Judge promises quick decision on Virginia's gay marriage ban

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by 13News Now

WVEC.com

Posted on February 4, 2014 at 1:16 PM

Updated Wednesday, Feb 5 at 12:55 AM

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NORFOLK-A federal judge in Norfolk says she will issue a ruling soon on the constitutionality of Virginia's ban against same-sex marriage.

The issue went before the court Tuesday as Virginia Attorney General Mark Herring looked on.  Late last month, Herring said his office would not defend the 2006 voter-approved constitutional amendment in a lawsuit challenging the ban filed on behalf of Norfolk couple Timothy Bostic and Tony London.

Solicitor General Stuart Raphael, who argued on behalf of the Commonwealth in front of Judge Arenda L. Wright Allen, said.  "We should be inherently suspicious of laws that discriminate by gender."

Bostic and London were denied a marriage license by the Norfolk Circuit Court on July 1, 2013, and the clerk of courts was named in the lawsuit.

"George Schaefer (Norfolk Circuit Court clerk) was doing his job, upholding the law of Virginia and not doing so could have penalized him criminally," his attorney argued.

The lawsuit alleges Virginia's law denies gays the liberties that are guaranteed by the 14th Amendment.

"Virginia has erected a wall around the gay and lesbian community," said Bostic attorney Ted Olsen to open the hearing Tuesday. "The Supreme Court has said marriage is a fundamental right at least 14 times, calling it vital to America and being fundamental to the core of the individual."

Bostic co-counsel David Boies asked Judge Allen to issue a preliminary injection.

"Our request would narrowly protect the rights of the four clients, not enjoin the state," he explained.

Boies also said his clients are willing to accept any consequences should the injunction be overturned by a higher court -- realizing that their marriages could be invalidated and understanding the legal issues with respect to children, property and more.

"When we discriminate on the basis of gender, we undermine our culture of equality, openness and privacy," he added.

Much of the debate that lasted nearly two hours centered about marriage - whether it was a fundamental right - and the issue of children.

"I contend we have marriage laws because we have children, not because we have adults," said Austin Nimocks, senior counsel with Alliance Defending Freedom. "A lot has changed in the world, but what has not changed is how a child is created and comes into this world." 

Nimocks represented Prince William County in the hearing, where another challenge to Virginia's gay marriage ban is taking place.

Bostic attorney Olsen rebutted, "Marriage is not about children, It's about choice, freedom and liberty."

Raphael fought back against the notion that the tradition of marriage between and man and a woman is reason enough to deny LGBT community the ability to marry in Virginia, citing examples of previous Virginia traditions that have been struck down:  the ban on interracial marriage and not allowing women attending Virginia Military Institute. 

Before the 10 a.m. hearing, supporters of traditional marriage and same-sex marriage gathered outside the courthouse - across the street from each other.

Before going into court, Bostic told 13News Now, "I'm feeling great, glad to be here. A lot of people have worked hard along the way to get us here."

A traditional marriage supporter said, "Children have a right to a mother and father. Preserve traditional marriage. Preserve the constitution. We the people voted. It's our law."

Attorney Olsen said, "The right to marry is being taken away because of who they are. That is not American."

Attorney General Herring's office issued a statement following the hearing.

"Today was a very significant day in the journey towards full equality under the law for all Virginians. I am proud to say that the Commonwealth of Virginia stood on the right side of the law and the right side of history today in opposing this discriminatory ban."

Chesterfield County couple Carol Schall and Mary Townley joined Norfolk case. The couple were married in California in 2008 and have a teenage daughter. They also want Virginia to recognize their marriage.

There was no firm date on when to expect the judge's decision.

Solicitor general Raphael believes the case will end up before the U.S. Supreme Court.  For now, he says the AG's office will enforce the law until told to do different.

"However, we will not defend the law," he reiterated.

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