Ruling vowed soon on Virginia nuptials

NORFOLK, Va. - U.S. District Judge Arenda Wright Allen said Tuesday that she will rule quickly on a challenge to Virginia’s ban on same-sex marriages but gave no clue about what her decision might be.

“You’ll be hearing from me soon,” Wright Allen said at the conclusion of a nearly two hour hearing.

Virginia for the first time advanced its new legal position that a 2006 referendum approved by voters to define marriage as only between a man and a woman violates the U.S. Constitution. It is the next question for courts to decide as the nation’s view of same-sex marriage undergoes a radical transformation: whether states, which traditionally define marriage, may withhold it from same-sex couples.

Virginia Solicitor General Stuart Raphael said new Attorney General Mark Herring, a Democrat, had made a “courageous” decision to say that the state could not defend the ban. He compared it to previous cases in which the commonwealth has defended segregation, a ban on interracial marriage and keeping women from attending the Virginia Military Institute - all decisions overturned by the Supreme Court.

“We are not going to make the mistakes our predecessors made,” Raphael told Wright Allen.

Herring’s decision has infuriated Republicans in the Virginia General Assembly, who accuse him of neglecting his duty to defend state laws.The House has passed a bill that would allow it to hire its own lawyer to participate in future legal proceedings at the U.S. Court of Appeals for the 4th Circuit in Richmond and possibly the Supreme Court.

At Tuesday’s hearing, the law was defended by lawyers for the circuit court clerks in Norfolk and Prince William County, who issue marriage licenses.

One of the lawyers, Austin Nimocks, senior counsel for the conservative legal group Alliance Defending Freedom, told Wright Allen that Virginia had an interest in promoting marriage between a man and a woman because of the unique “procreative dynamic” shared by heterosexual couples.

“We have marriage laws in society because we have children, not because we have adults,” Nimocks said.

He said there was no reason to think that the Legislature, and then 1.3 million Virginians, voted for the constitutional amendment - which also bans the state from enacting civil unions - because of discrimination against gays.

But Theodore Olson, representing the American Foundation for Equal Rights and the plaintiffs in the lawsuit, disputed both points.

“Marriage is not all about children,” Olson said. “It is about freedom. It is about liberty.”

Judges have a duty to be suspicious of decisions by the majority that single out groups that have historically been the victims of discrimination, Olson said.

“Sometimes the voters and the legislature get it wrong,” and the result violates the constitution, Olson told Wright Allen. “So, we have you.”

The lawsuit was filed on behalf of two Virginia couples. Timothy Bostic and Tony London have lived together for more than 20 years and were denied a marriage license last summer by Norfolk Circuit Court Clerk George Schaefer. Mary Townley and Carol Schall of Chesterfield County were married in California and have a teenage daughter. They want Virginia to recognize their marriage.

Last month, Herring took office and announced he was reversing the state’s legal position on same-sex marriage, saying it violated guarantees of equal protection under the U.S. Constitution. The move in Virginia is part of a quickly changing legal landscape reshaped by the Supreme Court’s rulings in two cases on same sex marriage in June.

In one, U.S. v. Windsor, the court voted 5 to 4 to find unconstitutional a key part of the Defense of Marriage Act, which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to those in such unions.

In the other, it allowed to stand a federal judge’s opinion that California’s Proposition 8, which bans same-sex marriage, was unconstitutional. The justices sidestepped a critical question: whether state bans on same-sex marriage violate the Constitution’s guarantees of equal protection and due process.

But federal judges in Utah and Oklahoma have said that the reasoning used by the court majority meant constitutional amendments in those states banning same-sex unions cannot stand. Both decisions are now stayed pending appeal.

The highest courts in New Jersey and New Mexico have held that gay couples have the right to be married there. Seventeen states, not counting Utah and Oklahoma, now allow such unions.

Wright Allen, the judge in the Virginia case, was confirmed to the bench in 2012. She is a Navy veteran who has served as both a prosecutor and federal public defender. She was nominated by President Barack Obama.

Front Section, Pages 2 on 02/05/2014

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