Case 2:13-cv-00395-AWA-LRL Document 135 Filed 02/13/14 Page 35 of 41 PageID# 1077
("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 oppositesex 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. 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
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