Virginia’s
ban on same-sex marriage was challenged in federal court on Tuesday in
the first serious legal test of the restrictive marriage amendments that
blanket the South.
The
challenge to Virginia’s ban, which was adopted by referendum in 2006,
was argued by the same bipartisan team of legal stars, Theodore B. Olson
and David Boies, that successfully contested California’s ban in 2010.
In
a rare scene, they were joined in the courtroom in Norfolk, Va., by the
new Democratic attorney general of Virginia, Mark Herring, who
announced two weeks ago that his office considered the marriage ban
unconstitutional and would assist the challenge.
“I’m
proud to say today the Commonwealth of Virginia stood on the right side
of the law and the right side of history,” Mr. Herring said in a
teleconference after Tuesday’s hearing.
Remaining in court as defendants were two court clerks, one of them represented by Alliance Defending Freedom, a coalition of conservative Christian lawyers.
The
regional impact of this case, and of a second one being argued in
federal court in western Virginia, could be profound. Up to now, the
South has provided an unyielding bloc of states banning same-sex
marriage.
If
Judge Wright Allen strikes down the ban and the Court of Appeals
upholds her decision, amendments limiting marriage to a man and a woman
would most likely be voided in other states of the Fourth Circuit,
including North Carolina, South Carolina and West Virginia. (Maryland,
the fifth member, approved same-sex marriage in 2012.)
“This
has the potential to change the opportunities for gay and lesbian
citizens in a large number of Southern states,” Mr. Boies said after the
hearing.
A
big question is whether the Virginia cases, or another already before
the Court of Appeals for the 10th Circuit involving Utah and Oklahoma,
might eventually be considered by the United States Supreme Court.
In
the past two months, federal judges in Utah and Oklahoma declared those
states’ bans on same-sex marriage to be unconstitutional. Both states
have appealed.
The
Norfolk case, Bostic v. Rainey, was brought on behalf of two couples.
Tim Bostic, an English professor, and Tony London, a real estate agent,
said in the teleconference that they had been together 24 years and, “We
want to be married like everyone else.”
Mary
Townley, an expert in special education, and Carol Schall, an education
professor, said they had been together for 30 years and have a
15-year-old. They wed in California in 2008, but their marriage is not
recognized in Virginia.
Austin
R. Nimocks, a lawyer with the Alliance for Defending Freedom, said by
telephone after Tuesday’s hearing, “We were happy that the voice of
Virginians was represented in the court today.”
“The
reason why Virginia has upheld marriage as between one man and one
woman for 400 years was put before the court,” he said. “Virginians have
maintained throughout history that moms and dads are important to
families.”
Mr.
Nimocks also argued that even in its recent decision to void parts of
the federal Defense of Marriage Act, the United States Supreme Court had
stated that marriage policy remains in the hands of the states.
But Mr. Boies, who with Mr. Olson is representing the American Foundation for Equal Rights
in the Norfolk case, said that the Supreme Court had also found that
“not recognizing gay and lesbian marriages sends an improper signal that
these are second-class relationships.”
In
the end, Mr. Boies said, the basic arguments for allowing same-sex
marriage remain the same as they were in 2010, when a federal judge
blocked the ban in California. “Marriage is a fundamental right, and
depriving gay and lesbian citizens of that right seriously harms them
and seriously harms the children they are raising,” he said. “It doesn’t
help anybody.”
SOURCE.www.nytimes.com
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