Case 2:13-cv-00395-AWA-LRL Document 1 Filed 07/18/13 Page 1 of 12 PageID# 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA-NORFOLK DIVISION

TIMOTHY B. BOSTIC,

and
TONY C. LONDON,

Plaintiffs,

CASE NO. A\ \~hcM V\&

ROBERT F. MCDONNELL, in his official capacity as Governor of Virginia, and
KENNETH T. CUCCINELLI, in his official
capacity as Attorney General of Virginia, and

GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court,

Defendants.

COMPLAINT FOR DECLARATORY. INJUNCTIVE AND OTHER RELIEF
Plaintiffs Timothy B. Bostic ("Bostic"") and Tony C. London ("London"), by counsel, complain of Defendants and allege the following.

INTRODUCTION
1. More than 30 years ago, the Supreme Court of the United States recognized that "[m]arriage is one of the 'civil rights of man,' fundamental to our very existence and survival."
Loving v. Virginia, 388 U.S. 1,12 (1967). But today, as a result of both state statute and the state constitution, the Commonwealth of Virginia denies its gay and lesbian residents access to marriage. Article I, §15-A of Virginia's Constitution provides that "only a union between one

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man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions." Va. Const., Art. I, § 15-A. Similarly, Va. Code § 20-45.2 states that a "marriage between persons of the same sex is prohibited" in the Commonwealth of Virginia. This code section also states that "[a]ny marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable." Virginia law also prohibits civil unions among same-sex individuals. Va. Code § 20-45.3. This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by
the Fourteenth Amendment to the United States Constitution.
2. For these reasons, Plaintiffs ask this Court to enjoin, preliminarily and permanently, all enforcement of statutes that seek to exclude gays and lesbians from access to civil marriage and civil union.
JURISDICTION AND VENUE
3. This case raises questions under the Constitution of the United States and 42 U.S.C. § 1983, and, thus, this Court has jurisdiction over all claims for relief pursuant to 28 U.S.C. § 1331.
4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because all Defendants reside in the State of Virginia and in the Eastern Districtof Virginia. Venue is also proper in this Court because a substantial part of the events giving rise to the claim occurred in
this district.

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NATURE OF DISPUTE
5. This action, brought pursuant to 42 U.S.C. § 1983, seeks (1) a declaration that Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitutionprovisions that expressly deny gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals— are unconstitutional under the Due Process and Equal Protection clauses of the
FourteenthAmendmentto the United States Constitution; and (2) a preliminary and permanent injunction preventing Defendants from enforcing these provision against Plaintiffs.
6. Plaintiffs Bostic and London are gay individuals in a long-standingcommitted relationship. Plaintiffs have been in this relationship since 1989. Plaintiff London served in the United StatesNavy and has been a real estate sales agent/realtor for 16 years. PlaintiffBostic is a professor of humanities at Old Dominion University in Norfolk, Virginia. Bostic and London desire to express theirlove for and commitment to one another by getting married and obtaining official sanction for their union from the Commonwealth. Bostic and London sought to obtain a
marriage license from the Clerk of the Circuit Court for the city of Norfolk on or about July 1,
2013, but were turned down because of the Virginia statute and the Virginia Constitution. 7. To enforce the rights afforded by the United States Constitution, Plaintiffs bring
this suitpursuant to 42 U.S.C. § 1983 for declaratory and injunctive reliefbarring enforcement of Va. Code §§ 25-45.2 and 20-45.3 and Article I, § 15-Aof the Virginia Constitution. Plaintiffs also seek to recover all their attorneys' fees, costs, and expenses incurred in this action and any
other relief that this Court may order and deem appropriate.

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THE PARTIES
8. Plaintiff Bostic is a Virginia citizen and resides in Norfolk, Virginia. 9. Plaintiff London is a Virginia citizen and resides in Norfolk, Virginia.
10. Defendant Robert F. McDonnell is the Governor of the Commonwealth of
Virginia. In his official capacity, the Governor is the chief executive officer of the Commonwealth of Virginia. It is his responsibility to ensure that the laws of the Commonwealth are properly enforced. The Governor resides in Richmond, Virginia, in the Eastern District of Virginia, and maintains an office in Norfolk, Virginia.
11. Defendant Kenneth T. Cuccinelli is the Attorney General of the Commonwealth of Virginia. In his official capacity, the Attorney General is the chief legal officer of the Commonwealth of Virginia. It is his duty to see that the laws of the Commonwealth are uniformly and adequately enforced. The Attorney General lives in Richmond, Virginia, in the Eastern District of Virginia, and maintains an office in Norfolk, Virginia.
12. Defendant George E. Schaefer, III, is the Clerk of the CircuitCourt for the Cityof Norfolk. Pursuant to Va. Code §20-14, "[e]very license for marriage shall be issued by the clerk or deputy clerk of a circuit court of any county or city." Therefore, 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.
FACTS
13. Gayand lesbianindividuals have faced a long and painful history of societal and government-sponsored discrimination in this country. Although their sexual orientation bears no relation to theirability to contribute to society, gays and lesbians have beensingled out for

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discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual conduct between consenting adults, harassment, hate crimes, and discrimination in employment and many other areas. They have even been the subject of laws stripping them of rights afforded
to all other citizens.
14. Since at least 1975, pursuant to Va. Code § 20-45.2, same-sex couples have been denied marriage licenses on accountof their sexual preference and on account of their gender. In November 2006, Virginia voters ratifieda constitutional amendment to their Bill of Rights expressly depriving gay and lesbian voters of the right to marry.
15. Virginia's statutory and constitutional regime have created a legal system in which civil marriage is restricted solely andexclusively to opposite-sex couples, and in which gay and lesbian individuals are denied the rightto enter into a civil marriage with the person of their
choice. Virginia law, unlike the law in many other states, even prohibits gay and lesbian couples
from entering into civil unions. Virginia law also fails to honor the laws of thirteen other states
and the District of Columbia, which allowfor same-sex marriage, by providing that such marriages are"void in all respects" and by stipulating that anycontractual rights from such valid marriages "are void and unenforceable" in the Commonwealth of Virginia The inability to marry denies gay and lesbian individuals andtheir children the personal and public affirmation that accompanies marriage. The inability to marry also deprives same-sex couples of numerous
benefits associated with marriage including, without limitation, 1) marital, disability and survivor's benefits under the federal social security system; 2) naval disability benefits; 3) favorable tax treatment under Virginia and federal law for income andestate taxes; 4) federal
Medicaid benefits; 5) immigration benefits; and 6) federal Veterans Administration benefits.

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Upon information and belief, all of these benefits are not available to Plaintiffs and other samesex couples in Virginia, but would be available to same-sex couples who marry under state laws authorizing such benefits. The avowed purpose of this statutory and constitutional regime is "to impose a disadvantage, a separate status, and so a stigma upon", those who seek to enter into
same-sex marriage in Virginia. See United States v. Windsor, 570 U.S. (2013)(slip opinion
at 21).
16. Plaintiffs are gay residents of Virginia who are involved in a long-term, serious relationship with each other dating to 1989 who desire to marry each other under the laws of the Commonwealth. They are now prohibited from doing so as a direct result of Defendants' enforcement of Va. Code § 20-45.2 and Article I, §15-Aof the Constitution of Virginia.
17. On or about July 1,2013, Plaintiffs Bostic and London applied for a marriage license from the Clerk for the Circuit Court for the cityof Norfolk, but were denied a marriage
license because they are a same-sex couple. 18. As a result of both state statute and state constitutional law, Plaintiffs are barred
from marrying the individual they wish to marry, cannot enter into the separate-but-unequal bond of a civil union, andcannot marry in another state andhave Virginia recognize the benefits of
such unions.
19. Plaintiffs' inability to have their relationship recognized by the Commonwealth of Virginia with the dignity and respect accorded to married opposite-sex couples has caused them
significant hardship, including, but not limited to, the deprivation ofrights guaranteed by the
Fourteenth Amendment to the United States Constitution and severe humiliation, emotional
distress, pain, suffering, psychological harm, and stigma. The prohibition on marriage also

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makes it very difficult to conduct basic estate planning. Marriage is a supremely important social institution, and the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Loving v. Virginia, 388 U.S. at 12. The United States Supreme Court has called marriage "the most important relation in life." Zablocki v. Redhail 434 U.S. 374, 384 (1978). Each day that Plaintiffs are denied the freedom to marry, they suffer irreparable harm as a direct result of Defendants' violation of their constitutional rights.
20. If the Court does not enjoin Va. Code §§ 20-45.2 and 20-45.3 and Article I, § 15A of the Virginia Constitution, Defendants will continue to enforce this unconstitutional law against Plaintiffs, thereby depriving them of their constitutional rights under the Fourteenth Amendment to the United States Constitution. The declaratory and injunctive relief sought by Plaintiffs, on the other hand, will require Virginia to revise official state law and procedures governing marriage and will require the Commonwealth to issue Bostic and London a marriage license. The relief sought also will require Defendants McDonnell, Cuccinelli and Schaefer to recognize Plaintiffs' marriage as valid within the Commonwealth of Virginia.
CLAIMS FOR RELIEF COUNT ONE: DUE PROCESS
21. Plaintiffs incorporate here by reference paragraphs 1 through20, supra, as if
fully set forth herein. 22. Va. Code § § 20-45.2 and 20-45.3 and Va. Const. Art I, § 15-A violate
fundamental liberties that are protected by the Due Process Clause, both on their face and as applied to Plaintiffs.

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23. These laws impinge on fundamental liberties by denying gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as opposite-sex individuals. For example, by denying those individuals the same "marriage"designation afforded to opposite-sex couples, and even disallowing them access to the separate, but unequal, status of" civil unions", the Commonwealth of Virginia is stigmatizing gays and lesbians, as well as their children and families, and denying them the same dignity, respect, and stature afforded officially recognized opposite-sex family relationships. Virginia statutory and constitutional law, thus, deprive Plaintiffs of their liberty without due process of law in violation of the Fourteenth Amendment to
the United States Constitution. COUNT TWO: EQUAL PROTECTION
24. Plaintiffs incorporate here by reference paragraphs 1 through 23, supra, as if fully set forth herein.
25. Va. Code § § 20-45.2 and 20-45.3 and Va. Const. Art I, § 15-Aviolate the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution, both on their face and as applied to Plaintiffs.
26. These laws restrict civil marriage to individuals of the opposite sex; gay and lesbian individuals are therefore unable to marry the person of their choice. Thus, Virginia law treats similarly-situated people differently by providing civil marriage to heterosexual couples, but not to gay and lesbian couples. The United States Constitution's guarantee of equality under the Fourteenth Amendment "must at the very least mean that a bare (legislative) desire to harm a politically unpopular group cannot justify disparate treatment of that group." Windsor, Slip Op. at
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21. These provisions in the Virginia Code and in the Bill of Rights of the Constitution of Virginia "write[ ] inequality into the entire" Code of Virginia. Id. at 22. These provisions "demean" those who seek to enter into same-sex marriage and "instruct[ ]" all state officials, and "indeed all persons with whom same-sex couples interact, including their own children, that their" desire to marry is "less worthy than the marriages of others." Id. at 25. Virginia law even disallows the separate-but-unequal status of civil unions and refuses to grant any legal effect to marriages lawfully entered into in other states. Gays and lesbians are, therefore, unequal in the eyes of state law, and their families are denied the same respect as officially sanctioned families of opposite-sex individuals. By purposefully denying civil marriage to gay and lesbian individuals, Virginia's ban on same-sex marriage discriminates on the basis of sexual orientation.
27. The disadvantage these laws impose upon gays and lesbians is the result of disapproval or animus against a politically unpopular group. Accordingly, these laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by casting gays and lesbians into disfavored legal status and categorizing them as "second-class
citizens."
28. Same-sex couples and opposite sex couples are similarly situated for purposes of Equal Protection analysis.
29. Whether under a heightened scrutiny analysis, or under a more lenient rational
relation analysis, these provisions of Virginia law and the Virginia Constitution do not bearany relation to a legitimate governmental purpose and, thus, violate the Equal Protection clause of the
Fourteenth Amendment to the United States Constitution.
30. These laws also violate the Equal Protection Clause because they discriminate on

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the basis of sex. These laws distinguish between couples consisting of a man and a woman and couples consisting of individuals of the same sex. Thus, the limitation on civil marriage depends upon an individual person's sex; a man who wishes to marry a man may not do so because he is a man, and a woman may not marry a woman because she is a woman.
COUNT THREE: VIOLATION OF 42 U.S.C. 8 1983
31. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 30, supra,
as if fully set forth herein. 32. Insofar as they are enforcing the terms of Va. Code §§ 20-45.2 and 20-45.3, and
Article I, § 15-A of the state constitution, Defendants, acting under the color of state law, are depriving, and will continue to deprive, Plaintiffs of numerous rights secured by the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution in
violation of 42 U.S.C. § 1983.
IRREPARABLE INJURY
33. Plaintiffs incorporate here byreference paragraphs 1 through 32,supra, as
if fully set forth herein.
34. Plaintiffs are now severely and irreparably injured by the challenged state laws that violate the Due Process and Equal Protection clauses ofthe Fourteenth Amendment. By way of example only, Plaintiffs' injury as a result of these discriminatory laws includes the deprivation of rights guaranteed by the Fourteenth Amendment and the severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma caused by the inability to marry the ones they love andhave society accord their unions andtheirfamilies the same respect and dignity enjoyed by opposite-sex unions and families. Because Plaintiffs cannot marry under
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Virginia law, they cannot, for example, receive social security benefits, naval disability benefits, Medicaid benefits, Veterans Administration benefits, immigration law benefits and favorable treatment on income and estate taxes prescribed by state or federal law. They also cannot claim benefits under various state and federal laws that apply only to married couples because they cannot marry under Virginia law. Plaintiffs' injuries will be redressed only if this Court declares these provisions unconstitutional and enjoins Defendants from enforcing them.
35. An actual and judicially cognizable controversy exists between Plaintiffs and Defendants regarding whether the laws violate the Due Process and Equal Protection clauses of the Fourteenth Amendment. Defendants are presently enforcing these state laws to the detriment
of Plaintiffs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment as follows: 1. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C. § 2201, construe Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Constitution of Virginia and enter a declaratoryjudgment stating that these provisions and any other Virginia law that bars same-sex marriage violate the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 2. Plaintiffs respectfullyrequest that this Court enter a preliminaryand a permanent injunction enjoining enforcement or application of Virginia Code §§ 20-45.2 and 20-45.3 and Article I, §15-A of the Constitution of Virginia and any other Virginia law that bars same-sex marriage.
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3. Plaintiffs respectfully request costs of suit, including reasonable attorneys' fees, under 42 U.S.C. § 1988, and all further relief to which they may be justly entitled.
Dated: J<^ W, 2*12
TIMOTHY B. BOSTIC & TONY C. LONDON Thomas B. Shuttleworth VSB# 13330 Robert E. Ruloff VSB# 13471
Charles B. Lustig
VSB # 29442
Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C. 4525 South Blvd., Ste. 300 Virginia Beach, VA 23452 (757) 671-6000 (phone) (757) 671-6004 (fax)
Counsel for Plaintiffs
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA—NORFOLK 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.

PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF
Plaintiffs Timothy B. Bostic (“Bostic”), Tony C. London (“London”), Carol Schall
(“Schall”), and Mary Townley (“Townley”), by counsel, complain of Defendants and allege the
following:

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INTRODUCTION 1. The “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1, 12 (1967). In more than a dozen cases over the last century, the Supreme Court has reaffirmed that marriage is “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978), and that the right to marry is “one of the liberties protected by the Due Process Clause.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974). As a result, “[c]hoices about marriage” are “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (internal quotation marks omitted). 2. Despite the “fundamental importance” of marriage “for all individuals,” Zablocki, 434 U.S. at 384, the Commonwealth of Virginia has imposed sweeping restrictions that prevent gay and lesbian individuals not only from marrying, but from participating in any of the “rights, benefits, obligations, qualities, or effects of marriage.” Va. Const. Art. I, § 15-A; see also Va. Code §§ 20-45.2, 20-45.3. Virginia’s Constitution 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.” Va. Const., Art. I, § 15-A. And Virginia’s statutory code provides that a “marriage between persons of the same sex is prohibited” in the Commonwealth of Virginia. Va. Code § 20-45.2. Virginia law even prohibits same-sex couples from entering into second-class institutions like civil unions or domestic partnerships. Va. Code § 20-45.3.
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3. Same-sex couples who legally marry in other jurisdictions are similarly denied the benefits of marriage in Virginia. Unlike opposite-sex couples married out-ofstate who continue to enjoy the benefits and privileges of their marriage while living in the Commonwealth, Virginia law provides that “[a]ny marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable.” Va. Code § 20-45.2. This unequal treatment of gay and lesbian individuals denies them the due process and equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution.
4. For these reasons, Plaintiffs ask this Court to enjoin, preliminarily and permanently, enforcement of all statutes and constitutional provisions that exclude gay and lesbian individuals from access to civil marriage and that treat lawful same-sex marriages from other states as null and void in Virginia. Plaintiffs also ask that this Court declare Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitution to be unconstitutional.
JURISDICTION AND VENUE 5. This case raises questions under the Constitution of the United States and 42 U.S.C. § 1983, and, thus, this Court has jurisdiction over all claims for relief pursuant to 28 U.S.C. § 1331. 6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because all Defendants reside in the Eastern District of Virginia. Venue is also proper in this Court because a substantial part of the events giving rise to Plaintiffs’ claims occurred in this district.
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NATURE OF DISPUTE 7. This action, brought pursuant to 42 U.S.C. § 1983, seeks (1) a declaration that Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitution—provisions that expressly deny gay and lesbian individuals the opportunity to marry civilly and enter into the same officially-sanctioned family relationship with their loved ones as heterosexual individuals, or even enter into same-sex civil unions— are unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; and (2) a preliminary and permanent injunction preventing Defendants from enforcing these provisions against Plaintiffs. 8. Plaintiffs Bostic and London are gay individuals who have been in a longstanding committed relationship for nearly 25 years. They desire to express their love for and commitment to one another by getting married and obtaining official sanction for their union from the Commonwealth. Virginia’s laws against same-sex marriage deny them that right in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution. 9. Plaintiffs Schall and Townley are lesbian individuals in a committed relationship that has lasted nearly 30 years. They were lawfully married in California on or about October 23, 2008, and now seek to have their marriage recognized by the Commonwealth. They wish to enjoy the same social privileges and contractual rights that are conferred by the Commonwealth on individuals in opposite-sex marriages. Virginia’s laws precluding recognition of lawful same-sex marriages deny them those
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rights in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution.
10. To enforce the rights afforded by the United States Constitution, Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief barring enforcement of Va. Code §§ 25-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitution. Plaintiffs also seek to recover all their attorneys’ fees, costs, and expenses incurred in this action and any other relief that this Court may order and deem appropriate.
THE PARTIES 11. Plaintiff Bostic is a Virginia resident who lives in Norfolk, Virginia. 12. Plaintiff London is a Virginia resident who lives in Norfolk, Virginia. 13. Plaintiff Schall is a Virginia resident who lives in Chesterfield County, Virginia. 14. Plaintiff Townley is a Virginia resident who lives in Chesterfield County, Virginia. 15. Defendant George E. Schaefer, III, is the Clerk of the Circuit Court for the City of Norfolk. Pursuant to Va. Code § 20-14, “[e]very license for marriage shall be issued by the clerk or deputy clerk of a circuit court of any county or city.” Therefore, 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. Defendant Schaefer is also responsible for ensuring compliance with Virginia’s marriage laws, including by determining whether individuals meet the requirements for marriage in Virginia as reflected in the couple’s application for a marriage license. Defendant
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Schaefer is a person under 42 U.S.C. § 1983 and was acting under the color of state law at all times germane to this Amended Complaint. On account of his responsibilities for determining marriage eligibility and issuing marriage licenses, Defendant Schaefer has a “special relationship” to the laws and constitutional provisions that prevent gay and lesbian individuals from marrying in Virginia. McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010).
16. Defendant Janet M. Rainey (“Rainey”) is sued in her official capacity as the State Registrar of Vital Records. Defendant Rainey is responsible for ensuring compliance with the Commonwealth’s laws relating to marriage in general and, more specifically, is responsible for enforcement of the specific provisions at issue in this Amended Complaint, namely those laws that limit marriage to opposite-sex couples and that refuse to honor the benefits of same-sex marriages lawfully entered into in other states. Defendant Rainey’s duties include, without limitation, directing and supervising the system of vital records in the Commonwealth of Virginia. 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 maintaining vital records. Defendant Rainey’s responsibilities also include providing forms for marriage licenses, marriage certificates and applications for marriage licenses used in Virginia. Va. Code § 32.1-267. Defendant Rainey also keeps and maintains an index, publicly available online, of all marriages consummated in the Commonwealth. Defendant Rainey’s office also compiles, publishes and makes available to the public aggregate data on the number of marriages which take place in Virginia. This data includes the age and race of married couples, the number of minor children, if any, and other information.
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Defendant Rainey is also responsible in her official capacity for publishing and furnishing to local clerks’ offices the marriage forms that require applicants to list a “Bride” and a “Groom.” Pursuant to Va. Code § 32.1-261, the State Registrar is also responsible for issuing new birth certificates upon proof that a child has been adopted or “legitimated” through the marriage of the child’s parents. Defendant Rainey is a person under 42 U.S.C. § 1983 and was acting under the color of state law at all times germane to this Amended Complaint. On account of her responsibilities, Defendant Rainey has a “special relationship” to the laws and constitutional provisions that prevent gay and lesbian individuals from marrying in Virginia. McBurney, 616 F.3d at 399.
17. Defendants Schaefer and Rainey, and those subject to their supervision, direction, and control, are responsible for the enforcement of Va. Code §§ 25-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitution. The relief requested in this action is sought against each Defendant, as well as against each Defendant’s officers, employees, and agents, and against all persons acting in cooperation with Defendant(s), under their supervision, at their direction, or under their control.
FACTS 18. Gay and lesbian individuals have faced a long and painful history of societal and government-sponsored discrimination in this country. Although their sexual orientation bears no relation to their ability to contribute to society, gay men and lesbians have been singled out for discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual conduct between consenting adults, harassment, hate crimes, and discrimination in employment and many other areas. They have even been the subject of laws stripping them of rights afforded to all other citizens.
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19. Since at least 1975, pursuant to Va. Code § 20-45.2, same-sex couples in the Commonwealth of Virginia have been denied marriage licenses on account of their sexual orientation and on account of their gender. In November 2006, a majority of Virginia voters ratified the “Marshall-Newman Amendment” to the State Constitution. This Amendment, which defines marriage as a union between “one man and one woman,” expressly deprives gay and lesbian individuals of the right to marry. By prohibiting same-sex couples from marrying, Virginia “places same-sex couples in an unstable position,” “demeans” same-sex couples, “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.” United States v. Windsor, 133 S. Ct. 2675, 2694–96 (2013).
20. Virginia’s statutory and constitutional provisions have created a legal system in which civil marriage is restricted solely and exclusively to opposite-sex couples, and in which gay and lesbian individuals are denied the right to enter into a civil marriage.
21. Virginia’s statutory and constitutional provisions also deprive same-sex couples of federal marital privileges and benefits that, upon information and belief, are available to same-sex couples who marry under state laws authorizing such benefits but that are not available to Plaintiffs and other same-sex couples in Virginia. These currently include, without limitation, (i) marital, disability and survivor’s benefits under the federal social security system; (ii) naval disability benefits; (iii) federal Medicaid benefits; (iv) immigration benefits; and (v) federal Veterans Administration benefits.
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22. In addition to these significant legal implications, Virginia’s statutory and constitutional provisions deny gay and lesbian residents of Virginia and their children the personal and public affirmation that accompanies marriage. Virginia’s prohibition of marriage of same-sex couples instructs “all persons with whom same-sex couples interact, including their own children” that their relationship is less worthy than those of couples in State-sanctioned marriages. Windsor, 133 S. Ct. at 2696. Without the legal ability to marry and build a family, same-sex couples are excluded from the fabric of Virginia’s social structure.
23. Virginia law also fails to honor the laws of thirteen other states and the District of Columbia that allow same-sex marriage, by providing that lawful marriages from those jurisdictions are “void in all respects” and by stipulating that any contractual rights from such valid marriages “are void and unenforceable” in the Commonwealth of Virginia. By refusing to acknowledge lawful same-sex marriages from other states, the Commonwealth “ensure[s] that . . . those unions will be treated as second-class marriages for purposes of [Virginia] law.” Windsor, 133 S. Ct. at 2693–94. Virginia’s laws thereby “undermine[] both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of [the Commonwealth’s] recognition.” Id. at 2694. They “impose a disadvantage, a separate status, and so a stigma upon” same-sex couples whose legal marriages are disregarded by the State and “humiliate[ ] tens of thousands of children now being raised by same-sex couples.” Id. at 2693–94.
24. The unmistakable purpose and effect of Virginia’s far-reaching restrictions is to enshrine in Virginia’s Constitution and statutory code that gay men and lesbians are
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“unequal to everyone else,” Romer v. Evans, 517 U.S. 620, 635 (1996), that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of being treated with “dignity and integrity.” Windsor, 133 S. Ct. at 2694.
25. Plaintiffs Bostic and London are gay residents of Virginia who have been in a long-term, serious relationship with each other since 1989. Plaintiff London served in the United States Navy and has been a real estate agent for 16 years. Plaintiff Bostic is a professor of humanities at Old Dominion University in Norfolk, Virginia.
26. Plaintiffs Bostic and London desire to marry each other under the laws of the Commonwealth in order to publicly announce their commitment to one another and to enjoy the rights, privileges, and protections that the State confers on married couples. On or about July 1, 2013, Plaintiffs Bostic and London applied for a marriage license from the Clerk for the Circuit Court for the City of Norfolk. Their request was denied pursuant to Defendants’ enforcement of Va. Code § 20-45.2 and Article I, §15-A of the Constitution of Virginia, because they are a same-sex couple.
27. Because Plaintiffs Bostic and London are unable to marry one another, they are denied the right to engage in “the most important relation in life,” Zablocki, 434 U.S. at 384. By restricting civil marriage to individuals of the opposite sex, Virginia denies Plaintiffs Bostic and London the ability to obtain the same legal rights and remedies that only heterosexual couples enjoy.
28. Plaintiffs Schall and Townley have lived in the Commonwealth of Virginia since 1982, and have been a couple since 1985. Plaintiff Schall is an assistant professor in the School of Education at Virginia Commonwealth University (“VCU”) in Richmond, Virginia, where she specializes in research on teaching autistic children.
10

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Prior to obtaining her job at VCU in 2008, Schall worked at the Richmond branch of the Grafton School which is based in Winchester, Virginia. At the Grafton School, she served as the director for the Virginia Autism Resources Center. Plaintiff Townley also works in special education, having worked with special needs children in the public school system for several years in Winchester, Virginia, and in Frederick County, Virginia. Plaintiff Townley currently serves as the Supervisor of Transitional Programming at the Health Diagnostic Laboratory (“HDL”). In this capacity, Plaintiff Townley helps train individuals with significant disabilities so that they can work at HDL.
29. Plaintiffs Schall and Townley have lived together as a family for nearly 30 years and were lawfully married in California in 2008. Plaintiff Townley gave birth to the couple’s daughter, E. T.-S., in 1998. During her pregnancy, Plaintiff Townley was admitted to the emergency room at VCU’s Medical Center due to complications. Because Plaintiff Schall is not legally recognized in Virginia as Plaintiff Townley’s spouse, however, Plaintiff Schall was denied permission to see her partner for several hours while she was there.
30. Since their daughter’s birth, Plaintiff Schall has desired to adopt their daughter, but she is unable to do so because Virginia’s laws do not permit a same-sex partner to adopt a child. As a result, Plaintiffs Schall and Townley had to retain an estate planning attorney to petition a court for full joint legal and physical custody of their daughter. The court granted their petition but Plaintiff Schall remains unable to legally adopt E. T.-S.
31. More recently, in April 2012, Plaintiffs Schall and Townley arrived at a local post office to renew their daughter’s passport, a process that typically requires the
11

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consent of both parents. When Plaintiffs Schall and Townley presented E. T.-S.’s renewal forms, the civil servant told Plaintiff Schall, “You’re nobody, you don’t matter,” and struck her name from the form.
32. Plaintiffs Schall and Townley now seek to have the Commonwealth of Virginia recognize the legally-valid marriage they obtained in California five years ago. However, Plaintiffs Schall and Townley cannot obtain a marriage license or a birth certificate for their daughter listing them as parents as a direct result of Defendants’ enforcement of Va. Code § 20-45.2 and Article I, §15-A of the Constitution of Virginia, because they are a same-sex couple.
33. Because they cannot marry and because Virginia law refuses to recognize the validity of their California marriage, Plaintiffs Schall and Townley are, without limitation, deprived of the following marital benefits, which are available to opposite-sex couples who live in Virginia:
a) Until February 2013, neither Plaintiff Schall, nor Plaintiff Townley were allowed to cover their respective spouse on employer-provided health insurance. After their daughter was born, Plaintiff Townley had to return to work in part because her own insurance was expiring and she could not obtain coverage on Plaintiff Schall’s health-care plan. Since February 2013, Plaintiff Townley has been able to cover Plaintiff Schall on her employer-provided health insurance. However, Plaintiff Schall must pay state income taxes on the benefit she receives. Upon information and belief, opposite-sex couples do not have to pay this tax.
12

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b) Plaintiffs Schall and Townley cannot file state income tax returns as a married couple. This has cost them thousands of dollars in additional taxes during the time that they have been together and unable to marry lawfully in Virginia.
c) Plaintiff Schall and Townley may name each other as beneficiaries on employee benefit plans, but must pay state taxes on the benefits that may be paid out upon one of their deaths. Upon information and belief, surviving spouses from opposite-sex marriages do not have to pay such a tax.
d) Plaintiffs Schall and Townley were ineligible for protection under federal laws governing family medical leave when their daughter was born, and when one of their parents died.
34. Plaintiffs’ inability to marry or to have their relationship recognized by the Commonwealth of Virginia with the dignity and respect accorded to married opposite-sex couples has caused them significant hardship, including, but not limited to, the deprivation of rights guaranteed by the Fourteenth Amendment to the United States Constitution and severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma. Each day that Plaintiffs are denied the freedom to marry, or have their California marriage recognized in Virginia, they suffer irreparable harm as a direct result of Defendants’ violation of their constitutional rights.
35. If the Court does not enjoin Va. Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Virginia Constitution, Defendants will continue to enforce this unconstitutional law against Plaintiffs, thereby depriving them of their constitutional rights under the Fourteenth Amendment to the United States Constitution. The declaratory and injunctive relief sought by Plaintiffs, on the other hand, will require
13

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Virginia to revise official state law and procedures governing marriage and will require Defendants to issue Plaintiffs Bostic and London a marriage license. The relief sought will also require Defendants to recognize Plaintiffs Schall and Townley as a lawfully married couple within the Commonwealth of Virginia.
CLAIMS FOR RELIEF COUNT ONE: DUE PROCESS 36. Plaintiffs incorporate here by reference paragraphs 1 through 35, supra, as if fully set forth herein. 37. Va. Code §§ 20-45.2 and 20-45.3 and Va. Const. Art. I, § 15-A violate fundamental liberties that are protected by the Due Process Clause of the Fourteenth Amendment, both on their face and as applied to Plaintiffs. 38. These laws impinge on fundamental liberties by denying gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as opposite-sex individuals. By denying those individuals the same “marriage” designation afforded to opposite-sex couples, and by refusing to recognize their lawful marriages from other States, the Commonwealth of Virginia is stigmatizing gay men and lesbians, as well as their children and families, and denying them the same dignity, respect, and stature afforded officially recognized opposite-sex family relationships. 39. Virginia’s statutory and constitutional laws thus deprive Plaintiffs of their liberty without due process of law in violation of the Fourteenth Amendment to the United States Constitution.
14

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COUNT TWO: EQUAL PROTECTION 40. Plaintiffs incorporate here by reference paragraphs 1 through 39, supra, as if fully set forth herein. 41. Va. Code §§ 20-45.2 and 20-45.3 and Va. Const. Art. I, § 15-A violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, both on their face and as applied to Plaintiffs. 42. These laws restrict civil marriage to individuals of the opposite sex; gay and lesbian individuals are unable to marry. Thus, Virginia law treats similarly-situated people differently by providing civil marriage to opposite-sex couples, but not to samesex couples. Moreover, opposite-sex couples who marry in other States and live in Virginia enjoy all of the legal benefits of marriage, whereas same-sex couples, such as Plaintiffs Schall and Townley, who marry lawfully in other jurisdictions are expressly precluded from enjoying the panoply of rights associated with marriage. Gay men and lesbians are, therefore, unequal in the eyes of state law, and their families are denied the same respect as officially sanctioned families of opposite-sex individuals. 43. By purposefully denying civil marriage to gay and lesbian individuals, Virginia’s ban on same-sex marriage discriminates on the basis of sexual orientation. Gay and lesbian individuals are unable to enter into marriages available through the State to opposite-sex couples solely because of their sexual orientation. 44. The disadvantages these laws impose upon gay men and lesbians are the result of disapproval or animus against a politically unpopular group. But the United States Constitution’s guarantee of equality under the Fourteenth Amendment “must at the very least mean that a bare (legislative) desire to harm a politically unpopular group
15

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cannot justify disparate treatment of that group.” Windsor, 133 S. Ct. at 2693. Accordingly, these laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by casting gays and lesbians into disfavored legal status and categorizing them as “second-class citizens.”
45. These laws also violate the Equal Protection Clause because they discriminate on the basis of sex. Under these laws, a man who wishes to marry a man may not do so because he is a man, and a woman may not marry a woman because she is a woman. Thus, the laws limit civil marriage on the basis of sex.
46. Virginia’s statutory and constitutional laws directly and substantially interfere with Plaintiffs’ fundamental right to marry. The right to marry is protected by the Fourteenth Amendment as a vital personal right that is integral to an individual’s identity, autonomy, dignity, and intimate associations. Virginia’s laws restricting civil marriage to opposite-sex couples impinge on the fundamental right of gay and lesbian individuals to marry without serving any legitimate governmental interest, let alone any important or compelling interest to which they are narrowly-tailored.
47. Whether under a strict or heightened scrutiny analysis, or under a more lenient rational-basis analysis, these provisions of Virginia law and the Virginia Constitution do not bear any relation to a legitimate governmental purpose and, thus, violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT THREE: VIOLATION OF 42 U.S.C. § 1983 48. Plaintiffs incorporate here by reference paragraphs 1 through 47, supra, as if fully set forth herein.
16

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49. Insofar as they are enforcing the terms of Va. Code §§ 20-45.2 and 2045.3, and Article I, § 15-A of the State constitution, Defendants, acting under the color of state law, are depriving, and will continue to deprive, Plaintiffs of numerous rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
IRREPARABLE INJURY 50. Plaintiffs incorporate here by reference paragraphs 1 through 49, supra, as if fully set forth herein. 51. Plaintiffs are severely and irreparably injured by the challenged state laws and constitutional provision that violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. By way of example only, Plaintiffs’ injury as a result of these discriminatory laws includes the deprivation of rights guaranteed by the Fourteenth Amendment and the severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma caused by the inability to marry and have society accord their unions and their families the same respect and dignity enjoyed by opposite-sex unions and families. Because Plaintiffs cannot marry under Virginia law, nor have their out-of-state marriages recognized by the Commonwealth, they cannot, for example, currently receive social security benefits, naval disability benefits, Medicaid benefits, Veterans Administration benefits, immigration law benefits and favorable treatment on income and estate taxes prescribed by state law. They also cannot currently claim benefits under various state and federal laws that apply only to married couples because they cannot marry under Virginia law. Plaintiffs’ injuries will be redressed only if this Court declares these provisions unconstitutional and enjoins Defendants from enforcing them.
17

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52. An actual and judicially cognizable controversy exists between Plaintiffs and Defendants regarding whether the laws violate the Due Process and Equal Protection clauses of the Fourteenth Amendment. Defendants are presently enforcing these state laws to the detriment of Plaintiffs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment as follows: 1. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C. § 2201, construe Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Constitution of Virginia and enter a declaratory judgment stating that these provisions and any other Virginia law that bars same-sex marriage or prohibits the State’s recognition of otherwise-lawful same-sex marriages from other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 2. Plaintiffs respectfully request that this Court enter a preliminary and a permanent injunction enjoining enforcement or application of Virginia Code §§ 20-45.2 and 20-45.3 and Article I, § 15-A of the Constitution of Virginia and any other Virginia law that bars same-sex marriage or prohibits the State’s recognition of otherwise-lawful same-sex marriages from other jurisdictions. 3. Plaintiffs respectfully request costs of suit, including reasonable attorneys’ fees, under 42 U.S.C. § 1988, and all further relief to which they may be justly entitled.
18

Case 2:13-cv-00395-AWA-LRL Document 18 Filed 09/03/13 Page 19 of 20 PageID# 93
TIMOTHY B. BOSTIC, TONY C. LONDON, CAROL SCHALL & MARY TOWNLEY
By: /s/ Charles B. Lustig VSB # 29442 Thomas B. Shuttleworth VSB # 13330 Robert E. Ruloff VSB # 13471 Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C. 4525 South Blvd., Ste. 300 Virginia Beach, VA 23452 (757) 671-6000 (phone) (757) 671-6004 (fax) clustig@srgslaw.com tshuttleworth@srgslaw.com rruloff@srgslaw.com Counsel for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of September 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send electronic notice of such filing to E. Duncan Getchell, Jr., Esq., Counsel for Defendants McDonnell and Cuccinelli and Counsel for the Commonwealth, and to David Oakley, Esq., Counsel for Defendant Scheafer. Counsel will effect service, or seek waiver of service, on the additional Defendant Janet M. Rainey.
19

Case 2:13-cv-00395-AWA-LRL Document 18 Filed 09/03/13 Page 20 of 20 PageID# 94
/s/ Charles B. Lustig VSB # 29442 Thomas B. Shuttleworth VSB # 13330 Robert E. Ruloff VSB # 13471 Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C. 4525 South Blvd., Ste. 300 Virginia Beach, VA 23452 (757) 671-6000 (phone) (757) 671-6004 (fax) clustig@srgslaw.com tshuttleworth@srgslaw.com rruloff@srgslaw.com Counsel for Plaintiffs
20

 
 Case 2:13-cv-00395-AWA-LRL Document 20 Filed 09/06/13 Page 1 of 3 PageID# 97

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

TIMOTHY B. BOSTIC, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ROBERT F. McDONNELL, KENNETH

)

T. CUCCINELLI, II, and GEORGE

)

E. SCHAEFER, III, in their official capacities

)

)

Defendants.

)

Civil Action No. 2:13-cv-00395

MOTION TO DISMISS AS MOOT THE GOVERNOR AND ATTORNEY GENERAL'S MOTION TO DISMISS AND THE COMMONWEALTH OF VIRGINIA'S MOTION TO INTERVENE

COME NOW, the Commonwealth of Virginia, Robert F. McDonnell, Governor of

Virginia, and Kenneth T. Cuccinelli, II, Attorney General of Virginia, by counsel, and move this

Court to dismiss the Governor and Attorney General's Motion to Dismiss on Sovereign

Immunity Grounds, (Doc. 7), and the Commonwealth of Virginia's Motion to Intervene, (Doc. 9)

as moot in light of Plaintiffs' Amended Complaint, and Plaintiffs' Rule 41 Notice of Voluntary

Dismissal as to the Governor and Attorney General. (Doc. 19.) By voluntarily dismissing the

suit against the Governor and Attorney General of Virginia pursuant to Fed. R. Civ. P.

41(a)(1)(A)(i), and amending their complaint in accordance with Fed. R. Civ. P. 15(a)(1)(B), to

name Janet M. Rainey, a state official who will answer within the scope of her official duties, the

Governor and Attorney General have obtained the relief requested and the Commonwealth of

Virginia's right to defend its laws from constitutional attack has been preserved. See Fed. R. Civ.

P. 5.1(c); see 28 U.S.C. § 2403(b).

Case 2:13-cv-00395-AWA-LRL Document 20 Filed 09/06/13 Page 2 of 3 PageID# 98

WHEREFORE, the Commonwealth of Virginia, Robert F. McDonnell, Governor of Virginia, and Kenneth T. Cuccinelli, II, Attorney General of Virginia, urge this Court to dismiss the aforesaid motions as moot.
Respectfully submitted,

Kenneth T. Cuccinelli, II Attorney General of Virginia
Rita W. Beale, VSB #37032 Deputy Attorney General E-mail: rbeale@oag.state.va.us
Allyson K. Tysinger, VSB #41982 Senior Assistant Attorney General/Chief E-mail: atysinger@oag.state.va.us
Michael H. Brady, VSB #78309 Assistant Solicitor General E-mail: mbrady@oag.state.va.us

/s/ E. Duncan Getchell, Jr. Solicitor General of Virginia (VSB No. 14156) Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile dgetchell@oag.state.va.us Counsel for Commonwealth of Virginia, Robert F. McDonnell, Governor of Virginia and Kenneth T. Cuccinelli, II, Attorney General

Case 2:13-cv-00395-AWA-LRL Document 20 Filed 09/06/13 Page 3 of 3 PageID# 99
CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of September 2013, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, and that I also sent a filed copy of the
same to the following by U.S. Mail, postage prepaid:
Thomas B. Shuttleworth, Esq., VSB # 13330 Robert E. Ruloff, Esq., VSB # 13471 Charles B. Lustig, Esq., VSB # 29442 Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C. 4525 South Blvd., Ste. 300 Virginia Beach, VA 23452 (757) 671-6000 (phone) (757) 671-6004 (fax)
/s/ E. Duncan Getchell, Jr.

 
 Bostic v. Rainey, --- F.Supp.2d ---- (2014)

2014 WL 561978 Only the Westlaw citation is currently available.
United States District Court, E.D. Virginia, Norfolk Division.
Timothy B. BOSTIC, Tony C. London, Carol Schall, and Mary Townley, Plaintiffs, v.
Janet M. RAINEY, in her official capacity as State Registrar of Vital Records, and George E.
Schaefer, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, Defendants; and Michele B. McQuigg, in her official capacity as Prince William County Clerk of Circuit Court, Intervenor–Defendant.
Civil No. 2:13cv395. | Feb. 13, 2014.
Synopsis Background: Same-sex couples brought action challenging constitutionality of Virginia statutes and constitutional provisions prohibiting a person from marrying another person of the same gender. Plaintiffs moved for summary judgment and for a preliminary injunction.
Holdings: The District Court, Arenda L. Wright Allen, J., held that:
[1] plaintiffs had Article III standing to challenge the constitutionality of the Virginia laws;
[2] city officials responsible for issuing and denying marriage licenses and recording marriages and providing forms for marriage certificates were proper defendants;
[3] challenged laws violated due process; and
[4] challenged laws violated equal protection.
Motions granted.
West Codenotes
Held Unconstitutional West’s V.C.A. Const. Art. 1, § 15–A;West’s V.C.A. §§ 20–45.2, 20–45.3.

Attorneys and Law Firms
Charles Barnet Lustig, Robert Eugene Ruloff, Thomas Brady Shuttleworth, II, Andrew Mitchell Hendrick, Erik C. Porcaro, Shuttleworth Ruloff Swain Haddad & Morecock PC, Virginia Beach, VA, Amir C. Tayrani, Chantale Fiebig, Matthew D. McGill, Gibson Dunn & Crutcher LLP, Theodore B. Olson, William Isaacson, Boies, Schiller & Flexner, Washington, DC, David Boies, Boies, Schiller & Flexner LLP, Armonk, NY, Joshua I. Schiller, Robert Brian Silver, Boies, Schiller & Flexner LLP, New York, NY, Jeremy Michael Goldman, Boies, Schiller & Flexner LLP, Oakland, CA, Joshua Seth Lipshutz, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Plaintiffs.
Earle Duncan Getchell, Jr., Catherine Crooks Hill, Rhodes Beahm Ritenour, Office of the Attorney General, Trevor Stephen Cox, Hunton & Williams LLP, Richmond, VA, Stuart Alan Raphael, Hunton & Williams LLP, McLean, VA, David Brandt Oakley, Poole Mahoney PC, Chesapeake, VA, for Defendants.
We made a commitment to each other in our love and lives, and now had the legal commitment, called
marriage, to match. Isn’t that what marriage is? ... I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person ” for me to marry. I believe all Americans, no matter their
race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others.... I support the freedom to marry for all. That’s what Loving, and loving, are all
about.
—Mildred Loving, “Loving for All”1
Opinion
1

Bostic v. Rainey, --- F.Supp.2d ---- (2014)
OPINION AND ORDER
ARENDA L. WRIGHT ALLEN, United States District Judge.
*1 A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Constitution declares that “all men” are created equal. Surely this means all of us. While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary’s noblest endeavors is to scrutinize laws that emerge from such roots.
Before this Court are challenges to Virginia’s legislated prohibition on same-sex marriage. Plaintiffs assert that the restriction on their freedom to choose to marry the person they love infringes on the rights to due process and equal protection guaranteed to them under the Fourteenth Amendment of the United States Constitution. These challenges are well-taken.
I. BACKGROUND
A. PROCEDURAL HISTORY Plaintiffs Timothy B. Bostic and Tony C. London are two men who have been unable to obtain a marriage license to marry each other in Virginia because of Virginia’s Marriage Laws.2 On July 18, 2013, Mr. Bostic and Mr. London filed a Complaint pursuant to 42 U.S.C. § 1983 against former Governor Robert F. McDonnell, former Attorney General Kenneth T. Cuccinelli, and George E. Schaefer III in his official capacity as the Clerk of Court for Norfolk Circuit Court (ECF No. 1). This Complaint sought declaratory and injunctive relief regarding the treatment of same-sex marriages in the Commonwealth of Virginia under the Virginia Constitution and the Virginia Code. The Complaint also asked this Court to find Article I, Section 15–A of the Virginia Constitution and Sections 20–45.2, 20–45.3 of the Virginia Code unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
On September 3, 2013, Mr. Bostic and Mr. London filed an Amended Complaint dismissing the former Governor

and the former Attorney General as defendants.3 The Amended Complaint added two plaintiffs, Carol Schall and Mary Townley. Plaintiffs Mr. Bostic, Mr. London, Ms. Schall and Ms. Townley are herein collectively referred to as “Plaintiffs.” One new defendant was added in the Amended Complaint: Ms. Janet Rainey, in her official capacity as State Registrar of Vital Records. Ms. Rainey and Mr. Schaefer are collectively referred to as “Defendants.”

The parties advanced cross motions seeking summary judgment (ECF Nos. 25, 38, 40), and Plaintiffs also filed a Motion for Preliminary Injunction (ECF No. 27). These motions were the subject of a hearing conducted before this Court on February 4, 2014.

Two motions for leave to file amici curiae briefs in

support of Defendants’ motions were filed and granted.

Additionally,

Ms.

Michele

McQuigg

(“Intervenor–Defendant”) moved to intervene as a

defendant in her official capacity as Prince William

County Clerk of Circuit Court, and this was granted in

part on January 21, 2014.

*2 On January 23, 2014, Defendant Rainey, in conjunction with the Office of the Attorney General, submitted a formal change in position, and relinquished her prior defense of Virginia’s Marriage Laws. Intervenor–Defendant was granted leave to adopt Ms. Rainey’s prior motion and briefs in support of that motion.

Accordingly, for the purposes of analyzing the arguments presented in this matter, the Plaintiffs and Ms. Rainey are hereinafter referred to as the “Opponents” of Virginia’s Marriage Laws, and Defendant Schaefer, Intervenor–Defendant, and the amici are hereinafter referred to as the “Proponents” of Virginia’s Marriage Laws. Where necessary for the following analysis, this Opinion and Order will identify the individual parties and their arguments.

B. FACTS
1. Plaintiffs Timothy B. Bostic and Tony London Plaintiffs Timothy B. Bostic and Tony C. London live in Norfolk, Virginia, where they own a shared home. Mr. Bostic is an Assistant Professor of English Education in the Department of English at Old Dominion University in Norfolk, Virginia. He teaches English Education to undergraduate students.
Mr. London is a veteran of the United States Navy. He
2

Bostic v. Rainey, --- F.Supp.2d ---- (2014)
also worked as a real estate agent in Virginia for sixteen years.
Mr. Bostic and Mr. London have enjoyed a long-term, committed relationship with each other since 1989, and have lived together continuously in Virginia for over twenty years. They desire to marry each other, publicly commit themselves to one another, participate in a State-sanctioned celebration of their relationship, and undertake the solemn rights and responsibilities that Virginia’s Marriage Laws confer presently upon other individuals who marry.
On July 1, 2013, Mr. Bostic and Mr. London applied for a marriage license from the Clerk for the Circuit Court for the City of Norfolk. They completed the application for a marriage license and affirmed that they are over eighteen years of age and are unrelated. Mr. Bostic and Mr. London meet all of the legal requirements for marriage in Virginia except for the fact that they are the same gender. Va.Code §§ 20–38.1, 20–45.1 (2014). Their application for a marriage license was denied by the Clerk of the Circuit Court for the City of Norfolk.
2. Plaintiffs Carol Shall and Mary Townley Plaintiffs Carol Schall and Mary Townley live in Chesterfield County, Virginia, with their fifteen-year-old daughter, E. S.-T. Ms. Schall is an Assistant Professor in the School of Education at Virginia Commonwealth University (“VCU”) in Richmond, Virginia. She specializes in research on teaching autistic children.
Ms. Townley is the Supervisor of Transition at Health Diagnostic Laboratory, Inc. (“HDL”). She trains individuals with significant disabilities so that they may work at HDL.
Ms. Townley and Ms. Schall have enjoyed a committed relationship since 1985. They have lived together continuously in Virginia for almost thirty years.
*3 In 2008, Ms. Schall and Ms. Townley were legally married in California. They obtained a marriage license in California because the laws of Virginia did not permit them to do so in their home state.
Ms. Schall and Ms. Townley meet the legal requirements to have their marriage recognized in Virginia, except that they are the same gender. See id. §§ 20–38.1, 20–45.2, 20–45.3 (2014). Because the Commonwealth will not recognize their legal California marriage, Ms. Schall and Ms. Townley face legal and practical challenges that do not burden other married couples in Virginia.

Ms. Townley gave birth to the couple’s daughter, E. S.-T., in 1998. During her pregnancy, she was admitted to the emergency room at VCU’s Medical Center due to complications that left her unable to speak. Ms. Schall was denied access to Ms. Townley, and could obtain no information about Ms. Townley’s condition, for several hours because she is not recognized as Ms. Townley’s spouse under Virginia law. See id. § 54.1–2986 (2014).
Since E. S.-T.’s birth, Ms. Schall has yearned to adopt her. Virginia law does not permit second-parent adoption unless the parents are married. Because Ms. Schall is not considered to be Ms. Townley’s spouse, Ms. Schall is deprived of the opportunity and privilege of doing so. Id. §§ 63.2–1201, 63.2–1202 (2014).
Ms. Schall and Ms. Townley also incurred significant expenses to retain an estate planning attorney for necessary assistance in petitioning a court to grant Ms. Schall full joint legal and physical custody of E. S.-T. Although their petition was granted, Ms. Schall remains unable to legally adopt E. S.-T.
Despite being deprived of the opportunity to participate in a legal adoption of her daughter, Ms. Schall is a loving parent to E. S.-T., just as Ms. Townley is. The family lives together in one household, and both parents provide E. S.-T. with love, support, discipline, protection and structure.
Ms. Schall and Ms. Townley cannot obtain a Virginia marriage license or birth certificate for their daughter listing them both as her parents. Id. §§ 20–45.2, 32.1–261 (2014).
In April 2012, Ms. Schall and Ms. Townley sought to renew E. S.-T.’s passport, a process that requests the consent of both parents. When Ms. Schall and Ms. Townley presented the passport renewal forms on behalf of their daughter, a civil servant at a United States Post Office in Virginia told Ms. Schall that “You’re nobody, you don’t matter.” Schall Decl. para. 17, ECF No. 26–3; Townley Decl. para. 12, ECF No. 26–4.
After E. S.-T. was born, Ms. Townley had to return to work in part because her own health insurance was expiring and she could not obtain coverage under Ms. Schall’s insurance plan. Until February 2013, neither Ms. Schall nor Ms. Townley could obtain insurance coverage for each other under their respective employer-provided health insurance plans.
In February 2013, Ms. Townley obtained health insurance
3

Bostic v. Rainey, --- F.Supp.2d ---- (2014)
coverage under her employer-provided plan for Ms. Schall. She must pay state income taxes on the benefit because she and Ms. Schall are not recognized as married under Virginia’s Marriage Laws.
*4 Ms. Schall and Ms. Townley were ineligible for protections under federal laws governing family medical leave when their daughter was born and when one of their parents passed away. 29 U.S.C. § 2612 (2014). If the Commonwealth of Virginia recognized Ms. Schall’s and Ms. Townley’s legal marriage and permitted both to be listed on their daughter’s birth certificate, their daughter could inherit the estate of both parents in the event of their death, and could avoid tax penalties on any inheritance from Ms. Schall’s estate. Va.Code § 64.2–309 (2014).
Under Virginia’s Marriage Laws, agreements between Ms. Schall and Ms. Townley concerning custody, care, or financial support for their daughter could be declared void and unenforceable. Id. § 20–45.2. Because the Commonwealth does not recognize their legal marriage, benefits of Virginia’s Marriage Laws that promote the integrity of families are denied to Ms. Schall, Ms. Townley and their child.4
3. Virginia’s Marriage Laws The laws at issue here, referred herein as Virginia’s Marriage Laws, include two statutory prohibitions on same-sex unions, and an amendment to the Virginia Constitution. Specifically, Plaintiffs seek relief from the imposition of Article I, § 15–A, of the Virginia Constitution and Sections 20–45.2 and 20–45.3 of the Virginia Code.
Plaintiffs also seek relief from the imposition of any “Virginia law that bars same-sex marriage or prohibits the State’s recognition of otherwise-lawful same-sex marriages from other jurisdictions.” See Am. Compl., Prayer for Relief, paras. 1–2, ECF No. 18. Plaintiffs also request that their constitutional challenge extend to any Virginia case or common law upon which the Proponents or other parties might rely in attempts to withhold marriage from same-sex couples or deny recognition to the legal marriage of same-sex couples.
There is little dispute that these laws were rooted in principles embodied by men of Christian faith. By 1819, Section 6 of the Code of Virginia also made it lawful for all religious persuasions and denominations to use their own regulations to solemnize marriage. 1 Thomas Ritchie, The Revised Code of the Laws of Virginia 396 (1819). However, although marriage laws in Virginia are

endowed with this faith-enriched heritage, the laws have nevertheless evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia, with protections and benefits extended to portions of Virginia’s citizens. See Womack v. Tankersley, 78 Va. 242, 243 (1883).
The Virginia Code in 1819 declared that every license for marriage “shall be issued by the clerk of the court of that county or corporation....” Id. at 398. The authority to conduct marriages was then bestowed upon civil servants. Id. at 39697 (“[T]here is no ordained minister of the gospel ... within this Commonwealth, authorised to celebrate the rites of matrimony.... [I]t shall be and may be lawful for the courts ... to appoint two persons of each of the said counties ... who, by virtue of this act, shall be authorised to celebrate the rites of marriage, in the counties wherein they respectively reside.”).5
*5 In 1997, Virginia law limited the institution of civil marriage to a union between a man and a woman. Va.Code § 20–45.2. The Virginia legislature amended the Code to provide that “a marriage between persons of the same sex is prohibited.” Id. “Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable.” Id.
In 2004, following successful challenges to state prohibitions against same-sex marriage in other states, Virginia’s General Assembly, through Joint Resolution No. 91 and House Joint Resolution No. 187, proposed an amendment to the Virginia Constitution. See S.J. Res. 91, Reg. Sess. (Va.2004) (enacted) (citing “challenges to state laws have been successfully brought in Hawaii, Alaska, Vermont, and most recently in Massachusetts on the grounds that the legislature does not have the right to deny the benefits of marriage to same-sex couples and the state must guarantee the same protections and benefits to same-sex couples as it does to opposite-sex couples absent a constitutional amendment” as a basis for amending the Virginia Constitution).
On November 7, 2006, a majority of Virginia voters ratified a constitutional amendment (the “Marshall/Newman Amendment”), which was implemented as Article I, Section 15–A of the Virginia Constitution. The Marshall/Newman Amendment provides:
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.
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This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
Va. Const. art. I, § 15–A.
The Virginia Legislature also adopted the Affirmation of Marriage Act in 2004. This provides:
A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.
Va.Code § 20–45.3.
II. STANDARDS OF LAW
A. SUMMARY JUDGMENT The Proponents and Opponents of Virginia’s Marriage Laws have moved for summary judgment on the constitutional challenges to the laws. Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2013). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
*6 Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be considered by a

court in its determination. Id. at 248.
After a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute of fact exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
At that point, the Court’s function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
[1] In doing so, the Court must construe the facts in the light most favorable to the non-moving party, and may not make credibility determinations or weigh the evidence. Id. at 255. However, a court need not adopt a version of events that is “blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted). If there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party,” the motion for summary judgment must be denied. Id. at 249.
B. PRELIMINARY INJUNCTION [2] Plaintiffs also request a preliminary injunction. A plaintiff requesting the extraordinary remedy of a preliminary injunction must establish a likelihood of success on the merits, that the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in the plaintiff’s favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
III. ANALYSIS
The Opponents contend that that Virginia’s Marriage Laws violate Plaintiffs’ due process and equal protection rights under the United States Constitution as a matter of law. They raise facial constitutional challenges to the provision of Virginia’s Constitution, and to several Virginia statutes, that prohibit same-sex marriage.
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Alternatively, Plaintiffs argue that if the Court declines to grant summary judgment, it should issue a preliminary injunction compelling Defendants to cease enforcement of Virginia’s Marriage Laws as against these Plaintiffs pending a final judgment.
The Proponents oppose these motions, and defend the constitutionality of Virginia’s Marriage Laws. They maintain that the Commonwealth has the right to define marriage according to the judgment of its citizens.
A. PRELIMINARY CHALLENGES Before turning to the more substantive arguments, the Court first addresses two preliminary challenges advanced by Defendant Schaefer and Intervenor–Defendant McQuigg. The first challenge asks whether Plaintiffs have standing to maintain this action. The second challenge pertains to whether sufficient doctrinal developments regarding the questions presented have evolved to overcome the possibly precedential impact of the Supreme Court’s 1972 summary dismissal of a constitutional challenge to a state’s same-sex marriage laws.
1. Plaintiffs have standing *7 Defendant Schaefer argues that Plaintiffs Bostic and London lack standing to bring this suit against him because they failed to submit an application to obtain a marriage license. Therefore, Defendant Schaefer contends, Plaintiffs Bostic and London suffered no injury for the purposes of standing as provided by Article III of the United States Constitution. Br. Supp. Def. Schaefer’s Mot. Summ. J. 6, ECF No. 41.
Defendant Schaefer also argues that Ms. Schall and Ms. Townley “have not alleged any injury created by[,] or tangentially related to[,] any act or omission by him.” Id. at 7. Defendant Schaefer argues that the relief requested would not correct the harms alleged by Plaintiffs Schall and Townley. Id. Defendant Schaeffer contends that Ms. Schall and Ms. Townley have sought no recognition of their California marriage through him, and have not attempted to obtain a marriage license from him in Norfolk. Id. Defendant Schaefer contends that even if he were ordered to issue marriage licenses to same-sex couples, Ms. Schall and Ms. Townley would be unaffected because they are already married under the laws of California. Id.
[3] A plaintiff must meet three elements to establish standing. First, a plaintiff must have suffered an “injury in

fact” which is “concrete and particularized.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, a plaintiff must establish “a causal connection between the injury and the conduct complained of.” Id. “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ “ Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)).
There is no dispute that Plaintiffs are loving couples in long-term committed relationships who seek to marry in, or have their marriage recognized by, the Commonwealth of Virginia. Bostic Decl. paras. 35, ECF No. 26–1; London Decl. paras. 46, ECF No. 26–2; Schall Decl. paras. 57, 31, ECF No. 26–3; Townley Decl. paras. 619, ECF No. 26–4. They claim to suffer real and particularized injuries as a direct result of Defendants’ enforcement of Virginia’s Marriage Laws, including far-reaching legal and social consequences, and the pain of humiliation, stigma, and emotional distress that accumulates daily.
[4] Plaintiffs Bostic and London plainly did submit an application for a marriage license. They tried to obtain a marriage license, and these efforts were unsuccessful. Br. Supp. Def. Schaefer’s Mot. Summ. J. 2, ECF No. 41; Bostic Decl. paras. 610, ECF No. 26–1; London Decl. paras. 7–10, ECF No. 26–2. This establishes an Article III injury. See Parker v. District of Columbia, 478 F.3d 370, 376 (D.C.Cir.2007) (holding that courts have “consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury”). This Court accepts oral argument from counsel for Defendant Schaefer as a concession on this point. Tr. 32:16–20, Feb. 4, 2014, ECF No. 132 (“[U]nder Virginia’s existing laws, ... George Schaefer’s office could not issue that marriage license .... I do believe he probably is a proper party for that reason.”).
*8 [5] The standing challenges against Plaintiffs Schall and Townley also must fail. In Virginia, currently all marriages between opposite-sex couples that have been solemnized outside of the Commonwealth are recognized as valid in the Commonwealth as long as the parties met the legal requirements for marriage in the foreign jurisdiction. Even the status of “common law marriage,” while prohibited in Virginia, is nevertheless accepted by the Commonwealth if the marriage was valid in the state in which it occurred.6
[6] Plaintiffs Schall and Townley allege stigma and humiliation as a result of the enforcement of Virginia Code § 20–45.3. See Am. Compl. para. 34, ECF No. 18.
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Stigmatic injury is sometimes sufficient to support standing. See Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (finding that “stigmatizing injury often caused by racial discrimination” is a type of “noneconomic injury” that is “sufficient in some circumstances to support standing”). A plaintiff must first identify a “concrete interest with respect to which [he or she is] personally subject to discriminatory treatment,” and “[t]hat interest must independently satisfy the causation requirement of [the] standing doctrine.” Id. at 757 n. 22; see also Lebron v. Rumsfeld, 670 F.3d 540, 562 (4th Cir.2012) (explaining that Article III standing based on ongoing stigma requires that a plaintiff establish the suffering of harm).
Plaintiffs Schall and Townley satisfy the first requirement predicating standing on stigmatic injuries. Virginia Code § 20–45.3 prohibits the recognition of their valid California marriage. Similarly married opposite-sex individuals do not suffer this deprivation. Plaintiffs Schall and Townley suffer humiliation and discriminatory treatment on the basis of their sexual orientation. This stigmatic harm flows directly from current state law. See Bishop v. United States ex rel. Holder, 04–CV–848–TCK–TLW, 2014 WL 116013, at *9 (N.D.Okla. Jan.14, 2014).
[7] [8] The claims of Plaintiffs Schall and Townley also satisfy the causation element required for standing. A plaintiff must establish a sufficient connection between the state official sued and the alleged injury. See Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.2001); see also Bishop v. Oklahoma, 333 F. App’x 361, 365 (10th Cir.2009) (holding that the duties of the Oklahoma Governor or the Oklahoma Attorney General were insufficiently connected to the challenged Oklahoma laws). Defendant Schaefer is a proper defendant here because he is a city official responsible for issuing and denying marriage licenses and recording marriages. Va.Code §§ 20–14, 20–33, 32.1–267(B) (2014). Defendant Rainey is a proper defendant because she is a city official responsible for providing forms for marriage certificates. An injunction prohibiting Defendants from enforcing Virginia’s Marriage Laws will allow Plaintiffs Bostic and London to obtain a marriage license in the Commonwealth, and will allow the valid marriage between Plaintiffs Schall and Townley to be recognized in the Commonwealth of Virginia.
*9 Intervenor–Defendant McQuigg, after adopting Defendant Rainey’s former arguments, asserts that Plaintiffs lack standing because gay and lesbian individuals would be prohibited from marrying even in wake of a judicial invalidation of Article I, Section 15–A

of the Virginia Constitution and Virginia Code Sections 20–45.2 and 20–45.3. Plaintiffs seek relief not only from these provisions, however, but also from “any other Virginia law that bars same-sex marriage or prohibits the State’s recognition of otherwise-lawful same-sex marriages from other jurisdictions.” Am. Compl., Prayer for Relief, paras. 1–2, ECF No. 18. If this Court issues the injunction sought by Plaintiffs, their injuries will be redressed. They will be allowed to marry, or have their marriage recognized, in Virginia. Challenges to Plaintiffs’ standing are overruled.
2. Doctrinal developments [9] The next preliminary challenge pertains to determining the appropriate impact of a specific summary disposition by the United States Supreme Court. Summary dispositions by that Court, as well as dismissals “for want of a substantial federal question,” must be construed as rejecting “the specific challenges presented in the statement of jurisdiction,” and leaving “undisturbed the judgment appealed from.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (these dispositions “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions”).
In 1972, the Supreme Court summarily dismissed an appeal from a decision of the Supreme Court of Minnesota, which had held that 1) although a Minnesota statute defining marriage did not prohibit same-sex marriages explicitly, neither did that statute provide any authority for such marriages, and 2) the statute did not violate the Fourteenth Amendment to the United States Constitution. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185, 187 (Minn.1971), appeal dismissed 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The dismissal by the Supreme Court read, “The appeal is dismissed for want of a substantial federal question.” Baker, 409 U.S. at 810. Defendants here contend that because the Supreme Court found a substantial federal question lacking in Baker, this Court is precluded from exercising jurisdiction.
[10] There is no dispute that such summary dispositions are considered precedential and binding on lower courts. There is also no dispute asserted that questions presented in Baker are similar to the questions presented here. Both cases involve challenges to the constitutionality of a state statute which prohibits same-sex marriage. Both challenges assert principles of due process and equal protection. The ruling of the Supreme Court of Minnesota rejected arguments largely similar to those presented by Plaintiffs. See Baker, 191 N.W.2d at 187 (“The equal
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protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.”). However, summary dispositions may lose their precedential value. They are no longer binding “when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quoting Port Auth. Bondholder’s Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n. 3 (2d Cir.1967)) (internal quotation marks omitted).
*10 This Court concludes that doctrinal developments since 1971 compel the conclusion that Baker is no longer binding. The Second Circuit recognized this explicitly, holding that “[e]ven if Baker might have had resonance ... in 1971, it does not today.” Windsor v. United States, 699 F.3d 169, 178 (2d Cir.2012), aff’d, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (holding that Baker did not foreclose jurisdiction over review of the federal Defense of Marriage Act (“DOMA”)). In so holding, the Second Circuit relied upon doctrinal developments from Supreme Court decisions, including cases creating the term “intermediate scrutiny” in Craig v. Boren, 429 U.S. 190, 218, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (Rehnquist, J., dissenting); discussing classifications based on sex and illegitimacy in Lalli v. Lalli, 439 U.S. 259, 264–65, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); and finding no rational basis for “a classification of [homosexuals] undertaken for its own sake” in Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Windsor, 699 F.3d at 178–79.
More recently, the District Court for the District of Utah concluded that after considering the significant doctrinal developments in equal protection and due process jurisprudence, the Supreme Court’s summary dismissal in Baker “has little if any precedential effect today.” Kitchen v. Herbert, No. 2:13–CV–217, 2013 WL 6697874, at *8 (D.Utah Dec.20, 2013); see also McGee v. Cole, Civil Action No. 3:13–24068, 2014 WL 321122, at *910 (S.D.W.Va. Jan.29, 2014) (holding that the reasoning in these cases is persuasive and rejecting Baker as no longer binding).
This Court concludes that doctrinal developments in the question of who among our citizens are permitted to exercise the right to marry have foreclosed the previously precedential nature of the summary dismissal in Baker.7 The Baker summary dismissal is no longer binding.
B. PLAINTIFFS’ CONSTITUTIONAL CHALLENGES TO VIRGINIA’S MARRIAGE LAWS Having resolved the preliminary challenges advanced

against Plaintiffs’ claims, the Court now turns to the more substantive questions presented by the parties. This Court must determine whether Virginia’s Marriage Laws violate Plaintiffs’ rights guaranteed to them under the Fourteenth Amendment of the United States Constitution. This Amendment provides: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
Plaintiffs’ due process claims are addressed first. Next, the examination turns to whether Virginia’s Marriage Laws violate Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment. Finally, the Court resolves whether Plaintiffs’ claims brought under 42 U.S.C. § 1983 have merit, and whether the Court should stay this ruling pending further guidance from the Supreme Court.
1. Plaintiffs’ rights under the Due Process Clause *11 [11] The Due Process Clause of the Fourteenth Amendment applies to “matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal constitution from invasion by the States.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846–47, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (quoting Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)) (internal quotation marks omitted). Accordingly, the initial question is whether Plaintiffs are seeking protection for a fundamental right. The second question is whether Virginia’s Marriage Laws properly or improperly compromise Plaintiffs’ rights.
a. Marriage is a fundamental right [12] There can be no serious doubt that in America the right to marry is a rigorously protected fundamental right. The Supreme Court has recognized repeatedly that marriage is a fundamental right protected by both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)) (finding that choices about marriage “are among associational rights this Court has ranked as ‘of basic importance in our society[.]’ ”); Casey, 505 U.S. at 848, 112 S.Ct. 2791 (finding marriage “to be an aspect of
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liberty protected against state interference by the substantive component of the Due Process Clause”); Turner v. Safley, 482 U.S. 78, 97, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (finding that a regulation that prohibited inmates from marrying without the permission of the warden impermissibly burdened their right to marry); Zablocki v. Redhail, 434 U.S. 374, 383–84, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (defining marriage as a right of liberty); Carey v. Population Servs. Int’l, 431 U.S. 678, 684–85, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (finding that the right to privacy includes personal decisions relating to marriage); United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (concluding that the Court “has come to regard [marriage] as fundamental”); Boddie, 401 U.S. at 376, 91 S.Ct. 780 (defining marriage as a “basic importance in our society”); Loving, 388 U.S. at 12 (finding prohibition on interracial marriage unconstitutional); Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (defining marriage as a right of privacy and a “coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred”); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (finding marriage to be a “basic civil right[ ] of man”); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (finding that marriage is a liberty protected by the Fourteenth Amendment); Andrews v. Andrews, 188 U.S. 14, 30, 23 S.Ct. 237, 47 L.Ed. 366 (1903) (quoting Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888)) (internal quotation marks omitted) (finding marriage to be “most important relation in life”), abrogated on other grounds, Sherrer v. Sherrer, 334 U.S. 343, 352 (1948); Maynard, 125 U.S. at 205 (same).
[13] Marriage rights are “ ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B., 519 U.S. at 116 (quoting Boddie, 401 U.S. at 376, 91 S.Ct. 780) (citations omitted).
*12 The right to marry is inseparable from our rights to privacy and intimate association. In rejecting a Connecticut law prohibiting the use of contraceptives, the Court wrote of marriage’s noble purposes:
We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being

sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Griswold, 381 U.S. at 486, 85 S.Ct. 1678.
The parties before this Court appreciate the sacred principles embodied in our fundamental right to marry. Each party cherishes the commitment demonstrated in the celebration of marriage; each party embraces the Supreme Court’s characterization of marriage as “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.” Maynard, 125 U.S. at 205, 211. Regrettably, the Proponents and the Opponents of Virginia’s Marriage Laws part ways despite this shared reverence for marriage. They part over a dispute regarding who among Virginia’s citizenry may exercise the fundamental right to marry.
b. The Plaintiffs seek to exercise a fundamental right Just as there can be no question that marriage is a fundamental right, there is also no dispute that under Virginia’s Marriage Laws, Plaintiffs and Virginia citizens similar to Plaintiffs are deprived of that right to marry. The Proponents’ insistence that Plaintiffs have embarked upon a quest to create and exercise a new (and some suggest threatening) right must be considered, but, ultimately, put aside.
The reality that marriage rights in states across the country have begun to be extended to more individuals fails to transform such a fundamental right into some “new” creation.8 Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia’s adult citizens. They seek “simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” Kitchen, 2013 WL 6697874 at *16. “This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference.” Id.
Virginia’s Marriage Laws impose a condition on this
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exercise. These laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse. These laws interject profound government interference into one of the most personal choices a person makes. Such interference compels careful judicial examination:

*13 Our law affords constitutional

protection to personal decisions

relating to marriage, procreation,

contraception, family relationships,

child rearing, and education. Our

cases recognize the right of the

individual, married or single, to be

free

from

unwarranted

governmental intrusion into matters

so fundamentally affecting a person

as the decision whether to bear or

beget a child. Our precedents have

respected the private realm of

family life which the state cannot

enter. These matters, involving the

most intimate and personal choices

a person may make in a lifetime,

choices central to personal dignity

and autonomy, are central to the

liberty protected by the Fourteenth

Amendment. At the heart of liberty

is the right to define one’s own

concept of existence, of meaning, of

the universe, and of the mystery of

human life. Beliefs about these

matters could not define the

attributes of personhood were they

formed under compulsion of the

State.

Casey, 505 U.S. at 851 (1992) (second emphasis added) (quoting Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1994)) (internal quotation marks and citations omitted); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (our federal Constitution “undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse”).

Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices—choices, like the choices made by every other citizen, that must be free from unwarranted government interference.

c. Virginia’s Marriage Laws are subject to strict scrutiny [14] In general, state regulations are presumed valid, and are upheld, when the regulations are rationally related to a legitimate state interest. Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).
[15] However, strict scrutiny is imposed as substantive due process protection to “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Id. at 72021 (quoting Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)) (internal quotation marks and citations omitted).
[16] Under strict scrutiny, the regulations pass constitutional muster only if they are narrowly tailored to serve a compelling state interest. Id. at 721; see also Zablocki, 434 U.S. at 388, 98 S.Ct. 673 (striking down a requirement that non-custodial parents paying child support seek court approval before marrying); Boddie, 401 U.S. at 380–81, 91 S.Ct. 780 (holding that a divorce could not be denied to an indigent person who was unable to afford the filing fees).
*14 Because marriage is a fundamental right, therefore, Virginia’s Marriage Laws cannot be upheld unless they are justified by “compelling state interests” and are “narrowly drawn to express only those interests.” Carey, 431 U.S. at 686, 97 S.Ct. 2010; accord Zablocki, 434 U.S. at 388, 98 S.Ct. 673 (“When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.”).
The Court turns to the three primary justifications the Proponents proffer in support of Virginia’s Marriage Laws and their significant interference with Plaintiffs’ freedom to exercise their fundamental right to marry: (1) tradition; (2) federalism; and (3) “responsible procreation” and “optimal child rearing.”
d. Tradition [17] Virginia has traditionally limited marriages to opposite-sex relationships. The Proponents assert that preserving and perpetuating this tradition is a state interest
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that is sufficiently important to justify the impact of Virginia’s Marriage Laws on Plaintiffs and other citizens in Virginia who are lesbian and gay.9
[18] Proponents suggest that these state interests in tradition arise from a legitimate desire to discourage individuals from abusing marriage rights by marrying for the sole purpose of qualifying for benefits for which they would otherwise not qualify. Tr. 45:14–19, ECF No. 132. The “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). This proffer lacks any rational basis. Virginia’s purported interest in minimizing marriage fraud is in no way furthered by excluding one segment of the Commonwealth’s population from the right to marry based upon that segment’s sexual orientation.
Judicial evaluation of the importance of tradition as a state rationale for infringing upon Plaintiffs’ rights must draw a focus on the history of the laws that are under scrutiny. Virginia’s Affirmation of Marriage Act, known as House Bill 751, was drafted in response to fears that “homosexual marriage or same sex unions [are] ... directed at weakening the institution of marriage,” and that “defining marriage or civil unions as permissible for same sex individuals as simply an alternate form of ‘marriage’ [would] radically transform the institution of marriage with serious and harmful consequences to the social order.” Affirmation of Marriage Act, H.B. 751 (2004) (enacted).
Concerns that schools might be compelled “to teach that ‘civil unions’ or ‘homosexual marriage’ “ should be “equivalent to traditional marriage” and that “churches whose teachings [do] not accept homosexual behavior as moral will lose their tax exempt status,” fueled the proposed legislation. Id. The promotion of “tradition” was evident in the Bill’s language regarding the “profound moral and legal difference between private behavior conducted outside the sanction ... of the law ... and granting such behavior a legal institutional status in society.” Id. This “radical change” would trigger “unforeseen legal and social consequences,” and the provision of “same sex unions would obscure certain basic moral values and further devalue the institution of marriage and the status of children.” Id.
*15 [19] The inescapable conclusion regarding the Commonwealth’s interest in tradition is that an adherence to a historical definition of traditional marriage is desired to avoid “radical changes” that would result in the diminishing one common, long-held view of what marriage means. The Supreme Court has rejected the

assertion that a prevailing moral conviction can, alone, justify upholding a constitutionally infirm law: “ ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.’ “ Lawrence v. Texas, 539 U.S. 558, 577–78, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (alteration provided) (quoting Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Stevens, J., dissenting)) (holding that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adults engaging in consensual acts in the privacy of a home); see also Kitchen, 2013 WL 6697874, at *27 (“[T]radition alone cannot form a rational basis for a law.”). Our courts are duty-bound to define and protect “the liberty of all, not to mandate our own moral code.” Lawrence, 539 U.S. at 571, 123 S.Ct. 2472 (quoting Casey, 505 U.S. at 850, 112 S.Ct. 2791).
Nearly identical concerns about the significance of tradition were presented to, and resolved by, the Supreme Court in its Loving decision. The Loving Court struck down Virginia’s ban on interracial marriage despite the ban’s existence since “the colonial period.” 388 U.S. at 6. Notwithstanding the undeniable value found in cherishing the heritages of our families, and many aspects of the heritages of our country and communities, the protections created for us by the drafters of our Constitution were designed to evolve and adapt to the progress of our citizenry. The Supreme Court recognized this eloquently:
It is ... tempting ... to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference ... when the Fourteenth Amendment was ratified. But such a view would be inconsistent with our law.
Casey, 505 U.S. at 847, 112 S.Ct. 2791 (citation omitted).
Tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.
11

Bostic v. Rainey, --- F.Supp.2d ---- (2014)
e. The appropriate balance regarding federalism [20] The Proponents also assert that Virginia maintains a significant interest in reserving the power to regulate essential state matters, and to shield the exercise of that power from intrusive, improper federal interference. The Supreme Court recently addressed the long-standing deference our federal government pays to state-law policy decisions with respect to domestic relations:
*16 State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).
The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.” Ibid. “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U.S. 562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S. 86, 593–94 (1890) (“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States”).
Windsor, 133 S.Ct. at 2691 (alterations and omission in original).10
This Court remains mindful that the federal intervention is best exercised rarely, and that the powers regarding domestic relations properly rest with the good offices of state and local government. This deference is appropriate, and even essential. However, federal courts have intervened, properly, when state regulations have infringed upon the right to marry. The Windsor Court prefaced its analysis about deference to the state laws defining and regulating marriage by citing Loving’s holding that recognized that “of course,” such laws “must respect the constitutional rights of persons.” Id. In signaling that due process and equal protection guarantees

must trump objections to federal intervention, Windsor’s “citation to Loving is a disclaimer of enormous proportion.” Bishop, 2014 WL 116013, at *18.
Similarly, in Zablocki, the Court upheld the right of prison inmates to marry, while acknowledging domestic relations “as an area that has long been regarded as a virtually exclusive province of the States.” 434 U.S. at 398–99, 98 S.Ct. 673 (Powell, J., concurring) (quoting Sosna, 419 U.S. at 404, 95 S.Ct. 553) (internal quotation marks omitted).
In Windsor, our Constitution was invoked to protect the individual rights of gay and lesbian citizens, and the propriety of such protection led to upholding state law against conflicting federal law. The propriety of invoking such protection remains compelling when faced with the task of evaluating the constitutionality of state laws. This propriety is described eloquently in a dissenting opinion authored by the Honorable Antonin Scalia:
*17 As I have said, the real rationale of [the Windsor opinion] is that DOMA is motivated by “bare ... desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
Windsor, 133 S.Ct. at 2709 (Scalia, J., dissenting) (alteration provided) (omission in original) (quoting Windsor, 133 S.Ct. at 2691) (citations and some internal quotation marks omitted); see also Kitchen, 2013 WL 6697874 at *7 (agreeing with this analysis).
The Proponents’ related contention that judicial intervention should be suspended in deference to the possibility that the Virginia legislature and Virginia’s electorate might resolve Plaintiffs’ claims also lacks merit. The proposal disregards the gravity of the ongoing significant harm being inflicted upon Virginia’s gay and lesbian citizens. Moreover, the proposal ignores the needless accumulation of that pain upon these citizens, and the stigma, humiliation and prejudice that would be visited upon these citizens’ children, as they continue to wait for this possibility to become realized.11
When core civil rights are at stake the judiciary must act. As the Supreme Court said in West Virginia State Board of Education v. Barnette:
The very purpose of a Bill of
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Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Accordingly, this Court must perform its constitutional duty in deciding the issues currently presented before it. Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations, judicial vigilance is a steady beacon searching for an ever-more perfect justice and truer freedoms for our country’s citizens. Intervention under the circumstances presented here is warranted, and compelled.
f. The “for-the-children ” rationale [21] The Proponents of Virginia’s Marriage Laws contend that “responsible procreation” and “optimal child rearing” are legitimate interests that support the Commonwealth’s efforts to prohibit some individuals from marrying. Counsel for Intervenor–Defendant asserted at oral argument that marriage is about children. Tr. 49:20–22, ECF No. 132. He asserted that the Commonwealth has a legitimate interest in “trying to tie those children as best it can or encourage without being coercive those children to enter into a union with a loving mom and dad, specifically the mom and dad [who] are responsible for bringing them into this world.” Id. at 59:20–24. This counsel also argued that the Commonwealth has a legitimate interest in celebrating the “diversity of the sexes,” but failed to establish how prohibiting some Virginia citizens from marrying is related rationally to such a celebration. Id. at 52:9–10.
*18 In sum, Proponents contend that Virginia should be permitted to “rationally conclude that, all things being equal, it is better for the natural parents to also be the legal parents.” Br. Supp. Def. Rainey’s Mot. Summ. J. 23, ECF No. 39.
The Amici Professors refer to evidence that purports to demonstrate that children benefit from the unique parenting contributions of opposite-sex parents. The

Amici Professors reject recent studies that found that children raised by gay and lesbian parents are no different from children raised by “intact biological parents,” asserting that the studies are empirically undermined by methodological limitations.
This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest. E. S.-T., like the thousands of children being raised by same-sex couples, is needlessly deprived of the protection, the stability, the recognition and the legitimacy that marriage conveys.
“Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.” Perry v. Schwarzenegger, 704 F.Supp.2d 921, 967 (N.D.Cal.2010). Gay and lesbian couples are as capable as other couples of raising well-adjusted children. See id. at 980 (“Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted”). In the field of developmental psychology, “the research supporting this conclusion is accepted beyond serious debate.” Id.12
Additionally, the purported “for-the-children” rationale fails to justify Virginia’s ban on same-sex marriage because recognizing a gay individual’s fundamental right to marry can in no way influence whether other individuals will marry, or how other individuals will raise families. “Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.” Bishop, 2014 WL 116013, at *29. As was recognized in Kitchen:
[I]t defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support.
2013 WL 6697874, at *25.
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Counsel for Intervenor–Defendant McQuigg proclaimed at oral argument that “[P]laintiffs are asking this court to ... strike down the marriage laws that have existed now for 400 years ... and make a policy in this state that mothers and fathers [do not] matter.” Tr. at 53:5–8, ECF No. 132. This is a profound distortion of what Plaintiffs seek. Plaintiffs honor, and yearn for, the sacred values and dignity that other individuals celebrate when they enter into marital vows in Virginia, and they ask to no longer be deprived of the opportunity to share these fundamental rights.
*19 The “for-the-children” rationale also fails because it would threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating. See Bishop, 2014 WL 116013, at *30.
The “for-the-children” rationale rests upon an unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents. Forty years ago a similarly unfortunate presumption was proffered to defend a law in Illinois that removed children from the custody of unwed fathers upon the death of the mother. Stanley v. Illinois, 405 U.S. 645, 653, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Proponents of the law asserted “that Stanley and all other unmarried fathers can reasonably be presumed to be unqualified to raise their children.” Id. (emphasis added). The Supreme Court said that such a startling presumption “cannot stand.” Id. at 657. The Stanley Court’s holding has been construed to mean “that the State could not conclusively presume that any particular unmarried father was unfit to raise his child; the Due Process Clause required a more individualized determination.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 645, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (discussing the holding in Stanley v. Illinois ).
“[T]he demographic changes of the past century make it difficult to speak of an average American family.” Troxel v. Granville, 530 U.S. 57, 63, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Attempting to legislate a state-sanctioned preference for one model of parenting that uses two adults over another model of parenting that uses two adults is constitutionally infirm. “The composition of families varies greatly from household to household,” id., and there exist successful, well-adjusted children from all backgrounds. “Certainly same-sex couples, like other parenting structures, can make quality and successful efforts in raising children. That is not in question.” Amici Profs.’ Br. Supp. Defs.’ Mots. Summ. J. 11, ECF No. 64–1.

This Court endorses the portion of the oral argument from counsel for Intervenor–Defendant in which he acknowledged that “marriage exists to provide structure and stability for the benefit of the child, giving them every opportunity possible to know, to be loved by and raised by a mom and dad who are responsible for their existence.” Tr. 59:6–10, ECF No. 132. Same-sex couples can be just as responsible for a child’s existence as the countless couples across the nation who choose, or are compelled to rely upon, enhanced or alternative reproduction methods for procreation.13
Finally, the “for-the-children” rationale misconstrues the dignity and values inherent in the fundamental right to marry as primarily a vehicle for “responsibly” breeding “natural” offspring.14 Such misconstruction ignores that the profound non-procreative elements of marriage, including “expressions of emotional support and public commitment,” “spiritual significance,” and “expression of personal dedication.” Turner, 482 U.S. at 95–96, 107 S.Ct. 2254. In recognizing that prison inmates have the right to wed notwithstanding that incarceration may prevent them from consummating the marriage, the Turner Court heralded the legal, economic, and social benefits of marriage, teaching that “marital status often is a precondition to the receipt of government benefits ..., property rights ..., and other, less tangible benefits.” Id. at 96.
*20 In sum, the “for-the-children” rationale fails to justify denying an individual the benefits and dignity and value of celebrating marriage simply because of the gender of the person whom that individual loves. The state’s compelling interests in protecting and supporting our children are not furthered by a prohibition against same-sex marriage.
2. Plaintiffs’ Rights under the Equal Protection Clause [22] [23] The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of its laws.” U.S. Const. amend. XIV, § 1. Just as the analysis regarding the claims involving substantive due process began, the evaluation of whether certain legislation violates the Equal Protection Clause commences with determining whether the challenged law interferes significantly with a fundamental right. If so, the legislation “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388, 98 S.Ct. 673. For the reasons provided above, this Court concludes that Virginia’s Marriage Laws significantly interfere with a fundamental right, and are
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inadequately tailored to effectuate only those interests. Therefore, the laws are unconstitutional under the Equal Protection Clause as well.
[24] However, even without a finding that a fundamental right is implicated, the Marriage Laws fail under this Clause. The Equal Protection Clause “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Or., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). The Clause places no limitation on a state’s power to treat dissimilar people differently. Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir.1995) (“[It] does not mean that persons in different circumstances cannot be treated differently under the law.”).
These constitutional protections are invoked instead when a state statute treats persons who are standing in the same relation to the statute in a different manner, either on its face or in practice. Individuals need only be similarly situated for the purposes of the challenged law. Id. (“It requires that the states apply each law, within its scope, equally to persons similarly situated, and that any differences of application must be justified by the law’s purpose.”).
The parties do not dispute that same-sex couples may be similarly situated to opposite-sex couples with respect to their love and commitment to one another. However, the Proponents contend that the Commonwealth’s primary purpose for recognizing and regulating marriage is responsible procreation and child-rearing. By construing the definition of these activities to refer to the capacity of a married couple to naturally produce children, the Proponents assert that same-sex couples must be viewed as fundamentally different from heterosexual couples.
*21 This recent embrace of “natural” procreation as the primary inspiration and purpose for Virginia’s Marriage Laws is inconsistent with prior rationalizations for the laws. This purpose was effectively disavowed by the legislation itself, which declared that marriage should be limited to opposite-sex couples “whether or not they are reproductive in effect or motivation.” Affirmation of Marriage Act, HB 751 (2004) (enacted).
A more just evaluation of the scope of Virginia’s Marriage Laws at issue establishes that these laws impact Virginia’s adult citizens who are in loving and committed relationships and want to be married under the laws of

Virginia. The laws at issue target a subset (gay and lesbian individuals) who are similarly situated to Virginia’s heterosexual individuals, and deprive that subset of the opportunity to marry. Even assuming (but not deciding) that the Marriage Laws do not significantly interfere with the fundamental rights of the class created by the laws (gay and lesbian individuals), this Court must nevertheless determine how closely to scrutinize the challenged regulation.
Deference to Virginia’s judgment on this question is unwarranted, because there are reasonable grounds to suspect “prejudice against discrete and insular minorities ... which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities [.]” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).
Although the parties disagree15 on the extent of animus that has been directed toward gay and lesbian people, “for centuries there have been powerful voices to condemn homosexual conduct as immoral.” Lawrence, 539 U.S. at 571, 123 S.Ct. 2472.
This moral condemnation continues to manifest in Virginia in state-sanctioned activities. The Virginia legislature has 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 (2014). Virginia’s former Attorney General directed colleges and universities in the Commonwealth to eliminate protections that had been in place regarding “ ‘sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification” from the institutions’ non-discrimination policies. Lustig Decl. Ex. J, at 1, ECF No. 26–15. This record alone gives rise to suspicions of prejudice sufficient to decline to defer to the state on this matter.
It is well-settled that the Supreme Court has developed levels of scrutiny for purposes of deciding whether a state law discriminates impermissibly against members of a class in violation of the Equal Protection Clause, depending upon the kind of class affected. The greatest level of scrutiny is reserved for race or national origin classifications. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988).
An “intermediate” level of scrutiny has been employed by the Court as well, and is reserved for laws that employ quasi-suspect classifications such as gender, Craig, 429 U.S. at 197, 97 S.Ct. 451, or illegitimacy, Mills v. Habluetzel, 456 U.S. 91, 98–99, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982). This intermediate level of scrutiny upholds state laws only if they are “substantially related
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to an important governmental objective.” Clark, 486 U.S. at 461, 108 S.Ct. 1910.
*22 The least rigorous kind of scrutiny is reserved for legislative classifications that are not “suspect.” This kind of legislation passes constitutional muster if it bears a rational relationship to some legitimate end. Romer, 517 U.S. at 631, 116 S.Ct. 1620.
Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs’ compelling arguments that the Laws should be subjected to heightened scrutiny.16
The Proponents’ contentions that a rational relationship exists between Virginia’s Marriage Laws at issue and a legitimate purpose have been considered carefully. These contentions have been evaluated fully under the analysis of Plaintiffs’ substantive due process claims.
The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse “responsible procreation”—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.
3. Plaintiffs are entitled to relief under Section 1983 [25] To state a claim for relief in an action brought under Section 1983, Plaintiffs must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). The Proponents declined to challenge Plaintiffs’ Section 1983 claims. The validity of these claims warrant brief review.
[26] “The ultimate issue in determining whether a person is subject to suit under [Section] 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the State?’ “ Rendell–Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)

(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). Plaintiffs allege that Virginia’s Marriage Laws, and their enforcement by the state officials who are named defendants, violate their rights under the Equal Protection Clause of the Fourteenth Amendment. Because Virginia’s Marriage Laws are herein struck as unconstitutional, and there is sufficient state action to permit relief under the Federal Due Process and Equal Protection Clauses, Plaintiffs’ Section 1983 claims are well-taken.
IV. CONCLUSION
Each of the parties before the Court recognizes that marriage is a sacred social institution. The commitment two individuals enter into to love, support each other, and to possibly choose to nurture children enriches our society. Although steeped in a rich, tradition- and faith-based legacy, Virginia’s Marriage Laws are an exercise of governmental power. For those who choose to marry, and for their children, Virginia’s laws ensures that marriage provides profound legal, financial, and social benefits, and exacts serious legal, financial, and social obligations. The government’s involvement in defining marriage, and in attaching benefits that accompany the institution, must withstand constitutional scrutiny. Laws that fail that scrutiny must fall despite the depth and legitimacy of the laws’ religious heritage.
*23 The Court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.
Ultimately, this is consistent with our nation’s traditions of freedom. “[T]he history of our Constitution ... is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Our nation’s uneven but dogged journey toward truer and more meaningful freedoms for our citizens has brought us continually to a deeper understanding of the first three words in our Constitution: we the people. “We the People” have become a broader, more diverse family than once imagined.17
Justice has often been forged from fires of indignities and
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prejudices suffered.18 Our triumphs that celebrate the freedom of choice are hallowed.19 We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.
Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: “It can not have failed to strike you that these men ask for just ... the same thing—fairness, and fairness only. This, so far as in my power, they, and all others, shall have.”20
The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.
ORDER
The Court finds Va. Const. Art. I, § 15–A, Va.Code §§ 20–45.2, 20–45.3, and any other Virginia law that bars same-sex marriage or prohibits Virginia’s recognition of lawful same-sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution.
The Court GRANTS Plaintiffs’ Motion for Summary Judgment (ECF No. 25), GRANTS Plaintiffs Motion for Preliminary Injunction (ECF No. 27) and DENIES Defendant Schaefer’s and Intervenor–Defendant’s Motions for Summary Judgment (ECF Nos. 38 and 40). The Court ENJOINS the Commonwealth from enforcing Sections 20–45.2 and 20–45.3 of the Virginia Code and Article I, § 15–A of the Virginia Constitution to the extent these laws prohibit a person from marrying another person of the same gender.
In accordance with the Supreme Court’s issuance of a stay in Herbert v. Kitchen, and consistent with the reasoning provided in Bishop, this Court slays execution of this injunction pending the final disposition of any appeal to the Fourth Circuit Court of Appeals.
*24 Counsel for Plaintiffs, Defendants, and Intervenor–Defendant are ordered to file proposed Judgments for the Court’s consideration. These proposals shall be filed by March 14, 2014.
IT IS SO ORDERED.

1

Mildred Loving, Loving for All, Public Statement on

the 40th Anniversary of Loving v. Virginia (June 12,

2007).

2

Unless otherwise noted, “Virginia’s Marriage Laws”

refer to Article I, Section 15–A of the Virginia

Constitution, the statutory provisions cited herein, and

any other law relating to marriage within the

Commonwealth of Virginia.

3

After those parties were dismissed as defendants,

then-pending motions to dismiss from those parties

were dismissed as moot.

4

These benefits include, but are not limited to,

protections regarding how and when a marriage may be

allowed to dissolve, which acknowledge the importance

of families and children in Virginia. Va.Code § 20–91

(2014).

5

The extension of those protections and benefits has

sometimes occurred after anguish and the unavoidable

intervention of federal jurisprudence. See, e.g., Loving

v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010

(1967) (balancing the state’s right to regulate marriage

against the individual’s rights to equal protection and

due process under the law).

6

Marriage Requirements, Virginia Department of

Health,

http://

www.

vdh.state.va.us/vital_records/marry.htm (last visited

Feb. 13, 2014); see also Marriage in Virginia, Virginia

State Bar: An Agency of the Supreme Court of

Virginia,

http://www.vsb.org/site/publications/marriage-in-virgin

ia (last visited Feb. 13, 2014).

7

Some federal courts have ruled that Baker remains

binding. See Massachusetts v. HHS, 682 F.3d 1, 8 (1st

Cir.2012); Sevcik v. Sandoval, 911 F.Supp.2d 996,

100203 (D.Nev.2012); Wilson v. Ake, 354 F.Supp.2d

1298, 130405 (M.D.Fla.2005). This Court respectfully

disagrees and cites with approval the thorough

reasoning on the issue in Windsor, Kitchen, and Bishop.

17

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8

Nor should this doctrinal development be construed as

any dilution of the sanctity of marriage. Similar fears

were voiced and ultimately quieted after Virginia

unsuccessfully defended its anti-miscegenation laws by

referring to a need “ ‘to preserve the racial integrity of

its citizens,’ and to prevent ‘the corruption of blood,’ ‘a

mongrel breed of citizens,’ and ‘the obliteration of

racial pride’....” Loving, 388 U.S. at 7 (quoting Naim v.

Nairn, 197 Va. 80, 87 S.E.2d 749, 756 (Va.1955)).

9

At oral argument, counsel for Intervenor–Defendant

McQuigg contended that “[m]arriage is not

constitutional because it’s ancient. It’s ancient because

it is rational and it [has] animated the laws in this

country and in this Commonwealth since the very

beginning.” Tr. 52:1–4, ECF No. 132. While no one

disputes that some persons have enjoyed the right and

privilege to marry since ancient times, beliefs based on

ancient roots that this exercise should properly remain

limited to one portion of our population, however

dearly held, contribute little to the judicial endeavor of

evaluating whether the purported state interests in such

timelines are sufficiently important to rationalize the

impact of the Marriage Laws under current scrutiny.

Other profound infringements upon our citizens’ rights

have been explained as a consequence of heritage, and

those explanations have been found wanting. Interracial

marriage “was illegal in most States in the 19th century,

but the Court was no doubt correct in finding it to be an

aspect of liberty protected against state interference by

the substantive component of the Due Process Clause in

Loving v. Virginia.” Casey, 505 U.S. at 847–48, 112

S.Ct. 2791; see also Perry v. Schwarzenegger, 704

F.Supp.2d 921, 992 (N.D.Cal.2010) (recognizing that

the Supreme Court rejected race restrictions despite

their historical prevalence because the restrictions

“stood in stark contrast to the concepts of liberty and

choice inherent the right to marry”).

10

In Windsor the Supreme Court struck down Section 3

of DOMA because it violated the due process and equal

protection principles of the Fifth Amendment by

denying federal recognition of a marriage lawfully

entered into in another jurisdiction. 133 S.Ct. at 2693.

The Court ruled that DOMA improperly instructed “all

federal officials, and indeed all persons with whom

same-sex couples interact, including their own children,

that their marriage is less worthy than the marriages of

others.” Id. at 2696.

11

In Virginia, this proposal would require majorities in

both chambers of the General Assembly to vote, in two

separate legislative years, before and after a general

election of the members of the House of Delegates, to

repeal Virginia’s constitutional amendment banning same-sex marriage, as well as a subsequent majority vote by the electorate at a general election. Va. Const. art. XII, § 1.

12

See, e.g., Brief for Amici The Am. Psychological Ass’n,

et al. at 18–26, Windsor v. United States, ––– U.S.

––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (No.

12–307); Brief for Amici The Am. Psychological Ass’n,

et al. at 2230, Hollingsworth v. Perry, ––– U.S. ––––,

133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) (No. 12–144);

Brief for Amicus The Am. Sociological Ass’n at 614,

Windsor v. United States, ––– U.S. ––––, 133 S.Ct.

2675, 186 L.Ed.2d 808 (2013) (No. 12–307); Brief for

Amicus The Am. Sociological Ass’n at 6–14,

Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652,

186 L.Ed.2d 768 (2013) (No. 12–144). This Court notes

that the Amici Professors in this case did not refute this

research, but represented only that more research would

be beneficial.

13

Even assuming as true, for argument’s sake, the notion

that some same-sex couples might be worse parents

than some opposite-sex couples, “[a] law which

condemns, without hearing, all the individuals of a

class to so harsh a measure as the present because some

or even many merit condemnation, is lacking in the first

principles of due process.” Skinner, 316 U.S. at 545, 62

S.Ct. 1110 (emphasis added).

14

Intervenor–Defendant asserted at oral argument that

“but for children there would be no need of any

institution concerned with sex.” Tr. at 50:8–9, ECF No.

132. But the Supreme Court has already held that “it

would demean a married couple were it to be said

marriage is simply about the right to have sexual

intercourse.” Lawrence, 539 U.S. at 567, 123 S.Ct.

2472.

15

See Tr. 62:10–11, ECF No. 132 (“[P]laintiffs can prove

and bring forth no history of discrimination.”).

16

Although this Court need not decide whether Virginia’s

Marriage Laws warrant heightened scrutiny, it would

be inclined to so find. See Perry, 704 F.Supp.2d at 997

(“[S]trict scrutiny is the appropriate standard of review

to apply to legislative classifications based on sexual

orientation. All classifications based on sexual

orientation appear suspect, as the evidence shows that

California would rarely, if ever, have a reason to

18

Bostic v. Rainey, --- F.Supp.2d ---- (2014)

categorize individuals based on their sexual orientation.”), aff’d sub nom. Perry v. Brown, 671 F.3d 1052, 1080–82, 1095 (9th Cir.2012), vacated for want of standing sub nom. Hollingsworth v. Perry, ––– U.S. ––––, ––––, 133 S.Ct. 2652, 2668, 186 L.Ed.2d 768 (2013); SmithKline Beecham Corp. v. Abbott Labs., Nos. 11–17357, 11–17373, 2014 WL 211807, at *9 (9th Cir. Jan.21, 2014) (holding that Windsor compels heightened scrutiny of a lawyer’s peremptory strike of jurors based on their sexual orientation).

17

See U.S. CONST. amend. XV (granting African

American men the right to vote); U.S. CONST. amend

XIX (granting women the right to vote).

18

See Powell v. State of Ala., 287 U.S. 45, 53 S.Ct. 55, 77

L.Ed. 158 (1932) (guaranteeing legal counsel in

criminal proceedings in state and federal courts);

Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.

1161 (1948) (prohibiting courts from enforcing

“restrictive covenants” that prevent people of a certain

race from owning or occupying property); Brown v.

Board of Ed. of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98

L.Ed. 873 (1954) (allowing desegregation of schools);

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9

L.Ed.2d 799 (1963) (finding defendants in criminal

cases have an absolute right to counsel); Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85

S.Ct. 348, 13 L.Ed.2d 258 (1964) (finding that any

business participating in interstate commerce would be

required to follow all rules of the federal civil rights

legislation); Loving v. Virginia, 388 U.S. 1, 87 S.Ct.

1817, 18 L.Ed.2d 1010 (1967) (finding prohibition on

interracial marriage unconstitutional); Reed v. Reed,

404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971)

(finding for the first time that a law that discriminates

against women is unconstitutional); Frontiero v.

Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d

583 (1973) (striking down a federal statute that

automatically granted male members of the uniformed

services housing and benefits for their wives, but

required female members to demonstrate the “actual

dependency” of their husbands to qualify for the same

benefit); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50

L.Ed.2d 397 (1976) (adopting a “heightened scrutiny”

standard of review to evaluate legal distinctions based

on gender); Dothard v. Rawlingson, 433 U.S. 321, 97

S.Ct. 2720, 53 L.Ed.2d 786 (1977) (invalidating

Alabama’s height and weight requirements for prison guards that have the effect of excluding the majority of female candidates); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (finding affirmative action unfair if it resulted in reverse discrimination); United Stales v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (ruling that the all-male Virginia Military Institute’s discriminatory admissions policy violated women’s equal protection rights).

19

See Griswold v. Connecticut, 381 U.S. 479, 486, 85

S.Ct. 1678, 14 L.Ed.2d 510 (1965) (implying a right to

privacy in matters of contraception between married

people); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817,

18 L.Ed.2d 1010 (1967) (protecting an individual’s

choice to marry the person he or she loves); Roe v.

Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147

(1973) (finding an implied right to privacy protects a

woman’s choice in matters of abortion); Cruzan by

Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261,

110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (finding that

while the Constitution protects a person’s right to reject

life-preserving medical treatment (their “right to die”),

states can regulate that interest if the regulation is

reasonable).

20

Letter from Abraham Lincoln to the Hon. Leonard

Swett (May 30, 1860), in 4 The Collected Works of

Abraham Lincoln 57 (Roy P. Basler et al. eds.1953).

	  

19

 
 Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 1 of 98

PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 14-1167

TIMOTHY B. BOST IC; TONY C. TOWNLEY,

LONDON; CAROL SCH ALL; MARY

Plaintiffs − Appellees,

JOANNE HARRIS; JESSICA DUFF; C HRISTY BERGHOFF; VICTORIA KIDD, on behalf of themselve s and all other s similarly situated,

Intervenors,

v.

GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court,

Defendant – Appellant,

and

JANET M. RAINEY, in her official capacity as Sta te Registrar of Vital Record s; ROBERT F. M CDONNELL, in hi s official capacity as Governor of Virginia; KENNETH T. CUC CINELLI, II, in his official capacity as Attorney General of Virginia,

Defendants,

MICHÈLE MCQUIGG,

Intervenor/Defendant.

------------------------------------

DAVID A. ROBINSON; ALAN J. HAWKINS; JASON S. CARROLL; NORTH

CAROLINA VALUES COALITION;

LIBERTY, LIFE, AND LAW

FOUNDATION; SOC IAL SCIENCE PR OFESSORS; FAMIL Y RESEARCH

COUNCIL; VIRGINIA CATHOLIC CO NFERENCE, LLC; CENTER FOR

CONSTITUTIONAL JURI SPRUDENCE; STATE OF WEST VIRGINIA;

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 2 of 98

INSTITUTE FOR MA RRIAGE AND PUBLI C POLICY; HELEN M. ALVARE; STATE OF INDIANA; STATE OF A LABAMA; STATE OF ALA SKA; STATE OF ARIZONA; STA TE OF COLORADO; STATE OF I DAHO; STATE OF LOUISIANA; STATE OF MONTANA; ST ATE OF NEBRASKA ; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF SOU TH DAKOTA; STATE OF UTAH; S TATE OF WYOMING; WALLBUILDERS, LLC; LIBERTY COUNSEL; AMERICAN COLLEGE OF P EDIATRICIANS; SCHOLARS OF HISTORY AND RELA TED DISCIPLINES; AMERICAN LEADER SHIP FUND; ROBERT P. GEO RGE; SHERIF GIRGIS; RYAN T. AND ERSON; PAUL MCHUGH; UNITED STATES CONFER ENCE OF CATHOL IC BISHOPS; NATIONAL ASSOCIATION OF EVANGELI CALS; CHURCH OF JESUS CHRIST OF LATTER−DAY SAINTS; THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF T HE SOUTHERN BAP TIST CONVENTION; LUTHERAN CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS LIBERTY; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND; DAVID BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERICA; THE FAMILY FOUNDATION OF VIRGINIA,

Amici Supporting Appellant,

CONSTITUTIONAL LAW SCHOLAR S; ASHUTOSH

BHAGWAT; LEE

BOLLINGER; ERWIN CHEMERINSKY; WALTER DELLINGER; MICHAEL C.

DORF; LEE EPSTEIN; DANIEL FARBER; BARRY FRIEDMAN; MICHAEL

JAY GERHARDT, Professor; DEBORAH HELLMAN; J OHN CALVIN

JEFFRIES, JR.; LAWRENCE LESSIG; WILLIAM MARSHA LL; FRANK

MICHELMAN; JANE S. SCHACTER; CHRISTOPHER H . SCHROEDER;

SUZANNA SHERRY; GEOFFREY R. STONE; DAVID STRAUSS ; LAURENCE

H. TRIBE, Profes sor; WILLIAM VAN ALSTYNE; OUTSERVE−SLDN; THE

AMERICAN MILITA RY PARTNER AS SOCIATION; THE AMERICAN

SOCIOLOGICAL ASSOCIATION; VIRGINIA CONSTITUTIONAL LA

W

PROFESSORS; AMERICAN PSYCHOLOGICAL ASSOCIATION; THE AMERICAN

ACADEMY OF PEDI ATRICS; AMERICAN PSYCHIATRIC ASSOCIATION;

NATIONAL ASSOC IATION OF SO

CIAL WORKERS; VIRGINIA

PSYCHOLOGICAL ASSOCIATION; EQU ALITY NC; SOUT H CAROLINA

QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCIE

FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHAN A CARIGNAN;

MEGAN PARKER; TERRI BECK; LE SLIE ZANAGLIO; LEE KNIGHT

CAFFERY; DANA D RAA; SHAWN LONG ; CRAIG JOHNSON ; ESMERALDA

MEJIA;

CHRISTINA

GINTER−MEJIA;

CATO

INSTITUTE;

CONSTITUTIONAL ACCOUNTABILITY

CENTER; HI STORIANS OF

MARRIAGE; PETER W. BARDAGLIO; NORMA BASCH; STEPH ANIE COONTZ;

NANCY F. COTT; TOBY L. DITZ; A RIELA R. DUBLER; LAURA F.

EDWARDS; SARAH B ARRINGER GORDON; MICHAEL GROSSBE RG; HENDRIK

HARTOG; ELLEN HE RMAN; MARTHA HOD ES; LINDA K. KER BER; ALICE

KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN

MINTZ; ELIZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY

DRU STANLEY; BARBARA WELKE; PARENTS, FAMILIES AND FRIENDS OF

2

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 3 of 98

LESBIANS AND GAYS, INC.; KERRY ABRAMS, Albert Clark Tate,

Jr. Professor of Law , University of Virginia School of Law;

VIVIAN HAMILTON, Professor of Law , William and Mary;

MEREDITH HARBACH, Professor of Law , University of Richmond;

JOAN HEIFETZ HOLLINGER, John and Elizabeth Boalt Lecturer in

Residence, University of Califor nia, Berkeley Sc hool of Law;

COURTNEY G. JO SLIN, Professo r of Law , University of

California, Davis School of Law ; NAACP LEGAL D EFENSE AND

EDUCATION FUND, INC.; NATION

AL ASSOCIATION FOR

THE

ADVANCEMENT OF C OLORED PEOPLE; H OWARD UNIVERSITY SCHOOL OF

LAW CIVIL RIGHTS CLINIC; FAMILY EQUALITY COUNCIL; COLAGE;

GLMA: H EALTH PRO FESSIONALS ADVANCING LGBT EQUALITY; WILLIAM

N. ESKRIDGE, JR.; REBECCA L.

BROWN; DANIEL A. FARBER;

MICHAEL GERHARDT; JACK KNIGHT; ANDREW KOPPELM AN; MELISSA

LAMB SAUNDERS; NEIL S. SIEGEL; J ANA B. SINGER; HISTORIANS OF

ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS

UNITED FOR SEPARATION OF CHURCH AND STATE; BEND THE ARC: A

JEWISH PARTNERSHIP FOR JUSTIC E; HADASSAH, T HE WOMEN'S

ZIONIST ORGANIZATION OF AMERICA; HINDU AMERICAN FOUNDATION;

THE INTERFAITH ALLIANCE FOUN DATION; JAPANES E AMERICAN

CITIZENS LEAGUE; JEWISH SOCIA L POLICY ACTION NETWORK;

KESHET; METROPO LITAN COMMUNITY CHURCHES; MO RE LIGHT

PRESBYTERIANS; THE NATIONAL C OUNCIL OF JEWI SH WOMEN;

NEHIRIM; PEOPLE FOR THE

AMERICAN WAY

FOUNDATION;

PRESBYTERIAN WEL COME; RECONCILIN GWORKS: LUTHERAN S FOR FULL

PARTICIPATION; RELIGIOUS INSTI TUTE, INC.; SI KH AMERICAN

LEGAL DEFENSE A ND EDUCATION FU ND; SOCIETY FOR HUMANISTIC

JUDAISM; T'RUAH: THE RABBINIC CA LL FOR HUMAN RIG HTS; WOMEN'S

LEAGUE FOR CON SERVATIVE JUD AISM; COLUMBIA L AW SCHOOL

SEXUALITY AND GENDER LAW CLINIC; BISHOPS OF THE EPISCOPAL

CHURCH IN VIRGINIA; CENTRAL ATLANTIC CONFERENCE OF THE

UNITED CHURCH O F CHRIST; CENTR AL CONFERENCE OF AMERICAN

RABBIS; MORMONS FOR EQUALITY; RECONSTRUCTIONIST RABBINICAL

ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE AND JEWISH

RECONSTRUCTIONIST COMMUNITIES; UN ION FOR REFORM J UDAISM; THE

UNITARIAN UNIVERSALIST ASSOCIATION; AFFIRMATION; COVENAN T

NETWORK OF PRES BYTERIANS; METHODIST FEDERATION FOR SOCIAL

ACTION; MORE L IGHT P RESBYTERIANS; PRESBYTERI AN WELCOME;

RECONCILING MINISTRIES NETWORK; RECONCILINGWORKS: LUTHERANS

FOR FULL PARTICIPATION; RELIGIOUS INSTITUTE, INC.; WOMEN OF

REFORM JUDAISM; 28 EMPLOYERS AND ORGANIZATIONS REPRESENTING

EMPLOYERS; COM MONWEALTH OF MASSACHUSETTS ; STATE OF

CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF COLUMBIA;

STATE OF ILLINOIS; STATE OF IOWA ; STATE OF MAINE ; STATE OF

MARYLAND; STATE OF NEW HAMPSHIRE; STATE OF NEW M EXICO; STATE

OF NEW YORK; ST ATE OF OREGON; STATE OF VERMONT; STATE OF

WASHINGTON; GARY J. GATES; NAT IONAL AND WESTERN STATES

3

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 4 of 98

WOMEN'S RIGHTS ORGANIZATIONS; VIRGINIA CHAP

TER OF THE

AMERICAN ACADEMY OF

MATRIMONIAL LAWYERS; TH E NATIONAL

WOMEN'S LAW CENTER; EQUAL RIGHTS ADVOCATES; LEGAL MOMENTUM;

NATIONAL ASSOCIATION OF WOMEN LA WYERS; NATION AL PARTNERSHIP

FOR WOMEN & FAMI LIES; SOUTHWEST WOMEN'S LAW CENTER; WOMEN'S

LAW PROJECT; PROFESSORS OF LAW ASSOCIATED WITH THE WILLIAMS

INSTITUTE; BAY AREA LAWYERS

FOR INDIVIDU AL FREEDOM;

LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIG

HTS; PUBLIC

INTEREST ORGA NIZATIONS; BAR ASSOCIATIONS; FAMILY LAW AND

CONFLICT OF LAWS PROFESSORS; GAY AND LESBIAN ADV OCATES AND

DEFENDERS; PEOPLE OF FAITH FOR EQUALITY IN VIRGINIA;

CELEBRATION CE NTER FOR SPI RITUAL LIVING; CLARENDON

PRESBYTERIAN CHURCH; COMMONWEALTH BAPTIST CHURCH

;

CONGREGATION OR AMI; HOPE UNITED CHURCH OF CHRI ST; LITTLE

RIVER UCC; MET ROPOLITAN COMMUNITY CHURCH

OF NORTHERN

VIRGINIA; MT. VE RNON UNITARIAN C HURCH; ST. JAMES UCC,; ST.

JOHN'S UCC; N EW LIFE METROPOLITAN COMMUNITY CHURCH;

UNITARIAN UNIVE RSALIST FELLOWS HIP OF THE

PENINSULA;

UNITARIAN UNIVE RSALIST CONGREG ATION OF STERL ING; UNITED

CHURCH OF CHRIST OF FREDERICKSBURG; UNITARIAN UN IVERSALIST

CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARIE HULM ADAM; REV.

MARTY ANDERSON; REV ROBIN ANDERSON; REV. VERNE A RENS; RABBI

LIA BASS; REV. JOSEPH G. BEATTIE; REV. SUE BRO WNING; REV.

JIM BUNDY; REV. MARK BYRD; REV . STEVEN C. CLUNN; REV. DR.

JOHN COPERHAVER; RABBI GARY CRE DITOR; REV. DAV ID ENSIGN;

REV. HENRY

FAIRMAN; RABBI

JESSE GALLOP; REV. TOM

GERSTENLAUER; REV. ROBIN H. GORS LINE; REV. TRISH HALL; REV.

WARREN HAMMONDS; REV. JON HEASLE T; REV. DOUGLAS HODGES; REV.

PHYLLIS HUBBELL; REV. STEPHEN G . HYDE; REV. JA NET JAMES;

REV. JOHN MANWELL; REV. JAMES W. MCNEAL; REV. MARC BOSWELL;

REV. ANDREW CLI VE MILLARD; REV . DR. MELANIE M ILLER; RE V.

AMBER NEUROTH; REV. JAMES PAPILE; REV. LINDA OLS ON PEEBLES;

REV. DON PRANGE ; RABBI MICHAEL RAGOZIN; RABBI BEN ROMER;

REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY

SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURIANO; REV. ROB

VAUGHN; REV. DANIEL VELEZ−RIVERA; REV. KATE R. WALKER; REV.

TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Amici Supporting Appellees.

4

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 5 of 98

No. 14-1169

TIMOTHY B. BOST IC; TONY C. TOWNLEY,

LONDON; CAROL SCH ALL; MARY

Plaintiffs − Appellees,

JOANNE HARRIS; JESSICA DUFF; C HRISTY BERGHOFF; VICTORIA KIDD, on behalf of themselves and all other s similarly situated,

Intervenors,

v.

JANET M. RAINEY, in her official capacity as Sta te Registrar of Vital Records,

Defendant – Appellant,

and

GEORGE E. SCHAEFER, III, in his official capacity as the

Clerk of Court for Norfolk

Circuit Court; ROBERT F.

MCDONNELL, in his official capacity as Governor of Virginia;

KENNETH T. CUCC INELLI, II, in his official capacity as

Attorney General of Virginia,

Defendants,

MICHÈLE MCQUIGG,

Intervenor/Defendant.

------------------------------------

DAVID A. ROBINSON; ALAN J. HAWKINS; JASON S. CARROLL; NORTH

CAROLINA VALUES COALITION;

LIBERTY, LIFE, AND LAW

FOUNDATION; SOC IAL SCIENCE PR OFESSORS; FAMIL Y RESEARCH

COUNCIL; VIRGINIA CATHOLIC CO NFERENCE, LLC; CENTER FOR

CONSTITUTIONAL JURISPRUDENCE; STATE

OF WEST VIRGINIA;

INSTITUTE FOR MA RRIAGE AND PUBLI C POLICY; HELEN M. ALVARE;

STATE OF INDIANA; STATE OF A LABAMA; STATE OF ALA SKA; STATE

OF ARIZONA; STA TE OF COLORADO; STATE OF I DAHO; STATE OF

5

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 6 of 98

LOUISIANA; STATE OF MONTANA; ST ATE OF NEBRASKA ; STATE OF OKLAHOMA; STATE OF SOUTH C AROLINA; STATE OF SOU TH DAKOTA; STATE OF UTAH; S TATE OF WYOMING; WALLBUILDERS, LLC; LIBERTY COUNSEL; AMERICAN COLLEGE OF P EDIATRICIANS; SCHOLARS OF HISTORY AND RELA TED DISCIPLINES; AMERICAN LEADER SHIP FUND; ROBERT P. GEORGE; SHERIF GIRGIS; RYAN T. AND ERSON; PAUL MCHUGH; UNITED STATES CONFER ENCE OF CATHOL IC BISHOPS; NATIONAL ASSOCIATION OF EVANGELICALS; CHURCH OF JESUS CHRIST OF LATTER−DAY SAINTS; THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF T HE SOUTHERN BAP TIST CONVENTION; LUTHERAN CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS LIBERTY; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND; DAVID BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERICA; THE FAMILY FOUNDATION OF VIRGINIA,

Amici Supporting Appellant,

CONSTITUTIONAL LAW SCHOLAR S; ASHUTOSH

BHAGWAT; LEE

BOLLINGER; ERWIN CHEMERINSKY; WALTER DELLINGER; MICHAEL C.

DORF; LEE EPSTE IN; DANIEL FARBER; BARRY FRIEDMAN; MICHAEL

JAY GERHARDT, Professor; DEBORAH HELLMAN; J OHN CALVIN

JEFFRIES, JR.; LAWRENCE LESSIG; WILLIAM MARSHA LL; FRANK

MICHELMAN; JANE S. SCHACTER; CHRISTOPHER H . SCHROEDER;

SUZANNA SHERRY; GEOFFREY R. STON E; DAVID STRAUSS ; LAURENCE

H. TRIBE, Profes sor; WILLIAM VAN ALSTYNE; OUTSERVE−SLDN; THE

AMERICAN MILITA RY PARTNER AS SOCIATION; THE AMERICAN

SOCIOLOGICAL ASSOCIATION; VIRGINIA CONSTITUTIONAL LA

W

PROFESSORS; AMERICAN PSYCHOLOGICAL ASSOCIATION; THE AMERICAN

ACADEMY OF PEDI ATRICS; AMERICAN PSYCHIATRIC ASSOCIATION;

NATIONAL ASSOC IATION OF SO

CIAL WORKERS; VIRGINIA

PSYCHOLOGICAL ASSOCIATION; EQU ALITY NC; SOUT H CAROLINA

QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCIE

FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN;

MEGAN PARKER; TERRI BECK; LE SLIE ZANAGLIO; LEE KNIGHT

CAFFERY; DANA D RAA; SHAWN LONG ; CRAIG JOHNSON ; ESMERALDA

MEJIA;

CHRISTINA

GINTER−MEJIA;

CATO

INSTITUTE;

CONSTITUTIONAL ACCOUNTABILITY

CENTER; HI STORIANS OF

MARRIAGE; PETER W. BARDAGLIO; NO RMA BASCH; STEPH ANIE COONTZ;

NANCY F. COTT; TOBY L. DITZ; A RIELA R. DUBLER; LAURA F.

EDWARDS; SARAH B ARRINGER GORDON; MICHAEL GROSSBE RG; HENDRIK

HARTOG; ELLEN HE RMAN; MARTHA HOD ES; LINDA K. KER BER; ALICE

KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN

MINTZ; ELIZABETH PLECK; CAROLE SHAMMAS; MARY L. SHANLEY; AMY

DRU STANLEY; BARBARA WELKE; PARENTS, FAMILIES AND FRIENDS OF

LESBIANS AND GAYS, INC.; KERRY ABRAMS, Albert Clark Tate,

Jr. Professor of Law , University of Virginia School of Law;

VIVIAN HAMILTON, Professor o f Law , William and Mary;

6

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 7 of 98

MEREDITH HARBACH, Professor of Law , University of Richmond;

JOAN HEIFETZ HOLLINGER, John and Elizabeth Boalt Lecturer in

Residence, University of Califor nia, Berkeley Sc hool of Law;

COURTNEY G. JO SLIN, Professor of Law , University of

California, Davis School of Law ; NAACP LEGAL D EFENSE AND

EDUCATION FUND, INC.; NATION

AL ASSOCIATION FOR

THE

ADVANCEMENT OF C OLORED PEOPLE; H OWARD UNIVERSITY SCHOOL OF

LAW CIVIL RIGHTS CLINIC; FAMILY EQUALITY COUNCIL; COLAGE;

GLMA: HEALTH PRO FESSIONALS A DVANCING LGBT EQUALITY; WILLIAM

N. ESKRIDGE, JR.; REBECCA L.

BROWN; DANIEL A. FARBER;

MICHAEL GERHARDT; JACK KNIGHT; ANDREW KOPPELM AN; MELISSA

LAMB SAUNDERS; NEIL S. SIEGEL; J ANA B. SINGER; HISTORIANS OF

ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS

UNITED FOR SEPARATION OF CHURCH AND STATE; BEND THE ARC: A

JEWISH PARTNERSHIP FOR JUSTIC E; HADASSAH, T HE WOMEN'S

ZIONIST ORGANIZATION OF AMERICA; HINDU AMERICAN FOUNDATION;

THE INTERFAITH ALLIANCE FOUN DATION; JAPANES E AMERICAN

CITIZENS LEAGUE; JEWISH SOCIA L POLICY ACTION NETWORK;

KESHET; METROPO LITAN COMMUNITY CHURCHES; MO RE LIGHT

PRESBYTERIANS; THE NATIONAL C OUNCIL OF JEWI SH WOMEN;

NEHIRIM; PEOPLE FOR THE

AMERICAN WAY

FOUNDATION;

PRESBYTERIAN WEL COME; RECONCILIN GWORKS: LUTHERAN S FOR FULL

PARTICIPATION; RELIGIOUS INSTI TUTE, INC.; SI KH AMERICAN

LEGAL DEFENSE A ND EDUCATION FU ND; SOCIETY FOR HUMANISTIC

JUDAISM; T'RUAH: THE RABBINIC CA LL FOR HUMAN RIG HTS; WOMEN'S

LEAGUE FOR CON SERVATIVE JUD AISM; COLUMBIA L AW SCHOOL

SEXUALITY AND GENDER LAW CLINIC; BISHOPS OF THE EPISCOPAL

CHURCH IN VIRGINIA; CENTRAL ATLANTIC CONFERENCE OF THE

UNITED CHURCH O F CHRIST; CENTR AL CONFERENCE OF AMERICAN

RABBIS; MORMONS FOR EQUALITY; RECONSTRUCTIONIST RABBINICAL

ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE AND JEWISH

RECONSTRUCTIONIST COMMUNITIES; UN ION FOR REFORM J UDAISM; THE

UNITARIAN UNIVERSALIST ASSOCIATION; AFFIRMATION; COVENAN T

NETWORK OF PRES BYTERIANS; METHODIST FEDERATION FOR SOCIAL

ACTION; MORE L IGHT P RESBYTERIANS; PRESBYTERI AN WELCOME;

RECONCILING MINISTRIES NETWORK; RECONCILINGWORKS: LUTHERANS

FOR FULL PARTICIPATION; RELIGIOUS INSTITUTE, INC.; WOMEN OF

REFORM JUDAISM; 28 EMPLOYERS AND ORGANIZATIONS REPRESENTING

EMPLOYERS; COM MONWEALTH OF MASSACHUSETTS ; STATE OF

CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF COLUMBIA;

STATE OF ILLINOIS; STATE OF IOWA ; STATE OF MAINE ; STATE OF

MARYLAND; STATE OF NEW HAMPSHIRE; STATE OF NEW M EXICO; STATE

OF NEW YORK; ST ATE OF OREGON; STATE OF VERMONT; STATE OF

WASHINGTON; GARY J. GATES; NAT IONAL AND WESTERN STATES

WOMEN'S RIGHTS ORGANIZATIONS; VIRGINIA CHAP

TER OF THE

AMERICAN ACADEMY OF

MATRIMONIAL LAWYERS; TH E NATIONAL

WOMEN'S LAW CENTER; EQUAL RIGHTS ADVOCATES; LEGAL MOMENTUM;

7

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 8 of 98

NATIONAL ASSOCIATION OF WOMEN LA WYERS; NATION AL PARTNERSHIP

FOR WOMEN & FAMI LIES; SOUTHWEST WOMEN'S LAW CENTER; WOMEN'S

LAW PROJECT; PROFESSORS OF LAW ASSOCIATED WITH THE WILLIAMS

INSTITUTE; BAY AREA LAWYERS

FOR INDIVIDU AL FREEDOM;

LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIG

HTS; PUBLIC

INTEREST ORGA NIZATIONS; BAR ASSOCIATIONS; FAMILY LAW AND

CONFLICT OF LAWS PROFESSORS; GAY AND LESBIAN ADV OCATES AND

DEFENDERS; PEOPLE OF FAITH FOR EQUALITY IN VIRGINIA;

CELEBRATION CE NTER FOR SPI RITUAL LIVING; CLARENDON

PRESBYTERIAN CHURCH; COMMONWEALTH BAPTIST CHURCH

;

CONGREGATION OR AMI; HOPE UNITED CHURCH OF CHRI ST; LITTLE

RIVER UCC; MET ROPOLITAN COMMUNITY CHURCH

OF NORTHERN

VIRGINIA; MT. VE RNON UNITARIAN C HURCH; ST. JAMES UCC,; ST.

JOHN'S UCC; N EW LIFE METROPOLITAN COMMUNITY CHURCH;

UNITARIAN UNIVE RSALIST FELLOWS HIP OF THE

PENINSULA;

UNITARIAN UNIVE RSALIST CONGREG ATION OF STERL ING; UNITED

CHURCH OF CHRIST OF FREDERICKSBURG; UNITARIAN UN IVERSALIST

CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARIE HULM ADAM; REV.

MARTY ANDERSON; REV ROBIN ANDERSON; REV. VERNE A RENS; RABBI

LIA BASS; REV. JOSEPH G. BEATTIE; REV. SUE BRO WNING; REV.

JIM BUNDY; REV. MARK BYRD; REV . STEVEN C. CLUNN; REV. DR.

JOHN COPERHAVER; RABBI GARY CRE DITOR; REV. DAV ID ENSIGN;

REV. HENRY

FAIRMAN; RABBI

JESSE GALLOP; REV. TOM

GERSTENLAUER; REV. ROBIN H. GORS LINE; REV. TRISH HALL; REV.

WARREN HAMMONDS; REV. JON HEASLE T; REV. DOUGLAS HODGES; REV.

PHYLLIS HUBBELL; REV. STEPHEN G . HYDE; REV. JA NET JAMES;

REV. JOHN MANWELL; REV. JAMES W. MCNEAL; REV. MARC BOSWELL;

REV. ANDREW CLI VE MILLARD; REV . DR. MELANIE M ILLER; RE V.

AMBER NEUROTH; REV. JAMES PAPILE; REV. LINDA OLS ON PEEBLES;

REV. DON PRANGE ; RABBI MICHAEL RAGOZIN; RABBI BEN ROMER;

REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY

SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURIANO; REV. ROB

VAUGHN; REV. DANIEL VELEZ−RIVERA; REV. KATE R. WALKER; REV.

TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Amici Supporting Appellees.

8

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 9 of 98

No. 14-1173

TIMOTHY B. BOST IC; TONY C. TOWNLEY,

LONDON; CAROL SCH ALL; MARY

Plaintiffs − Appellees,

JOANNE HARRIS; JESSICA DUFF; C HRISTY BERGHOFF; VICTORIA KIDD, on behalf of themselves and all other s similarly situated,

Intervenors,

v.

MICHÈLE MCQUIGG,

Intervenor/Defendant – Appellant,

and

GEORGE E. SCHAEFER, III, in his official capacity as the

Clerk of Court f or Norfolk Circu it Court; JANET M. RAINEY,

in her officia l capacity as State Registr ar of Vi tal

Records; ROBERT F. MCDONNELL, in his official c apacity as

Governor of Virginia; KENNETH T. CUCCINELLI, II, in hi

s

official capacity as Attorney General of Virginia,

Defendants.

------------------------------------

DAVID A. ROBINSON; ALAN J. HAWKI NS; JASON S. CARROLL; NORTH

CAROLINA VALUES COALITION;

LIBERTY, LIFE, AND LAW

FOUNDATION; SOC IAL SCIENCE PR OFESSORS; FAMIL Y RESEARCH

COUNCIL; VIRGINIA CATHOLIC CO NFERENCE, LLC; CENTER FOR

CONSTITUTIONAL JURISPRUDENCE; STATE

OF WEST VIRGINIA;

INSTITUTE FOR MARRIAGE AND PUBLI C POLICY; HELEN M. ALVARE;

STATE OF INDIANA; STATE OF A LABAMA; STATE OF ALA SKA; STATE

OF ARIZONA; STA TE OF COLORADO; STATE OF I DAHO; STATE OF

LOUISIANA; STATE OF MONTANA; ST ATE OF NEBRASKA ; STATE OF

OKLAHOMA; STATE OF SOUTH CAROLINA; STAT E OF SOU TH DAKOTA;

STATE OF UTAH; S TATE OF WYOMING; WALLBUILDERS, LLC; LIBERTY

COUNSEL; AMERICAN COLLEGE OF P EDIATRICIANS; SCHOLARS OF

9

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 10 of 98

HISTORY AND RELA TED DISCIPLINES; AMERICAN LEADER SHIP FUND; ROBERT P. GEORGE; SHERIF GIRGIS; RYAN T. AND ERSON; PAUL MCHUGH; UNITED STATES CONFER ENCE OF CATHOL IC BISHOPS; NATIONAL ASSOCIATION OF EVANGELI CALS; CHURCH OF JESUS CHRIST OF LATTER−DAY SAINTS; THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF T HE SOUTHERN BAP TIST CONVENTION; LUTHERAN CHURCH−MISSOURI SYNOD; THE BECKET FUND FOR RELIGIOUS LIBERTY; EAGLE FORUM EDUCATION AND LEGAL DEFENSE FUND; DAVID BOYLE; ROBERT OSCAR LOPEZ; CONCERNED WOMEN FOR AMERICA; THE FAMILY FOUNDATION OF VIRGINIA,

Amici Supporting Appellant,

CONSTITUTIONAL LAW SCHOLAR S; ASHUTOSH

BHAGWAT; LEE

BOLLINGER; ERWIN CHEMERINSKY; WALTER DELLINGER; MICHAEL C.

DORF; LEE EPSTEIN; DANIEL FA RBER; BARRY FRIEDMAN; MICHAEL

JAY GERHARDT, Professor; DEBORAH HELLMAN; J OHN CALVIN

JEFFRIES, JR.; LAWRENCE LESSIG; WILLIAM MARSHA LL; FRANK

MICHELMAN; JANE S. SCHACTER; CHRISTOPHER H . SCHROEDER;

SUZANNA SHERRY; GEOFFREY R. STON E; DAVID STRAUSS ; LAURENCE

H. TRIBE, Professor; WILLIAM VAN ALSTYNE; OUTSERVE−SLDN; THE

AMERICAN MILITA RY PARTNER AS SOCIATION; THE AMERICAN

SOCIOLOGICAL ASSOCIATION; VIRGINIA CONSTITUTIONAL LA

W

PROFESSORS; AMERICAN PSYCHOLOGICAL ASSOCIATION; THE AMERICAN

ACADEMY OF PEDI ATRICS; AMERICA N PSYCHIATRIC ASSOCIATION;

NATIONAL ASSOC IATION OF SO

CIAL WORKERS; VIRGINIA

PSYCHOLOGICAL ASSOCIATION; EQU ALITY NC; SOUT H CAROLINA

QUALITY COALITION; CHANTELLE FISHER−BORNE; MARCIE

FISHER−BORNE; CRYSTAL HENDRIX; LEIGH SMITH; SHANA CARIGNAN;

MEGAN PARKER; TERRI BECK; LE SLIE ZANAGLIO; LEE KNIGHT

CAFFERY; DANA D RAA; SHAWN LONG ; CRAIG JOHNSON ; ESMERALDA

MEJIA;

CHRISTINA

GINTER−MEJIA;

CATO

INSTITUTE;

CONSTITUTIONAL ACCOUNTABILITY

CENTER; HI STORIANS OF

MARRIAGE; PETER W. BARDAGLIO; NO RMA BASCH; STEPH ANIE COONTZ;

NANCY F. COTT; TOBY L. DITZ; A RIELA R. DUBLER; LAURA F.

EDWARDS; SARAH B ARRINGER GORDON; MICHAEL GROSSBE RG; HENDRIK

HARTOG; ELLEN HE RMAN; MARTHA HOD ES; LINDA K. KER BER; ALICE

KESSLER−HARRIS; ELAINE TYLER MAY; SERENA MAYERI; STEVEN

MINTZ; ELIZABETH PLECK; C AROLE SHAMMAS; MARY L. SHANLEY; AMY

DRU STANLEY; BARBARA WELKE; PARENTS, FAMILIES AND FRIENDS OF

LESBIANS AND GAYS, INC.; KERRY ABRAMS, Albert Clark Tate,

Jr. Professor of Law , University of Virginia School of Law;

VIVIAN HAMILTON, Professor of Law

, William and Mary;

MEREDITH HARBACH, Professor of Law , University of Richmond;

JOAN HEIFETZ HOLLINGER, John and Elizabeth Boalt Lecturer in

Residence, University of Califor nia, Berkeley Sc hool of Law;

COURTNEY G. JO SLIN, Professor of Law , University of

10

Appeal: 14-1167 Doc: 234

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California, Davis School of Law ; NAACP LEGAL D EFENSE AND

EDUCATION FUND, INC.; NATION

AL ASSOCIATION FOR

THE

ADVANCEMENT OF C OLORED PEOPLE; H OWARD UNIVERSITY SCHOOL OF

LAW CIVIL RIGHTS CLINIC; FAMILY EQUALITY COUNCIL; COLAGE;

GLMA: HEALTH PRO FESSIONALS ADVANCING LGBT EQUALITY; WILLIAM

N. ESKRIDGE, JR.; REBECCA L.

BROWN; DANIEL A. FARBER;

MICHAEL GERHARDT; JACK KNIGHT; ANDREW KOPPELM AN; MELISSA

LAMB SAUNDERS; NEIL S. SIEGEL; J ANA B. SINGER; HISTORIANS OF

ANTI−GAY DISCRIMINATION; ANTI−DEFAMATION LEAGUE; AMERICANS

UNITED FOR SEPARATION OF CHURCH AND STATE; BEND THE ARC: A

JEWISH PARTNERSHIP FOR JUSTIC E; HADASSAH, T HE WOMEN'S

ZIONIST ORGANIZATION OF AMERICA; HINDU AMERICAN FOUNDATION;

THE INTERFAITH ALLIANCE FOUN DATION; JAPANES E AMERICAN

CITIZENS LEAGUE; JEWISH SOCIA L POLICY ACTION NETWORK;

KESHET; METROPO LITAN COMMUNITY CHURCHES; MO RE LIGHT

PRESBYTERIANS; THE NATIONAL C OUNCIL OF JEWI SH WOMEN;

NEHIRIM; PEOPLE FOR THE

AMERICAN WAY

FOUNDATION;

PRESBYTERIAN WEL COME; RECONCILIN GWORKS: LUTHERAN S FOR FULL

PARTICIPATION; RELIGIOUS INSTI TUTE, INC.; SI KH AMERICAN

LEGAL DEFENSE A ND EDUCATION FU ND; SOCIETY FOR HUMANISTIC

JUDAISM; T'RUAH: THE RABBINIC CA LL FOR HUMAN RIG HTS; WOMEN'S

LEAGUE FOR CON SERVATIVE JUD AISM; COLUMBIA L AW SCHOOL

SEXUALITY AND GENDER LAW CLINIC; BISHOPS OF THE EPISCOPAL

CHURCH IN VIRGINIA; CENTRAL ATLANTIC CONFERENCE OF THE

UNITED CHURCH O F CHRIST; CENTR AL CONFERENCE OF AMERICAN

RABBIS; MORMONS FOR EQUALITY; RECONSTRUCTIONIST RABBINICAL

ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE AND JEWISH

RECONSTRUCTIONIST COMMUNITIES; UN ION FOR REFORM J UDAISM; THE

UNITARIAN UNIVERSALIST ASSOCIATION; AFFIRMATION; COVENAN T

NETWORK OF PRES BYTERIANS; METHODIST FEDERATION FOR SOCIAL

ACTION; MORE L IGHT P RESBYTERIANS; PRESBYTERI AN WELCOME;

RECONCILING MINISTRIES NETWORK; RECONCILINGWORKS: LUTHERANS

FOR FULL PARTICIPATION; RELIGIOUS INSTITUTE, INC.; WOMEN OF

REFORM JUDAISM; 28 EMPLOYERS AND ORGANIZATIONS REPRESENTING

EMPLOYERS; COM MONWEALTH OF MASSACHUSETTS ; STATE OF

CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF COLUMBIA;

STATE OF ILLINOIS; STATE OF IOWA ; STATE OF MAINE ; STATE OF

MARYLAND; STATE OF NEW HAMPSHIRE; STATE OF NEW M EXICO; STATE

OF NEW YORK; ST ATE OF OREGON; STATE OF VERMONT; STATE OF

WASHINGTON; GARY J. GATES; NAT IONAL AND WESTERN STATES

WOMEN'S RIGHTS ORGANIZATIONS; VIRGINIA CHAP

TER OF THE

AMERICAN ACADEMY OF

MATRIMONIAL LAWYERS; TH E NATIONAL

WOMEN'S LAW CENTER; EQUAL RIGHTS ADVOCATES; LEGAL MOMENTUM;

NATIONAL ASSOCIATION OF WOMEN LA WYERS; NATION AL PARTNERSHIP

FOR WOMEN & FAMI LIES; SOUTHWEST WOMEN'S LAW CENTER; WOMEN'S

LAW PROJECT; PROFESSORS OF LAW ASSOCIATED WITH THE WILLIAMS

INSTITUTE; BAY AREA LAWYERS

FOR INDIVIDU AL FREEDOM;

11

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 12 of 98

LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIG

HTS; PUBLIC

INTEREST ORGA NIZATIONS; BAR ASSOCIATIONS; FAMILY LAW AND

CONFLICT OF LAWS PROFESSORS; GAY AND LESBIAN ADV OCATES AND

DEFENDERS; PEOPLE OF FAITH FOR EQUALITY IN VIRGINIA;

CELEBRATION CE NTER FOR SPI RITUAL LIVING; CLARENDON

PRESBYTERIAN CHURCH; COMMONWEALTH BAPTIST CHURCH

;

CONGREGATION OR AMI; HOPE UNITED CHURCH OF CHRI ST; LITTLE

RIVER UCC; MET ROPOLITAN COMMUNITY CHURCH

OF NORTHERN

VIRGINIA; MT. VE RNON UNITARIAN C HURCH; ST. JAMES UCC,; ST.

JOHN'S UCC; N EW LIFE METROPOLITAN COMMUNITY CHURCH;

UNITARIAN UNIVE RSALIST FELLOWS HIP OF THE

PENINSULA;

UNITARIAN UNIVE RSALIST CONGREG ATION OF STERL ING; UNITED

CHURCH OF CHRIST OF FREDERICKSBURG; UNITARIAN UN IVERSALIST

CHURCH OF LOUDOUN; ANDREW MERTZ; REV. MARIE HULM ADAM; REV.

MARTY ANDERSON; REV ROBIN ANDERSON; REV. VERNE A RENS; RABBI

LIA BASS; REV. JOSEPH G. BEATTIE; REV. SUE BRO WNING; REV.

JIM BUNDY; REV. MARK BYRD; REV . STEVEN C. CLUNN; REV. DR.

JOHN COPERHAVER; RABBI GARY CRE DITOR; REV. DAV ID ENSIGN;

REV. HENRY

FAIRMAN; RABBI

JESSE GALLOP; REV. TOM

GERSTENLAUER; REV. ROBIN H. GORS LINE; REV. TRISH HALL; REV.

WARREN HAMMONDS; REV. JON HEASLE T; REV. DOUGLAS HODGES; REV.

PHYLLIS HUBBELL; REV. STEPHEN G . HYDE; REV. JA NET JAMES;

REV. JOHN MANWELL; REV. JAMES W. MCNEAL; REV. MARC BOSWELL;

REV. ANDREW CLI VE MILLARD; REV . DR. MELANIE M ILLER; RE V.

AMBER NEUROTH; REV. JAMES PAPILE; REV. LINDA OLS ON PEEBLES;

REV. DON PRANGE ; RABBI MICHAEL RAGOZIN; RABBI BEN ROMER;

REV. JENNIFER RYU; REV. ANYA SAMMLER−MICHAEL; REV. AMY

SCHWARTZMAN; REV. DANNY SPEARS; REV. MARK SURIANO; REV. ROB

VAUGHN; REV. DANIEL VELEZ−RIVERA; REV. KATE R. WALKER; REV.

TERRYE WILLIAMS; REV. DR. KAREN−MARIE YUST,

Amici Supporting Appellees.

Appeals from the United States District Court f or the Eastern District of Vir ginia, at Norfolk. Arenda L. Wright Allen , District Judge. (2:13-cv-00395-AWA-LRL)

Argued: May 13, 2014

Decided: July 28, 2014

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

12

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Affirmed by published opinion. Judge Floyd wrote the majority opinion, in which Judge Gregory joined. Judge Niemeyer wrote a separate dissenting opinion.

ARGUED: David Brandt Oakley, POOLE MA HONEY PC, Chesapeak e,

Virginia; David Austin Robert Nimocks, ALLIANCE DEFE

NDING

FREEDOM, Washington, D.C., for Appellants George E. Schaefer,

III and Mich èle McQuigg. Stuart Alan Raphael, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant

Janet M. Rainey. Theodore B. Olson, GIBSON, DUNN & CRUTCHER,

LLP, Washington, D.C., for Appel lees. James D. Esseks, AMERICAN

CIVIL LIBERTIES UNION, New York, New York, for Intervenors. ON

BRIEF: Jeffrey F. Brooke,

POOLE MAHONEY PC, Chesapeake,

Virginia, for A ppellant George E. Schaefer, III. Byron J.

Babione, Kenneth J. Connelly,

J. Caleb Da lton, ALLIANCE

DEFENDING FREEDOM, Scottsdale, A rizona, for Appe llant Michèle B.

McQuigg. Mark R . Herring, Attor ney General, Cynthia E. Hudson,

Chief Deputy A ttorney General, Rhodes B. R itenour, Deputy

Attorney General, Allyson K. Tysinger, Senior As sistant Attorney

General, Catherine Crooks Hill, Senior Assistant Attorney

General, Trevor S. Cox, Deputy S olicitor General, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, V irginia, for Appellant

Janet M. Rainey.

David Boies, Armonk, New York, William A.

Isaacson, Washington, D.C., Jeremy M. Goldman, Oakland,

California, Robert Silver, Joshu a I. Schiller, B OIES, SCHILLER &

FLEXNER LLP, New York, New York; Theodore J. Boutrou

s, Jr.,

Joshua S. Lipshu tz, GIBSON, DUNN & CRUTCHER LLP , Los Angeles,

California; Thomas B. Shuttlewor th, Robert E. Ru loff, Charles B.

Lustig, Andrew M. Hendrick, Erik C. Porcaro, SHUTTLEWORTH,

RULOFF, SWAIN, HADDAD & MO

RECOCK, P.C., Virginia Beach,

Virginia, for Appellees. Rebecca K. Glenberg, AMERICAN CIVIL

LIBERTIES UNION OF VIRGINIA FOUNDATION

, INC., Richmond,

Virginia; Joshua A. Block, A

MERICAN CIVIL LIBERTIES UNION

FOUNDATION, New York, New Yor k; Gregory R. Nevins, Tara L.

Borelli, LAMBDA LEGAL DEFENSE AND EDUCATION FUND , INC., Atlanta,

Georgia; Paul M. Smith, Luke C. Platzer, Mark P. Gaber, JENNER &

BLOCK LLP, Washington, D.C., for Intervenors. David A.

Robinson, North Haven, Connecticut, as Amicus. Lynn D. Wardle,

BRIGHAM YOUNG U NIVERSITY LAW S CHOOL, Provo, U tah; William C.

Duncan, MARRIAGE LAW FOUNDATION, Lehi, Utah, for Amici Alan J.

Hawkins and Jason S. Carroll. Deborah J. Dewart, DEBORAH J.

DEWART, ATTORNEY AT LAW, Swansboro, North Carolina, for Amici

North Carolina Values Coalition and Libert y, Life, and Law

Foundation. Steve C. Taylor, ALLIANCE LEGAL GROUP, Chesapeake,

Virginia, for Am icus Social Scie nce Professors. Paul Benjamin

13

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Filed: 07/28/2014 Pg: 14 of 98

Linton, Northbrook, Illinois, for Amicus Family Research

Council. John C. Eastman,

Anthony T. Cas o, Center for

Constitutional Jurisprudence, CHAPMAN UNIVERSITY DALE E. FOWLER

SCHOOL OF LAW, Orange, Californ ia, for Amici V irginia Catholic

Conference, LLC and Center for Constitutional Jurisprudence.

Patrick Morrisey, Attorney Gener al, Julie Marie Blake, Assistant

Attorney General , Elbert Lin, Solicitor General , OFFICE OF THE

WEST VIRGINIA AT TORNEY GENERAL, Charleston, West Virginia, for

Amicus State of West Virginia. D. John Sauer, St. Louis,

Missouri, for Am icus Institute f or Marriage and Public Policy.

Henry P. W all, Columbia, South Carolina, for Amicus Helen M.

Alvare. Gregory F. Zoeller, Att orney General, T homas M. Fisher,

Solicitor General, OFFICE OF THE ATTORNEY GENERA L, Indianapolis,

Indiana; Luther Strange, Attorney General, OFFICE OF THE

ATTORNEY GENERAL O F ALABAMA, Montgomery, Alabama; Michael C.

Geraghty, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

ALASKA, Juneau, Alaska; Thomas C. Horne, Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, P hoenix, Arizona;

John Suthers, At torney General, OFFICE OF THE A TTORNEY GENERAL

OF COLORADO, De nver, Colorado; Lawrence G. W asden, Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF IDAHO , Boise, Idaho;

James D. "Buddy " Caldwell, Att orney General, OFFICE OF THE

ATTORNEY GENERAL OF LOUISIANA , Baton Rouge, Lou isiana; Timothy

C. Fox, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

MONTANA, Helena, Montana; Jon Bruning, Attorney General, OFFICE

OF THE ATTORNEY GENERAL OF NEBRA SKA, Lincoln, Ne braska; E. Scott

Pruitt, Attorney General, OFFICE OF THE ATTOR

NEY GENERAL OF

OKLAHOMA, Oklahoma City, Oklahoma; Alan Wilson, Attorney

General, OFFICE OF THE ATTOR NEY GENERAL OF SOUTH CAROLINA,

Columbia, South Carolina; Mart y J. Jackley, A ttorney General,

OFFICE OF THE A TTORNEY GENERAL OF SOUTH DAKOTA, Pierre, South

Dakota; Sean Re yes, Attorney G eneral, OFFICE OF THE ATTORNEY

GENERAL OF THE STATE OF UTAH, Salt Lake City, Utah; Peter K.

Michael, Attorne y General, OFFI CE OF THE ATTO RNEY GENERAL OF

WYOMING, Cheyenne, Wyoming, for Amici States of Indiana,

Alabama, Alaska, Arizona, Colorado, Idaho, Louisiana, Montana,

Nebraska, Oklaho ma, South Carol ina, South Dako ta, Utah, and

Wyoming. Stephen M. Crampton, Mary E. McAlister, LIBERTY

COUNSEL, Lynchburg, Virginia, for Amicus WallBuilders, LLC.

Mathew D. Stave r, Anita L. St aver, LIBERTY CO UNSEL, Orlando,

Florida, for Am ici Liberty Cou nsel and Americ an College of

Pediatricians. Frank D. Mylar, MYLAR LAW, P.C., Salt Lake City,

Utah, for Amici Scholars of Hist ory and Related Disciplines and

American Leadership Fund. Micha el F. Smith, THE SMITH APPELLATE

LAW FIRM, Washington, D.C., for Amici Robert P. George, Sherif

Girgis, and Ryan T. Anderson. Gerard V. Bradley , NOTRE DAME LAW

SCHOOL, Notre Dame, Indiana; Kevin T. Snider, PACIFIC JUSTICE

14

Appeal: 14-1167 Doc: 234

Filed: 07/28/2014 Pg: 15 of 98

INSTITUTE, Oakland, California, for Amicus Paul McHugh. Anthony

R. Picarello, Jr., U.S. CONF ERENCE OF CATH OLIC BISHOPS,

Washington, D.C.; R. Shawn Gunna rson, KIRTON MCC ONKIE, Salt Lake

City, Utah, for Amici United States Conferenc e of Catholic

Bishops, National Association of Evangelicals, C hurch of Jesus

Christ of Latter -Day Saints, The Ethics & Religious Liberty

Commission of t he Southern Bap tist Convention, and Lutheran

Church-Missouri Synod. Eric Rassbach, Asma Uddin, THE BECKET

FUND FOR RELIGI OUS LIBERTY, Wa shington, D.C., for Amicus Th e

Becket Fund for Religious Liberty. Lawrence J. Joseph,

Washington, D.C. for Amicus Eagle Forum Education and Legal

Defense Fund. David Boyle, Long Bea ch, California, as Amicus .

David Boyle, Lo ng Beach, Calif ornia, for Amic us Robert Oscar

Lopez. Abbe Da vid Lowell, Christopher D. Man, CHADBOURNE &

PARKE LLP, Wash ington, D.C., f or Amici Outser ve-SLDN and The

American Militar y Partner Associ ation. Geoffrey R. Stone, THE

UNIVERSITY OF CH ICAGO LAW SCHOOL , Chicago, Illin ois; Lori Alvino

McGill, LATHAM & WATKI NS LLP, Washington, D.C., for Amici

Constitutional Law Scholars Ashutosh Bhagwat, Lee Bollinger,

Erwin Chemerinsky, Walter Del linger, Michael C. Dorf, Le

e

Epstein, Daniel Farber, Barry Friedman, Michael J. Gerhardt,

Deborah Hellman, John C. Jeffrie s, Jr., Lawrence Lessig, William

Marshall, Frank Michelman, Jan e S. Schacter, Christopher H.

Schroeder, Suzanna Sherry, Geoffrey R. Stone, David Strauss,

Laurence H. Tribe, and William Van Alstyne. Steven W. Fitschen,

THE NATIONAL LEG AL FOUNDATION, V irginia Beach , V irginia; Holly

L. Carmichael, San Jose, California, for Amicus Concerned Women

for America. Carmine D. Boccuzzi, Jr., Mark A. Lightner, Andra

Troy, Andrew P. Meiser, CLEARY GOTTLIEB STEEN & HAMILTON LLP ,

New York, New York, for Am icus The Ameri can Soci ological

Association. L. Steven Emmert, SYKES, BOURDON, AHERN & LEVY,

P.C., Virginia Beach, Virginia, for Amicus Virginia

Constitutional Law Professors. Nathalie F.P. Gi lfoyle, AMERICAN

PSYCHOLOGICAL ASSOCIATION, Washington, D.C.; Bru ce V. Spiva, THE

SPIVA LAW FIRM PLLC, Washington, D.C., for Amici American

Psychological Association, American Academy of Pediatrics,

American Psychiatric Association, National Association of Social

Workers, and Virginia Psychological Association. Mark

Kleinschmidt, TI N FULT ON WALKER & OWEN, Chap el Hill, North

Carolina; Ryan T. Butler, Greensboro, North Carolina, for Amici

Equality NC and South Carolina Equality Coalition. Rose A.

Saxe, James D. Esseks,

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, New York , New York; Garrard R . Beeney, David A.

Castleman, Catherine M. Bradley, W. Rudolph Kleysteuber,

SULLIVAN & CROMWELL LLP, New York, New York, for Amici Marcie

and Chantelle Fisher -Borne, Crystal Hendrix and Leigh Smith,

Shana Carignan a nd Megan Parker, Terri Beck and Leslie Zanaglio,

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Lee Knight Caffery and Dana Draa, Shawn Long and Craig Johnson,

and Esmeralda Mejia and Christina Ginter -Mejia. Elizabeth B.

Wydra, Douglas T. Kendall, Judith E. Schaeffer, David H. Gans,

CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C.; Ily

a

Shapiro, CATO INSTITUTE, Washington, D.C.,

for Amici Cato

Institute and Constitutional Accountability Center. Daniel

McNeel Lane, Jr., Matthew E. Pepping, San Antonio, Texas,

Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los

Angeles, Califor nia, for Amici Historians of Ma rriage Peter W.

Bardaglio, Norma Basch, Stephani e Coontz, Nancy F. Cott, Toby L.

Ditz, Ariela R. Dubler, Laura F. Edwards, Sarah Barringer

Gordon, Michael Grossberg, Hendrik Hartog, Ellen Herman, Martha

Hodes, Linda K. Kerber, A lice Kessler -Harris, Elaine Tyler May,

Serena Mayeri, Steve Mintz, Elizabeth Pleck, Carole Shammas,

Mary L. Shanley, Amy Dru Stanley, and Barbara Welke. Jiyun

Cameron Lee, Andrew J. Davis, FOLGER LEVIN LLP, San Francisco,

California, for Amicus Parents, Families and Fri ends of Lesbians

and Gays, Inc. Rita F. Lin, L aura W. Weissbein, Sara Bartel,

MORRISON & FOERSTER LLP, San Francisco, California, for Amici

Kerry Abrams, Al bert Clark Tate, Jr. Professor o f Law University

of Virginia Sch ool of Law, Viv ian H amilton, P rofessor of Law

William and Mary, Meredith Harbach, Professor of Law University

of Richmond, Joan Heifetz Hollinger, John and Elizabeth Boalt

Lecturer in Residence University of California, Berkeley School

of Law, Courtne y G. Joslin, P rofessor of Law University of

California, Davis School of Law, and Forty -Four Other Family Law

Professors. She rrilyn Ifill, Ch ristina A. Swarn s, Ria Tabacco

Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New

York; Kim M. Kee nan, NAACP, Balt imore, Maryland, for Amici NAACP

Legal Defense & Educational Fund, Inc. and National Association

for the Advance ment of Colored People. Ade rson Bellegarde

Francois, HOWARD UNIVERSITY SCHO OL OF LAW CIVIL RIGHTS CLINIC,

Washington, D.C.; Brad W. Seiling, Benjamin G. Sh atz, MANATT,

PHELPS & PHILLIPS, LLP, Los Angeles, California, for Amicus

Howard University School of Law Civil Rights Clinic. Alec W.

Farr, Washington , D.C., Tracy M. Talbot, Kath erine Keating,

BRYAN CAVE LLP, San Francisco, California, for Amici Family

Equality Council and COLAGE. Ni cholas M. O'Donn ell, SULLIVAN &

WORCESTER LLP, Boston, Massachusetts, for Amic us GLMA: Health

Professionals Advancing LGBT Equality. Kathleen M. O'Sullivan,

Mica D. Simpson, PERKINS COIE LLP, Seattle, Washington, for

Amici W illiam N. Eskridge, Jr., Rebecca L. Brown, Daniel A.

Farber, Michael Gerhardt, Jack K night, Andrew Ko ppelman, Melissa

Lamb Saunders, N eil S. Siegel, a nd Jana B. Singe r. Catherine E.

Stetson, Erica Knievel Songer, Mary Helen Wi mberly, Katie D.

Fairchild, M adeline H. Gitomer, HOGAN LOVELLS US LLP,

Washington, D.C., for Amicus Historians of Antigay

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Discrimination. Rocky C. Tsa i, Samuel P. B ickett, Rebecca

Harlow, ROPES & GRAY LLP, San Francisco, California; Steven M.

Freeman, Seth M. Marnin, Melissa Garlick,

ANTI-DEFAMATION

LEAGUE, New York, New York, for Amici Anti -Defamation League,

Americans United for Separation of Church and State, Bend the

Arc: A Jewish Partnership for Justice, Hadassa h, The Women's

Zionist Organization of America, Hindu American Founda tion, The

Interfaith Alliance Foundation, Japanese American Citizens

League, Jewish Social Policy Action Network, Keshet,

Metropolitan Community Churches, More Light Presbyterians, The

National Council of Jewish Women, Nehirim, People For the

American Way Foundation, Presbyterian Welcome, Reconcilingworks:

Lutherans for Full Participation, Religious Institute, Inc.,

Sikh American Legal Defense and Education Fund, Society for

Humanistic Judaism, T'Ruah: The Rabbinic Call for Human Rights,

and Women's Le ague For Conse rvative Judaism . Matthew P.

McGuire, Beverlee E. Silva, Diane S. Wizig, ALSTON & BIRD LLP,

Durham, North Carolina; Suzanne B. Goldberg, Sexuality and

Gender Law Clinic, COLUMBIA LAW SCHOOL, New York, New York, for

Amicus Columbia Law School Sexua lity and Gender Law Clinic.

Jeffrey S. Trachtman, Norman C. Simon, Jason M. Moff, Kurt M.

Denk, Jessica N. Witte, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New

York, New York, for Amici Bishops of the Episcopal Church in

Virginia, The Ce ntral Atlantic C onference of the United Church

of Christ, Central Conference of American Rabbis, Mormons for

Equality, Reconstructionist Rabbinical Association,

Reconstructionist Rabbinical College and Jewish

Reconstructionist Communities, Union for Reform Judaism, The

Unitarian Universalist Association, Affirmation, Covenant

Network of Presbyterians, Methodist Federation for Social

Action, More Light Presbyterians, Presbyterian Welcome,

Reconciling Ministries Network, Reconsilingworks: Lutherans For

Full Participati on, Religious Institute, Inc., and Women of

Reform Judaism. Susan Baker Manning, Micha el L. Whitlock,

Margaret E. Sheer, Jared A. Craft, Sara M. Carian, Jessica C.

Brooks, Katherine R. Moskop, Joh n A. Polito, Ste phanie Schuster,

BINGHAM MCCUTCHEN LLP, Washingto n, D.C., for Ami cus 28 Employers

and Organizations Representing Employers. Martha Coakley,

Attorney General, Jonathan B. Miller, Assistant Attorney

General, Genevieve C. Nadeau, Assistant Attorney General,

Michelle L. Leu ng, Assistant A ttorney General, Frederick D.

Augenstern, Assistant Attorney G eneral, OFFICE O F THE ATTORNEY

GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS

, Boston,

Massachusetts; Kamala D. Harris, Attorney Genera l, OFFICE OF THE

ATTORNEY GENERAL OF CALIFORNIA, Sacramento, California; George

Jepsen, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

CONNECTICUT, Hartford, Connecticut; Irvin B. Nathan, Attorney

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General, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF

COLUMBIA, Washington, D.C.; Lisa Madigan, Attorney General,

OFFICE OF THE A TTORNEY GENERAL OF ILLINOIS , Chi cago, Illinois;

Tom Miller, Atto rney General, OF FICE OF THE ATTO RNEY GENERAL OF

IOWA, Des Moines , Iowa; Janet T. Mills, Attorney General, OFFICE

OF THE ATTORNEY GENERAL OF MAI NE, Augusta, Ma ine; Douglas F.

Gansler, Attorne y Genera l, OFFI CE OF THE ATTO RNEY GENERAL OF

MARYLAND, Baltimore, Maryland; Joseph A. Foster, Attorney

General, OFFICE OF THE ATTORNEY GENERAL

OF NEW HAMPSHIRE ,

Concord, New Ham pshire; Gary K. King, Attorney General, OFFICE

OF THE ATTORNEY GENERAL OF NEW MEXICO, S anta Fe, New Mexico;

Eric T. Schneide rman, Attorney G eneral, OFFICE O F THE ATTORNEY

GENERAL OF NEW YORK, New York, New York; Ellen F. Rosenblum,

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OREGON,

Salem, Oregon; W illiam H. Sorrel l, Attorney Gene ral, OFFICE OF

THE ATTORNEY GENERAL OF VERMONT, Montpelier, Vermont; Robert W.

Ferguson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

WASHINGTON, Olympia, Washington, for Amici Massachusetts,

California, Connecticut, District of Columbia, Illinois, Iow a,

Maine, Maryland, New Hampshire, New Mexico, New York, Oregon,

Vermont, and Was hington. Brad W. Seiling, Benj amin G. Shatz,

MANATT, PHELPS & PHILLIPS, LLP , Los Angeles, California, for

Amicus Gary J. Gates. Bruce A. Wessel, Moez M. Kaba, C.

Mitchell He ndy, Brian Eggleston, IRELL & MANELLA LLP, Lo

s

Angeles, Califor nia, for Amicus National and Western States

Women's Rights O rganizations. D onald K. Butler, BATZLI STILES

BUTLER, P.C., R ichmond, Virginia; Susan M. But ler, SHOUNBACH,

P.C., Fairfax, Virginia; Daniel L. Gray, Step hanie J. Smith,

Kristen L. Kugel , Anne B. Robins on, COOPER GINSB ERG GRAY, PLLC,

Fairfax, Virgini a, for Amicus V irginia Chapter of The American

Academy of Matri monial Lawyers. Marcia D. Green berger, Emily J.

Martin, Cortelyou C. Kenney , NATIONAL WOME N'S LAW CENTER ,

Washington, D.C. , for Amici Th e National Women 's Law Center,

Equal Rights Advocates, Legal Momentum, National Association of

Women Lawyers, National Part nership for Wo men & Families ,

Southwest Women's Law Center

, Women's Law

Project, and

Professors of Law Associated with The Wil

liams Institute.

Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP,

San Francisco, California, for Amicus Bay A rea Lawyers for

Individual Freedom. Shannon P. Minter, Christopher F. Stoll,

Jaime Huling Delaye, NATIONAL CENTER FOR LESBIAN RIGHTS,

Washington, D.C. , for Amici Lea dership Conferen ce on Civil and

Human Rights, Public Interest Organizations, and Bar

Associations.

Joanna L. G rossman, HOFSTRA LAW SCHOOL,

Hempstead, New York; Marjory A. Gentry, ARNOLD & PORTER LLP, San

Francisco, Calif ornia, for Amic us Family Law and Conflict of

Laws Professors. Mark C. Flemin g, Felicia H. E llsworth, Boston,

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Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, Leah M.

Litman, Washington, D.C., Alan Scho

enfeld, WILMER CUTLER

PICKERING HALE AND DORR LLP, New York, New York, for Amicus Gay

& Lesbian Advoca tes & Defenders. John Humphrey , THE HUMPHREY

LAW FIRM, Alexan dria, Virginia, for Amici People of Faith For

Equality in Virg inia (POFEV), Ce lebration Cent er for Spiritual

Living, Clarendon Presbyterian Church, Commonwealth Baptist

Church, Congrega tion or AMI, Hope United Chur ch of Christ,

Little River UC C, Metropolitan Community Chur ch of Northern

Virginia, Mt. Ve rnon Unitarian C hurch, St. James UCC, St. Jo hn's

UCC, New Life Metropolitan Community Church, Unitarian

Universalist Fellowship of the Peninsula, Unitarian Universalist

Congregation of Sterling, Un ited Church o f Christ of

Fredericksburg, Unitarian Universalist Church of Loudoun, Rev.

Marie Hulm Adam , Rev. Marty Ande rson, Rev. Robin Anderson, Rev.

Verne Arens, Rabbi Lia Bass, Rev. Joseph G. Beattie, Rev. Marc

Boswell, Rev. Sue Browning, Rev. Jim Bundy, Rev. Mark Byrd, Rev.

Steven C. Clunn, Rev. Dr. John C operhaver, Rabbi Gary Creditor,

Rev. David Ensi gn, Rev. Henry Fa irman, Rabbi Jes se Gallop, Rev.

Tom Gerstenlauer, Rev. Dr. Robin H. Gorsline, Rev. Trish Hall,

Rev. Warren Ham monds, Rev. Jon Heaslet, Rev. Douglas Hodges,

Rev. Phyllis Hub bell, Rev. Steph en G. Hyde, Rev . Janet James,

Rev. John Manwell, Re v. James W. McNeal, Andrew Mertz, Rev.

Andrew Clive Millard, Rev. Dr. Melanie Miller, Rev. Amber

Neuroth, Rev. James Papile, Rev. Linda Olson Peebles, Rev. Don

Prange, Rabbi Michael Ragozin, Rabbi Ben Romer, Rev. Jennifer

Ryu, Rev. Anya Sammler -Michael, Ra bbi Amy Sc hwartzman, Rev.

Danny Spears, Re v. Mark Suriano, Rev. Rob Vaugh n, Rev. Daniel

Velez-Rivera, Re v. Kate R. Wal ker, Rev. Terrye Williams, and

Rev. Dr. Karen-Marie Yust.

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FLOYD, Circuit Judge:

Via various state statutes and a state constituti

onal

amendment, Virginia prevents same -sex couples from marrying and

refuses to recognize same -sex marriages performed elsewhere.

Two same -sex couples fil

ed suit to

challenge t

he

constitutionality of these l aws, alleging that they violate the

Due Process and Equal Protecti on Clauses of the Fourteenth

Amendment. The district court granted the couples’ motion for

summary judgment and enjoined Virginia from enforcing the laws .

This appeal foll owed. Because we conclude that Virginia’s same-

sex marriage b ans impermissibly infringe on its citizens’

fundamental right to marry, we affirm.

I. A. This case concer ns a series of statutory and con stitutional mechanisms that Virginia employed to prohibit legal recognition for same-sex relationships in th at state. 1 Virginia enacted the

1 Three other st ates in this Ci rcuit have simi lar bans:

North Carolina, N.C. Const. art. XIV, § 6; N.C. Gen

. Stat.

§§ 51-1, 51 -1.2; Sout h Carolina, S.C. Const. ar t. XVII, § 15;

S.C. Code Ann. §§ 20 -1-10, 20 -1-15; and West Virginia, W. Va.

Code § 48 -2-603. The Southern District of West Virginia has

stayed a challenge to West Virginia’s

statute pending our

resolution of t his appeal. McGee v. Cole , No. 3:13 -cv-24068

(S.D. W. Va. June 10, 2014) (order directing stay).

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first of these laws in 1975: Virginia Code section 20

-45.2,

which provides that “marriage between persons of the same sex is

prohibited.” After the Supreme Court of Hawaii took steps to

legalize same -sex marriage in t he mid -1990s, V irginia amended

section 20 -45.2 to specify that “[a]ny marriage entered into by

persons of the same sex in another state or jurisdiction shall

be void in all respects in Virginia and any contractual rights

created by such marriage shall be void and unenforc eable.” In

2004, Virginia added civil unions and similar arrangements to

the list of prohibited same

-sex relationships via the

Affirmation of Marriage Act. See Va. Code Ann. § 20-45.3.

Virginia’s efforts to ban same -sex marriage and other

legally recogni zed same -sex relationships culminated in the

Marshall/Newman Amendment to the Virginia Constitution:

That only a unio n between one ma n and one woman may be a marriage valid in or recogn ized by this Com monwealth 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 marr iage. Nor shall this Commonwea lth or

its political subdivisions create or recognize another

union, partnership, or other legal status to which is

assigned the rights, benefits, obligations, qualities,

or effects of marriage.

Va. Const. art. I, § 15 -A. The Virginia Constitution imposes

two hurdles that a potential ame ndment must jump before becoming

law: the General Assembly must approve the amendment

in two

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separate legislative sessions, and the people must ratify

it.

Va. Const. art. XII, § 1. The General Assemb ly approved the

Marshall/Newman Amendme nt in 2005 and 2006. In November 2006,

Virginia’s voters ratified it by a vote of fifty -seven percent

to forty -three percent.

In the aggregate , Virginia Code

sections 20 -45.2 and 20 -45.3 and the Marshall/N ewman Amendment

prohibit same -sex marriage, ban other legally recognized same-

sex relationships , and render same -sex marriages performed

elsewhere legally meaningless under Virginia state law.

B.

Same-sex couples Timothy B. Bostic and Tony C. London and

Carol Schall and Mary Townley

(collectively, the Plaintiffs)

brought this law suit to challenge the

constitutionality of

Virginia C ode sections 20 -45.2 and 20 -45.3, the Marshall/Newman

Amendment, and “any other Virginia law that bars same

-sex

marriage or pro hibits the Stat e’s recognition of otherwise -

lawful same -sex marriages from other jurisdictions”

(collectively, t he Virginia Mar riage Laws).

The Plaintiffs

claim that the “inability to ma rry or have the ir relationship

recognized by th e Commonwealth o f Virginia with the dignity and

respect accorded to ma rried opposite-sex couples has caused them

significant hard ship . . . and severe humilia tion, emotional

distress, pain, suffering, psychological harm, and stigma.”

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Bostic and Lond on have been i n a long -term, committed

relationship with each other sin ce 198 9 and have lived together

for more than twenty years. They “desire to marry each othe r

under the laws o f the Commonwealth in order to publicly announce

their commitment to one another and to enjoy the rights,

privileges, and protections that the State con fers on married

couples.” On J uly 1, 2013, Bo stic and London applied for a

marriage license from the Clerk for the Circuit Court for the

City of Norfolk . The Clerk d enied their application because

they are both men.

Schall and Townley are women who have been a couple since

1985 and have lived together as a family for nearly thirty

years. They were lawfully married in California in 2008. I n

1998, Townley gave birth to the couple’s daughter, E. S.

-T.

Schall and Townley identify a host of consequences of

their

inability to m arry in Virgin ia and Virgini a’s refusal to

recognize their California marriage, including the following:

• Schall could not visit Townley i n the hospital f or several

hours when Town ley was admitte d due to pregna ncy-related

complications.

• Schall cannot legally adopt E. S. -T., which forced her to

retain an attor ney to petition for full joint legal and

physical custody.

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• Virginia will not list both Schall and Townley as E. S. -

T.’s parents on her birth certificate.

• Until February 2 013, Schall and Townley could no t cover one

another on their employer

-provided health insurance.

Townley has been able to cover Schall on her insurance

since then, but, unlike an opp osite-sex spouse, Schall must

pay state income taxes on the benefits she receives.

• Schall and Townl ey must pay sta te taxes on ben efits paid

pursuant to employee benefit s plans in the event of one of

their deaths.

• Schall and Town ley cannot file joint state i ncome tax

returns, which has cost them thousands of dollars.

On July 18, 201 3, Bosti c and L ondon sued former Governor

Robert F. McDo nnell, former Attorney General Kenneth T.

Cuccinelli, and George E. Sc haefer, III, in his official

capacity as the Clerk for the Circuit Court for the City of

Norfolk. The Pl aintiffs filed their First Amend ed Complaint on

September 3, 2013. The First Amended Complaint added Schall and

Townley as plaintiffs , removed McDonnell and Cuccinelli as

defendants, and added Janet M. Rainey as a defendant in her

official capacity as the State Registrar of Vital Records . The

Plaintiffs allege that the Virg inia Marriage La ws are facially

invalid under th e Due Process a nd Equal Protect ion Clauses of

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the Fourteenth A mendment and tha t Schaefer and Rainey violated

42 U.S.C. § 1983 by enforcing those laws.

The parties filed cross-motions for summary judgment . The

Plaintiffs also requested a perm anent injunction in connection

with their motion for summary judgment

and moved, in the

alternative, for a preliminary i njunction in the event that the

district court d enied their moti on for summary judgment. The

district court granted a motion by Michèle McQuigg—the Prince

William County Clerk of Court —to intervene as a defendant on

January 21, 2014. Two days later , new Attorney General Mark

Herring—as Rainey’s counsel —submitted a fo rmal change in

position and re fused to defend the Virginia Marriage Laws ,

although Virginia continues to enforce them . McQuigg adopted

Rainey’s prior motion for summ ary judgment an d the bri efs in

support of that motion.

The district co urt held that t he Vi rginia Mar riage Laws

were unconstitutional on February 14, 2014. Bostic v. Rainey ,

970 F. Supp. 2d 456, 4 83 (E.D. Va. 2014). It therefore denied

Schaefer’s and McQuigg’s mot ions for summa ry judgment an d

granted the Pl aintiffs’ motion. The distr ict court also

enjoined Virginia’s employees —including Rainey and her

employees—and Schaefer, McQuigg, and their officers, agents, and

employees from enforcing the V irginia Marriage Laws . Id. at

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484. The court stayed the injunction pending our resolution of

this appeal. Id.

Rainey, Schaefer, and McQuigg timely appealed the district

court’s decision. We have juri sdiction pursuant to 28 U.S.C .

§ 1291. On March 10, 2014, we allowed the plaintiffs from

Harris v. Raine y—a similar cas e pending befor e Judge Michael

Urbanski in the Western District of Virginia

—to intervene.

Judge Urban ski had previously certified that case as a class

action on behalf of “all same -sex couples in Virginia who have

not married in another jurisdic tion” and “all same-sex couples

in Virginia who have married in another jurisdiction,” excluding

the Plaintiffs . Harris v. Rainey , No. 5:13 -cv-077, 2014 WL

352188, at *1, 12 (W.D. Va. Jan. 31, 2014).

Our analysis proceeds in three steps. First, we consider

whether the Plai ntiffs possess s tanding to bring their claims.

Second, we eva luate whether the Supreme Co urt’s summary

dismissal of a similar lawsuit in Baker v. Nelson , 409 U.S. 810

(1972) (mem.), remains binding. Third, we deter mine which level

of constitutional scrutiny applies here and te st the Virginia

Marriage Laws using the appropriate standard. For purposes of

this opinion, we adopt the terminology the district court used

to describe the parties in this case.

The Plaintiffs , Rainey,

and the Harris class are the “Opponents” of the Vir

ginia

Marriage Laws. Schaefer and McQuigg are the “Proponents.”

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II.

Before we turn to the merits of the parties’ arguments in

this case, we c onsider Schaefer ’s contention that “ [t]he trial

court erred as a matter of law when it found all Plaintiffs had

standing and ass erted claims aga inst all Defenda nts.” We review

the district co urt’s disposition of cross -motions for summary

judgment—including its determinations regarding standing

—de

novo, viewing the facts in the light most favorable to the non -

moving party. Libertarian Party of Va. v. Judd , 718 F.3d 308,

313 (4th Cir. 2013) ; Covenant Media of S .C., LLC v. City of N.

Charleston, 493 F.3d 421, 427 -28 (4th Cir. 2007). Summary

judgment is appropriate when “there is no genuine dispute as to

any material f act and the movant is entitled to judgment as a

matter of law.” Libertarian Party of Va. , 718 F.3d at 313 -14

(quoting Fed. R. Civ. P. 56(a)).

To establish standing under Article III of the

Constitution, a plaintiff must “ allege (1) an injury that is

(2) fairly traceable to the defendant’s allegedly unlawful

conduct and that is (3) likely to be redressed by the requested

relief.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 590

(1992) (quoting Allen v. Wrig ht, 468 U.S. 7 37, 751 (1984))

(internal quotation marks omitt ed). The stand ing requirement

applies to eac h claim that

a plaintiff se eks to press.

DaimlerChrysler Corp. v. Cun o, 547 U.S. 3 32, 352 (2006).

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Schaefer premises his argument t hat the Plaintiffs lack standing

to bring their c laims on the ide a that every pla intiff must have

standing as to every defendant. However, the Supreme Court has

made it clear th at “the presence of one party w ith standing is

sufficient to satisfy Article III’s case

-or-controversy

requirement.” Rumsfeld v. Forum for Acade mic & Institutional

Rights, Inc. , 547 U.S. 47, 52 n.2 (2006); see also Dep’t of

Commerce v. U.S . House of Repr esentatives, 525 U.S. 316, 330

(1999) (holding that a case is justiciable if some, but not

necessarily all, of the plaintiffs have standing

as to a

particular defen dant); Vill. of Arlington Heig hts v. Metro.

Housing Dev. Corp. , 429 U.S. 252, 263 -64 (1977) (same). The

Plaintiffs’ claims can therefore survive Schaefer’s standing

challenge as l ong as one couple satisfies the standing

requirements with respect to each defendant.

Schaefer serves as the Clerk for the Circuit Court for the

City of Norfol k. In Virgin ia, circuit co urt clerks are

responsible for issuing marriage licenses and filing records of

marriage. Va. Code Ann. §§ 2 0-14, 32.1-267. Although Schall

and Townley did not seek a marriage license from Schaefer, the

district court found that Bostic and London did so and that

Schaefer denied their request because they are a same

-sex

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couple.2 Bostic, 970 F. Supp. 2 d at 462, 467 . This license

denial constitutes an injury for standing purposes.

See S.

Blasting Servs., Inc. v. Wilkes Cnty. , 288 F.3d 584, 595 (4th

Cir. 2002) (explaining that the plaintiffs had not suffered an

injury because they had not applied for, or been denied, the

permit in question); Scott v. Greenville Cnty. , 716 F.2d 1409,

1414-15 & n.6 (4th Cir . 1983) (holding that denial of building

permit constituted an injury). Bostic and London can trace this

denial to Schaefer’s enforcement of the allegedly unconstitutional Virginia Marriage Laws, 3 and declarin g those

2 Schaefer conten ds that Scha ll a nd Townley canno t bring a

§ 1983 claim against him for the same reason: he did not commit

any act or omis sion that harmed them. To brin g a suc cessful

§ 1983 claim, a plaintiff must show that “the alleged

infringement of federal rights [is] ‘f airly attributable to the

state[.]’” Rendell-Baker v. Kohn , 457 U.S. 830, 838 (1982)

(quoting Lugar v. Edmondson Oil Co. , 457 U.S. 922, 937 (1982)).

Schaefer’s action in denying Bos tic and London’s application for

a marriage license is clearly attributable to the state.

The

district court c ould therefore e ntertain a § 198 3 claim against

Schaefer without ascertaining w hether he commi tted any action

with respect to Schall and Townley.

3 For this reason , and contrary to Schaefer’s assertions,

Schaefer is also a proper defendant under Ex parte Young , 209

U.S. 123 (1908). Pursuant to

Ex parte Young , the Eleventh

Amendment does n ot bar a citizen from suing a s tate officer to

enjoin the enfo rcement of an unconstitutional law when the

officer has “some connection with the enforcement of the act.”

Lytle v. Griffith , 240 F.3d 404, 412 (4th Cir. 2001) (emphasis

omitted) (quoting Ex parte Young , 209 U.S. at 157). Sch aefer

bears the requ isite connectio n to the enfo rcement of the

Virginia Marriage Laws due to his role in granting and denying

applications for marriage licenses.

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laws unconstitutional and enjoining their enforcement would

redress Bostic and London’s injuries . B ostic and Lond on

therefore possess Article III st anding with resp ect to Schaefer.

We consequently need not cons ider wh ether Sch all and Townley

have standing to sue Schaefer. See Horne v. F lores, 557 U.S.

433, 446 -47 (2009) (declining to analyze whet her additional

plaintiffs had standing when one plaintiff did).

Rainey—as the Registrar of Vital Records —is tasked with

developing Virginia’s marriage license application form and

distributing it to the circuit c ourt clerks thro ughout Virginia.

Va. Code Ann. §§ 32.1 -252(A)(9), 32.1-267(E).

Neither

Schaefer’s nor Rainey’s response to the First Amended Complaint

disputes its description of Rainey’s duties:

Defendant Rainey

is responsible for ensuring

compliance with the Commonwealth’s laws relating to

marriage in general and, more specifically, is

responsible for enforcement of the specific provisions

at issue in this Amended Co mplaint, namely those laws

that limit marriage to opposite -sex couples and tha t

refuse to honor the benefits of same -sex marriages

lawfully entered into in other states.

In addition to performing these marriage

-related functions,

Rainey develops and distr ibutes birth certificate forms,

oversees the rul es relating to b irth certificates, and furnishes

forms relating to adoption so that Virginia can collect the

information necessary to prepare the adopted child’s birth

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certificate. Id. §§ 32.1 -252(A)(2)-(3), (9), 32.1 -257, 32.1 -

261(A)(1), 32.1-262, 32.1-269.

Rainey’s promulgation of a marriage l icense application

form that does not allow same -sex couples to obtain marriage

licenses resulted in Schaefer’s denial of Bostic and London’s

marriage license request . For the reasons we describe above,

this license den ial constitutes an injury. Bos tic and London

can trace this injury to Rainey du e to her rol e in developing

the marriage li cense applicatio n form in comp liance with the

Virginia Marriage Laws, and the r elief they seek would redress

their injuries. Bostic and Lond on consequently have standing to

sue Rainey.

Schall and Town ley also posses s standing to b ring their

claims against Rainey. They satisfy the injury requirement in

two ways. First, i n equal pr otection cases —such as this case —

“[w]hen the gov ernment erects a barrier that makes it more

difficult for me mbers of one gro up to obtain a benefit than it

is for members o f another group, . . . . [t]he ‘injury in fact ’

. . . is the denial of equal treatmen

t resulting from the

imposition of th e barrier[.] ” Ne. Fla. Chapter of Associated

Gen. Contractors of Am. v. City of Jacksonville , 508 U.S. 656,

666 (1993) . The Virginia Marriage Laws erect such a barrier ,

which prevents same-sex couples from obtaining t he emotional,

social, and fina ncial benefits t hat opposite-sex couples realize

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upon marriage. Second , Schall and Townley allege that they have

suffered stigmatic injuries due to their inability to get

married in Virginia and Virginia’s refusal to recogniz e their

California marriage.

Stigmatic injury stemming from

discriminatory treatment is sufficient to satisfy standing’s

injury requirement if the plain tiff identifies “some concrete

interest with r espect to which [he or she] [is] personally

subject to di scriminatory treatment” and “[t]hat interest . . .

independently satisf[ies] the causation requirement of standing

doctrine.” Allen, 468 U.S. at 757 n.22, abrogated on other

grounds by Lexmark Int’l, Inc. v . Static Control Components, 134

S. Ct. 1377 (201 4). Schall and Townley point to several

concrete ways in which the Vir ginia Marriage L aws have resulted

in discriminatory treatment. For example, they allege that

their marital st atus has hindered Schall from v isiting Townley in the hospital, prevented S chall from adopting E. S. -T.,4 and

subjected Schall and Townley to tax burdens from which married

opposite-sex cou ples are exempt . Because Sch all and Town ley

highlight specific, concrete instances of discrimination rather

4 Virginia does not explicitly prohibit same -sex couples

from adopting c hildren. The V irginia Marriage Laws impose a

functional ban on adoption by same -sex coupl es because the

Virginia Code allows only

married coup les or unmarr ied

individuals to adopt children. Va. Code Ann. § 63.2-1232(A)(6).

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than making abst ract allegations, their stigmati c injuries are

legally cognizable.

Schall and Townley’s injuries are traceable to

Rainey’s

enforcement of the Virginia Marriage Laws. Because declaring

the Virginia Marriage Laws unconstitutional and enjoining their

enforcement would redress Schal l and Townley’s injuries, they

satisfy standing doctrine’s three requirements w ith respect to

Rainey. In sum, each of the Plaintiffs has standing as to at

least one defendant.

III.

Having resolved the threshold issue of wh

ether the

Plaintiffs have standing to sue Schaefer and Rainey, we now turn

to the merits of the Opponents’ Fourteenth Amendment arguments .

We begin with the issue of whether the Supreme Court’s summary

dismissal in Baker v. Nelson settles this case. Baker came to

the Supreme Co urt as an appeal from a Minnesota Supreme Court

decision, which held that a state statute that the court

interpreted to bar same -sex marriages did not violate the

Fourteenth Amendment’s Due Process or Equal Protection Clauses .

Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). At the time,

28 U.S.C. § 1257 required the Su preme Court to a ccept appeals of

state supreme co urt cases involv ing constitutional challenges to

state statutes , such as Baker. See Hicks v. M iranda, 422 U.S.

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332, 344 (1975) . The Court d ismissed the appeal in a one -

sentence opinion “for want of a substantial fed eral question.”

Baker, 409 U.S. 810.

Summary dismissa ls qualify as “votes on the me rits of a

case.” Hicks, 422 U.S. at 344 (quoting Ohio ex rel. Eaton v.

Price, 360 U.S. 246, 247 (19 59)) (in ternal q uotation marks

omitted). They therefore “prevent lower courts from coming to

opposite conclusions on the precise issues

presented and

necessarily decided. ” Mandel v. Bradley , 432 U.S. 173, 176

(1977) (per curiam) . However, the fac t that Baker and the case

at hand address the same

precise issues does not end our

inquiry. Summa ry dismissals l ose their bindi ng force when

“doctrinal developments” illustrate that the Su preme Court no

longer views a question as unsubstantial , regardless of whether

the Court explic itly overrules t he case. Hicks, 422 U.S. at 344

(quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y.

Auth., 387 F.2 d 259, 263 n.3 (2d Cir. 1967)) (internal quotation

marks omitted) . The district court determined that doctrin al

developments stripped Baker of its status as binding precedent.

Bostic, 970 F. Supp. 2d at 4 69-70. Every fed eral court to

consider this i ssue since the Supreme Court decided United

States v. Windsor , 133 S. Ct. 2675 (2013) , has reached the s ame

conclusion. See Bishop v. Smith , Nos. 14 -5003, 14-5006, 2014 WL

3537847, at *6 -7 (10th Cir. July 18, 2014); Kitchen v. Herbert ,

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No. 13 -4178, 2014 WL 2868044, at *7 -10 (10th Cir. June 25,

2014); Love v. B eshear, No. 3:13 -cv-750-H, 2014 WL 2957671, *2 -3

(W.D. Ky. July 1, 2014); Baskin v. Bogan , Nos. 1:14 -cv-00355-

RLY-TAB, 1:14 -cv-00404-RLY-TAB, 2014 WL 2884868, at *4 -6 (S.D.

Ind. June 25, 2014); Wolf v. Walker , No. 14 -cv-64-bbc, 2014 WL

2558444, at *4-6 (W.D. Wis. June 6, 2014); Whitewood v. Wolf ,

No. 1: 13-cv-1861, 2014 WL 2058105, at * 5-6 (M.D. Pa. May 20,

2014); Geiger v. Kitzhaber , Nos. 6:13 -cv-01834-MC, 6:13 -cv-

02256-MC, 2014 WL 2054264, at *1 n.1 (D. Or. May 19, 2014);

Latta v. Otter , No. 1:13 -cv-00482-CWD, 2014 WL 1 909999, at * 8-9

(D. Idaho May 13, 2014); DeBoer v. Snyder , 973 F. Supp. 2d 757,

773 n.6 (E.D. Mich. 2014); De Leon v. Perry , 975 F. Supp. 2d

632, 647 -49 (W.D. Tex. 2014) ; McGee v. Cole , No. 3:13 -24068,

2014 WL 321122, at *8-10 (S.D. W. Va. Jan. 29, 2014).

Windsor concerned whether section 3 of the federal Defense

of Marriage Ac t (DOMA) contravened the Con stitution’s due

process and equal protection guarantees. Section 3

defined

“marriage” and “ spouse” as exclu ding same-sex couples when those

terms appeared i n federal statut es, regulations, and directives,

rendering legally married same -sex couples ineligible for myriad

federal benefits. 133 S. Ct. at 2683, 2694. When it decided

the case below, the Second Circuit concluded that Baker was no

longer precedent ial, Windsor v. United States , 69 9 F.3d 169,

178-79 (2d Cir. 2012), over the dissent’s vigorous arguments to

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the contrary , see id. at 192-95 (Straub, J., dissenting in part

and concurring in part ). Despite this dispute , the Supreme

Court did not argument.5

discuss Baker in its opinion or

during ora l

The Supreme Court’s willingness to decide Windsor without

mentioning Baker speaks volumes regarding whether Baker remains

good law. The Court’s development of its due process and equal

protection jurisprudence in the four decades following Baker is

even more instructive. On the Due Process front, Lawrence v.

Texas, 539 U.S . 558 (2003), and Windsor are particularl y

relevant. In Lawrence, the C ourt recognized that the Due

Process Clauses of the Fifth an d Fourteenth Ame ndments “afford

constitutional protection to personal decisions relating to

marriage, procreation, contraception, family relationships,

child rearing, and education. . . . Persons in

a homosexual

relationship may seek autonomy for these pu rposes, just as

5 The constitutionality of a law that prohibited marr iage from encompassing same -sex relationships was also at issue in Hollingsworth v. Perry , 133 S. Ct. 2652 (2013) , a case that the Supreme Court ultimately decided on standing grounds . Although the petitioners’ attorney attempted to invoke Baker during or al argument, Justice Ginsburg interjected: “Baker v. Nelson was 1971. The Supreme Court hadn’t even decided that gender -based classifications get any kind o f heightened sc rutiny. . . . [S]ame-sex intim ate conduct was considered cri minal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.” Oral Argument at 11:33, Hollingsworth v. Perry , 133 S. Ct. 2652 (No. 12-144), available at 2013 WL 1212745.

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heterosexual persons do.” Id. at 574. These considerations led

the Court to strike down a Texas statute that criminalized same -

sex sodomy. Id. at 563, 578 -79. The Windsor Court based its

decision to invalidate section 3 of DOMA on the Fifth

Amendment’s Due Process Clause. The

Court concluded that

section 3 could not withstand constitutional scrutiny because

“the principal purpose and the necessary effect of [section 3]

are to demean those persons who are in a lawful same

-sex

marriage,” who—like the unmarried same -sex coupl e in Lawrence—

have a constitut ional right to m ake “moral and s exual choices. ”

133 S. Ct. at 2694-95. These cases firmly position same -sex

relationships wi thin the ambit of the Due P rocess Clauses’

protection.

The Court has also issued several major equal prot ection

decisions since it decided Baker. The Court’s opinions in Craig

v. Boren , 429 U.S. 190 (1976), and Frontiero v. Richardson , 411

U.S. 677 (1973), identified sex-based classifications as quasi -

suspect, causing them to warran t intermediate scrutiny ra ther

than rational basis review , see Craig, 429 U.S. at 218

(Rehnquist, J., dissenting) (coining the term “intermediate

level scrutiny” to describe the Court’s test (in ternal quotation

marks omitted) ). Two decades l ater, i n Romer v. Evans , the

Supreme Cour t s truck down a Co lorado constitutional amendment

that prohibited legislative, executive, and judicial action

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aimed at protecting gay, lesbian, and bisexual individuals from

discrimination. 517 U.S. 620, 624 , 635 (1996). The Court

concluded that t he law violated the Fourteenth A mendment’s Equal

Protection Clause because “its s heer breadth is so discontinuous

with the reasons offered for it that the amendment seems

inexplicable by anything but animus toward the class it

affects,” causing the law to “la ck[] a rational relationship to

legitimate state interests.” Id. at 632. Finally, the Supreme

Court couched its decision in Windsor in both due process and

equal protection ter ms. 133 S. Ct. at 2693, 2695. These cases

demonstrate that, since

Baker, the Cou rt h as meaningfully

altered the way it views both sex and sexual orientation thro ugh

the equal protection lens.

In light of t he Supreme Court’ s apparent aban donment of

Baker and the significant doctrinal developments that occurred

after the Court issued it s summary dismissal in that case , we

decline to view Baker as binding precedent and proceed to the

meat of the Opponents’ Fourteenth Amendment arguments.

IV. A. Our analysis of the Opponents’ Fourteenth Amendment claims has two compon ents. First, we asc ertain what level o f constitutional scrutiny applies: either rational basis review 38

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or some form of heightened scru tiny, such as s trict scrutiny . Second, we apply the appropriate level of scruti ny to determine whether the Virginia Marriage Laws pass constitutional muster.
Under both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scruti ny.6 Washington v. Glucksberg , 521 U.S. 702, 719-20 (1997) ; Zablocki v. Redha il, 434 U.S. 37 4, 383 ( 1978). We therefore begin by assessing whether the Virginia Marriage Laws infringe on a fundamental r ight. Fundamental rights spring from the Fourteenth Amendment’s protection of individual liberty, which the Supreme Court has described as “the right to define one’s ow n concept of e xistence, of me aning, of the universe, and of the mystery of human life.” Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 851 (1992). This liberty includes the fundamental right to marry. Zablocki, 434 U.S. at 383; Loving v. Virginia , 388 U.S. 1, 12 (1967) ; see Griswold v.

6 The Equal Prote ction Clause als o dictates that some form

of heightened sc rutiny applies when a law discri minates based on

a suspect or quasi-suspect cla ssification, suc h as race or

gender. See City of Cleburne v. Cleburne Living Ctr. , 473 U.S.

432, 440 -41 (198 5); Mass. Bd. of Ret. v. Murgia , 427 U.S. 307,

313-14 (1976) (per curiam). This Court previously declined to

recognize sexual orientation as a suspect cla ssification in

Thomasson v. Perry , 80 F.3d 915, 928 (4th Cir. 1996) (en banc),

and Veney v. Wyche , 293 F.3d 726, 731 -32 (4th Cir. 2002).

Because we conclude that the Virginia

Marriage Laws warrant

strict scrutiny due to their infringement of the fundamenta l

right to marry , we need not reach the question of whether

Thomasson and Veney remain good law.

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Connecticut, 381 U.S. 479, 485 -86 (1965) (placing the right to marry within the fundamental rig ht to privacy); see also Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535, 541 (1942) (characterizing marriage as “one of the basic c ivil rights of man”); Maynard v. Hill , 125 U .S. 190, 205 (1888) (calling marriage “the most important relation in life” and “the foundation of t he family and o f society, with out which there would be neither civilization nor progress”).
The Opponents a nd Proponents a gree that marri age is a fundamental right. They strongly disagree, how ever, regarding whether that rig ht encompasses t he right to sam e-sex marriage. The Opponents ar gue that the fun damental right t o marry belongs to the individua l, who enjoys th e right to marry the person of his or her choice. By contrast, the Proponents point out that, traditionally, states have sanctioned only man -woman marriages . They contend that, in light of this history, the right to marry does not include a right to same-sex marriage.
Relying on Washington v. Gluck sberg, the Prop onents aver that the distri ct court erred by not requir ing “a careful description of t he asserted fund amental liberty interest,” 521 U.S. at 721 (internal quotatio n marks omitted ), which they characterize as the right to “marriage to another person of the same sex ,” not t he right to marr y. In Glucksberg, the Supreme Court described the right at iss ue as “a right to commit suicide
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with another’s assistance.” Id. at 724. The Co urt declined to

categorize this right as a new fundamental right because it was

not, “objectively, deeply rooted in this Nation’s history and

tradition.” See id. at 720 -21 (quoting Moore v. City of E .

Cleveland, 431 U .S. 494, 503 (1 977)) (int ernal quotation marks

omitted). The P roponents urge u s to reject the right to same -

sex marriage for the same reason.

We do not disp ute that states have refused to permit same-

sex marriages for most of our country’s history . However, this

fact is irreleva nt in this case because Glucksberg’s analysis

applies only wh en courts consi der whether to rec ognize new

fundamental rights. See id. at 720, 727 & n.19 (identifying the

above process as a way of “expand[ing] the concept of

substantive due process” beyond established fundamental rights ,

such as the right to marry (quoting Collins v. City of Harke r

Heights, 503 U. S. 115, 125 (1 992)) (internal quotation marks

omitted)). Because we conclude that the funda mental right to

marry encompasses the right to same-sex marriage, Glucksberg’s

analysis is inapplicable here.

Over the decades , the Supreme Court has demonst rated that

the right to marry is an expansive liberty interest that may

stretch to accommodate changing societal norms.

Perhaps m ost

notably, in Loving v . Virginia , the Supreme Cour t invalidated a

Virginia law that prohibited white individuals from marrying

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individuals of other races. 388 U.S. at 4. The Court explained

that “ [t]he freedom to marry has long been recognized as one of

the vital person al rig hts essent ial to the orde rly pursuit of

happiness by free men ” and that no valid basis justified the

Virginia law’s infringement

of th at right.

Id. at 12.

Subsequently, in Zablocki v. Redhail , the Supreme Court

considered the constitutionality of a Wisco nsin statute that

required people obligated to pay child support to obtain a court

order granting permission to marry before they could receive a

marriage license . 434 U.S. at 375, 383 -84. The statute

specified that a court sho uld grant perm ission only t o

applicants who p roved that they had complied with their child

support obligations and demonst rated that thei r children were

not likely to become “public charges .” Id. at 375 (internal

quotation marks omitted) . Th e Court held that the statute

impermissibly infringed on the right to marry . See id. at 390 -

91. Finally, in Turner v. Safle y, the Court det ermined that a

Missouri regulation that generally prohibited prison inmates

from marrying w as an unconstit utional breach of the right to

marry. 482 U.S. 78, 82, 94-99 (1987).

These cases do not define the rights in question as “the

right to interra cial marriage,” “the right of pe ople owing child

support to marry,” and “the right of prison inmates to marry.”

Instead, they s peak of a broa d right to mar ry tha t is not

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circumscribed based on the char acteristics of the individuals

seeking to ex ercise that right.

The Supreme Court’s

unwillingness t o constrain the right to ma rry to certain

subspecies of ma rriage meshes wi th its conclusio n that the right

to marry i s a matter of “freedom of choice,” Zablocki, 434 U.S.

at 387 , that “resides with the individual,” Loving, 388 U.S. at

12. If courts limited the right to marry to certain couplings,

they would effectively create a list of legally preferred

spouses, renderi ng the choice of whom to marry a hollow choice

indeed.

The Proponents point out that Loving, Zablocki, and Turner

each involved opposite -sex couples . They contend that, because

the couples in tho se cases chose to en ter opposite-sex

marriages, we cannot us e them to conclude that the Supreme Court

would grant the same level of constitutional protection to the

choice to marry a person of the same sex. However, the Supreme

Court’s decisions in Lawrence and Windsor suggest otherwise. In

Lawrence, the C ourt ex pressly refused to narr owly define the

right at issue as the right of “homosexuals to engage in

sodomy,” concluding that doing s o would constitu te a “failure to

appreciate the e xtent of the li berty at stake.” 539 U.S. at

566-67. Just as it has done i n th e right -to-marry arena, the

Court identified the right at i ssue in Lawrence as a matter of

choice, explaining that gay and lesbian individuals —like all

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people—enjoy the right to make

decisions regarding their

personal relationships. Id. at 567.

As we no te above, the

Court reiterated this theme in Windsor, in which it based its

conclusion that section 3 of DOM A was unconstitu tional, in part,

on that provis ion’s disrespect for the “mo ral and sexual

choices” that ac company a same -sex couple’s deci sion to ma rry.

133 S. Ct. at 2694. Lawrence and Windsor indicate that the

choices that i ndividuals make in the conte xt of same -sex

relationships enjoy the same co nstitutional protection as the

choices accompanying opposite -sex relationships. We therefore

have no reason to suspect that the Supreme Court would accord

the choice to m arry someone of the same sex a ny less respect

than the choic e to marry an opposite -sex individual who is of a

different race , owes child support

, or

is imprisoned .

Accordingly, we

decline the Proponents’ invitation to

characterize the right at issue in this case a s the right to

same-sex marriage rather than simply the right to marry.

Of course, “[b]y reaffirming the fundamental character o f

the right to marry, we do not mean to suggest t hat every state

regulation which relates in any way to

the incidents of or

prerequisites for marriage must be subjected to rigorous

scrutiny.” Zablocki, 434 U.S. at 386. Strict scrutiny applies

only when laws “significantly interfere” wit h a fundamental

right. See id. at 386 -87. The Virginia Marriage Laws

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unquestionably satisfy this requirement: they impede the right to marry by preventing same -sex couples from marrying and nullifying the legal import of their out -of-state marriages. Strict scrutiny therefore applies in this case.

B.

Under strict scrutiny, a law “may be justified only by

compelling state interests, and must be narrowly drawn to

express only those interests.”

Carey v. Po pulation Servs.

Int’l, 431 U.S. 678, 686 (1977). The Proponents bear the burden

of demonstrating that the Virginia Marriage Laws satisfy this

standard, see Fisher v. Univ. of Tex. at Aust in, 133 S. Ct.

2411, 2420 (2013) , and they must rely on the laws’

“actual

purpose[s]” rather than hypothet ical justifications, see Shaw v. Hunt, 517 U.S. 899, 908 n.4 (1996). The Proponents7 contend that

five compelling interests undergi rd the Virginia Marriage Laws:

(1) Virginia’s federalism-based interest in maintaining control

over the definition of marriage within its borders , (2) the

history and trad ition of opposite-sex marriage , (3) protecting

the institution of marriage, (4

) encouraging responsible

7 Although some of these arguments appear only in McQuigg’s briefs, we attr ibute them to the Proponents b ecause Schaefer “reserved the right to adopt and incorporate in whole or in part” McQuigg’s discussion of the rationales underlying the Virginia Marriage Laws.

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procreation, and (5) promoting the optimal childrearing environment. We discuss each of these interests in turn.

1. Federalism

The Constitution does not grant the federal government any

authority over domestic relations matters, such as marriage.

Accordingly, throughout our country’s history,

states have

enjoyed the freedom to define and regulate marriage as they see

fit. See Windsor, 133 S. Ct. at 2691-92. States’ control over

marriage laws within their borders

has resulted in some

variation among states’ requirements. For example, West

Virginia prohibits first cousins from marrying , W. Va. Code

§ 48-2-302, but the remaining s tates in this Cir cuit allow first

cousin marriage, see Md. Code Ann., Fam. Law § 2 -202; N.C. Gen.

Stat. § 51-3; S.C. Code Ann. § 20 -1-10; Va. Code Ann. § 20 -38.1.

States’ power to define and regu late marriage also accounts for

their differing treatment of same-sex couples.

The Windsor decision rested in p art on the Supre me Court’s respect for stat es’ supremacy in the domestic re lations sphere. 8

8 In Windsor, the Court did not label the type of constitutional scru tiny it applied, leaving us un sure how the Court would fit its federalism discussion with in a traditional heightened scrut iny o r rational basis analysis . The lower courts have taken differing approaches, with some discussing Windsor and federalism as a th reshold matter, see, e.g. , Wolf, 2014 WL 2558444, at *8 -12; Bishop v. United States ex rel.
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The Court recogn ized that section 3 of DOMA upset the status quo by robbing states of their ability to define m arriage. Although states could leg alize same -sex m arriage, they co uld not ensure that the incidents, benefits, and obligations of marriage would be uniform withi n their borders. See Windsor, 133 S. Ct. at 2692. However, the Court did not lament tha t section 3 had usurped states’ authority over marriage due t o its desire to safeguard federalism. Id. (“[T]he State’s power in defining the marital relation is of central relevance in this case quite apart from the p rinciples of fed eralism.”). I ts concern sp rung from section 3 ’s creation of two classes of married couples within states th at had legalized same -sex marria ge: opposite sex couples, whose marriage s the federal government recognized, and same -sex couples, whose marriage s the federal government ignored. Id. The resulting injury to same -sex couples served as the foundation for the Court’s conclusion that section 3 violated the Fifth Amendment’s Due Process Clause. Id. at 2693.

Holder, 962 F. Supp. 2d 1252, 12 77-79 (N.D. Okla. 2014) ; Kitchen

v. Herbert , 961 F. Supp. 2d 11 81, 1193-94 (D. Utah 2013) , and

others—such as the district court in

this case —considering

federalism as a state interest underlying the same -sex marriage

bans at issue, see, e.g. , Latta, 2014 WL 1909999, at *25 -26;

DeBoer, 973 F. Supp. 2d at 773 -75; Bostic, 970 F. Supp. 2d at

475-77. Althou gh we follow t he district cou rt’s lead and

situate our fed eralism discussi on within our application of

strict scrutiny, our conclusion would remain the same even if we

selected an alternate organizational approach.

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Citing Windsor, the Proponents u rge us to view Virginia’s

federalism-based interest in defining marriage as a suitable

justification for the Virginia Marriage Laws . However, Windsor

is actually detrimental to their position. Although the Court

emphasized states’ traditional authority over marriage, it

acknowledged that “[s]tate laws defining and regulating

marriage, of cou rse, must respec t the constituti onal rights of

persons.” Id. at 2691 (citing Loving, 388 U.S. 1); see also id.

at 2692 ( “The S tates’ interest in defining and regulating the

marital relation[] [is] subject to constitutional guarantees .”).

Windsor does not teach us that f ederalism principles can justify

depriving individuals of their constitutional rights; it

reiterates Loving’s admonition that the states must exercise

their authority without trampling constitutional guarantees.

Virginia’s federalism -based interest in defining marriage

therefore cannot justify its encroachment on the fundamental

right to marry.

The Supreme Court’s recent decision in

Schuette v .

Coalition to Def end Affirmative Action, 134 S. Ct. 1623 (2014),

does not change the conclusion that Windsor dictates. In

Schuette, the Court refused to strike down a voter

-approved

state constitutional amendment that barred public universities

in Michigan from using race -based preferences as part of t heir

admissions processes. Id. at 1629, 1638. The Court declined to

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closely scrutinize the amendment because it was not “used, or

. . . likely to be used, to encourage infliction of injury by

reason of race.” See id. at 1638. Instead, the Court dwelled

on the need to respect the voters’ policy ch oice, concluding

that “[i]t is d emeaning to the democratic pro cess to presume

that the voters are not capabl e of deciding a n issue of this

sensitivity on decent and rational grounds” and the judiciary’s

role was not to “disempower the voters from choosing which path

to follow.” Id. at 1635-38.

The Proponents emphasize that Virginia’s voter s approved

the Marshall/New man A mendment. Like the Michi gan amendment at

issue in Schuette, the Mar shall/Newman A mendment is the

codification of Virginians’ policy choice in a l egal arena that

is fraught with intense social and political debate. Americans’

ability to speak with their vote s is essential to our democracy.

But the people’s will is not an independent com pelling i nterest

that warrants d epriving same -sex couples of th eir fundamental

right to marry.

The very purpose of a Bill of R ights9 was to wit hdraw certain subjects from the vicissitudes of political

9 Of course, the Fourteenth Amendment is not part of the

Bill of Rights.

This excerpt from Barnette is nevertheless

relevant here du e to the Fourtee nth Amendment’s similar goal of

protecting unpopular minorities from government overreaching,

see Regents of Univ. of Cal. v. Bakke , 438 U.S. 265, 293 (1978),

and its role in rende ring the B ill of Rights ap plicable to the

states, see Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968).

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controversy, to place them beyond the reach of majorities and officials and t o establish the m as legal principles t o be applied by the courts. One’ s right to life, liberty, and property, to free speech, a free press, f reedom of worsh ip and assembly , and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
W. Va. State Bd. of Educ. v. Barnette , 319 U.S. 624, 638 (1943)
(footnote added) ; see also Romer, 517 U.S. at 62 3 (invalidating
a voter-approved amendment to Colorado’s constitution); Lucas v.
Forty-Fourth Gen. Assembly of Colo., 377 U.S. 71 3, 736-37 (1964)
(“A citizen’s c onstitutional ri ghts can hardly be infringed
simply because a majority of the people choose that it be.”) .
Accordingly, neither Virginia’s federalism -based interest in
defining marriag e nor our resp ect fo r the dem ocratic process
that codified th at definition ca n excuse the Vi rginia Marriage
Laws’ infringement of the right to marry.

2. History and Tradition

The Proponents a lso point to the “history and tr adition” of

opposite-sex marriage as a compe lling interest that supports the

Virginia Marriage Laws. The Supreme Court has made it clear

that, even under rational basis review, the “[ a]ncient lineage

of a legal concept does not give it immunity from attack.”

Heller v. Doe ex rel. Doe , 509 U.S. 312, 326 (1993). The

closely linked interest of promoting moral principles is

similarly infirm in light of

Lawrence: “the fact that the

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governing major ity in a Stat e has tra ditionally viewed a

particular practice as immoral is not a suffic ient reason for

upholding a law prohibiting the practice; neither history nor

tradition could save a law

prohibiting miscegenation from

constitutional attack.” 539 U.S. at 577 -78 (quoting Bowers v.

Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting))

(internal quotation marks omitted); see also id. at 601 (Scalia,

J., dissenting) (“But ‘preserving the traditiona l institution of

marriage’ is just a kinder way of describing the State’s moral

disapproval of s ame-sex couples.”). Preserving the historical

and traditional sta tus quo i s therefore no t a compelling

interest that justifies the Virginia Marriage Laws.

3. Safeguarding the Institution of Marriage In addition to arguing that history and tra dition are compelling interests in their own rights, the Proponents warn that deviating from the tradition of opposite -sex marriage will destabilize the institution of m arriage. The Proponents suggest that legalizing same-sex marriage will sever the link between marriage and pro creation: they argue that, if s ame-sex couples— who cannot procr eate naturally —are allowed to m arry, the state will sanction the idea that marriage is a vehicle for adults’ emotional fulfillment , not simply a framework for parenthood. According to the Proponents, if adults are the focal point of
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marriage, “then no logical groun ds reinforce sta bilizing norms

like sexual exclus ivity, permanence, and monogamy, ” which exist

to benefit children.

We recognize th at, in some cases, we owe “substantial

deference to the predictive judg ments” of the V irginia General

Assembly, for whom the Proponents purport to speak

. Turner

Broad. Sys., Inc. v. FCC , 520 U .S. 180, 195 (199 7). However,

even if we view the Proponents’ theories through rose -colored

glasses, we conclude that the y are unfounded for two key

reasons. First , the Supreme Court rejected the view that

marriage is abou t only procreati on in Griswold v. Connecticut ,

in which it upheld married couples’ right not to procreate and

articulated a view of marriage that has nothing to do with

children:

Marriage is a co ming together fo r better or for worse,

hopefully enduri ng, and intimat e to the degre e of

being sacred. It is an associati on that promotes a way

of life, not causes; a harmony in living, not

political faiths; a bilateral loyalty, not commercial

or social proje cts. Yet it is a n association fo r as

noble a purpos e as any

involved in our prior

decisions.

381 U.S. at 4 85-86; see also Turner, 482 U.S. at 95

-96

(describing many non -procreative purposes of marriage) . The

fact that marria ge’s stabilizing norms have en dured in the five

decades since the Supreme Court made this pronouncement weakens

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the argument that couples remain in monogamous marriage s only

for the sake of their offspring.

Second, the primary support that the Proponents off er for

their theory is the legacy of a wholly unrelated legal change to

marriage: no -fault divorce. Although n

o-fault divorce

certainly altere d the realities of married lif e by making it

easier for couples to end their relationships, we have no reason

to think that legalizing same-sex marriage will have a similar

destabilizing effect. In fact, it is more logic al to think that

same-sex couples want access to marriage so that they can take

advantage of its hallmarks, including faithfulness and

permanence, and that allowing loving, committed same-sex couples

to marry and recognizing their out -of-state marriages will

strengthen the i nstitution of ma rriage. We therefore reject the

Proponents’ concerns.

4. Responsible Procreation

Next, the Proponents contend that the Virginia Marriage

Laws’ differentiation between opposite -sex and same -sex couples

stems from the fact that unintended pregnancies cannot result

from same -sex unions. By

sanctioning only opposite -sex

marriages, the Virginia Marriage Laws “provid[ e] stability to

the types o f relationships that result in unplan ned pregnancies,

thereby avoiding or diminishing the negative outcomes often

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associated with unintended children .” The Proponents allege

that children born to unwed parents face a “significant risk” of

being raised in unstable famil ies, which is h armful to their

development. Virginia, “ of course, has a duty of the highest

order to protect the interest s of minor childre n, particularly

those of tender years.” Palmore v. Sidoti , 466 U.S. 429, 43 3

(1984).

However, the Virginia Marriage Laws are n ot

appropriately tailored to further this interest.

If Virginia sou ght to ensure r esponsible procreation via

the Virginia Marriage Laws, the laws are woefully

underinclusive. Same -sex couples are not the only category of

couples who cannot

reproduce accidentally. For example,

opposite-sex couples cannot procreate unintentionally if they

include a post -menopausal woma n or an individual with a medical

condition that prevents unassisted conception.

The Proponents attempt to downpl ay the similarity betwee n

same-sex couples and infertile opposite -sex couples in three

ways. First, they point out that sterile individuals could

remedy their fertility through future medical advances. This

potentiality, ho wever, does not explain why V irginia should

treat same -sex and infertile opposite-sex couples differently

during the cours e of the latter group’s infertility. Second ,

the Proponents posit that, even if one member of a man -woman

couple is sterile, the other member may not be. They

suggest

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that, without marriage’s monogamy mandate, this fertile

individual is more likely to have an unintended child with a

third party. They contend that, due to this possibility, even

opposite-sex couples who cannot procreate need marriage to

channel their procreative activity in a way that same

-sex

couples do not .

The Propo nents’ argument assumes that

individuals in same -sex relationships never have opposite -sex

sexual partners, which is simply not the case.

Third, the

Proponents imply that, by marrying,

infertile opposite -sex

couples set a positive exam ple for couples who can hav e

unintended children, thereby enc ouraging them to marry. We see

no reason why committed same-sex couples cannot serve as similar

role models. We therefore reje ct the Proponent s’ attempts to

differentiate same -sex couples from other couples who cannot

procreate accidentally. Because same -sex couples and infertile

opposite-sex couples

are similarly situated, the Equal

Protection Clause counsels against treating these groups

differently. See City of Cleburne , 473 U.S. at 439 (explaining

that the Equal Protection Claus e “is essentially a direction

that all persons similarly situated should be treated alike”).

Due to the Virg inia Marriage Laws’ underinclusivity , this

case resembles City of Cleburne v. Cleburne Livi ng Center, Inc.

In City of Cleburne, the Supreme Court struck down a city la w

that required g roup homes for the intellectually disabled to

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obtain a special use permit. Id. at 447 -50. The city did not

impose the same req uirement on similar struct ures, such as

apartment comple xes and nursing homes . Id. at 447. The C ourt

determined that the permit requirement was so underinclusive

that the city’s motivation must have “rest [ed] o n an irrational

prejudice,” rendering the la w unconstitutional. Id. at 450. In

light of the Vi rginia Marriage Laws’ extreme un derinclusivity,

we are forced to draw the same conclusion in this case.

The Proponents’ responsible procreation argument falters

for another reason as well. Strict scrutin y requires that a

state’s means fu rther its compelling interest . See Shaw, 517

U.S. at 915 (“ Although we hav e not always p rovided precise

guidance on how closely the means . . . must serve the end (the

justification or compelling inte rest), we have always expected

that the legislative action would substantially address, if not

achieve, the av owed purpose .”). Prohibiting s ame-sex couples

from marrying an d ignoring their out-of-state marriages does not

serve Virginia’s goal of preventing out

-of-wedlock birt hs.

Although same -sex couples cannot procreate accidentally, they

can and do have children via o ther methods . According to an

amicus brief filed by Dr. Gary J. Gates, a s of th e 2010 U.S.

Census, more than 2 500 same -sex c ouples were raising more than

4000 children under the age of eighteen

in Virginia . The

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Virginia Marriage Laws therefore increase the nu mber of children

raised by unmarried parents.

The Proponents ac knowledge that same -sex couples become

parents. They contend, however, that the state has no interest

in channeling same -sex couples’ procreative activities into

marriage because same -sex couples “bring children into their

relationship[s] only through intentional choice and pre -planned

action.” Accor dingly, “[t]hose couples neithe r advance nor

threaten society’s public purpose for marriage”

—stabilizing

parental relationships for the benefit of children —“in the same

manner, or to th e same degree, t hat sexual relat ionships between

men and women do.”

In support of this argument, the Proponents inv oke the

Supreme Court’s decision in Johnson v. Robiso n, 41 5 U.S. 361

(1974). Johnson concerned educational benefits that the federal

government grant ed to military veterans who se rved on active

duty. Id. at 3 63. The government provided these benefits to

encourage enlistment and make mi litary service m ore palatable to

existing servicemembers . Id. at 382 -83. A conscientious

objector—who refused to serve in the military for religious

reasons—brought suit, contending that the government acted

unconstitutionally by granting benefits to vet erans but not

conscientious objectors . Id. at 363 -64. The Court explained

that, “[w]hen, as in this case,

the inclusion of one group

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promotes a legitimate governmental purpose, and the addition of

other groups would not,

we cannot say that the statute’

s

classification of beneficiaries and non

beneficiaries is

invidiously discriminatory.” Id. at 383 . Because offering

educational benefits to conscientious objectors would not

incentivize military service, the federal governm ent’s line -

drawing was constitutional. Johnson, 415 U.S. at 382 -83. The

Proponents claim that treating opposite -sex couples differently

from same -sex c ouples is equally justified be cause the two

groups are not similarly situated

with respect to

their

procreative potential.

Johnson applied rational basis r eview, id. at 374-75, so we

strongly doubt its applicabi lity to our

strict scrutiny

analysis. In any event, we can easily distinguish Johnson from

the instant case . In Johnson, offering educational bene fits to

veterans who se rved on active duty promoted t he government’s

goal of making military service more attractive . Extending

those benefits to conscientious objectors

, whose religious

beliefs precluded military service,

did not further that

objective. By contrast, a stable marital relationship is

attractive regardless of a couple

’s procreative ability.

Allowing infertile opposite-sex couples to marry does nothing to

further the government’s goal of channeling procreative conduct

into marriage. Thus, excluding same -sex couple s from marriage

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due to their ina bility to have u nintended children makes little sense. Johnson therefore does not alter our conclusion that barring same -sex couples’ acces s to marriage does nothing to further Virginia’s interest in responsible procreation.

5. Optimal Childrearing

We now shift

to discussing the merit of

the final

compelling interest that the Proponents invoke: optimal

childrearing. T he Proponents aver that “childre n develop best

when reared by their married bio logical parents in a stable

family unit.” They dwell on the importan ce of “gender -

differentiated parenting” and argue that sanctioning same -sex

marriage will deprive children of the benefit of being raised by

a mother and a father, who have “distinct parenting styles.” In

essence, the Proponents argue that the Virginia Marriage Laws

safeguard children by preventing same-sex couples from marrying

and starting inferior families.

The Opponents a nd their amici cast serious do ubt on the

accuracy of the Propone nts’ con tentions. For example, as the

American Psychological Association, American Academy of

Pediatrics, American Psychiatric Association, National

Association of Social Workers, and Virginia Psychological

Association (col lectively, the APA) explain in t heir amicus

brief, “there is no scien

tific evidence that parenti

ng

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effectiveness is related to par ental sexual or ientation,” and

“the same factors” —including family stability, economic

resources, and the quality of parent -child relationships —“are

linked to children’s positive development, whe ther they are

raised by hetero sexual, lesbian, or gay parents. ” According to

the APA, “the p arenting abilities of gay men a nd lesbians —and

the positive ou tcomes for thei r children —are not areas where

most credible scientific researchers disagree,” and the contrary

studies that th e Proponents ci te “do not refl ect the current

state of scientific knowledge.” See also DeBoer, 973 F. Supp.

2d at 760 -68 (making factual findings and reaching the same

conclusion). In fact, th e APA explains that, by preventing

same-sex couples from marrying,

the Virginia Marriage Laws

actually harm th e children of s ame-sex couples by stigmatizing

their families and robbing them of the stab ility, economic

security, and to getherness that marriage fosters. The Supreme

Court reached a similar conclu sion in Windsor, in which it

observed that failing to recognize same

-sex marriages

“humiliates tens of thousands o f children now being raised by

same-sex couples ” and “ makes it even more difficult for th e

children to unde rstand the integ rity and closene ss of their own

family and its concord with oth er families in their community

and in their daily lives.” 133 S. Ct. at 2694.

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We find the arg uments that the Opponents and their amici

make on this issue extremely persuasive. However, we need not

resolve this dispute

because the Proponents’

optimal

childrearing argument falters for at least two other reasons .

First, under heightened scrutiny, states cannot support a law

using “overbroad generalizations about the different talents,

capacities, or preferences of” the group s in question . United

States v. Virginia, 518 U.S. 515, 533-34 (1996) (rejecting

“inherent differences” between men and women as a justification

for excluding all women from a traditionally a ll-male military

college); see a lso Stanley v. Illinois, 405 U .S. 645, 656 -58

(1972) (holding that a state co uld not presume that unmarried

fathers were unfit parents) .

The Proponents’ statements

regarding same -sex couples’ parenti ng ability certainly qualify

as overbroad generalizations . Second, as we explain above,

strict scrutiny requires congruity betw een a law ’s means and its

end. This cong ruity is absent here. There i s absolutely no

reason to suspect that prohibiting

same-sex couples from

marrying and refusing to recognize their out -of-state marriages

will cause same -sex couples to raise fewer ch ildren or impel

married opposite -sex c ouples to raise more children.

The

Virginia Marriage Laws therefore do not further Virginia’s

interest in chan neling children into optimal fam ilies, even if

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we were to accep t the dubious pr oposition that s ame-sex couples are less capable parents.
Because the Pro ponents’ arguments are based on overbroad generalizations about same -sex parents , and because there is no link between banning same -sex marriage and promoting optimal childrearing, th is aim cannot support the Vir ginia Marriage Laws. All of t he Proponents’ j ustifications for the Virgin ia Marriage Laws th erefore fail, an d the laws canno t survive strict scrutiny.

V.

For the foregoing reasons, we conclude that the Virginia

Marriage Laws v iolate the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the extent that they

prevent same-sex couples from marrying and pr ohibit Virginia

from recognizing

same-sex couples’

lawful out-of-state

marriages. We therefore affirm the district c ourt’s grant of

the Plaintiffs’ motion for summa ry judgment and its decision to enjoin enforcement of the Virginia Marriage Laws.10

10 Because we are able to resolve the merits of the

Opponents’ claims, we need n

ot consider th eir alternative

request for a preliminary inju nction. We a ssume that the

district court’s decision to enjoin enforcement of the Virginia

Marriage Laws encompassed a pe rmanent injuncti on, which the

Plaintiffs requested in con nection with their motion for summary

judgment.

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We recognize that same -sex marriage makes some people

deeply uncomfortable.

However, inertia and apprehension are

not legitimate bases for denying same -sex couples due process

and equal protection of the laws . Civil marriage is one of the

cornerstones of our way of life . It allows individuals to

celebrate and pu blicly declare t heir intentions to form lifelong

partnerships, which provide

unparalleled intimacy,

companionship, emotional support , and security. The choice of

whether and whom to marry is an intensely personal decision that

alters the cour se of an indivi dual’s life . Denying same-sex

couples this cho ice prohibits th em from particip ating fully in

our society, which is precisely the type of segregation that the

Fourteenth Amendment cannot countenance.

AFFIRMED

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NIEMEYER, Circuit Judge, dissenting:

To be clear, thi s case is not about whether cour ts favor or

disfavor same -sex marriage, or whether States recognizing or

declining to rec ognize same -sex marriage have ma de good policy

decisions. It is much narrower. It is about whether a S tate’s

decision not to recognize same

-sex marriage violates the

Fourteenth Amendment of the U.S. Constitution. Thus, the

judicial response must be limited to an analysis applying

established constitutional principles.

The Commonwealth of Virginia has alw ays recognized that

“marriage” is based on the “mu tual agreement of a man and a

woman to marry each other,” Burke v. Shaver , 23 S.E. 749, 74 9

(Va. 1895), and that a marriage’ s purposes inclu de “establishing

a family, the continuance of the race, the propagation of

children, and the general go od of society, ” Alexander v.

Kuykendall, 63 S.E.2d 746, 748 (Va. 1951). In recent years, it

codified that u nderstanding in several statut es, which also

explicitly exclu de from the def inition of “marr iage” the union

of two men or two women. Moreover, in 2006 the people of

Virginia amended the Commonwealth’s Constitution to define

marriage as only between “one man and one woman.” Va. Const .

art. I, § 15-A.

The plaintiffs, who are in long

-term same -sex

relationships, ar e challenging the constitutionality of

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Virginia’s marr iage laws unde r the Due Pro cess and Equal Protection Clauses of the U.S. C onstitution. Th e district court sustained their challenge, concluding that the p laintiffs have a fundamental right to marry eac h other under the Due Process Clause of the Fourteenth Amendment and therefore that any regulation of that right is subject to strict scrutiny. Concluding that Virginia’s def inition of marr iage failed eve n “to display a ra tional relationship to a legitim ate purpose and so must be viewe d as constitutio nally infirm,” t he court struck down Virginia’s marriage laws as unconstitutional and enjoined their enforcemen t. Bostic v. R ainey, 970 F. Su pp. 2d 456, 482 (E.D. Va. 2014).
The majority ag rees. It con cludes that the f undamental right to marriage includes a right to same -sex marriage and that therefore Virginia’s marriage la ws must be revie wed under strict scrutiny. It holds that Virginia has failed to advance a compelling state interest justifying its defi nition of marriage as between only a man and a woman. In reaching this conclusion, however, the majority has failed to conduct the necessary constitutional analysis. Rather, it has simply declared syllogistically that because “ma rriage” is a fu ndamental right protected by the Due Process Clause and “same -sex marriage” is a form of marriage , Virginia’s law s declining to recognize same -
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sex marriage inf ringe the fundam ental right to m arriage and are

therefore unconstitutional.

Stated more particularly, the majority’s approach begins

with the partie s’ agreement th at “marriage” i s a fundamental

right. Ante at 40. From there, the majority moves to the

proposition that “the right to marry is an e xpansive liberty

interest,” ante at 41, “that is not circumscribe d based on the

characteristics of the individu als seeking to exercise that

right,” ante at 42-43. For supp ort, it notes th at the Supreme

Court has struck down state restrictions prohibiting interracial

marriage, see Loving v. Virginia , 388 U.S. 1 (19 67); prohibiting

prison inmates from marrying without special approval,

see

Turner v. Safley , 482 U.S. 78 ( 1987); and prohi biting persons

owing child supp ort from marryin g, see Zablocki v. Redhail , 434

U.S. 374 (1978). It then declares,

ipse dixit, that “the

fundamental righ t to marry enc ompasses the rig ht to same -sex

marriage” and is thus protected by the substanti ve component of

the Due Process Clause.

Ante at 41. In reaching this

conclusion, the majority “decline[s] the Proponents’ invitation

to characterize the right at issue in this case as the right to

same-sex marriage rather than simply the right to marry.” Ante

at 44. And in doing so, it e xplicitly bypasses the relevant

constitutional analysis required by Washington v. Glucksberg ,

521 U.S. 702 (1997 ), stating that a Glucksberg analysis is not

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necessary because no new fundamental right is being recognized.

Ante at 41-42.

This analysis is fundamentally f lawed because it fails to

take into account that the “marriage” that has long been

recognized by t he Supreme Cour t as a fundame ntal right is

distinct from t he newly propos ed relationship of a “same -sex

marriage.” And this failure is even more pronounced by the

majority’s acknowledgment that s ame-sex marriage is a new notion

that has not been recognize d “for most of our country’s

history.” Ante at 41. Moreover, the majority fails to explain

how this new n otion became inc orporated into the traditional

definition of ma rriage except by linguistic mani pulation. Thus,

the majority never asks the question

necessary to finding a

fundamental right -- whether same -sex marriage is a right that

is “deeply roote d in this Natio n’s history and tradition” and

“implicit in the concept of ordered liberty, such that neither

liberty nor ju stice would ex ist if [it wa s] s acrificed.”

Glucksberg, 521 U.S. at 721 (qu oting Moore v. East Cleveland ,

431 U.S. 494, 503 (1977)

(plurality opin ion); Palko v.

Connecticut, 302 U.S. 319, 325 -26 (1937)) (int ernal quotation

marks omitted).

At bottom, in holding that same -sex marriage is encompassed

by the traditio nal right to m arry, the major ity avoids the

necessary constitutional analysis, concluding simply and broadly

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that the fundamental “right to marry”

-- by everyone and to

anyone -- may not be infringed. And it does not anticipate or

address the pro blems that this approach cause s, failing to

explain, for example, why this broad right to marry, as the

majority defines it, does not also encompass the “right” of a

father to marry his daughter o r the “right” o f any person to

marry multiple partners.

If the majorit y were to r ecognize and ad dress the

distinction between the two rela tionships -- the traditional one

and the new one -- as it must, it would simpl y be unable to

reach the conclusion that it has reached.

I respectfully submit that, for the reasons that follow,

Virginia was well within its constitutional authority to adhere

to its traditional definition of marriage as the union of a man

and a woman and to exclude from that definition the union of two

men or two women. I would a lso agree that the U.S. Constitution

does not prohibit a State from defining marriage to include

same-sex marriag e, as many Stat es have done. Accordingly, I

would reverse the judgment of the district court and uphold

Virginia’s marriage laws.

I As the majority has observed, state recognition of same-sex marriage is a new phenomenon. Its history began in the earl y

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2000s with the r ecognition in so me States of civ il unions. See,

e.g., Vt. Stat. Ann. tit. 15, §§ 1201 -1202 (2000 ); D.C. Code §

32-701 (1992) (effective in 20 02); Cal. Fam. Code §§ 297 -298

(2003); N.J. Stat. Ann. § 26:8A -2 ( 2003); Conn. Gen. Stat. Ann.

§ 46b -38nn (2006), invalidated by Kerrigan v. Comm’ r of Pub.

Health, 957 A.2d 407 (Conn. 2008). And the not ion of same -sex

marriage itself firs t gained traction in 2003, when the

Massachusetts Supreme Judicial Court held that the

Commonwealth’s prohibition on is suing marriage l icenses to same -

sex couples vio lated the State ’s Constitution -- the first

decision holding that same -sex couples had a r ight to marry.

See Goodridge v. Dep’t of Pub. Health , 798 N.E.2d 941, 968

(Mass. 2003). In 2009, Vermont became the first State to enact

legislation recognizing same -sex marriage, and, since then, 11

other States and the District of Columbia have also do

ne so.

See Conn. Gen. S tat. §§ 46b -20 to 46b -20a; Del. Code Ann. tit.

13, § 101; D.C. Code § 46 -401; Haw. Rev. Stat. § 572-1; 750 Ill.

Comp. Stat. 5/20 1; Me. Rev. Stat . tit. 19 -A, § 650-A; Md. Code

Ann., F am. Law §§ 2 -201 to 2 -202; Minn. Stat. Ann. §§ 517.01 to

517.03; N.H. Rev . Stat. Ann. §§ 457:1-a to 457:2 ; N.Y. Dom. Rel.

Law § 10-a; R.I. Gen. Laws § 15 -1-1 et seq.; Vt. Stat. Ann. tit.

15, § 8; Wash. Rev. Code §§ 26. 04.010 to 26.04. 020. Moreover,

seven other Stat es currently all ow same-sex marriage as a result

of court rulings . See Hollingsworth v. Perry , 133 S. Ct. 2652

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(2013); Varnum v . Brien , 763 N.W .2d 862 (Iowa 20 09); Goodridge, 798 N.E.2d 941; Garden State Equ ality v. Dow, 79 A.3d 1036 (N.J. 2013); Griego v. Oliver , 316 P.3d 865 (N.M. 2013) ; Geiger v. Kitzhaber, ___ F . Supp . 2d ___, No. 6:13 -CV-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014); Whitewood v. Wolf , ___ F. Supp . 2d ___, No. 1:13 -CV-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014). This is indeed a recent phenomenon.
Virginia only recogn izes marriage as between one man and one woman, and, like a majority of States, it has codified this view. See Va. Code Ann. § 20 -45.2 (prohibiting same -sex marriage and dec lining to recogn ize same-sex marriages conducted in other States) ; id. § 20 -45.3 ( prohibiting ci vil unions and similar arrangements between persons of the same sex). The bill originally proposing what would become § 20 -45.3 noted the basis for Virginia’s legislative decision:
[H]uman marriage is a consumm ated two in one communion of ma le and female persons mad e possible by s exual differences which are reproducti ve in type, whet her or not they are reproductive in effect or motivation. This present relationship recognizes the equality of male and female persons, and antedates recorded history. Affirmation of M arriage Act, H.D . 751, 2004 Gen. Assembly, Reg. Sess. (Va. 2004). The bill predicted that the recognition of same-sex marriage would “radically transform the institution of marriage with s erious and harm ful consequences to the socia l order.” Id. Virginia also amended its Constitution in 2006 to
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define marriage as only between “one man and one woman” and to prohibit “a le gal status for relationships of unmarried individuals that intends to app roximate the des ign, qualities, significance, or effects of marr iage.” Va. Cons t. art. I, § 15A. The plaint iffs commenced this action to challenge the constitutionality of Virginia’s marriage laws.
Plaintiffs Timot hy B. Bostic and Tony C. London have lived in a committed same -sex relationshi p since 1989 and have lived in Virginia sinc e 1991. The tw o desired to mar ry in Virginia, and on July 1, 2013, when they applied for a marriage license at the office of the Clerk of the Circuit Court for the City of Norfolk, they w ere denied a l icense and told that same -sex couples are ineligible to marry in Virginia. In their complaint challenging Virginia’s marriage laws, they all eged that their inability to marry has disadvantaged them in both economic and personal ways -- it has prevented them from fi ling joint tax returns, kept them from sharing health insurance on a tax -free basis, and signaled that they are “less than” other couples in Virginia.
Plaintiffs Carol Schall and Ma ry Townley like wise have lived in a committed same -sex relationship since 1985 and have lived in Virgin ia throughout t heir 29 -year re lationship. In 1998, Townley gave birth to a daughter, E.S. -T., whom Schall and Townley have raised together, and in 2008, the two traveled to
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California where they were lawf ully married. They al leged in

their complaint that because Vir ginia does not recognize their

marriage as val id, they have been injured in several ways.

Schall is unable to legally adopt E.S. -T., and the two are

unable to share health insurance on a tax -free basis. The two

also claimed that they and E.S. -T. have experienced stigma as a

result of Virginia’s nonrecognition of their marriage.

The plaintiffs’ complaint, filed in July 2013, alleged that

Virginia’s marriage laws violate their constitutional rights

under the Due Process and Equ al Protection C lauses of the

Fourteenth Amendment. They named as defendants George E.

Schaefer, III, Clerk of Court for the Norfolk Circuit Court, and

Janet M. Rainey, the State Registrar of Vital Records. A third

Virginia official, Michèle B . M cQuigg, Clerk of Court for the

Prince William County Circuit Court, was permitted to intervene

as a defendant. As elected circuit court clerks, Schaefer and

McQuigg are resp onsible for issu ing individual m arriage licenses

in the localities in which the y serve. And Rainey, as the State

Registrar of V ital Records, is responsible for ensuring

compliance with Virginia’s marriage laws, including the laws

challenged in this case.

After the partie s filed cross -motions for summar y judgment,

Virginia underwent a change in administrations, and the newly

elected Attorney General of Virginia, Mark

Herring, filed a

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notice of a change in his office ’s legal positio n on behalf of

his client, defendant Janet Rainey.

His notice stated that

because, in his view, the law s at issue were unconstitutional,

his office would no longer defend them on behalf of Rainey. He

noted, however, that Rainey would continue to enforce the laws

until the court’s ruling. The other officials have continued to

defend Virginia’ s marriage law s, and, for conve nience, I refer

to the defendants herein as “Virginia.”

Following a hear ing, the distric t court, by an order and

memorandum dated February 14, 2014, granted t he plaintiffs’

motion for summary judgment and denied Virginia’s cross -motion.

The court concluded that same -sex partners have a fundamental

right to marry each other under the Due Process Clause of th e

Fourteenth Amendment, thus requiring that Virginia’s marriage

laws restricting that right be narrowly drawn to further a

compelling state interest. It concluded that the laws did not

meet that requirement and, indeed, “fail[ed] to display a

rational relationship to a legi timate purpose, and so must be

viewed as consti tutionally infir m under even th e least onerous

level of scrutiny.” Bostic, 970 F. Supp. 2d at 482. Striking

down Virginia’s marriage laws, t he court also i ssued an order

enjoining their enforcement b ut stayed that order pending

appeal. This appeal followed.

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II

The plaintiffs contend that, as same -sex partners, they

have a fundamental right to marry that is protected by the

substantive component of the Due Process Clause of the U.S.

Constitution, U.S. Const. amend. XIV, § 1 (prohi biting any State

from depriving “any person of life, liberty, or property,

without due pro cess of law”), an d that Virginia’ s laws defining

marriage as only between a man and a woman and excluding same -

sex marriage i nfringe on tha t right. The

constitutional

analysis for adjudging their claim is well established.

The Constitution contains no la nguage directly protecting

the right to s ame-sex marriage or even tradi tional marriage.

Any right to same -sex marriage, therefore, would have to be

found, through court interpretation, as a substantive component

of the Due Process Clause.

See Planned Par enthood of

Southeastern Pa. v. Casey , 505 U.S. 833, 846 (1992) (“Although a

literal reading of the Clause might suggest that it governs only

the procedures by which a State may deprive persons of liberty,

for at least 105 years . . . th e Clause has been un derstood to

contain a substantive component as well”).

The substantive component of the Due Process Clause only

protects “fundamental” liberty i nterests. And t he Supreme Court

has held that l iberty interests are only funda mental if they

are, “objectivel y, ‘deeply roote d in this Natio n’s history and

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tradition,’ and ‘implicit in the concept of ordered liberty,’

such that ‘neither liberty nor justice would exist if they were

sacrificed.’” Glucksberg, 521 U .S. at 720 -21 (citation omitted)

(quoting Moore, 431 U.S. at 503 (plurality opinion); Palko, 302

U.S. at 325-26). When determin ing whether such a fundamental

right exists, a court must alway s make “a ‘ careful description’

of the asserted fundamental li berty interest.” Id. at 721

(emphasis added) (quoting Reno v. Flores , 507 U.S. 292, 302

(1993)). This “careful description” involves ch aracterizing the

right asserted in its narrowes t terms . Thus, in Glucksberg,

where the Court was presented with a due process challenge to a

state statute banning assisted s uicide, the Court narrowly

characterized the right being asserted in the following manner:

The Court of App eals stated that “[p]roperly analyzed,

the first issue to be resolved is whether there is a

liberty interest in determining the time and manner of

one’s death,” or , in other words , “ [i]s there a right

to die?” Similarly, respondents assert a “liberty to

choose how to die” and a right to “control of one ’s

final days,” and describe the asserted liberty a s “the

right to choose a humane, d ignified death,” and “the

liberty to shape death.” As noted above, we have a

tradition of carefully formulating the interest at

stake in substantive -due-process cases . . . .

The

Washington statute at issue in this case prohibits

“aid[ing] another person to attempt suici de,” and,

thus, the question before us is whether the “liberty”

specially protected by the Due Process Clause in cludes

a right to commit suicide which itself includes a

right to assistance in doing so.

Glucksberg, 521 U.S. at 722

-23 (alterations in origin al)

(emphasis added) (citations omitted).

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Under this formulation, because the Virginia laws at issue

prohibit “marriage between perso ns of the same sex,” Va. Code

Ann. § 20 -45.2, “the question before us is whether the ‘liberty’

specially protected by the Due P rocess Clause in cludes a right”

to same -sex marriage. Glucksberg, 521 U.S. at 723; see also

Jackson v. Abercrombie , 884 F. Supp. 2d 1065, 1095 (D. Haw.

2012) (“[M]issing from Plaintiffs’ asserted ‘right to marry the

person of one’s choice’ is its cen terpiece: the right to m arry

someone of the same gender”).

When a fundament al right is so i dentified, then any statute

restricting the right is subject to strict scrutiny and must be

“narrowly tailored to serve

a compelling s tate interest.”

Flores, 507 U.S. at 302. Such scrutiny is extremely difficult

for a law to w ithstand, and, as such, the Su preme Court has

noted that courts must be extremely cautious in recognizing

fundamental rights because doing so ordinarily removes freedom

of choice from the hands of the people:

[W]e “ha[ve] always been reluctant to expand the

concept of substantive due process because guideposts

for responsible decisionmaking in this unchartered

area are scarce and open

-ended.”

By extending

constitutional protection to an asser ted right or

liberty interest , we, to a gre at extent, plac e the

matter outside the arena o

f public debate and

legislative action. We must th erefore “exercise the

utmost care when ever we are aske d to break new g round

in this field, ” lest the liberty protec ted by th e Due

Process Clause be subtly transformed into the p olicy

preferences of the Members of this Court.

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Glucksberg, 521 U.S. at 720

(second alteration in original )

(emphasis added) (quoting Collins v. City of Har ker Heights, 503

U.S. 115, 125 (1992)).

The plaintiffs in this case, as well as the majority,

recognize that n arrowly defining the asserted l iberty interest

would require t hem to demonstr ate a new fundamental right to

same-sex marriage, which they cannot do. Thus, they have made

no attempt to argue that same -sex marriage is , “objectively,

deeply rooted i n this Nation’s history and tradition,” and

“implicit in the concept of ordered liberty.”

Glucksberg, 521

U.S. at 720 -21 (internal quotation marks omitted ). Indeed, they

have acknowledge d t hat recognition of same-sex marriage is a

recent developme nt. See ante at 41; see also United States v.

Windsor, 133 S. Ct. 2675, 2689 (2013) (“Until recent years, many

citizens had not even considered the possibility of [same -sex

marriage]” (emphasis add ed)); id. at 2715 (Alito, J.,

dissenting) (noting that it is “beyond dispute that the right to

same-sex marriage is not deeply rooted in this N ation’s history

and tradition”); Baehr v. Lewin , 852 P.2d 44, 57 (Haw. 1993)

(“[W]e do not believe that a right t o same -sex marriage is s o

rooted in the tr aditions and col lective conscience of our people

that failure to recognize it would violate t he fundamental

principles of liberty and justice that lie at t he base of all

our civil and political institutions”).

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Instead, the pl aintiffs and th e majority argu e that the

fundamental right to marriag

e that has

previously been

recognized by the Supreme Court is a broad right that should

apply to the plaintiffs without the need to recognize a new

fundamental right to same -sex m arriage. They argue that this

approach is supp orted by the fac t that the Supre me Court did not

narrowly define the right to

marriage in i ts decisions in

Loving, 388 U.S. at 12; Turner, 482 U.S. at 94 -96; or Zablocki,

434 U.S. at 383-86.

It is true th at, in those cases, the Court did not

recognize new, separate fundamental rights to fit the factual

circumstances in each case. For example, in Loving, the Court

did not examine whether interra cial marriage wa s, objectively,

deeply rooted in our Nation’s history and tradit ion. But it was

not required to do so. Each of those cases involved a couple

asserting a right to enter into a traditional marriage of the

type that has always been recognized since the beginning of the

Nation -- a union between one man and one woman. While the

context for asserting the right varied in each of those cases,

it varied only in ways irrelevant to the concept of marriage.

The type of rela tionship sought was always the t raditional, man-

woman relationship to which the term “m arriage” was theretofore

always assumed to refer. Thus, none of the cases cited by the

plaintiffs and r elied on by the majority involved the assertion

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of a brand new liberty interest. To the contrary, they involved

the assertion of one of the oldest and most fundamental liberty

interests in our society.

To now define t he previously recognized fundamental right

to “marriage” as a concept that includes the new notion of

“same-sex marriage” amounts to a dictionary juri sprudence, which

defines terms as convenient to attain an end.

It is true that same -sex and opposite -sex relationships

share many attri butes, and, ther efore, marriages involving those

relationships would, to a substantial extent, be similar. Two

persons who ar e attracted to each other

physically and

emotionally and who love each o ther could publi cly promise to

live with each other thereafter in a mutually desirable

relationship. T hese aspects are the same wheth er the persons

are of the same sex or different sexes. Moreover, both

relationships could successfully function to raise children,

although children in a same -sex relationship would come from on e

partner or from adoption. Bu t there are al so significant

distinctions between the relationships that can justify

differential treatment by lawmakers.

Only the union of a man and a woman has the capacity to

produce children and thus to ca rry on the spec ies. And more

importantly, only such a union c reates a biologi cal family unit

that also gives rise to a traditionally stable political unit.

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Every person’s identity includes the person’s particular

biological relationships, which create unique and meaningful

bonds of kinship that are extraordinarily strong and enduring

and that have been afforded a privileged place in political

order throughout human history. Societies ha ve accordingly

enacted laws promoting the family unit -- such as those relating

to sexual engage ment, marriage r ites, divorce, i nheritance, name

and title, and economic matters. And many societies have found

familial bonds so c ritical that they have elevated marriage to

be a sacred institution trapped with religious rituals. In

these respects, the traditional man

-woman relationship is

unique.

Thus, when the Supreme Court has recognized, through the

years, that the right to mar ry is a fundamental right, it ha s

emphasized the procreative a nd social orde ring aspects o f

traditional marriage. For example, it has said: “[Marriage] is

an institution, in the maintenance of which in its purity the

public is deeply interested, for it i s the foundation of the

family and of society , without which there would be neither

civilization nor progress,” Maynard v. Hill , 125 U.S. 190, 211

(1888) (emphasis added); Marria ge is “one of the basic civil

rights of man. Marriage and procreation are fun damental to the

very existence and survival of the race,” Skinner v. Oklahoma ex

rel. Williamson, 316 U.S. 535, 541 (1942); “It is not surprising

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that the decision to marry has been placed on the same level of

importance as decisions relating to procreatio n, childbirth,

childrearing, and family relationships. . . . [Marriage] is the

foundation of the family in our society,” Zablocki, 434 U.S. at

386.

Because there exist deep, fundamental differences between

traditional and same -sex marr iage, the plai ntiffs and the

majority err by conflating the two relationsh ips under the

loosely drawn rubric of “the right to marriage.” Rather, to

obtain constitut ional protection , they would ha ve to show that

the right to same -sex marriage is itself deeply rooted in our

Nation’s history. They have no t attempted to do so and could

not succeed if they were so to attempt.

In an effort to bridge the obvio us differences b etween the

traditional relationship and the new same -sex relationship, the

plaintiffs argue that the fund amental right to marriage “has

always been base d on, and define d by, the consti tutional liberty

to select the pa rtner of one’s c hoice.” (Emphas is added). They

rely heavily on Loving to asse rt this claim. In Loving, the

Court held that a state regulation

restricting interracial

marriage infringed on the fundamental right to marriage.

Loving, 388 U.S. at 12. But nowhere in

Loving did the Court

suggest that t he fundamental right to mar ry includes th e

unrestricted ri ght to marry whomever one c hooses, as the

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plaintiffs claim . Indeed, Loving explicitly re lied on Skinner

and Murphy, and both of those cases discusse d marriage in

traditional, procreative terms. Id.

This reading of Loving is fortif ied by the Court ’s summary

dismissal of Baker v. Nelson , 191 N.W .2d 18 5 (Minn. 1971),

appeal dismissed , 409 U.S. 810 (1972), just f ive years after

Loving was deci ded. In Baker, the Minnesota Supreme Court

interpreted a state statute’s use of the term “marriage” to be

one of common usage meaning a union “between person

s of the

opposite sex” and thus not including same -sex marriage. Id. at

186. On appeal, the Supreme Court dismissed the case summarily

“for want of a substantial federal question.” 409 U.S. at 810.

The Court’s action in context indicates that the Court did not

view Loving or the cases that preceded it as providing a

fundamental right to an unrestri cted choice of m arriage partner.

Otherwise, the s tate court’s dec ision in Baker would indeed have

presented a substantial federal question.

In short, Loving simply held tha t race, which is completely

unrelated to the institution of marriage, could not be the basis

of marital rest rictions. See Loving, 388 U .S. at 12. To

stretch Loving’s holding to say that the right to marry is no t

limited by gend er and sexu al orientation is to ignore the

inextricable, biological link between marriage and procreation

that the Supreme Court has always recognized. See Windsor, 133

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S. Ct. at 2689 (recognizing tha t throughout his tory, “marriage

between a man and a woman no dou bt had been thought of by most

people as essent ial to the very definition of t hat term and to

its role and function”). The state regulation struck down in

Loving, like those in Zablocki and Turner, had no relationship

to the foundatio nal purposes of marriag e, while the gender of

the individuals in a marriage clearly does. Thus, the majority

errs, as did th e district cour t, by interpret ing the Supreme

Court’s marriage cases as esta blishing a right that includes

same-sex marriage.

The plaintiffs a lso largely ignore the problem with their

position that if the fundamental right to marriage is based on

“the constitutio nal liberty to select the p artner of one’s

choice,” as they contend, then that liberty would also extend to

individuals seeking state rec ognition of ot her types of

relationships that States curren tly restrict, su ch as polygamous

or incestuous relationships. Cf. Romer v. Evans , 517 U.S. 620,

648-50 (1996) (S calia, J., disse nting). Such an extension would

be a radical

shift in

our understandin g of m arital

relationships. Laws restricti ng polygamy are foundational t o

the Union itself, having been a condition on the entrance of

Arizona, New Me xico, Oklahoma, and Utah into statehood. Id.

While the plaintiffs do attempt to assure us that such laws are

safe because “th ere are weighty government interests underlying”

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them, such an argument does not bear on the question of whether the right is fundamental. The government’s interests would instead be relevant only to whether the restriction could meet the requisite st andard of review . And because l aws prohibiting polygamous or incestuous marriages restrict individuals’ right to choose whom t hey would like t o marry, they wo uld, under the plaintiffs’ approach, have to be examined under strict scrutiny. Perhaps the government’s interest would be strong enough to enable such law s to survive s trict scrutiny, but regardless, today’s decision would truly be a sweeping one if it could b e understood to me an that individu als have a fundamental right to enter into a marriage with any p erson, or any pe ople, of their choosing.
At bottom, the fundamental ri ght to marriage does not include a right to same -sex marriage. Under the Glucksberg analysis that we are thus boun d to conduct, t here is no new fundamental right to s ame-sex marriage. Virginia’s laws restricting marriage to man -woman relationships must therefore be upheld if there is any rational basis for the laws.
III Under rational -basis review, co urts are requir ed to give heavy deference to legislatures. The standard simply requires courts to determine whether the classification in question is, at a minimum,
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rationally related to legitimate governmental goals .

In other words, the fit between the enactment an d the

public purposes behind it need not be mathemati cally

precise.

As long as

[the legislature] has a

reasonable basis for adopting the classification,

which can include “rational speculation unsupported by

evidence or empirical data,” the statute will pass

constitutional muster. The rational basis standa rd

thus embodies an idea critical to the continuing

vitality of our democracy:

that courts are not

empowered to “si t as a super legislature to judg e the

wisdom or desirability of legislative policy

determinations.”

Wilkins v. Gaddy, 734 F.3d 344, 347-48 (4th Cir. 2013) (emphasis

added) (citations omitted) (quoting FCC v. Beach Commc’ns, Inc.,

508 U.S. 307, 315 (1993); City of New Orleans v. Dukes, 427 U.S.

297, 303 (1976)). Statutes subject to rational-basis review

“bear[] a strong presumption of validity, and those attacking

the rationality of the legislative classification have the

burden ‘to negative every conceivable basis which might support

[them].’” Beach Commc’ns, 508 U.S. at 314-15 (emphasis added)

(citation omitted) (quoting Lehnhausen v. Lake Shore Auto Parts

Co., 410 U.S. 356, 364 (1973)).

In contending t hat there is a rational basis for its

marriage laws, Virginia has emphasized that children are born

only to one man and one woman and that marri age provides a

family structure by which to nouri sh and raise those children.

It claims that a biological family is a more stable environment,

and it renounces any interest in encouraging same -sex marriage.

It argues that t he purpose of it s marriage laws “is to channel

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the presumptive procreative poten tial of man -woman relationships

into enduring marital unions so that if any children are born,

they are more likely to be raised in stable family units.”

(Emphasis omitted). Virginia highlights especially marriage’s

tendency to promote stability in the e

vent of unplanned

pregnancies, ass erting that it has “a compelli ng interest in

addressing the particular concerns associated with the birth of

unplanned childr en. . . .

[ C]hildren born from unplanned

pregnancies wher e their mother and father are not marri ed to

each other are at significant risk of being raised outside

stable family units headed by their mother and father jointly.”

Virginia states that its justifications for promoting

traditional marriage also explain its lack of interest in

promoting same -sex marriage. It maintains that a traditional

marriage is “exclusively [an] opposite

-sex institution

. . . inextricably linked to procreation and biological

kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting),

and that same -sex marriage prior itizes the emoti ons and sexual

attractions of t he two partners without any ne cessary link to

reproduction. It asserts that it has no interest in “licensing

adults’ love.”

The plaintiffs a ccept that famil y stability is a legitimate

state goal, but they argue that licensing same-sex relationships

will not burden Virginia’s ach ievement of tha t goal. They

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contend that “there is simply no evidence or reason to believe

that prohibitin g gay men and lesbians from marrying will

increase ‘responsible procreation’ among heterosexuals.”

But this argume nt does not ne gate any of th e rational

justifications for Virginia’s le gislation. States are permitted

to selectively provide benef its to only certain groups when

providing those same benefits to other groups would not further

the State’s ultimate goals. See Johnson v. Robinson , 415 U.S.

361, 383 (1974) (“When . . . the inclusion of on e group promotes

a legitimate go vernmental purpo se, and the ad dition of other

groups would

not, we canno t say that

the statute's

classification of beneficiaries and nonbeneficiaries is

invidiously discriminatory ”). Here , the Commonwealth’s goal of

ensuring that unplanned children are raised in stable homes is

furthered only by offering the benefits of marriage to opposite -

sex couples . As Virginia cor rectly asserts, “the relevant

inquiry here is not whether excluding same

-sex couples from

marriage furthers [Virginia’s] interest in steering man -woman

couples into mar riage.” Rather, the relevant in quiry is whether

also recognizing same -sex m arriages would further Virginia’s

interests. Wit h regard to its interest in ensuring stable

families in the event of unplanned pregnancies, it would not.

The plaintiffs reply that even if this is so, such “line -

drawing” only makes sense if the resources at issue are scarce ,

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justifying the State’s limited provision of those resources.

They argue that b ecause “[m]arriage licenses . . . are not a

remotely scarce commodity,” the line -drawing done by Virginia’s

marriage laws is irrationa l.

But this fundament ally

misunderstands the nature of marriage

benefits. When the

Commonwealth grants a marriage, it does not

simply give the

couple a piece of paper and a title . Rather, it provides a

substantial subs idy to the marr ied couple -- economic benefits

that, the plaintiffs repeatedly assert, are bein g denied them.

For example, mar ried couples are permitted to fi le state income

taxes jointly, lowering their tax rates.

See Va. Code Ann.

§ 58.1-324. A lthough indirect , such benefits are clearly

subsidies that come at a cost to the Commonwealth. Virginia is

willing to pro vide these sub sidies because they

encourage

opposite-sex cou ples to marry, which tends to provide children

from unplanned pregnancies with

a more stable environment .

Under Johnson, the Commonwealth is not obligated to similarly

subsidize same -sex marriages, since doing so could not possibly

further its interest. This is no different from the subsidies

provided in other cases where the Supreme Court has upheld line -

drawing, such as Medicare benefits , Matthews v. Diaz , 426 U.S.

67, 83 -84 (1976 ), or veterans’ educational be nefits, Johnson,

415 U.S. at 383.

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As an additional argument, Virgi nia maintains that marriage

is a “[c]omplex social institution []” with a “set of norms,

rules, patterns, and expect ations that powerfully (albeit often

unconsciously) affect people’s choices, actions, and

perspectives.” It asserts that discarding the traditional

definition of marriage will have far -reaching consequences that

cannot easily be predicted, incl uding “seve r[ing] the inherent

link between procreation

. . . and marriage . . . [and] in

turn . . . powerfully convey[ing] that marriage exists to

advance adult desires rather t han [to] se rv[e] children’s

needs.”

The plaintiffs agree that c

hanging the de finition of

marriage may hav e unforeseen soc ial effects, but they argue that

such prediction s should not

be enough to

save Virginia’s

marriage laws b ecause similar justifications were rejected in

Loving. The Loving Court, however, was not applying rational -

basis rev iew. See Loving, 388 U.S. at 11 -12. We are on a

different footing here. Under rational

-basis review,

legislative choices “may be

based on ratio nal speculation

unsupported by e vidence or empir ical data.” Beach Commc’ns, 508

U.S. at 315. “ Sound policyma king often requires legislators to

forecast future events and to a nticipate the li kely impact of

these events based on deductions and inferences for which

complete empiric al support may be unavailable.” Turner Broad.

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Sys., Inc. v. F CC, 512 U.S. 622, 665 ( 1994) (plurality opinion).

And the legislat ure “is far bett er equipped than the judiciary”

to make these evaluations and ultimately decide on a course of

action based on its predictions. Id. at 665 -66. In enacting

its marriage l aws, Virginia predicted t hat changing the

definition of ma rriage would hav e a negative eff ect on children

and on the famil y structure. Al though other States do not share

those concerns , such evaluations were nonetheless squarely

within the province of the Commonwealth’s legislatu re and its

citizens, who voted to amend Virginia’s Constitution in 2006.

Virginia has undoubtedly articulated sufficient rational

bases for its ma rriage laws, and I would find t hat those bases

constitutionally justify the laws. Those laws are grounded on

the biological c onnection of men and women; the potential for

their having children; the family order needed in raising

children; and, o n a larger scale , the political order resulting

from stable family units. Moreover, I would add that the

traditional m arriage relationship encourages a family structure

that is intergenerational, giving children not only a structure

in which to be raised but al so an identity and a stron g

relational context . The marria ge of a man an d a woman thus

rationally promotes a cor relation between biolog ical order and

political order. Because V

irginia’s marriage laws are

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rationally related to its legit imate purposes, they withstand rational-basis scrutiny under the Due Process Clause.
IV The majority doe s not substantiv ely address the plaintiffs’ second argument -- that Virginia’s marriage laws invidiously discriminate on the basis of sex ual orientation, in violation of the Equal Protection Clause -- since it finds that the laws infringe on the plaintiffs’ fundamental right to ma rriage. But because I find no fundamental right is infringed by the laws, I also address discrimination under the Equal Protection Clause. The Equal Protec tion Clause, whi ch forbids any State from “deny[ing] to a ny person withi n its jurisdict ion the equa l protection of the laws,” U.S. Const. amend. XIV, § 1, prohibits invidious discrimination among classes of persons. Some classifications -- such as thos e based on race , alienage, or national origin -- are “so seldom relevant to the achievement of any leg itimate state interes t that laws g rounded in suc h considerations are deemed to reflect prejudice and antipathy -a view that those in the burdened class are not as worthy or deserving as others.” City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 4 40 (1985). Any laws based on such “suspect” classifications are subject to s trict scrutiny. See id. In a similar vein, c lassifications based on gen der are “quasi -
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suspect” and call for “intermediate scrutiny” because they

“frequently bear[] no relation to

ability to perform or

contribute to so ciety” and thus “generally provide[] no sensible

ground for differential treatment.”

Id. at 440 -41 (quoting

Frontiero v. Ri chardson, 411 U .S. 677 , 686 (1973) (plurality

opinion)); see also Craig v. Boren , 429 U.S. 19 0, 197 (1976) .

Laws subject to intermediate s crutiny must be substantially

related to an im portant government objective. See United States

v. Virginia, 518 U.S. 515, 533 (1996).

But when a regul ation adversely affects members of a class

that is not susp ect or quasi -suspect, the regulation is

“presumed to be valid and will be sustained if the

classification drawn by the statute is rationally related to a

legitimate state interest.” City of Cleburne , 473 U.S. at 440

(emphasis added). Moreover, the Supreme Court has made it clear

that

where individual s in the group a ffected by a law have

distinguishing characteristics relevant to interests

the State has t he authority to implement , the courts

have been very reluctant, as t hey should be i n our

federal system and with our r espect for the s eparation

of powers, to closely scrutinize legislative choices

as to whether, h ow, and to what extent those int erests

should be purs ued.

In such cases, the Equal

Protection Clause requires only a rational mea ns to

serve a legitimate end.

Id. at 441 -42 (emphasis added) . This is based on the

understanding that “ equal protection of the laws must coexist

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with the practi cal necessity t hat most legisl ation classifies

for one purpose or another, with resulting d isadvantage to

various groups or persons.” Romer, 517 U.S. at 631.

The plaintiffs c ontend that Virg inia’s marriage laws should

be subjected to some level of heightened scrutiny because they

discriminate on the basis of

sexual orienta tion. Yet the y

concede that nei ther the Supreme Court nor the Fourth Circuit

has ever applied heightened scru tiny to a class ification based

on sexual orientation. They urge this court to do so for the

first time. Governing precedent, however, counsels otherwise.

In Romer v. Evans , the Supreme Court did not employ any

heightened level of scrutiny in evaluating a Colorado

constitutional amendment that prohibited state and local

governments from enacting legisl ation that would allow persons

to claim “any minority status, quota preferen ces, protec ted

status, or . . . discrimination” based on sexu al orientation.

Romer, 517 U. S. at 624.

In holding

the amendmen t

unconstitutional under the Equa l Protection Cl ause, the Court

applied rational-basis review. See id. at 631-33.

And the Supreme Court mad e no change as to the appropriate

level of scrutiny in its more recent decision in Windsor, which

held Section 3 o f the Defense of Marriage Act un constitutional.

The Court was presented an op portunity to al ter the Romer

standard but did not do so. Although it did not state the level

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of scrutiny being applied, it did explicitly rely on rational -

basis cases like Romer and Department of Agricul ture v. Moreno ,

413 U.S. 528 (1973). See Windsor, 133 S. Ct. at 2693. In his

dissenting opinion in Windsor, Justic e Scalia thus noted, “As

nearly as I can tell, the Court agrees [that rational

-basis

review applies]; its opinion doe s not apply stri ct scrutiny, and

its central propositions are taken from rational -basis cases

like Moreno.” Id. at 2706 (Scalia, J., dissenting).

Finally, we have concluded that rational

-basis review

applies to clas sifications base d on sexual or ientation. See

Veney v. Wyche, 293 F.3d 726 , 731-32 (4th Cir. 2002). In Veney,

a prisoner filed a § 1983 act ion alleging that he had been

discriminated against on the basis of sexual preference and

gender. Id. at 729 -30. We noted that the plaintiff “[did] not

allege that he [was] a member of a suspect class. Rather, he

claim[ed] that h e ha[d] been dis criminated against on the basis

of sexual pref erence and gender. Outside the p rison context,

the former is subject to rational basis review,

see Romer v.

Evans, 517 U.S. 620, 631 -32 (1996).” Id. at 731 -32 (footnote

omitted).

The vast majority of other courts of appeals have reached

the same conclus ion. See Cook v. Gates , 528 F.3d 42, 61 (1st

Cir. 2008) (“ Romer nowhere suggested that the Co urt recognized a

new suspect clas s. Absent addit ional guidance f rom the Supreme

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Court, we join o ur sister circui ts in declining to read Romer as

recognizing homo sexuals as a suspect class for equal protection

purposes”); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 -14 &

n.9 (10th Cir. 2008) (“A government official

can . . . distinguish between its citizens on the basis of

sexual orientati on, if that cl assification bea rs a rational

relation to some legitimate end” (internal quotation marks

omitted)); Citizens for Equal P rot. v. Bruning , 455 F.3d 859,

865-66 (8th Cir. 2006) (discussing

Romer and reaching the

conclusion that “[t]hough the most relevant precedents a

re

murky, we conclude for a number of reasons that [Nebraska’s

same-sex marriage ban] should receive rational

-basis review

under the Equal Protection Clause, rather than a heightened

level of judicia l scrutiny”); Johnson v. Johnson , 385 F.3d 503,

532 (5th Cir. 2 004) (“[A] state violates the E qual Protection

Clause if it di sadvantages homo sexuals for reas ons lacking any

rational relationship to legitimate governmental aims”); Lofton

v. Sec’y of Dep’t of Children & Family Servs. , 358 F.3d 804, 818

(11th Cir. 2004) (“[A]ll of o ur sister circu its that have

considered the q uestion have dec lined to treat h omosexuals as a

suspect class. Because the present case involves neither a

fundamental right nor a

suspect cla

ss, we revie

w

the . . . statute under the rational -basis standard” (footnote

omitted)); Equal. Found. of Grea ter Cincinnati, Inc. v. City of

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Cincinnati, 128 F.3d 289, 294, 300 (6th Cir. 1997) (applyin g

rational-basis r eview in uphold ing a city cha rter amendment

restricting homo sexual rights a nd stating th at in Romer, the

Court “did not assess Colora do Amendment 2 under ‘strict

scrutiny’ or ‘intermediate scrutiny’ standards, but instead

ultimately applied ‘rational relationship’ strictures to that

enactment and r esolved that th e Colorado stat e constitutiona l

provision did n ot invade any fundamental right and did not

target any suspe ct class or quas i-suspect class”); Ben-Shalom v.

Marsh, 881 F.2d 454, 464 (7th Cir. 1989) (ap plying rational -

basis review pri or to the annou ncement of Romer); Woodward v.

United S tates, 871 F.2d 1068, 1076 (Fed. Ci r. 1989) (“The

Supreme Court ha s identified onl y three suspect classes: racial

status, national ancestry and ethnic original, and alienage.

Two other classifications have been identified by the Court as

quasi-suspect: gender and illeg itimacy. [Plain tiff] would have

this court add h omosexuality to that list. This we decline to

do” (citations and footnote om itted)). But see SmithKline

Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014)

(applying height ened scrutiny t o a Batson challenge that was

based on sexual orientation); Windsor v. United States, 699 F.3d

169, 180 -85 (2 d Cir. 2012)

(finding intermediate scrutiny

appropriate in a ssessing the con stitutionality o f Section 3 of

the Defense of Marriage Act).

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Thus, following Supreme Court an d Fourth Circuit precedent, I would hold t hat Virginia’s marriage laws a re subject to rational-basis review. Applying that standard, I conclude that there is a rati onal basis for the laws, as ex plained in Part III, above. At bottom, I agree with Justice Alito’s reasoning that “[i]n asking the court to determine that [Virginia’s marriage laws ar e] subject to an d violate[] heig htened scrutiny, [the plaintiffs] thus ask us to rule that the presence of two members of the oppo site sex is as rationally related to marriage as white skin is to voting or a Y -chromosome is to the ability to administer an estate. That is a striking r equest and one that unelected j udges should pau se before granti ng.” Windsor, 133 S. Ct. at 2717-18 (Alito, J., dissenting).
V Whether to recognize same -sex marriage is an ongoing and highly engaged political debate taking place across the Nation, and the States are divided on the issue. The majority of courts have struck down statutes that deny recognition of same -sex marriage, doing so almost exclus ively on the ide a that same -sex marriage is encompassed by the fundamental right to marry that is protected by the Due Proces s Clause . Whil e I express no viewpoint on the merits o f the policy debate, I do strongly disagree with th e assertion that same-sex marriage is subject to
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the same constitutional protections as the traditional right to marry.
Because there is no fundamental right to same -sex marriage and there are rational re asons for not recognizing it, just as there are rational reasons for recognizing it, I conclude that we, in the Third Branch, must allow the States to enact legislation on the subject in accordance with their political processes. The U.S. Constitution doe s not, in my judgment, restrict the Sta tes’ policy choi ces on this issu e. If given the choice, some States will surely recognize same -sex marriage and some will surely not. But that is, to be sure , the beauty of federalism.
I would reverse the district court’s judgment an d defer to Virginia’s political choice in d efining marriage as only between one man and one woman.

98

 
 Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 1 of 26
U.S. District Court Eastern District of Virginia − (Norfolk) CIVIL DOCKET FOR CASE #: 2:13−cv−00395−AWA−LRL

CLOSED

Bostic et al v. McDonnell et al Assigned to: District Judge Arenda L. Wright Allen Referred to: Magistrate Judge Lawrence R. Leonard Case in other court: 4CCA − Case Manager RJ Warren,
14−01167
4CCA − Case Manager RJ Warren, 14−01169 Cause: 42:1983 Violation of Due Process and Equal Protection
Plaintiff

Date Filed: 07/18/2013 Date Terminated: 02/24/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Timothy B. Bostic

represented by Charles Barnet Lustig Shuttleworth Ruloff Swain Haddad & Morecock PC 317 30th Street Virginia Beach, VA 23451 (804) 671−6000 Fax: (757) 671−6004 Email: clustig3@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Eugene Ruloff Shuttleworth Ruloff Swain Haddad & Morecock PC 4525 South Blvd Suite 300 Virginia Beach, VA 23452−1137 (757) 671−6000 Fax: (757) 671−6004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Brady Shuttleworth , II Shuttleworth Ruloff Swain Haddad & Morecock PC 4525 South Blvd Suite 300 Virginia Beach, VA 23452−1137 757−671−6000 Fax: 757−671−6004 Email: tshuttleworth@srgslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amir C Tayrani Gibson Dunn & Crutcher LLP (DC−NA) 1050 Connecticut Ave, NW Washington, DC 20036−5306 **NA** (202) 955−8500 Fax: (202) 530−9645 Email: atayrani@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED

Andrew Mitchell Hendrick Shuttleworth Ruloff Swain Haddad & Morecock PC

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 2 of 26
4525 South Blvd Suite 300 Virginia Beach, VA 23452−1137 (757) 671−6012 Fax: (757) 671−6004 Email: ahendrick@srgslaw.com ATTORNEY TO BE NOTICED
Chantale Fiebig Gibson Dunn & Crutcher LLP (DC−NA) 1050 Connecticut Ave, NW Washington, DC 20036−5306 **NA** (202) 955−8500 Fax: (202) 530−4203 Email: cfiebig@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
David Boies Boies, Schiller & Flexner LLP 333 Main St Armonk, NY 10504 **NA** (914) 749−8200 Fax: (914) 749−8300 Email: dboies@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED
Erik C. Porcaro Troutman Sanders LLP (Virginia Beach) 222 Central Park Ave. Suite 2000 Virginia Beach, VA 23462 (757) 687−7736 Fax: (757) 687−7510 Email: erik.porcaro@troutmansanders.com ATTORNEY TO BE NOTICED
Jeremy Michael Goldman Boies, Schiller & Flexner LLP 1999 Harrison St Suite 900 Oakland, CA 94612 **NA** (510) 874−1000 Fax: (510) 874−1460 Email: jgoldman@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED
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Joshua I Schiller

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 3 of 26
Boies, Schiller & Flexner LLP (NY−NA) 575 Lexington Ave 7th Floor New York, NY 10022 **NA** (212) 446−2300 Fax: (212) 446−2350 Email: jischiller@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D McGill Gibson Dunn & Crutcher LLP (DC−NA) 1050 Connecticut Ave, NW Washington, DC 20036−5306 **NA** (202) 955−8500 Fax: (202) 530−9662 Email: mmcgill@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
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Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 4 of 26

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Plaintiff Tony C. London

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Plaintiff Mary Townley

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Intervenor Plaintiff Joanne Harris

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Defendant
Robert F. McDonnell in his official capacity as Governor of Virginia TERMINATED: 09/05/2013

represented by Earle Duncan Getchell , Jr. McGuireWoods LLP (Richmond) Gateway Plaza 800 East Canal Street Richmond, VA 23219−3916 (804) 775−4388 Fax: (804) 698−2252 Email: dgetchell@mcguirewoods.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kenneth T. Cuccinelli in his official capacity as Attorney General of Virginia TERMINATED: 09/05/2013

represented by Earle Duncan Getchell , Jr. (See above for address) TERMINATED: 12/30/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Janet M. Rainey in her official capacity as State Registrar of Vital Records

represented by Earle Duncan Getchell , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Hugh Brady McGuireWoods LLP (Richmond) Gateway Plaza 800 East Canal Street Richmond, VA 23219−3916 (804) 775−4327

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 9 of 26

Fax: (804) 698−2302 Email: mbrady@mcguirewoods.com TERMINATED: 01/28/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Norman Allan Thomas Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 371−7763 Email: norman@normanthomaslaw.com TERMINATED: 01/28/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Alan Raphael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Crooks Hill Office of the Attorney General 900 E Main St Richmond, VA 23219 (804) 786−2071 Email: cchill@oag.state.va.us ATTORNEY TO BE NOTICED

Rhodes Beahm Ritenour Bon Secours Richmond Health System Mission Services Medical Office Building South Suite 102 5875 Bremo Road Richmond, VA 23226 804−247−0330 Email: rhodes_ritenour@bshsi.org ATTORNEY TO BE NOTICED

Trevor Stephen Cox Hunton & Williams LLP (Richmond) 951 E Byrd St Riverfront Plaza − East Tower Richmond, VA 23219 (804) 788−7331 Fax: (804) 343−4893 Email: tcox@oag.state.va.us ATTORNEY TO BE NOTICED

Defendant
George E. Schaefer, III in his official capacity as the Clerk of Court for Norfolk Circuit Court

represented by David Brandt Oakley Poole Brooke Plumlee PC 4705 Columbus St Suite 100 Virginia Beach, VA 23462−1521 (757) 499−1841 Fax: (757) 552−6016 Email: doakley@pbp−attorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Michele McQuigg

represented by Michael Casey Mattox Alliance Defending Freedom (DC)

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801 G. Street NW Suite 509 Washington, DC 20001 (202) 393−8690 Fax: (202) 347−3622 Email: cmattox@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Byron Jeffords Babione Alliance Defense Fund (AZ) 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Email: bbabione@alliancedefendingfreedom.org PRO HAC VICE ATTORNEY TO BE NOTICED

David Austin Robert Nimocks Alliance Defending Freedom 801 G St, NW Suite 509 Washington, DC 20001 **NA** (202) 393−8690 Fax: (480) 444−0028 Email: animocks@alliancedefendingfreedom.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Caleb Dalton Alliance Defending Freedom 15100 N 90th St Scotsdale, AZ 85260 480−444−0028 Fax: 480−444−0028 Email: cdalton@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Jordan Woodard Lorence Alliance Defense Fund (DC) 801 G Street NW Suite 509 Washington, DC 20001 202−637−4610 Fax: 202−347−3622 Email: jlorence@telladf.org ATTORNEY TO BE NOTICED

Kenneth John Connelly Alliance Defending Freedom 15100 N. 90th St Scottsdale, AZ 85260 **NA** (480) 444−0020 Fax: (480) 444−0028 Email: kconnelly@alliancedefendingfreedom.org PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Commonwealth Of Va.

represented by Earle Duncan Getchell , Jr. (See above for address) TERMINATED: 12/30/2013

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 11 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus The Family Foundation of Virginia

represented by Mark Randolph Matney Michael C. Tillotson LLC 13195 Warwick Blvd Suite 2A Newport News, VA 23602 (757) 969−5197 Fax: (757) 969−5988 Email: matneylaw@gmail.com ATTORNEY TO BE NOTICED

Amicus Lynn D. Wardle

represented by Jennifer Jesusa Truitt The Law Office of Jennifer J. Truitt PLLC 11848 Rock Landing Dr Suite 202A Newport News, VA 23606 (757) 806−6592 Email: mailbox@jenniferjtruitt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Casey Mattox (See above for address) TERMINATED: 02/24/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Byron Jeffords Babione (See above for address) TERMINATED: 02/24/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus William C. Duncan

represented by Jennifer Jesusa Truitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Casey Mattox (See above for address) TERMINATED: 02/24/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Byron Jeffords Babione (See above for address) TERMINATED: 02/24/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Joseph P. Price

represented by Jennifer Jesusa Truitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Casey Mattox

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(See above for address) TERMINATED: 02/24/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Byron Jeffords Babione (See above for address) TERMINATED: 02/24/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Robert A. Destro

represented by Jennifer Jesusa Truitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Casey Mattox (See above for address) TERMINATED: 02/24/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Byron Jeffords Babione (See above for address) TERMINATED: 02/24/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Lynne Marie Kohm

represented by Jennifer Jesusa Truitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Casey Mattox (See above for address) TERMINATED: 02/24/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Byron Jeffords Babione (See above for address) TERMINATED: 02/24/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Liberty Counsel, Inc

represented by Mary Elizabeth McAlister Liberty Counsel PO Box 11108 Lynchburg, VA 24506−1108 (434) 592−7000 Fax: (434) 592−7700 Email: court@lc.org ATTORNEY TO BE NOTICED

Date Filed 07/18/2013

# Docket Text
1 COMPLAINT for Declaratory, Injunctive and Other Relief against Kenneth T. Cuccinelli, Robert F. McDonnell, George E. Schaefer, III ( Filing fee $ 400.00, receipt number 24683020217.), filed by Timothy B. Bostic, Tony C. London. (Attachments: #

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 13 of 26

07/22/2013 07/24/2013 07/26/2013 07/26/2013 08/05/2013 08/06/2013 08/09/2013 08/09/2013 08/09/2013 08/09/2013 08/16/2013 08/16/2013 08/16/2013 08/22/2013 08/22/2013 08/30/2013
08/30/2013

1 Civil Cover Sheet, # 2 Receipt, # 3 Letter)(rsim, ) (Additional attachment(s) added on 1/10/2014: # 4 Civil Cover Sheet) (afar, ). (Entered: 07/22/2013)
2 Three Summonses (with one copy each) issued as to Kenneth T. Cuccinelli, Robert F. McDonnell, George E. Schaefer, III and provided to counsel for service. (Attachments: # 1 Magistrate Judge Notice & Judge's Instructions)(rsim, ) (Entered: 07/22/2013)
Case reassigned to District Judge Arenda L. Wright Allen. Chief District Judge Rebecca Beach Smith no longer assigned to the case. (rsim, ) (Entered: 07/24/2013)
3 NOTICE of Appearance by Thomas Brady Shuttleworth, II on behalf of Timothy B. Bostic, Tony C. London (Shuttleworth, Thomas) (Entered: 07/26/2013)
4 NOTICE of Appearance by Charles Barnet Lustig on behalf of Timothy B. Bostic, Tony C. London (Lustig, Charles) (Entered: 07/26/2013)
5 SUMMONS Returned Executed Kenneth T. Cuccinelli served on 7/29/2013; as to Robert F. McDonnell served on 7/29/2013 (rsim, ) (Entered: 08/06/2013)
6 SUMMONS Returned Executed as to George E. Schaefer, III served on 7/29/2013 (rsim, ) (Entered: 08/06/2013)
7 MOTION to Dismiss on Sovereign Immunity Grounds by Kenneth T. Cuccinelli, Robert F. McDonnell. (Getchell, Earle) Modified on 9/20/2013 to terminate motion (rsim, ). (Entered: 08/09/2013)
8 Memorandum in Support re 7 MOTION to Dismiss on Sovereign Immunity Grounds filed by Kenneth T. Cuccinelli, Robert F. McDonnell. (Getchell, Earle) (Entered: 08/09/2013)
9 MOTION to Intervene by Commonwealth Of Va.. (Getchell, Earle) Modified on 9/20/2013 to terminate motion (rsim, ). (Entered: 08/09/2013)
10 Memorandum in Support re 9 MOTION to Intervene filed by Commonwealth Of Va.. (Getchell, Earle) (Entered: 08/09/2013)
11 NOTICE of Appearance by David Brandt Oakley on behalf of George E. Schaefer, III (Oakley, David) (Entered: 08/16/2013)
12 MOTION for Extension of Time to File Responsive Pleadings and Entry of Consent Order by George E. Schaefer, III. (Attachments: # 1 Exhibit A−Consent Order)(Oakley, David) (Entered: 08/16/2013)
13 Memorandum in Support re 12 MOTION for Extension of Time to File Responsive Pleadings and Entry of Consent Order filed by George E. Schaefer, III. (Attachments: # 1 Exhibit A−Consent Order)(Oakley, David) (Entered: 08/16/2013)
14 MOTION Staying Briefing on Motion to Dismiss and Motion to Intervene and Setting Other Deadlines by Timothy B. Bostic, Tony C. London. (Attachments: # 1 Exhibit Consent Order)(Lustig, Charles) (Entered: 08/22/2013)
15 Memorandum in Support re 14 MOTION Staying Briefing on Motion to Dismiss and Motion to Intervene and Setting Other Deadlines filed by Timothy B. Bostic, Tony C. London. (Lustig, Charles) (Entered: 08/22/2013)
16 ORDER granting 12 , the unopposed Motion for an Extension of Time as follows: Defendant George E. Schaefer, III is granted leave and an extension of time to file responsive pleadings upon the earlier of either October 21, 2013, or twenty−one (21) days after the filing of an Amended Complaint by the Plaintiffs Signed by District Judge Arenda L. Wright Allen on 08/30/2013. (Allen, Arenda) (Entered: 08/30/2013)
17 Plaintiffs' unopposed Motion for Entry of a Consent Order to Suspend Briefing on Motion to Dismiss and Motion to Intervene, and To Set Deadlines for Filing Amended Complaint and For Filing Cross−Motions for Summary Judgment (ECF 14) is GRANTED AS FOLLOWS: (1) briefing on the Motion to Dismiss filed by Defendants McDonnell and Cuccinelli, and on the Motion to Intervene filed by the Commonwealth of Virginia, is suspended indefinitely pending filing of an Amended Complaint; (2) Plaintiffs shall file an Amended Complaint by September 3, 2013 and Defendants shall have twenty−one days to respond or otherwise answer; and (3) the

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09/03/2013 09/05/2013 09/06/2013 09/16/2013 09/19/2013
09/20/2013 09/25/2013 09/30/2013 09/30/2013
09/30/2013 09/30/2013 09/30/2013 09/30/2013

parties agree that they shall file cross−motions for summary judgment and supporting materials by September 30, 2013. Memoranda in support of these motions shall not exceed thirty−five pages. Responses to the cross−motions shall be filed by October 24, 2013, and shall not exceed twenty pages. Reply briefs shall be filed by October 31, 2013, and shall not exceed eleven pages. Oral argument will be set by the Court if deemed necessary. Signed by District Judge Arenda L. Wright Allen on 08/30/2013. (Allen, Arenda) (Entered: 08/30/2013)
18 AMENDED COMPLAINT against All Defendants, filed by Timothy B. Bostic, Tony C. London.(Lustig, Charles) (Entered: 09/03/2013)
19 NOTICE of Voluntary Dismissal of Defendants McDonnell and Cuccinelli by Timothy B. Bostic, Tony C. London (Lustig, Charles) (Entered: 09/05/2013)
20 MOTION to Dismiss As Moot Motion to Dismiss and Motion to Intervene by Commonwealth Of Va., Kenneth T. Cuccinelli, Robert F. McDonnell. (Getchell, Earle) (Entered: 09/06/2013)
21 ANSWER to Amended Complaint by Janet M Rainey.(Getchell, Earle) (Entered: 09/16/2013)
22 ORDER granting 20 as follows: the MOTION to Dismiss As Moot the Motion to Dismiss 7 and the Motion to Intervene by Commonwealth Of Virginia 9 , is granted in part. The motions [7 & 9] have been rendered moot by subsequent filings, but counsel are reminded that the proper means for updating the Docket is to file a Notice of Withdrawal of the motions. Defendants' motion to dismiss as moot 20 is construed liberally as this Notice of Withdrawal, and is granted as such. Counsel are advised to refrain from superfluous filings and to seek guidance from the Clerk of the Court when necessary to ensure compliance with Local Rules and federal rules of procedure. Signed by District Judge Arenda L. Wright Allen on 09/19/2013. (Allen, Arenda) (Entered: 09/19/2013)
23 ANSWER to Amended Complaint and Affirmative Defenses by George E. Schaefer, III.(Oakley, David) (Entered: 09/20/2013)
24 NOTICE of Appearance by Erik C. Porcaro on behalf of Timothy B. Bostic, Tony C. London (Porcaro, Erik) (Entered: 09/25/2013)
25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
26 Memorandum in Support re 25 MOTION for Summary Judgment Or, In The Alternative, 27 Motion for Preliminary Injunction filed by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Attachments: # 1 Affidavit Declaration of Timothy Bostic, # 2 Affidavit Declaration of Tony London, # 3 Affidavit Declaration of Carol Schall, # 4 Affidavit Declaration of Mary Townley, # 5 Affidavit Declaration of Charles Lustig, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F, # 12 Exhibit G, # 13 Exhibit H, # 14 Exhibit I, # 15 Exhibit J, # 16 Exhibit K, # 17 Exhibit L, # 18 Exhibit M, # 19 Exhibit N)(Lustig, Charles) Modified on 10/1/2013 to add link to second motion (rsim, ). (Entered: 09/30/2013)
Notice of Correction re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction : The filing user has been notified to file this document separately for each motion relief. (rsim, ) (Entered: 09/30/2013)
27 MOTION for Preliminary Injunction by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
28 Motion to appear Pro Hac Vice by Theodore B. Olson and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3687870. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
29 Motion to appear Pro Hac Vice by David Boies and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3687940. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)

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09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 10/01/2013 10/01/2013

30 Request for Hearing by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction, 26 Memorandum in Support,, 27 MOTION for Preliminary Injunction (Lustig, Charles) (Entered: 09/30/2013)
31 Motion to appear Pro Hac Vice by Matthew D. McGill and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3688128. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
32 Motion to appear Pro Hac Vice by Amir C. Tayrani and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3688179. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
33 Motion to appear Pro Hac Vice by Joshua S. Lipshutz and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3688186. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
34 Motion to appear Pro Hac Vice by Chantale Fiebig and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3688193. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
35 Motion to appear Pro Hac Vice by William Isaacson and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3688205. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
36 Motion to appear Pro Hac Vice by Jeremy M. Goldman and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3688211. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
37 Motion to appear Pro Hac Vice by Joshua I. Schiller and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3688217. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
38 MOTION for Summary Judgment by Janet M Rainey. (Getchell, Earle) (Entered: 09/30/2013)
39 Memorandum in Support re 38 MOTION for Summary Judgment filed by Janet M Rainey. (Attachments: # 1 Attachment)(Getchell, Earle) (Entered: 09/30/2013)
40 MOTION for Summary Judgment by George E. Schaefer, III. (Oakley, David) (Entered: 09/30/2013)
41 Memorandum in Support re 40 MOTION for Summary Judgment filed by George E. Schaefer, III. (Oakley, David) (Entered: 09/30/2013)
42 Motion to appear Pro Hac Vice by Theodore J. Boutrous, Jr. and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3689051. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
43 Motion to appear Pro Hac Vice by Robert B. Silver and Certification of Local Counsel Charles B. Lustig Filing fee $ 75, receipt number 0422−3689076. by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 09/30/2013)
Notice of Correction re 39 Memorandum in Support: when you filed document number (39), you exceeded the court page limit for a brief. Please refile the document. (rsim, ) (Entered: 10/01/2013)
44 Memorandum in Support re 38 MOTION for Summary Judgment filed by Janet M Rainey. (Attachments: # 1 Table of Contents, Table of Authorities, # 2 Attachment)(Getchell, Earle) (Entered: 10/01/2013)

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10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/14/2013 10/24/2013 10/24/2013
10/24/2013 10/28/2013

45 ORDER granting 28 , the Motion to appear Pro Hac Vice by Theodore B. Olson as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
46 ORDER granting 29 , the Motion to appear Pro Hac Vice by David Boies as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
47 ORDER granting 31 , the Motion to appear Pro Hac Vice by Matthew D. McGill as certified by local counsel Charles B. Lustig for Plaintff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
48 ORDER granting 32 , the Motion to appear Pro Hac Vice by Amir C. Tayrani as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
49 ORDER granting 33 , the Motion to appear Pro Hac Vice by Joshua S. Lipshutz as certified by local counsel Charles B. Lustig. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
50 ORDER granting 34 , the Motion to appear Pro Hac Vice by Chantale Fiebig as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
51 ORDER granting 35 , the Motion to appear Pro Hac Vice by William Isaacson as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
52 ORDER granting 36 , the Motion to appear Pro Hac Vice by Jeremy M. Goldman as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
53 ORDER granting 37 , the Motion to appear Pro Hac Vice by Joshua I. Schiller as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
54 ORDER granting 42 , Motion to appear Pro Hac Vice by Theodore J. Boutrous, Jr., as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
55 ORDER granting 43 , the Motion to appear Pro Hac Vice by Robert B. Silver as certified by local counsel Charles B. Lustig for Plaintiff. Signed by District Judge Arenda L. Wright Allen on 10/11/13. (Allen, Arenda) (Entered: 10/11/2013)
56 NOTICE of Appearance by Andrew Mitchell Hendrick on behalf of Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley (Hendrick, Andrew) (Entered: 10/14/2013)
57 Memorandum in Opposition re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction filed by Janet M. Rainey. (Getchell, Earle) (Entered: 10/24/2013)
58 RESPONSE in Opposition re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction, 27 MOTION for Preliminary Injunction filed by George E. Schaefer, III(in his official capacity as the Clerk of Court for Norfolk Circuit Court). (Oakley, David) (Entered: 10/24/2013)
59 Memorandum in Opposition re 40 MOTION for Summary Judgment , 38 MOTION for Summary Judgment filed by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 10/24/2013)
Notice of Correction re 59 Memorandum in Opposition: Attorney notified that leave of court may be needed to file the 59 Memorandum in Opposition re 40 MOTION for Summary judgment. Pursuant to Order entered on 8/30/2013 you have exceeded the page limit for a response brief. The proposed document should not have exceeded 20 pages. Please refile document 59; if necessary refile as an attachment to your motion. (rsim, ) (Entered: 10/28/2013)

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10/28/2013 10/28/2013 10/28/2013 10/29/2013 10/29/2013 10/31/2013 10/31/2013 11/01/2013 11/12/2013 11/13/2013 11/17/2013 11/20/2013 12/03/2013 12/03/2013
12/20/2013
12/20/2013

60 Memorandum in Opposition re 40 MOTION for Summary Judgment , 38 MOTION for Summary Judgment filed by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Attachments: # 1 Table of Contents, Table of Authorities)(Lustig, Charles) (Entered: 10/28/2013)
61 NOTICE of Appearance by Mark Randolph Matney on behalf of The Family Foundation of Virginia (Matney, Mark) (Entered: 10/28/2013)
62 MOTION for Leave to File by The Family Foundation of Virginia. (Attachments: # 1 Exhibit Amicus Curiae Brief, # 2 Proposed Order)(Matney, Mark) (Entered: 10/28/2013)
63 NOTICE of Appearance by Norman Allan Thomas on behalf of Janet M. Rainey (Thomas, Norman) (Entered: 10/29/2013)
64 MOTION for Leave to File Brief of Amici Curiae Professors in Support of Defendants' Motions for Summary Judgment by Lynn D. Wardle, William C. Duncan, Joseph P. Price, Robert A. Destro, Lynne Marie Kohm. (Attachments: # 1 [Proposed] Brief, # 2 Proposed Order)(Mattox, Michael) (Entered: 10/29/2013)
65 REPLY to Response to Motion re 38 MOTION for Summary Judgment filed by Janet M. Rainey. (Getchell, Earle) (Entered: 10/31/2013)
66 REPLY to Response to Motion re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction, 27 MOTION for Preliminary Injunction filed by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Attachments: # 1 Table of Contents, Table of Authorities)(Lustig, Charles) (Entered: 10/31/2013)
67 Financial Interest Disclosure Statement (Local Rule 7.1) by The Family Foundation of Virginia. (Matney, Mark) (Entered: 11/01/2013)
MOTION REFERRED to Magistrate Judge Lawrence R. Leonard. 62 MOTION for Leave to File (rsim, ) (Entered: 11/12/2013)
68 NOTICE by Robert A. Destro, William C. Duncan, Lynne Marie Kohm, Joseph P. Price, Lynn D. Wardle re 64 MOTION for Leave to File Brief of Amici Curiae Professors in Support of Defendants' Motions for Summary Judgment (Certificate of Conference) (Mattox, Michael) (Entered: 11/13/2013)
69 NOTICE by The Family Foundation of Virginia re 62 MOTION for Leave to File (Matney, Mark) (Entered: 11/17/2013)
MOTION REFERRED to Magistrate Judge Lawrence R. Leonard. 64 MOTION for Leave to File Brief of Amici Curiae Professors in Support of Defendants' Motions for Summary Judgment (rsim, ) (Entered: 11/20/2013)
70 ORDER granting 62 as follows: the proposed Amicus Curiae brief (ECF No. 62−1) by The Family Foundation of Virginia in support of Defendants' Motion for Summary Judgment is accepted and deemed filed. Signed by District Judge Arenda L. Wright Allen on 12/03/2013. (Allen, Arenda) (Entered: 12/03/2013)
71 ORDER granting 64 , the Motion for Leave to File Brief of Amici Curiae Professors in Support of Defendants' Motions for Summary Judgment, as follows: the proposed Amici Curiae brief (ECF No. 64−1) by Lynn D. Wardle, William C. Duncan, Joseph P. Price, Robert A. Destro, and Lynne Marie Kohm is accepted and deemed filed. Signed by District Judge Arenda L. Wright Allen on 12/03/2013. (Allen, Arenda) (Entered: 12/03/2013)
72 MOTION to Intervene by Michele McQuigg. (Attachments: # 1 Declaration of Michele B. McQuigg in Support of Motion to Intervene, # 2 Proposed Answer and Affirmative Defenses of Intervenor−Defendant Michele B. McQuigg, # 3 Proposed Intervenor's Motion for Summary Judgment and Response in Opposition to Plaintiffs' Motion for Summary Judgment, # 4 Request for Hearing, # 5 Application to Qualify as a Foreign Attorney − Byron J. Babione, # 6 Application to Qualify as a Foreign Attorney − Kenneth J. Connelly)(Mattox, Michael) Modified on 1/17/2014 to remove Attachment 3, see Order of 1/17.14 (rsim, ). (Entered: 12/20/2013)
73 Memorandum in Support re 72 MOTION to Intervene filed by Michele McQuigg. (Mattox, Michael) (Entered: 12/20/2013)

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12/23/2013 12/30/2013 01/03/2014
01/06/2014 01/06/2014 01/06/2014 01/06/2014 01/06/2014 01/06/2014 01/06/2014 01/07/2014 01/07/2014 01/08/2014 01/08/2014 01/10/2014 01/10/2014 01/10/2014 01/14/2014

Motions Hearing set for 1/30/2014 at 09:00 AM in Norfolk Courtroom 3 before District Judge Arenda L. Wright Allen. (lhow) (Entered: 12/23/2013)
74 NOTICE by Commonwealth Of Va., Janet M. Rainey (Withdrawal) (Getchell, Earle) (Entered: 12/30/2013)
75 MOTION to Intervene by Michele McQuigg (ECF No. 72) is taken under advisement. All briefs in opposition to this motion must be filed no later than January 7, 2014. A Reply brief from Michael Mattox, counsel for the proposed Intervenor shall be filed by January 10, 2014. Shortly after that date, all counsel of record will be notified as to whether oral argument on the motion to intervene will be heard on January 30 2014. If Mr. Mattox, as counsel for the proposed Intervenor, wishes for other counsel to "qualify as a foreign attorney" in this matter, he must comply with Local Rule 83.1 and the online instructions provided by the Clerk of the Court. Other attorneys who are not licensed to practice in this District must first associate with local counsel and comply with the Court's Local Rules before they may appear, file, or otherwise participate as counsel in this action. Signed by District Judge Arenda L. Wright Allen on 01/03/2014. (Allen, Arenda) (Entered: 01/03/2014)
76 NOTICE of Appearance by Jordan Woodard Lorence on behalf of Michele McQuigg (Lorence, Jordan) (Entered: 01/06/2014)
77 Motion to appear Pro Hac Vice by Byron J. Babione and Certification of Local Counsel M. Casey Mattox Filing fee $ 75, receipt number 0422−3802221. by Michele McQuigg. (Mattox, Michael) (Entered: 01/06/2014)
78 Motion to appear Pro Hac Vice by Kenneth J. Connelly and Certification of Local Counsel M. Casey Mattox Filing fee $ 75, receipt number 0422−3802271. by Michele McQuigg. (Mattox, Michael) (Entered: 01/06/2014)
79 NOTICE of Appearance by Michael Hugh Brady on behalf of Janet M. Rainey (Brady, Michael) (Entered: 01/06/2014)
80 Notice of Substitution of Counsel of Earle Duncan Getchell, Jr. by Michael Hugh Brady on behalf of Janet M. Rainey (Brady, Michael) (Entered: 01/06/2014)
81 NOTICE by Janet M. Rainey re 72 MOTION to Intervene (Consent to Intervention) (Brady, Michael) (Entered: 01/06/2014)
82 NOTICE of Appearance by Jonathan Caleb Dalton on behalf of Michele McQuigg (Dalton, Jonathan) (Entered: 01/06/2014)
83 NOTICE of Appearance by Catherine Crooks Hill on behalf of Janet M. Rainey (Hill, Catherine) Modified − document deleted as it was not PDF'd correctly on 1/8/2014 (afar). (Entered: 01/07/2014)
84 RESPONSE to Motion re 72 MOTION to Intervene filed by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 01/07/2014)
Notice of Correction re 83 Notice of Appearance − The filing user has been notified that document [ 83 ] is an incorrectly saved PDF fillable form and has been removed. The filing user was directed to refile the document.(afar) (Entered: 01/08/2014)
85 NOTICE of Appearance by Catherine Crooks Hill on behalf of Janet M. Rainey (Hill, Catherine) (Entered: 01/08/2014)
86 ORDER granting 78 the Motion to appear Pro Hac Vice by Kenneth J. Connelly as certified by Local Counsel M. Casey Mattox. Signed by District Judge Arenda L. Wright Allen on 01/10/2014. (Allen, Arenda) (Entered: 01/10/2014)
87 ORDER granting 77 the Motion to appear Pro Hac Vice by Byron J. Babione as certified by Local Counsel M. Casey Mattox. Signed by District Judge Arenda L. Wright Allen on 01/10/2014. (Allen, Arenda) (Entered: 01/10/2014)
88 REPLY to Response to Motion re 72 MOTION to Intervene filed by Michele McQuigg. (Mattox, Michael) (Entered: 01/10/2014)
89 NOTICE of Appearance by Stuart Alan Raphael on behalf of Janet M. Rainey (Raphael, Stuart) (Entered: 01/14/2014)

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 19 of 26

01/15/2014 01/16/2014 01/17/2014 01/20/2014 01/21/2014 01/21/2014 01/22/2014 01/22/2014 01/23/2014
01/23/2014 01/23/2014 01/23/2014
01/23/2014 01/23/2014

90 NOTICE by Janet M. Rainey [of Withdrawal of Counsel] (Thomas, Norman) (Entered: 01/15/2014)
Notice of Correction re 90 NOTICE: Counsel must file a motion to withdraw from a case. Please file a Motion to Withdraw as counsel. (rsim, ) (Entered: 01/16/2014)
91 ORDER granting in part 72 Motion to Intervene. Signed by District Judge Arenda L. Wright Allen and filed on 1/17/2014. (rsim, ) (Entered: 01/17/2014)
92 ANSWER to Complaint by Michele McQuigg.(Mattox, Michael) (Entered: 01/20/2014)
93 MOTION to Withdraw as Attorney by Janet M. Rainey. (Thomas, Norman) (Entered: 01/21/2014)
Refer for 16(b) (rsim, ) (Entered: 01/21/2014)
94 Response to 91 Order on Motion to Intervene filed by Michele McQuigg. (Mattox, Michael) (Entered: 01/22/2014)
95 NOTICE by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction of Supplemental Authority (Attachments: # 1 Exhibit SmithKline v. Abbott (9th Cir. 2014))(Lustig, Charles) (Entered: 01/22/2014)
96 NOTICE by Janet M. Rainey re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction, Set Motion and R&R Deadlines/Hearings, 40 MOTION for Summary Judgment , 38 MOTION for Summary Judgment of Change in Legal Position (Attachments: # 1 Memorandum In Support, # 2 Table of Authorities)(Raphael, Stuart) (Entered: 01/23/2014)
97 Amended ANSWER to Complaint [Amended (18)] by Janet M. Rainey.(Raphael, Stuart) (Entered: 01/23/2014)
98 MOTION to Withdraw as Attorney by Janet M. Rainey. (Brady, Michael) (Entered: 01/23/2014)
99 ORDER taking under advisement 25 , Plaintiffs' Motion for Summary Judgment. All pending motions for summary judgment are taken under advisement. In light of the compelling Notice from the Office of the Attorney General of Virginia indicating that the Attorney General has concluded that Virginia's laws denying the right to marry to same−sex couples violate the Fourteenth Amendment to the United States Constitution, counsel for the parties and the Intervenor are ordered to file Status Reports addressing:(1) whether oral argument on the issues presented remains warranted, or whether the Court should instead rule promptly on the briefs without a hearing; (2) if oral argument is desired by a party or Intervenor, the requested scope and duration of that party's argument (with the understanding that duplicative or cumulative arguments are strongly discouraged); and (3) whether, in light of the change of position by the Attorney General, any parties or other entities have grounds to present argument that the laws denying the right to marry to same−sex couples should be construed as constitutional. Additionally, the Intervenor and Defendant Schaefer, III, are ordered to each file supplemental briefing not to exceed five pages responding to the Virginia Attorney General's position that the laws at issue are unconstitutional. The Status Reports from the parties and the Intervenor are ordered to be filed no later than 3 PM Friday, January 24, 2014. The Court will determine whether the hearing scheduled for January 30, 2014 should be held and, if so, its scope and duration, upon receipt of these Reports. The supplemental briefing by the Intervenor and Defendant Schaefer, III shall be filed no later than noon on January 27, 2014. Signed by District Judge Arenda L. Wright Allen on 01/23/2014. (Allen, Arenda) (Entered: 01/23/2014)
Notice of Correction re 97 Answer to Complaint: The Notice of Correction regarding this document was posted in error by the Clerk's Office and has been removed from the docket. (Entered: 01/23/2014)
100 NOTICE of Appearance by Mary Elizabeth McAlister on behalf of Liberty Counsel, Inc (McAlister, Mary) (Entered: 01/23/2014)

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 20 of 26

01/23/2014 01/23/2014 01/23/2014 01/23/2014 01/24/2014
01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014 01/24/2014
01/24/2014 01/24/2014 01/24/2014
01/24/2014 01/27/2014
01/27/2014

101 NOTICE of Appearance by Mary Elizabeth McAlister on behalf of Liberty Counsel, Inc (McAlister, Mary) (Entered: 01/23/2014)
102 NOTICE of Appearance by Mary Elizabeth McAlister on behalf of Liberty Counsel, Inc (McAlister, Mary) (Entered: 01/23/2014)
103 MOTION for Leave to File Amicus Curiae Brief on behalf of Liberty Counsel by Liberty Counsel, Inc. (Attachments: # 1 Proposed Order)(McAlister, Mary) (Entered: 01/23/2014)
104 Motion to appear Pro Hac Vice by Mathew D Staver and Certification of Local Counsel Richard L Mast Filing fee $ 75, receipt number 0422−3825988. by Liberty Counsel, Inc. (McAlister, Mary) (Entered: 01/23/2014)
Notice of Correction re 102 Notice of Appearance, 101 Notice of Appearance: The signature blocks on the documents do not match the filing users logins. The filing user has been notified and has been asked to either refile the document or to have the attorney whose signature block appears on the documents refile the document. (rsim, ) (Entered: 01/24/2014)
105 STATUS REPORT by George E. Schaefer, III. (Oakley, David) (Entered: 01/24/2014)
106 NOTICE of Appearance by Mary Elizabeth McAlister on behalf of Liberty Counsel, Inc (McAlister, Mary) (Entered: 01/24/2014)
107 NOTICE of Appearance by Mary Elizabeth McAlister on behalf of Liberty Counsel, Inc (McAlister, Mary) (Entered: 01/24/2014)
108 NOTICE of Appearance by Trevor Stephen Cox on behalf of Janet M. Rainey (Cox, Trevor) (Entered: 01/24/2014)
109 STATUS REPORT by Michele McQuigg. (Mattox, Michael) (Entered: 01/24/2014)
Notice of Correction re 104 Motion to appear Pro Hac Vice by Mathew D Staver: The signature block on the document does not match the filing users login. The filing user has been notified and has been asked to either refile the document or to have the attorney whose signature block appears on the document refile the document. Counsel is also advised that the court has a preferred filing method and provides a fillable form for Pro Hac Vice motions. The form can be found on the Court's website under attorney forms. Please call the clerk's office before re−filing for further instructions. (tlev, ) (Entered: 01/24/2014)
110 STATUS REPORT by Janet M. Rainey. (Raphael, Stuart) (Entered: 01/24/2014)
111 STATUS REPORT by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Lustig, Charles) (Entered: 01/24/2014)
112 ORDER denying 103 , the Motion for Leave to File an Amicus Curiae Brief on behalf of Liberty Counsel. The Motion is denied as untimely. The moving entity was advised on August 12, 2013 that the Office of the Virginia Attorney General did not then object to its filing an amicus brief. The entity did not seek permission to participate in this case until one week before oral argument on dispositive motions. The entity's failure to act for more than five months, and its failure to explain this delay, establish grounds for denying its request. Moreover, this entity failed to include a proposed brief with its motion, precluding any evaluation from the Court to determine whether the entity's arguments might be new or useful. Signed by District Judge Arenda L. Wright Allen on 01/24/2014. (Allen, Arenda) (Entered: 01/24/2014)
113 Motion to appear Pro Hac Vice by David Austin Robert Nimocks and Certification of Local Counsel M. Casey Mattox Filing fee $ 75, receipt number 0422−3827956. by Michele McQuigg. (Mattox, Michael) (Entered: 01/24/2014)
Notice of Correction re 106 Notice of Appearance, 107 Notice of Appearance: The signature blocks on the documents do not match the filing users logins. The filing user has been notified and has been asked to have the attorney whose signature block appears on the documents refile the document. (rsim, ) (Entered: 01/27/2014)
114 Reply to 96 NOTICE, of Change in Legal Position filed by George E. Schaefer, III. (Oakley, David) (Entered: 01/27/2014)

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 21 of 26

01/27/2014 01/27/2014 01/27/2014
01/27/2014 01/27/2014 01/27/2014 01/27/2014 01/28/2014 01/28/2014 01/28/2014 01/28/2014

115 ORDER that Intervenor−Defendant Michele B. McQuigg's request is GRANTED, and bythis Order, Intervenor is permitted to adopt the Motion (ECF No. 38) and briefing (ECF Nos. 44 and 65) as requested. Signed by District Judge Arenda L. Wright Allen and filed on 1/27/2014. (rsim, ) (Entered: 01/27/2014)
116 Response to 96 NOTICE, filed by Michele McQuigg. (Mattox, Michael) (Entered: 01/27/2014)
117 ORDER taking 27 Plaintiffs' Motion for a Preliminary Injunction, and all motions for summary judgment, under advisement. Following review of the parties' status reports and the supplemental briefing now filed, the Court confirms that oral argument on the summary judgment motions and the motion for a preliminary injunction will be heard commencing at 9 AM on Thursday, January 30, 2014, in Courtroom Three. Counsel are advised that no Internet connections are permitted in the Courthouse. No electronic equipment is permitted in the Courthouse, unless prior written approval is requested by counsel for a party to the action, and approval is subsequently granted in writing by the Court. Written requests for equipment approval must be received no later than 3 PM Tuesday, January 28, 2014, and must include specific descriptions of the equipment for which approval is sought, and the purpose for which that equipment will be used during oral argument. NOTE −− the Court sets the following Order of Presentation for oral argument at the hearing: Counsel for Plaintiffs present opening argument for no more than twenty minutes; Counsel for Defendant Rainey present argument for no more than twenty minutes; Counsel for Defendant Schaefer, III, present argument for no more than thirty minutes; Counsel for Intervenor McQuigg present argument for no more than thirty minutes; Counsel for Amicus The Family Foundation of Virginia present argument for no more than thirty minutes; Counsel for Amici Professors in Support of Defendants' Motions for Summary Judgment present argument for no more than thirty minutes; Counsel for Plaintiffs present rebuttal for up to ten minutes; and Counsel for Defendant Rainey present rebuttal for up to ten minutes. Counsel are advised that duplicative or cumulative argument is strongly discouraged. The pending motions will be taken under further advisement at the close of the hearing. Signed by District Judge Arenda L. Wright Allen on 01/27/2014. (Allen, Arenda) (Entered: 01/27/2014)
118 NOTICE by Robert A. Destro, William C. Duncan, Lynne Marie Kohm, Joseph P. Price, Lynn D. Wardle re 117 Order on Motion for Preliminary Injunction,,,,,,,, (Mattox, Michael) (Entered: 01/27/2014)
119 NOTICE by Michele McQuigg re 117 Order on Motion for Preliminary Injunction,,,,,,,, Presentment of Oral Argument (Mattox, Michael) (Entered: 01/27/2014)
120 NOTICE by Michele McQuigg re 117 Order on Motion for Preliminary Injunction,,,,,,,, Request for Use of a Laptop Computer at Counsels' Table (Mattox, Michael) (Entered: 01/27/2014)
121 NOTICE by The Family Foundation of Virginia re 117 Order on Motion for Preliminary Injunction,,,,,,,, (Matney, Mark) (Entered: 01/27/2014)
122 NOTICE by George E. Schaefer, III re 117 Order on Motion for Preliminary Injunction,,,,,,,, for Request to Use Laptop Computer at Oral Argument (Oakley, David) (Entered: 01/28/2014)
123 NOTICE of Appearance by Jennifer Jesusa Truitt on behalf of Robert A. Destro, William C. Duncan, Lynne Marie Kohm, Joseph P. Price, Lynn D. Wardle (Truitt, Jennifer) (Entered: 01/28/2014)
124 MOTION to Withdraw as Attorney by Robert A. Destro, William C. Duncan, Lynne Marie Kohm, Joseph P. Price, Lynn D. Wardle. (Mattox, Michael) (Entered: 01/28/2014)
125 ORDER granting 93 , the Motion to Withdraw as Attorney as advanced by attorney Norman Allan Thomas. It is within the sound discretion of the Court to grant attorney withdrawals in civil cases. Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1142 (4th Cir. 1990). Defendant Rainey is not disadvantaged by this withdrawal as she will continue to be represented by the Solicitor General, among others. Mr. Thomas's representation is terminated. Signed by District Judge Arenda L. Wright Allen on 01/28/2014. (Allen, Arenda) (Entered: 01/28/2014)

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 22 of 26

01/28/2014
01/29/2014 01/29/2014 01/31/2014 01/31/2014 02/03/2014 02/03/2014 02/04/2014
02/06/2014
02/12/2014 02/12/2014

126 ORDER granting 98 , the Motion to Withdraw as Attorney as advanced by attorney Michael Hugh Brady. It is within the sound discretion of the Court to grant attorney withdrawals in civil cases. Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1142 (4th Cir. 1990). Mr. Brady has provided adequate justification for his withdrawal. Defendant Rainey is not disadvantaged by this withdrawal as she will continue to be represented by the Solicitor General, among others. Mr. Brady's representation is terminated. Signed by District Judge Arenda L. Wright Allen on 01/28/2014. (Allen, Arenda) (Entered: 01/28/2014)
127 NOTICE by Robert A. Destro, William C. Duncan, Lynne Marie Kohm, Joseph P. Price, Lynn D. Wardle re 117 Order on Motion for Preliminary Injunction,,,,,,,, (Truitt, Jennifer) (Entered: 01/29/2014)
128 ORDER ADVISING ALL COUNSEL that due to inclement weather, the Courthouse will be CLOSED on Thursday, January 30, 2014. The hearing set for oral argument on pending dispositive motions in this matter is CONTINUED. The hearing will be re−scheduled in February as soon as practicable. Signed by District Judge Arenda L. Wright Allen on 01/29/2014. (Allen, Arenda) (Entered: 01/29/2014)
Reset Motions Hearing for 2/4/2014 at 10:00 AM in Norfolk Courtroom 4 before District Judge Arenda L. Wright Allen. (lhow) (Entered: 01/31/2014)
129 ORDER granting 113 , the Motion to appear Pro Hac Vice by David Austin Robert Nimocks as certified by Local Counsel M. Casey Mattox. Signed by District Judge Arenda L. Wright Allen on 01/31/2014. (Allen, Arenda) (Entered: 01/31/2014)
130 NOTICE of Appearance by Rhodes Beahm Ritenour on behalf of Janet M. Rainey (Ritenour, Rhodes) (Entered: 02/03/2014)
Notice of Correction re 130 Notice of Appearance: The filing user has been notified that document 130 was incorrectly saved as a PDF fillable form and has been removed. The filing user was directed to refile the document. (rsim, ) (Entered: 02/03/2014)
131 MOTIONS HEARING held before District Judge Arenda L. Wright Allen on 2/4/2014: Theodore Olson, David Boies and Thomas Shuttleworth present on behalf of the Plaintiffs; Stuart Raphael present on behalf of the Defendant, Janet M. Rainey; David Oakley present on behalf of the Defendant, George E. Schaefer, III. Austin Nimocks present on behalf of the Intervenor−defendant, Michele McQuigg. Matter came on re 25 MOTION for Summary Judgment 27 MOTION for Preliminary Injunction 40 MOTION for Summary Judgment and 38 MOTION for Summary Judgment. Arguments of counsel heard. Court to take matter under advisement. Court adjourned. (Court Reporter Tamora Tichenor.)(lhow) (Entered: 02/04/2014)
132 TRANSCRIPT of proceedings held on February 4, 2014, before Judge Arenda Wright Allen, Court Reporter/Transcriber Tami Tichenor, Telephone number 757 222−7078. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 3/10/2014. Redacted Transcript Deadline set for 4/8/2014. Release of Transcript Restriction set for 5/7/2014.(tichenor, tamora) (Entered: 02/06/2014)
133 NOTICE of Appearance by Rhodes Beahm Ritenour on behalf of Janet M. Rainey (Ritenour, Rhodes) (Entered: 02/12/2014)
134 NOTICE by Janet M. Rainey re 25 MOTION for Summary Judgment Or, In The Alternative, Preliminary Injunction, 96 NOTICE, 40 MOTION for Summary Judgment , 38 MOTION for Summary Judgment Notice of Supplemental Authority (Attachments: # 1 Exhibit Defendant−Appellee Governor of Nevada, Motion for Leave to Withdraw Brief, Sevcik v. Sandoval, No. 12−17668 (9th Cir. Feb. 10, 2014), # 2 Exhibit Bourke v. Beshear, No. 3:13−CV−750−H (W.D. Ky. Feb. 12, 2014))(Raphael, Stuart) (Entered: 02/12/2014)

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 23 of 26

02/13/2014
02/14/2014
02/21/2014 02/24/2014 02/24/2014

135 The Court GRANTS Plaintiffs' Motion for Summary Judgment (ECF No. 25), GRANTS Plaintiffs' Motion for Preliminary Injunction (ECF No. 27) and DENIES Defendant Schaefer's and Intervenor−Defendant's Motions for Summary Judgment (ECF Nos. 38 and 40). The Court ENJOINS the Commonwealth from enforcing Sections 20−45.2 and 20−45.3 of the Virginia Code and Article I, § 15−A of the Virginia Constitution to the extent these laws prohibit a person from marrying another person of the same gender. The Court finds Va. Const. Art. I, § 15−A, Va. Code §§ 20−45.2, 20−45.3, and any other Virginia law that bars same−sex marriage or prohibits Virginia's recognition of lawful same−sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution. In accordance with the Supreme Court's issuance of a stay in Herbert v. Kitchen, and consistent with the reasoning provided in Bishop, this Court stays execution of this injunction pending the final disposition of any appeal to the Fourth Circuit Court of Appeals. Counsel for Plaintiffs, Defendants, and Intervenor−Defendant are ordered to file proposed Judgments for the Court's consideration. These proposals shall be filed by March 14, 2014. IT IS SO ORDERED. Signed by District Judge Arenda L. Wright Allen and filed on 2/13/14. Copies distributed to all parties 2/13/14. (ldab, ) (Entered: 02/13/2014)
136 AMENDED OPINION AND ORDER: The Court GRANTS Plaintiffs' Motion for Summary Judgment (ECF No. 25), GRANTS Plaintiffs' Motion for Preliminary Injunction (ECF No. 27) and DENIES Defendant Schaefer's and Intervenor−Defendant's Motions for Summary Judgment (ECF Nos. 38 and 40). The Court ENJOINS the Commonwealth from enforcing Sections 20−45.2 and 20−45.3 of the Virginia Code and Article I, § 15−A of the Virginia Constitution to the extent these laws prohibit a person from marrying another person of the same gender. The Court finds Va. Const. Art. I, § 15−A, Va. Code §§ 20−45.2, 20−45.3, and any other Virginia law that bars same−sex marriage or prohibits Virginia's recognition of lawful same−sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution. In accordance with the Supreme Court's issuance of a stay in Herbert v. Kitchen, and consistent with the reasoning provided in Bishop, this Court stays execution of this injunction pending the final disposition of any appeal to the Fourth Circuit Court of Appeals. Counsel for Plaintiffs, Defendants, and Intervenor−Defendant are ordered to file proposed Judgments for the Court's consideration. These proposals shall be filed by March 14, 2014. IT IS SO ORDERED. Signed by District Judge Arenda L. Wright Allen and filed on 2/14/14. Copies distributed to all parties 2/14/14. (ldab, ) (Entered: 02/14/2014)
137 NOTICE by Janet M. Rainey of Agreed Form of Judgment (Attachments: # 1 Judgment)(Raphael, Stuart) (Entered: 02/21/2014)
138 ORDER granting 124 ORDER granting ECF No. 124, the Motion to Withdraw as Attorney as advanced by attorney M. Casey Mattox and Byron J. Babione. It is within the sound discretion of the Court to grant attorney withdrawals in civil cases. Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1142 (4th Cir. 1990). Amici Professors Robert A. Destro, William C. Duncan, Lynne Marie Kohm, Joseph P. Price, Lynn D. Wardle are not disadvantaged by this withdrawal as they will continue to be represented by Jennifer J. Truitt. Representation by Mr. Mattox and Mr. Babione is terminated. Signed by District Judge Arenda L. Wright Allen on 2/24/2014. (Allen, Arenda) (Entered: 02/24/2014)
139 JUDGMENT that Virginia's marriage laws are facially unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution to the extent they deny the rights of marriage to same−sex couples or recognition of lawful marriages between same−sex couples that are validly entered into in other jurisdictions. The Clerk of the Circuit Court of the City of Norfolk, the Clerk of the Circuit Court of Prince William County, and their officers, agents, and employees, and the officers,agents, and employees of the Commonwealth of Virginia including the State Registrar of Vital Records are ENJOINED from enforcing: Article I, § 15−A, of the Constitution of Virginia; Virginia Code § 20−45.2; Virginia Code § 20−45.3; and any other Virginia law if and to the extent that it denies to same−sex couples the rights and privileges of marriage that are afforded to opposite−sex couples. Signed by District Judge Arenda L. Wright Allen and filed on 2/24/2014. (rsim, )

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 24 of 26

02/24/2014 02/24/2014 02/24/2014 02/24/2014 02/25/2014 02/25/2014 02/25/2014 02/25/2014
02/25/2014 02/26/2014 07/28/2014 07/28/2014
08/13/2014 10/06/2014 10/20/2014 10/21/2014

(Entered: 02/24/2014)
140 NOTICE OF APPEAL as to 139 Judgment,,,, by George E. Schaefer, III. Filing fee $ 505, receipt number 0422−3863266. (Oakley, David) (Entered: 02/24/2014)
141 NOTICE OF APPEAL by Janet M. Rainey. Filing fee $ 505, receipt number 0422−3863332. (Raphael, Stuart) (Entered: 02/24/2014)
142 Transmission of Notice of Appeal to US Court of Appeals re 140 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (bgra) (Entered: 02/25/2014)
143 Transmission of Notice of Appeal to US Court of Appeals re 141 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (bgra) (Entered: 02/25/2014)
144 NOTICE OF APPEAL as to 136 Order,,,,,, 139 Judgment,,,, 135 Order on Motion for Summary Judgment, Order on Motion for Preliminary Injunction,,,,,,,,,,,,,,,,,,,,,,,,,, by Michele McQuigg. Filing fee $ 505, receipt number 0422−3865159. (Dalton, Jonathan) (Entered: 02/25/2014)
145 USCA Case Number 14−1167 4CCA − Case Manager RJ Warren for 140 Notice of Appeal filed by George E. Schaefer, III. (14−1167) (bgra) (Entered: 02/26/2014)
146 USCA Case Number 14−1169 4CCA − Case Manager RJ Warren for 141 Notice of Appeal filed by Janet M. Rainey. (14−1169) (bgra) (Entered: 02/26/2014)
147 ORDER of USCA as to 140 Notice of Appeal filed by George E. Schaefer, III, 141 Notice of Appeal filed by Janet M. Rainey. The court consolidates Case No. 14−1167 and Case No. 14−1169. Entry of appearance forms and disclosure statements filed by counsel and parties to the lead case are deemed filed in the secondary case. (14−1167) (bgra) (Entered: 02/26/2014)
148 Transmission of Notice of Appeal to US Court of Appeals re 144 Notice of Appeal, (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (bgra) (Entered: 02/26/2014)
149 ORDER of USCA as to 140 Notice of Appeal filed by George E. Schaefer, III, 141 Notice of Appeal filed by Janet M. Rainey, 144 Notice of Appeal, filed by Michele McQuigg: The court consolidates Case No. 14−1167(L) and Case No. 14−1173. (rsim, ) (Entered: 02/27/2014)
150 Opinion of USCA (Copy) re 140 Notice of Appeal, 141 Notice of Appeal, 144 Notice of Appeal affirming the decision of the district court. (judgment will not take effect until issuance of the mandate) (rsim, ) (Entered: 07/29/2014)
151 USCA JUDGMENT as to 140 Notice of Appeal filed by George E. Schaefer, III, 141 Notice of Appeal filed by Janet M. Rainey, 144 Notice of Appeal, filed by Michele McQuigg: In accordance with the decision of this court, the judgment of the district court is affirmed. This judgment shall become final and take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. (rsim, ) (Entered: 07/29/2014)
152 ORDER of USCA as to 140 Notice of Appeal filed by George E. Schaefer, III, 141 Notice of Appeal filed by Janet M. Rainey, 144 Notice of Appeal, filed by Michele McQuigg: Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion. (rsim, ) (Entered: 08/13/2014)
153 USCA Mandate re 140 Notice of Appeal: The judgment of this court, entered July 28, 2014, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (rsim, ) (Entered: 10/06/2014)
154 Joint MOTION for Entry of Consent Order Regarding Applications for Attorneys' Fees and Costs by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Attachments: # 1 Proposed Order)(Lustig, Charles) (Entered: 10/20/2014)
Notice of Correction re 154 Joint MOTION for Entry of Consent Order Regarding Applications for Attorneys' Fees and Costs: The signature block on the certificate of

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 25 of 26

10/21/2014 10/21/2014
11/18/2014 11/18/2014 11/18/2014 11/18/2014 11/20/2014 11/24/2014
11/24/2014
12/03/2014 12/11/2014 01/23/2015

service does not match the filing users login. The filing user has been notified to file a separate Certificate of Service. (rsim, ) (Entered: 10/21/2014)
155 CERTIFICATE of Service re 154 Joint MOTION for Entry of Consent Order Regarding Applications for Attorneys' Fees and Costs by Charles Barnet Lustig on behalf of Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley (Lustig, Charles) (Entered: 10/21/2014)
156 ORDER re 154 Motion for Entry of a Consent Order Regarding; Any prevailing party wishing to file an application for attorney's fees and costs under 42U.S.C. § 1988 shall file such application by November 21, 2014.Responses to such applications shall be filed by December 22, 2014.Replies in support of such applications shall be filed by January 6, 2015. Signed by District Judge Arenda L. Wright Allen and filed on 10/21/2014. (rsim, ) (Entered: 10/21/2014)
157 NOTICE of Appearance by Rebecca Kim Glenberg on behalf of Joanne Harris, Jessica Duff, Christy Berghoff, Victoria Kidd (Glenberg, Rebecca) (Entered: 11/18/2014)
158 Joint MOTION for Settlement (Entry of Consent Order) by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd, Janet M. Rainey. (Attachments: # 1 Proposed Order Ex. 1: proposed Consent Order (resolving claims of Harris Class), # 2 Exhibit Ex. 2: Order, Harris v. Rainey,No. 5:13cv00077 (W.D. Va. Nov. 17, 2014))(Raphael, Stuart) (Entered: 11/18/2014)
Notice of Correction re 157 Notice of Appearance: The filing user has been notified that document (157) was incorrectly saved PDF fillable form and has been removed from the docket sheet. The filing user was directed to refile the document. (rsim, ) (Entered: 11/18/2014)
159 NOTICE of Appearance by Rebecca Kim Glenberg on behalf of Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd (Glenberg, Rebecca) (Entered: 11/18/2014)
160 Joint MOTION for Extension of Time for Applications for Attorney's Fees and Costs by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Attachments: # 1 Proposed Order)(Lustig, Charles) (Entered: 11/20/2014)
161 ORDER deferring ruling on 158 , the Motion for Settlement. Counsel are directed to file a Joint Status Report no later than Thursday, December 4, 2014, establishing whether the Motion for Settlement should be adjudicated by Judge Allen or Judge Urbanski. If the parties request that Judge Allen adjudicate the motion, the basis for this request, and Judge Urbanski's views on the request, must be clearly provided. Signed by District Judge Arenda L. Wright Allen on 11/24/2014. (Allen, Arenda) (Entered: 11/24/2014)
162 ORDER granting 160 , the Motion for Extension of Time to File, as follows: Upon consideration of the parties' Joint Motion to Extend Time for Applications for Attorneys' Fees and Costs, it is hereby ORDERED that any prevailing party wishing to file an application for attorneys' fees and costs shall file an application by December 12, 2014. Responses to such applications shall be filed by January 12, 2015. Replies in support of such applications shall be filed by January 26, 2015. Signed by District Judge Arenda L. Wright Allen on 11/24/2014. (Allen, Arenda) (Entered: 11/24/2014)
163 STATUS REPORT by Defendant Rainey and the Harris Class respecting entry of Consent Order (ECF 158−1) by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd, Janet M. Rainey. (Attachments: # 1 Exhibit 1−−Fourth Circuit Order granting Harris Class Intervention, # 2 Exhibit 2−−Fourth Circuit Order directing that fees be determined in district court)(Raphael, Stuart) (Entered: 12/03/2014)
164 Joint MOTION to Suspend Time for Applications for Attorney's Fees and Costs by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley. (Attachments: # 1 Proposed Order)(Lustig, Charles) (Entered: 12/11/2014)
165 ORDER re 164 Joint Motion to Suspend Time for Applications for Attorney's Fees and Costs. The deadlines relating to applications for attorney's fees and costs are hereby suspended for 45 days. The parties shall file a status report by February 9, 2015, unless a notice of settlement or resolution is filed by the parties prior to that date. Signed by District Judge Arenda L. Wright Allen and filed on 1/23/2015. (rsim, ) (Entered: 01/26/2015)

Case: 2:13-cv-395 As of: 10/31/2017 11:46 AM EDT 26 of 26

01/26/2015 01/28/2015 02/13/2015

166 STATUS REPORT by Christy Berghoff, Jessica Duff, Joanne Harris, Victoria Kidd, Janet M. Rainey. (Raphael, Stuart) (Entered: 01/26/2015)
167 NOTICE of Settlement Regarding Fees and Costs by Timothy B. Bostic, Tony C. London, Carol Schall, Mary Townley (Attachments: # 1 Exhibit Settlement Agreement)(Lustig, Charles) (Entered: 01/28/2015)
168 CONSENT ORDER re 158 Motion for Settlement; Attorneys' fees and costs in the amount of$60,000 are hereby awarded to the Harris Class in full satisfaction of all of their claims for attorneys' fees and costs, whether made in this case or in Harris. The Harris Class will seek no further relief against any party in this case or in Harris, except in connection with enforcing its rights under this Consent Order. The Harris Class will cooperate with Defendant Rainey in seeking an agreed dismissal of the lawsuit in Harris in light of this ConsentOrder.(see Order for specifics). Signed by District Judge Arenda L. Wright Allen and filed on 2/13/2015. (rsim, ) (Entered: 02/13/2015)

 
 (ORDER LIST: 573 U.S.)

WEDNESDAY, AUGUST 20, 2014

ORDER IN PENDING CASE

14A196

MCQUIGG, MICHELE V. BOSTIC, TIMOTHY B., ET AL.

The application for stay presented to The Chief Justice and by him referred to the Court is granted, and the issuance of the mandate of the United States Court of Appeals for the Fourth Circuit in case No. 14-1167, is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

 
 McQuigg v. Bostic, 135 S.Ct. 314 (Mem) (2014)

135 S.Ct. 314 Supreme Court of the United States
Michele B. McQUIGG, in Her Official Capacity as the Clerk of Court for Prince William County Circuit Court, petitioner, v. Timothy B. BOSTIC, et al.
No. 14–251. | Oct. 6, 2014.
	  

Case below, 760 F.3d 352.
Opinion Petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit denied.
	   	  

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