First Appellat Brief Filed in Bostic v. Rainey

Tim Bostic and Tony London

The first brief has been filed in the appeal of the ruling in Bostic v. Rainey which struck down Virginia's gay marriage ban according to the Washington Post although I could not yet access the actual brief via Pacer (there is often a day or so time lag between filing and access via Pacer).  The brief was filed by counsel to the two Circuit Court clerks who are defending anti-gay discrimination and was filed by an attorney I know.  He is with the former firm of Gov. Bob "Taliban Bob" McDonnell, and I candidly do not know if he really believes the tired Christofascist/state's rights arguments in his brief or if he's merely doing what he's paid to do.  We have actually been to weddings of members of his in-law's family and he has never struck me as anti-gay. Personally, I would not want my name attached to pleadings which posterity will likely view as akin to those filed in support of Virginia's ban on interracial marriage.  In any event, here are highlights from the Washington Post:

A federal judge who struck down Virginia’s gay marriage ban usurped the state’s authority to decide whether same-sex unions should be allowed, a lawyer defending the ban said Friday.

David B. Oakley, an attorney for court clerks in Norfolk and Prince William County, also said if the door is opened to same-sex marriage “it will not be long before other groups come knocking,” including unions between close relatives.

Oakley made the arguments in a brief filed in the 4th U.S. Circuit Court of Appeals. The clerks are appealing last month’s ruling by U.S. District Judge Arenda Wright Allen that the state’s same-sex marriage ban is unconstitutional.

“States have the right to define marriage, and if they choose to allow same-sex marriage or other non-traditional marriage, they are free to do so,” he wrote. “However, the states cannot be compelled to alter the idea of marriage to include same-sex couples.”

He said clerks could be faced with lawsuits from other people who are prohibited to marry.

“For example, if the definition of marriage is no longer based on procreation and the ability to procreate naturally, then what is the purpose in prohibiting marriage between persons of close kinship,” Oakley wrote.

He also said Allen missed the mark in citing Loving v. Virginia, the Supreme Court case that struck down the state’s interracial marriage ban, as a basis for invalidating Virginia’s statutes and constitutional amendment prohibiting same-sex marriage.

“Unlike infringing on the right to marry based on invidious racial laws, the decision to restrict marriage to couples of the opposite sex is not based on any suspect or irrational classifications,” Oakley wrote.

 The Roanoke Times also has coverage and here are highlights:

David Nimocks and Byron Babione, lawyers with the Alliance Defending Freedom, echoed Oakley’s arguments in a brief also filed Friday on behalf of their client, Prince William County Circuit Court Clerk Michele McQuigg, a co-defendant in the case.

The attorneys argued that in last year’s Windsor case, the U.S. Supreme Court struck down parts of the federal Defense of Marriage Act but also emphasized “the state’s authority to define marriage,” and thus supporting “the propriety of Virginia’s marriage laws.”

They also wrote that the “newly instated genderless-marriage regime” would “permanently sever the inherent link between procreation (a necessarily gendered endeavor) and marriage — a link that has endured throughout the ages.”

As noted in prior posts, the claim that Windsor left Sec. 2 of DOMA is deliberately disingenuous: the Windsor case only challenged Sec. 3 and, therefore, the Supreme Court had no reason to rule on Sec. 2.  However, if the Court's reason on why Sec. 3 of DOMA was unconstitutional is applied to state marriage bans, the same finding of unconstitutionality would result.  The defenders of the marriage bans continue to be honest and admit what fuels their opposition to same sex marriage: anti-gay animus and religious based bigotry, neither of which are sufficient to magically make the bans constitutional.