RICHMOND, Va. — Advocates and opponents of gay marriage will turn their attention to Virginia, where a federal appeals court will hear arguments Tuesday in a case challenging the state’s ban on same-sex unions.
The case before the 4th U.S. Circuit Court of Appeals is one of dozens making their way through courts across the country. People on both sides of the issue agree that the question of whether states can prohibit gay couples from marrying is likely to eventually be decided by the U.S. Supreme Court.
U.S. District Judge Arenda Wright Allen in Norfolk struck down Virginia’s gay marriage ban in February.
WHO ARE THE PARTIES IN THE VIRGINIA CASE?
The lawsuit was filed by Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield County. Bostic and London were denied a marriage license by the office of Norfolk Circuit Court Clerk George E. Schaefer III, a defendant in the lawsuit. Schall and Townley were married in California, but their marriage is not recognized in Virginia.
Janet Rainey, the state registrar of vital records, is a defendant and 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, 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.
WHAT ARE THE PLAINTIFFS CHALLENGING?
The couples and Herring claim a state constitutional amendment barring same-sex marriage in Virginia violates equal protection guarantees in the U.S. Constitution. Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006.
Also at issue are Virginia laws barring gay marriage and denying recognition of such unions performed in other states.
WHY ISN’T THE VIRGINIA ATTORNEY GENERAL DEFENDING THE STATE’S CONSITUTION AND LAWS?
Herring has drawn criticism from conservatives who claim he has abdicated his duty to defend the state. But the attorney general says he also is sworn to uphold the U.S. Constitution, which takes precedence over state constitutional and statutory provisions. He says in court papers that the equal protection clause guards the fundamental right to marry and trumps states’ authority to decide the issue.
WHAT OUTSIDE PARTIES HAVE WEIGHED IN ON THE CASE?
Fifty friend-of-the-court briefs totaling more than 2,100 pages have been filed. The plaintiffs are supported by constitutional scholars who agree with their legal arguments, by professional sociologists who say children of same-sex couples fare as well as those of heterosexual parents and a coalition of companies that say same-sex marriage bans are bad for business.
Conservative organizations including Liberty Counsel — the legal arm of Liberty University — Concerned Women for America and the Institute for Marriage and Public Policy are urging the appeals court to uphold the ban.
Among their arguments are that the issue should be decided by the states and that procreation is a primary reason for marriage, and children are better off with both a mother and a father. Religious denominations are split.
WHAT WILL HAPPEN IN COURT TUESDAY?
A three-judge panel randomly selected from the 16-member appeals court will hear arguments from lawyers for both sides. The Richmond-based 4th Circuit, once widely considered the most conservative appeals court in the country, has become more moderate with the addition of five appointees by President Barack Obama. Lawyers typically face what they call a “hot bench,” which means the judges ask a lot of questions. The court usually issues its rulings several weeks, or even months, after hearing arguments.
AFTER THE COURT RULES, WHAT HAPPENS NEXT?
The losing side can accept the ruling, ask the full appeals court for a rehearing, or appeal to the U.S. Supreme Court.
IF THE RULING GOES IN FAVOR OF GAY MARRIAGE, WILL SAME-SEX COUPLES BE ABLE TO GET MARRIED RIGHT AWAY?
Probably not. The decision likely will be put on hold to allow for an appeal.
ARE THERE SIMILAR CASES IN OTHER STATES, AND WHAT IS THEIR STATUS?
The Human Rights Campaign, which supports gay marriage and tracks court cases, says more than 70 cases have been filed in 29 states and Puerto Rico. Nine cases have reached federal appeals courts in five circuits, and the 10th Circuit already has heard arguments in cases from Utah and Oklahoma.
Seventeen states and the District of Columbia allow same-sex marriage, while 33 states prohibit it.
Follow this case: Bostic v. Rainey.
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