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Appeals court in Virginia hears gay marriage case

RICHMOND, Va. (AP) -- Federal appeals court judges aggressively questioned lawyers on both sides of Virginia's potentially landmark gay marriage case Tuesday while hundreds of demonstrators gathered outside the courthouse, holding signs and shouting competing slogans.

The three-judge panel of the 4th U.S. Circuit Court of Appeals hinted at varying stances as they grilled attorneys for four couples challenging the state's same-sex marriage prohibition and lawyers for two circuit court clerks defending it. A decision is expected in a few weeks on an issue that both sides believe ultimately will be decided by the U.S. Supreme Court.

U.S. District Judge Arenda Wright Allen ruled in February that Virginia's constitutional amendment and laws barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution's equal protection and due process guarantees.

On Tuesday, 4th Circuit Judge Roger Gregory vigorously challenged lawyers defending the ban on their assertion that the state has a right to limit marriage to people who can procreate. Same-sex couples can have children too, Gregory said.

"Not the same way," said Austin Nimocks, attorney for one of the clerks.

Gregory shot back: "As long as they get to have families, what difference does it make?"

Circuit Judge Paul V. Niemeyer, however, described marriage as a fundamental right that historically has focused on preserving stable families.

"It seems to me a state might be able to latch onto that and say we want to continue that," Niemeyer said.

Judge Henry F. Floyd asked fewer questions than his colleagues, but did inquire why Virginia would want to deny recognition of same-sex marriages in other states. Nimocks said requiring such recognition would amount to ``an end run'' around the public policy behind the ban.

Virginia voters in 2006 voted 57 percent to 43 percent to approve the constitutional amendment banning gay marriage.

"Marriage is a fundamental right, but Virginia voters have spoken. They've decided not to extend that right to same-sex couples," said David B. Oakley, attorney for the other clerk.

Attorneys for the same-sex couples argued that legally adopted provisions still must fall if they violate the U.S. Constitution.

"Virginia's marriage laws single out for discrimination a class of Virginians based on the sexual orientation and gender of the person they love," said Theodore Olson, attorney for two of the couples.

Attorneys for the two sides also disagreed on whether the landmark U.S. Supreme Court decision in Loving v. Virginia, which struck down interracial marriage bans in 1967, provided the basis for also invalidating prohibitions on same-sex marriage. Allen relied heavily on that case in her ruling.

Outside the courthouse, supporters of the gay marriage ban outnumbered opponents by a wide margin. They carried signs saying "Every Child Deserves a Mom & a Dad" and chanted "one woman, one man."

"We're here to support the traditional definition of marriage, not to alienate or dis the other side," said Bill Heipp of Midlothian, a Family Foundation of Virginia volunteer.

Supporters of the gay couples chanted "marriage equality now" and cheered when the couples left the courthouse hand-in-hand.

John Pagan, a University of Richmond law professor whose specialties include the law and sexuality, attended the 70-minute hearing and said he was impressed with the exchanges between the court and the attorneys and with the atmosphere.

"We all recognized we were witnessing a historic moment," he said.

Pagan said he was struck by Gregory's questions focusing on the welfare of children of gay couples.

"It was a brilliant examination of the issue at the heart of the case," he said.

One of those children, 16-year-old Emily Schall-Townley, said at a news conference after the hearing: "It's really not that complicated. I have been and continue to be raised in a loving, nurturing and supportive family."

Emily's mothers, Carol Schall and Mary Townley, joined Timothy Bostic and Tony London of Norfolk in challenging the gay marriage ban. Two other same-sex couples, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, filed a similar lawsuit in Harrisonburg and were allowed to intervene in the case before the appeals court.

Virginia Attorney General Mark Herring is supporting the plaintiffs, and his solicitor general on Tuesday urged the court to uphold Allen's ruling.

A decision overturning Virginia's ban could also affect similar prohibitions in West Virginia, North Carolina and South Carolina, which also are in the 4th Circuit. Maryland, also in the circuit, is one of 17 states that allow gay marriage.


ChuckUA is clearly not familiar with how we no longer discriminate and how the 14A makes everyone equal not. He want to take us backwards a few hundred years

The conclusion of today’s federal court decision in Pennsylvania, written by G.W.Bush appointee John E. Jones:

“Based on the foregoing, we hold that Pennsylvania’s Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Because these laws are unconstitutional, we shall enter an order permanently enjoining their enforcement. By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.

The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of “separate but equal.” See Brown v. Board of Education, 347 U.S. 483 (1954), overruling Plessy v. Ferguson, 163 U.S. 537 (1896). In the sixty years since Brown was decided, “separate” has thankfully faded into history, and only “equal” remains. Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage.

We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

I’m glad you cleared all that up ChuckUA - This is just what we needed to really understand US & State Constitutions.

“It actually servers to make people equal as our constitution promises.”
The Constitution promises noting but legislates rights. The Declaration of Independence stated that “all men are created equal” and what that really meant was that all white men were created equal since women and blacks could not vote or hold property until much later in history.
The legal recognition of marriages is mentioned nowhere in the Constitution, so stop trying to hide behind it. Individual states provide the legal recognition and benefits of marriage and not the US government. Get used to living in a republic.

drellis - It actually servers to make people equal as our constitution promises. Our law of the land is the constitution not the bible, mind your own business and stop discriminating against people.

Legalizing same-sex marriage only serves to legitimize abhorrent and perverted behavior.

OpenMic doesn’t understand Brown v. Buhman either. That ruling struck down the part of Utah’s anti-polygamy law that was unconstitutional, namely the part that prohibited people from living together “as if” they are married, and claiming that they consider themselves to be married. The violations of freedom of speech and freedom of association created by that part of the statute ought to be obvious.

The ruling of course didn’t touch the actual prohibition on being legally married to more than one person at a time, and it pretty thoroughly laid out the state’s rational basis for the prohibition. In other words, it did exactly the opposite of what OpenMic is claiming. Thanks for playing, though!

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Which means if you give one individual a certain right, you must give that right to any other individual.

This actually rather quite simple that anyone with half a brain should be able to understand, even you Fred & OpenMic.

Sure gay marriage advocates wish the polygamy argument would go away. How tiresome they moan. Ridiculous they claim.  Best was the guy here who said those who subscribe to the slippery slope argument don’t know what a constitutional right really is or understand the equal protection clause. But that is exactly Scallias argument. Moreover, the recent decision in Utah, Brown v Buhman, determined there is no constitutional reason why polygamy is illegal.

So deride the argument all you want, how convenient, but if I know one thing about the gay community it’s that if there is a will, there’s a way and there is definitely a will to see homosexual polygamy.


Problem with your argument is this, being gay is not illegal thus the 14A covers it under equal protection. In order for polygamy to get equal protection it first has to be legal.

Gay marriage debate has won out in every recent case, over 20 cases in a few years all based on the 14A. DOMA struck down; Gay marriage bans struck down in 12 states and in flux like VA in 7 more; Prop 8 struck down.

The comparison to polygamy just does not hold up in any logical or legal way.

Stevens - Based on their rote answers, it’s obvious that there are a lot of things they don’t understand.

“The court is being asked, ‘If two heterosexual people can choose to be married to each other, does the state have any rational basis for prohibiting two homosexual people from choosing to be married to each other?’” Exactly. It’s a very simple question. The state tried, and failed, to present a rational basis for that, and only that, prohibition. And the court isn’t considering any other question here.

What fedupdude is getting at is that, if someone in favor of plural marriage wanted to challenge anti-polygamy law, they would be attempting to overcome an entirely different set of arguments made by the state to justify those laws. The rational basis justifying prohibitions on polygamy doesn’t have anything to do with the states’ arguments for excluding same sex couples from marriage.

You can always tell that the no-nothings who talk about a ‘slippery slope’ to polygamy, incest, etc., have never read a brief or heard an oral argument. If they did, they would realize that the anti-marriage equality defendants never bring up this line of “reasoning” because it would be entirely irrelevant.

Polygamy is nothing more than consenting adults looking to express their love for each other. The same argument that homosexual couples use to demand marriage licenses. So if Virginia’s Constitution defining a marriage as One Man/Woman is considered invalid so that it encompasses Man/Man or Woman/Woman, than there is no justification to deny Man/Woman/Woman relationships. Thus the comment “Is that Pandora Knocking at the door?”

Is homosexuals are allowed to marry because marriage cannot be limited to Man/Woman, than you will have legal standing for “anything” to be allowed as marriage, which includes Polygamy and God knows what else. Transgender Polygamist in a 10 person grouping will be demanding their marriage licenses next.

The polygamy bit again. How tiresome.

The court is not being asked to decide what makes sense and what doesn’t, nor is it being asked to decide what the right number of people to allow in a single relationship ought to be. The court is being asked a question of constitutional law. That question is not “How many people should be allowed in a single marriage?” The court is being asked, “If two heterosexual people can choose to be married to each other, does the state have any rational basis for prohibiting two homosexual people from choosing to be married to each other?”

If the court decides the answer is “no” (and, for those have missed them, every single court to consider this question in every state that has so far done so, has decided that the answer is “no”), then the Equal Protection clause requires the court to rule that any such prohibition is unconstitutional.

Anyone who buys nonsense such as, “If homosexuals get to marry, then polygamist should have every legal right to marry 6 wives,” simply does not know what a constitutional right really is, nor do they understand how the Equal Protection clause is applied to protect such rights.

Polygamy is illegal being gay is not but two people of the same sex marrying each other is also currently illegal.
Using the logic of love is the reason that people should be married and the law allows it, than a father marrying his son, a brother marrying a brother or a sister marrying a sister would be equally legal if procreation is no longer the reason for marriage and love is.
That being said if one man loves several different individuals there is no legal reason he should not be able to marry multiple wives or husbands if both are consenting adults and the same should also be true if one wife wants to marry multiple husbands or wives.
If this is only about love and the rights of individuals to choose partners, all of the above scenarios are equally valid and equally legal.
“Only an idiot would have more than 1 wife”
Some say only an idiot would marry someone of the same sex, so just because someone doesn’t approve automatically means there should be a law against it, right?

“Polygamy is illegal because women and teenage girls are forced into that lifestyle by religious groups. These women are treated as chattel and are not given an option.”

So it must follow that polygamy will become LEGAL because homosexual men desire that lifestyle. It’s ridiculous to deny that polygamous gay marriage is very much discussed among teh gays.

The fact that Sanford repeats that tired, tiresome, and irrelevant argument underscores the fact that the proponents of this unconstitutional public policy have no viable arguments to make. That fact was again demonstrated in court on Tuesday. The attorneys gave it their best shot, but “tradition,” fraudulent social science that was described by another court as “entirely unbelievable and not worthy of serious consideration,” and personal religious beliefs about marriage are not permissible reasons to deny a fundamental right to anyone. They don’t have any other arguments, and marriage equality will be the law of the land soon.

FredSanford - Your statement boarders on ridiculous.  Only an idiot would have more than 1 wive & by the time the kids are of legal age, the parents can’t wait to get them out of the house.  However, you forgot to include marrying animals, let’s not foget that one.

Polygamy is illegal being gay is not.

Polygamy is illegal because women and teenage girls are forced into that lifestyle by religious groups. These women are treated as chattel and are not given an option.

It is ridiculous to compare the two.

If homosexuals get to marry, then polygamist should have every legal right to marry 6 wives. Family members can also marry their children (once of legal age) or siblings.  Is that Pandora knocking at the door?

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