“Because Virginia’s same-sex couples are entitled to equal justice under law, the court should affirm the judgment of the district court,” says Herring in a brief he filed with the federal appeals court in Richmond, Va.
Herring, who announced in January he will not defend the state’s constitutional amendment that defines marriage as between a man and a woman, dismissed Prince William County Circuit Clerk Michèle McQuigg’s claims in a brief the Alliance Defending Freedom filed with the 4th Circuit on March 28 that say the gay nuptials ban is necessary for the “procreation” of children. Norfolk Circuit Court Clerk George Schaefer, III, has also appealed U.S. District Judge Arenda L. Wright Allen’s February ruling that struck down Virginia’s marriage amendment.
“McQuigg’s procreation-channeling theory cannot justify Virginia’s ban because it is irrational to think that banning same-sex marriage will make heterosexual couples more likely to marry and have children of their own,” says Herring. “The responsible-procreation/optimal-child-rearing rationale is outright demeaning to both same-sex and opposite-sex couples. It tells those who are not interested in having children, or unable to have them the ‘natural’ way, that their relationships are less important, if not ‘unworthy.’”
Herring urges the 4th Circuit to reject “genderless marriage,” “marriage mimicking construct” and other “prejorative phrases” that McQuigg uses to describe gay nuptials.
“Marriage between gay people is no more ‘genderless’ than marriage between heterosexuals; gender plays a vital role,” says Herring. “Plaintiffs do not seek to mimic marriage; they seek to marry. Calling it ‘genderless’ and ‘marriage mimicking’ is insulting, ‘just as it would demean’ heterosexuals to say that their marriage is ‘simply about’ opposite-sex ‘intercourse.’”
Herring also sought to repudiate the claims Concerned Women for America made in an amicus brief it filed with the 4th Circuit last Friday that say gays and lesbians are “not politically powerless.”
He referenced statistics from the Federal Bureau of Investigation that indicate anti-gay bias motivates 20 percent of all hate crimes in the U.S. Herring also noted 270 anti-gay hate crimes have been reported in Virginia between 2004 and last September.
The commonwealth’s hate crimes and anti-discrimination laws do not include sexual orientation and gender identity and expression.
The first executive order that Gov. Terry McAuliffe issued after taking office in January bans discrimination against LGBT state employees.
“For whatever success the gay rights movement has had in some states, it has met with failure time and again in the commonwealth, where gay people remain ‘a politically unpopular group,’” says Herring, referring to last June’s U.S. Supreme Court ruling that struck down a portion of the Defense of Marriage Act.
Herring – like Allen in her ruling – repeatedly references the landmark 1967 U.S. Supreme Court decision that struck down interracial marriage bans.
“Just as in 1967, the court should not wait to protect the plaintiffs’ constitutional rights simply because political trends suggest that the public increasingly supports marriage equality,” he said.
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 – 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.
“They’re not asking for special privileges,” said Herring on April 5 during the annual Equality Virginia Commonwealth Dinner in Richmond. “They’re just asking to be treated fairly and equally.”
The 4th Circuit is scheduled to begin hearing oral arguments in the Bostic case on May 13.