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.

Was the 4th Circuit Skeptical Of Virginia’s Same-Sex Marriage Ban?

Due to work demands I was not able to travel to Richmond for the oral arguments before the U.S. Court of Appeals for the Fourth Circuit in the appeal of the February 13, 2014, ruling in Bostic v. Rainey which struck down Virginia's bans on same sex marriage - bans that were spearheaded by the Christofascists at The Family Foundation.   From those who were there and the report filed by Chris Geidner at BuzzFeed., the three member panel of the 4th Circuit may have been skeptical of the supposed justifications for state sponsored anti-gay discrimination.  Making the scene even more bizarre is the fact that I know both the plaintiffs and David Oakley, the attorney representing Norfolk Circuit Court Clerk, George Schaefer, an attorney who may be building himself a legacy akin to that of those who supported segregation a half century or more ago.  Here are highlights from Chris Geidner's piece:

RICHMOND, Va. — The 4th Circuit Court of Appeals looks likely to declare Virginia’s ban on marriages for same-sex couples unconstitutional, following the path set by trial judges all over the country.

Two of the court’s three judges appeared ready to strike down the ban Tuesday at oral arguments in Richmond — the third federal appellate hearing on the question currently winding its way through federal and state courts throughout the nation.

Judge Paul Niemeyer was the only judge hearing the arguments who pressed heavily on the side of the state’s ban, saying that same-sex couples are creating a “brand-new relationship” and that “it takes a male and female to have a child, to have a family.”

The “core of a family” is the mother–father relationship, Niemeyer told Ted Olson, who was arguing for same-sex couples fighting the 2006 marriage ban. Describing that relationship as “A” and same-sex couples’ relationships as “B,” Niemeyer said that “the state can redefine it and call it marriage,” but that wouldn’t change the fact that “these are two different relationships.”

Although arguments about defining fundamental rights and the level of scrutiny to be used in reviewing the 2006 amendment — the questions central to the briefs in the case — were discussed during the hour, Niemeyer’s focus at times seemed out of place, echoing as it did a Kentucky Court of Appeals opinion from 1973 that dismissed a same-sex couple’s attempt to get a marriage license because “what they propose is not a marriage.”

The other judges mostly did not engage directly with Niemeyer’s argument, appearing prepared to continue the path laid out by the Supreme Court in its trilogy of “gay rights” cases in providing additional protections to gay, lesbian, and bisexual people and, in striking down the Defense of Marriage Act last year, same-sex couples’ relationships.

Although Judge Henry Floyd didn’t ask much during the arguments, he suggested he understood a path was being laid out by the court — specifically in last year’s opinion in United States v. Windsor striking down the Defense of Marriage Act’s federal ban on recognizing same-sex couples’ marriages.

Floyd led off the argument by asking lawyer David Oakley the first question of the day. Raising the 1972 Supreme Court decision dismissing a marriage case brought by a same-sex couple in Minnesota because, the court ruled, there was no “substantial federal question” raised by the case, Floyd asked whether it was left “intact” after last year’s opinion striking down DOMA in United States v. Windsor.

And, though Oakley said it was, Floyd later returned to the question, noting that the case had been a “summary dismissal.”

Judge Roger Gregory later picked up that point with Austin Nimocks, the Alliance Defending Freedom lawyer who was representing clerk of court Michele McQuigg. Of the 1972 case, Gregory asked Nimocks incredulously, “You think this still isn’t a substantial federal question?”

Gregory pounded Nimocks with questions throughout his argument. Detailing the line of Supreme Court cases addressing privacy rights, Gregory said of Virginia’s ban on same-sex couples’ marriages, “You can’t make it so that this ‘fundamental right’ of choice is unrecognizable.”

Nimocks said, “I don’t think Virginia denies anything to same-sex couples that they don’t deny a single mother” or a grandparent raising a grandchild. Gregory shot back: “If you’re concerned about the children, why does Virginia want to rip that away from a child” whose parents are of the same sex?

Nimocks replied that same-sex couples don’t give children a mother and a father and that that mother-father possibility is the state’s reason for marriage — the point extended by Niemeyer in his questions in the case.

That, and an exchange about whether adopted children are different than biological children, led Gregory finally to say, “It’s really disingenuous, your interest in children.”

Olson, the ACLU’s James Esseks and Virginia’s solicitor general, Stuart Raphael, pressed those arguments — that the due process clause protects fundamental rights like the right to marry and that the equal protection clause’s includes protection sexual orientation classifications under some sort of heightened scrutiny.

Even Niemeyer at times seemed to suggest that he knew that the position he put forth in arguments would not carry the day, asking at one point whether the appeals court “should say, ‘We pass,’ and just let it go on” to the Supreme Court. At other times, he asked directly whether more narrow rulings — such as a 2012 ruling by conservative 1st Circuit Judge Michael Boudin striking down DOMA — could be applied to the case of Virginia’s ban.

Though it is not known when the court will issue its ruling, Niemeyer — like everyone in the packed courtroom in Richmond Tuesday morning — already is treating the 4th Circuit, as he said, as “a way station” before this case or one of the other marriage cases makes its way back to the Supreme Court.

To me perhaps the biggest irony of the day was when Judge Gregory noted the disingenuousness of the Christofascists' feign concern about children.  They claim to care about unborn children in the womb, but once children are born, especially if they are born to same sex couples, they truly do not give a damn.  The biblical Pharisees are upstanding and honorable compared to today's self-anointed "godly folk."