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Case challenging Va. same-sex marriage ban heard in federal court

Tuesday, February 4, 2014

NORFOLK, Va. — In a case that could give gay marriage its first foothold in the old Confederacy, a federal judge will hear arguments Tuesday on whether Virginia’s ban on gay marriage should be struck down – the position the state’s newly elected Democratic attorney general has endorsed, angering many Republican lawmakers.

Tony London (left) and Timothy Bostic

Plaintiffs Tony London (left) and Timothy Bostic

In January, Attorney General Mark Herring’s office notified the federal court in Norfolk that it would not defend the 2006 voter-approved constitutional amendment in a lawsuit. Republicans have accused Herring of abandoning his responsibility to defend the state’s laws. On Tuesday morning, a handful of protesters gathered at the courthouse. They shouted phrases decrying his position and carried signs: “Herring’s herring. AG’s must uphold the law.”

Across the street, gay-marriage supporters – in about equal numbers – shouted their support for the plaintiffs and carried signs saying “Marry who you love.”

Newly elected De mocratic Gov. Terry McAuliffe has rebuffed calls to appoint outside counsel to defend the ban. On Monday, Republicans in the House passed a bill that would give lawmakers standing in lawsuits where the attorney general and governor have chosen not to participate.

With Herring’s office deciding to side with the plaintiffs in the case, the job of defending the law during verbal arguments will fall to the legal team of Norfolk’s Circuit Court clerk. In addition, an attorney for the religious group Alliance Defending Freedom will present arguments on behalf of the Prince William County’s clerk, which has been allowed to intervene in the case, as to why the law should be upheld.

Herring plans to attend Tuesday’s hearing, although Virginia Solicitor General Stuart Raphael will argue in court on behalf of the state.

The lawsuit challenging the ban was filed on behalf of Norfolk couple Timothy Bostic and Tony London, who were denied a marriage license by the Norfol k Circuit Court on July 1. The lawsuit says the state’s law denies them liberties that are guaranteed by the 14th Amendment. Since then, Chesterfield County couple Carol Schall and Mary Townley have joined the case. The couple were married in California in 2008 and have a teenage daughter. They want Virginia to recognize their marriage.

The attorneys representing the plaintiffs on behalf of the American Foundation for Equal rights are the same ones that successfully challenged California’s ban on gay marriage in court there.

After Herring’s office decided not to defend the law, U.S. District Judge Arenda L. Wright Allen considered not even hearing verbal arguments in the case because of the “compelling” filing by the attorney general’s office. Wright Allen is a former public defender and assistant U.S. attorney who was appointed to the post by President Barack Obama.

The lawsuit was filed shortly after the U.S. Supreme Court struck down the section of the f ederal Defense of Marriage Act that prevented gay couples from receiving a range of federal benefits that are generally available to married people.

Herring’s announcement last month came on the heels of court rulings in which federal judges struck down gay-marriage bans in Utah and Oklahoma.

Currently 17 states and the District of Columbia allow same-sex marriage. Most are clustered in the Northeast; none is in the former Confederacy.

Nationwide, there are more than a dozen states with federal lawsuits challenging state bans on same-sex marriage.

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10 more reader comments:

  1. Virginia is for Lovers.

    Posted on Tuesday, February 4, 2014 at 3:09pm
  2. This would be so wonderful for Virginia!

    Posted on Tuesday, February 4, 2014 at 3:11pm
  3. Will make me proud of my home state

    Posted on Tuesday, February 4, 2014 at 3:29pm
  4. Human marriage, Human Marriage, HUMAN MARRIAGE!!!!

    Posted on Tuesday, February 4, 2014 at 3:30pm
  5. It’s the final countdown to the end of legalized discrimination in the Old Dominion! You can choose to get mad or GET GLAD… Either way, it’s gonna happen! Marriage Equality will be coming to a Virginia Clerk of the Court near you soon! Eventually, it will be the supreme law of the land! I give it 2 years. Marriage Equality will be in every U.S. State and Territory by then!

    Posted on Tuesday, February 4, 2014 at 3:32pm
  6. homosexual discrimation doesnt myusterr

    Posted on Tuesday, February 4, 2014 at 4:18pm
  7. Then my husband and I could move closer to our son/daughter-in-law and grand kids in VA! Lets get it done! Eventually it will be legal in all 50 states!

    Posted on Tuesday, February 4, 2014 at 4:49pm
  8. Good luck to you

    Posted on Tuesday, February 4, 2014 at 7:05pm
  9. Way to guys. There is light at the end of the tunnel.

    Posted on Tuesday, February 4, 2014 at 7:19pm
  10. As always, questions being asked that make it SOUND as though the ruling is going for or against it.

    Posted on Tuesday, February 4, 2014 at 8:47pm