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First brief filed after Virginia gay marriage ruling

RICHMOND, Va. (AP) -- A federal judge who struck down Virginia's gay marriage ban usurped the state's authority to decide whether same-sex unions should be allowed, a lawyer defending the ban said Friday.

David B. Oakley, an attorney for court clerks in Norfolk and Prince William County, also said if the door is opened to same-sex marriage "it will not be long before other groups come knocking," including unions between close relatives.

Oakley made the arguments in a brief filed in the 4th U.S. Circuit Court of Appeals. The clerks are appealing last month's ruling by U.S. District Judge Arenda Wright Allen that the state's same-sex marriage ban is unconstitutional.

Attorneys for two same-sex couples who filed the lawsuit will respond in writing next month, and a three-judge panel of the appeals court will hear arguments in May. Both sides expect the U.S. Supreme Court to ultimately resolve the issue, either in this case or a similar one from another state.

Oakley wrote that under a Supreme Court precedent, "state laws respecting same-sex marriage are protected from federal intrusion." Some lower courts have adhered to that while others have improperly taken it upon themselves to decide that standards have changed, he said in the brief.

"States have the right to define marriage, and if they choose to allow same-sex marriage or other non-traditional marriage, they are free to do so," he wrote. "However, the states cannot be compelled to alter the idea of marriage to include same-sex couples."

He said clerks could be faced with lawsuits from other people who are prohibited to marry.

"For example, if the definition of marriage is no longer based on procreation and the ability to procreate naturally, then what is the purpose in prohibiting marriage between persons of close kinship," Oakley wrote.

He also said Allen missed the mark in citing Loving v. Virginia, the Supreme Court case that struck down the state's interracial marriage ban, as a basis for invalidating Virginia's statutes and constitutional amendment prohibiting same-sex marriage.

"Unlike infringing on the right to marry based on invidious racial laws, the decision to restrict marriage to couples of the opposite sex is not based on any suspect or irrational classifications," Oakley wrote.

Allen put her decision on hold while it is appealed, which means gay couples in Virginia remain unable to marry until the case is ultimately resolved.

The plaintiffs are Timothy Bostic and Tony London of Norfolk, who were denied a marriage license by Norfolk Circuit Court Clerk George E. Schaefer III's office, and Carol Schall and Mary Townley of Chesterfield County, whose 2008 marriage in California is not recognized in Virginia.

Prince William County Circuit Court Clerk Michele McQuigg intervened as a defendant because the outcome affects clerks throughout the state.

Virginia Attorney General Mark Herring is not defending the gay marriage ban, which he says is unconstitutional.

At least 17 states and the District of Columbia have state laws or court decisions that allow same-sex couples to marry.



You have fallen into the same old tired argument of comparing illegal activities. aka polygamy, to a one that is not illegal, gay relationships.

Equal Protection clause grants me the right to marry anyone I want so I’m going to start a Polygamist colony here in Virginia. If a judge says it’s alright for 2 men to marry and for 2 women to marry then I’m going to marry 3 women. It’s protected under the EP clause of the US Constitution. If I’m not granted the right then there is a double standard and the judge who rules against me is prejudiced and bigoted judge. All I want to is marry the person or persons who are going to make me happy in life.


If only those damn heterosexuals would stop giving birth to homosexuals… you wouldn’t be so perplexed about the DNA baby thing.

Gay couples as a group are typically better off them the average straight couple so they are less likely to divorce as money is a driving factor in the divorce rate. Poor evangelicals are the most likely to divorce in America.

Gays should be allowed to be as miserable in marriage as more than 1/2 of the hetero marriages.  Why should they be treated different?


20% of straight people do not have heirs either. Not seeing the point to your post.

How is procreation germane from a legal standpoint?  Plenty of straight couples don’t have kids.  Plenty of man/woman couples can’t procreate, so they won’t ever “see any traits of themselves in that child” either.  Should we be mandating 2 children per married couple?  What if they don’t bother to get married?  Who cares?  You write like gay marriage will suddenly allow thousands of homosexuals the option to not procreate, like they were going to in the first place. 

Since procreation is apparently your ultimate issue now, what is the answer?  Force homosexuals to marry a man or a woman so they can have kids?  Insist they have a miserable existence (and likely misery for their partner too) like they would have had 50 years ago, engaged in a sham marriage because they had no other choice?  Or are you operating off the wacky notion that being gay is just a “condition” waiting to be “cured”? 

The one thing homosexuals will never have is the ability to create a child between the two of them. The best they can do is raise another person’s child or attempt some medical voodoo to create a child with only half of one person’s DNA. Somebody in that relationship will never see any traits of themselves in that child. The truth is that homosexuality is a genetic dead end. And no amount of legal or legislative action is going to change that fact.

The comparisons to criminal acts like sex acts with close relatives, children, and animals as will as being married to several partners are always false on face value, being gay is not illegal anywhere in America (anymore).

The equal protection clause applies to people, not animals.

There is no right for any three (or more) people to marry, so there is no equal protection violation when no three (or more) people may marry.

This is really not very complicated.

“it will not be long before other groups come knocking, including unions between close relatives.”

I love this slippery slope argument.  Bigoted former presidential candidate Rick Santorum presented the same one, but suggested beastiality is right around the corner if he were to yield to the demands of the homosexual. 

I wasn’t alive in the age of Jim Crow, but I’d bet some of the same fallacies were used to defend the laws that attempted to ensure the races weren’t mixed too.  Amazingly enough, we’ve made it this far without the man and goat lobby being too vocal about their demands for equal protection. 

Keep the laughs coming though, as the equal protection clause comes to the rescue again. 

“Unlike infringing on the right to marry based on invidious racial laws, the decision to restrict marriage to couples of the opposite sex is not based on any suspect or irrational classifications,” Oakley wrote.

So what you’re going to try and sell me, is that laws that discriminate based on race are wrong…but laws that discriminate based on sexual orientation are okay? Really?

It seems to me that the anti-equality folks need to get together and decide on which issue they’re going to base their argument.  Oh, and by the way…you don’t need to be married to procreate.  come on out of the homophobic bubble…the air is fine.

Maybe the lawyer is not familiar with how constitutional law works. The state can pass anything it wants but if it violates a constitutional amendment its not legal and the federal courts can and will strike it down; the results are not always fast but state after state is currently striking down gay marriage bans based on the 14A guarantee of equal access.

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