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Arguments in Virginia marriage equality case will be heard January 30

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Federal district court Judge Arenda Wright Allen will hear oral arguments in a challenge to Virginia’s same-sex marriage ban on Thursday. The hearing that will take place is in Bostic v. Rainey, the challenge that was joined by the American Foundation for Equal Rights (AFER) team, including Ted Olson and David Boies.

The arguments will be divided up among the plaintiffs, defendants, and several groups who filed friend-of-the-court briefs. The court has set aside three hours for argument.

The order says:

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.

Earlier today, the judge granted Prince William County Circuit Court Clerk Michele McQuigg’s request to use briefs filed in defense of the ban in the case by the previous attorney general, meaning that the previously-filed motion for summary judgment and the briefing on the plaintiffs’ motions will just be placed in the record under McQuigg’s name, instead of going through the process all over again, now that the attorney general’s position has changed. (EqualityOnTrial noted the request here.)

The two clerks now defending the ban both filed their 5-page response to the attorney general’s change in position. Clerk McQuigg’s can be read here. Clerk Schaefer’s can be read here. Both briefs make similar points: the court should not apply strict judicial scrutiny because, they write, while marriage is a fundamental right, “same-sex marriage” is not. And McQuigg argues that there’s no discrimination based on sex or sexual orientation because the law implicates men and women (and not sexual orientation), and it treats men and women equally. Both argue that the Supreme Court’s 1972 summary dismissal in Baker v. Nelson in which a same-sex marriage case was dismissed “for want of a substantial federal question” is binding. And both argue that the ban withstands the most lenient rational basis scrutiny.

The order setting out the schedule doesn’t mention a possible time for a decision, only noting that the motions will be taken under advisement when the hearing is over. Clerk McQuigg reiterated her request for a stay in the event the judge decides the case in favor of same-sex couples:

If, however, this Court disagrees with Clerk McQuigg’s legal position, grants Plaintiffs’ Motion for Summary Judgment, and enters an injunction prohibiting the enforcement of Virginia’s Marriage Laws, Clerk McQuigg respectfully requests that this Court follow the recent guidance from the United States Supreme Court and stay that injunction pending the final disposition of any appeal from that decision.

A decision in this case would be appealed to the Fourth Circuit Court of Appeals.

Thanks to Kathleen Perrin for these filings

For more information on Bostic v. Rainey (formerly Bostic v. McDonnell)from The Civil Rights Litigation Clearinghouse, click here.

Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making. Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!


  • 1. sfbob  |  January 27, 2014 at 2:17 pm

    The responses sound phoned-in. No new arguments (not that that's really a surprise). The logic of "the law treats men and women equally" is similar to the "the law treats races equally" argument that the State of Virginia used so successfully in Loving vs Virginia. Actually didn't work at all. The idea that this about the "right to same-sex marriage" is equally preposterous. As is the notion that nothing has changed since Baker vs Nelson was dismissed.

  • 2. Scottie Thomaston  |  January 27, 2014 at 2:25 pm

    I agree, doesn't seem like they have anything else. I'm especially confused about the whole "right to same-sex marriage" thing: one point they try to argue is that all the couples in all the marriage cases were opposite-sex couples. They say the cases "all involved" opposite-sex couples. Well, okay, but what if we surveyed all the lead plaintiffs and they were all right-handed as well? Then the cases would all "involve" right-handed opposite-sex couples.

    In other words, you're supposed to define a fundamental right with precision but there's really such a thing as too precise.

  • 3. Richard Weatherwax  |  January 27, 2014 at 9:34 pm

    Section 1 of The 14 Amendment says:

    "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    Both sides should be in agreement that gays and lesbians are persons, and therefore their rights are protected under the Constitution, and this brings us back to Loving v. Virginia:

    "These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

    Obviously the justices mean women as well as men. Under what logic can one argue that the decision in Loving v Virginia does not apply to gays and lesbians? Are gays and lesbians not entitled to their pursuit of happiness?

  • 4. Bruno71  |  January 28, 2014 at 11:02 am

    "Happiness" being the key word. It is not tenable to argue that a gay man or lesbian woman can be truly "happy" by only having the option to marry someone of the opposite gender. On what basis can this "happiness" be abridged?

  • 5. sfbob  |  January 28, 2014 at 11:18 am

    I think there are good solid ways of arguing precisely this and I suspect that some of the groundwork has already been laid by several prior court decisions, not necessarily on marriage equality, which note that the court declined to distinguish between sexual orientation and sexual activity. The point would be that if you are gay your sexual and emotional life will perforce involve relationships with others of your own gender and it would be unreasonable to expect otherwise.

    We tend to think of "marriage" as one of the primary bases of personal happiness and fulfillment. Yet it wasn't all that long ago that, even in the US many marriages were arranged and were matters of convenience rather than of love, at least among the moneyed classes and within certain subcommunities. Even among the poor, it was until relatively recently fairly normal for Orthodox Jews to be married in accordance with the wishes of the parents rather than the wishes of the children. I am in fact the product of at least one such marriage; two of my great-grandparents were married to each other by arrangement.

    Even outside the bubble of the right-wing version of "traditional marriage" we often tend to overlook the fact that within Western cultures the nature of marriage, on an emotional level, has changed significantly over the past couple of centuries and still more so as we've achieved gender equality. I would argue that the 19th Amendment, by granting women the right to vote, significantly changed the nature of marriage in the US.

  • 6. Rick O.  |  January 28, 2014 at 7:53 pm

    I totally agree. Also the pill.

  • 7. jpmassar  |  January 27, 2014 at 3:32 pm


    The Indiana House voted 52-43 tonight to remove the second sentence of a much-debated same sex marriage ban.

    If the General Assembly approves the measure as amended, civil unions would not be explicitly banned and the proposed constitutional amendment would not go to voters this November.

    Rep. Randy Truitt, a West Lafayette Republican, proposed the amendment. He got support from Democrats and some GOP members, including some who voted in favor of the amendment in 2011.

  • 8. SPQRobin  |  January 27, 2014 at 4:16 pm

    It doesn't seem to be over yet:

    (from the same article)

    "If the House approves the measure, it would then move to the Senate, where President Pro Tempore David Long said last week that the second sentence could be reinserted. If that happens, the Senate version would either come back to the full House for an up-or-down vote, or go to conference committee where leadership would work out their differences."

    Curious how this will turn out.

  • 9. Eric  |  January 27, 2014 at 4:40 pm

    Republicans are looking for a way to make the issue go away, while appeasing their base. Kicking the issue down the road, as required by the Indiana Constitution, gives them that cover.

  • 10. bythesea  |  January 27, 2014 at 5:18 pm

    Yes and more time makes defeating it or the courts making it meaningless before a vote more likely.

  • 11. Zack12  |  January 27, 2014 at 7:38 pm
    This article nails it IMO.
    There was no way the court was going to be able to punt for five more years..and Scalia knew it in his dissent.

  • 12. Bruno71  |  January 28, 2014 at 11:07 am

    It worries me though, because even the more "liberal" justices on SCOTUS just won't be told. If they want to wait 5 years, they'll wait 5 years (unless the conservatives on the court for some reason want to call their bluffs and grant cert to another case sooner). Proclaiming that SCOTUS can't wait is probably even more likely to get their egos in a twist and have them even more dedicated to waiting.

  • 13. Zack12  |  January 28, 2014 at 11:22 am

    What I worry about is this,if Hillary doesn't run,or loses and someone like Scott Walker or Rand Paul gets in there,not only will they likely be able to replace someone like Kennedy or Scalia (whom are getting up in ages) but also Breyer and Ginsburg.
    The Roberts court is bad enough in regards to civil rights,the 1% etc…if we get more bigots on there our rights would be at a standstill for generations to come.

  • 14. Bruno71  |  January 28, 2014 at 11:46 am

    Yes, that's of course my ultimate worry too. Unfortunately, I don't think any of the actual justices are too worried about the way the court will swing in the future, as evidenced by some of Ginsburg's comments on the matter. And if anything at all, their stay on the Utah marriages showed me that they're in no rush on the marriage equality issue either. That's why it's super-important we get a Democrat in office in 2016.

  • 15. grod  |  January 27, 2014 at 8:17 pm

    Zack Agree, but Socarides doesn't mention Ohio's Judge T. Black decision on the right to remain married and have a valid marriage in one state of residency. On page 3 he draws on Windsor's finding that the feds can not refuse to recognize a valid marriage of a same-sex couple. ….. saying 'the question is presented whether a state can do what the feds can not do. Under the Constitution of USA, the answer is No for the following reasons …. Footnote 1 is telling " In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether states could refuse to recognize other states’ same-sex marriages would come quickly, and that the majority’s opinion spelled defeat for any state’s refusal to recognize same-sex marriages authorized by a co-equal state."

  • 16. Mike in Baltimore  |  January 28, 2014 at 2:13 pm

    I'm wondering if Judge Black's reasoning can be used in PA.

    After all, PA is almost surrounded by ME states (NY to the N; NJ to the E; DE to the SE; MD to the S). Could someone get married in any of them, then live in PA as a married couple, similar to first cousins getting married in MD, then living as spouse and spouse in PA, with PA recognizing them as married, even though PA does not recognize 1st cousin marriage if married in the state of PA? It would be difficult for the state to show that it is treating the out of state marriages as equal if they recognize one, but not the other.

  • 17. grod  |  January 28, 2014 at 2:29 pm

    If you recall the NM Supreme Court doing the hearing feigned legal astonishment that residents of the state could marry out of state and return to be treated as recognized as fully married.

  • 18. bendreyfus  |  January 28, 2014 at 8:00 am

    So this is effectively 1 hour total for the plaintiffs (since the state is now agreeing with them), and 2 hours total for the defense of the marriage ban? What's up with that?

  • 19. ragefirewolf  |  January 28, 2014 at 9:23 am

    Actually, I think it's pretty typical for the defense in a case to get more time to defend their position that the prosecutor or plaintiff. Someone is free to correct me on that, however. Considering the judge is very likely to rule in our favor, the difference in given time is rather irrelevant.

  • 20. StraightDave  |  January 28, 2014 at 9:42 am

    More time won't improve their arguments, it just makes people tired of hearing them. Hopefully the judge gets sick of it, too. Most athletes, finding themselves stuck in a bad game, just want it to end quickly before they embarrass themselves further. To our benefit, the opponents here seem to have no such survival instincts.

  • 21. Fr. Bill  |  January 28, 2014 at 11:18 am

    Any audio or visual of the hearing?

  • 22. Mike in Baltimore  |  January 28, 2014 at 2:46 pm

    Doubtful, for a couple of reasons:

    1. It is Federal court, and

    2. It is in the 4th Circuit, the same circuit the state of MD is in. When there is a trial of importance in the Federal Court House in Baltimore, all the media use sketch artists, not even still cameras.

  • 23. StraightDave  |  January 28, 2014 at 5:49 pm

    4th circuit no doubt has its own rules. But I recall watching Prop8 live at the 9th. individual discretion, I suspect

  • 24. Mike in Baltimore  |  January 28, 2014 at 8:00 pm

    In the past (less than a) year, several members of the Black Guerrilla Family (BGF) AND more than a dozen correctional facility guards (including 4 female guards who became pregnant as a result of sexual relations with BGF members), along with several guards charged with transporting drugs into the prison for BGF members, along with violent criminal acts by the guards and BGF members, have been arrested, charged, and are being tried in the Baltimore Federal Court. Those charged have been accused of having violated various Federal laws, and, if found guilty, will be serving long sentences in Federal prisons (mostly in isolation).

    There have been zero pictures except artist sketches of the ongoing trials. The only pictures so far available have been from outside the Federal Court House through windows, and of prisoners being taken from one part of the building to another.

    (By the way, the BGF members in Baltimore are part of a national gang that was founded at San Quentin prison in 1966. Although most people have not heard of it, it is one of the oldest organized gangs, as well as one of the most violent, in the US.)

    So yes, each Circuit Court of Appeals has it's own rules that apply to all Federal courts in that Circuit. I presume that some of the courts are influenced by the rules of surrounding states and other entities – thus the 9th Circuit would be more influenced by California and the other Western states' court rules than the 4th (which effectively surrounds and is influenced by, SCOTUS, probably the most 'traditionalist' court on court rules).

  • 25. griffcipp  |  January 28, 2014 at 12:42 pm

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    that method to give money instead of a cc.

  • 26. sfbob  |  January 28, 2014 at 2:20 pm

    The donation page doesn't appear to accommodate PayPal but hopefully one of the site managers can give you a definitive answer and/or or an alternative way of contributing.

  • 27. Jacob Combs  |  January 28, 2014 at 2:29 pm

    Hi there–I don't believe we take PayPal but I can look into that for you. Is there another donation method besides a credit card you'd be comfortable with? Why don't you drop me an email offsite: [email protected]. Thanks!

  • 28. Jacob Combs  |  January 28, 2014 at 2:40 pm

    Actually, I'm mistaken! You can log into PayPal and send your donation to [email protected]. Thank you so much for contributing! 🙂

  • 29. JimT  |  January 28, 2014 at 4:39 pm

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