Inside Todays Federal Hearing – Judges Challenge Opposition to Same-sex Marriage
The second step in the challenge to Virginia’s ban on same-sex marriage entered the Fourth District Federal Appeals Court today and the judges questions and comments could show a lean towards supporting marriage equality in the commonwealth.
The Honorable Roger L. Gregory, one of the three judges who heard the case, stood out as seemingly perturbed by comments diminishing the union between couples of the same-sex. When David Nimocks, lawyer for those supporting the ban, spoke about the difference between straight and homosexual child rearing, saying biological children were best raised by different sex parents, Judge Gregory repeatedly asked if parents of adopted children were any less important. Nimocks refused to answer repeatedly.
David B Oakley, the lawyer for the Norfolk County Clerk George Schaefer who denied the marriage license to Tim Bostic and Tony London, spoke first at todays hearing. To support the ban, he stressed several points, one of the most important being The precedent set by Baker V. Nelson, the 1970 case which hoped to allow same-sex marriages nationwide, but was denied a hearing by the Supreme court.
Oakley also stressed it was within the state’s power to regulate marriage, and the people of Virginia made clear their stance on the issue when they voted to enact the amendment in 2006. The issue was left up to the voters and it was a “fundamental right” according to Oakley, when VA voters chose to define marriage as between one man and one woman.
Nimocks stressed the argument before the judges was a “great debate over the essence of marriage” and the state of Virginia, its voting population, and its elected officials had the right to dictate what marriage is. He said the US constitution does not force the state of Virginia to fall in line with what other states have done, and if Virginia were to recognize a same-sex marriage from California, it would “lay waste to public policy.”
Theodore Olson, one of the lawyers for those against the ban, repeated much of what he said at the Norfolk hearing.
He stressed the current law singled out LGBTQ people as second class citizens, and being denied marriage keeps them from the thousands of benefits afforded to married straight couples. “Inheritance, parental rights, insurance benefits,” he said. “All these things are withheld because of sexual orientation.”
Stuart Raphael, the Solicitor General of Virginia, spoke on behalf of AG Mark Herring’s office. “Virginia agrees with the plaintiffs [in ending the ban]” he said before stressing the ban was unconstitutional under the 14th amendment which promises equal protection under the law.
While AG Herring said in a post-hearing press conference it’s never a good idea to take comments or questions from a judge as a sign of how they will rule, questions and comments from Judge Gregory were noticeably targeted at those who supported the ban.
Gregory said prisoners can be married, but someones sexual orientation can stop them from receiving the same privilege.
Gregory also seemed to mock the theory that marriage exists as a means for procreation. “People are baby-makers?” he asked and then called the theory “totalitarian” and said procreation is not in the constitution.
Finally Gregory asked those supporting the ban about the number of children waiting to be adopted and it was fair to deny same-sex parents the chance to take them in to a family. “Why does Virginia want to rip that away?”
A verdict from today’s hearing is expected in the next few weeks, but, as Judge Niemeyer joked in the court room, the hearing today was a “way station up route 95″ as the case is sure to be put before the Supreme Court next spring.
“We hope you will enjoy your visit to Virginia.”September 26, 2016
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