April 7, 2014 at 2:08 pm EDT | by Michael K. Lavers
Anti-LGBT group: Va. marriage ban is ‘rational’
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

Anti-LGBT groups on April 4 filed 21 briefs with the 4th U.S. Circuit Court of Appeals. (Photo courtesy of the Family Foundation of Virginia)

Anti-LGBT organizations on April 4 filed 21 amicus briefs with the 4th U.S. Circuit Court of Appeals in a lawsuit challenging Virginia’s constitutional amendment that defines marriage as between a man and a woman.

“There is a rational and even compelling justification for the Virginia amendment and statutes,” wrote Mathew Staver in a brief he filed with the federal appeals court in Richmond, Va., on behalf of the Liberty Counsel and the American College of Pediatricians. “The inherent harms of living a homosexual lifestyle and the inherent benefits of encouraging intact biological families for the rearing of children.”

The Liberty Counsel and the American College of Pediatricians told the 4th Circuit the “lack of exclusivity and permanence in same-sex relationships” and “the irresponsible sexual practices associated therewith greatly affect the health, safety and welfare of homosexuals.”

Staver in his brief included a statistic that says gay and bisexual men are roughly 17 times more likely to develop anal cancer than “men who only have sex with women.” He also references Mark Regnerus’ disputed study that suggests children who are raised by their mother and father are better off than those who grow up with same-sex parents.

Frank D. Mylar, a Salt Lake City lawyer, argues in a brief he filed on behalf of the American Leadership Fund and 19 professors and scholars that marriage between a man and a woman is necessary for the procreation of children.

“This social institution is rooted in deep realities and oriented towards a purpose uniquely tied to its nature as the union of the sexes – a pairing that alone may naturally create a child and provide that child with a social context that accounts for his or her biological origins,” wrote Mylar.

Mylar also dismissed comparisons that U.S. District Judge Arenda L. Wright Allen – who struck down the commonwealth’s same-sex marriage ban in February – and others have made between this case and the U.S. Supreme Court’s landmark Loving v. Virginia ruling in 1967 that found interracial marriage prohibitions unconstitutional.

“[Mildred] Loving, who, as per her name, seemed a goodhearted soul, equated the struggle for gay marriage with her own struggle for interracial marriage,” writes David Boyle, a lawyer from Long Beach, Calif., in a brief he filed with the 4th Circuit. “The judge in Bostic uses this idea… to justify mandating gay marriage in the Old Dominion. However, this well-intentioned idea lacks logical foundation.”

Anthony R. Picarello, Jr., writes in a brief he filed with the federal appeals court on behalf of the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, the Church of Jesus Christ of Latter-day Saints, the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the Lutheran Church-Missouri Synod that marriage as between a man and a woman is a “time-honored tradition.”

“We support the husband-wife definition of marriage because we believe it is right and good for children, families and societies,” said Picarello.

Steven W. Fitschen of the National Legal Foundation of Virginia Beach, Va., which filed a brief on behalf of Concerned Women for America, argues “homosexuals and lesbians are not politically powerless.” He notes recent polls indicate a majority of Virginians now support marriage rights for same-sex couples and the first executive order that Gov. Terry McAuliffe signed as governor bans discrimination against LGBT state employees.

The brief also references a Washington Blade article on the 2011 election of gay state Sen. Adam Ebbin (D-Alexandria) to the Virginia Senate.

“The rapid shift in voter opinion evinces that homosexuals and lesbians do not need to shortcut the political process through judicial intervention,” writes Fitschen.

Attorneys general from Alabama; Alaska; Colorado; Idaho; Louisiana; Montana; South Carolina; South Dakota; Utah and Wyoming, West Virginia Attorney General Patrick Morrison; the Virginia Catholic Conference, the Eagle Forum Education and Legal Defense Fund, the Becket Fund for Religious Liberty, the Family Research Council, former National Organization for Marriage Chair Robert George and Ryan Anderson of the Witherspoon Institute are among those who also filed briefs with the 4th Circuit.

Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield last year challenged the commonwealth’s marriage amendment after the U.S. Supreme Court struck down a portion of the Defense of Marriage Act. The American Civil Liberties Union and Lambda Legal – which 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.

Attorney General Mark Herring earlier this year announced he would not defend the marriage amendment. He said on April 5 during the annual Equality Virginia Commonwealth Dinner in Richmond that same-sex couples are not seeking “special treatment” in the state.

The 4th Circuit on May 13 is scheduled to begin hearing oral arguments in the Bostic case.

The Alliance Defending Freedom argued in a brief it filed late last month on behalf of Prince William County Circuit Court Clerk Michèle McQuigg that Virginia’s same-sex marriage ban is necessary for the “procreation” of children. Norfolk Circuit Court Clerk George Schaefer, III, has also challenged Allen’s ruling.

Staver and Eric Rassbach of the Becket Fund for Religious Liberty both refer to a New Mexico photographer who challenged a New Mexico Supreme Court ruling that said she violated the state’s anti-discrimination law when she refused to photograph a same-sex couple’s wedding ceremony because of her religious beliefs.

The U.S. Supreme Court on Monday announced it will not hear the case.

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

11 Comments
  • I know this is the Washington Blade so you all probably already know this, but just for the record:

    The American College of Pediatricians is not a valid group. It was formed in 2002 as an anti-gay group specifically for the purpose of advocating against SSM. It won't release its membership numbers but estimates tag it at a few hundred.

    The name of the real authoritative pediatricians group is the American Academy of Pediatricians, founded in 1930, with 60,000 members and is on record supporting SSM and adoption rights.

  • Same sex partners cannot consummate a marriage contract, and any children produced naturally are per se out-of-wedlock, so by logic and the entire body of law the so-called marriage is void ab initio, a sham, and not 'wedlock.'

  • The civil marriage contract does not require procreation as anyone over the age of 50 can attest. Your logic must have been learned at Liberty U.

  • Found Frank D. Mylar-Law on Facebook and left him this message…

    You are an idiot. To argue that "marriage between a man and a woman is necessary for the procreation of children" to make illegitimate the marriages of same-sex couples is ludicrous. Not every couple, gay or straight, gets married with the intent to procreate.

    You also said, "This social institution is rooted in deep realities and oriented towards a purpose uniquely tied to its nature as the union of the sexes…" NO IT ISN'T! It is a union of two people, who just happen to be of the opposite sex. The only reason why there aren't any unions of two people of the same sex is because IT HAS BEEN ILLEGAL TO DO SO. DUUHHHHHHHHHH.

    Truthful, other than downright fear, disgust, and hatred towards homosexuals… what is the real reason you would support such a view to disallow the equal right of marriage between gays? Because gay men have a 17% greater chance of getting anal cancer? C'mon. Not all male gay couples even have anal sex. And what about Lesbians? What about heterosexual individuals who are genetically predisposed to certain diseases? Are we going to start asking for DNA samples of couples who want to get married to be sure they won't die of some horrible disease before they "procreate?"

    You know what. FUCK YOU. You're gonna lose because you're a DUMBASS.

  • I’ve been sterile since birth. So, does this procreation thing you’re referring to define that I should never marry the person I love? I thank God for giving me the opportunity to show love to my spouse who just happens to be a man. I believe that if God leads me to raise a child, I should be able to adopt one from one of these so called perfect marriages between a man and women that live like hell in front of there children. So, a child should stay with the parents that pro created them and live in an abusive atmosphere because their parents pro created them? I was raised in that type of situation and I can tell from experience, that I would have much rather lived with two men or two women that truly loved each other and me, than living in insanity. I guess all you people shouting this trash was raised by that perfect Mommy and Daddy that could do no wrong! Get real people! God made us all…not just the select! Lol

  • Michael David Barber Moghul — The procreative act, coitus, perfects the contract . . . not procreation itself. There is a uniform code that forgives a lack of coitus if due to impairment, known by the mate, but same sex coitus is impossible, so same sex marriage is void ab initio. Solemnization, Witness/Public Declaration, and Consummation . . . the three elements of marriage contract, void if any one element missing. As I explained, there is no wedlock possible.

    • Behold the circular reasoning!

      You homophobes START w/ “there can be no marriage between persons of the same sex”, and work BACKWARDS from there to justify it. Increasingly, the courts of the U.S. see right through you.

  • Leonard, sweetie, you spend too much time fantasizing about “gay sex.” No one is fooled by your nonsense. The US Supreme Court has already upheld the revocation of another anti-gay Hate Vote.

  • .
    The practice of modern marriage is not religious or biological or scientifically procreative, but is based on:

    — love,
    — mutual sexual attraction,
    — equality, and
    — a flexible division of labor.

    Notice that the gender of the marriage partners has nothing to do with it.

    Love, mutual sexual attraction, equality, and a flexible division of labor — same-same for all, it’s called marriage equality.

    While I appreciate Leonard Daneman’s choices for himself, who really cares?
    .

  • Look at the photo accompanying the article of Victoria Cobb and her "Family" Foundation supporters. There you see the smiling, pompous faces of religious intolerance, prejudice, and hatred….. all wrapped in their intrepretation of the Bible and the American Flag. What will the pepple think of this photo 5 years from now? What will Victoria Cobb's children think of their mother 20 years from now?

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