RICHMOND, Va. — A three-judge panel of the 4th U.S. Circuit Court of Appeals on Tuesday heard oral arguments in a lawsuit that challenges Virginia’s same-sex marriage ban.
Former U.S. Solicitor General Ted Olson, James Esseks of the American Civil Liberties Union and Virginia Solicitor General Stuart Raphael argued against the commonwealth’s constitutional amendment that defines marriage as between a man and a woman on behalf of the four leading plaintiff couples in the case — Tim Bostic and Tony London of Norfolk, Carol Schall and Mary Townley of Chesterfield, Joanne Harris and Jessica Duff of Staunton and Victoria Kidd and Christy Berghoff of Winchester — and the state.
“Virginia’s marriage laws single out for discrimination a class of Virginians because of their sexual orientation and because of the gender of the person they love,” said Olson.
Esseks argued Virginia’s same-sex marriage ban “violates” the guarantee to equal protection under the 14th Amendment.
“The Virginia marriage ban says to same-sex couples you folks cannot get married,” he said.
Raphael referred to the U.S. Supreme Court’s landmark Loving v. Virginia decision that struck down state interracial marriage bans in 1967. He also noted the commonwealth did not specifically ban same-sex marriage until 1975.
“It’s clear that laws that discriminate based on sexual orientation should be looked at with a very jaundice eye,” said Raphael.
David Oakley, who represents Norfolk Circuit Court Clerk George Schaefer, III, argued the extension of marriage rights to same-sex couples would prove a “dramatic departure from existing law.” He described the Loving case as “a different situation than the case we have here.”
Austin Nimocks of the Alliance Defending Freedom, who represents Prince William County Circuit Court Clerk Michèle McQuigg, argued marriage is necessary for the procreation of children.
“Same-sex couples do not provide the child with a mother and a father,” said Nimocks.
Judge Roger L. Gregory repeatedly pressed Nimocks on the issue during oral arguments that lasted more than an hour.
“You can’t just take a fundamental right and define it,” said Gregory.
Presiding Judge Paul V. Niemeyer pressed Olson on the definition of marriage, noting same-sex and heterosexual relationships have “two different purposes in society.”
“A marriage is a unit important to society in a number of ways,” said Niemeyer.
President Obama appointed Judge Henry F. Floyd, who appeared the most sympathetic to the plaintiffs during the oral arguments, to the 4th Circuit.
Gregory in 2000 received a recess appointment during the last weeks of the Clinton administration. Then-President George W. Bush renominated him in 2001.
Then-President George H.W. Bush nominated Niemeyer to the 4th Circuit in 1990.
Marriage is ‘biblically mandated’
Virginia voters in 2006 approved the state’s marriage amendment by a 57-43 percent margin.
Bostic and London last July filed a lawsuit challenging the commonwealth’s gay nuptials ban after the U.S. Supreme Court issued its landmark ruling that struck down a portion of the Defense of Marriage Act. Schall and Townley joined the case two months later alongside Olson and Boies.
The American Civil Liberties Union, Lambda Legal and the ACLU of Virginia last August filed a lawsuit on behalf of Kidd and Berghoff and Harris and Duff. A federal judge in Harrisonburg earlier this year classified their case as a class action.
Herring announced shortly after taking office in January that he would not defend the state’s marriage amendment.
U.S. District Court Judge Arenda L. Wright Allen in February found Virginia’s same-sex marriage ban unconstitutional. The 4th Circuit a few weeks later ruled the ACLU and Lambda Legal could join the Bostic case.
State Del. Bob Marshall (R-Prince William County,) who co-authored the marriage amendment, attended the oral arguments. National Organization for Marriage President Brian Brown, Josh Duggar of the Family Research Council and Family Foundation of Virginia President Victoria Cobb are among the hundreds of same-sex marriage opponents who gathered outside the courthouse before they began and as they took place.
“I hope that they vote it will be illegal for two men to marry, two women to marry,” said Miss Davis of Virginia Beach.
Philip Houchins of Richmond held a Family Foundation of Virginia flag as other opponents of marriage rights for same-sex couples arrived on buses.
“It is one man, one woman that works best as far as marriage goes,” he told the Blade. “It is biblically mandated. I support that.”
Heather Mathis of Richmond, who married her wife of eight years in D.C. in April 2013, is among the same-sex marriage supporters who gathered outside the courthouse.
“I want my son to feel like we’re normal and we’re a loving married couple just like any married couple,” she told the Blade. “I want him to grow up in a society that doesn’t look as strange or unequal.”
Richmond ‘way station’ to Supreme Court
18 states and D.C. allow gays and lesbians to marry.
Same-sex couples in neighboring North Carolina and West Virginia are among those who have filed lawsuits seeking marriage rights since the U.S. Supreme Court issued its DOMA decision.
A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver last month heard oral arguments in two lawsuits that challenge same-sex marriage amendments in Utah and Oklahoma. Texas Attorney General Greg Abbott in February appealed a ruling that struck down his state’s same-sex marriage ban to a federal appeals court in New Orleans.
Gays and lesbians have begun to marry in Arkansas after a circuit judge struck down the state’s same-sex marriage ban. Attorney General Dustin McDaniel has said he will appeal the decision to the Arkansas Supreme Court.
Niemeyer noted to Nimocks during oral arguments that the issue of marriage rights for same-sex couples will likely go before the U.S. Supreme Court.
“You’re here in Richmond as a way station on (Interstate) 95,” said the presiding judge.
’It is not really complicated’
Herring, the plaintiffs and their lawyers were optimistic as they spoke to reporters during a press conference after they left the courthouse.
“I am here today with moms,” said Emily Schall Townley, 16, as she stood alongside Schall and Townley. “This is my family. It is not really complicated.”
Harris told the Blade the hardest part of the oral arguments for her was listening to lawyers talk about children — she and Duff have a 5-year-old son.
“It’s pretty strange to have folks who aren’t in your family talking about your child,” said Harris.
She added she feels the arguments her lawyers made were “all very wonderful.”
“It just really reaffirms everything that we think and do everyday when we’re supporting our family,” Harris told the Blade.
The panel is expected to issue its ruling in the coming weeks.