Same-Sex Marriage: A View from Virginia

The following is a question-and-answer with Stuart Raphael, the Solicitor General of Virginia. Virginia has filed an amicus brief supporting the plaintiffs in Obergefell v. Hodges, a Supreme Court case challenging state same-sex marriage bans. Virginia’s same-sex marriage ban was struck down by a federal court last year in Bostic v. Schaefer.

Q: Virginia’s amicus brief in Obergefell v. Hodges focuses extensively on refuting the “narrowest historical context” approach. Can you give us a brief explanation of your argument and cases stemming from Michael H. v. Gerald D.?

A: The legal issue here is how to determine what rights are considered “fundamental” to be entitled to substantive protection under the Due Process Clause of the 5th and 14th Amendments. If a right is fundamental, then courts apply “strict scrutiny” to governmental restrictions that significantly burden that right. In the same-sex-marriage context, although we think it is doubtful that marriage bans can survive review under the more lenient “rational basis” test, few believe that such laws can survive strict scrutiny. So whether the right at issue is fundamental is important. And the level of generality at which that right is defined is critical: is it the right of two people to marry, or the right of two people of the same sex to marry?

In 1989, Justice Scalia proposed in footnote 6 of Michael H. that the Court define fundamental rights according to the narrowest historical context in which they were recognized, that is, “the most specific level at which a relevant tradition protecting . . . the asserted right can be identified.” He used Bowers v. Hardwick as an example, where the Court posed the question as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” and ruled 5-4 that it did not. Justice Scalia explained that most States prohibited sodomy when the Fourteenth Amendment was ratified. So, applying the narrowest-historical-context approach, he argued that such intimate conduct was not constitutionally protected.

But only Chief Justice Rehnquist joined footnote 6. Justice O’Connor, joined by Justice Kennedy, wrote that Justice Scalia’s approach was “somewhat inconsistent” with the Court’s past decisions. She cited Loving and Turner as examples. In Loving, the Court held that the Due Process and Equal Protection clauses of the Fourteenth Amendment bar States from prohibiting interracial marriage, despite that interracial-marriage bans were commonplace when that amendment was ratified. And in Turner, the Court held that prisoners have a right to marry despite the absence of any tradition allowing prisoner marriage.

In 1991, a full majority of the Court expressly rejected Justice Scalia’s approach in Planned Parenthood v. Casey, calling out footnote 6 specifically. Justice Scalia himself recognized in the VMI case, United States v. Virginia, that “the Court has not accepted [his] view.” And in 2003, the Supreme Court in Lawrence v. Texas overruled Bowers, holding that it had defined the right in question too narrowly. We say in our brief that Lawrence was the “coda to the swan song” of footnote 6, which met its demise in Casey.

Defenders of same-sex-marriage bans rely on the Court’s 1997 decision in Washington v. Glucksberg, which found no fundamental right to assisted suicide anywhere in 700 years of Anglo-American jurisprudence. But nothing in Glucksberg changed the Court’s analysis of established fundamental rights, like the right to marriage. As cases like Loving and Turner show, those rights are not limited to the narrowest context in which they were historically practiced. If they were, there would be no right to interracial marriage and no right of prisoners to marry.

Q: Virginia’s is one of only two amicus briefs with any discussion of the relevance of Michael H. Why did you choose to focus on that point?

A: Attorney General Herring and I came to appreciate the importance of Casey’s rejection of footnote 6 when preparing for oral argument in the district court in Virginia’s same-sex-marriage case, Bostic v. Rainey. The defenders of Virginia’s marriage ban—two circuit court clerks—placed heavy emphasis on Glucksberg while ignoring the Court’s rejection of the narrowest-historical context approach in Casey and Lawrence.

To our thinking, the Court’s rejection of Justice Scalia’s approach is the ballgame on the fundamental-rights issue. Quite frankly, we are surprised that the Michael H.-footnote-6 issue has not gotten more attention. We were happy to see that Professors Dorf and Tribe filed an amicus brief on this specific issue. So Virginia is in good company here.

Q: Opponents argue that if you separate marriage from history and tradition, it will lead to bigamy and polygamy. Why aren’t they right?

A: That’s a familiar bogeyman. In 1967, at oral argument in Loving, Virginia’s assistant attorney general likewise argued that a ban on polygamy could not be defended if the State could not ban interracial marriage. And Justice Scalia raised the same specter in his dissent in Lawrence. The claim is no stronger this time. Moreover, the Supreme Court made clear in Zablocki that “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” And as a practical matter, the Supreme Court upheld the constitutionality of Utah’s ban against polygamy in 1879; the 136 years that have since passed establish strong stare decisis values that make any successful challenge to such laws unlikely. It is telling that we have not witnessed any successful challenge to polygamy laws in the past decade in those States that have recognized same-sex marriage. As Justice Scalia said in a different context, “[p]erhaps the best indication that the sky will not fall after” such a decision “is that it has not done so already.”

Q: What are the broader implications for other fundamental-rights arguments if the Court were to pick up your Michael H argument in the Obergefell decision?

Our position in Obergefell is that the Court should base its decision on both substantive-due-process and equal-protection grounds, just as the Court did in Loving. By combining the principle that marriage is a fundamental right with the principle that the Equal Protection Clause bars States from discriminating against gay people, the outcome is ineluctable. Using Casey’s rejection of the narrowest-historical-context theory would simply bring the Court’s decision on substantive-due-process grounds into line with how it handled the same issue in Loving, Turner, and Zablocki. That would have narrower implications for future cases than if the Court were to hold, as we also think it should, that sexual-orientation discrimination triggers heightened scrutiny.

Q: Another theme in Virginia’s brief is the unique perspective the state brings as a former standard-bearer on the wrong side of history in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. In those cases Virginia argued in favor of school segregation, against interracial marriage, and in favor of excluding women from the state’s military academy. Was it difficult to get buy-in from others in your office to acknowledge Virginia’s past mistakes so overtly?

A: No. Virginia is incredibly proud to be the home of so many of our Founding Fathers, intellectual giants like Thomas Jefferson, James Madison, and George Mason. But while the Founders believed it “self-evident” that “all men are created equal,” it is also self-evident that they did not appreciate the full scope of that equality-of-right principle in their own day. Because Virginia’s government applied the wrong reasoning and got the wrong answer in those cases, Attorney General Herring felt a particular responsibility to get it right this time. As we pointed out in our brief, the equality-of-right principle here is not new; what’s new is this generation’s recognition that that principle cannot co-exist with governmental discrimination against gay people. What Chief Justice Roberts said in the context of racial discrimination applies equally here: “The way to stop discrimination” against gay people “is to stop discriminating” against gay people.

Q: What makes a good amicus brief?

A: Conveying a perspective that is useful but different from that of the parties. Our multi-State amicus brief in King v. Burwell, for example, shared with the Court the States’ perspective that nothing in the Affordable Care Act put us on clear notice of the disastrous consequences for our citizens and our State insurance markets if the Court were to adopt the plaintiffs’ interpretation that the Act bars premium-assistance tax credits in States that elected to rely on federally-facilitated Exchanges. At oral argument, the clear-notice and State-coercion issues appeared to trouble a number of the Justices.

Q: Prior to your tenure as Solicitor General, Virginia was defending its ban on gay marriage. Why did the Attorney General change Virginia’s position? When is it appropriate for an Attorney General to decline to defend a law – or to argue affirmatively that the law is unconstitutional?

A: Article 6 of the U.S. Constitution and a provision in Virginia’s Constitution require every Virginia official to swear an oath to uphold the Federal Constitution. When there is a conflict with State law, the Federal Constitution obviously controls.   In this case, Attorney General Herring pledged when he was elected to take a fresh look at this issue. General Herring and I determined that Virginia’s same-sex-marriage ban could not be reconciled with the Fourteenth Amendment and that the Supreme Court was likely to agree. There is a long tradition, as set forth in our change-of-position filing, and supported by Virginia constitutional-law scholars, showing the responsibility and duty of an attorney general to say so when he concludes, in his independent judgment, that a law is unconstitutional. That’s what General Herring did here, and his judgment was affirmed by the district court and the Fourth Circuit.

Q: Do you hire interns?

A: Yes, the Office of Attorney General welcomes law students. The deadlines to apply for the Spring Semester, Summer, and Fall Semesters are November 1, March 1, and April 1 respectively. More information about our intern program is available here.

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