READ IT HERE: Clerk McQuigg’s opening brief in Bostic v. Schaefer, Fourth Circuit appeal in Virginia same-sex marriage case
March 31, 2014
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You can read the brief here. Clerk Schaefer’s opening brief, which we posted earlier, is here.
14-1167 #75 by Equality Case Files
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.
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21 Comments
1.
Bose_in_SP_MN | March 31, 2014 at 10:43 am
Good golly, an ode to gay people as "genderless", free of any definition of "gender" much less what in the world "genderlessness" means.
Yes, we are uniquely unqualified to be men, women, or any other identifier once we identify as anything but hetero. As LGBT people, it's not clear whether they've decided we're eunuchs or freaks, or whatever, but we're no longer gendered at all, no longer capable or qualified to participate as ordinary members of families, neighborhoods or faith communities because the love we share is stripped of authentic gender.
The brief's only uses of "gay" or "heterosexual" appear in passages quoted from elsewhere; it avoids "lesbian," "homosexual" completely. I won't torture myself by looking for an iota of concern for the well-being of the children of LGBT parents.
No surprise in this, of course, and yet no less insulting that LGBT people and their families don't exist except as an underclass.
2.
Eric | March 31, 2014 at 12:25 pm
Gender? So they do agree with intermediate scrutiny?
3.
sfbob | March 31, 2014 at 10:45 am
A quick scan of the table of contents probably tells you all you need to know about the level of analysis that went into producing this brief. Once you see "Baker forecloses…" it's pretty much game over. It's pretty much a repeat of Schaefer's brief. The state can define marriage qualifications any way it likes. Marriage is all about channeling procreation. And so on.
4.
david0296 | March 31, 2014 at 12:00 pm
It's a laughable legal brief. They keep claiming that marriage is solely for procreative purposes, when legally it clearly isn't. None of the 50 states require or obligate married couples to procreate. Applications for marriage licenses don't mention children at all. Also, none of the 50 states prevent the elderly, infertile couples, or those not wanting children from getting married. It really is ridiculous that these bigots are still trying to claim that the state is trying to "channel" sexually-irresponsible straight couples into getting married. In other words, gay couples should be punished by law because they AREN'T being socially irresponsible like straight couples. Seriously, that's what these imbeciles are arguing.
5.
ebohlman | March 31, 2014 at 1:50 pm
You know, with the exception of gender mix (which is what's at issue here) and residency, the various state criteria for marriage eligibility are remarkably uniform: pretty much the only variations involve age and consanguinity (and the variation in both falls in a very narrow range) or administrivia like waiting periods and expiration dates for unsolemnized licenses. And the only real constant is the requirement that neither party be married to someone else.
You'd think that if some other criteria were possibly relevant, at least one state would have included one of them.
6.
Tim | March 31, 2014 at 10:26 pm
Bravo!
7.
Retired lawyer | March 31, 2014 at 12:22 pm
Nothing to see here, folks. Move along. Seriously, there is nothing here that ADF's lawyers have not submitted before in other courts, so far without success. The genderless marriage gibberish has resurfaced. I cannot fathom why they think this created- out -of -thin- air distinction advances their arguments in any way. I look forward to the briefs from Messrs. Olsen and Boies.
8.
JayJonson | April 1, 2014 at 7:35 am
It is true that these tired and silly arguments have not been successful recently. But at one time they were. The New York high court bought such arguments in (iirc) 2009. Some of the dissents in the Massachusetts and Connecticut state marriage lawsuits also bought these arguments. And, of course, they were bought apparently by the four members of SCOTUS who would have upheld DOMA. The ADF is simply hoping to find the right judges who are biased enough to pretend that they make sense.
9.
sfbob | April 1, 2014 at 8:44 am
Still, given that Windsor is now established law, and Windsor rejected all of these arguments, it's hard to see how they're going to get much traction. While it is certainly true that dissents can be and are quoted in later opinions (and sometimes with great effect as is the case with the dissenting views expressed in Plessy vs Ferguson), the most pertinent opinion is so very recent and therefore the dissents aren't likely to carry much weight in further litigation which is based so much on Windsor.
10.
Mahnahvu | March 31, 2014 at 10:15 pm
Looking at the parade of horribles beginning on page 53, the brief provides no evidence beyond what Robert George or the Witherspoon Institute has uttered. Instead, the brief presents a series of "could," "likely," "might" arguments. Here is a good sampling from the similar Utah brief: http://novus-homo.blogspot.com/2014/02/utahs-coul…
11.
Retired lawyer | April 1, 2014 at 6:10 am
The defendants in these marriage equality cases have little to support their arguments. Loving v. Virginia requires state marriage laws to conform to Constitutional standards. Romer v. Evans, Lawrence v. Texas, and United State v. Windsor require that gays be accorded the equal application of the laws, and that laws cannot be justified as rational on asserted grounds of religion, morality, and tradition. Same-sex marriages have been available in Massachusetts for a decade, and for similar lengths of time in European nations, with no harm to heterosexual marriages. Defendants, then, find it difficult to argue the law or the facts. That is why defense counsel, especially ADF, has to warn of the thin edge of the camel's nose under the big tent opening the door to the slippery slope in the race to the bottom of the barrel filled by cherry picking.
12.
Rick O. | April 1, 2014 at 6:42 am
And then Judge Friedman took the time for a trial and rejected the picked cherries ("evidence") as rotten. Next I would like one of these defense lawyers to appear on national TV and try explaining – with a straight face – how ME will lead to lower birthrates. Ranks right up there with "gays cause hurricanes". If Meet the Press won't carry it, I'm sure SNL or Colbert will.
13.
Rose | April 1, 2014 at 7:15 am
Morning Rick…….I'd like one of these defense lawyers explain just how denying the right to marry for Gays and Lesbians will make ANY opposite-sex couple be more responsible regarding procreation.
I'd also like to see just how many opposite-sex couples have opted NOT to marry or have children since my wife and I got married in 2008.
Seems these questions are best ignored because all they could say is what Charles Cooper said when Judge Walker asked him, "I don't know, I don't know"!
In fact the same day my wife and I got married, an opposite-sex couple got married and had their marriage license be rejected because they did NOT like being referred to as Party A and Party B, they changed their application to Groom and Bride as if somehow Party A or Party B changed that aspect of who they were. Today, California now has a box on each Personal data line for the couple to check.
14.
JayJonson | April 1, 2014 at 7:37 am
Great last sentence to your post, Retired Lawyer!
15.
ebohlman | April 1, 2014 at 2:17 pm
So you think ADF and NOM have read the handwriting on the buttered side of the bread?
16.
Rose | April 1, 2014 at 7:19 am
I have a question regarding the hearings in the 10th Circuit……does ANYONE know if there will be a live feed as to the oral arguments?
Thanks for the info!
17.
Scottie Thomaston | April 1, 2014 at 7:33 am
There won't be a live feed. I think they're releasing audio on the same day. But I'll be there covering it as well.
18.
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21. machinima soundtrack&hellip | September 23, 2014 at 4:02 am
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Equality On TrialREAD IT HERE: Clerk McQuigg’s opening brief in Bostic v. Schaefer, Fourth Circuit appeal in Virginia same-sex marriage case ยป Equality On Trial