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Virginia AG files brief supporting gay marriage

RICHMOND, Va. (AP) -- Same-sex couples have the same right to marry as interracial heterosexual couples, Virginia's attorney general said Friday in papers urging an appellate court to uphold a judge's ruling that the state's gay marriage ban is unconstitutional.

Attorney General Mark Herring is backing two same-sex couples who filed a lawsuit challenging state laws and a constitutional provision barring gay marriage in Virginia and denying recognition of such unions performed in other states. U.S. District Judge Arenda Wright Allen in Norfolk struck down the laws in February but put the ruling on hold while it is appealed.

A three-judge panel of the 4th U.S. Circuit Court of Appeals will hear arguments May 13.

Lawyers for both sides expect the issue to ultimately be decided by the U.S. Supreme Court, either in the Virginia case or one from another state. Since the Supreme Court ruled last year that a law prohibiting the federal government from recognizing same-sex marriages was unconstitutional, federal judges have struck down state bans in Michigan, Oklahoma, Utah, Virginia and Texas. A judge in Kentucky has ordered the state to recognize same-sex marriages performed in other states, and a judge in Ohio has said he will do the same. Several other lawsuits have been filed.

Herring said in a brief filed with the appeals court that Allen was correct in citing the Supreme Court's 1967 Loving v. Virginia decision, which invalidated state interracial marriage bans, as a basis for striking down a prohibition against same-sex marriage. He said the U.S. Constitution's equal protection clause guards the fundamental right to marry and trumps the states' authority to decide the issue.

Lawyers for two circuit court clerks defending the ban have said in court papers that same-sex marriage is not a fundamental right because it was never contemplated by the framers of the equal protection clause, but Herring said that argument is unpersuasive.

"Loving teaches that the Fourteenth Amendment protects the fundamental right to marry, even if the way in which it is practiced would have surprised the Framers or made them feel uncomfortable," he wrote.

Herring also urged the court to dismiss claims that legalization of gay marriage would open the door to polygamy and unions between close relatives.

"The clerk's slippery-slope arguments are the same ones used to oppose interracial marriage in 1967; they are no more persuasive today than then," he wrote.

One of the clerks has argued in court papers that Virginia's laws encourage procreation and stable families with children raised by both mothers and fathers, which are legitimate government interests. Herring called that argument irrational and "outright demeaning" not only to gay couples, but also to straight couples who are infertile or elderly or simply do not want to have children.

Attorneys for the same-sex couples made arguments similar to Herring's in a separate brief filed a few hours later, emphasizing their view that the state's ban violates the equal protection clause.

"Virginia's Marriage Prohibition is antithetical to the Nation's most elemental principles of equality," they wrote. "It creates a permanent 'underclass' of gay and lesbian Virginians who are denied the fundamental right to marry available to all other Virginians simply because their relationships are deemed inferior, morally flawed, or religiously unacceptable."

The lawsuit was filed by 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.

Two other same-sex couples who filed a similar lawsuit in Harrisonburg also have been allowed to intervene in the case before the appeals court.

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


workhardgetahead - Sodomy laws were struck down by the supreme court as unconstitutional. Gay marriage bans are being struck down as unconstitutional. What are you not getting about the fact you cannot violate the Constitution no matter how many people vote for it.

The AG is not supposed to do things that are not constitutional, he is on the right side of the law.

I however welcome another vote on the issue.

The AG is to uphold the laws of the State as long as they do not conflict with the US Constitution. The Judge & the AG have ruled that the current States law conflicts with the US Constitution and are going thru thr processes to have it vacated.  And yes, Va. anti-gay laws will eventually be ruled un-Constitutional.

fedup, sodomy at one time was illegal to which inturn would of made Homosexuality illegal. In 2006 the will of the people struck down gay marriage, you just can’t overturn a law because you think the majority may now support it.There are processes in place. You now have a activist governor and an activist AG running the state. Put it on the ballot again then see if it gets switched. Or howabout electing enough people who support it and vote to overturn the law but at the present only the activist democrats hold one side while the conservatives hold the other. The AG is suppose to uphold the law of the state not challenge it. He should be removed from office. Mark Herring is a political opportunist and only answers to Chairman Obama and his henchman Terry McAullife.

workhardgetahead - Not an activist judge my friend, they are using DOMA and the high courts ruling an precedent. Bans have been ruled UNCONSTITUTIONAL in 18 states now.

You also miss the point that being gay is not illegal but polygamy is which is why the two cannot be compared.

Also on the will of the people, it was their will in 2006, now in 2014 I bet the vote would go different as polls have shifted drastically in the last few years. VA now has 56% support of gay marriage. However that is moot as you cannot vote away peoples constitutional rights.

Remember the people wanted no interracial marriage in the 60s, but that was struck down too.

fedupdude, sorry, the state voted to ban Gay marriage so it is illegal but an activist, rogue judge and an activist, rogue AG are working to overturn the will of the people. Using the argrument for being happy and that anyone should be able to marry anyone that they please also can be used for someone who wants to marry more than one person. If gay marriage is legalized the you must legalize all types of marriage. The libs opened a can of worms that won’t be able to be closed.

workhardgetahead - You are once again comparing a criminal activity to a legal one.

oranges869 - In case you are not keeping up the 14A says we all get equal access, gays currently don’t have it but they are winning it in court case after case after case. Over 14 states have over turned gay marriage bans and been forced to recognize them. 3 others including VA have lost in court but are still appealing, however now the legal precedent is set its just a matter of time.

The funny thing is voting for gay marriage bans is now backfiring as it leaves the state open to discrimination suits causing faster recognition than states that have taken no action LOL

Also on voting, polls shifted in favor of gay marriage in the last few years, bans were voted on 10 years ago. Now several states voted for gay marriage. I say put it back up for a vote and lets see what happens now. Last Conservative poll found 56% in favor of gay marriage in VA.

The discrimination comes from different treatment in tax benefits, health insurance, pensions, right to life issues, division of property, authority/responsibility over dependent children, etc.

The constitution says nothing about gays getting married. The Virginia people spoke at the polls and we are sure that Herring benefited from casting his vote against gay marriage in 2006. Now political expediency leans another way and the flip flopper Herring changes his spots. Where does it say a lack of discrimination is a license to marry?

individual rights? Life, Liberty and the Pursuit of Happiness? This means I could marry more than 1 lover. I want to be a Polygamist. The argrument that the Gays use for their marriage right is the same argrument I can use for being a Polygamist. Legalize Polygamy!!!

Granny - What is more important than an person’s individual rights, especially those rights granted under our Constitution?

I read in correctly, my point is people should stop fighting against it and just let it happen and we can move one. The fight will continue until they have equality just like the other fights for equal treatment in the past.

fedupdude, you must not have read my post correctly. I said important.

Your right Grandma so lets stop fighting it and give equality to gays.

There are more important things to argue about than so called same sex marriage!!

What are we going to impeach him for? Being on the right side of the 14A and history?


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