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Religious Tolerance logo

Virginia: Recognition of same-sex relationships and LGBT equality

Part 3:
Bostic v. Rainey lawsuit gets a boost (Cont'd).
Opposite beliefs about marriage equality.
Attorney General's office reverses position
about marriage equality.

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"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
SSM refers to same-sex marriage

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This topic is a continuation from the previous essay

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2013-OCT-02: Bostic v. Rainey federal lawsuit receives a boost (Cont'd):

There is speculation that Bostic v. Rainey might eventually be appealed to the U.S. Supreme Court.

Sarah Warbelow is the state legislative director of the Human Rights Campaign, a pro-LGBT group. She commented on the 2013-JUN-26 rulings by the Supreme Court concerning the federal Defense of Marriage Act (DOMA) and California's Proposition 8 civil initiative:

"We had an opportunity to see where the Supreme Court was standing on the [same-sex marriage] issue, and I think attorneys are increasingly confident that the court is ready to take up the whole nine yards." 1

Olson said:

"I’m not going to get into the justices and what they each said and what Justice Scalia said. Given what was said in [the] DOMA [decision] and given the record we made in California [concerning Proposition 8] and given what we’re going to establish in Virginia, we’re going to be able to persuade a majority of the court that this is the right thing."

Mathew Staver, founder and chairperson of the conservative Christian group Liberty Counsel, has offered to defend Virginia's constitutional amendment. He said:

"We will seek to intervene on behalf of Liberty Counsel and other organizations that worked to pass the [2006] marriage amendment and seek to add an additional legal defense to whoever from the state defends this case." 2

Readers posted 144 comments to the article in the Washington Post. 1 The first was by "mitchw7959" who drew a parallel between Bostic v. Rainey and the famous Loving v. Virginia case. The latter went all the way to the U.S. Supreme Court whose Justices legalized interracial marriage throughout the United States in 1967. "Mitchw7959" wrote:

"Dragging the Old Dominion into the 21st century may be a messy and thankless job, but somebody's got to do it, and Olson and Boies have shown they can deliver. How deliciously fitting it would be for the Supreme Court to have the losing defendant in Loving [v. Virginia] once again get slapped down for not fulfilling the Constitutional guarantee of "equal treatment under law." 1

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Comparing beliefs about marriage equality by a Christian parachurch group and secular pro-LGBT group:

During 2013-AUG, the Freedom Foundation -- a coalition of conservative Christian parachurch groups -- issued an eloquent statement explaining why they oppose marriage equality. They said, in part:

"On the matter of marriage, we stand in solidarity. As a nation we have lost our moral compass. As a result, we are losing true freedom. We affirm together that there is a moral basis to a free society. Though we live in a secular society, together we reject relativism and secularism.

We affirm that marriage and family have been inscribed by the Divine Architect into the order of creation. Marriage is ontologically between one man and one woman, ordered toward the union of the spouses, open to children and formative of family. Family is the first vital cell of society; he first church, first school, first hospital, first economy, first government and first mediating institution of our social order. The future of a free and healthy society passes through marriage and the family.

Marriage as existing solely between one man and one woman was not an idea manufactured by religion or civil government. It precedes both. Though affirmed, fulfilled, and elevated by our faith, the truth that marriage can exist only between one man and one woman is not based on religion or revelation alone, but on the Natural Moral Law, written on the human heart and discernible through the exercise of reason. ..."

"We pledge to stand together to defend marriage for what it is, a bond between one man and one woman, intended for life, and open to the gift of children." 3

Their argument would make a convincing case to other conservative Christians who have the same concept of marriage. This would form a very good justification for their faith group to refuse to marry same-sex couples in their churches. However, the United States is not a Theocracy like Iran. The First Amendment to the U.S. Constitution requires a "wall of separation" between church and state. Government laws must be based on a firm constitutional foundation involving human rights and freedoms, including the right and freedom to marry. They cannot be based on concepts of deity and creation.

Also their argument makes a lot of sense to the majority of individuals who have a heterosexual orientation. But the drive to legalize same-sex marriage involves lesbians, gays, and bisexual individuals who have little or no feelings of sexual attraction towards persons of the opposite sex.

In contrast, the American Foundation for Equal Rights (AFER), a secular group, believes:

"... that marriage bans like the one in Virginia cause direct harm to gay and lesbian couples and the children they are raising, and there is no reason to deny these loving couples the equality and freedom they are guaranteed by the U.S. Constitution. The other side, by contrast, continues to rely on outdated notions of what makes a family and why marriage matters in our society." 4

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2014-JAN-23: Virginia Attorney General reverses his office's position on SSM:

Prior to the 2013-NOV elections, the former Attorney General Ken Cuccinelli II (R) strongly opposed same-sex marriage. He had promised to defend Virginia's 2006 constitutional amendment that banned such marriages. However, as a result of the election, Democrats were voted into all of the state's top offices. The new Attorney General, Mark R. Herring (D), announced his opinion that the amendment to the state constitution is clearly unconstitutional. He will be joining the lawsuit in federal court and will ask the court to strike it down. Defendant Janet Rainey, the state registrar of vital records, will also ask that the court find the amendment unconstitutional.

Robert Barns writing for the Washington Post said that Attorney General Herring's brief to the federal District Court in the Bostic v. Rainey case:

"... will say that Loving [v. Virginia] upheld the fundamental right to marriage, not the right to interracial marriage. The question at stake now, the brief states, is not a right to same-sex marriage but whether the fundamental right to marriage can be denied to loving couples based solely on their sexual orientation." 5

Herring spokesman Michael Kelly wrote:

"While Virginia has a storied place in the founding of our nation and has contributed to the development of our democracy, it has also been on the wrong side of court cases involving school desegregation, interracial marriage, and state-supported single-sex education. [Herring] will say today 'It's time for Virginia to be on the right side of the law, and the right side of history." 6

AG Herring referred to Loving v. Virginia in his speech at a press conference:

"The Supreme Court is clear: The United States Constitution is the law of the land, the supreme law of the land. I believe the freedom to marry is a fundamental right, and I intend to ensure that Virginia is on the right side of history and the right side of the law. The last time Virginia was at the center of a debate on marriage, it lost on the law and on the judgment of history."

Pat Mullins, Chairperson of the Republican Party of Virginia issued a statement saying:

"By running for the office, Mark Herring asked for the challenge of defending Virginia's constitution and all it contains. If Mark Herring doesn't want to defend this case, he should resign, and let the General Assembly appoint someone who will. Mark Herring owes the people of Virginia no less." 7

Mullins may not be aware that one of the defendants will be represented by a private lawyer paid for by the state while another is represented by the Alliance Defending Freedom, a conservative Christian group that is opposed to the freedom to marry for same-sex couples.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Robert Barnes, "Lawyers Olson and Boies want Virginia as same-sex marriage test case," Washington Post, 2013-SEP-29, at:
  2. Jeff Schapiro, "Prop 8 Attorneys Take on Virginia's Same-Sex Marriage Amendment," Christian Post, 2013-OCT-02, at:
  3. "We Stand in Solidarity to Defend Marriage and the Family and Society Founded Upon Them," Freedom Foundation, 2013-AUG-13, at:
  4. "Couples in Virginia head to federal court for marriage equality," AFER, 2014-JAN-22, at:
  5. "Virginia to fight same-sex marriage ban," Washington Post, 2014-JAN=22, at:
  6. "Va. AG: Same-sex marriage ban unconstitutional," CBS News, 2014-JAN-23, at:
  7. Paul Steinhauser & Halimah Abdullah, "Virginia attorney general: state's same-sex marriage ban unlawful," CNN, 2014-JAN-23, at:

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How you got here

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Virginia > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JAN-24
Latest update: 2014-FEB-05
Author: B.A. Robinson

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