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Religious Tolerance logo

Virginia: Recognition of same-sex relationships & marriage equality

Part 12:
2014-AUG: Bostic v. Rainey:
Statement issued by the Attorney General.
4th Circuit Court of Appeals doesn't issue stay!
Reactions to the court's refusal.

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"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
SSM refers to same-sex marriage.

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This topic is a continuation from the previous essay

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LGBT symbol 2014-AUG-08: Attorney General Herring (D) issued a statement:

Associated with the petition to the U.S. Supreme Court to accept the appeal of Bostic v. Rainey, Attorney General Mark Herring issued a statement, saying:

"Many brave men and women have fought for years for the constitutional guarantee of marriage equality, and now, we are almost there. It is time to discard these discriminatory bans and to recognize the humanity, dignity, and rights of gay and lesbian Americans seeking to forge life-long bonds. I believe this case will prove compelling for the Court because of:

  • the stringent, discriminatory nature of Virginia’s marriage ban,

  • the range of critical questions presented,

  • the clear legal standing of the parties, and

  • Virginia’s historic role in 1967’s Loving case ending bans on interracial marriage.

Virginia got that case wrong. Now, we have a chance to get it right, and to help extend to all Americans the right to marry the person they love." 1,2

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2014-AUG-13: The 4th U.S. Circuit Court of Appeals refused to stay their ruling:

The story so far:

As stated in previous essays concerning marriage by same-sex couples, the federal courts in Virginia followed the same pattern as state and federal courts in other states. In Virginia, the District Court declared that the Marshall-Newman Amendment to the Virginia Constitution is unconstitutional. It was passed by Virginia voters in 2006 by a vote of 57% to 43%. The amendment banned both marriages by same-sex couples in the state, and the state's recognition of legal marriages by same-sex couples in other states, The court found that the amendment violates the due process and equal protection clauses in the 14th Amendment of the U.S. Constitution. These are the same grounds by which state bans on interracial marriages were declared unconstitutional by the U.S. Supreme Court during 1967 in the famous case Loving v. Virginia. During 2014-JUL, the majority of a three-judge panel of the 4th Circuit upheld the District Court's ruling.

Michele McQuigg (R), the Prince William County Circuit Court Clerk, requested a stay of the Court of Appeals' ruling. On AUG-13, after a second vote of 2 to 1, the three-judge panel of the court denied the request. 3,4 They gave no reason for their decision. However, some federal courts in the recent past have concluded that to continue the ban on marriage by same-sex couples would do irreparable harm to these couples and their children, and yet would not have any significant negative impact on the marriages of opposite-sex couples.

On AUG-14, Michele McQuigg issued a request to have the U.S. Supreme Court impose a stay of the 4th Circuit's decision. The request was made to the U.S. Supreme Court Chief Justice John G. Roberts Jr. who is the circuit justice for all emergency requests from the 4th Circuit Court. It said, in part, that to allow same-sex couples to marry now:

"... would invite needless chaos and uncertainty rather than facilitate the orderly and dignified resolution of a constitutional question of enormous national importance." 5

There are only two possible responses by the Supreme Court about the request for a stay:

  • If the Supreme Court does not impose a stay, then the Circuit Court's ruling could terminate the SSM ban in Virginia effective on AUG-21 at 8 AM so that same-sex couples in Virginia could then start to marry. There is also the possibility that the Court ruling would have the effect of declaring same-sex marriage bans unconstitutional in three other the states within its jurisdiction: North Carolina, South Carolina, and West Virginia. 6 That could increase the number of states where same-sex marriages could marry to 23. (The Circuit Court also has jurisdiction over Maryland. However, Maryland legalized same-sex marriage in early 2012.)

  • It is much more probable that the Supreme Court will impose its own stay before AUG-21. That would continue Virginia's SSM ban at least temporarily and prevent same-sex couples from marrying there.

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2014-AUG: Reactions to the Court of Appeals' refusal to stay of their ruling:

Byron Babione is a senior counsel for Alliance Defending Freedom (ADF), a conservative Christian group which opposes the freedom of same-sex couples to marry. He said:

"The people of Virginia and every other state should continue to be free to preserve marriage as the union of one man and one woman in their laws if they choose to do so. Because the 4th Circuit chose not to place a hold on its decision as other courts -– including the U.S. Supreme Court -– have done in nearly identical cases, we intend to ask the high court to do so in this case before the 4th Circuit's mandate goes into effect. We trust the Supreme Court will grant our request in order to ensure an orderly and dignified resolution of this important constitutional question." 2

He is here expressing his opinion that the a constitutional amendment passed by the majority of voters in a state overrules the Due Process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution. These clauses require states to treat people -- and thus couples -- equally. This opinion appears to be shared by only a small minority of constitutional experts.

Some commentators have questioned how a non-profit group with "freedom" in its name could oppose the freedom of marriage to a minority of Americans. Actually, there is no real conflict. The main activity of the ADF is to preserve religious freedom. But the term "religious freedom" is rapidly changing its meaning. It used to mean freedom of religious belief, expression, assembly, and proselytizing. During the recent past it has been rapidly shifting to mean the religious freedom to discriminate, denigrate, and oppress women and minorities. A great deal of ADF's work is to preserve marriage inequality by discriminating against same-sex couples, and to support the right of bakers, marriage venues, and other retail suppliers of goods and services to discriminate against same-sex couples. This new definition violates the Golden Rule, but that conflict is not frequently acknowledged or discussed.

Nicholas Graham, of the American Foundation for Equal Rights (AFER) , a national pro-marriage equality group, said:

"The federal appeals court, again, rendered a favorable decision to the cause and gives further hope to millions of gay and lesbian couples and their children that we have momentum and we are on the trajectory to securing marriage equality for all, hopefully, within the coming year." 7

Adam Umhoefer, executive director of AFER, said:

"Virginia's loving, committed gay and lesbian couples and their children should not be asked to wait one more day for their fundamental right to marry." 8

Following the practice of most commentators, he ignored bisexual persons who are present in some loving, committed same-sex relationships.

Nancy Leong, a law professor at the University of Denver said that the 4th Circuit's decision to not issue a stay:

"... shows that there's no longer a justification to keep same-sex couples from marrying. ... I wonder whether we've reached something of a tipping point." 8

Virginia Attorney General, Mark Herring (D), a supporter of marriage equality, said:

"No one anticipated we would be this close this quickly to the day when all Virginians have the right to marry the person they love. That will be a historic day for our commonwealth and a joyous day for thousands of loving couples." 3

James Parrish, the executive director of Equality Virginia issued a statement saying:

"There is no doubt that Virginia is ready for the freedom to marry. ... We are thrilled that the 4th Circuit denied the request for a stay and hope that we will see wedding celebrations in Virginia as early as next week. Marriage validates the commitment couples make to one another and, if the Supreme Court doesn't intervene, achieving marriage equality in Virginia will be a tremendous step forward." 9

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This topic continues in the next essay

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. Jenna Portnoy, "Herring asks Supreme Court to take up Virginia same-sex marriage case," Washington Post, 2014-AUG-08, at: http://www.washingtonpost.com/
  2. "Virginia Asks Supreme Court To Review Same-Sex Marriage Case," dcist, 2014-AUG-08, at: http://dcist.com/
  3. Alan Blinder, "Court Refuses to Stay Its Decision Striking Down Virginia’s Same-Sex Marriage Ban," New York Times, 2014-AIG-14, at: http://www.nytimes.com/
  4. "Virginia clerk asks Supreme Court to delay marriage equality," American Foundation for Equal Rights, 2014-AUG-15, at: http://www.afer.org/
  5. Robert Barnes, "Supreme Court asked to put hold on ruling that would allow gay marriage in Virginia," The Washington Post, 2014-AUG-13, at: http://www.washingtonpost.com/
  6. "Gay marriage in Virginia set to begin AUG-21," USA Today, 2014-AUG-14, at: http://www.usatoday.com/
  7. Debbie Elliott, "In Virginia, Gay Marriages May Begin Next Week," National Public Radio (NPR) 2014-AUG-14, at: http://www.npr.org/
  8. Michael Felberbaum, "Gay marriages could begin in Va,. barring delay," 2014-AUJG-14. ABC News, 2014-AUG-24, at: http://abcnews.go.com/
  9. "Va. clerk to ask Supreme Court to stay same-sex marriage ruling," WUSA9, 2014-AUG-14, at: http://www.wusa9.com/

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How you may have arrived here

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Virginia > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-AUG-10
Latest update: 2014-AUG-20
Author: B.A. Robinson

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