Hearing On Virginia Marriage Ban to Go Forward; No Decision on Thursday

As anticipated in my last post, the oral arguments on the pending motions in Bostic v. Rainey will go forward on Thursday, January 30, 2014, as previously scheduled.  As noted in the previous post, Judge Wright Allen rejected an attempt by Circuit Court Clerk Michele McQuigg to delay the hearing.  It is also now clear that despite holding the hearings on Thursday,  the Court will not rule on Thursday and interested parties will have to wait for the release of Judge Wright Allen's opinion at some later date.  Frankly, this is what I expected.  The Court knows that regardless of how she rules, the ruling will be appealed to the 4th Circuit Court of Appeals.  Therefore, expect a lengthy and thorough opinion.  Also, until the opinion is released, we likewise will not know if a stay of the ruling's effect will be granted either by Judge Wright Allen or the 4th Circuit should the Court strike down Virginia's marriage same sex marriage ban as unconstitutional.  Indicative of the fact that religious based anti-gay animus is at the heart of the Marshall-Newman Amendment, the religious extremists at The Family Foundation have filed an amicus brief and Michele McQuigg is represented by another far right, anti-gay Christofascist group.  First here are highlights from the Court's latest Order:

ORDER taking [27] Plaintiffs' Motion for a Preliminary Injunction, and all motions for summary judgment, under advisement. Following review of the parties' status reports and the supplemental briefing now filed, the Court confirms that oral argument on the summary judgment motions and the motion for a preliminary injunction will be heard commencing at 9 AM on Thursday, January 30, 2014, in Courtroom Three, . . .

the Court sets the following Order of Presentation for oral argument at the hearing: Counsel for Plaintiffs present opening argument for no more than twenty minutes; Counsel for Defendant Rainey present argument for no more than twenty minutes; Counsel for Defendant Schaefer, III, present argument for no more than thirty minutes; Counsel for Intervenor McQuigg present argument for no more than thirty minutes; Counsel for Amicus The Family Foundation of Virginia present argument for no more than thirty minutes; Counsel for Amici Professors in Support of Defendants' Motions for Summary Judgment present argument for no more than thirty minutes; Counsel for Plaintiffs present rebuttal for up to ten minutes; and Counsel for Defendant Rainey present rebuttal for up to ten minutes. Counsel are advised that duplicative or cumulative argument is strongly discouraged. The pending motions will be taken under further advisement at the close of the hearing.

More on the case is found at the Daily Press.  Here are story excerpts:

A federal judge will go forward as scheduled Thursday with a hearing in a constitutional challenge to Virginia’s marriage laws.

Last week, U.S. District Judge Arenda L. Wright Allen asked whether the parties still wanted oral arguments in light of what she termed a “compelling” filing by newly elected Virginia Attorney General Mark Herring.

Virginia’s former attorney general, Ken Cuccinelli, had strongly defended Virginia’s laws banning same-sex marriage. But in a 23-page brief filed last week, Herring not only said he would no longer defend Virginia’s ban but would actively side with the plaintiffs in asking Allen to strike it down.

Stuart A. Raphael, the state’s solicitor general who serves under Herring, said that while the “ongoing, harmful denial of civil liberties to Virginia’s same-sex couples” should be resolved as quickly as possible, the hearing should go forward.

“The decision here will be a landmark ruling in Virginia on one of the most important civil rights issues of our time,” Raphael wrote. “The gravity of the matter and the stakes involved make it reasonable to allow the parties to supplement their written submissions … with brief oral argument.”
Doing so, Raphael wrote, “comports with the dignity and seriousness of the issues and will obviate any concern that the losing parties were not given a fair opportunity to be heard.”

Aside from Herring’s office, other parties in the case did not take a strong stand on whether oral arguments should take place. Late Monday afternoon, Allen said the hearing would indeed go forward.