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Religious Tolerance logo

Virginia: Recognition of same-sex relationships and LGBT equality

Part 7: 2014-APR: Bostic v. Rainey case
appealed to the 4th U.S. Circuit Court of Appeals.
Harris v.
Rainey plaintiffs involved in appeal.
Briefs by Attorney General & plaintiffs' attorneys.

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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 Bostic v. Rainey has been appealed to the Fourth U.S. Circuit Court of Appeals.

Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia issued her ruling on 2014-FEB-13. As with so many recent legal cases in federal courts involving equality for the LGBT community, she ruled in favor of marriage equality.

As everyone expected, the ruling was stayed so that no Virginia same-sex couples would actually be able to marry. Also, her decision was quickly appealed to the 4th U.S. Circuit Court of Appeals.

Oral arguments in the appeal will be heard on 2014-MAY-13 by a panel of three judges who have been randomly selected from this Court. Whatever the decision of this panel, it will probably be appealed later to the full court, and perhaps eventually to the U.S. Supreme Court.

The current record of unanimous rulings by 32 judges and 18 courts described above might possibly come to a crashing halt here in Virginia.

However, the court that may ultimately decide the issue of marriage for same-sex couples in all 50 states is the U.S. Supreme Court. The Supreme Court Justices have had a past history of frequently dividing 5 to 4 in their opinions on LGBT ethical, marriage, and religious matters. Often the four conservative Justices vote against equal rights, the four liberals vote in favor of equal rights, and Justice Kennedy provides the swing vote.

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2014-APR-11: Harris v. Rainey lawsuit stayed:

The Harris v. McDonnell lawsuit. now renamed Harris v. Rainey, has been before the U.S. District Court for the Western District of Virginia. That case has been stayed, because of the progress made by the Bostic v. Rainey case before the U.S. District Court for the Eastern District of Virginia. The two cases are very similar -- almost identical. However Harris was still at the pre-trial stage while Bostic had advanced much further.

Arthur S. Leonard, a professor at New York Law School writes a very informative blog "Art. Leonard Observations" which partly concentrates on human sexuality and the law. On APR-08, he wrote that the The American Civil Liberties Union and Lambda Legal who were supporting the Harris v. Rainey plaintiffs decided on an unusual move. They asked the 4th Circuit for permission:

"... to be allowed to participate in the appeal on behalf of their plaintiff class. ... The 4th Circuit granted the motion on March 10. This left the judge in Harris v. Rainey, Michael F. Urbanski, in a rather odd position. He was facing a summary judgment motion from the plaintiffs, but nobody was actually opposing the motion, since all defendants in the case had dropped any support for the marriage ban. (The local clerk in this case, Thomas E. Roberts of the Staunton Circuit Court, officially takes no position on the constitutionality of the ban.) And, of course, whatever the 4th Circuit decides will be binding on Judge Urbanski, so it made little sense for him to issue a decision on the pending motion before that happened. He took the prudent step of issuing an opinion on March 31, see 2014 Westlaw 1292803, announcing that he would 'stay this case' pending the 4th Circuit’s decision. Of course, if the 4th Circuit rules against marriage equality in Bostic, the plaintiffs will either apply for en banc rehearing or petition the Supreme Court for certiorari. But they may not be the first to get there, depending what happens in the 10th Circuit." 1

Markus Schmidt, of the Times Dispatch, wrote:

"Judge Michael Urbanski, [the judge hearing the Harris v. Rainey case ] said the plaintiffs have been permitted to intervene on appeal in Bostic v. Rainey, which is now set for oral argument in the 4th U.S. Circuit Court of Appeals in Richmond on May 13 after a federal judge in Norfolk had ruled Virginia’s marriage amendment unconstitutional.

'Because of this seismic procedural development, the constitutional issue in this case is now in the hands of the Fourth Circuit Court of Appeals,' Urbanski wrote. 'As the Fourth Circuit’s impending decision is binding, the court will stay this case pending that decision.'

The American Civil Liberties Union of Virginia filed the Harrisonburg suit on behalf of Joanne Harris and Jessica Duff of Staunton [VA], and Christy Berghoff and Victoria Kidd of Winchester [VA]. The case, which was certified class-action status in January, was the second challenge to Virginia’s same-sex marriage ban, following the Bostic case." 2

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2014-APR-11: Attorney General Herring and plaintiffs' attorneys file separate briefs with Court of Appeals:

Herring's brief supports Judge Allen's ruling in Bostic. She had cited the U.S. Supreme Court's Loving v. Virginia decision in 1967 as a basis for legalizing SSMs in Virginia in 2014. The U.S. Supreme Court's ruling in Loving declared over a dozen states' interracial marriage bans to be unconstitutional and unenforceable. Herring concluded that the equal protection clause in the 14th Amendment of the U.S. Constitution -- which is the basis of the claims made by plaintiffs in both Loving and Bostic -- guards the fundamental right to marry and trumps the states' authority to decide otherwise.

Larry O'Dell, writing for the Star Tribune in Minneapolis, MN said:

"Lawyers for two circuit court clerks defending the ban have said in court papers that same-sex marriage is not a fundamental right because it was never contemplated by the framers of the equal protection clause, but Herring said that argument is unpersuasive. 3

AG Herring wrote in his brief:

"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"

O'Dell continues:

"Herring also urged the court to dismiss claims that legalization of gay marriage would open the door to polygamy and unions between close relatives.

"The clerk's slippery-slope arguments are the same ones used to oppose interracial marriage in 1967; they are no more persuasive today than then," ...[Herring] wrote."

"One of the clerks has argued in court papers that Virginia's laws encourage procreation and stable families with children raised by both mothers and fathers, which are legitimate government interests. Herring called that argument irrational and 'outright demeaning' not only to gay couples, but also to straight couples who are infertile or elderly or simply do not want to have children." 3

The plaintiffs' attorneys also submitted a brief. They agreed that Virginia's same-sex marriage ban also violates the U.S. Constitution's 14th Amendment. They wrote:

"Virginia's Marriage Prohibition is antithetical to the Nation's most elemental principles of equality. It creates a permanent 'underclass' of gay and lesbian Virginians who are denied the fundamental right to marry available to all other Virginians simply because their relationships are deemed inferior, morally flawed, or religiously unacceptable." 3

By "religiously unacceptable" they presumably are referring only to conservative faith groups. Liberal/progressive and some mainline faith groups actually promote access to marriage by same-sex couples, as do followers of other religions and the NOTAs -- those who are NOT Affiliated with any religion.

[Media outlets use "NONES" in place of "NOTAS. However the two words are homonyms. They are spelled differently but sound the same. This causes confusion on radio and TV, between "NONES" and "NUNS." It is particularly awkward in this situation because both words have a religious meaning.

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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. Prof. Arthur Leonard, "Marriage equality case developments come hot and heavy," ART Leonard Observations. 2014-APR-08, at:
  2. Markus Schmidt, "Federal judge stays ruling in gay marriage case," Times Dispatch, 2014-APR-11, at:
  3. Larry O'Dell, "Virginia attorney general to appeals court: Like interracial couples, gays have right to marry," Star Tribune, 2014-APR-11, 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-FEB
Latest update: 2014-APR-22
Author: B.A. Robinson

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