Sunday, January 24, 2016

Virginia Gave Birth to Gay Marriage in the South

Being gay has changed a lot since I "came out" and moved out of the family home in 2002.  Gay sex no longer exposes one to a potential felony conviction, same sex couples can now marry, and gay couples are being welcomed as members in local yacht and country clubs.   Much still needs to be done to end the lack of non-discrimination protections in employment, housing and public accommodations.  On the same sex marriage front, I had a front row seat if you will since the lead plaintiffs in the marriage litigation were personal friends.  The other strange twist was that David Oakley, the attorney representing the Norfolk Circuit Court Clerk, was also someone I knew both socially and professionally.  He did not take kindly to some of my comments on this blog and argued that he was involved in the case to ultimately have the issue resolved, not because he was anti-gay.  He has a guest editorial piece in the Virginian Pilot today that looks at this sea change for Virginia and the South.  Here are excerpts:
THE COURAGE shown by a few Virginians led our commonwealth to become the first Southern state to allow gay marriage, but the debate continues to define the parameters of Virginia law.

It all started on what was otherwise an ordinary day in the office of George Schaefer, the Norfolk Circuit Court clerk, when Timothy Bostic and Tony London asked for a marriage license.

Like others before them, they were politely and respectfully turned down because the Virginia Constitution allowed marriage only between one man and one woman. Yet, Bostic and London were the first gay couple ready to push forward, armed with a decision from the U.S. Supreme Court [the Windsor ruling]. That decision came close to, but ultimately deferred ruling on, whether same-sex marriage was protected by the Constitution — one of the defining social issues of the times.

It took courage of the Norfolk parties, whose personal and professional lives were subjected to intense scrutiny. Bostic and London chose to pursue their case in the federal court system knowing that many disagreed with their goal. Virginia’s newly elected attorney general, Mark Herring, showed courage in the face of backlash when he changed his position and vigorously argued to strike down Virginia’s marriage laws as unconstitutional.

Schaefer, an elected official, was now a necessary party to the case.  If he had refused to defend Virginia’s marriage laws as they existed, the courts would have lacked what is known as a justiciable issue. In other words, without a party to prosecute and defend both sides of an issue, the courts will not weigh in. . . . . Thus, he stood his ground and defended Virginia’s ban on gay marriage, asserting it was the commonwealth’s right to define marriage as voted upon by its citizens.

The presiding U.S. District judge was criticized by many in the days following her historic ruling. But her ruling was clear: Virginia’s ban on same-sex marriage violated the U.S. Constitution.

The split in opinion among the Fourth Circuit Court of Appeal’s three-judge panel showed the battle was still unsettled; not everyone agreed. But the door had swung open to allow same-sex marriage in the Southern states. The public debate was no longer theoretical. Same-sex marriage arrived in Virginia, West Virginia, Maryland, North Carolina and South Carolina. 

Recently, Judge Steven C. Frucci of the Virginia Beach Circuit Court was asked to rule in a custody dispute between two women going through a divorce.   Just a short time ago, the non-biological parent in that relationship would not have had custody or visitation rights, but Fruicci correctly ruled that today she does.
In the end, David Oakley was right and with his assistance, George Schaefer, the Norfolk Circuit Court Clerk, and Tim Bostic and Tony London helped force the courts to strike down unconstitutional laws.

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