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Late last week, on the eve of Valentine’s Day, a federal judge in Norfolk, Va., struck down the commonwealth’s ban on same-sex marriage. The decision, which has been stayed pending appeal, overturns a voter-approved 2006 constitutional amendment that prohibited same-sex unions in Virginia and refused to recognize those performed elsewhere. We consider the implications of the ruling and find out where the case goes from here.
- Matthew McGill attorney; partner at Gibson, Dunn & Crutcher
- Brian Brown President, National Organization for Marriage
- Michael Pope Northern Virginia reporter, WAMU 88.5; political reporter, Connection Newspapers; Author, "Hidden History of Alexandria, D.C." (The History Press)
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, exploring abandoned structures in our region, but first, Virginia is, as the slogan goes, for lovers. And the Commonwealth may have seen a spate of impromptu proposals on Friday because on the eve of Valentine's Day, a federal judge in Norfolk struck down a voter approved amendment to the Commonwealth's constitution that both banned same sex marriages and refused to recognize unions formed in states where it's legal.
MR. KOJO NNAMDIThe decision has been stayed pending appeal, which will move the case to the fourth circuit US Court of Appeals in Richmond. The decision made there could have implications ranging well beyond the borders of Virginia. Joining us to discuss this latest ruling and what it means moving forward is Michael Pope. He is WAMU 88.5's northern Virginia reporter and a political reporter with the Connection Newspapers. He's also the author of "Shotgun Justice: One Prosecutor's Crusade Against Crime and Corruption in Arlington -- Alexandria and Arlington." Michael Pope, good to see you.
MR. MICHAEL POPEGood to see you.
NNAMDIAlso in studio with us is Matthew D. McGill. He's a partner in the Washington, D.C. office of Gibson, Dunn and Crutcher. He practices in the law firm's litigation department, and its appellate in Constitutional law practice groups. He was part of the plaintiff's legal team in the case decided in Virginia last week. Matthew McGill, thank you for joining us.
MR. MATTHEW MCGILLThank you, Kojo. Good to be here.
NNAMDIAnd joining us by phone is Brian Brown, President and co-founder of the National Organization for Marriage, which is active in numerous states and at the national level, to keep marriage between a man and a woman. Brian Brown will be joining us shortly, but you can join the conversation right now by calling 800-433-8850. What do you think of this judge's ruling? You can also send us email to email@example.com or shoot us a tweet at kojoshow. Michael, for those who have not been following this case closely, what prompted this decision, and how much of a surprise was it for Virginia lawmakers and citizens alike?
POPEThe case was brought by a Norfolk couple, Tim Bostic and Tony London, who have been together about 20 years. Last summer, they tried to get a marriage license and the clerk of court denied them the ability to get a marriage license, largely because of this amendment to the Virginia Constitution that bans same sex marriage. And so they brought a lawsuit, along with some other lawyers there from the Norfolk area, that was eventually, some other high profile lawyers, one of whom is sitting with us today, joined the case.
POPEAnd so, last week, the judge in the case, Judge Arenda Wright, decided, basically ruled that that amendment violated the 14th Amendment, that the plaintiffs in the case, their fundamental right to marry was violated. Also, significantly, rejected this idea that the 10th Amendment gave the ability to the states to exclude this couple from being married. So, and then also, as you pointed out in your intro, there's another couple that's involved in this case that were married in California.
POPEAnd so another part of this case that hasn't received quite as much attention is that the judge also ruled that Virginia is legally required to accept and recognize gay marriages that happen in other states, like California.
NNAMDIThe role of Virginia Attorney General Mark Herring, in this case, has caused some controversy. What has he done or not done that has won him fans and detractors, depending on which side of the issue you're on?
POPEWell, okay, so backing up here a little bit, during the campaign, this was a huge campaign issue, and he was running for Attorney General. It was a very tight race, ended up in a recount. And there were many reporters, myself included, who were trying to press Herring on the campaign trail, how he would act in this case. This lawsuit had already come forward, and it was clear that the A.G.'s office was going to either have to defend this law or take a different position.
POPEOn the campaign trail, Herring did not say how, what he would do if elected. He did speak out in favor of gay marriage, but he did not say whether or not he would defend the constitution or not. Then, after the recount was settled, he had a very short time period, because the oral arguments were happening very soon after that recount. So, he announced that he would not be defending the constitutional ban on same-sex marriage, which totally outraged supporters of traditional marriage, who feel that he violated his duty to defend the Virginia Constitution.
NNAMDI800-433-8850 is the number to call. How do you think this case ultimately will or should be settled? Matthew McGill, same sex couples in the Commonwealth shouldn't start wedding planning just yet, because no one, including the judge who issued this ruling, thinks that this issue is settled. Where does it go from here?
MCGILLFrom here, Kojo, it's gonna go to the United States Court of Appeals for the Fourth Circuit. Right now, we're finalizing the form of judgment that will be filed in the District court, and at that point, the defendants in the case, which include the clerks of court in Norfolk and Prince William County, and also the Attorney General, may file notices of appeal to the Fourth Circuit.
NNAMDIBut it's not over, Michael Pope, for Mark Herring. This is not the only controversial issue that he will have to take sides on in his tenure, right? What else is on the horizon?
POPEThat's right. So, there's another lawsuit that's challenging the strict new abortion regulations that apply to abortion clinics. For example, the width of their doorways, and what kind of awnings are on the building. And they're essentially held to what's known as hospital construction standards. As a member of the State Senate, Herring voted against these new standards, and so it's unclear right now what will happen when that goes forward in the court system, you know? So, we could actually see a similar scenario play out.
POPEIt gets to the court, and then Herring has to make this decision. Does he defend the Virginia law that he disagreed with and did not vote for? Or does he come to the conclusion that it's unconstitutional and switches sides, the way that he did with the gay marriage case? So, that actually has yet to play out, and, you know, Herring could find himself in a very similar position with that case.
NNAMDIMatthew? You were gonna say?
MCGILLWell, I was gonna just say that there is precedent for Attorney General Herring doing what he has done here, including under the previous Attorney General, Attorney General Cuccinelli did in previous instances, regard certain laws enacted by the Commonwealth as unconstitutional under the Federal Constitution. And to conclude it, he was unable to defend them for that reason. So, it's, this isn't historically, particularly, you know, unusual.
NNAMDIThis goes to the Fourth Circuit US Court of Appeals in Richmond, which is a regional court, so that the decision there could reverberate in other states?
MCGILLThat's correct. The Fourth Circuit covers Maryland, Virginia, West Virginia, North Carolina and South Carolina. And if the Fourth Circuit concluded that, for instance, that laws that prohibit gay couples from marrying violate their fundamental right to marriage, it would be hard to sustain similar laws in other states, within the Fourth Circuit.
NNAMDIAnd once an Appeals Court hands down a decision, the losing side has 90 days in order to file an appeal with the Supreme Court and it would appear that given the mathematics here, the arithmetic, a ruling that comes this summer could easily reach the Supreme Court justices in time for next year's session, 2015?
MCGILLIt's possible. It's very difficult to say when the Fourth Circuit would issue its decision in this case. You know, they're gonna, of course, give this case serious and due consideration. But it's possible that it could reach the Supreme Court as early as the next term.
NNAMDII mentioned earlier that Brian Brown was supposed to be joining us by phone. He is President and co-founder of The National Organization for Marriage. It's active in numerous states and at the national level to keep marriage between and man and a woman. We have not been able to reach Brian Brown since the broadcast started, so Brian, if you happen to be listening someplace, give us a call at 800-433-8850. We'd love to have your voice in the conversation.
NNAMDIIn the meantime, we continue talking with Matthew McGill. He's a partner in the Washington, D.C. office of Gibson, Dunn and Crutcher. And he was part of the plaintiff's legal team in the case decided in Virginia last week. Michael Pope is our northern Virginia reporter and a political reporter with the Connection Newspapers and author of the book, "Shotgun Justice: One Prosecutor's Crusade Against Crime and Corruption in Alexandria and Arlington."
NNAMDIMatt, much of the argument from the attorneys leading the defense of these laws was in favor of tradition and in giving people of the Commonwealth the right to decide this matter. What was your main counterargument?
MCGILLOur main counterargument to that point, Kojo, was that the Bill of Rights, in our US Constitution, does not give to the people the right to decide whether citizens enjoy these very fundamental rights, such as the right to marriage. We don't put our right to free speech or our right to the freedom of religion up to (unintelligible) , nor do we do so with the right to marriage. It would be, of course, unthinkable that a population in a state could reenact, by voter approved amendment, a law banning interracial marriage.
MCGILLThat clearly would -- everyone would think immediately that would violate the US Constitution. Well, no less so here, Kojo. It's true that the Supreme Court has not yet addressed the issue, but that doesn't change the fact that the Bill of Rights protects gay and lesbian citizens, and it just does not permit voters to make these decisions.
NNAMDIThe team of attorneys that you work with have had success with this issue in California and now in Virginia. Is your approach fundamentally the same, as you argue this issue, in different courts around the nation, or does the approach change?
MCGILLNo, I think the approach is fundamentally the same. The laws are, you know, are different, the Proposition eight had some features that were different from the laws here in Virginia. But the arguments are fundamentally the same. The arguments are that marriage is a fundamental right. The Supreme Court has recognized that 14 times, and that gay and lesbian couples are entitled to equal protection under the law. Those are the basic arguments. They carried sway in California. They're carrying sway in places like Utah and Kentucky and Ohio and Oklahoma. And they've now carried sway in Virginia as well.
NNAMDIMichael Pope, the people of Virginia are, or seem to be, pretty evenly split on this issue. What kind of political fallout do you expect we'll see from voters as this case moves forward?
POPEWell, if you go back to when this particular constitutional amendment was passed, it's known as the Marshall-Newman Amendment. And back in 2006, voters approved this 57 percent to 43 percent. So, you know, that was pretty decisive back in 2006, but since that time, you know, opinions have changed, and, you know, people are sort of moving in a different direction. I mean, if you think about Herring himself, as a member of the State Senate, he voted in favor of the amendment.
POPESo, just in his own mind, there has been some change over that time period. So, it's difficult to say, actually, what the political fallout might be. But I guess Herring would face the brunt of it.
NNAMDIGo ahead, please.
MCGILLI might suggest that the political fallout will be quite minimal, because if you look at the polls today, something like 80 percent of people under the age of 30 support marriage equality. So, the trend line here is obvious, and it's clear, and it's not going to change or reverse course in a way that, I think, would make this a serious political issue going forward.
NNAMDIOf course the disgruntled always tend to be the more passionate on these issues. So in the short term there may be some political fallout. Let's go to Jo (sp?) in Gainesville, VA. Jo, you're on the air, go ahead please.
JOHi. Yes, I'm Jo. And I have a question, Kojo, that perhaps you could introduce there to the speaker, which is it occurred to me that maybe this is really, as far as states are concerned and the government's concern, more of a financial matter than anything else. And what I'm wondering is if a man to marry a man, could it be that down the road somewhere, you know, like, so many years from now that the truth is that marriage could eventually be for anybody to marry anybody.
JOYou know, like, if for instance he can get together to pool their finances and say, well, when I die or something I have this person to help me, to bury me and it's not really about a person's sexual life so much as a person supporting a person. It just -- there's my question. Could it one day be that marriage is really not about a sexuality, that it's really just about -- because it's not like...
NNAMDIMatt McGill, I guess the question that Jo...
JOYeah, it's not like...
NNAMDI...is raising is whether or not marriage is now being viewed in legal terms as basically a financial arrangement.
MCGILLWell, I don't think that's true and that's certainly not the way the Supreme Court has ever regarded it. I mean, to be sure, there are non-sexual components of marriage that the Supreme Court has regarded as important. And that's why the Supreme Court has permitted prisoners, for instance, to have the right to marry even though they would never be able to have any physical contact with their spouse. So there are elements of emotional support and commitment that are baked in and crucial to marriage. And I don't think that that's ever going to change.
POPEThere were also financial considerations for the Commonwealth of Virginia. After this ruling came out last week, my inbox was flooded with every member of the House of Delegates and the Senate and elected leaders all over Virginia wanted to weigh in on their thoughts on this ruling. And there was a theme, and many -- much of that reaction, especially among the supporters of the decision, which was this is financially beneficial to Virginia.
POPEBecause, you know, the supporters of gay marriage will say that the prohibition against gay marriage put Virginia in a perilous financial position because people might leave Virginia that wanted to marry or people might not travel to Virginia. And so, tourism might take a hit. People -- so there was also a financial consideration in favor of gay marriage among the supporters for Virginia as a whole, which is a sort of separate issue than the financial considerations of the individuals involved in a marriage.
NNAMDIOn therefore to Michael in Washington, D.C. Michael, you're on the air, go ahead please.
MICHAELHi, thank you. I had, first of all, kudos to Gibson / Dunn for taking the case on. But my question was for Mr. Brown if you've got him on and...
NNAMDINo, Mr. Brown is not on. We tried to reach him and we haven't been able to reach. We put the word out over the air and his office is trying to track him down. But he's not here, but your question is, go ahead?
MICHAELSure. My question is whether his organization or other similar to it put as much effort into making divorce illegal as they do to banning gay marriage because I think that making divorce illegal would go much further toward protecting the institution of marriage than would simply barring gay people from getting married.
NNAMDIBut from a legal standpoint, Matthew McGill, that would be a nonstarter.
MCGILLYeah, that was exactly the word I was thinking of. There's a Supreme Court case that actually addresses restrictions on divorce and has held them to be a violation of the fundamental right to marry. So that is a nonstarter, although I do appreciate the sentiment in the question.
NNAMDIHere's Al in Washington, D.C. Al, you're on the air, go ahead please.
ALYes, I have a question about the kids that's involved with these gay couples. What happens to the kids? You know, they are -- they're being left out of the picture, I think. I know -- I've never heard anybody talk about it.
MCGILLWell, I can address that. I mean, we very much addressed this in our case. Two of our plaintiffs, Carol Schall and Mary Townley, they have a 15, now 16-year-old daughter Emily who is -- has participated in the case. And I think the district court in its decision specifically addressed the fact that the laws that Virginia has enacted actually do harm to children like Emily. There are thousands of children being raised by gay and lesbian couples in the commonwealth and in other states.
MCGILLAnd the laws that prohibit their parents from being married harm their children. And that's a point that the other side really has never been able to answer in this debate. They say that, you know, that this is about protecting children. This is what the argument in California was, the slogan, the bumper sticker was, "Protect our children." But what the Supreme Court recognized and now Judge Wright Allen has recognized in Virginia is that these laws actually do harm to children.
NNAMDIIt's my understanding that Brian Brown now joins us by phone. He is president and co-founder of the National Organization for Marriage, active in numerous states and at the national level to keep marriage between a man and a woman. Brian Brown, thank you for joining us.
MR. BRIAN BROWNThanks for having me on.
NNAMDIBrian, this is one of a recent series of decisions in favor of the constitutionality of same-sex marriage. What are your main concerns about this broadening of the right to marry? And are your concerns merely legal or are they moral?
BROWNWell, the issue here is that the state needs to answer and that's the public policy question is, what is marriage? And the both reason, common sense, and the entire common law tradition of this country is that marriage is based upon the complimentarity (sp?) and the reality that men and women are different, husbands and wives are different. And to act as if that notion is somehow discrimination is simply wrong.
BROWNMarriage is based on the fundamental reality that mothers and fathers are different, husbands and wives are different and they offer something unique and special to children. So there's nothing bigoted or discriminatory in that view and these judges are simply taking their own views, their own morals, as we saw in the Virginia decision, beliefs and rewriting both history and law to suit their own interest.
BROWNThis is about activist judges rewriting history, also rewriting the Windsor decision to suit their own needs. The Windsor decision did not say that same-sex marriage was a fundamental constitutional right. What it did say, even though I believe it was profoundly wrong here, it said that the federal government had to recognize same-sex marriages that occurred in states that allowed it.
BROWNThat's a very different legal answer than to say that somehow there is a fundamental constitutional right to redefine. But that's exactly where these judges are going and ultimately this will end up back in the lap of the Supreme Court.
NNAMDIBrian, your weekly newsletter that went out this past Friday did not devote a lot of space to this ruling. Was that a byproduct of the late nature of the decision or does it reflect where the case falls as a priority for you nationally?
BROWNOh, no, it's a very important case. And it's important to note that, again, we have the egregious acts of the attorney general who simply refuse to defend the law. So for a number of reasons, it's a very important decision. But I think that there are a number of cases, including probably most importantly the Utah decision that are headed towards the Supreme Court. I think whether your view is that the Virginia decision or the Utah decision will get up there first, I think it's most likely that somehow they'll be bundled together and the court will have to decide this.
BROWNAnd we've addressed the Virginia situation for some time, even calling for the impeachment of the attorney general for refusing to defend the law. It was a late decision. One wonders when decisions are handed down on weekends whether the idea is to somehow avoid too much publicity around the case.
NNAMDIWell, here we are talking about it in the next week. But we got an email from Mark who says, "If several federal appeals courts are consistent in their ruling supporting gay marriage as the district courts have been, couldn't the Supreme Court just decline to hear the cases thus resolving the issue?" This question for you, Matthew McGill.
MCGILLI think the answer to that is yes. I mean, the Supreme Court, of course, can decline to hear any case. And it most often takes cases when courts of appeals have divided. So it is possible that the courts of appeals could develop a consensus that it is unconstitutional to deny gay and lesbian couples the right to marry and that the Supreme Court feels no need to intervene in the situation.
NNAMDIHere's Carmen in Arlington, VA. Carmen, you're on the air, go ahead please.
CARMENHi. I have a quick comment and a quick question. My comment is the American Psychological Association have published a number of papers and articles that said there is absolutely no negative impact to children when they're raised by homosexual couples. So my question is for the people against gay marriage and pro-civil unions as they like to call them. Can they make an argument without using the word God or tradition?
BROWNWell, of course you can. Again, we don't live in a form of government which you would type a technocracy or an oligarchy in which a few folks at the head of the APA get to determine for everyone else what is public policy. The people of this country have overwhelmingly said whenever they have voted -- they have largely said we understand marriage is the union of a man and a woman.
BROWNNow, there have been a few states that have not done that. But if you look at all the votes and take them together, it's a pretty large majority of Americans that has said marriage is the union of a man and a woman. Now, to then say that somehow those votes are irrelevant and we're just going to throw them out I think is wrong. As far as making an argument without talking about God or religion, fundamentally we have to answer the question, what is marriage?
BROWNWhy does it exist? And for those of us that believe marriage is the union of a man and a woman, again, this is not some sort of new or novel idea, it is based upon the fundamental reality that men and women are different, they're complimentary, that they offer something unique and special to their children. And one does not need to be a psychologist to recognize that a child is...
NNAMDIWe're running out of time.
BROWN...to have both a mother and a father.
NNAMDIWe're running out of time pretty quickly. But what I understand you to be saying is that God does not have to be included in the discussion.
BROWNGod does not have to be included. But at the same time, God is not excluded from the discussion.
CARMENThat is the problem is the...
NNAMDIOkay, I'm afraid I do have to move on. One final email we got from Sergio (sp?) which I'm going to ask you, Matthew McGill, to answer. "My question is how Virginia can pass a law that says it will not recognize same-sex marriages from the other states where it is legal. Why doesn't the full faith and credit clause of the U.S. Constitution prohibit Virginia or any other state from not being required to recognize same-sex marriages that are legal in other states?"
MCGILLGood question that I believe the answer is -- and I haven't researched this topic specifically. But I believe the answer is that the full faith and credit clause applies only to judgments and a marriage is not a judgment. So that's why it would not apply. I just wanted to just address Mr. Brown's counter it very briefly.
MCGILLThere's a circularity to his argument that it's okay to exclude gays and lesbians for marriage because marriage excludes gays and lesbians couples. It's a completely circular argument. And what the Supreme Court has done is it has defined marriage not in those terms, it is defined in gender neutral terms and by its attributes which includes many things that have nothing parenting and children.
BROWNBut that is not what the Supreme Court has done. If you read the Windsor decision, what the Supreme Court said is that states that have redefined marriage, the federal government will recognize those. But it did not strike down the part of DOMA that was referred to which allows states to define marriage for themselves, nor did it create a, quote/unquote, "constitutional right" nationality to redefine marriage. That is not what the Supreme Court...
NNAMDIAll of which is why we're looking at the future to see if this matter goes before the Supreme Court again. But that's all the time we have in the present. Brian Brown, thank you for joining us.
BROWNThank you for having me.
NNAMDIBrian Brown is president and co-founder of the National Organization for Marriage. Matthew McGill, thank you for joining us.
MCGILLThank you for having me, Kojo.
NNAMDIMatt is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher. He was part of the plaintiffs legal team in the case decided in Virginia last week. Michael Pope, good to see you.
POPEGood to see you.
NNAMDIMichael Pope is our northern Virginia reporter and a political reporter with the Connection newspapers, author of the book, "Shotgun Justice: One Prosecutor's Crusade Against Crime and Corruption in Alexandria and in Arlington." We're going to take a short break. When we come back, exploring abandoned structures in our region. I'm Kojo Nnamdi.
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