Gay Marriage Foes Ask for Revival of Virginia Prohibition

Virginia’s same-sex marriage ban must be restored because the state’s public policy is “to procreate and protect children,” a lawyer seeking revival of the now-unconstitutional restriction told a U.S. appeals court.

Marriage is for separate sexes only, David B. Oakley, who represents Norfolk, Virginia court clerk George Schaefer, said in court today. Its purpose is to create offspring and that is a tradition in the state dating back centuries, he said.

“That sounds like a totalitarian system,” replied U.S. Circuit Judge Roger L. Gregory, a member of the three-judge panel of the U.S. Court of Appeals in Richmond, Virginia. Gregory’s comments during the 75-minute argument clashed with the approach of U.S. Circuit Judge Paul V. Niemeyer, a fellow panel member who asked whether the voter-approved amendment against gay nuptials wasn’t an issue for the state to decide.

Opponents of same-sex marriage have sustained a spate of courtroom setbacks in the wake of a U.S. Supreme Court decision last year to strike down a law that limited federal recognition of marriages to those made up of one man and one woman.

Eleven state and federal courts have ruled in favor of gay marriage rights since the high court’s June decision, including an Arkansas judge on May 9. Many of those rulings, including the one by Norfolk U.S. District Judge Arenda Wright Allen that’s the subject of today’s arguments, have been put on hold pending the outcome of appeals.

Second Case

The Richmond-based appellate court, which hears cases from lower-level federal courts in Virginia, West Virginia, North Carolina, South Carolina and Maryland, is the second this year to consider the issue of legalizing same-sex marriage.

A U.S. appeals court in Denver last month heard arguments on bids to reverse trial court decisions by judges in Utah and Oklahoma that struck down those states’ gay marriage prohibitions. A Detroit judge’s decision to invalidate Michigan’s restriction is being appealed to a Cincinnati-based panel.

One or more of those cases could ultimately be accepted for review by the Supreme Court, said Linda McClain, a professor of law at Boston University.

“This case is particularly appealing because Virginia is the state of Loving v. Virginia,” McClain said, referring to the high court’s 1967 decision to strike down the state’s bar on interracial marriage. The chance to couch its same-sex marriage decision in another Virginia ruling “might make it more attractive” than the others, she said.

Argued First

Still, the Oklahoma and Utah cases, because they were argued first, may be decided first, she said, while the Detroit decision came after a full-blown trial.

At today’s hearing in Richmond, Niemeyer , named to the court by Republican U.S. President George H.W. Bush, expressed skepticism about the departure from settled law represented by Allen’s ruling.

While plaintiffs’ lawyer Theodore Olson argued the state’s ban had singled out a class of Virginians for discrimination, Niemeyer said man-woman marriage has been recognized for thousands of years, while same-sex marriage has a much shorter history.

“You cannot make that union the same,” the judge said.

Olson served as U.S. Solicitor General, the Justice Department’s top courtroom lawyer, under George W. Bush.

Same-sex marriage has been legalized by court ruling, popular vote or legislative fiat in 22 U.S. states plus the District of Columbia.

Obama Nominee

The third member of today’s panel was U.S. Circuit Judge Henry F. Floyd, a 2011 nominee of Democratic President Barack Obama.

Austin Nimocks, representing Prince William County court clerk Michele McQuigg, argued that Wright’s February decision “lays waste to public policy.”

Gregory, a 2000 recess appointment of Democratic U.S. President Bill Clinton, who was nominated to the same position by his successor, Republican George W. Bush, in 2001 said child-rearing is a goal of heterosexual and homosexual married couples.

“Why does Virginia want to rip that embracement from the child?” he asked Nimocks, an attorney with the Scottsdale, Arizona-based Christian advocacy group Alliance Defending Freedom.

Virginia Attorney General Mark Herring, who took office this year, called the state’s ban unconstitutional, and opposed the bid for reinstatement. Solicitor General Stuart Raphael represented the state at today’s proceedings.

States’ Rights

He told the court the U.S. constitution’s Bill of Rights takes precedence over states’ rights on the issue of same-sex marriage.

“We have a brand-new relationship” in these marriages, Niemeyer responded. “We have to look at it and whether it is up to the Constitution or the states.”

Herring, a Democrat, issued a statement after today’s hearing in which he commended the state for taking the lead on a civil rights issue.

“Nothing that was said in the courtroom today alters the basic incompatibility of this discriminatory ban with the protections guaranteed by our constitution,” the attorney general said.

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).

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