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

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

JOANNE HARRIS and JESSICA DUFF, and CHRISTY BERGHOFF and VICTORIA KIDD, themselves and all others similarly on behalf of situated,

No.

5:

13-cv-00077

Plaintif,
v.

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

Defendants.

DECLARATION OF MARK P. GABER IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT


I, 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-hand

knowledge, about which I could and would testify competently in open Court if called upon to
do so. This Declaration is submitted in support of

Plaintiffs' Motion for Summary Judgment.


in Support of

2. To assist in preparing Plaintiffs' Brief

their Motion for Summary Judgment,


Virginia video

I requested that Jenner's library staff obtain from the offcial Library of

recordings of the floor proceedings from the Virginia House of Delegates for various days on
which the House considered certain measures related to the marriage rights of same-sex couples.

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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, the

statements quoted herein are accurate transcriptions of verbal statements made during the course
of debate on the House floor.
5. One of the DVDs provided by the Library of

Virginia is labeled "Virginia House of

Delegates 2005 Regular Session, Disk 1 of 1, February 8, 2005 House Copy, Jay Sears News
Service." That disk contains two video recording fies-a recording of

the House's morning

session 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 ofthe

House as Delegate Marshall of Prince Wiliam said, "Homosexuals are supposed to be portrayed
as victims of circumstance, victims of

bigotry, and mainly seeking their civil rights. Some might


Virginia, 2005 Regular Session,

ask, well, is this really a civil rights question?" See Library of

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 is

not 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, speaking

about the introductory "Resolve Clause" included in House Joint Resolution 586, that it "is here

for two reasons. . .. Secondly, it is here because of a Supreme Court decision, Romer, Governor

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Case 5:13-cv-00077-MFU-RSB Document 45 Filed 09/30/13 Page 4 of 6 Pageid#: 295

Service." That disk contains two video recording files-a recording of

the House's afternoon

session that day, and a recording of

the House's evening session that day.


the February 26,2005 proceedings, Delegate Marshall
marriage' or the 'significance of

14. During the afternoon session of

said, "When we get into the word 'design of

marriage, - ah - if

I were with the opponents of this, I would suggest that this is a way to slip in theology, because
we 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 Marshall

said, speaking to the elimination of

the "Savings Clause," that "opponents wil say, 'you see,


the rights of

they really do want to take away some of

persons who are not married." Id. at

Afternoon Session, 1 :34:13-1 :34:19.


16. During the afternoon session of

the February 26,2005 proceedings, Delegate Marshall

said, regarding the elimination of

the introductory "Resolve Clause," "That is going to be the


red

prime grounds of attack, I would think, that we're just a bunch of

necks who don't like

homosexuals in Virginia cause we've not defined the purpose of

marriage." Id. at Afternoon

Session, 1 :34:50-1 :35:01.


17. Another of the DVDs provided by the Library of

Virginia is labeled "Virginia House of

Delegates 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 recording
beginning at 10:34 AM ("Second Session").
18. During the Second Session of

the January 13,2006 proceedings, Delegate Englin of

Alexandria quoted George Washington while stating his opposition to the proposed amendment,

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see id. at Second Session, 1 :00:22-1 :01 :27; Delegate Marshall responded, to laughter from other

delegates, "is the Gentleman aware of what George Washington did to persons who exercised
same-sex persuasions in his units?" Library of Virginia, Virginia House of

Delegates 2006

Regular Session, Disk 1 of 1, January 13,2006 House, Jay Sears News Service, at Second
Session,

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 of
reproduction and the attendant responsibilities that ensue therefrom, even if the fact of

reproduction does not occur. Therefore any claim that two men or two women may marry each

other is simply nonsense. It does not make logical sense. However there are attempts to
radically alter an institution which that antedate history. And this has come about by social
engineering

judges in Massachusetts, Vermont, and elsewhere who wish to do this." Id. at

Second 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 a

mariage license; there's no inquiry on there as to your sexual interest or appetites. The only
qualification is the qualifications of age and sex, nothing else. And to suggest otherwise is itself
to 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 of

Alexandria noted that the legislature had already enacted three measures banning same-sex

marriage, id. at Second Session, 17:38-18:13, and Delegate Marshall responded, "In 1975 when
the ERA was raging, we did define that. We further modified that to say we're not going to
accept out of

state same-sex mariages," id. at Second Session, 18:28-18:37, and "we further

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modified that to say we won't accept these imitations, which are the further permutations of

the

legal 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 of

Fairfax offered an amendment to re-insert the "Savings Clause" that had been eliminated from
the 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 noted

that Lambda Legal Defense Fund was responsible for the Lawrence decision, id. at Second
Session, 1 :31 :08-1 :31 :36, presumably referring to the United States Supreme Court's decision

overturning 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 my knowledge and that this Declaration was prepared in the District of Columbia on September 30,
2013.

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