February 4, 2014 at 6:00 pm EDT | by Michael K. Lavers
Judge hears oral arguments in Va. marriage case
Josh Duggar, Victoria Cobb, Family Foundation of Virginia, Allison Howard, Concerned Women for America, E.W. Jackson, Norfolk, gay marriage, same-sex marriage, marriage equality, Virginia, gay news, Washington Blade

From left: Josh Duggar, Victoria Cobb of the Family Foundation of Virginia, Allison Howard of Concerned Women for America and EW Jackson take part in an anti-gay marriage rally outside the Norfolk ,Va., federal courthouse on Feb. 4. (Photo courtesy of the Family Foundation of Virginia)

A federal judge in Norfolk, Va., on Tuesday heard oral arguments in a lawsuit that challenges Virginia’s same-sex marriage ban.

Ted Olson and David Boies, who successfully argued against California’s Proposition 8 before the U.S. Supreme Court, told Judge Arenda L. Wright Allen of the U.S. District for the Eastern District of Virginia the commonwealth’s constitutional amendment that defines marriage as between a man and a woman violates the 14th Amendment. The two men represent Timothy Bostic and Tony London and Norfolk and Carol Schall and Mary Townley of Chesterfield who filed suit against the gay nuptials ban last year.

“As a proud Virginian, I am gratified to represent two loving couples in my home state who want nothing more than to have the state recognize their relationships,” said Olson. “Virginia’s prohibition on marriage for same-sex couples relegates gay and lesbian Virginians to second-class status. Laws excluding gay men and lesbians from marriage violate personal freedom, are an unnecessary government intrusion, and cause serious harm. That type of law cannot stand.”

Attorney General Mark Herring, who announced last month he would not defend the marriage amendment, is among those who attended the hearing.

“Today was a very significant day in the journey toward full equality under the law for all Virginians,” said Herring in a statement after he left the courthouse. “I am proud to say that the commonwealth of Virginia stood on the right side of the law and the right side of history today in opposing this discriminatory ban.”

Lawyers with the Alliance Defending Freedom who are representing Prince William County Circuit Court Clerk Michèle McQuigg defended the marriage amendment that Virginia voters approved by a 57-43 percent margin in 2006. Norfolk Circuit Court Clerk George Schaefer tapped attorneys with former Virginia Gov. Bob McDonnell’s Virginia Beach law firm to represent him in the case.

The Family Foundation of Virginia and a group of professors from Regent University and other conservative academic institutions filed amicus briefs with the court in support of the marriage amendment.

“These citizens support marriage as defined by our constitution because they understand and recognize that our children deserve, whenever possible, to have both a mom and a dad,” said Victoria Cobb, president of the Family Foundation of Virginia. “They are also frustrated that they’ve been disenfranchised by an unconscionable and unprecedented decision by the attorney general of Virginia to take a position in court against the marriage amendment.”

Cobb joined former Virginia lieutenant gubernatorial candidate E.W. Jackson, Josh Duggar of the TLC series “19 Kids and Counting” who works for the Family Research Council, Allison Howard of Concerned Women for America and other same-sex marriage opponents who rallied outside the courthouse before the hearing. Roughly 60 LGBT rights advocates and other supporters of nuptials for gays and lesbians attended a candlelight vigil on Monday night.

“We want to be married for the happy times, but we need to be married for the sad times,” Schall told the Washington Blade on Monday during an interview with her and Townley and Bostic and London. “Virginia should not be in the business of standing in the way of people wanting to care for each other and take responsibility for each other.”

The hearing took place a day after the Republican-controlled Virginia House of Delegates overwhelmingly approved a bill that would allow any state lawmaker to defend a law if the governor and attorney general decline to do so.

The measure’s sponsors — state Dels. Bob Marshall (R-Prince William County) and Todd Gilbert (R-Shenandoah County) — are among the 30 lawmakers who asked Gov. Terry McAuliffe to appoint a special counsel to defend the marriage amendment.

The governor, who supports marriage rights for same-sex couples, last week declined to do so.

A federal judge in Harrisonburg on Jan. 31 certified a second lawsuit the American Civil Liberties Union, Lambda Legal and the ACLU of Virginia filed on behalf of two lesbian couples from the Shenandoah Valley who are seeking marriage rights in the commonwealth as a class action.

Allen said she would issue her ruling in the AFER case “soon.”

“We want to be married,” London told the Blade on Monday. “It’s important to us as Virginians that we get married in the state that we love.”

Michael K. Lavers is the international news editor of the Washington Blade. Follow Michael

  • I’m a little surprised that attorneys Ted Olson and David Boies — who successfully challenged California’s Proposition 8 — did not invoke the Supreme Court’s landmark 1967 Loving v. Virginia decision that struck down the state’s ban on interracial marriages in their challenge to Virginia’s ban on same-sex marriages. The ban — along with those of 33 other states — is every bit as unconstitutional under the 14th Amendment as the racist anti-miscegenation law that the high court struck down.

    While there are legal challenges pending in federal courts against similar bans in other states, I have little doubt that the Virginia case is the one that will eventually reach the Supreme Court, if for no other reason than the historical precedent that was set by Richard and Mildred Loving when they challenged the interracial-marriage ban nearly half a century ago.

  • Skeeter, you couldn’t be more wrong. The Loving case was about racial divides, not sexually-confused perverts wanting to corrupt marriage laws. And the 14th amendment does not apply to gay marriage, either. The intent of that law was to define the status of newly freed Negroes in 1868, not to legitimize unnatural relationships. The equal protection clause does not provide individual or group protections; it demands equal application of the law (according to Cornell University School of Law). When same gender couples are not allowed to marry, it is not a 14th amendment violation when it applies to both homosexual and heterosexual same gender couples. If it applies equally, then there is no federal supremacy question. Absent a federal supremacy issue, the federal government cannot intervene in state’s laws concerning unnatural marriage because of the Eerie Doctrine.

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