Could Same-sex Marriage be Legal in Virginia By the End of This Week?
District Judge Arenda L. Wright Allen
It’s not easy, well parts of it is – bans on same-sex marriage have been on the chopping block around the country since DOMA got struck down last summer.
AG Mark Herring’s refusal to defend the ban last week was certainly a help in the fight towards equality. But with the first challenge to Virginia’s ban on same-sex marriage scheduled for this Thursday, LGBT Virginians could join the recognition crowd sooner than many think.
The details on this case are varied and numerous. Here’s the best breakdown we could provide:
Thursday’s case is Bostic v. Rainey. The actual people defending the case are George E. Schaefer, III, Clerk of the Norfolk Circuit Court, and Michele B. McQuigg, Clerk of the Prince William County Clerk of Circuit Court. McQuigg is a third-party who intervened with permission of the U.S. District Court to permit a third-party to come in and defend the Virginia same-sex marriage ban. McQuigg is represented by the grossly misnamed Alliance Defending Freedom,(ADF), formerly the Alliance Defense Fund, an ultra-far right Christofascist organization, which has unsuccessfully sought to defend same-sex marriage bans in other states.
Previously, District Judge Arenda L. Wright Allen, an Obama appointee who will be proceeding over the case, allowed the entry of McQuigg’s third-party defense team, but said they could not ask for any delays in the hearing process. McQuigg and ADF nevertheless asked for a delay in the hearing set for Thursday, January 30, 2014, which was denied – Judge Wright Allen essentially “bitch slapped” McQuigg’s counsel down for this request, saying the third-party defense was only allowed to enter the case under the specific agreement that no delay could be requested.
After denying the hearing delay, Judge Wright Allen asked to take all the briefs under advisement, which tends to suggest she’ll read it all and make a judgment and rule, possibly not on January 30th, but at some point soon after.
Because Federal judges have staff and can spend more time looking at documents, she may not need to hear any oral arguments which could mean no oral argument, i.e., no court date this Thursday. But to date, no Order has been entered indicating that the hearing will not proceed as scheduled.
But, it’s possible, after the hearing Thursday, Judge Wright Allen might make an order, for example, “grant the plaintiffs order for summary judgment,” i.e., Timothy Bostic and the other plaintiffs, and, if so, the LGBTQ community win and the ban on same-sex marriage in Virginia would end unless Judge Wright Allen’s ruling were appealed and a stay entered.
More likely, because Judge Wright Allen will not have a lengthy opinion written pre-prepared, no definitive answer may be available after Thursday. Even if, Judge Wright Allen does indicate how she intends to rule, the opinion likely will not be released until a later date.
When a Court says it is going to take a matter under advisement, you may not know how it will rule until they release the opinion – this is what happened in Utah and Oklahoma. People out west had no idea what the judges would do until they released these lengthy opinions and struck down the state’s bans on same-sex marriage.
But the arguments supporting the bans are the same across the country – same-sex marriage harms the traditional family unit, children raised by LGBTQs are not healthy, and other insane and inaccurate statements. If Judge Wright wants a blue print on how to draft her opinion, she’s got blue-prints from Utah and Oklahoma. If she has decided she is going to strike down Virginia’s same-sex marriage ban, she has two well written opinions on how to do it.
The other element in play here is the 9th Circuit Court of Appeals ruling, the case finalized last week which suggests ant-gay measures are subjected to so-called heightened scrutiny. This in effect shifts the burden to the state to show they have a reasonable, rational reason to block same-sex marriage other than just being anti-gay. AG Herring mentioned this recent ruling in his brief which he filed in support of lifting the ban last week.
If she wants to use the briefs filed by the plaintiffs and the AG’s office and throw in the Utah and Oklahoma rulings and the 9th Circuit ruling for good measure, Judge Wright Allen has all the ingredients needed to strike down Virginia’s same-sex marriage ban.
So on Thursday, Judge Allen could say “the Court is going to strike Virginia’s ban down.” She could issue this as an order and it could, technically, take effect the same day. In all likelihood, if she’s going strike Virginia’s ban down, Judge Wright Allen will prepare a lengthy, well written opinion because she knows her ruling will get appealed. It’s going to get scrutinized by everybody, so the opinion will need to be thorough and it might take some time to draft. We may not get a ruling or order until then.
But Thursday could be the day, we’ll have to wait and see.
Editors Note: It wont happen this week, court was canceled because of snow.
Michael Hamar is an out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others. Follow him at Michael In Norfolk.
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