttleworth@srgslaw.com

36
Robert E. Ruloff, VSB # 13471
rruloff@srgslaw.com
Charles B. Lustig, VSB # 29442
clustig@srgslaw.com
SHUTTLEWORTH, RULOFF, SWAIN, HAD-
DAD & MORECOCK, P.C.
4525 South Blvd., Suite 300
Virginia Beach, VA 23452
T: (757) 671-6000
F: (757) 671-6004

David Boies, pro hac vice pending
dboies@bsfllp.com
BOIES, SCHILLER & FLEXNER LLP
333 Main St.
Armonk, NY 10504
T: (914) 749-8200
F: (914) 749-8300

Robert B. Silver, pro hac vice pending
rsilver@bsfllp.com
Joshua I. Schiller, pro hac vice pending
jischiller@bsfllp.com
575 Lexington Avenue
New York, NY 10022
T: (212) 446-2300
F: (914) 446-2350

William A. Isaacson, pro hac vice pending
wisaacson@bsfllp.com
5301 Wisconsin Avenue, N.W.
Washington, D.C. 20015
T: (202)237-2727
F: (202)237-6131

Jeremy M. Goldman, pro hac vice pending
jgoldman@bsfllp.com
1999 Harrison Street, Suite 900
Oakland, CA 94612
T: (510) 874-1000
F: (510)874-1460

Counsel for Plaintiffs
Theodore B. Olson, pro hac vice pending
tolson@gibsondunn.com
Matthew D. McGill, pro hac vice pending
mmcgill@gibsondunn.com
Amir Tayrani, pro hac vice pending
atayrani@gibsondunn.com
Chantale Fiebig, pro hac vice pending
cfiebig@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
T: (202) 955-8668
F: (202) 467-0539

Theodore J. Boutrous, Jr., pro hac vice pending
tboutrous@gibsondunn.com
Joshua S. Lipshutz, pro hac vice pending
jlipshutz@gibsondunn.com
333 South Grand Avenue
Los Angeles, CA 90071
T: (213) 229-7000
F: (213) 229-7520

CERTIFICATE OF SERVICE

I hereby certify that on this 30
th
day of September, 2013, I electronically filed the
foregoing Memorandum In Support Of Plaintiffs Motion For Summary Judgment Or, In The
Alternative, Preliminary Injunction with the Clerk of the Court using the CM/ECF system which
will send electronic notification of such filing to E. Duncan Getchell, Jr., Esq., Counsel for
Defendant Rainey, and to David B. Oakley, Esq., Counsel for Defendant Schaefer.
Respectfully submitted,
/s/ Charles B. Lustig
Thomas B. Shuttleworth, VSB # 13330
tshuttleworth@srgslaw.com
Robert E. Ruloff, VSB # 13471
rruloff@srgslaw.com
Charles B. Lustig, VSB # 29442
clustig@srgslaw.com
SHUTTLEWORTH, RULOFF, SWAIN,
HADDAD & MORECOCK, P.C.
4525 South Blvd., Suite 300
Virginia Beach, VA 23452
T: (757) 671-6000
F: (757) 671-6004

David Boies, pro hac vice pending
dboies@bsfllp.com
333 Main St.
Armonk, NY 10504
T: (914) 749-8200
F: (914) 749-8300

Robert B. Silver, pro hac vice pending
rsilver@bsfllp.com
Joshua I. Schiller, pro hac vice pending
jischiller@bsfllp.com
575 Lexington Avenue
New York, NY 10022
T: (212) 446-2300
F: (914) 446-2350
Theodore B. Olson, pro hac vice pending
tolson@gibsondunn.com
Matthew D. McGill, pro hac vice pending
mmcgill@gibsondunn.com
Amir Tayrani, pro hac vice pending
atayrani@gibsondunn.com
Chantale Fiebig, pro hac vice pending
cfiebig@gibsondunn.com
1050 Connecticut Avenue, N.W.
T: (202) 955-8668
F: (202) 467-0539

Theodore J. Boutrous, Jr., pro hac vice pending
tboutrous@gibsondunn.com
Joshua S. Lipshutz, pro hac vice pending
2
William A. Isaacson, pro hac vice pending
wisaacson@bsfllp.com
5301 Wisconsin Avenue, N.W.
T: (202)237-2727
F: (202)237-6131

Jeremy M. Goldman, pro hac vice pending
jgoldman@bsfllp.com
1999 Harrison Street, Suite 900
Oakland, CA 94612
T: (510) 874-1000
F: (510)874-1460

jlipshutz@gibsondunn.com
333 South Grand Avenue
Los Angeles, CA 90071
T: (213) 229-7000
F: (213) 229-7520




TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v. CASE NO. 2:13-cv-395


Defendants.

DECLARATION OF TIMOTHY B. BOSTIC
I, Timothy B. Bostic, swear to the following facts under the penalty of perjury:

1. I am an adult male resident of Norfolk, Virginia, and I am competent to testify to the
following facts based on my personal knowledge.
2. I am a member of the faculty at Old Dominium University in Norfolk, Virginia. I am an
Assistant Professor of English Education and I teach English Education to undergraduates.
3. Since 1989, I have been in a committed relationship with Plaintiff Tony C. London. We
have lived together in Virginia continuously since February 1991, and we own a home together
in Norfolk.
Case 2:13-cv-00395-AWA-LRL Document 26-1 Filed 09/30/13 Page 1 of 4 PageID# 174

2
4. Tony is the most important person in my life. We have a loving, supportive relationship,
and we share the joys and challenges of our daily lives. Tony is my companion and life mate,
and I love him very much.
5. I want to marry Tony. Through marriage, we will publicly vow our willingness to accept
the responsibilities of caring for one another every day for the rest of our lives, and the law will
view us as a single family unit. That is important to me.
6. On July 1, 2013, Tony and I applied for a marriage license at the office of the Clerk of
the Circuit Court for the City of Norfolk. We drove to the Clerks office together and filled out
our application on one of the offices computer terminals.
7. In our application, we stated that we are both over the age of 18 and that we are not
related. Once we had completed answering all of the questions, Tony and I hit the SEND
button to officially submit our application.
8. We knew that in order to obtain a marriage license, we had to pay a $20 fee. After we
submitted our application, we approached the counter in the Clerks office that accepts payments
for applications.
9. When the employee behind the counter saw us approach and realized that we were two
men applying to get married, the employee told us that we could not pay for an application
because we could not receive a marriage license in Virginia.
10. The employee offered to have a supervisor speak with us, and Tony agreed. The
supervisor came out and told us that we could not get a marriage license in Virginia because we
are a same-sex couple. Then the supervisor gave us a copy of a Virginia statute and a business
card.

3
11. We were sad, disappointed, frustrated, and angry to leave the Clerks office without a
marriage license. We continue to feel the pain of the Commonwealths rejection in our daily
lives.
12. We would like the ability to receive the same rights and responsibilities that other
committed couples in Virginia receive through marriage.
13. For example, we would like to file joint tax returns, but we cannot. We would like to
name one another on our respective health insurance and benefit plans without having to pay
taxes on those benefits, but we cannot. In addition, we would like for the many things that we
have acquired in our 25 years together to belong to both of us as marital property, but they do
not.
14. Even for purely commercial issues, like obtaining better rates for automobile, life, and
homeowners insurance, we are disadvantaged because we cannot get married.
15. There are major life decisions that Tony and I would like to entrust to one another
without having to hire a lawyer and incur significant legal fees. For example, if Tony was my
spouse, he could make medical decisions for me (and I for him) in the event of a serious illness
without an advance medical directive. Also, if I died, he would inherit my entire estate even
without a will, and vice versa.
16. Even our home, which we purchased and have lived in together since 1997, does not
belong to both of us as tenants in the entirety because we cannot get married.
17. Because Virginia will not allow me to marry Tony, we are also denied a host of federal
benefits that are reserved for married couples.
18. Tony and I are as equally deserving as any other couple of the right to get married in
Virginia. I am hurt, angry, disappointed, and embarrassed that the Commonwealth of Virginia

4
denies us that right. I feel that the Commonwealth is telling us that we are not good enough to
get married and that we are less than other couples in Virginia. This makes me feel like a
second-class citizen. I feel tremendous pain and indignity as a result of the Commonwealths
refusal to allow us to marry and I carry that pain with me every day.

I declare under penalty of perjury, under the laws of the Commonwealth of Virginia and
under the laws of the United States of America, that the foregoing facts are true.


TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v. CASE NO. 2:13-cv-395


Defendants.

DECLARATION OF TONY C. LONDON
I, Tony C. London, swear to the following facts under the penalty of perjury:

1. I am an adult male resident of Norfolk, Virginia. I am competent to testify to the
following facts based on my personal knowledge.
2. I have lived in Virginia continuously since March 1990.
3. I served in the United States Navy and was honorably discharged at the end of my
service. Since 1997, I have worked as a real estate agent in Virginia. I specialize in residential
properties.
4. I have been in a long-term, committed relationship with Timothy B. Bostic since 1989.
He moved to Virginia in February of 1991, and we have lived together since that time.
2
5. For nearly 25 years, Tim has been my partner in life. We own a home together, and we
share our daily experiences and hopes for the future with one another. I rely on him for many
things, including companionship and emotional support.
6. I have wanted to legally marry Tim for many years. Getting married would allow us to
officially commit ourselves to one another in the presence of our families, friends, and
community. Through marriage, we could legally assume the rights and responsibilities that other
loving couples in Virginia enjoy.
7. On July 1, 2013, Tim and I went to the office of the Clerk of the Circuit Court for the
City of Norfolk to apply for a marriage license.
8. The Clerks office provides several computer terminals through which people can submit
their applications. Tim and I completed our application at one of the computer terminals in the
Clerks office. In the application, we represented that we were both over the age of 18 and that
we are not related to one another. When we finished our electronic application, we hit the
SEND button.
9. After submitting our electronic application, Tim and I went to the part of the Clerks
office that accepts the $20 payment all applicants have to pay in order to receive a marriage
license. When we got there, the Clerks office employee saw that we were both men and told us
that we could not pay for a marriage license. The employee then asked if we wanted to speak to
a supervisor and I said that we did.
10. The supervisor came and spoke with Tim and me. The supervisor told us that we could
not get married in Virginia because we are a same-sex couple. The supervisor then gave us a
copy of a Virginia statute and a business card.
3
11. Tim and I are both very disappointed. We think that it is very important to get married
because of the significance that marriage carries not only to us individually, but also to society.
It is very painful to have the State of Virginia refuse to give us a marriage license when all we
want are the same rights that other couples in Virginia have.
12. Because we are not able to get married, we have fewer legal and property rights than
other people. For instance, Tim and I own our home in Norfolk. We bought it together, using
both of our resources, in 1997. If we were married, we could own the home as tenants in the
entirety, but since we cannot get married, we do not.
13. In addition, in over 25 years together, we have acquired many things, including artwork,
automobiles, and various personal effects. If we were married, many of these items would be
considered marital property and likely divided equally if we were to divorce. Neither of us have
the protections of the divorce laws.
14. If we were legally able to marry, I would automatically inherit Tims estate if he died.
But since we cannot get married in Virginia, I would not inherit any of his property without a
will.
15. The tax consequences are also significant. For example, we cannot file joint tax returns
as a married couple, so we each pay more in state income taxes than we otherwise would. I have
listed Tim as a beneficiary to my insurance policies and employee benefit plans, but he will have
to pay state taxes on any benefits he receives.
16. In addition, Tim and I are not able to take advantage of the lower rates available to
married couples for automobile, life, and homeowners insurance.
4
17. If Tim were to get seriously ill, I could not make medical decisions on his behalf without
an advance medical directive. If I were ill and did not have an advance medical directive, Tim
could not make decisions for my medical care either.
18. There are many federal benefits that are unavailable to us as well because the
Commonwealth will not allow us to marry one another.
19. The social, legal, and economic consequences are difficult to deal with, but the emotional
consequences are the most difficult. I love Tim and want to spend the rest of my life with him.
It is humiliating that Tim and I cannot get married in Virginia.
20. I am ashamed, embarrassed, and significantly pained that the Commonwealth of Virginia
will not legally allow us to marry. I have served this country and I am a veteran, but I feel like a
second-class citizen in the Commonwealth. Tim and I feel the stigma of disapproval because of
Virginias discrimination. It is unfair that we have been singled out for this treatment, and I feel
tremendous pain and sadness as a result.



TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v. CASE NO. 2:13-cv-395



Defendants.

DECLARATION OF CAROL SCHALL
I, Carol Schall, swear to the following facts under the penalty of perjury:

1. I am an adult female resident of Chesterfield County, Virginia. I am competent to testify
to the following facts based on my personal knowledge.
2. I have lived in Virginia since 1982, when I moved here after college.
3. I have worked in special education for many years. Currently, I am an Assistant
Professor in the School of Education at Virginia Commonwealth University (VCU) in
Richmond, Virginia. In addition to teaching, I conduct research that focuses on the best practices
for teaching autistic children.

2
4. Before I joined the faculty at VCU, I worked for the Grafton School. The Grafton School
is based in Winchester, Virginia, but I worked at the Richmond branch. I was the Director for
the Virginia Autism Resources Center.
5. Since 1985, I have been in a committed relationship with my wife, Mary Townley.
6. Mary and I got married in California in 2008. Though we have lived in Virginia
throughout our 30-year relationship, we traveled to California to get married because we could
not legally get married in our own State. At the time of our wedding, we were both over the age
of 18 and unrelated, but Virginia would not allow us to marry because we are a same-sex couple.
7. Mary and I have been happily married for the last five years. We share every aspect of
our lives and look forward to spending the rest of our lives together. Even though we were
legally married in California, the Commonwealth still does not recognize our marriage.
8. In 1998, Mary gave birth to our daughter, E. S.-T. I supported Mary every day
throughout pregnancy and delivery.
9. During Marys pregnancy, she experienced complications. On one occasion, Mary had
severe abdominal cramping and was in so much pain that she could not talk. I rushed her to the
emergency room at VCUs Medical Center. I left my car parked in a no-parking zone while I ran
inside the hospital to get help for Mary. Once she was receiving medical care, the hospital staff
asked me to move the car. I did so but when I returned to the hospital, the staff refused to let me
see Mary and refused to even give me any information about her condition for several hours,
until she could speak to inform them that I was her spouse.
10. I have loved and raised E. S.-T. since the day that she was born. I am her mother, and
she is my child.

3
11. Mary and I are both parents to E. S.-T. She is the most important thing in both of our
lives and we are a family. Mary and I both provide for E. S.-T. financially. We both participate
in the details of her life: we pack her lunches, make sure she does her homework, and drive her
to activities, among many other things. We are both committed to making sure that E. S.-T. has
a safe and loving home in which to grow.
12. I have always wanted to adopt E. S.-T. but I cannot under Virginia law.
13. Since I cannot adopt E. S.-T., Mary and I hired a lawyer to petition a court to give me full
joint legal and physical custody of E. S.-T. We spent a significant amount of time and money to
conduct those court proceedings.
14. The court granted our petition but I am still unable to adopt my own daughter. As a
result, we are legally unrelated to one another.
15. In addition, because Virginia does not recognize our legal marriage, Mary and I cannot
obtain a birth certificate for E. S.-T. that lists us both as her parents.
16. In fact, Mary still has to inform E. S.-T.s school each year that I have permission to pick
up my own child.
17. Last year, Mary and I went to the post office to renew E. S.-T.s passport. When we got
to the counter and presented her documents, the postal employee that was processing the
paperwork saw that I was listed as one of E. S.-T.s parents. The employee then said to me,
Youre nobody, you dont matter. Then she crossed a line through my name on the renewal
form.
18. E. S.-T. has also suffered through embarrassing situations, including being teased at
school. I believe that she would not be mistreated by her classmates on account of her family if
the Commonwealth recognized our marriage so that there was less stigma for us and for her.

4
19. Despite these challenges, E. S.-T. has grown into a well-adjusted 15-year-old girl. Mary
and I are both very proud of our daughter.
20. Mary and I have experienced legal, financial, social and emotional consequences from
Virginias refusal to recognize our legal marriage.
21. For example, until February of this year, neither Mary nor I could include each other on
the health insurance coverage we received from our employers. In fact, after E. S.-T. was born,
Mary had to go back to work because her health insurance was ending and I could not add her to
my health insurance plan. Since February, Marys employer has allowed her to include me in
her coverage but Mary has to pay state income taxes on the benefit. If Virginia would recognize
our marriage, we believe that we would not be subject to this tax.
22. When E. S.-T. was born, and when my mother passed away, Mary and I could not take
protected leave time from work under the Family Medical Leave Act because Virginia does not
recognize our marriage.
23. Even though we are legally married, we cannot file income tax returns as a married
couple in Virginia. As a result, we pay more in state income taxes than we would otherwise have
to pay.
24. I have named both Mary and E. S.-T. as beneficiaries to my insurance and employee
benefits plans but both of them would have to pay taxes on any benefits they receive.
25. The favorable rates that insurance companies offer to married couples for home, life, and
car insurance in Virginia are not available to us because Virginia does not recognize our
marriage.
26. Mary and I wish we had the property protections available for married couples under
Virginia law. For example, if Virginia recognized our marriage, the possessions we have

5
acquired during our nearly 30 years together would be considered marital property; we would
inherit each others estate if one of us died; and we could own our home together as tenants in
the entirety. None of these legal property protections is available to us even though we are
married.
27. Even though Mary is my spouse, in Virginia, without an advance medical directive, I
could not make medical decisions for her, nor could she for me.
28. More importantly, E. S.-T. has fewer legal rights and protections than other children
because Virginia will not recognize our marriage. If both Mary and I were to die without a will,
E. S.-T. would not inherit my estate. Even with a will, she will probably have to pay taxes on
anything she receives from my estate.
29. In addition, Mary and I worry that the agreements, contracts, and arrangements that we
have made for E. S.-T.for her long-term care and financial supportcould be ignored or
invalidated by a Virginia court.
30. We, as a family, wish that we had the protections of Virginias laws. And Mary and I
wish for our benefit and E. S.-T.s that the Commonwealth would recognize our marriage.
31. I am embarrassed and humiliated that the Commonwealth will not recognize our
marriage. I feel angry, hurt, and ashamed every time I cannot legally or socially claim Mary as
my wife. It is very painful to know that our marriage is treated unequally to others under
Virginias laws because it makes me feel that the Commonwealth has singled us out and decided
that we are not good enough for its approval. The Commonwealth rejects the decision that
Mary and I have made to marry and that rejection makes me feel like a second-class citizen in
the Commonwealth.

6


TIMOTHY B. BOSTIC,
TONY C. LONDON,
CAROL SCHALL, and
MARY TOWNLEY,
Plaintiffs,
v. CASE NO. 2:13-cv-395


Defendants.

DECLARATION OF MARY TOWNLEY
I, Mary Townley, swear to the following facts under the penalty of perjury:

1. I am an adult woman living in Chesterfield County, Virginia. I am competent to testify to
the following facts based on my personal knowledge.
2. I have lived in Virginia since 1983.
3. I have been in a committed relationship with Plaintiff Carol Schall since 1985.
4. Carol and I both work in special education. For several years, I worked with special
needs children in the public school system in Winchester, Virginia, and in Frederick County,
Virginia.
2
5. I currently serve as the Supervisor of Transition at Health Diagnostic Laboratory, Inc.
(HDL). I help train individuals with significant disabilities so that they can work at HDL.
6. Because we could not get married in Virginia, I married Carol in California in 2008. As
my wife, Carol provides me with love, support, companionship, and a sense of security. I love
the time that we spend with one another and I look forward to a long life together.
7. In 1998, I gave birth to our daughter, E. S.-T. She is now 15 years old. Carol and I are
both parents to E. S.-T. We provide a loving home for her and provide for her financially. We
also provide her with structure, love, attention, encouragement, and support. Every decision that
we make in our lives is with E. S.-T.s best interests at heart.
8. While I was pregnant with her, I had severe complications that landed me in the
emergency room. I could not even speak. Carol drove me to the hospital and parked the car in a
tow zone. After I was safely in the hands of the medical staff, she went to move her car. When
she returned, they would not let her visit me or give her any information about my condition
because the law does not recognize her as my spouse. When I was finally able to speak, I
informed the medical staff that she was my wife.
9. Carol has wanted to adopt E. S.-T. since she was born but she cannot under Virginias
laws. As a result, we had to hire an estate planning attorney to petition the court so that Carol
can have full joint legal and physical custody of E. S.-T.
10. The court granted our petition but Carol still cannot adopt E. S.-T. In addition, Carol and
I cannot obtain a marriage license or a birth certificate for our daughter that lists us both as E.
S.-T.s parents because Virginia will not recognize my marriage to Carol.
3
11. Carol is equally a parent to E. S.-T., and I am frustrated that Virginia law does not
recognize Carol as her parent or the three of us as a family. Each year, I have to tell E. S.-T.s
school that Carol can pick up her own daughter.
12. In 2012, Carol and I went to the post office to renew E. S.-T.s passport. When we
presented her documentation, the postal employee servicing us told Carol, Youre nobody, you
dont matter. Then she crossed a line through her name on the renewal form.
13. These types of situations are difficult for all of us. In spite of them, E. S.-T. is a happy
and confident teenager, even though she feels (as do I) that her family is being singled out,
stigmatized, and discriminated against.
14. After E. S.-T. was born, I had to return to work largely because my health insurance
coverage was expiring and I could not get coverage through Carols employer. Since February
2003, I have been able to cover Carol through my employers insurance plan, but I still have to
pay state income taxes on that benefit. I do not believe that I would have to pay those taxes if
Virginia recognized our marriage.
15. Carol and I have been denied additional benefits in Virginia that are available to other
legally married couples. For example, we cannot file income tax returns as a married couple in
Virginia. As a result, we pay more in state income taxes than we would otherwise have to pay.
Also, though Carol is my designated beneficiary for my employee benefit and insurance plans, if
I were to be seriously injured or die, she would owe state taxes on those benefits as well (and
vice versa).
16. Because Virginia does not recognize our marriage, we have fewer legal and property
rights than other legally married couples. Those rights include the right to make medical
decisions for one another without an advance medical directive; the right to inherit one anothers
4
estate without a will and without being subject to certain taxes; the right to jointly own a home as
tenants in the entirety; or the right to have our mutual property acquired during the course of our
marriage deemed marital property.
17. Carol and I do not qualify for favorable rates that are available to other legally married
couples in Virginia for automobile, home, and life insurance plans. And we are not able to take
advantage of many federal benefits that are only available to legally married couples, like the
Family Medical Leave Act.
18. Carol and I are concerned about the arrangements that we have made for E. S.-T.s future
because Virginia will not recognize our marriage and courts in the Commonwealth could declare
our agreements about her care and custody to be void and unenforceable.
19. I want the Commonwealth of Virginia to recognize my legal marriage to Carol. We are a
loving, married couple and our greatest gift is being parents to E. S.-T. We want the same legal
protections for our relationship and our family that Virginia provides to other legally married
couples and we want to live proudly as married residents of Virginia.
20. I am saddened, hurt, angered, and humiliated that the Commonwealth will not recognize
my marriage to Carol. I feel that our marriage is deemed less than and unequal to other
marriages in Virginia. The Commonwealths discrimination impacts me, Carol, and E. S.-T.
because we all suffer from the stigma that we feel. We want to be treated equally to other
couples and Virginias refusal to recognize our marriage makes me feel hopeless and ashamed.
5

EXHIBIT A
DECLARATION OF CHARLES B. LUSTIG IN SUPPORT OF PLAINTIFFS
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
PRELMINARY INJUNCTION

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EDITORS' PICKS:
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By The Washington Times Wednesday, November 17, 2004
Family groups and state lawmakers say "gay-straight" student clubs in the region -- some even are
operating at middle schools -- promote homosexuality and encourage teens to be sexually active.
Students in Virginia, Maryland and the District have formed dozens of such school clubs in an attempt
to foster tolerance.
The formation of these clubs has become an issue in Virginia, where homosexual-rights advocates say
the clubs help communities bridge divisions -- but more conservative groups fear students will be lured
into engaging in behavior they don't support.
"They are teaching acceptance and that it's OK to be a homosexual and to practice homosexual sex
acts," said John Elledge chairman of the Republican Party of Harrisonburg, Va. "I'm all for just getting
along, but I'm not at all for having a sexually oriented club in our high school."
Students in Prince William County's C.D. Hylton High School want to form a Gay-Straight Alliance after-
school club, and have a petition on the Internet. They claim the club will be a "safe environment" in
which students can talk about homosexual issues in school and that they will discuss "coming out" and
bullying by other students.
Some clubs are being formed at schools that have even younger students.
For example, the Garrison Forest Schoolin Owings Mills, Md., has a Gay-Straight Alliance student club,
according to the Gay, Lesbian and Straight Education Network (GLSEN), which registers such clubs.
Officials at Garrison Forest School, which has elementary, middle and high school students, did not
return calls.
The Oldfields School in Glencoe, Md., a boarding school that also has eighth-grade students, has a
Gay-Straight Alliance.
GLSEN officials said there are at least 40 gay-straight clubs at schools in Virginia, 54 in Maryland and
two in the District.
George Mason Middle School in Falls Church is listed with GLSEN, as is George Mason High School.
But school officials at George Mason Middle School said this week there is no such group on campus.
Mr. Elledge, who recently learned about Harrisonburg High School's Gay-Straight Alliance, wants it
disbanded. He has been lobbying the local school board to discontinue the club.
"Somewhere, you have to draw a line," said Mr. Elledge, who also serves as the legislative assistant for
Delegate Glenn M. Weatherholtz, Harrisonburg Republican. "It may be that they think the community is
approving of this."
But Rhonda Buckner, executive director of the Metro D.C. Parents, Families and Friends of Lesbians
and Gays (PFLAG), said the clubs are a "valuable resource" that help to enlighten students, their
parents and the greater communities.
Gay-straight clubs in schools anger foes
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Page 1 of 2 'Gay-straight' clubs in schools anger foes - Washington Times
9/23/2013 http://www.washingtontimes.com/news/2004/nov/17/20041117-100457-5569r/print/
"Parents are afraid of these groups because they don't understand them," Miss Buckner said. "They
hear the word 'gay,' and they are afraid their kid is going to catch it. It's not catchable."
Miss Buckner noted the clubs usually are supervised by a teacher, who has a responsibility to keep the
conversation "age-appropriate."
Harrisonburg High School Principal Irene Reynolds told the Associated Press that students have the
right under federal law to form the group.
Advocates for the clubs say they have nothing to do with sex.
"When gay-straight alliances get started, they receive opposition from extremists in the area, who feel
somehow it's promoting a homosexual agenda," said Dyana Mason, executive director of Equality
Virginia. "That's just blatantly not true. Students come together to create an environment where
everyone is treated equally and respectfully. It's a support group for gay students and their friends, as
much as it is a group to educate the population."
Delegate Richard H. Black called that perspective "nonsense."
"The whole agenda of the homosexual movement is to entice children to submit to sex practices," the
Loudoun County Republican said. "Those groups lead children to experiment with potentially fatal sex
practices that spread AIDS and other sexually transmitted diseases."
GLSEN offers tips on its Web site for students to form such clubs.
Harassment of homosexual students is "a daily reality in schools," and the clubs are a proactive way to
address that, said Eliza Byard, deputy executive director of GLSEN.
"These student clubs represent a student response to a problem they see in school every day," she
said, noting an increase in gay-straight clubs across the country over the past decade. "Students are
trying to improve their school climate."
GLSEN has 2,500 gay-straight clubs registered with its organization, and Miss Byard estimates there
are probably many more.
Victoria Cobb, director of legislative affairs for the Richmond-based Family Foundation of Virginia, said
she worries that while clubs are growing, religious education is being "forced" from schools.
Such clubs are violating the state's curriculum of teaching abstinence, and should be disbanded, she
said.
"Taxpayers should not be asked to fund homosexual dating services in our schools," Mrs. Cobb said.
"Schools have the ability and the right to disband these groups."
This article is based in part on wire service reports.
Page 2 of 2 'Gay-straight' clubs in schools anger foes - Washington Times
9/23/2013 http://www.washingtontimes.com/news/2004/nov/17/20041117-100457-5569r/print/
EXHIBIT B


washingtonpost.com > Politics > Special Reports > Gay Marriage Editorials
No 'New Jim Crow' in Virginia
Saturday, July 3, 2004; Page A25
If Virginia can't pass a law that limits marriage to a man and a woman and
rejects all counterfeits ["Virginia's New Jim Crow," op-ed, June 13], then the
legislature cannot reject the claims of bisexuals who say they can love and be
committed to both a male and a female.
Counterfeit money hurts our wallets. Counterfeit marriage will
do the same to real marriage. Homosexuals need no special institution parallel
to marriage, such as civil unions or domestic partnerships, to enjoy the same
rights under law to vote, buy a house, go to public colleges, start businesses,
and exercise rights and opportunities now available to all Virginians.
In 1997 Virginia prohibited same-sex marriage; it also declared that a same-sex
marriage approved elsewhere would "be void in all respects in Virginia and any
contractual rights created by such marriage shall be void and unenforceable."
What? No complaints about overbroad language and void contracts? Virginia
homosexuals could have gotten "married" in Holland and returned. Did that
void their power of attorney, joint bank accounts or wills in Virginia? No! Did
Gov. Mark Warner "correct" the 1997 law? No!
Attorney General Jerry Kilgore said that the Marriage Affirmation Act
"provides a needed safeguard for the institution of marriage while not depriving
any individual of rights currently available to all citizens. . . . The purpose of
this legislation is not to prohibit business partnership agreements, medical
directives, joint bank accounts, or any other rights or privileges not exclusive to
the institution of marriage."
Two-thirds of the Virginia General Assembly -- Democrats, Republicans and
independents -- simply added civil unions and domestic partnerships to the
existing prohibition against same-sex marriage. The law is needed to resist the
agenda of activist homosexuals. The danger is real.
In Massachusetts, public schools teach about gay marriage and gay sex. In New
York City, the Salvation Army may walk away from $250 million in city
contracts to help the poor, abandoned children, battered women and AIDS
patients because the city requires its contractors to provide partner benefits to
same-sex and unmarried couples, which offends the Salvation Army's religious
beliefs. In Virginia, activist homosexuals opposed legislation that criminalizes
sex in public. They called it "anti-gay." They also opposed a law allowing the
Boy Scouts to meet in public schools because they consider the Scouts "anti-
gay." In 2004, homosexual couples went to courthouses across Virginia
demanding marriage licenses.
Drawing a clear line on marriage in Virginia law does not deny equal rights.
-- Robert G. Marshall
Richmond
The writer, a Republican, represents the 13th District, which includes parts of
Prince William and Loudoun counties, in the Virginia House of Delegates.
2004 The Washington Post Company
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Page 2 of 2 No 'New Jim Crow' in Virginia (washingtonpost.com)
9/23/2013 http://www.washingtonpost.com/wp-dyn/articles/A24784-2004Jul2.html
EXHIBIT C

COMMONWEALTH of VIRGINIA
Robert F. McDonnell
Attorney General
The Honorable Stephen D. Newman
Member, Senate of Virginia
P.O. Box 480
Forest, Virginia 24551
The Honorable David B. Albo
Member, House of Delegates
6350 Rolling Mill Place, Suite 102
Springfield, Virginia 22152
The Honorable Kathy J. Byron
523 Leesville Road
LynChburg, Virginia 24502
The Honorable John A. Cosgrove
P.O. Box 15483
Chesapeake, Virginia 23328
The Honorable Robert G. Marshall
P.O. Box 421
Manassas, Virginia 20 108
Office of the Attorney Genera!
September 14,2006
Dear Senator Newman and Delegates Albo, Byron, Cosgrove and Marshall:
900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
I am responding to your request for an official advisory opinion in accordance with 2.2-505 of
the Code of Virginia.
Issue Presented
You ask whether House Joint Resolution 41' and Senate Joint Resolution 92,2 the proposed
Virginia constitutional amendment to ban same-sex marriage, civil unions, or comparable relationships
("marriage amendment"), would affect the current legal rights of unmarried persons involving contracts,
'See 2006 H.J. Res. 41, available at http://legl.state.va.us/cgi-binllegp504.exe?06I+ful+HJ41. Resolution 41
passed the House of Delegates by a vote of73 yeas to 22 nays and passed the Senate by a vote of29 yeas to II nays.
See id. (status), available at http://legl.state.va.us/cgi-binllegp504.exe?ses=061&tvp=bil&val=hj41.
2See 2006 SJ. Res. 92, available at http://legl.state.va.us/cgi-binllegp504.exe')061 +ful+SJ92. Resolution 92
passed the Senate by a vote of28 yeas to II nays and passed the House of Delegates by a vote of76 yeas to 11l1a)'s.
See id. (status), available at

September 14,2006
Page 2
wills, advance medical directives, shared equity agreements, group accident and sickness Insurance
policies, or could modifY the application of domestic violence laws.
Response
It is my opinion that passage of the marriage amendment will not affect the current legal rights of
unmarried persons involving contracts, wills, advance medical directives, shared equity agreements. or
group accident and sickness insurance policies, or alter any other rights that do not "approximate the
design, qualities, significance, or effects of marriage" or create "the rights, benefits, obligations, qualities.
or effects of marriage." It further is my opinion that passage of the marriage amendment will not modifY
the application and enforcement of Virginia's domestic violence laws.
Background
In accordance with the procedures outlined in the Constitution of Virginia, the 2005 Session of
the General Assembly passed a constitutional amendment defining marriage as the "union between one
man and one woman.,,3 After the intervening elections for the House of Delegates in November 2005, the
General Assembly returned for its 2006 Session and again considered the constitutional amendment
defining marriage' The 2006 Session of the General Assembly again passed the marriage amendment in
its identical form, requiring it to be placed on the November 2006 ballot for voters to approve or reject.'
The proposed marriage amendment provides:
That only a union between one man and one woman may be a marriage valid in or
recognized by this Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions shall not create or recognize a
legal status for relationships of unmarried individuals that intends to approximate the
design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or
its political subdivisions create or recognize another union, partnership, or other legal
status to which is assigned the rights, benefits, obligations, qualities, or effects of
. [61
marrwge.
The General Assembly's clear and express intent in passing the marriage amendment. as
annunciated in its official explanation,' is to preserve traditional marriage as solely between one man and
one woman, while not infringing upon the current legal rights of unmarried individuals to execute
'See 2005 Va. Acts chs. 946, 949, at 1857, 1860, respectively.
4
See 2006 H.J. Res. 41, supra note 1; 2006 S.J. Res. 92, supra note 2.
5
See supra notes 1 and 2.
6
Jd.; see also 2005 Va. Acts chs. 946, 949, supra note 3.
7
See infra note 8.
The Honorable David B. Alba
September 14, 2006
Page 3
contracts, wills, advance medical directives, or shared equity agreements, or lessening protections under
domestic violence laws.'
Applicable Law and Discnssion
The General Assembly must comply with Article XII, 1 of the Virginia Constitution when
seeking to amend the Constitution. Article XII, 1 provides that:
Any amendment or amendments to this Constitution may be proposed in the Senate or
House of Delegates, and if the same shall be agreed to by a majority of the members
elected to each of the two houses, such proposed amendment or amendments shall be
entered on their journals, the name of each member and how he voted to be recorded, and
referred to the General Assembly at its first regular session held after the next general
election of members of the House of Delegates. If at such regular session or any
subsequent special session of that General Assembly the proposed amendment or
amendments shall be agreed to by a majority of all the members elected to each house,
then it shall be the duty of the General Assembly to submit such proposed amendment or
amendments to the voters qualified to vote in elections by the people, in such manner as
it shall prescribe and not sooner than ninety days after final passage by the General
Assembly. If a majority of those voting vote in favor of any amendment, it shall become
part of the Constitution on the date prescribed by the General Assembly in submitting the
amendment to the voters.
The Virginia Constitution does not define marriage. Current statutory law, however, prohibits
marriage between certain individuals, including a brother and sister;' a couple where one of the parties is
married to another person; 10 and "persons of the same sex."ll The 1997 Session of the General Assembly
8Section 3 0 ~ 19.10 directs the Division of Legislative Services to provide a "neutral" explanation "in plain
English" of proposed ballot questions. The House Committee on Privileges and Elections (by a vote of 1263) and
the Senate Committee on Privileges and Elections (by a vote of 951) directed the State Board of Elections to
include in its official explanation of the marriage amendment the following statement: "There are other legal rights,
benefits, and obligations which will continue to be available to unmarried persons, including the naming of an agent
to make endof-life decisions by an Advance Medical Directive (Code of Virginia 54.12981), protections afforded
under Domestic Violence laws (Code of Virginia 18.257.2), ownership of real property as joint tenants with or
without a right of survivorship (Code of Virginia 5520.1), or disposition of property by will (Code of Virginia
64.146)." See VIRGINIA STATE BOARD OF ELECTIONS, PROPOSED CONSTITUTIONAL AMENDMENT To BE VOTED
ON AT THE NOVEMBER 7, 2006, ELECTION (Final Copy), *2, available at http://www.sbe.virginia.gQyicl11s!
documents/2006 Constitutional Amendments12006ques marriage APPROVED.pdf.
'VA. CODE ANN. 2038.1 (2004).
IOld
"Section 2045.2 (2004); see also 2038.1 to 2040, 20-43, 2045.1 to 2045.3, 2048 to 2049 (2004)
("Unlawful Marriages Generally").
The Honorable Robert G Marshall
September 14, 2006
Page 4
enacted 20_45.2,!2 which provides that "[aJny marriage entered into by persons of the same sex in
another state or jurisdiction shan be void in all respects in Virginia and any contractual rights created by
such marriage shall be void and unenforceable."
In 2004, the General Assembly enacted legislation prohibiting civil unions, partnership contracts,
and like arrangements between persons of the same sex.
l3
Section 20-45.3 provides that:
A civil union, partnership contract or other arrangement between persons of the same sex
purporting to bestow the privileges or obligations of marriage is prohibited. Any such
civil union, partnership contract or other arrangement entered into by persons of the same
sex in another state or jurisdiction shall be void in all respects in Virginia and any
contractual rights created thereby shall be void and unenforceable[14
j
Thus, on several occasions, the General Assembly has prohibited marriage between persons oftbe
same sex, as well as civil unions, partnership contracts, or other that purport to create a
legal union approximating marriage between individuals of the same sex. 5 The state courts in four states,
Vennont,16 Massachusetts,17 Hawaii, I' and Maryland,19 have altered or struck down statutory definitions of
marriage. Apparently, to prevent similar judicial actions from occurring in Virginia, the General
Assembly acted to affinn the Commonwealth's long-standing statutory policy by elevating to the Virginia
Constitution the definition of marriage as solely between one man and one woman."
12See 1997 Va. Acts chs. 354, 365, at 513, 513, 538, 538, respectively.
i3 See 2004 Va. Acts ch. 983, at 1920, 1920 (adding 20-45.3 to Affirmation of Marriage Act).
14 . 4)
SectIOn 20-45.3 (200 .
15 See supra notes 9-11, 13-14 and accompanying text.
16
Baker v. State of Vermont, 170 Vt. 194, 744 A.2d 864 (1999) (holding that Vermont was constitutionally
required to provide same-sex couples with benefits and protections of marriage; court charged Vennont legislature
with task of creating appropriate remedy).
17 Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003).
I'Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). The Supreme Court of Hawaii ordered that the lower court
conduct an equal protection analysis of Hawaii's marriage statute. It held that the marriage statute was subject to
strict scrutiny and was presumed to be unconstitutional unless the state demonstrated that the statute was nanowly
drawn and a compelling state interest in prohibiting same-sex marriage existed. The lower court determined that the
maniage statute was unconstitutional and that the state was required to issue marriage licenses to same-sex couples.
The State of Hawaii subsequently passed a constitutional amendment limiting the right of marriage to heterosexual
couples. Therefore, the Hawaii Supreme Court reversed the lower court in Baehr v. Miike, No. 20371, 1999 Haw.
LEXIS 391 (Haw. Dec. 9,1999).
19Deane v. Conaway, Case No: 24-C-04-005390 (CiT. Ct. Baltimore City, Md. Pt. 30, entered Jan. 20, 2006).
"Once before, the General Assembly has acted to elevate a statutory and public policy position to constitutional
standing. The 1995 Session of General Assemhly passed a constitutional amendment regarding the rights of victims
of crime. See 1995 Va. Acts chs. 706, 710, at 1l65, 1l65, 1l68, 1l68-69, respectively (adding 8-A to Article 1 of
Virginia Constitution). At that time, Virginia had a victims' rights statute encompassing the provisions included in
the constitutional amendment. See VA. CODE ANN. 19.2-11.01 (1995). The amendment was referred to the 1996
session, was again agreed to, and was submitted to the voters. See 1996 Va. Acts chs. 33, 488, 906, 910, at 39,818.
1736, 1740, respectively. The constitutional amendment was ratified November 5, 1996, and became efIective
January 1, 1997. See VA. CaNST. art. I, 8-A annot.
September 14, 2006
Page 5
In considering the prospective application of the marriage amendment to contracts, wills, advance
medical directives, shared equity agreements, accident and sickness insurance policies, and other ordinary
legal rights of Virginia citizens, the dispositive analysis is to detennine whether the rights in question are
derived from a legal relationship that "intends to approximate the design, qualities, significance, or effects
of marriage" or to which is assigned the "rights, benefits, obligations, qualities, or effects of marriage.""
The application of the marriage amendment language to the specific documents and rights about which
you inquire demonstrates that passage of the marriage amendment will have no impact on such
contractual and other statutory rights not created by or imitating marriage.
22
Additionally, most of the rights, benefits, and obligations created solely by a lawful marriage, to
which unmarried persons of either sex are not entitled, are defined by statute or long-standing case law.
Among the legal benefits unique to marriage are a spouse's share of a decedent's estate," the right to hold
real property as tenants by the entireties," the authority to act as a "spouse" to make medical decisions in
the absence of an advance medical directive," the right as a couple to adopt children," and the
enumerated rights and obligations included in Title 20 of the Code of Virginia regarding marriage.
divorce, and custody matters. The general legal rights to enter into contracts, wills, advance medical
directives, shared equity agreements, and other legal instruments, are not rights that arise from marriage.
Rather, such general rights find their sources in other statutes or common law. Thus, these rights would
remain unaffected after enactment of the marriage amendment. Any Virginian, subject to any other
existing legal limitations, may enter into any lawful contract, dispose of property to any person of his
choosing by will or deed, or appoint any person to act on his behalf pursuant to a power of attorney or
advance medical directive.
Finally, Virginia's laws are presumed to be constitutionaL" The Supreme Court of Virginia has
concluded that "reasonable doubt as to the constitutionality of a legislative enactment must be resolved in
favor of its validity. The courts will declare the legislative judgment null and void only when the statute
is plainly repugnant to some provision of the state or federal constitution.,,28 Therefore, any challenges to
'I
- See supra notes 1,2.
221 note that in this context, similar questions concerning the enforceability of 18.2-57.2 - regarding contracts,
wills, advance medical directives, and shared equity agreements - were raised when the 2004 Session of the General
Assembly considered and passed House Bill 751 prohibiting civil unions. See 2004 H.B. 751, available al
http://legl.state.va.usfcgi-bin/legp504.exe?04l+ful+HB751 ER; see also 2004 Va. Acts ch. 983, supra note 13, at
1920. The facts show that Virginia courts have not diminished or altered these legal rights in the almost two years
that the prohibition against civil unions has been law.
23
VA. CODE ANN. 64.1-13(A); 64.1-16.1 (2002).
"
VA. CODE ANN. 55-20.2 (Supp. 2006).
"
-'VA. CODE ANN. 54.1-2986(A) (2005).
26
VA. CODE ANN. 63.2-1201 (Supp. 2006).
27
Coleman v. Pross, 219 Va. 143,246 S.E.2d 613 (1978).
28
Blue Cross of Va. v. Commonwealth, 221 Va. 349, 358, 269 S.E.2d 827 (1980).
September 14, 2006
Page 6
Virginia's existing or future statutes relating to contracts, wills, advance medical directives, financial
issues, accident and sickness insurance policies, and domestic violence would succeed only if the
respective statute is "plainly repugnant" to the marriage amendment. As discussed in detail below, the
statutes governing such matters do not "approximate the design, qualities, significance, or effects of
marriage" or assign the "rights, benefits, ohligations, qualities, or effects of marriage.,,29 Consequently,
these statutes are not repugnant to the marriage amendment and would survive any constitutional
challenge to their validity.
1. Contract Law
You relate that in passing the marriage amendment it was not the intent of the General Assembly
to infringe on contractual or other legal rights of two unmarried individuals of either sex. The plain
language of the amendment and the official support that intent. The basic elements of a
eontract are offer, acceptanee, and consideration. 0 Unless a contract is void for a specific policy reason
under existing law, any competent individual may enter into a contract, regardless of his marital status.
The Virginia Supreme Court has held that:
Generally speaking every adult person has a right to contract with respect to his propcrty
rights and when they have done so, courts are without authority to annul their Obligations
thus assumed unless they have been entered into under such circumstances as to indicate
[3 I}
that their procurement had been brougbt about by fraud.
Moreover, "'[t]he law presumes that there is in everyone [the] capacity to contrac!.",32 Therefore,
the right to contract, pursuant to well-established and long-standing principles of contract law,)) is not a
right that finds its origin in the "design, qualities, significance, or effects of marriage," nor the "rights,
benefits, obligations, qualities, or effects of marriage." Passage of the marriage amendment would not,
therefore, infringe upon the rights of unmarried individuals to enter into or enforce lawful contracts.
2. Wills
You inquire whether the marriage amendment would impede the ability of an individual to
execute a will leaving property to another individual of either sex. It is an accepted principle of Virginia
law that a testator may, by will, dispose of his property as he desires. Section 64.1-46 provides:
Every person not prohibited by 64.1-47 may, by will, dispose of any estate to wh ich he
shall be entitled, at his death, and which, if not so disposed of, would devolve upon his
29
See supra notes I and 2.
JOAdams v. Hazen, 123 Va. 304, 319, 96 S.E. 741, 745 (1918) (noting that written contracts must contain
essential elements: competent parties; legal subject matter; valuable consideration; and mutual assent).
"Moore v. Gregory, 146 Va. 504, 523,131 S.E. 692, 697 (1925).
"Chesapeake & Ohio Ry. Co. v. Mosby, 93 Va. 93,94,24 S.E. 916, 916 (1896) (quoting I Chitty on Cootracts
186).
D .
See supra notes 30, 31 and accompanymg text.
September 14, 2006
Page 7
heirs, personal representative or next of kin. The power hereby given shall extend to any
estate, right or interest to which the testator may be entitled at his death, notwithstanding
he may become so entitled subsequently to the execution of the wil!.
The Virginia Supreme Court has explained that wills are designed, by statute, to pennit
individuals to leave property in the manner they choose:
"It may be safely stated that as a general rule the right of a testator to dispose of his estate
as he likes depends neither on the justice of his prejudice nor the soundness of his
reasoning. He may do what he will with his own; and, as to his relatives, all that is
required of him at the time of making his will is that he shall possess ability to
comprehend those who appear as the natural objects of his bounty and appreciate the duty
which recommends them to consideration.,,{3']
The Court clearly indicates that the motivations of the testator (the "'justice of his prejudice'" and "'the
soundness of his reasoning"') have no effect on the disposition of his estate." The right of an individual
to dispose of property by will in any legal manner he desires is not created by marriage, nor does that
right "approximate the design, qualities, significance, or effects of marriage" or assign the "rights.
benefits, obligations, qualities, or effects of marriage." Thus, the marriage amendment will not affect the
ability of unmarried persons to execute or inherit under a lawful wil!.36
3. Advance Medical Directives
You also inquire about the effect of the marriage amendment upon advance medical directives.
The procedure for making an advance medical directive is set out in the Health Care Decisions Act
37
Specifically, 54.1-2983 of the Act provides, in part, that:
Any competent adult may, at any time, make a written advance directive authorizing the
providing, withholding or withdrawal of life-prolonging procedures in the event such
person should have a terminal condition. A written advance directive may also appoint
an agent to make health care decisions for the declarant under the circumstances stated in
the advance directive if the declarant should be determined to be incapable of making an
informed decision. [Emphasis added.]
The Health Care Decisions Act does not require that the agent be related to the declarant by blood
or marriage." Further, the process of making an advance directive and naming an agent to carry out the
instructions of the declarant are acts established by the General Assembly apart from the marriage statutes
"Wohlford v. Wohlford, 121 Va. 699, 706, 93 S.E. 629, 631 (1917) (quoting McDonald's Ex'rs v. McDonald,
117 Am. St. Rep. 582 (1905.
35Id.
36 See 64.1-1 (2002) (outlining the rights of a spouse in absence of a will).
'7
oSee 54.1-2981 to 54.1-2993 (2005).
"'''Agent' means an adult appointed by the declarant under an advance directive, executed or made U1
accordance with the provisions of 54.1-2983, to make health care decisions for him .... " Section 54.1-2982.
September 14, 2006
Page 8
and are not acts that intend "to approximate the design, qualities, significance, or effects of marriage" or
assign the "rights, benefits, obligations, qualities, or effects of marriage." While a lawful marriage creates
in one spouse the legal right by default to make medical decisions without a written instrument for the
other spouse, an unmarried individual may, by executing an advance medical directive, affirmatively
grant the same right to any person of his choosing. It is, therefore, my opinion that the marriage
amendment would not affect the legitimacy of any properly executed advance medical directive" giving
authority to any person to act as agent.
4. Financial Issues
You inquire whether passage of the marriage amendment will invalidate shared equity
agreements." The General Assembly has established that "[a]ny persons may own real or personal
property as joint tenants with or without a right of survivorship." 1 A mortgage, properly called a deed of
trust, is a conveyance of real property from the owners to a trustee to secure payment of a note to a
lender.
42
The act of borrowing money and the rigbt to hold and convey property 43 are not regulated by
statutes related to marriage and thus are not intended "to approximate the design, qualities, significance.
or effects of marriage" or assign the "rights, benefits, obligations, qualities, or effects of marriage."
Persons of the same sex or any unmarried persons can hold and transfer real estate and borrow money
against real property under current law and may continue to do so should the marriage amendment be
adopted.
Joint bank accounts are agreements between multiple parties, regardless of marital status. Banks
hold the money of the depositors, honor demands on the account, and disburse the funds in the account
pursuaut to the agreement entered into between the depositors and the bank. "Every financial institution
in [Virginia] offering joint accounts" must clearly label the accounts "[Joint Account With Survivorship]"
39The General Assembly has provided a procedure for obtaining substitute consent in the absence of an advance
directive appointing an agent. See 54.1-2986(A). Decisions in such cases may be made by statutorily defined
persons in a specified order of priority. [d. Thus, no person, whether of the same sex or opposite sex, may make
decisions regarding treatment if that person does not fall into one of the statutorily created classes. Any person
could, however, petition an appropriate court to be appointed guardian or conservator. See VA. CODE ANN.
37.2-1002(A) (Supp. 2006). The duties of a guardian or conservator are not acts that intend "to approximate the
design, qualities, significance, or effects of marriage" or assign the "rights, benefits, obligations, qualities, or effects
of marriage." See 37.2-1020 (2005) (setting forth duties and powers of guardians).
40Virginia law does not specify what constitutes a "shared equity agreement." For purposes of this opinion, the
term "shared equity agreement" includes deeds of trust and joint bank accounts.
41
See 55-20.1 (2003).
42A "deed of trust" "resembles a mortgage" and is "[a] deed conveying title to real property to a trustee as
security until the grantor repays a loan" See BLACK'S LAW DICTIONARY 445 (8th ed. 2004).
43The holding of real and personal property as tenants by the entireties is limited to a husband and wife. See
55-20.2; see a/so supra note 24 and accompanying text.
September 14,2006
Page 9
or "[Joint Account - No Survivorship].,,44 The acts of maintaining an account with another person,
entering into an agreement with a bank, making demands on the account, and naming a beneficiary are
not related to marriage and are not relationships that intend "to approximate the design, qualities,
significance, or effects of marriage" or assign the "rights, benefits, obligations, qualities, or effects of

Group accident and sickness insurance coverage provided by private companies to its employees
and their designated beneficiaries likewise will not be invalidated by the marriage amendment. The
General Assembly established in 2005
45
that coverage under a group accident and sickness insurance
policy may be extended to insure "[a]ny other class of persons as may mutually be agreed upon by the
insurer and the group policyholder.,,46 Thus, the creation of such a policy is a private contractual matter
between an insurer and the policyholder. The fact that unmarried individuals involved in a same-sex
relationship may receive benefits pursuant to such a policy is not recognition by the Commonwealth of "a
legal status for relationships of unmarried individuals that intends to approximate the design, qualities,
significance, or effects of marriage.,,47 This conclusion further is supported by the fact that in 2005 the
General Assembly enacted the new statutory expansion of accident and sickness insurance coverage with
full knowledge of Virginia's existing statutory prohibitions on same-sex marriage and civil unions" and
concurrently passed the marriage amendment for the first time." The General Assembly, in passing a nc\\
law or amending an existing law, "is presumed to act with full knowledge of the law as it stands."'o 111
addition, when new provisions are added to existing legislation by amendment, a presumption arises "that
in making the amendment the legislature acted with full knowledge of, and in reference to, the existing
law upon the same subject and the construction placed upon it by the courtS.,,51
5. Domestic Violence
Finally, you inquire whether passage of the marriage amendment would provide a defense to a
party charged with domestic assault and battery pursuant to 18.2-57.2, which prohibits assault and
battery against "a family or household member." You question whether, pursuant to this statute, the
prosecution of a person involved in a same-sex relationship with another person would amount to
44See VA. CODE ANN. 6.1-125.15(A) (1999). All matters pertaining to multiple party accounts are addressed in
Chapter 2.1 ofTitle 6.1, 6.1-125.1 to 6.1-125.16 (1999).
45 See 2005 Va. Acts eh. 871, at 1516, 1516 (adding subsection A 2 to 38.2-3525).
46
VA. CODE ANN. 38.2-3525(A)(2) (Supp. 2006).
47 6 d .
See supra note an accompanymg text.
48See 2005 Va. Acts ch. 871, supra note 45 (adding subsection A2 to 38.2-3525); 2004 Va. Acts eh. 983, supra
note 13 (adding 20-45.3); 1997 Va. Acts chs. 354, 365, supra note 12 (adding 20-45.2).
"
See 2005 Va. Acts chs. 946, 949, supra note 3.
50See Sch. Bd. v. Patterson, III Va. 482, 487-88,69 S.E. 337, 339 (1910).
"City of Richmond v. Sutherland, 114 Va. 688, 693, 77 S.E. 470, 472 (1913).
September 14,2006
Page 10
recognition of such a relationship as one "that intends to approximate the design, qualities, significance,
or effects of marriage," thus invalidating the application of the statute to unmarried couples of the same
sex.
The General Assembly has the authority to create and define by statute a class of potential victims
for which enhanced punishment for assault and battery will be available. Section 18.2-57.2(A) provides
that "[a]ny person who commits an assault and battery against a family or household member is guilty of
a Class 1 misdemeanor." Section 18.2-57.2(0) provides that "[t]he definition of 'family or household
member'in 16.1-228 applies to this section." Section 16.1-228 provides that:
"Family Or household member" means (i) the person's spouse, whether or not he or she
resides in the same home with the person, ... or (vi) any individual who cohabits or who,
within the previous 12 months, cohabited with the person, and any children of either of
them then residing in the same home with the person.
Therefore, subsection "i" clearly covers a victim who is a spouse. Additionally, in determining the
protections for unmarried domestic violence victims, cohabitation is the key element in the definition of
"household member" in subsection "vi" of 16.1-288. In customary legal usage, "cohabitation" means
"[t]he fact or state of living together, esp[ecially] as partners in life, usu[ally] with the suggestion of
sexual relations.,,52 The Virginia Supreme Court has held that the term "cohabit" means "to live together
in the same house as married persons live together, or in the manner of husband and wife,,5J and "imports
the c o n t i n u i n ~ condition of living together and carrying out the mutual responsibilities of the marital
relationship." 4 More recently, the Court of Appeals of Virginia offered extensive guidance regarding the
determination of cohabitation.
In determining in Rickman whether the evidence was sufficient to sustain the defendant's
conviction for domestic assault and battery under Code 18.2-57.2, we noted that '''the
essential elements of "cohabitation" are (I) sharing of familial or financial
responsibilities and (2) consortium. '" 33 Va. App. at 557, 535 S.E2d at 191 (quoting
State v. Williams, 79 Ohio Sf. 3d 459,1997 Ohio 79,683 NE2d 1126,1130 (Ohio 1997)).
We also noted that '''possible factors establishing shared familial or financial
responsibilities might include provisions for shelter, food, clothing, utilities, and/or
commingled assets'" and that "'factors that might establish consortium include mutual
respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other,
friendship, and conjugal relations.'" Id. (quoting Williams, 683 NE2d at 1130) .... We
further noted, however, that "'domestic violence arises out of the nature of the
"BLACK'S LAW DICTIONARY, supra note 42, at 277.
53Schweiderv. Schweider, 243 Va. 245, 248, 415 S.E.2d 135, 137 (1992) (quoting Johnson v. Commonwealth,
152 Va. 965,970,146 S.E. 289, 291 (1929.
"!d. (quoting Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600,602 (1986).
September 14,2006
Page 11
relationship itself, rather than the exact circumstances of the victim and perpetrator'" and
emphasized that "[t]he factors to be applied 'are unique to each case and how much
weight, if any, to give to each of these factors must be decided on a case-by-case basis by
the trier of fact.'" Id. at 557,535 S.E.2d at 191 (first emphasis added) (quoting Williams,
683 N.E.2d at 1I29-30 (second emphasis added .... Thus, as we indicated in Rickman,
the trier of fact must employ a "totality-of-the-circumstances analysis" to determine
whether the victim of the assault and battery and the defendant "cohabited," "as that teml
is used in Code 18.2-57.2." Id. at 558,535 S.E.2d at 191[55
1
Thus, while the institution of marriage provides an illustrative and objective standard by which
"cohabitation" may be identified by a trier of fact, the use of marriage as a comparative standard does not
confer upon the cohabiting relationship any of the "rights, benefits, obligations, qualities, or effects of
marriage," nor is it a recognition of a relationship "that intends to approximate the design, qualities,
significance, or effects of marriage." Were such a construction plausible, a prosecution pursuant to
18.2-57.2 could not be maintained against an individual involved in an unmarried heterosexual
relationShip. Such construction would imlicitly recognize a common-law marriage, which, like same-
sex marriage, is not permitted in Virginia. 6 In addition, in defining "family or household member." the
General Assembly specifically listed "spouse" in a distinct and separate subsection of 16.1-228 and
placed individuals who cohabit in another subsection. This distinct placement clearly indicates that the
General Assembly wished to establish a new and distinct class of potential domestic violence victims
among unmarried, cohabitating persons other than spouses. Finalll' customary legal usage also
distinguishes between "cohabitation" and "matrimonial cohabitation.'" Thus, Virginia's existing law
does not confer a legal right unique to marriage on another class of persons that might be invalidated by
the marriage amendment, but rather creates five distinct classes of potential victims (other than spouses)
of domestic violence.
It is my opinion that "cohabitation" is determined by a variety of factors, and that the institution
of marriage may be used as an illustrative and objective standard to determine whether unmarried parties
are cohabitating. Applying this standard pursuant to 18.2-57.2 does not confer upon the cohabiting
relationship any of the "rights, benefits, obligations, qualities, or effects of marriage," nor is it a
recognition of a relationship "that intends to approximate the design, qualities, significance, or effects of
marriage." Passage of the amendment, therefore, would not prevent prosecution of an individual
55
Cowell v. Commonwealth, Record No. 3198-03-1, 2005 Va. App. LEXIS 42, *8-9 (Va. Ct. App. 2005)
(unpublished memo op.).
56
See infra note 58.
57BLACK'S LAW DICTIONARY, supra note 42, at 277. As such, the opinion of the Attorney General in 1994 Op.
Va. Att'y Gen. 60 has been superseded by the Cowell opinion and customary legal usage of the term "cohabitation."
The Honorable Robert G Marshall
September 14, 2006
Page 12
cohabitating in a same-sex or other unmarried relationship for assault and battery of the other individual
" pursuant to 18.2-57.2.
"In 2005, Ohio passed a constitutional amendment similar to Virginia's proposed marriage amendment.
Defendants charged with violating Ohio's domestic violence statute have challenged whether tbe domestic violence
laws may be enforced against unmarried couples in light of Ohio's marriage amendment. As of September 12, 2006,
ten ofObio's twelve appellate courts have addressed whether Ohio's domestic violence law is constitutional in light
of the marriage amendment. Eight of the ten appellate courts have concluded that Ohio's domestic violence law is
constitutional, and the Ohio marriage amendment does not provide a defense to a party charged with assault
pursuant to Ohio's domestic violence law. The eight appellate courts have concluded that the term "person living as
a spouse" is a descriptive term useful in determining the applicability of the statute, but does not create a legal status
prohibited by the marriage amendment In addition, these Ohio courts found that the legislature intended to protect
household violence in all forms and in doing so did not create a legal status that approximates marriage. See State v.
Goshorn, 2006 Ohio 2755, 2006 Ohio App. LEXIS 2593 (May 23, 2006); State v. Newell, 2005 Ohio 2848, 2005
Ohio App. LEXIS 2658 (May 31,2005); State v. Rodriguez, 2006 Ohio 3378, 2006 Ohio App. LEXIS 3289 (June
30, 2006); Gough v. Triner, 2006 Ohio 3522, 2006 Ohio App. LEXIS 3436 (June 28, 2006); State v. Burk 164 Ohio
App. 3d 740, 843 N.E.2d 1254 (2005), discretionary appeal accepted, 2006 Ohio 2226, 847 N.E.2d 5 (2006);
State v. Nixon, 165 Ohio App. 3d 178,845 N.E.2d 544 (2006); State v. Rodgers, 2006 Ohio 1528,2006 Ohio App.
LEXIS 1391 (Mar. 30, 2006); State v. Carswell, 2005 Ohio 6547, 2005 Ohio App. LEXIS 5903 (Dec. 12, 2005),
discretionary appeal accepted, 109 Ohio St. 3d 1423,2006 Ohio LEXIS 1033 (Apr. 26,2006). An Ohio appellate
court has also determined the domestic violence statute was facially constitutional. See State v. Rexroad, 2005 Ohio
6790,2005 Ohio App. LEXIS 6114 (Dec. 13,2005). Two Ohio appellate courts have reached a contrary conclusion.
See State v. Ward, 2006 Ohio 1407,2006 Ohio App. LEXIS 1318 (Mar. 24, 2006), discretionary appeal accepted
2006 Ohio 3862, 2006 Ohio LEXIS 2298 (Aug. 2, 2006); State v. McKinley, 2006 Ohio 2507, 2006 Ohio App.
LEXIS 2379 (May 22, 2006). The Ward court in direct contravention to the holding of the eight other appellate
courts, determined that Ohio's domestic violence statute created a "quasi-marital relationship" because the statute
protected a class of citizens defined as "person[s] living as a spouse." Ward, 2006 Ohio at 1407,2006 Ohio App.
LEXIS, at *16. As such, the court ruled that "cohabitation" equated to a "person living as a spouse." ld. at 1407,
2006 Ohio App, LEXIS, at *15-16. The McKinley court determined that the section of Ohio's domestic violence
statute relating to "person[s] living as a spouse" "clearly categorize[d] victims based on marital-type relationships"
and that cohabitation under Ohio law intends to approximate marriage. McKinley, 2006 Ohio at _, 2006 Ohio
App. LEXIS, at *14-15; see also id. at _, 2006 Ohio App. LEXIS, at *15-18. Since the McKinley decisi,m
conflicts with cases in other appellate courts, the court certified "the record ... to the Ohio Supreme Court for review
and final determination" regarding the constitutionality of the domestic violence statute. Id. at _,2006 Ohio App.
LEXIS, at *33. The conclusion of the Ward and McKinley courts could not be reached in Virginia. Virginia law
does not equate cohabitation to a legal status similar to marriage, nor does its domestic violence statute categorize
victims based on martial-type relationships. See supra notes 52-55 and accompanying text. Similarly, Virginia law
does not provide for the establishment of common-law marriage or any other "quasi-marital relationship" within the
Commonwealth. See VA. CODE ANN. 20-13 (2004) (providing that every marriage in Commonwealth is under
license and officially solemnized); see also Offield v. Davis, 100 Va. 250, 263, 40 S.E. 910, 914 (1902) (enactment
of 2222, predecessor to 20-13, abrogated common law marriage); cf Kelderhaus v Kelderhaus, 21 Va. App. 721.
725-26, 467 S.E.2d 303, 305 (1996) (noting that Commonwealth does not recognize common-law marriages;
however, it extends comity to such unions that are valid under laws of jurisdiction where relationship was created).
September 14, 2006
Page 13
Conclnsion
Accordingly, it is my opinion that passage of the marriage amendment will not affect the current
legal rights of unmarried persons involving contracts, wills, advance medical directives, shared equity
agreements, or group accident and sickness insurance policies, or alter any other rights that do not
"approximate the design, qualities, significance, or effects of marriage" or create "the rights, benefits,
obligations, qualities, or effects of marriage." It further is my opinion that passage of the marriage
amendment will not modify the application and enforcement of Virginia's domestic violence laws.
Thank you for letting me be of service to you.
Robert F. McDonnell
6:990; 1:310; 1 :941106003
EXHIBIT D


washingtonpost.com > Metro > Virginia FOLLOW METRO ON:
Gay Marriage Ban Advances in Va.
By Chris L. Jenkins
Washington Post Staff Writer
Saturday, January 14, 2006
RICHMOND, Jan. 13 -- The House of Delegates gave
preliminary approval Friday to legislation that will place
a state constitutional amendment banning same-sex
marriage before Virginia voters in November.
The delegates voted 73 to 22 on House Joint Resolution
41, overriding appeals from opponents who said the
measure could have far-reaching consequences for all
unmarried couples in the state. The House must vote a final time on the resolution, but
passage is almost certain. The Senate will also take up the measure during the 60-day General
Assembly session, which began Wednesday.
Although the proposal passed overwhelmingly in both chambers last year, it must be
approved in identical form this session before it can go to Virginia voters.
State law bans same-sex unions, but supporters of the constitutional amendment say it's
necessary to clarify that Virginia is not compelled to recognize same-sex marriages or civil
arrangements permitted in other states.
"We're advancing this amendment today because we trust the judgment of the people of
Virginia and not the courts," said Del. Kathy J. Byron (R-Lynchburg), one of the measure's
chief supporters. "Marriage is much more than just two people sharing a committed
relationship. By changing the definition of marriage, the family, too, would be redefined,
ultimately destroying the traditional family. And if the traditional structure of family no
longer matters, what is marriage for?"
Several Democrats who oppose the measure, which would alter the state's Bill of Rights, said
the language that would be presented to voters is too vague because it says in part that the
Virginia Constitution should not recognize "a legal status for relationships of unmarried
individuals." They said this could include unwed heterosexual couples and people in other
arrangements.
The Democrats and other opponents also said such language could interfere with all
unmarried couples making health care decisions and with property ownership. They said the
measure as written could threaten protective orders and additional safeguards for unmarried
victims of domestic violence by barring all legal recognition of unmarried family or
household members.
The amendment "is really dangerous and has the potential of taking away other rights from
Virginians," said Del. Kristen J. Amundson (D-Fairfax), who tried unsuccessfully to amend
the measure on the floor. "If we're going to do this, let's do it right."
"We are far down the road of unintended consequences," said Del. James M. Scott (D-
Fairfax). "We don't need to go any further. This is way over the top."
An authority on the state constitution expressed concern in an interview about the
amendment's wording.
"It's pretty clear what the proposers are trying to do, but there may be some overkill here that
could raise more questions than it actually answers," said A.E. Dick Howard, a professor of
law at the University of Virginia and one of the drafters of the state's modern constitution.
Supporters said unmarried couples have other legal protections.
"We give the power of attorney independent of a marital relationship or a marriage-like
relationship," Del. Robert G. Marshall (R-Prince William), who was an original sponsor of
the amendment.
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Del. David B. Albo (R-Fairfax), chairman of the House Courts of Justice Committee and a
supporter of the amendment, said he will ask for a legal opinion from Robert F. McDonnell
(R) after he is sworn in Saturday as attorney general.
"Our intent wasn't to affect private contracts or anything like that . . . and we can't invalidate
wills and shared equity agreements and things like that," Albo said.
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EXHIBIT E


washingtonpost.com > Metro > Virginia > Government
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Va. Senate Backs Ban On Gay Marriage
Vote Urges Change To Constitution
By Rosalind S. Helderman and Chris L. Jenkins
Washington Post Staff Writers
Tuesday, February 8, 2005; Page B01
RICHMOND, Feb. 7 -- The Virginia Senate passed a resolution
Monday calling for an amendment to the state Constitution that
would define marriage as a union between a man and a woman, in an
effort to permanently prohibit same-sex unions.
Virginia is one of more than three dozen states that ban the
recognition of same-sex marriages. But proponents of the resolution
said a constitutional amendment is necessary to protect state law
from court challenges that have given gay men and lesbians the right
to marry in Massachusetts and recently in New York City.
"America will only be as strong
as its families," said Sen. Nick
Rerras (R-Norfolk). "We must
do all we can to uphold the
sanctity and dignity of marriage,
which is the foundation of our
society, our community and our
nation."
Similar legislation is expected
to pass in the House of
Delegates on Tuesday. To
become part of the constitution,
the proposal must pass the
General Assembly again during
the next legislative session and
then must win approval from
the state's voters in November
2006.
The marriage amendment
resolutions are among many
measures this year that address
the issue of marriage and the
rights of gays in the state.
Lawmakers in the House have
passed a measure to allow
motorists to request a license
plate supporting "Traditional
Marriage."
The House gave preliminary approval Monday to a measure
mandating that background investigations of Virginians seeking to
adopt children include the question of whether the applicants are
practicing homosexuals.
Before expressing support for Senate Joint Resolution 337 by a vote
of 30 to 10 Monday, senators conducted an emotional debate in
which some Democrats invoked the memory of the Holocaust --
when thousands of homosexuals were among the 11 million people
the Nazis killed -- to urge its defeat.
In the Senate's version, marriage would be defined as a union
between a man and a woman, and legal relationships that
approximate marriage also would be off limits. That would make
civil unions and domestic partnerships between same-sex couples
unconstitutional.
Sen. Ken Cuccinelli (R-Fairfax) told colleagues to adopt the
amendment and push back against the "tyranny of judges that has
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In Virginia, "we stigmatize and marginalize" gay
men and lesbians, says Sen. Janet D. Howell
(D-Fairfax).
_____
Virginia Government
_____
Senate Panel Approves Indoor
Smoking Ban (The Washington Post,
Feb 3, 2005)
Va. Assembly Passes Mine Safety
Bill (Associated Press, Feb 2, 2005)
Virginia Bill Would Alter Rules on
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2005)
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largely come to pass in the last 30 or 40 years."
"The homosexual left has been on the attack against marriage and
family for 40 years, and we've been taking it," Cuccinelli said in an
interview last week. "If you're going to start a war, if you're going to
invade a country, expect a counterattack. All we're doing is regaining
lost ground."
Every Senate Republican and six Democrats voted for the
amendment. Those who opposed it, however, argued passionately,
recalling the words of Martin Luther King Jr. and Virginia's history
of slavery and segregation.
Sen. Janet D. Howell (D-Fairfax) recounted a recent visit to the
Virginia Holocaust Museum in Richmond and an exhibit that showed
Nazi concentration camp prisoners, forced to wear pink triangles on
their dirty uniforms as a mark that they were gay.
"In Virginia today, we do not require pink triangles," she said. "We
stigmatize and marginalize people in other ways, as we go down a
path that we do not know where it will end."
House Votes Proffer Limits
A bill to limit the ability of counties to collect proffers -- fees
developers pay localities to offset the costs of new roads, schools and
other services -- was given preliminary approval by delegates
Monday.
The measure, sponsored by Terrie Lynne Suit (R-Virginia Beach), is
aimed at Prince William County, which has asked developers for the
fees upfront to cover at least some of the added costs that come with
burgeoning development and new residents.
Suit said the practice has made it difficult for small developers to
compete because they must pay the county before they have sold a
house.
Opponents of the bill, including lawmakers from such outer
suburban jurisdictions as Loudoun, Prince William and Spotsylvania,
said the measure would place an unfair burden on quickly growing
counties that need proffers to ease development costs.
-- Chris L. Jenkins
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EXHIBIT F

Cuccinelli Basks in Richmond's Warmer Climate
By Raw Fisherfrom Marc Fisher's Blog, February 05, 2008
Just a few months back, while still on the campaign trail, Sen. Ken Cuccinelli (R-Fairfax) was
eager to talk about transportation, taxes, schools and development -- meaty issues that nicely
turned voters' attention away from his reputation as the Virginia Senate's leading voice for
conservative social policy.
Cuccinelli's campaign strategy of emphasizing his hard stance against expansive state spending
worked, even in a district that's trending Democratic. He won reelection, swimming against a
Democratic tide in Northern Virginia. But now he's back in Richmond, back among friends who
appreciate and relish the real Ken Cuccinelli.
"I come to you as the only conservative on the Senate side from Northern Virginia," Cuccinelli
told a meeting of the Family Foundation, the lobby that fights in Richmond against abortion, no-
fault divorce, embryonic stem cell research and pornography. The crowd responded with warm
applause, leading the senator to quip, "I can't get this in Fairfax."
Cuccinelli told the friendly audience that he was
here to stand tall on "abortion bills and the fight
over the homosexual agenda," a phrase he used
five times in a 10-minute talk.
The senator focused on his effort to turn back
Virginia's no-fault divorce law with a bill that
would eliminate automatic divorce for couples
with children, requiring the consent of both
partners before a marriage could be legally
ended. "If you are sued for divorce in Virginia,
there's virtually nothing you can do to stop it,"
he said. "This law has everything to do with the
breakdown of the family. The state says
marriage is so unimportant that if you just
separate for a few months, you can basically nullify the marriage.
"What we're trying to do is essentially repeal no-fault divorce when there are children involved."
Cuccinelli knows he's hardly likely to win this time. "We're the Giants up against the Patriots,"
he said last week, when that meant something rather different. But his effort is what counts to
the Family Foundation crowd, which included state Attorney General Bob McDonnell and
several other legislators.
But in the Senate, where Cuccinelli is often the sole no vote on bills that pass 39 to 1, his true-
believer approach to politics leaves his colleagues flat. "Cuccinelli -- he could be here 2,000 years
and he'd never change," says Senate Majority Leader Dick Saslaw, a Fairfax Democrat. "I mean,
he's the Jesse Helms of this operation."
Saslaw sees Cuccinelli as a prime example of the kind of social conservative who is too willing to
appeal to voters by tapping into popular discomfort with an outsider group in society. "It's been
pretty fashionable around here for the past four or five years to pound gays into the ground,"
Saslaw says. "Now it's immigrants. When they get done with them, it'll be someone else. They
make their living on that."
But although Cuccinelli has introduced some of the tougher bills aimed at discouraging illegal
immigrants from living in Virginia, he says he is not as driven by that issue as some of his
colleagues. "It's not the be-all, end-all for me," he says. "It is an issue, but not the top issue."
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Cuccinelli told the Family Foundation that the ranks of conservatives who still focus on the
social issues are quite small in the state Senate, with but six conservatives among 19 Republican
senators. That's a tally many on the other side of the aisle would find all too stinting. But
Cuccinelli said all is not lost. Despite the Democrats taking back the Senate this year, a few
Democrats support the right on social issues. "And on the homosexual agenda," the senator said,
"we will sometimes get members of the Black Caucus with us."
"Your prayers strengthen us," Cuccinelli said, telling about his effort to defeat a resolution
expressing support for a Richmond gay organization. "When you look at the homosexual agenda,
I cannot support something that I believe brings nothing but self-destruction, not only physically
but of their soul."
And with that, the senator stepped out into the unusually balmy Richmond night, ready for the
next battle.
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EXHIBIT G

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THE VIRGINIAN-PILOT

Steve Shannon for attorney general
Posted to: Editorials Opinion Login or register to post comments
The issue Our pick for the states top
lawyer
Where we stand Shannons opponent
is likely to spend too much time
dragging Virginians through the mire of
divisive social issues.
The Virginian-Pilot
October 26, 2009
In the attorney generals race, Virginians have a choice between a low-key fellow partial to brown suits, and a pugnacious culture warrior more apt to need
flameproof gear.
Steve Shannons style is the better fit for Virginia. His thoughtful approach would preserve the reputation of the states law firm as a source of reliable legal
advice. Ken Cuccinellis antics would be more entertaining, but drama is something best left to TV shows.
Shannon may be unsteady in the political realm, but he isnt a newcomer to law enforcement. He served as an assistant prosecutor in Fairfax County,
specializing in child pornography cases. He and his wife helped create a chapter of Amber Alert, a national network for rescuing abducted children.
As a Democratic delegate, Shannon has been a centrist who gravitated toward bipartisan compromises on budget and transportation issues. That background
will lend him a steady hand as he guides the legislature through what promises to be a tumultuous effort to redraw political districts in 2011.
Shannon says he would partner with local law officials to battle computer crimes. He understands the need to enforce clean water and air regulations. He will
work to curb predatory lending by subjecting the industry to a 36 percent cap on interest rates.
Cuccinellis experience as a court-appointed attorney for the mentally ill made him a valuable participant in efforts to reform state laws after the Virginia Tech
massacre. His intellect could be an asset, but he relies instead on inflammatory appeals.

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12 or 3
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As a Republican state senator, his limited-government philosophy led him to oppose common-sense safety measures and some crime bills. He voted against
allowing cities to enforce traffic laws with red-light cameras and even argued against stricter laws for cockfighting.
He reconciles his anti-government record and his desire to be the states lawyer by promising to sue the federal government over environmental and union
issues.
The governments your client, but youre responsible to the citizens of the commonwealth, he said. But would he feel an obligation to all Virginians?
He sponsored a bill to waive unemployment compensation costs for companies that fire workers for not speaking English on the job. The measure would have
affected only legal workers because illegal immigrants dont qualify for unemployment benefits.
Cuccinellis views on reproductive rights dont align with those of most Virginians. He favors legislation that would grant legal rights to fetuses at conception. He
has sponsored bills requiring strict regulations that would put most abortion clinics out of business. He voted against a bill stating that contraception is not
abortion.
He declined to commit to a nondiscrimination policy against gays and lesbians observed by former Attorney General Bob McDonnell: My view is that
homosexual acts, not homosexuality, but homosexual acts are wrong. Theyre intrinsically wrong. And I think in a natural law based country its appropriate to
have policies that reflect that. ... They dont comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite)
behavior that is not healthy to an individual and in aggregate is not healthy to society.
To put it politely, Cuccinellis election would bring embarrassment to Virginia, instability to the states law firm and untold harm to the long list of people who
dont fit his personal definition of morality.
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EMBARRASSMENT
Submitted by Brian Kirwin on Mon, 10/26/2009 at 6:52 am.
The Pilot would endorse a ham sandwich if it had a (D) after it.
That's the embarrassment.
SO WHO DO WE VOTE FOR
Submitted by ptown49 on Mon, 10/26/2009 at 7:03 am.
After looking at the way what we have in office has behaved and performed, I would actually have to consider voting for the ham sandwich instead of the
incumbents!
DEPENDS
Submitted by Irgun on Mon, 10/26/2009 at 4:10 pm.
If it were on rye with mustard, I dont know....
But white bread and a little mayo (and perhaps a nice slice of tomato?) its got my vote!!
HA! THAT MADE MY DAY. THROW
Submitted by tinydancer75 on Mon, 10/26/2009 at 8:53 pm.
Ha! That made my day. Throw some dill pickle chips on there and you've got a deal!
But seriously, I'll be voting for Shannon. He's the better fit for my view of limited government: Keep your hand out of my wallet and keep your nose out
of my bedroom.
NICE
Submitted by Ptown67 on Mon, 10/26/2009 at 6:24 pm.
You've hit the nail on the head here. I think the VP should drop all pretense and change their name to the "Virginian Democrat Pilot".
I laughed so hard tears were rolling down my cheeks.
HAM SANDWICH
Submitted by Rick_Sincere on Wed, 10/28/2009 at 5:25 pm.
I hear that Ham Sandwich is running as a write-in candidate in the 99th House district -- though I think he's running as an independent, so no "D" next to
his name.
0 or 0
7 or 2
2 or 2
4 or 1
1 or 4
2 or 0
1 or 0
2 or 2
2 or 1
HO HUM.
Submitted by jpjones on Mon, 10/26/2009 at 6:57 am.
Another "surprise" endorsement. Like the Deeds' endorsement, I'm sure it was made after "long and careful consideration." Jody Wagner's will be coming
soon.
"DIVISIVE SOCIAL ISSUES"
Submitted by HenryR on Mon, 10/26/2009 at 8:50 am.
What liberals (and Libertarians) don't get is that the moral base of society is it's guard against ballooning social spending. If you can maintain - if not boost -
the moral fabric of society, citizens engage in better behavior and social problems can be contained.
Undercut society's moral base and you have to increase spending on public safety, health, social services, etc. An ounce of public morality can save
government a pound of spending.
YOU REALLY DON'T GET LIBERTARIANS AT ALL
Submitted by Wm D Tabor DDS on Mon, 10/26/2009 at 9:06 am.
While I agree that poor moral choices often place people in need of assistance, the Libertarian approach is to not allow those who make those
irresponsible choices to force others to bear the consequences. If people had to live with the consequences of their choices, instead of being bailed out by
public subsidy, and rely on charitable institutions for help when they needed assistance, those consequences would lead to better moral choices.
Just as welfare has seduced generations into fatherless homes, other subsidies lead people into lives of dependency as well. So, Libertarians would
eliminate public subsidy of immoral lifestyles so the consequences of those choices would encourage better choices, not try to use force to compel moral
behavior in hopes of reducing the need for the subsidy.
You use force to compel good behavior in children, not adults. Libertarians know the difference.
SO
Submitted by HenryR on Mon, 10/26/2009 at 10:02 am.
If the behavior doesn't change and the private charitable donations don't materialize, Libertarians let society go to pot.
I rest my case.
GOOD POINT...
Submitted by ptownbc on Mon, 10/26/2009 at 1:11 pm.
Our church leaders and politicians are SO good at teaching us the "right" way. By the way, when has society been "good" or "moral"? What age did
that exist? I appreciate your sentiment, but how long have drugs been illegal, and how long has it been a "sin" to commit adultery? It amazes me how
much people fear freedom. Tell me a time when a society failed because of too much freedom. I can give you plenty which have been convinced that
they should fear the "other guy" to the point that they give up all to an oppressive regime.
"The men the American public admire most extravagantly are the most daring liars; the men they detest most violently are those who try to tell them
the truth."-- H. L. Mencken
HUH?
Submitted by Beachguy on Mon, 10/26/2009 at 2:56 pm.
It is not the government's job to provide for those who refuse to provide for themselves. Try reading the Constitution.
SOCIETY GOING TO POT?
Submitted by Wm D Tabor DDS on Mon, 10/26/2009 at 4:50 pm.
No, we allow individuals who consistently make bad choices to experience their own failure, rather than facilitate their continued bad choices until they
drag society down with them.
HUH?
Submitted by Beachguy on Mon, 10/26/2009 at 10:01 am.
While I disagree with some of the stands of Libertarians on some social issues, I agree with them that it is not the government's job to bail everyone out. I
agree with you about the cost of immorality on society.
5 or 2
9 or 5
5 or 8
2 or 0
4 or 2
0 or 0
5 or 1
2 or 1
0 or 1
TWO DEMOCRATS
Submitted by sailboat on Mon, 10/26/2009 at 8:59 am.
I want to thank the VA Pilot for their two endorsements. I always vote just the opposite of what the VA Pilot endorses.
WHAT A SHOCK
Submitted by Beachguy on Mon, 10/26/2009 at 10:04 am.
Does anyone really care who the five people who make up the Pilot's editorial board endorses for anything? The editors are nothing but mouthpieces for the
liberals.
MODERATE MOUTHPIECE
Submitted by Mike Barrett on Mon, 10/26/2009 at 12:04 pm.
Or alternately, a mouth piece for moderate, hard working citizens who expect their elected officials to do their jobs, like support education, transportation,
and public safety. We can leave the pursuit of a radical social agenda on the side for others to deal with, not our elected officials. And it is baffling that
conservatives would choose the republican ticket when they have caused the collapse of our transportation system according to the Virginia Chapter of
the American Society of Civil Engineers, a group which is not partisan nor political; they just want safe and adequate infrastructure. For example, if
Joannou et al had supported the Yes Campaign, the mid town tunnel expansion would be built today; now Portsmouth and Norfolk's citizens face a toll of
$2.50 one way. I guess all the Lexus' will get through, the rest of us can take the bus. Welcome to Virginia; pay a toll, but cross your legs until you get to
Maryland.
HUH?
Submitted by Beachguy on Mon, 10/26/2009 at 1:25 pm.
you say "...Or alternately, a mouth piece (Editorial Board) for moderate, hard working citizens who expect their elected officials to do their jobs..." Wow,
talk about spin. I know those folks. While I like them personally, there is nothing moderate in their political views.
I am not saying that the Republicans are not without blame on the transportation problems. But increasing taxes without guarantees that the money will
actually be spent on roads etc will only cause more problems.
ONE CANNOT POSSIBLY...
Submitted by theguyfromchesapeake on Mon, 10/26/2009 at 4:08 pm.
refer to themselves as 'moderate' or 'centrist' and support the modern day Dem Party. It's almost an oxymoron to link those terms with that organization!
There is nothing moderate or centrist about that party, not with the faces they have leading them.
IN CASE YOU MISSED IT KAINE IS A DEMOCRAT
Submitted by pierreg18059 on Mon, 10/26/2009 at 8:22 pm.
He signed an illegal bill remember?
BREAKING NEWS! DEVELOPING STORY! TEAM COVERAGE! WOW!
Submitted by JockamoRasputin on Mon, 10/26/2009 at 11:31 am.
" Virginian Pilot Editorial Staff Endorses Democrat ! ! ! ! ! ! ! "
THE PILOT
Submitted by bmcallister on Mon, 10/26/2009 at 12:50 pm.
This editorial and the one endorsing Sen. Deeds are reasoned and well supported by the Pilot's moderate tradition.
I LIKE THE JUSTIFICATION!
Submitted by ptownbc on Mon, 10/26/2009 at 1:33 pm.
These "issues" are "devisive" because there are so many people on EACH side! Just say you don't agree with limited government and you are against
conservative views on social issues, and be done with it. It's not going to change with ANY election, so we can just get rid of this section every election
period. We should call this section "Platitudes". It sounds cool, but it's neither cool nor fresh.
7 or 7
5 or 4
2 or 3
5 or 5
3 or 2
2 or 2
SHOCKER
Submitted by VA_Down on Mon, 10/26/2009 at 3:06 pm.
The staunch republicans who post on these message boards support a candidate who would treat women, legal immigrants, and homosexuals as second
class citizens... shocker...
I HAVE TO BELIEVE THAT...
Submitted by theguyfromchesapeake on Mon, 10/26/2009 at 4:12 pm.
Cuccinelli is quite formidable given the vileness of the attacks leveled against him here by the (ahem) always objective, always impartial, always non-
partisan Pilot Editorial Board. The sheer, unabashed hatred that is present in this editorial suggests that they fear him as a true candidate for higher office,
and will be quite successful in such endeavors. The more they try to villify him, the better and better he will look!
AGREE
Submitted by Ptown67 on Mon, 10/26/2009 at 7:17 pm.
It's getting so you can judge the quality of a Conservative candidate by the vileness of the attacks leveled against them by the Liberal media. The more
afraid they are of the person running against their leftist ideals, the more shrill and personal these attacks get.
TWO BIGGOTED EDITORIALS
Submitted by ODU 1977 on Mon, 10/26/2009 at 5:44 pm.
Isn't it interesting that the Republican Party Nominated three pro life individuals but the Virginian Pilot only endorses two democrats - those pro abortion
candidates running against Roman Catholics who follow their faith. In the third race where the Republican nominee is a prolife protestant the paper
demurrers.
I guess the Pilot can't stomach a Catholic who follows his faith.
As for me I'll happily vote for McDonnell and Cuccinelli
Virginia has come a long way since 1928, even if the Pilot has not.
YUP, YOU HIT THE NAIL ON THE
Submitted by tinydancer75 on Mon, 10/26/2009 at 9:06 pm.
Yup, you hit the nail on the head. You know, in those secret Virginian Pilot editorial board meetings, they have a contest to come up with the best ways to
up the number of abortions. Winner gets a canned ham!
(sarcasm off, now)
It disheartens me how people on both sides of the political spectrum can be so divisive. There are a lot of us in the middle who are not only fed up with
certain things about our government, but also with the partisan bickering and name calling that both sides have stooped to.
No one has all of the answers. Working together, perhaps we can come up with most of them. By bickering, we continue to sink even lower. The sad part
is, for many of us, the "working together" part is too hard. For our politicians, it's easier to scream on TV. For many of us, it's simpler to scream on places
like this message board.
It would be nice if for one day, we could log on to find thoughtful debate on here instead of socialist-this... or bible-thumper-that. Also, changing candidates
names to make fun of them (like NOBama... etc) doesn't really help your argument. It makes you look like a third grader.
And before you label me a socialist, I voted for McCain.
THIS ENDORSEMENT, SUCH A SHOCK FOR VAPILOT
Submitted by Bill14 on Mon, 10/26/2009 at 7:27 pm.
The guy who does not even know what the office of Attorney General is gets the endorsement. He was asked to name the divisions and what each does
and had NO CLUE. Watch the video as the audience is laughing at how pathetic he is in avoiding the answer. VaPilot smears the Republican but makes no
mention of what a total know nothing Shannon is for the office.
http://campaignspot.nationalreview.com/post/?q=MGM1MjA1ODdkZWY0YTkxZTA2ZmI1OGM1N2ViZmVmMGE=
This comment is VERY true
At the recent debate of the candidates for Virginia's attorney general, Republican Ken Cuccinelli put one to Democrat Steve Shannon that's probably not
that hard: name each division of the attorney generals office and explain what each does. With a question like that, a candidate is probably hoping his
opponent forgets one, or mixes two up, or offers an answer that suggests incomplete knowledge of the duties they seek.
HE KNEW NOTHING
AMAZING!
2 or 3
1 or 2
MORE EDITORIALS STORIES
No need to follow Texas on benefits
Big price tag for Richmond scandal
A dream comes to Virginia Beach
A foreboding look at region's income
Hits and misses
MORE OPINION STORIES
The gubernatorial gutter fight
Temper the STEM emphasis
Mourning the Marty Bodrogs of the world
We failed, again, to protect a child
Seagull saga brings smiles, and that's the
straight poop
Submitted by pierreg18059 on Mon, 10/26/2009 at 8:20 pm.

The far left Op Ed board endorses a democrat. No need for balance or any real thinking here. Just endorse the democratic candidate. Just a continuation
from being in the tank for Obama.
RACIST!
Submitted by VaSteve on Tue, 10/27/2009 at 7:03 am.
Ham sandwich on what? WHITE bread!!!? AHA!It comes out every time.'White' bread.Typical racist republican.
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EXHIBIT H

Luke Johnsonluke.johnson@huffingtonpost.com
Ken Cuccinelli Loses Petition To
Uphold Anti-Sodomy Law
WASHINGTON -- A court has denied Virginia Attorney General and 2013 gubernatorial candidate Ken Cuccinelli a full hearing to
challenge a ruling that struck down the state's anti-sodomy statute as unconstitutional.
The court issued a short, two-sentence statement on Monday denying the petition, filed on March 26, for an en banc hearing. The court
noted that no judge requested the full hearing in front of 15 judges, after a three-judge panel ruled the statute unconstitutional on March
12.
The decision is a blow for the attorney general, a steadfast social conservative who is running in an increasingly liberal state.
The particular case challenging the law concerned William Scott McDonald, a 47-year-old who was convicted under the "Crimes
Against Nature" statute in 2005 for soliciting a 17-year-old girl to commit sodomy. Historically, anti-sodomy laws have targeted
homosexual activity, but the laws have been used to outlaw acts between those of the opposite sex as well.
The Virginia court ruled that the entire state statute was unconstitutional based on the U.S. Supreme Court's 2003 decision in Lawrence
v. Texas striking down Texas' anti-sodomy law. The Virginia court said the statute could not be used to convict the defendant, but that
the state Legislature could pass a new, constitutional law covering sodomy between minors and adults.
Cuccinelli's office said the case was about sexual predators in a statement last week. "This case is not about sexual orientation, but
using current law to protect a 17-year-old girl from a 47-year-old sexual predator," said Caroline Gibson, deputy director of
communications at the Attorney General's Office, in a statement.
The attorney general, however, has spoken out against LGBT rights. "My view is that homosexual acts -- not homosexuality, but
homosexual acts -- are wrong. Theyre intrinsically wrong. And I think in a natural law-based country, its appropriate to have policies
that reflect that. ... They dont comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be
polite) behavior that is not healthy to an individual and in aggregate is not healthy to society," he said to the Virginian-Pilot in 2009.
Cuccinelli's office did not immediately respond to a request for comment Wednesday.
September 23, 2013
Posted: 04/10/2013 10:28 am EDT | Updated: 04/10/2013 3:40 pm EDT
Page 1 of 1 Ken Cuccinelli Loses Petition To Uphold Anti-Sodomy Law
9/23/2013 http://www.huffingtonpost.com/2013/04/10/ken-cuccinelli-sodomy_n_3051758.html?view...
EXHIBIT I

Executive Order No. 6 (2010)
Equal Opportunity
By virtue of the authority vested in me as Governor, I hereby declare that it is the firm and
unwavering policy of the Commonwealth of Virginia to assure equal opportunity in all facets of
state government.
This order is in furtherance of the stated policy enacted by the General Assembly, and specifically
prohibits discrimination on the basis of race, sex, color, national origin, religion, age, political
affiliation, or against otherwise qualified persons with disabilities. The policy permits appropriate
employment preferences for veterans and specifically prohibits discrimination against veterans as
contemplated by state and federal law.
State appointing authorities and other managers are hereby directed to take appropriate measures, as
determined by the Director of the Department of Human Resource Management, to emphasize the
recruitment and appointment of qualified minorities, veterans, women, disabled persons, and older
Virginians to serve at all levels of state government. This directive does not in any way permit nor
requires the lowering of any job requirements, performance standards, or qualifications so as to give
preference to any state employee or applicant for state employment.
Allegations of violations of this policy shall be brought to the attention of the Office of Equal
Employment Services of the Department of Human Resource Management. No state appointing
authority, other managers, or supervisor shall take retaliatory actions against persons making such
allegations.
Any state employee found in violation of this policy shall be subject to appropriate disciplinary
action.
The Secretary of Administration is directed to review annually state procurement, employment, and
other relevant policies for compliance with the non-discrimination mandate contained herein and in
general law, and shall report to the Governor her findings together with such recommendations as
she deems appropriate. The Director of the Department of Human Resource Management shall
assist in this review.
This Executive Order supersedes and rescinds Executive Order Number One (2006), Equal
Opportunity, issued by Governor Timothy M. Kaine on January 14, 2006.
This Executive Order shall become effective upon its signing and shall remain in full force and
effect until amended or rescinded by further executive order.
Given under my hand and under the Seal of the Commonwealth of Virginia this 5th day of February
2010.
/s/ Robert F. McDonnell, Governor
Attest:
/s/ Secretary of the Commonwealth

EXHIBIT J

07/11/2020 02:46 FAX
Ii!J 001
COMMONWEALTH of VIRGINIA
OfftC6 of the AtlOmey General
Kenneth T. C'uocineIli, II
AljQm"l' Geooral
900 East Id&in S.,...
ruchmood. Vhgiaia 23219
804-786-2071
FAX 804-786-1991
Vu:giDia Reday Sorv:iI!;:CI;!
800828-1120
7-1-1
March 4,2010
Presidents, Rectors, and Visitors of
Virginia's Public Colleges and Universities
Attomey-Client Privileged Comnnmication
Dear Ladies and Gentlemen:
Several inquiries recently have been made regarding the authority of Virginia's
public colleges and universities to approve inclusion of "sexnal orientation," "gender
identity," "gender expression," or like classifications in the non-discrimination policy of
the respective institution. Simultaneously with these inquiries, letters from this office to
various colleges addressing this issue have been released into the public arena, prompting
more questions regarding the application of this office's advice.
In order to ensure that no confusion exists with regard to the advice of this office
or to the legal status of any existing or anticipated policy of a specific college, please
consider this letter as the opinion and advice of the Office of the Attomey General.
It is my advice that the law and public policy of the Commonwealth of Virginia
prohibit a college or university from including "sexual orientation," "gender identity,"
"gender expression," or like classification, as a protected class within its non-
discrimination policy, absent specific authorization from the General Assembly.
Virginia's colleges and universities are public institutions. Each Board of Visitors
is vested with broad rights and powers conferred by the provisions of the Code of
Virginia. In addition, Boards have the authority to make needful rules and regulations
and generally direct the affairs of the college. Beyond this statutory framework, the
Commonwealth recognizes that a university "has not only the power expressly conferred
upon it, but it also has the implied power to do whatever is reasonably necessary" to
effectuate its granted powers. I Examples are numerous particularly in the area of
student safety and discipline - where universities operate within a wide range of implied
I Batche/lerv. Commonwealth, 176 Va. 109 (1940).
03/0512010 2:15PM (GMT-05:00)
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authority. This broad authority, however, is not without limits. Virginia's public
universities 3Ie, at all times, subject to the control of the General Assembly.1 They 3Ie
state agencies - arms of the state - tasked with fulfilling the commitment of the
Commonwealth to provide education to the students of Virginia. As such, they have no
authority greater than that of the body that created it and from whom they derive their
expressed and implied authority. That body is the General Assembly of Virginia.
The General Assembly has considered and defmed the protected classes for
purposes of non-discrimination statutes. It has specifically defined unlawful
discrimination at educational institutions. The Virginia Human Rights Act states that it is
the policy of the Commonwealth to "safeguard all individuals within the Commonwealth
from unlawful discrimination because of race, color, religion, national origin, sex,
pregnancy, childbirth or related medical conditions, age, marital status, or disability, in
places of public accommodation, including educational institutions ... '" (emphasis added).
In addition to this affirmative statement, the General Assembly has on numerous
occasions considered and rejected creating a protected class defined by "sexual
orientation," "gender identity" or "gender expression,,4 Lacking this clear authority, no
state agency can reach beyond the boundaries established by the General Assembly.
Analogous to the General Assembly's legislative stance, prior opinions of the
Attomey General have found that localities have no authority to expand their non-
discrimination policies, In 1982, Attorney General Gerald L. Baliles addressed the
general issue of expansion of a state discrimination law by a locality. He concluded: "To
the extent that [amendments to the Human Rights Ordinance of the County of Fairfax]
either enlarge upon the definitions of the protected class of persons as presently defined
by State statute, or declare particular acts to be unlawful under local ordinance and
thereby provide separate local penalties or exactions for violations, r am constrained to
conclude that the amendments are invalid because the board of supervisors does not
presently have the authority to enact them. ,,5
2 "It is plain that the Univer!!iIY of Vu-ginia is in the strictest se\1lle a public institution ... and controlled
solely by the State ... and that the interest of the public constitutes its ends and aims." Phillips v. Rector &
Visitors 01 Unlvmlly olVil'ginlo. 97 Va. 412, 475-476 (1899).
, VA. CODE ANN. 2.2-3900. See a/so the Virginia Fair Employment Contracting Act, which establishes
the Commonwealth's prohibition ag;a1nst employment discriminalion, and defines protected classes as
"race, color, religion, sex, or national origin. " VA. CODl, ANN. 4200.
4 Since 1997, the GenemI Assembly bas on more than 25 occasions considered and "lieded bills adding
"sexual orientation" to various nll1'lllistiJlllnalion statutes. Last session, the pbt:lse "gender identity or
expression" was included among the "lieded bills. See 2009 SB 1247 (A bill to add sexual orientation to
the definition of unlawful discrilllinatolY practice in the Virginia: Human Rights Act Stricken at request of
Patron in Genem1 Laws and Technology 15..(1); fIB 2668 (A bill to add to the Fair Housing Law
discrimination based on sexual orientation as an unlawful discriminatolY housing p.taCtice. Left on the
table in General Laws Subcommittee); fIB 2385 (A bill to prohibit discrimination in public employment
based on sexual orientalion. The bill dcf!ned "sexual orientalion" as "a person's actual or perceived
heterosexuality, bisexuality, homosexuality, or gender identity or expression." Left on the table in General
Laws Subcommittee).
s 1982.1983 Op. Va Att'y GeIL 286,
I1Il 002
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In 1985, Attorney General William G. Broaddus concluded that the city of
Alexandria did not have the authority to enlarge the categories of protected persons as
defined in state statutes by enacting an ordinance prohibiting discrimination on the basis
of sexual preference." In 1993, Attorney General Stephen D. Rosenthal concluded that
Arlington County was not authorized to prohibit discrimination based on sexual
orientation to any greater extent than it is prohibited by state law.
7
Two opinions in 2002
by Attorney G1::nerallerry Kilgore reached the same conclusion as did his predecessors. g
In 2006, this office concluded that the addition of sexual orientation as a protected
employment class by way of an executive order of the Governor was intended to, and did,
alter the public policy of the Commonwealth. "Changing public policy of the
Commonwealth is within the purview of the General Assembly and, therefore, beyond
the scope of executive authority and is unconstitutional." 9 Acting consistently with this
advice, the current Governor has revised and reissued the executive order to bring it in
line with the law and policy of Virginia.
Taken together, these legislative, executive, and legal actions establish a
consistent public policy of the Commonwealth regarding the classification of sexual
orientation and gender expression as a protected class. A Board of Visitors cannot adopt
a policy position for which no authority has been granted or that has repeatedly been
rejected by the General Assembly. This applies as well, by extension, to the Board's
agent - the president of the college.
Apart from the lack of authority to create such a protected class, the inclusion of
such classifications in institutional non-discrinlination pOlicies invites creative litigants to
deem a university' $ benign non-discrimination statement to mandate, by contract,
particular benefits or privileges to individuals based on such classifications. This
outcome would also stand in stark contrast to the Commonwealth's public policy.
Accordingly, it is my advice that the law and public policy of the Commonwealth
of Virginia prohibit a college or university from including "sexual orientation,," "gender
identity," "gender expression,," or like terms in its non-discrimination policy as a
protected class absent specific authorization from the General Assembly. I see no
significant difference in this policy being adopted by formal Board resolution or by
presidential action.
~ 1985-1986 Op. Va Alt'y Gcn. 16.
7 1993 Op. Va. Alt'y Gen. 68.
See 2002 Op. Va. AIl'y Gen. 105; 2002 Op. Va AIt'y Gcn. 107.
9 2006 Op. Va. Att'y Gen. 05-il94,
Ii!J 003
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I am aware that several Virginia colleges and universities have included "seltUal
orientation" in their respective policies. For the reasons stated, any college or university
that has done so has acted without proper authority. Such invalid policies create, at a
minimum, confusion about the law and, at worst, a litany of instances in which the
school's operation would need to change in order to come into confbrmance.
Accordingly, I would advise the Boards of each college to take appropriate actions to
bring their policies in conformance with the law and public policy of Virginia.
Please feel free to contact me if you have any further questions. I appreciate the
opportunity to be of service to you.
Sincerely
enneth T. CuccineIli, n
Attorney General
Ii!J 004
03/05/2010 2:15PM (GMT-05:00)
EXHIBIT K
View Photo Gallery - : #2012unfiltered: Your
election images: Election images from readers
Gay rights advocates welcome Election Day
results for a change
By Ned Martel, November 07, 2012
On Tuesday, American politics became much
more gay-friendly. Wisconsin voters elected a
lesbian senator. Three gay men, and potentially
one bisexual woman, will join the House of
Representatives. And the approval of ballot
initiatives means homosexuals can marry in
three more states.
The gay rights movement had come to dread
election days, when voters often reversed
measures that legislatures and governors had
backed. And opponents of same-sex marriage
consistently won decisive statewide votes with
far less money and manpower than its
advocates.
As recently as May, North Carolina voters
delivered another drubbing in a string of 30-
plus statewide losses for gay-marriage activists,
adding the states ban on same-sex marriage to its constitution. In Tuesdays vote, those
advocates welcomed a different result. Winning for the first time at the ballot box in Maryland,
Maine, Minnesota and Washington is truly historic, said Chad Griffin, who recently took over
the Human Rights Campaign (HRC), the nations largest gay rights organization. Youre seeing
how fair-minded Americans are, coming down on the side of full equality and inclusion in this
country.
Griffin attributed the win to new gay-straight
alliances outreach efforts with church
leaders, African American activists,
corporations and business leaders. Many
prominent executives took the risk of alienating
their customer base and ponied up chunks of
their own fortunes, including the founders of
Amazon and Microsoft in Washington state. The
chief executive of General Mills, Ken Powell,
spoke for his company against a same-sex
marriage ban in the conglomerates home state
of Minnesota.
A leading opponent to same-sex marriage
discounted the victories as waged on uneven
terrain. Maryland, Maine, Minnesota and Washington are four deep-blue states, where
Democratic voters are more likely to back gay causes, said Brian Brown, president of the
National Organization for Marriage (NOM).
Only four years ago, opponents of gay marriage triumphed in Californias Proposition 8 vote,
which stopped a same-sex marriage law in that blue state. Brown noted that NOM achieved a
decisive win there despite many newspaper editorials in favor of same-sex marriage, plus
corporate behemoths such as Google and Levis lining up with gay rights organizations. Thats
not new to face off against such players, Brown said. Whats new this year is just the level of
money.
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Griffin cited the $2.5 million check that Jeff Bezos, Amazons billionaire founder, wrote in
support of Washingtons gay-marriage effort funds that mingled with $600,000 each from
Microsoft founder Bill Gates and chief executive Steve Ballmer. By Browns estimation, Bezoss
act of largess was a historic feat: As far as I know, thats the largest single donation in the
dozens of gay-marriage ballot initiatives to date.
The money spent this year was the most lopsided in favor of advocates of same-sex marriage
thus far. By HRCs tally of the Washington state race, gay rights organizations poured in nearly
$12 million, while advocates of traditional marriage spent $3 million. Nationwide, HRC and
NOMspent the most money, and the Catholic Church contributed large sums in its effort to
prevent same-sex couples from marrying.
Earlier in the year in Maryland and Washington, legislatures passed bills to allow same-sex
marriage, with the blessings, respectively, of Govs. Martin OMalley and Chris Gregoire, both
Catholic Democrats. Then traditional-marriage petitioners pushed for ballot initiatives. Maines
vote arose after gay-marriage activists gathered enough signatures to send the same-sex
marriage question directly to the voters, three years after a similar measure failed. In Minnesota,
voters were asked a different question: Should the states existing ban on gay marriage become
an amendment to the states constitution?
The decisive wins for same-sex marriage come shortly before what is expected to be a
momentous week in the Supreme Court. Griffin said the justices could decide to hear challenges
to Californias Proposition 8 and the 1996 federal Defense of Marriage Act. We have never seen
in the history of the Supreme Court where so many gay-equality cases are pending before the
justices, he said.
Many gay rights activists were optimistic that Tuesdays sweep would inform the proceedings.
Theres no question that these votes affect the court, said Brian Ellner, a prominent advocate
for gay equality issues. These victories make clear what the polling is already demonstrating.
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EXHIBIT L

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Home > Office of Vital Records > Marriage Requirements
Marriage Requirements
Age Requirements and Consent
The minimum age for marriage in the Commonwealth of Virginia is sixteen (16) years for both the bride and groom;
however, if either party is under eighteen (18), consent to the marriage must be given by the father, mother or
legal guardian. This may be done in person by the parent or legal guardian before the person issuing the license or
by written consent properly sworn to before a notary public. Special provisions are made in Virginia law to allow
marriage for under age parties when the female is pregnant and for situations in which under age applicants have
no parent or legal guardian.
Prohibited Marriages
A marriage entered into prior to the dissolution of an earlier marriage of one or both parties.
A marriage between an ancestor and or descendant; or between a brother and a sister; or between an
uncle and a niece; or between an aunt and a nephew; whether the relationship is by half or the whole
blood or adoption.
When either of the parties lacks capacity to consent to the marriage because of mental incapacity or
infirmity.
A marriage between persons of the same gender (same sex).

"Common Law" marriages are not valid if entered into in Virginia or any other jurisdiction, which does not
permit them for its residents.
License Requirements
Blood Test - There is no blood test requirement for marriage in Virginia.
Where to obtain license - A license for marriage in Virginia is issued by the clerk or his/her deputy clerk of
a circuit court in any county or city in the Commonwealth of Virginia. The ceremony may be performed
anywhere in the State. Applicants must, under oath, furnish information required to complete the
marriage record. These items are material and the applicant may be subject to prosecution for perjury for
violation of the portion of the statutes which requires this information. For divorced persons, there is no
statutory waiting period before marriage after the divorce is granted unless remarriage is specifically
prohibited by a court. In some cases, clerks may require documentary proof of age or termination of
previous marriage. Most of the offices of the clerks of court are closed on Saturdays.
Time Limitations - The marriage must be performed within sixty (60) days after the license is issued.
There is no waiting period required between application and issuance of the license and a couple may be
married immediately after the issuance of a license.
Fees - Any person authorized to celebrate the rites of marriage shall be permitted to charge a fee not to
exceed $50, Section 20-27, Code of Virginia, Domestic Relations. This information should be
confirmed with the court as we may not always be notified of changes that occur.
Virginia issued license - The marriage license issued in Virginia is for marriages to be performed in Virginia
ONLY.
Marriages performed outside of Virginia - Marriages performed outside of Virginia are filed in the state or
country in which the marriage was performed. You must contact the state or country you were married in
to obtain a copy of the marriage record.
Marriage Ceremony
Who may perform? - A minister of any religious denomination must be authorized by a circuit court to
celebrate the rites of matrimony. To obtain such authorization, the minister must produce proof of his
ordination and regular communion with the religious society of which he is a reputed member. In addition,
the court in each city and county has appointed persons who are eligible to perform civil marriage
ceremonies. For marriages between persons belonging to any religious society which has no ordained
minister, refer to Section 20-26, Code of Virginia, Domestic Relations.
Witnesses - There is no statutory requirement that witnesses be present at the marriage ceremony.
Marriage Record - The minister or other person officiating at the marriage must complete and sign the
Marriage Register and the Marriage Return and forward both forms to the clerk of the court who issued the
Page 1 of 2 Marriage Requirements

9/24/2013 http://www.vdh.state.va.us/vital_records/marry.htm
Last Updated: 07-30-2011
license within five (5) days after the ceremony is performed. The Marriage Return is forwarded by the
clerk of the court to the State Division of Vital Records. In addition to the forms to be returned to the
clerk, the officiate may also prepared a certificate to be given to the newly married couple. If the minister
or person who performs the marriage ceremony does not return the Marriage Register and the Marriage
Return to the clerk of the court who issued the license, there will be no record of the marriage in the
courts or with the state.
Certified Copies
If a certified copy of the marriage is required, it may be obtained from the office of the clerk of court who issued
the license (contact the court for the cost) or from the Virginia Division of Vital Records in Richmond, Virginia, for a
fee of $12.00 for each copy. When application is made for a copy of a marriage record from the Division of Vital
Records, the following information should be included: full name of groom, full maiden name of bride, date and
place of marriage and the name of the circuit court that issued the marriage license.
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Page 2 of 2 Marriage Requirements
9/24/2013 http://www.vdh.state.va.us/vital_records/marry.htm
EXHIBIT M

Same Sex Marriage and the Perceived Assault on Opposite
Sex Marriage
Alexis Dinno , Chelsea Whitney
Abstract
Background
Marriage benefits both individuals and societies, and is a fundamental determinant of health. Until recently same sex couples have been excluded from legally
recognized marriage in the United States. Recent debate around legalization of same sex marriage has highlighted for anti-same sex marriage advocates and policy
makers a concern that allowing same sex couples to marry will lead to a decrease in opposite sex marriages. Our objective is to model state trends in opposite sex
marriage rates by implementation of same sex marriages and other same sex unions.
Methods and Findings
Marriage data were obtained for all fifty states plus the District of Columbia from 1989 through 2009. As these marriage rates are non-stationary, a generalized error
correction model was used to estimate long run and short run effects of same sex marriages and strong and weak same sex unions on rates of opposite sex marriage.
We found that there were no significant long-run or short run effects of same sex marriages or of strong or weak same sex unions on rates of opposite sex marriage.
Conclusion
A deleterious effect on rates of opposite sex marriage has been argued to be a motivating factor for both the withholding and the elimination of existing rights of same
sex couples to marry by policy makersincluding presiding justices of current litigation over the rights of same sex couples to legally marry. Such claims do not appear
credible in the face of the existing evidence, and we conclude that rates of opposite sex marriages are not affected by legalization of same sex civil unions or same sex
marriages.
Citation: Dinno A, Whitney C (2013) Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage. PLoS ONE 8(6): e65730.
doi:10.1371/journal.pone.0065730
Editor: Yamir Moreno, University of Zaragoza, Spain
Received: May 23, 2012; Accepted: May 3, 2013; Published: June 11, 2013
Copyright: 2013 Dinno, Whitney. This is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted
use, distribution, and reproduction in any medium, provided the original author and source are credited.
Funding: The authors have no support or funding to report.
Competing interests: The authors have declared that no competing interests exist.
Introduction
Marriage has many values to individuals and societies. The codification of marriage into U.S. Federal law alone provides over a thousand conditions in which married
couples are treated differently than non-married couples. While some disadvantages may result to married couples relative to unmarried couples in these lawsas when
there are married couple penalty provisions in the tax codemost of these laws provide substantive benefits to married couples relative to unmarried couples [1].
Marriage is well understood as a basic determinant of the health of adults [2] and their children [3], [4]. Married individuals are less likely than non-married individuals to
report their health as fair or poor, less likely to suffer from physical ailments or report poor psychological health, and across the lifespan report fewer health ailments [5].
Marriage is associated with greater life satisfaction and improved mental health [6], [7].
Until recently same sex couples in the United States have been excluded from legally recognized marriage. The current national policy debate over same sex marriage
intensified in 1993, when in the Hawaiis Supreme Court ruled in Baehr v. Miike that under that states constitution, a marriage statute which restricts the status and
benefits of marriage to male-female couples discriminates on the basis of sex. [8] In 1996 the federal Defense of Marriage Act (DOMA) restricted marriage to a legal
union between one man and one woman, and, responding to concerns that some states would at some point be required to recognize same sex marriages from other
states, gave states the power to restrict marriage to opposite sex couples and to not recognize same sex marriages from other states. Thirty states have passed state
DOMAs and statute restrictions on marriage [9]. In most states, same sex couples are still excluded from marriage and all same sex couples are excluded from the
federal benefits of marriage.
Massachusetts became the first state to allow same sex marriages on May 17, 2004 following the ruling in Goodridge v. Department of Public Health (440 Mass. 309
Mass: Supreme Judicial Court, 2003). Subsequently, Connecticut (November 12, 2008), Iowa (April 27, 2009), New Hampshire (January 1, 2010), New York (July 24,
2011), Vermont (September 1, 2009), Washington (December 6, 2012), Maine (December 29, 2012), Maryland (January 1, 2013) and the District of Columbia
(December 18, 2009) have joined Massachusetts in legalizing same sex marriages (see Table S1 in File S1). Californias Supreme Court ruled in 2008 that prohibiting
same sex couples from marrying was unconstitutional (In re MARRIAGE CASES, 2008, 43 Cal.4th 757). Same sex marriages were allowed in California between June
17th, 2008 and November 4th, 2008 during which time approximately 18,000 couples were married [2]. In November of 2008, CA voters passed Proposition 8 [10]
defining marriage as one man and one woman. While the federal lawsuit challenging Californias Proposition 8 is working its way through the appeals process (See:
Perry v. Brown, No. 1016696, 9th Cir. Feb 7, 2012), the 18,000 CA same sex marriage licenses issued in 2008 remain valid (Strauss v. Horton, 2009, 46 Cal.4th 364).
Page 1 of 9 PLOS ONE: Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage
9/24/2013 http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0065730
In 2000, Vermont became the first state to allow civil unions for same sex couples following a supreme court ruling that marriage benefits could not be restricted to
opposite sex couples (Baker v. Vermont, 744 A. 2d 864 Vermont: Supreme Court, 1999). Following Vermont, eleven states, including California, Connecticut, Delaware,
Hawaii, Illinois, Nevada, New Hampshire, New Jersey, Oregon, Rhode Island, and Washington as well as the District of Columbia enacted legislation recognizing same
sex domestic partnerships or civil unions which do or did extend most or all of the state-level benefits of marriage, explicitly reserving the legal designation of
marriage to opposite sex couples (see Table S1 in File S1). Several states, including Colorado, Maine, Maryland, Wisconsin, and previous to stronger same sex union
laws, in California, the District of Columbia, New Jersey and Washington enacted legislation recognizing same sex domestic partnerships or designated beneficiaries,
which have provided a limited subset of state-level benefits of marriage to registered couples (see Table S1 in File S1).
Is Same Sex Marriage a Detriment to Opposite Sex Marriage?
Opponents to legalization of same sex marriage have positioned it as an assault [11] seeking to weaken, [12] destroy [13][16] and undermine [17], [18] opposite
sex marriage. Anti-same sex marriage lawmakers, advocates, and journalists have raised concerns over the social effects of legalizing same sex marriage. One such
use of language has positioned same sex marriage as literally harmful to opposite sex marriage: in a recent ruling of the United States Court of Appeals for the Ninth
Circuit in Perry the proponents argue if the definition of marriage between a man and a woman is changed, it would fundamentally redefine the term from its original
and historical procreative purpose. This shift in purpose would weaken societys perception of the importance of entering into marriage to have children, which would
increase the likelihood that couples would choose to cohabitate rather than get married (Perry v. Brown, No. 1016696, 111-1129th Cir. Feb 7, 2012). David
Blankenhorn, an expert witness for the defendants in Perry testified under oath that allowing same-sex marriage would undermine respect for the unique status of
traditional marriage, and this could lead to further deinstitutionalization, including an increase in out-of- wedlock births, divorce, etc [19]. The argument that same sex
marriage literally destroys opposite sex marriages translates directly to the question of what has happened to rates of opposite sex marriage in states that allow same
sex marriage as compared to other states which do not? A similar question has been posed in the academic arena with respect to opposite sex marriage rates in
Denmark, Norway, Sweden, Iceland, and the Netherlands, and no significant change in opposite sex marriage and divorce rates following enactment of same sex
marriage laws was found [20]. The academic literature quantitatively assessing the effect of same sex marriage laws on rates of opposite sex marriage in the U.S. is
tiny, with, we believe, just one study that analyzed a static model of marriage rates from three years (1990, 2000, and 2004) and found a significant positive association
between gay marriage, or full legal recognition like civil unions and state marriage rates [21].
Despite the argument that legalizing same sex marriage will decrease the rates of opposite sex marriage, some opposite sex couples in the U.S. are currently
boycotting marriage until it is available to all [22], [23]. Heterosexual and bisexual individuals and opposite sex couples across the country have pledged to boycott
marriage until it is available to all by joining the National Marriage Boycott, started after the passage of Proposition 8 [24]. The movement has been joined by churches
as well who have stopped signing marriage licenses in support of marriage equality [25], [26]. That some opposite sex couples will not marry unless same sex
marriages are lawful suggests, contrary to the prognostications of some opponents of same sex marriage, that a probable increase in marriage rates over time will
follow the legalization of same sex marriage. The fact that some opposite sex couples are postponing marriage until it is legal also for same sex couples implies that
there may also be a limited period of increase in opposite sex marriages following enactment of same sex marriage laws. A helpful anonymous reviewer of this article
conjectures that same sex marriage laws could be expected to have two kinds of effects on rates of opposite sex marriage. Because by legitimizing same sex
relationships, same sex marriage laws could help reduce the number of homosexuals living closeted lives and entering into unhappy opposite sex marriages, such laws
might both contribute to decreased numbers of new opposite sex marriages, but also reduce the number of opposite sex marriages likely to end in divorce because the
marriage was undertaken to keep up heterosexual appearance by a homosexual participant. Therefore caution must be taken about conflating causes of state-level
rates of opposite sex marriage with causes of individual-level or couple-level participation in opposite sex marriage.
We aim to test the claims that rates of opposite sex marriage will change as a result of same sex marriage or strong or weak same sex union laws. Our primary formal
hypothesis is twofold: (1) that there is in the short or long-term a decreasing trend in rates of opposite sex marriage following implementation of same sex marriage
laws, and (2) that states enacting same sex marriage laws experience an increase in opposite sex marriages in the short-term following implementation. These primary
hypotheses are accompanied by four parallel secondary hypotheses for comparable short-term and long-term effects following implementation of strong same sex
union laws providing most or all of the benefits of marriage excepting the term marriage, and for weak same sex union laws providing a small subset of the benefits of
marriage.
Materials and Methods
We model marriage rates in the thirteen states plus the District of Columbia where same sex marriage or strong or weak same sex union laws were implemented before
2009 relative to rates in the remaining states..
Variables and Data
Marriages by state and year from 1988 to 2009 were obtained from National Center for Health Statistics (NCHS) marriage publications [27][41], excepting Louisiana in
2006 when NCHS data were unavailable. We used the Louisiana Department of Health and Hospitals marriage rate figure for 2006 because NCHS marriage figures
from 2005 and 2007 are identical to the Louisiana Department of Health and Hospitals figures for those same years [42]. Mid-year (July, 1) estimates of the U.S.
population 18 years and older by state were obtained from the U.S. Census Bureau Population Estimates historical data by state
(http://www.census.gov/popest/data/histor ical/). The adult population in each state was used as this represented those at risk of marriage for purposes of analytic
precision (and not intended as a substantive redefinition marriage rate). The total number of marriages in each study state were adjusted downward by the
corresponding number of same sex marriages [43][46] appropriate to each year from enactment to 2009. Because California did not track same sex marriages in
2008, we used the widely-reported figure of 18,000 same sex marriages in California during 2008 [2]. Marriage rates were calculated as all control states marriages
minus the total number of reported same sex marriages (i.e. zero in most states and years), divided by the in-state adult population at mid-year. The sample size was
1071.
Data for state same sex marriage, and strong and weak same sex union laws were taken from public legislative and court records (see Data S1). In each year, same
sex marriage and union laws were separately encoded in each state with a proportion representing how much of that year the law was in effect. For example,
Massachusetts implemented same sex marriage on May 17, 2004, so during the first year following enactment the same sex marriage variable for this state had the
value 0.623 in 2004, the value 1.0 in all subsequent years, and the value 0.0 in all previous years. A multiplicative interaction term for same sex marriages and strong
same sex unions to capture those occasions when both laws were in force simultaneously.
Missing Data
Marriage data were missing for California in 1991 and for Oklahoma for 20002004. The portion of missing marriage data was 0.0045. We accounted for increased
uncertainty in our estimates due to data missingness using bootstrap estimation maximization multiple imputation methods developed for missing time series data with
the amelie package version 1.55 for R. version 2.14. [47] Reported are the results of identical analyses on ten imputed data sets combined [48] to reflect increased
uncertainty due to data missingness. See File S1 for further details.
Non-stationarity of Marriage Rates
A first-lag random intercept model (1) provided an estimate of (95% CI:0.953, 0.970), suggesting that marriage rates during the study period were strongly
autoregressive and near-integrated (i.e. non-stationary) processes [49], [50]. Application of Hadris test for unit root in panel data allowing for cross-sectional
dependence and subtracting cross-sectional means [51] confirmed that marriage rates in some states were neither trend stationary ( ) nor level stationary (
). The Im-Pesaran-Shin test for unit root with a single lag and subtracting cross-sectional means [52] failed to reject the null hypothesis that all states
contain unit roots both with time trend ( ) and without ( ).
(1)
where:
is the marriage rate at time in state ,
measures autocorrelation and is permitted to vary for each state,
is the first lag of the marriage rate in each state,
measures all disturbances to in each time (assumed distributed normal), and
measures state-level variation in (assumed distributed normal).
Data Analysis
We modeled state-level differences in opposite sex marriage rates by differences in their enactment of same sex marriage laws and strong and weak same sex union
laws. Because marriage rates are near-integrated, stationary models of change in marriage rates cannot provide reliable estimates [53]. Instead, change in marriage
rates in year and state was fit using a single-equation generalized error correction model (GECM) [49], [50] (equation 2), permitting inference about the short term
and long term effects on opposite sex marriage rates of same sex marriage and union laws. The GECM is an appropriate model both because GECMs are appropriate
for modeling near-integrated outcome variables irrespective of a co-integration between outcome and predictor variables [50], [54], and because we infer that same sex
marriage, and strong and weak same sex unions all have level unit root (same sex marriage and strong same sex unions have trend unit root, although in some states
weak same sex unions may be stationary) from both Hadris test allowing for cross-sectional dependence and subtracting cross-sectional means and the Im-Pesaran-
Shin test with a single lag and subtracting cross-sectional means. The interaction term, , is stationary (see discussion of the homogeneity of the error correction
process in the discussion).
The random intercept term, , was permitted to vary by state, both to reflect the fact that states have different average changes in marriage rates at equilibrium (i.e. it
would be unreasonable to fit the model by assuming, for example, that Hawaii and Mississippi experience similar changes in marriage rates), and in order to produce
more accurate standard error estimates of the fixed effect parameters.
(2)
where:
in the subscript indicates the first lag for a variable in year t;
is the one-year change function for a variable (e.g. );
is the marriage rate in year in the state;
is the proportion of year that same sex marriage laws were in force in the state;
is the proportion of year that strong same sex union laws were in force in the state;
is the proportion of year that weak same sex union laws were in force in the state;
is the multiplicative interaction of and in year in the state;
is the model constant for the state;
is the correction rate at which marriage rates return to equilibrium after a perturbation;
is the short run instantaneous effect of same sex marriage law implementation in the absence of concurrent strong same unions ( , , and are the
short run instantaneous effects of the respective covariates);
is the lagged effect of same sex marriage law implementation in the absence of concurrent strong same unions ( , , and are the lagged effects of the
respective covariates);
is the residual at time in the study state;
is the model constant term for the study state, and where , and .
The parameters in (2) provide different possible interpretations of our hypotheses in the form of short and long term effects of same sex marriage and strong and weak
same sex union laws on opposite sex marriage rates. Short run instantaneous effects are given by , , and and, for same sex marriages concurrent with
strong same sex unions, by ( ). Short run lagged effects (for example, for marriage in the absence of concurrent strong same sex union laws) are
given by , and (for same sex marriages concurrent with strong same sex unions) by . Finally, long run
effects (for example, for marriage in the absence of concurrent strong same sex union laws) are given by , and (for same sex marriages concurrent with
strong same sex unions) by . We estimated the model in equation (2) for all fifty states plus the District of Columbia in order to evaluate the
short and long term effects of same sex marriage and union laws against opposite sex marriage rates in control states using the xtmixed command in Stata version
11.2. Estimates and standard errors for long run effects, lagged short run effects and the instantaneous short run combined effect of same sex marriages
contemporaneous with strong same sex unions were calculated using the delta method using the nlcom command in Stata.
Results
All short term and long term effects of same sex marriages and strong and weak same sex unions were close to zero and statistically undifferentiable from the null
hypothesis of no effect on rates of opposite sex marriage with %95 confidence intervals uniformly spanning zero (Table 1). This finding holds even for very large values
of . Of course absence of evidence, is not the same thing as evidence of absence [55]. Therefore we also performed equivalence hypothesis tests on each of the
dynamic effects reported in Table 1 by posing as null hypotheses differences between the reported effects and zero within a given tolerance, , deciding whether to
reject them in favor of alternative hypotheses of effects within the range by using uniformly most powerful tests of equivalence [56]. We employed and report
results for liberal ( ), strict ( ) and very strict ( ) tolerance values ( is measured in units of , see, for example, page 16 of [56]). The results of the
equivalence tests (Table 2) were unambiguous: we rejected all null hypotheses of difference in of the dynamic effects of favor of equivalence to no effect for liberal,
strict and very strict tolerances. In Table 2 we report -values adjusted for the False Discovery Rate (FDR) [57] only for , as the FDR adjustments make no
difference within the precision of of the reported figures for or . Thus, we found that adult rates of opposite sex marriage in states implementing same
sex marriage laws, both with and without contemporaneous strong same sex union laws, were equivalent to rates in states with no such laws, and we find that any
differences appear to due to chance alone, as reflected in very wide confidence intervals around the predicted differences in states implementing same sex marriage
laws (Figure 1). Figure S1 in File S1 shows graphs for all states with any same sex marriage or same sex union laws. The raw model parameter estimates and standard
errors from (2) are presented in Table S2 in File S1.
Figure 1. Projected differences in annual opposite sex marriages in states enacting same sex marriage laws.
Solid black lines represent our modeled marriages in each year and state, and dashed black lines project opposite sex marriages if same sex marriage laws had
not been enacted in each state and year. Observed numbers of marriages are plotted as dotsnote that the model follows very closely on the previous years
observed number of marriages. The 95%confidence intervals of the difference in predicted opposite sex marriages with and without same sex marriage laws in
effect are centered on the average of those two predictions. California licensed 18000 same sex marriages in 2008. Connecticut enacted a same sex marriage
law in 2008. Iowa enacted a same sex marriage law in 2009. Massachusetts enacted a same sex marriage law in 2004. Vermont enacted a same sex marriage
law in 2009.
doi:10.1371/journal.pone.0065730.g001
Table 1. Effects of same sex marriage and union laws on opposite sex marriage rates (N = 1071).
doi:10.1371/journal.pone.0065730.t001
Table 2. Equivalence tests for dynamic effects on opposite sex marriage rates (N = 1071).
doi:10.1371/journal.pone.0065730.t002
Across analyses of all ten imputed data sets, Hadris test for unit root for panel data allowing for cross-sectional dependence and subtracting cross-sectional means [51]
failed to reject both the null hypothesis that the error terms from all states were trend stationary (mean ) and the null hypothesis that the error terms from all
states were level stationary (mean ): we conclude that our model was appropriate to test our hypotheses.
Models models with additional lags including up through the fourth lags of marriage rates gave substantively similar results with no difference in inferences from Tables
1 and 2.
Discussion
We found that state rates of opposite sex marriage in the U.S. from 19892009 do not significantly differ when same sex marriage and union laws are in force
compared to when they are not in force, contrary both to concerns raised by opponents of same sex marriage and same sex civil unions, and to the positive association
reported by Langbein and Yost [21]. We found no evidence of an increase in state-level opposite sex marriage rates corresponding to a first year effect of same sex
marriage, contradicting the marriage equality hypothesis. Indeed, per our equivalence tests, we found evidence of an absence of any effects. Our analysis allows
inference into changes in opposite sex marriage rates by year and state, but we cannot readily translate this inference into relationships between opposite sex couple-
level marriage decisions and state-level policies without committing the ecological fallacy [58], [59]. Given the nuances we raised in the background section regarding
individuals and couples motivations for choosing to marry a partner of the opposite sex or not, it is clear that only further research including both individual-level and
state-level data will illuminate the effects of state marriage laws on individuals and couples marriage choices. Such a study could also examine the psychological
effects of anticipated changes to marriage law on marriage behavior.
The question of whether states ought to legally provide same sex couples with the legal status of marriage, or a related, though less regarded and less beneficial status
of same sex union cannot be answered solely in terms of the effect on opposite sex marriages. However, a deleterious effect on rates of state rates of opposite sex
marriage has been argued to be a motivating factor for both the withholding and the elimination of existing rights of same sex couples to marry by policy makers
including presiding justices of current litigation over same sex couples rights to legally marry. Such claims do not appear credible in the face of the existing evidence.
We began by framing marriage as a social determinant of health. Marriage is an important social resource for the health of both opposite sex and same sex couples,
and their children. If rates of opposite sex marriage are threatened by same sex marriage, then part of the societal measure of that threat is the limiting of a basic
resource for the health of opposite sex couple-based families (through, for example, pension benefits, hospital visitation rights, immigration rights, child support, medical
benefits due married partners, affordable housing benefits, etc.) who remain unmarried. This view is not supported by our findings. Conversely, if rates of opposite sex
marriage are not threatened by same sex marriage, then the denial of marriage rights to same sex couples is a denial of a basic resource for the health of same sex
couple-based families. This view is supported by our findings.
Limitations
More states currently have same sex marriage and union laws in force than during our study period. Including such states would provide greater precision in our
estimates, and potentially permitting an positive assessment of both the marriage equality hypothesis and the threat to opposite sex marriage hypothesis. Unfortunately
there is a trend away from reporting the number of marriages by state at the national level, and in many states, making later data more difficult to obtain.
Our analysis assumes no state-level confounding factors are biasing the estimates of the effects of same sex marriage and union laws. This is appropriate in that our
hypotheses were directly informed by conjectures and assertions within a recent and ongoing nation-wide discussion on the legitimacy of providing or denying same
sex couples the right to legally recognized marriage, and this discourse has not generally been characterized by conjecture about confounding effects. For example,
presiding justices making the argument that same sex marriage could discourage opposite sex marriage have not suggested that this effect varies depending on
economic conditions, or on demographic makeup within a state. However, further research in the subject may produce insights in examining such possibilities both at
the state and individual level.
Our model assumes that the effects of same sex marriage and union laws on change in rates of opposite sex marriage do not differ by state. If this assumption poorly
reflects the reality (e.g. same sex marriages increase rates of opposite sex marriage in some states, but decrease rates of opposite sex marriage in other states), we
may be blind to nuances of the cultural force of same sex marriages and unions. Unfortunately, the size of the current data set, in particular, the limited number of
states and years implementing same sex marriage or union laws, provides poor power to discriminate random effects at the state level. Relatedly, differences in same
sex marriage or same sex union laws in neighboring states might produce cross-border marriage effects which our data and study design cannot readily address. This
is a complex issue, for many reasons: some states require residency for a marriage; there is likely limited legal benefit to being married in another state when it is illegal
in ones own; the role of geographic isolation (e.g. California versus Rhode Island) in limiting travel. While such marriage migration may mismatch the numerator
(marriages) from the denominator (marriageable-age population), the random intercept term captures state-specific differences in marriage rates which are relatively
constant across the studys duration.
We also made an assumption of homogeneity of error correction rates by state, and by same sex marriage or union laws. This assumption appears reasonable for two
reasons. First, the error correction process is dominated by the first lag of marriage rates, and the lagged same sex marriage and union terms cancel with it to produce
near-zero estimates. Second, models accounting for only one kind of the same sex marriage, strong, or weak same sex union laws (see Tables S3S8 in File S1)
produced very similar values for as that which we report here.
Ideally, we would have wanted to extend this analysis to divorce: inherent in the critiques against same sex marriage described above are concerns about opposite sex
divorce. For example, former Arkansas Governor Mike Huckabee articulated this perspective against same sex marriage clearly There is a quantified impact of broken
families [13]. However, many more divorce data are missing: twelve states are missing divorce data from 19902009California, Indiana, and Louisiana in particular
are missing most years dataand the overall rate of missingness is 7.93%. In addition, we encounter an analytic conundrum with divorce rates by state, which present
neither uniformly stationary nor uniformly near-integrated processes, making the appropriate choice of model unclear.
Conclusion
We conclude that there is no relationship between implementation of same sex marriage or strong or weak same sex union laws and rates of opposite sex marriage.
Because the history of same sex marital rights is young in the U.S., ongoing examination of these relationships is warranted.
Supporting Information
File S1.
Supporting Information File S1 is a word processing document (in.docx format) containing Table S1: State same sex marriage and strong and weak same sex union
laws; details of the imputations, including equations S1S3; Table S2: Fixed and random effect model estimates of change in opposite sex marriage rates by state and
year; Figure S1 Projected differences in annual opposite sex marriages in states enacting same sex marriage or strong or weak same sex union laws; separate
generalized error correction models for same sex marriage and strong and weak same sex union laws, including equations S4S6; Table S3: Effects of only same sex
marriage laws on opposite sex marriage rates; Table S4: Fixed and random effect model estimates of change in opposite sex marriage rates by state and year for same
sex marriage only; Table S5: Effects of only strong same sex union laws on opposite sex marriage rates; Table S6: Fixed and random effect model estimates of change
in opposite sex marriage rates by state and year for strong same sex unions only; Table S7: Effects of only weak same sex union laws on opposite sex marriage rates;
Table S8: Fixed and random effect model estimates of change in opposite sex marriage rates by state and year for weak same sex unions only; and References S1.
doi:10.1371/journal.pone.0065730.s001
(DOCX)
Data S1.
Supporting Information Data S1 is a spreadsheet (in.xlsx format) containing Sheet S1: Reported US marriages by state and year (annotated); Sheet S2: Reported
number of US same sex marriages by state and year; and Sheet S3: Estimated US population age 18+ by state and year: US Bureau of the Census.
doi:10.1371/journal.pone.0065730.s002
(XLSX)
File_S1.docx
Supporting Information File S1 is a word processing document (in.docx format) containing
Table S1: State same sex marriage and strong and weak same sex union laws; details of
the imputations, including equations S1S3; Table S2: Fixed and random effect model
estimates of change in opposite sex marriage rates by state and year; Figure S1 Projected
differences in annual opposite sex marriages in states enacting same sex marriage or
strong or weak same sex union laws; separate generalized error correction models for
same sex marriage and strong and weak same sex union laws, including equations S4
S6; Table S3: Effects of only same sex marriage laws on opposite sex marriage rates;
Table S4: Fixed and random effect model estimates of change in opposite sex marriage
rates by state and year for same sex marriage only; Table S5: Effects of only strong same
sex union laws on opposite sex marriage rates; Table S6: Fixed and random effect model
estimates of change in opposite sex marriage rates by state and year for strong same sex
unions only; Table S7: Effects of only weak same sex union laws on opposite sex marriage
rates; Table S8: Fixed and random effect model estimates of change in opposite sex
marriage rates by state and year for weak same sex unions only; and References S1.
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Acknowledgments
We thank James Honaker for insights about multiple imputation, and James Lightwood for insights about error correction models.
Author Contributions
Analyzed the data: AD. Wrote the paper: AD CW. Conceived and designed time series analysis: AD. Obtained and prepared secondary data: AD CW.
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EXHIBIT N


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Heres an answer to claims that allowing gays to marry will destroy the institution for everyone: the
divorce rate in the states that allow gay marriage is 20 percent lower than in states that prohibit it. The
state with the lowest divorce rate, Massachusetts, was also the first state to legalize same-sex marriage,
in 2004. (Massachusettss divorce rate has actually declined since then.) Of the 15 states with the highest
divorce rates, all ban gays and lesbians from marrying.
With 2.5 divorces per 1,000 people, Illinois has the lowest divorce rate of any state that bans same-sex
marriage. Clearly, a pro-marriage state like ours belong in the other category. Are you listening, House
of Representatives? Heres a complete breakdown, using statistics provided by the U.S. Census Bureau.

STATES THAT PROHIBIT GAY MARRIAGE:
Alabama 4.4
Alaska 4.4
Arizona 3.5
Arkansas 5.7
California 4.3
Colorado 4.2
Florida 4.2
Georgia 3.3
Hawaii 3.9
Idaho 5.0
Illinois 2.5
Indiana N/A
Kansas 3.7
Kentucky 4.6
Getty Images
Confetti with the word divorce written on it
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Louisiana N/A
Michigan 3.3
Mississippi 4.1
Missouri 3.7
Montana 4.1
Nebraska 3.4
Nevada 6.7
New Jersey 2.8
New Mexico 4.0
North Carolina 3.8
North Dakota 2.9
Ohio 3.3
Oklahoma 4.9
Oregon 3.9
Pennsylvania 2.7
South Carolina 3.0
South Dakota 3.3
Tennessee 3.9
Texas 3.3
Utah 3.6
Virginia 3.7
West Virginia 5.2
Wisconsin 3.0
Wyoming 5.2
AVERAGE: 3.9
STATES THAT ALLOW GAY MARRIAGE:
Connecticut 3.1
Delaware 3.6
D.C. 2.6
Iowa 2.4
Maine 4.1
Maryland 2.8
Massachusetts 2.2
Minnesota 3.2
New Hampshire 3.7
New York 2.6
Rhode Island 3.0
Vermont 3.5
Washington 3.9
AVERAGE: 3.1

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http://www.nbcchicago.com/blogs/ward-room/States-That-Allow-Same-Sex-Marriage-Have-Lower-Divorce-Rates-213335351.html

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UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIANORFOLK DIVISION

Submitted by pierreg18059 on Mon, 10/26/2009 at 8:20 pm.

A marriage between persons of the same gender (same sex).

Page 1 of 2 Marriage Requirements

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