5:13-cv-00077 #45

7/27/2019 5:13-cv-00077 #45

1/6

IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

JOANNE HARRIS and JESSICA DUFF, andCHRISTY BERGHOFF and VICTORIA KIDD,on behalf of themselves and all others similarlysituated, No. 5: 13-cv-00077

Plaintif,v.

ROBERT F. MCDONNELL, in his officialcapacity as Governor of Virginia; JANET M.RAINEY, in her official capacity as State Registrarof Vital Records; THOMAS E. ROBERTS, in hisoffcial capacity as Staunton Circuit Court Clerk,

Defendants.

DECLARATION OF MARK P. GABER IN SUPPORT OF PLAINTIFFS' MOTION FORSUMMARY JUDGMENTI, Mark P. Gaber, hereby declare as follows:

1. I am an Associate at Jenner & Block LLP ("Jenner") and counsel for Plaintiffs in the

above-captioned case. The testimony set forth in this Declaration is based on first-handknowledge, about which I could and would testify competently in open Court if called upon todo so. This Declaration is submitted in support of Plaintiffs' Motion for Summary Judgment.2. To assist in preparing Plaintiffs' Brief in Support of their Motion for Summary Judgment,I requested that Jenner's library staff obtain from the offcial Library of Virginia videorecordings of the floor proceedings from the Virginia House of Delegates for various days onwhich the House considered certain measures related to the marriage rights of same-sex couples.

1

Case 5:13-cv-00077-MFU-RSB Document 45 Filed 09/30/13 Page 1 of 6 Pageid#: 292

7/27/2019 5:13-cv-00077 #45

2/6

3. Jenner's library staff coordinated the request with Ms. Virginia Dunn, the Archives &

Library Reference Services Manager at the Library of Virginia, and on September 13,2013,Jenner received the video recordings requested for various days of floor proceedings from 2004,2005, and 2006.

4. I personally viewed these video recordings, and transcribed certain statements made by

members of the House of Delegates during the proceedings. To the best of my knowledge, thestatements quoted herein are accurate transcriptions of verbal statements made during the courseof debate on the House floor.5. One of the DVDs provided by the Library of Virginia is labeled "Virginia House ofDelegates 2005 Regular Session, Disk 1 of 1, February 8, 2005 House Copy, Jay Sears NewsService." That disk contains two video recording fies-a recording of the House's morningsession that day, and a recording of the House's afternoon session that day.6. During the afternoon session of February 8, 2005, a man identified by the Speaker oftheHouse as Delegate Marshall of Prince Wiliam said, "Homosexuals are supposed to be portrayedas victims of circumstance, victims of bigotry, and mainly seeking their civil rights. Some mightask, well, is this really a civil rights question?" See Library of Virginia, 2005 Regular Session,Disk 1 of 1, February 8, 2005 House Copy, Jay Sears News Service, at Afternoon Session,1 :29:09-1 :29:21.7. During the afternoon session of February 8, 2005, Delegate Marshall also said, "This isnot a civil rights issue." Id. at Afternoon Session, 1 :32: 18-1 :32:20.

8. During the afternoon session of February 8, 2005, Delegate Marshall also said, speakingabout the introductory "Resolve Clause" included in House Joint Resolution 586, that it "is herefor two reasons. . .. Secondly, it is here because of a Supreme Court decision, Romer, Governor

2


7/27/2019 5:13-cv-00077 #45

3/6

3


7/27/2019 5:13-cv-00077 #45

4/6

Service." That disk contains two video recording files-a recording of the House's afternoonsession that day, and a recording of the House's evening session that day.14. During the afternoon session of the February 26,2005 proceedings, Delegate Marshallsaid, "When we get into the word 'design of marriage' or the 'significance of marriage, - ah - if

I were with the opponents of this, I would suggest that this is a way to slip in theology, becausewe in nowhere state in the code what the design of marriage in (sic)." Library of Virginia,Virginia House of Delegates 2005 Regular Session, Disk 1 of 1, February 26, 2005 House Copy,Jay Sears News Service, at Afternoon Session, 1:33:35-1:33:54.15. During the afternoon session of the February 26,2005 proceedings, Delegate Marshallsaid, speaking to the elimination of the "Savings Clause," that "opponents wil say, 'you see,they really do want to take away some of the rights of persons who are not married." Id. atAfternoon Session, 1 :34:13-1 :34:19.16. During the afternoon session of the February 26,2005 proceedings, Delegate Marshallsaid, regarding the elimination of the introductory "Resolve Clause," "That is going to be theprime grounds of attack, I would think, that we're just a bunch of red necks who don't likehomosexuals in Virginia cause we've not defined the purpose of marriage." Id. at AfternoonSession, 1 :34:50-1 :35:01.17. Another of the DVDs provided by the Library of Virginia is labeled "Virginia House ofDelegates 2006 Regular Session, Disk 1 of 1, January 13,2006 House, Jay Sears News Service."That disk contains two video recording files-a recording beginning at 9:59 AM, and a recordingbeginning at 10:34 AM ("Second Session").18. During the Second Session of the January 13,2006 proceedings, Delegate Englin ofAlexandria quoted George Washington while stating his opposition to the proposed amendment,

4


7/27/2019 5:13-cv-00077 #45

5/6

see id. at Second Session, 1 :00:22-1 :01 :27; Delegate Marshall responded, to laughter from otherdelegates, "is the Gentleman aware of what George Washington did to persons who exercisedsame-sex persuasions in his units?" Library of Virginia, Virginia House of Delegates 2006Regular Session, Disk 1 of 1, January 13,2006 House, Jay Sears News Service, at SecondSession, 1:01:33-1:01:47.19. During the Second Session of the January 13,2006 proceedings, Delegate Marshall said,"Marriage is a legal and moral union between a man and a woman, which has the form ofreproduction and the attendant responsibilities that ensue therefrom, even if the fact ofreproduction does not occur. Therefore any claim that two men or two women may marry eachother is simply nonsense. It does not make logical sense. However there are attempts toradically alter an institution which that antedate history. And this has come about by socialengineering judges in Massachusetts, Vermont, and elsewhere who wish to do this." Id. atSecond Session, 12:32-13:22.20. During the Second Session of the January 13,2006 proceedings, Delegate Marshall said,"We have the - ah - notion that Virginia should not discriminate. Anybody can apply for amariage license; there's no inquiry on there as to your sexual interest or appetites. The onlyqualification is the qualifications of age and sex, nothing else. And to suggest otherwise is itselfto tamper with this institution." Id. at Second Session, 16:00-16:25.21. During the Second Session of the January 13,2006 proceedings, Delegate Ebbin ofAlexandria noted that the legislature had already enacted three measures banning same-sexmarriage, id. at Second Session, 17:38-18:13, and Delegate Marshall responded, "In 1975 whenthe ERA was raging, we did define that. We further modified that to say we're not going toaccept out of state same-sex mariages," id. at Second Session, 18:28-18:37, and "we further

5


7/27/2019 5:13-cv-00077 #45

6/6

modified that to say we won't accept these imitations, which are the further permutations of thelegal staff of the Lambda Legal Defense Fund," id. at Second Session, 18:42-18:56.22. During the Second Session of the January 13,2006 proceedings, Delegate Watts ofFairfax offered an amendment to re-insert the "Savings Clause" that had been eliminated fromthe Conference Committee measure passed in 2005. See id. at Second Session, 31 :04-31 :23.23. During the Second Session of the January 13,2006 proceedings, Delegate Marshall notedthat Lambda Legal Defense Fund was responsible for the Lawrence decision, id. at SecondSession, 1 :31 :08-1 :31 :36, presumably referring to the United States Supreme Court's decisionoverturning Texas's sodomy ban as unconstitutionaL. See Lawrence v. Texas, 539 U.S. 558(2003).

I declare under penalty of perjury that the foregoing is true and correct to the best of myknowledge and that this Declaration was prepared in the District of Columbia on September 30,2013. /(/"'".'.":! /.. iI \. . J I' / r/ :1 .1..../1. l ,e';. /1, .~tI l7t /t!;./t1'! :i.

I ' i I ii i. ;/ "- ./ I L .~Ii .\../v .... . .- "'~ark P.)~iaber . , /V

6


Documents

5:13-cv-00077 #45