Virginia gay marriage case could come down to states rights vs. equal protection

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by Neal Bennett, 13News Now

WVEC.com

Posted on May 13, 2014 at 12:16 PM

Updated Tuesday, May 13 at 8:58 PM

RICHMOND -- Amid hundreds of protesters who could be heard chanting inside the courthouse, a three-judge federal appeals court panel heard arguments over a federal judge's decision to overturn Virginia's constitutional ban on gay marriage.

Norfolk federal judge Arenda L. Wright Allen in February ruled the amendment was unconstitutional but stayed her order pending the appeal. That sent the case to the 4th U.S. Circuit Court of Appeals in Richmond.

"My clients have a second-class relationship," said Ted Olsen, arguing on behalf of Timothy Bostic and Tony London of Norfolk who were denied a marriage license by clerk of courts George Schaefer last July.

Olsen spent much of his time defending Allen's decision, saying "The right to marriage is fundamental for all people."


Arguing for Schaefer, attorney David Oakley said that Virginia's constitutional ban on same-sex marriage "does not violate the 14th amendment for equal protection," which Allen cited in her decision.

Oakley said under our system of federalism, "states have the right to regulate marriage."

Citing previous court rulings, Oakley said, "When it is a matter of public debate, it's best left for the state to decide."

In response, Judge Henry Floyd pressed Oakley by stating "states can't trample on the 14th Amendment."

Oakley countered, "Over 1.3 million voters in Virginia chose to preserve marriage as between a man and a woman."

The other issue argued by both sides was whether the state had a "societal interest" in defining marriage as between a man and a woman.

Austin Nimocks, an attorney from the Alliance Defending Freedom, which represents Prince William County, argued that previous "court cases upheld the right to enter into man-woman marriages in order to consummate marriages," which is an important societal interest.

Judge Roger Gregory pressed Nimocks on that argument, saying that elderly couples who cannot procreate, and other couples who medically cannot procreate, have their marriages protected.

Nimocks says that all previous cases only upheld unions "between husband and wife."

Outside the courthouse Tuesday, people on both sides of the issue rallied.

Janet James, a Presbyterian USA pastor based in Richmond, supports same-sex marriage.

"God blesses all marriages because if people look to invite God to be part of their relationship, who am I to stand in their way?" she said.

Attorneys for the group arguing in defense of the same-sex marriage ban say they are here to defend Virginia voters. Jordan Lorence, senior counsel for the Alliance Defending Freedom, represents the Prince William County Clerk of Courts.

"The Supreme Court should do, as well as the 4th Circuit and the other federal appeals courts, is to make a clear declaration that the voters, the legislatures are the ones that have the authority to do this and that it is a legitimate, non-bigoted decision to say that marriage is only defined as one man and one woman."

It's likely that whichever way the 4th Circuit Court of Appeals rules, this case is headed to the U.S. Supreme Court. In the middle of arguments, presiding Judge Paul Niemeyer joked, "It's evident that you are here in Richmond as a weigh station on the way to Washington."

Bostic vs. Schaefer is the third appeal of a state's ban on gay marriage that has reached the federal appeals court level. In April, cases from Utah and Oklahoma were both heard by the appeals court in Denver. Those cases have not been ruled on yet. Those cases could get bundled with the Virginia case at the Supreme Court, according to attorneys familiar with the cases.

The panel did not indicate a timetable as to when they will rule. However, it's likely to be quick as the Richmond circuit is known as the "rocket docket" where decisions typically come faster than in other courts.

After the hearing, Tony London told 13News Now's Nick Ochsner that he never expected the process to move so quickly.  After being asked whether he thought their case could make the Supreme Court, London said "No, we never actually thought...we never actually thought that we would get this far along this quickly,".

Speaking at a news conference following the case, Virginia Attorney General Mark Herring said,"Putting the Commonwealth of Virginia on a path that is leading the way forward is a responsibility I am proud to have."

CLICK HERE TO LISTEN TO THE ARGUMENTS FROM THE 4TH US CIRCUIT COURT OF APPEALS.

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