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.