Gay Marriage Foes Argue Against Tide to Revive Virginia's Ban

A bid to revive Virginia’s gay- marriage ban follows a series of defeats this year for opponents of same-sex unions, after a U.S. Supreme Court ruling in June triggered challenges to restrictions nationwide.

Lawyers for two county clerks are set today to ask the U.S. Court of Appeals in Richmond to reinstate the law in the face of 11 consecutive rulings in favor of same-sex marriage in state and federal courts. Their own attorney general, Democrat Mark Herring, refused to defend the law before it was ruled unconstitutional by a lower court judge in February.

The case is the third to reach a federal appeals court since the Supreme Court struck down a U.S. statute defining marriage as a union between one man and one woman. One or more of those cases may return the issue to the Supreme Court, which stopped short of declaring a right to gay marriage.

Today’s hearing comes just four days after an Arkansas judge declared that state’s bar to same-sex marriage invalid, basing his decision in part on a 1967 high-court ruling that voided a Virginia law banning interracial-marriage.

The Arkansas judge, like 10 other courts before him in states from New Jersey to Utah, held that a same-sex marriage ban violated constitutional guarantees of equal protection. Same-sex marriage has now been deemed lawful in 22 states plus the District of Columbia, though court stays in several of those states are in place while appeals are pursued. Yet another challenge to a gay-marriage ban was filed yesterday against Alaska in federal court in Anchorage.

2006 Amendment

U.S. District Judge Arenda Wright Allen struck down a voter-enacted 2006 amendment to Virginia’s constitution stating that only a man-woman marriage could be recognized by the state or one of its political sub-divisions.

Norfolk Circuit Court Clerk George Schaefer is arguing on appeal that federal courts should defer to the states when deciding whether to sanction gay weddings.

“References to marriage being only between a bride and groom, i.e. a husband and wife or one man and one woman, pre- date the Commonwealth of Virginia,” Schaefer said in a court filing. The 2006 law “did not redefine marriage; it memorialized existing laws,” according to Shaefer’s filing, which said “great weight” should be given to the will of the people.

Prince William County Court Clerk Michele McQuigg is also seeking reversal of Allen’s ruling. She is represented by the Scottsdale, Arizona-based Christian advocacy group Alliance Defending Freedom.

Boies, Olson

The gay couple that challenged Virginia’s law, Tony London and Timothy Bostic, are represented by attorneys David Boies and Theodore Olson, former adversaries in the 2000 Supreme Court case, Bush v. Gore, which tipped that year’s presidential election in favor of Republican George W. Bush.

Boies served as counsel for former Democratic nominee and Vice President Albert Gore. Olson represented Bush and later served as U.S. Solicitor General under him.

Boies and Olson said Virginia’s gay marriage ban improperly discriminates against people on the basis of their sexual orientation.

“The Supreme Court has reaffirmed at least 14 times that the right to marry is one of the most fundamental rights -- if not the most fundamental right—of an individual,” they said in a filing. Though advocates of the ban assert that right is limited to male-female unions, “the right to marry has always been based on, and defined by, the constitutional liberty to select the partner of one’s choice,” they said.

Interracial Marriage

Olson and Boies also referenced the high court’s 1967 interracial marriage decision.

More than a dozen interest groups have submitted friend-of- the-court filings on both sides of the issue.

Virginia Solicitor General Stuart Raphael will represent the state at today’s proceedings. Herring is among at least five other Democratic attorneys general who have refused to defend lawsuits challenging gay-marriage bans.

A three-judge panel of the U.S. Court of Appeals in Denver last month heard arguments over rulings by federal judges in Utah and Oklahoma that struck down bans in those states. That court hasn’t yet issued a decision. A Detroit judge’s ruling that struck down Michigan’s same-sex marriage prohibition is being appealed to a federal panel in Cincinnati. Arguments in that case haven’t been scheduled yet.

The cases are Bostic v. Schaefer, 14-1167, Bostic v. Rainey, 14-1169 and Bostic v. McQuigg, 14-1173, U.S. Court of Appeals for the Fourth Circuit (Richmond).