An anti-gay group is representing one of the two defendants in a federal lawsuit that challenges Virginia’s same-sex marriage ban.
Court documents indicate the Alliance Defending Freedom on Monday filed a status report with Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia on Monday on behalf of Prince William County Circuit Court Clerk Michèle McQuigg. Norfolk Circuit Court Clerk George Schaefer has tapped lawyers with former Virginia Gov. Bob McDonnell’s Virginia Beach law firm to represent him in the case.
Lawyers representing the plaintiffs — Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Richmond — filed their own status report with Allen after she questioned whether a hearing in the case that is scheduled to take place on Thursday “remains warranted” following Attorney General Mark Herring announcement he will not defend the commonwealth’s same-sex marriage ban.
“Virginia’s definition of marriage does not codify impermissible sex or sexual orientation discrimination,” wrote Alliance Defending Freedom lawyers in the status report it filed with Allen. “As to the claim of sex discrimination, Virginia’s marriage laws treat men and women identically. No man or woman is permitted to marry a person of the same sex, so there is no ‘differential treatment for denial of opportunity for which relief is sought.’”
The Alliance Defending Freedom also dismissed attempts to compare this lawsuit to the case that prompted the U.S. Supreme Court in 1967 to strike down interracial marriage bans in the landmark Loving v. Virginia ruling.
“While race is irrelevant to the state’s interest in marriage, the sex of the two individuals marrying is central,” wrote the group.
Allen dismissed the Alliance Defending Freedom’s request to delay the hearing that will take place as scheduled on Thursday. The judge’s order also indicates the Family Foundation of Virginia has also filed an amicus brief in the case.
“We expect the ADF to use the same tired arguments that we’ve seen lose repeatedly in courts across the country,” Adam Umhoefer, executive director of the American Foundation for Equal Rights, which is representing Bostic and London and Schall and Townley, told the Washington Blade.
The Alliance Defending Freedom did not return the Blade’s request for comment.
Herring continues to face criticism for not defending marriage amendment
Virginia Republicans and social conservatives continue to blast Herring for not defending the marriage amendment that voters approved in 2006.
“The attorney general’s decision to refuse to enforce a duly-adopted provision of the Virginia Constitution is frightening,” said state Del. Todd Gilbert (R-Shenandoah County) on Sunday during the Republican Party of Virginia’s weekly address.
Republican Party of Virginia Chair Pat Mullins last week suggested Herring should resign if he won’t defend the gay nuptials ban. National Organization for Marriage President Brian Brown said state lawmakers should impeach the attorney general.
A Virginia House of Delegates committee on Jan. 24 approved a bill that would allow any state lawmaker to defend a law if the governor and attorney general decline to do so. More than 30 legislators on the same day urged Gov. Terry McAuliffe to defend the state’s marriage amendment.
“There are people who are going to attack me and try to say, ‘Well it’s about the duty of the attorney general [to defend the marriage ban,]’” Herring told the Blade during a Jan. 23 interview. “In fact what they’re really upset about is that they disagree with marriage equality. And that’s their right, but it’s not the law.”
Alliance Defending Freedom staffers in 2013 testified against measures that sought to extend marriage rights to same-sex couples in Delaware and Rhode Island — gays and lesbians in the two states began to exchange vows last summer. The Arizona-based organization also filed briefs with the U.S. Supreme Court in support of the Defense of Marriage Act and California’s Proposition 8.
The justices last June found a portion of DOMA unconstitutional and struck down Prop 8.
The Alliance Defending Freedom has also represented a New Mexico photographer and two Vermont innkeepers who faced lawsuits from gays and lesbians who said the refused to do business with them.
The Southern Poverty Law Center last July criticized the Alliance Defending Freedom and other U.S. groups for supporting the campaign to defend Belize’s anti-sodomy law.