Cuccinelli: It’s ‘Optimal’ If Virginia Gay People Just Marry The Opposite Sex

Ken Cuccinnelli II (R)
Ken Cuccinnelli II (R)
Attorney General Ken Cuccinelli II (R-VA)
Attorney General Ken Cuccinelli II (R-VA)

Attorney General and gubernatorial candidate Ken Cuccinelli (R) is charged with defending Virginia’s bans on same-sex marriage from various lawsuits, and his office has filed its first defense brief. Cuccinelli has a long history of anti-gay viewpoints, which his brief unsurprisingly reflects. Like many anti-equality briefs filed before it, the state of Virginia argues that marriage should be specially reserved for opposite-sex couples because only they can procreate:

Traditional marriage is the institution that provides the greatest likelihood that both biological parents will nurture and raise the children they beget, and it is rational to consider this to be optimal for children and society at large. Marriage links potentially procreative sexual activity with child rearing by biological parents. Through civil recognition of marriage, society channels sexual desires capable of producing children into stable unions that will raise those children in the circumstances that may rationally be viewed as having been proven optimal.

In other words, marriage isn’t about who is actually raising children — as thousands of Virginian same-sex couples are despite legal limitations on their ability to jointly adopt — but who could happen to get pregnant. It’s quite easy to appreciate allowing opposite-sex couples to marry for the sake of their children (or potential children), but nothing is this argument explains why it would be worthwhile to deprive same-sex families of the same legal protections. Rather, with no acknowledgment that gay people even exist, it suggests that even they should submit to the “optimal” institution of “traditional marriage.” Ironically, the very next paragraph makes an exception for parents who do not have a biological connection to their children, an exception that Virginia inexplicably is not willing to apply to same-sex families:

A related but analytically distinct point is that marriage provides the opportunity for children born within it to have a biological relationship to those with original legal responsibility for their wellbeing. By encouraging the biological to join with the legal, traditional marriage “increas[es] the relational commitment, complementarity, and stability needed for the long term responsibilities that result from procreation.” This ideal does not disparage the suitability of alternative arrangements where non-biological parents have legal responsibility for children. Rather, the point is that a State may rationally conclude that, all things being equal, it is better for the natural parents to also be the legal parents.

The brief goes on to explain that such conclusions are based on “acquired cultural wisdom” and are not based on animus toward same-sex couples, even if they continue to be applied in such a way. There is no scientific research to suggest that “complementarity” makes opposite-sex couples better parents; same-sex couples’ ability to parent is as much connected to their commitment to doing so as opposite-sex couples’. Incidentally, the citation for that quoted material is Lynn Wardle, a Brigham Young University law professor who testified in favor of the Defense of Marriage Act and who openly opposes same-sex adoption — a biased authority lacking expertise in the relevant social sciences upon which he draws conclusions.

There’s one other notable aspect to Cuccinelli’s brief. It dedicates many pages to a history of marriage law in Virginia, including a 1559 provision from the Church of England’s Book of Common Prayer, but never does this timeline mention restrictions based on race. This omission is so notable because it was a challenge to Virginia’s marriage laws that led to the Supreme Court overturning all bans on interracial marriage. The brief only mentions Loving v. Virginia later in reference to a “fundamental right to marry.” Perhaps Cuccinelli realized that highlighting a Virginia law that was found unconstitutional for excluding a particular group of couples from marrying wouldn’t be very helpful to his case.