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Religious Tolerance logo

Virginia: Recognition of same-sex relationships and LGBT equality

Part 5: 2013-FEB:
Oral arguments heard in Bostic v. Rainey case.
Judge Arenda L. Wright Allen issues ruling.
Reactions to the ruling.

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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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LGBT symbol 2014-FEB-04: Bostic v. Rainey lawsuit also proceeds:

About two hours of oral arguments were heard by federal District Judge Arenda L. Wright Allen in District Court in Norfolk, VA, on 2014-FEB-04. 1,2 Stuart A. Raphael, the Solicitor General of Virginia compared the state constitutional amendment that bans same-sex marriages with:

  • Virginia's laws during the early 20th century regarding racial segregation.

  • The state's earlier ban on interracial marriage. This was challenged in the famous case Loving v. Virginia. In 1967, the U.S. Supreme Court ruled that the ban violated the 14th Amendment of the U.S. Constitution and was thus unconstitutional, void and unenforceable.

  • The more recent ban on admitting women to the Virginia Military Institute (VMI) . In 1996, the U.S. Supreme Court ruled that the ban also violated the 14th Amendment of the U.S. Constitution and was thus unconstitutional.

Raphael told Judge Allen:

"We are not going to make the mistakes our predecessors made."

The basic question for Judge Allen to answer is whether loving, committed same-sex couples can be prohibited from marrying simply because of their sexual orientation without violating the equal protection and due process clauses of the 14th Amendment of the U.S. Constitution. Those clauses require governments to treat people -- and thus couples -- equally. For the ban to withstand a constitutional challenge, a very convincing reason must be found for the state to declare all lesbians, all gays, and some bisexuals to be unworthy of marriage.

Lawyers representing the county clerks for Norfolk and Prince William County are defending the same-sex marriage (SSM) ban. One is Austin R. Nimocks, senior counsel for the conservative legal group Alliance Defending Freedom. He represents Clerk Michele McQuigg of Prince William County. He claimed that it was acceptable to restrict marriage to one woman and one man because of the unique "procreative dynamic" shared by heterosexual couples. He said:

"We have marriage laws in society because we have children, not because we have adults."

His argument might have been more effective if the State of Virginia restricted marriage licenses in the past only to those heterosexual couples who planned to have children and who had proven their fertility. After all, for an infertile opposite-sex couple to have a child, they must resort to adoption or to some form of assisted procreation -- just like a same-sex couple.

The opposite-sex couples who are routinely married in Virginia can be divided into two groups: the vast majority who are fertile, and a minority -- on the order of 15% -- who are infertile. The former can procreate through their own efforts if they choose to. The latter cannot no matter how hard they try, unless they first receive help from a assisted reproduction clinic or from a surrogate. The same-sex couples who wish to become married are similar to the infertile opposite-sex group. They need medical help in order to have a child, either through artificial insemination or in vitro vertilization. or the assistance of a surrogate. It could be argued that since the state has traditionally allowed opposite-sex infertile couples to marry, they should allow same-sex infertile couples to marry.

Lawyers Theodore Olson and David Boies, arguing for the plaintiff same-sex couples, said that courts must nullify state constitutional amendments and statutes when discrimination is involved.

  • Olsen, referring to the institution of marriage said:

    "Virginia erects a wall around its gay and lesbian citizens, excluding them from the most important relation in life."

He described marriage as a fundamental right that is about "freedom" and "liberty." He also cautioned Judge Allen that she should be suspicious of decisions made by voters during a plebiscite that prohibit groups from having equal rights today when those groups have suffered extensive discrimination in the past. He said that the resultant prohibition can violate the U.S. Constitution because:

    "Sometimes the voters and the legislature get it wrong."

  • Boies said that when Virginia does not allow a same-sex couple to marry, their children are harmed because the state denies recognition and legitimacy to their parents' relationship. The adults are treated as legal strangers -- as roommates.

The decision facing Judge Allen is essentially identical to that faced by two federal District Court judges in Utah and Oklahoma during the previous two months. Both of the latter judges ruled that their states' bans on same-sex marriages violated the 14th Amendment of the U.S. Constitution. 2 She promised that she would issue her ruling shortly. 3

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2014-FEB-13: U.S. District Judge Arenda Wright Allen issued ruling in Bostic v. Rainey case:

Nine days after the oral hearings, Judge Allen issued a 41 page document, ruling that Virginia's ban on same-sex marriage is unconstitutional.

Judge Allen issued an immediate stay of her ruling pending its almost inevitable appeal to the Fourth U.S. Circuit Court of Appeals.

Her decision was based on the conflict between Virginia's restrictive marriage laws and the equal protection and due process clauses of the 14th Amendment of the U.S. Constitution.

She wrote:

"The court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family." 4

She also wrote in her ruling that Virginia's laws were undoubtedly:

"... rooted in principles embodied by men of Christian faith. However, although marriage laws in Virginia are endowed with this faith-enriched heritage, the laws have nevertheless evolved into a civil and secular institution sanctioned by the Commonwealth of Virginia, with protections and benefits extended to portions of Virginia’s citizens." 5

After quoting a speech by Abraham Lincoln that men ask for "fairness and fairness only," Judge Allen wrote:

"The men and women, and the children too, whose voices join in noble harmony with plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this court’s power, they and all others shall have." 5

She rejected all of the arguments presented during the court hearings in favor of the SSM ban, writing:

"Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve, and celebrate loving, intimate and lasting relationships, Such relationships are created through the exercise of sacred, personal choices -- choices, like the choices made by every other citizen, that must be free from unwarranted government interference." 6

She also said that same-sex couples:

"... suffer humiliation and discriminatory treatment on the basis of their sexual orientation. This stigmatic harm flows directly from current state law." 4

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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. Tony Perkins, "Cheerios tweet exposes left's cereal hypocrisy," Family Research Council, 2014-JAN-31, at:
  2. Robert Barnes, "Federal judge pledges quick ruling on Virginia’s same-sex marriage ban," Washington Post, 2014-FEB-04, at:
  3. Robert Barnes, "Federal judge pledges quick ruling on Virginia’s same-sex marriage ban," Washington Post, 2014-FEB-04, at:
  4. Brock Vergakis, "Judge: Va. Same-Sex Marriage Ban Unconstitutional," ABC News, 2014-FEB-14, at:
  5. Robert Barnes & David A. Fahrenthold, "Who’s the judge who ruled on Va.’s ban on gay marriage? A seeker of ‘more perfect’ freedom," Washington Post, 2014-FEB-14, at:
  6. "Federal judge strikes down Va. ban on gay marriage." Washington Post, 2014-FEB-13, 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-APR-12
Author: B.A. Robinson

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