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READ IT HERE: Third brief in Bostic v. Schaefer, the challenge to Virginia’s same-sex marriage ban in the Fourth Circuit

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Fourth Circuit map
The third brief has been filed in the Fourth Circuit Court of Appeals, in Bostic v. Schaefer. The case is one of the challenges to Virginia’s same-sex marriage ban; it’s being litigated by the American Foundation for Equal Rights (AFER) and their attorneys Ted Olson and David Boies.

This brief was filed on behalf of State Registrar Janet Rainey, by Attorney General Mark Herring. Rainey appealed the lower court’s decision (along with Clerks Schaefer and McQuigg) though she takes the position that the ban should be struck down as unconstitutional. (Attorney General Herring changed the state’s position when he was sworn in.)

The first brief, filed by Norfolk County Circuit Court Clerk George Schaefer, is here. The second, filed by Prince William County Circuit Court Clerk Michele McQuigg, is here.

You can read the new filing here, thanks to Kathleen Perrin and Equality Case Files:

14-1169 #126 by Equality Case Files

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


  • 1. StraightDave  |  April 11, 2014 at 8:58 am

    Citing DeBoer (MI) on p 45: "Optimal academic outcomes for children cannot logically dictate which groups may marry."

    This is the statement that every attorney should carry around and present front and center to every court. The nonsense about who has better parenting skills that the 10th Circuit wasted too much time on yesterday (and elsewhere) is a 100% red herring. It doesn't matter what the answer is. It's the wrong question. We don't give parenting tests in this country. (Now, there is an argument to be made that perhaps we ought to, but it certainly shouldn't start with gays at the top of the list….. and the consequences are just unthinkable, anyway)

  • 2. Rose  |  April 11, 2014 at 9:33 am

    I TOTALLY agree with you regarding who is a better parent…'s IRRELEVANT to having he right to marry, seeing as we DON'T give a quiz on what it takes to be a good parent in the first place…….and we also DON'T make folks take parenting classes BEFORE having children!!!

    We are simply discussing the right to marry and what the State's REAL compelling interest is to keep it just between a man and a woman.

    My wife and I have been married 6 years in August and I DON'T believe we have prevented ONE opposite-sex couple from getting married or from having children, nor have we made one opposite-sex couple more responsible when it comes to procreation!!!

  • 3. Carpool Cookie  |  April 12, 2014 at 5:50 pm

    Besides which, if one really wants to take that element seriously….PLENTY of happy, productive people have had less than optimal (or even BAD) parents. That doesn't mean they should never have been born and their lives somehow erased.

  • 4. Ragavendran  |  April 11, 2014 at 9:55 am

    Yes! And I also liked this one from the Michigan opinion:
    "Taking the state defendants’ position to its logical conclusion, the empirical
    evidence at hand should require that only rich, educated, suburban-dwelling Asians may marry, to the exclusion of all other heterosexual couples."

  • 5. Dann  |  April 11, 2014 at 9:55 am

    I couldn't agree with you more. The other side seems to think that by preventing gay people from getting married this will prevent them from having children. All the other side is doing is hurting the children of same-sex couples by not allowing them the legal and social benefits as heterosexual couples.

  • 6. JayJonson  |  April 11, 2014 at 10:27 am

    Luckily, Justice Kennedy brilliantly deconstructed this argument in Windsor. The desperation of the anti-gay groups is evidenced that they can think of no other "rational" reason or "legitimate state interest" to oppose marriage equality, hence they must rely on an argument that has already been demolished at the Supreme Court.

  • 7. Dr. Z  |  April 13, 2014 at 8:26 am

    See also footnote 24 on pp. 46-47 which quotes the trial judge in DeBoer shredding Regnerus, and notes that while the many amicus briefs in this case cite Regnerus' "study" they fail to note that the judge found him completely unbelievable and that his "study" was rushed through for the benefit of third party sponsors.

  • 8. Ragavendran  |  April 11, 2014 at 9:52 am

    The opening brief in Obergefell (Ohio death certificate appeal) was due yesterday at the Sixth Circuit and PACER shows that it was filed by the State yesterday. Scottie, do we have access to that?

  • 9. Scottie Thomaston  |  April 11, 2014 at 3:51 pm

    I don't think Kathleen has posted it yet – she was here for the hearing so she is probably a bit behind. I get the filings from her so I'll post it when she gets it. Sorry :/

  • 10. Ragavendran  |  April 12, 2014 at 8:12 am

    Here it is. Note that since Defendant Wymyslo has stepped down as Ohio Department of Health Director, the brief has been filed by the interim director, Lance Himes. Does this call for a change of the name of the case to Obergefell v. Himes? Why not a generic Obergefell v. Ohio Department of Health?

  • 11. Dr. Z  |  April 12, 2014 at 11:55 am

    Easier to spell, but speaking as someone whose surname begins with the frightening letter Z, I can appreciate a name with two Ys and a W. We need more plaintiffs/defendants with Qs.

  • 12. DrHeimlich  |  April 11, 2014 at 9:53 am

    It seems like a new powerfully written brief or opinion comes every week now. Nevertheless, this one feels to me like an especially strong one.

    It is incredibly succinct in the right areas, such as addressing whether sexual orientation merits heightened scrutiny.

    It neatly sidesteps the issue of animus by pointing out that many voters supporting a marriage ban were motivated by religion, which can't carry weight in a courtroom.

    It joins the chorus of "Scalia is right," in pointing out that you can't rule any other way in this case without overturning Romer, Lawrence, and Windsor. And then it stands out from that chorus by even answering Scalia's facetious questions raised at oral argument in Hollingsworth v. Perry.

    Grade A work from the lawyers here.

  • 13. JayJonson  |  April 11, 2014 at 10:25 am

    I love the section on Scalia's dissents.

    In total, this is a very persuasive brief.

  • 14. Rik  |  April 11, 2014 at 2:03 pm

    I like this:

    And Plaintiffs do not seek to mimic marriage; they seek to marry. Calling it “genderless” and “marriage mimicking” is insulting, “just as it would demean” heterosexuals to say that their marriage is “simply about” opposite-sex “intercourse.” Lawrence, 539 U.S. at 567

  • 15. Chris M.  |  April 11, 2014 at 2:18 pm

    I hate to say it, but historically heterosexual marriage has been mostly about two things: sex and money. Money for the upper classes (whose estates will be combined, etc.) and anytime access to sex for the peons. Remember, not too long ago it wasn't rape if the husband did it to his wife, against her will and using force.

  • 16. Background Gal  |  April 11, 2014 at 2:44 pm

    I don't believe many people get married in order to have sex. Marriage is a complication if sex is the goal. Yes, historically, the money/power (same thing) has been the motivator in higher society. Merging bloodlines ends wars, re-drew counties borders, and shored up failing kingdoms. All this is convenient to ignore when you want to keep the quite new tradition you want to imagine is universal.

    A full and hopefully lifelong commitment to full partnership is the purpose of marriage, to me. That commitment is valued and rewarded by society and thus by government many ways… and it's no less valuable because of matching genitalia on the participants.

    Not that sex isn't part of it. It's not just fun, it's the glue that fills the rough spots and deepens the emotional bonds that make a good marriage last..

  • 17. sfbob  |  April 11, 2014 at 3:04 pm

    I remember my mom telling me that while she and my dad were virgins on their wedding night, most of their friends were not. And they got married in 1950. Yes, it was more common to wait until marriage to lose one's virginity back then than it is now, but it was hardly the norm…ever…except in very insular and rigid communities, where everyone knew everyone's business and had an opinion about it. I am Jewish on both sides of my family and am only two or three generations removed from a culture in which marriages were arranged by parents.

    Until fairly recently, legal, formal marriage was the domain of those with significant assets to protect. Prior to the start of the 20th Century, common-law marriages were quite common in the US and, I believe, elsewhere. If anything, it was undoubtedly the need for governments to know who was entitled to survivor benefits which led to most states ceasing their recognition of common law marriages. It made things terribly messy. Nowadays only nine or ten states plus DC still recognize common law marriages. Interestingly, one of the states where the status of common law marriage is somewhat vague is apparently Oklahoma, the focus of one of the two Tenth District marriage equality challenges currently being heard on appeal.

  • 18. Steve  |  April 11, 2014 at 5:00 pm

    I think I've read some statistics that a third or so of people had premarital sex in the 1950s. With condoms widely available it wasn't much of an issue from a STD and accidental pregnancy POV.

  • 19. ebohlman  |  April 11, 2014 at 5:20 pm

    And that was probably lower than in the first half of the 20th century: the sexual mores of the 1950s were unusually restrictive as American culture goes. At least one study showed that in the early 1940s, only about 1 in 10 women were virgins when they married.

  • 20. Deeelaaach  |  April 12, 2014 at 12:16 am

    My parents are genealogists. According to my mother, a saying in the genealogy community is: "The first baby comes any time. After that it takes nine months."

  • 21. Mike in Baltimore  |  April 12, 2014 at 2:01 am

    One of my (full term) cousins was born six months after her parents were married. Both of her younger brothers were also full term, and born nine months 'after the act'.

  • 22. Dr. Z  |  April 12, 2014 at 11:57 am

    Ponca City OK was once known as the VD capital of the US.

  • 23. Retired lawyer  |  April 11, 2014 at 2:33 pm

    This Brief for Registrar Rainey by Attorney General Herring and Solicitor General Raphael is nothing short of brilliant. Upon concluding it, I wanted to stand up and applaud. The people of the Commonwealth of Virginia should be thankful to have such able public officials. Everything about it excels.

  • 24. bayareajohn  |  April 11, 2014 at 2:50 pm

    I've marveled at the comparative quality of arguments and briefs for the last year or so… how crystalline the pro-SSM arguments are, and how insipid and repetitive the anti-arguments… poorly written, gaping holes in logic and citation and conclusions,,,

    But I've come to realize it's really hard to do a good brief when your case is so very contrary to reason and law. And it's harder to get the best writers when your cause itself is bankrupt.

  • 25. John  |  April 12, 2014 at 8:02 am

    And this is what cuts deep and hurt when you compare them to Utah's AG and cast of characters.

  • 26. davep  |  April 11, 2014 at 3:20 pm

    I really like this conclusion to the section arguing for Heightened scrutiny. This brief clearly, succinctly, spells out WHY a decision to apply heightened scrutiny applies to laws targeting gay people:

    Courts are suspicious of laws that discriminate based on race, national origin, gender, alienage, and illegitimacy. Such classifications are “suspect” because, in our nation’s history, they often spring from prejudice. So we put a heavy burden on the State to justify them. It is simply not credible to argue that courts have no similar reason to be suspicious of laws that discriminate on the basis of sexual orientation.

  • 27. davep  |  April 11, 2014 at 3:24 pm

    …. and this wrap-up at the end of the section that destroys the oppositions claims about 'no right to same sex marriage exists':

    "In other words, the fundamental right at issue here is the right to marriage:

    • not the right to interracial marriage,


    • not the right of prison inmates to marry,


    • not the right of people owing child support to marry,

    Zablocki, and

    • not the right to same-sex marriage. "

  • 28. Rose  |  April 12, 2014 at 8:55 am

    I agree with it……there is NOT now nor ever been "GAY" or "SAME-SEX" Marriages and this is just another attempt to try and make it seem as if we are ASKING for some "SPECIAL" right instead of just fighting for the Fundamental right.

  • 29. davep  |  April 11, 2014 at 3:54 pm

    …. I just finished slowly re-reading the whole thing with no distractions. Excellent. Just excellent.

  • 30. Ragavendran  |  April 12, 2014 at 7:57 am

    Fourth and Fifth briefs (filed by Plaintiffs Bostic et al. and Intervenor-Plaintiffs Harris et al.) are here:

  • 31. Retired lawyer  |  April 12, 2014 at 4:06 pm

    Thank you, Ragavendran, for posting these two briefs, one from the Ted Olson-David Boies team, and the other from the Paul Smith-ACLU-Lamda Legal team. Both of the briefs are excellent, but the stand-out remains the brief submitted by Virginia's Attorney General and Solicitor General. Two items caught my attention because they show careful research. The Attorney General's brief details the oral argument at the Supreme Court in Loving v. Virginia when, sure enough, the Commonwealth argued that inter-racial marriage would lead down the slippery slope to incest and polygamy. The Olson-Boies brief pointed out that the procreation argument had been presented to the Supreme Court by BLAG in its main brief in United States v, Windsor, and was completely ignored, not thought worthy of even a mention by any Justice!

  • 32. Ragavendran  |  April 12, 2014 at 8:47 am

    From Page 21: "In Zablocki, moreover, the Court rejected the argument that the right to marry described in Loving is somehow limited in scope because the case involved racial discrimination: “[a]lthough Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.” 434 U.S. at 383-84 (emphasis added) (internal citations omitted). All individuals means all individuals. Loving teaches that the Fourteenth Amendment protects the fundamental right to marry, even if the way in which it is practiced would have surprised the Framers or made them feel uncomfortable."

    This could have been a dispository answer to Schaerr's (nevertheless weak) attempts to distinguish Kitchen from Loving during Thursday's oral argument. I wonder if Tomsic at least mentioned this in her briefs.

  • 33. Rick O.  |  April 12, 2014 at 8:51 am

    Very nice, succinct, and understandable by non-professionals like me. Once again, it's pointed out that no one connects the dots faster and better than Scalia. He would be my choice of a justice to meet for dinner. Would love to know his thoughts on church and state, a godless Constitution, and the pesky liberty thingy.
    My favorite line: "Nor would other horribles parade themselves here." – Thank you for removing the ME issue from the freak show in which the homophobes are forever trying to jail us.

  • 34. Ragavendran  |  April 12, 2014 at 12:39 pm

    If you haven't seen this already, this is an illuminating 2010 interview (or parts of one) with him:
    I couldn't find the rest of it online anywhere. Since 2010, he has been interviewed several times, most recently by the NYMag:

  • 35. Ragavendran  |  April 12, 2014 at 9:09 am

    Well said, in Page 31, discussing why gays and lesbians are a discrete class easily targeted for discriminatory treatment: "It is no answer to say that gay men and lesbians could avoid being discriminated against by hiding their sexual orientation. Children born out of wedlock do “not carry an obvious badge” either, Mathews v. Lucas, 427 U.S. 495, 506 (1976), yet the Court has recognized that heightened scrutiny is warranted when laws discriminate against them, Clark v. Jeter, 486 U.S. 456, 461 (1988). And strict scrutiny applies to laws that discriminate based on alienage, despite that alienage typically cannot be discerned by outward appearance, and despite that aliens can become naturalized citizens and thereby “voluntarily withdraw from disfavored status . . . .” Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977)."

    And in Page 56, refuting the slippery slope argument: "In the real world, there are unlikely to be facial class-action challenges to consanguinity laws. And if facial or as-applied challenges should someday be filed, courts have the doctrinal tools from Zablocki and Loving to decide them. In the meantime, no bogeyman can justify denying same-sex couples the right to marry when marriage equality is compelled by cases like Loving, Romer, Lawrence, and Windsor."

  • 36. davep  |  April 12, 2014 at 3:13 pm

    … and regarding that whole idea of avoiding discrimination by attempting to conceal your orientation, exactly how does that work when you are APPLYING FOR A CIVIL MARRIAGE LICENSE WITH A PARTNER OF THE SAME SEX?? As in, the whole point of these trials??

  • 37. Cherylg43  |  April 12, 2014 at 11:39 pm

    Here's a pdf copy of Doc 126, the clear, convincing eloquent brief filed by Mark Herring, and signed by Stuart Raphael.

    I would love to hear Raphael plead this case before the Supreme Court.

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  • 40. Equality On TrialREAD IT &hellip  |  August 7, 2014 at 2:30 am

    […] first brief can be found here. The second brief can be found here. The third is here. The brief filed by the Bostic plaintiffs is here. The brief filed by the Harris plaintiffs is […]

  • 41. website&hellip  |  August 17, 2014 at 7:23 am


    Equality On TrialREAD IT HERE: Third brief in Bostic v. Schaefer, the challenge to Virginia’s same-sex marriage ban in the Fourth Circuit ยป Equality On Trial

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