March 31, 2014 | by Michael K. Lavers
Lawyer: Va. marriage ban necessary for ‘procreation’
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

A lawyer with the Alliance Defending Freedom argues in a brief submitted to the 4th U.S. Circuit Court of Appeals that Virginia’s same-sex marriage ban is necessary for “procreation.” (Photo courtesy of the Family Foundation of Virginia)

A lawyer for an anti-gay legal group said in a brief filed with a federal appeals court on March 28 that Virginia’s same-sex marriage ban is necessary for the “procreation” of children.

“Redefining marriage harms marriage’s ability to serve those interests by serving marriage’s inherent connection to procreation and communicating that the primary end of marriage laws is to affirm adult desires rather than serve children’s needs, and suppressing the importance of both mothers and fathers to children’s development,” wrote Byron J. Babione of the Alliance Defending Freedom in a brief he filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., on behalf of Prince William County Circuit Court Clerk Michèle McQuigg.

Babione argued that U.S. District Judge Arenda L. Wright Allen “sought to discredit these procreation- and child-focused purposes for marriage” in her Feb. 13 ruling that struck down Virginia’s constitutional amendment that defines marriage as between a man and a woman.

“Plaintiffs ask this court to use the law’s power to redefine the institution of marriage,” said Babione. “That redefinition would transform marriage in the public consciousness from a gendered to a genderless institution – a conversation that would be swift and unalterable, the gendered institution having been declared unconstitutional.”

Babione also cites the Witherspoon Institute in his brief to make the argument that it is “best for a child to be reared by his or her own mother and father.” The New Jersey-based conservative think tank largely funded Mark Regnerus’ study on the issue that a federal judge earlier this month dismissed as “entirely unbelievable and not worthy of serious consideration” in his ruling that struck down Michigan’s same-sex marriage ban.

“Genderless marriage communicates that marriage exists primarily for the government to approve emotional or romantic bonds, because those sorts of bonds (and not sexual conduct of the type that creates children) would be the prominent feature shared by the couples who marry,” said Babione.

David B. Oakley, who represents Norfolk Circuit Court Clerk George Schaefer, III, in the case, said in a separate brief he filed with the federal appeals court on March 28 that Allen “began her opinion with the misconception that Virginia’s definition of marriage is solely based upon prejudice and animus towards gay and lesbian couples.” She opened her ruling with a quote from Mildred Loving, whose challenge of Virginia’s interracial marriage ban prompted the U.S. Supreme Court to issue its landmark Loving v. Virginia decision in 1967.

Oakley further argued Schaefer and others who issue marriage licenses would “face exposure to additional lawsuits” from those denied them if the 4th Circuit upholds Allen’s ruling.

“Same-sex marriage proponents want to open the door of marriage for their benefit and then slam it shut behind them,” wrote Oakley. “It will not be long before other groups come knocking.”

Court records indicate the Family Research Council on March 26 sought to file an amicus brief in the Bostic case, but the federal appeals court blocked it as “premature.” The Washington Blade was unable to immediately obtain a copy of the filing.

Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield last year challenged the commonwealth’s marriage amendment. The American Civil Liberties Union and Lambda Legal – who filed a separate lawsuit last summer on behalf of Victoria Kidd and Christy Berghoff of Winchester and Joanne Harris and Jessica Duff of Staunton – have been allowed to join the Bostic case.

U.S. District Judge Michael F. Urbanski in January certified the ACLU and Lambda Legal lawsuit as a class action.

The federal appeals court on May 12 is scheduled to hear oral arguments in the Bostic case.

Attorney General Mark Herring earlier this year announced he would not defend Virginia’s marriage amendment that voters in 2006 approved by a 57-43 percent margin.

Briefs from the lawyers who are representing the plaintiffs are due to the court on April 11.

“Our attorneys will review the briefs from the clerks and will respond as appropriate in the brief the commonwealth will file by the April 11 deadline,” Herring spokesperson Michael Kelly told the Blade.

Michael K. Lavers has been a staff writer for the Washington Blade since May 2012. The passage of Maryland's same-sex marriage law, the HIV/AIDS epidemic, the burgeoning LGBT rights movement in Latin America and the consecration of gay New Hampshire Bishop V. Gene Robinson are among the many stories he has covered since his career began in 2002. Follow Michael

14 Comments
  • Look back at the photo provided by "The Family Foundation of Virginia," and see the smug, smiling religious faces of intolerance and bigotry who want to legislate and institute their brand of "Sharia" Christian Fundamentalism.

  • Lauren T. Furey

    I think any couples who have chosen not to have children or couples who have married beyond child bearing age should rise up against this argument. It is insulting to say that marriage is all about procreation.

  • Lauren T. Furey

    I think any couples who have chosen not to have children or couples who have married beyond child bearing age should rise up against this argument. It is insulting to say that marriage is all about procreation.

  • Martha Chambers

    I agree with you wholeheartedly Lauren.

  • Yes it is insulting on every level!

  • This is ridiculous! Bob and I married when I was beyond child-bearing age (not to mention sterilized!); clearly, we married for reasons other than procreation, and fortunately, VA had no say in the matter. Who are these people to keep meddling on the lives of others?

  • Marriage is a civil action. No church needed. The civil action gives access to many things not least to be recognised as a family unit. There are many 'rules' which miraculously fade away. A very simple example: K is recognized at our pharmacy and gets the lower cost because of my scripts. Our family doctors have us together as a family. K has been with me through all my pain dramas. I went to K's Graduation as did my parents. It is a collection of little things, none of which are church-based.

  • Love it when they trot out that hoary old chestnut that opening the door to same-sex marriage will lead to not being" long before other groups come knocking.” Where in the world has this happened in countries which have had same-sex marriage for years? Nowhere! Unfortunately Americans are so conditioned to naval gazing that they can't see the picture in an international context.

  • These people have no idea how unspeakably cruel they are. It is hate and bigotry and ignorance disguised as rationality and should be struck down hard whenever it raises it's ugly head.

  • These people have no idea how unspeakably cruel they are. It is hate and bigotry and ignorance disguised as rationality and should be struck down hard whenever it raises it's ugly head.

  • If the sole purpose of marriage is procreation then all conservatives are only allowed to have intercourse once a year, and then only to procreate. If they are unable, then they forfeit the next year. Let's take this seriously folks, how far down the rabbit hole do conservatives want to go?

  • Yea.. it's all about procreation. So then let's let men marry as many women as each one would need to fulfill his holy obligation to be fruitful and multiply.

    I can see it now: "out ma way bitch! I got cookies to bake!! an I be all fresh outta ovens!!!"

  • It's retarded. Actually marriage is too as it was originally a religious institution. Once again, the government gets involved and fucks everything up.

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