Virginia Lawyer Argues That Same-Sex Marriage Will Lead To Marriage Between Two Brothers

On Friday, the lawyer defending Virginia's ban on same-sex marriage filed the first in what is expected to be a series of briefs arguing against District Judge Arenda Wright Allen's recent ruling declaring the state's prohibition on same-sex marriage unconstitutional. The attorney, David B. Oakley, also claims that implementing marriage equality in Virginia will lead to unions "between persons of close kinship."

An article from The Virginian-Pilot includes an excerpt of the brief:


"For example, if the definition of marriage is no longer based on procreation or the ability to procreate naturally, then what is the purpose in prohibiting marriage between persons of close kinship? Would it then be unconstitutional for two brothers who are confirmed bachelors and live together to marry so that they could reown property as tenants by the entireties, file joint tax returns, qualify for health benefits, and obtain better insurance rates?"

According to the AP, Oakley's brief also criticizes Allen's reference in her ruling to a previous landmark case:

He also said Allen missed the mark in citing Loving v. Virginia, the Supreme Court case that struck down the state's interracial marriage ban, as a basis for invalidating Virginia's statutes and constitutional amendment prohibiting same-sex marriage.

"Unlike infringing on the right to marry based on invidious racial laws, the decision to restrict marriage to couples of the opposite sex is not based on any suspect or irrational classifications," Oakley wrote. Allen put her decision on hold while it is appealed, which means gay couples in Virginia remain unable to marry until the case is ultimately resolved.

A three-judge panel of the appeals court will hear oral arguments in May.


  1. Brothers' Keepers, Losers Weepers says

    I’m pretty sure that secretly all conservative Republican evangelical fundamentalists want to be able to screw their younger brothers.

  2. Tigernan says

    My god they are obsessed with where people stick their dicks. They’ve now rattled off every inanimate object, animal, and blood relation. Are they done yet? Gross.

  3. Tigernan says

    My god they are obsessed with where people stick their dicks. They’ve now rattled off every inanimate object, animal, and blood relation. Are they done yet? Gross.

  4. Lymis says

    Of course, since the definition of marriage has NEVER been “based on procreation or the ability to procreate naturally,” he should be able to answer that question now. What’s keeping people from marrying their siblings now?

    Why, the law that says they can’t. If there’s no valid reason for it, it should be reviewed. If there is a valid reason for it, it should stand alone, not on the shoulders of unrelated gay people who wish to marry.

  5. says

    yes, just like legalizing interracial marriage will lead to interracial siblings marrying each other… and legalizing traditional marriage will lead to traditional siblings marrying each other.

  6. thom says

    …well,well,well….this lawyer is practicing in the right state…where it is still legal to marry a cousin. (correct me if I am wrong there)..but the point is these people are literally OBSESSED with “abnormal sex” aren’t they? And why is that?… do they understand all too well what goes on in some families there? Sure they do. Molestation of family members, mostly female, is very popular.,,and widespread. They don’t won’t any focus of THAT issue that’s for sure…so they go after us “homos” thinking that we want to marry our brothers…it is clear they are
    mentally unbalanced themselves. Shame on them.Trolls

  7. says

    ……they’re saying that two heterosexual brothers will totally have no qualms in risking public shame by….marrying each other? just for some fiscal/property benefits?

    i kinda love how all the “arguments” against allowing gay couples to marry literally make no sense at all.

    what’s UP with Virginia? whatshisface wants to criminalize oral sex (no doubt so he can give his wife an excuse for never going down on her….) and then this leap from procreation to the bogus non-argument that family members are going to marry?

    it ain’t about procreation – if it were then fertility tests would be mandatory before any and all marriage licenses are granted. DUH.

  8. Tigernan says

    With all of the go-to icky fantasies that Republicans are able to whip up in two seconds, I have to conclude that there is something very wrong going on in many conservative households across the country.

  9. Onnyjay says

    Sounds to me like Brother Oakley is trying to lose the case and then appeal based on incompetent representation: If brothers or sisters want to marry, so what? There’s certainly no risk of giving birth to 2-headed children.

  10. JackFknTwist says

    Where’s the evidence for this assertion ?

    Or is this assertion of ‘brothers wanting to marry’ the same as the assertion of the Limbo concept, the Original Sin Concept,the Immaculate Conception, the Nine Choirs of Angels, Trans substantiation, and all the other amateur dramatics which the right wingers invent to keep people from their rights ?
    Where is the evidence ?
    Ignorant bald assertions of waffle don’t count in law, Mr. Lawyer.

    This guy/lawyer tosses off a bit of jargon and thinks we will all run scared.I believe we have far more high powered advocates/lawyers in out tribe……so bring it on.

  11. Rolf says

    Ample evidence of this NOT HAPPENING is readily available in Canada and other countries that have had SSM for years. There is more evidence for UFO abduction pregnancies than this scare tactic idiocy.

  12. distinguetraces says

    Well, why should romantic partnerships have a particular tax status reserved for them?

    Find true love: pay less taxes. Why?

    Orientation aside, why is that even a thing?

  13. Bernie says

    if this is the best Mr. Oakley can do, HE in trouble…….his idiotic defense of two relatives marrying is not only stupid, irrational, illogical, but is against the law in some states and in marrying relatives of the opposite sex, against medical advice…….so, I guess his stupidity is good for us………hope the judge doesn’t laugh too loud at him

  14. says

    Minor hurdles, every single one of his arguments will be shot down. It’s a waste of time and taxpayer money, but let them go through the motions if they must.

    The final ruling will still be Marriage Equality Wins because it’s constitutional.

  15. Burt says

    Oh sweet Jesus! Marrying one’s brother! Oh, no no no no no! What next??

    Oh, wait! What does it really matter, other than pushing the envelope? It’s not as if they’re going to spawn offspring that look like Flipper.. why should the State care, other than they have a history of caring about things they shouldn’t..

  16. Bill says

    @Ninong: not sure which part of the rural south but marriages between closely related people used to be more common that one would expect in some places. First cousin marriages are legal in more states than you would think, but being legal doesn’t mean that many people do it.

  17. D E Sandberg says

    So here’s the big problem with the ‘it will lead to two brothers marrying’ argument.

    A tiny percentage of heterosexual marriages, throughout history, even today, have been between siblings – brother/sister. In our time, it happens most frequently as the inadvertent result of closed adoptions – children adopted out as infants who meet later as adults, fall in love, and marry, or almost marry, and then discover they are siblings.

    By the reasoning that this lawyer has provided, society must now ban all future heterosexual marriages, and dissolve all existing ones, on the off chance that some of those marriages might be incestuous or might inspire an incestuous marriage in the future.

  18. Gay Guy says

    If marriage is really based on “the ability to procreate,” then they should require fertility tests prior to marriage. Also, if that’s true, no woman over 50 ought to be allowed to marry.

  19. says

    This makes soooo much sense. All the inbred idiots that want to marry their mothers or uncles were just waiting until homosexuals could marry before they made their move. Of course, they were also supposed to do that after interracial couples were allowed to marry, but I guess they decided to hold off on that due to cold feet or something.

  20. Bill says

    I’ll make an offer to Mr. Oakley. If “two brother” marriages become “the civil rights issue of our time,” then I’ll consider some sexual activity with Mr. Oakley (he might have to spend 3 months working out first, though).

  21. says

    You know the irony of all this is that when we first got Civil Unions in Vermont the straight people were terribly upset that they weren’t going to get them so they demanded access for… wait for it…

    maiden aunts — two sisters who lived together, for example.

    So it was something DEMANDED by the straight lobbyists, because they couldn’t imagine some status they couldn’t have.

    So the legislature spent hours crafting something called “Reciprocal Beneficiaries” to accommodate these people, the many maiden aunts or elderly bachelor brothers that needed them.

    How many people have applied for this status since it was created in 2001?


  22. Randy says

    1. Frankly, I don’t care if it does.

    2. Marriage was never based on procreation, in the US and Virginia, even with the marriage ban. Nobody banned gay marriage because we don’t produce enough kids.

    3. There are many restrictions that we aren’t disputing (consanguinity, age, already married, etc.) This argument is about the restriction to male-female couples. The public and legislature are not going to legalize sibling marriage, so if it happens it will be a court, and it will be because someone like this lawyer doesn’t know how to argue a case. But, hey, I guess if you’re brothers-lovers in Virginia, it’s time to get your case ready, because they’re weak.

  23. TKinSC says

    LOL the only intellectually honest responses here are those of the form “Why not allow brothers to marry?”

    The rest of you are either being deliberately dense or actually are dense. In case it’s the latter, let me try to spell it out for you:

    The law now bans both gay marriage and sibling marriage, because marriage, being primarily about children, is meant neither for those couples who *by definition can’t* have kids because they are of the same sex, nor for those who *shouldn’t* have them because they are related.

    If we allow gay marriage, we thereby proclaim that marriage is primarily about those who enter into it, and is really no longer about children. If we adopt that position, bans on sibling marriage are no longer justifiable.

    The fact that some couples can marry even though they don’t want to or can’t have children doesn’t “put the lie” to the stated purpose. Those who don’t want to might change their mind, and the state isn’t required to force those who can to undergo invasive testing to prove it. (Not to mention that those couples who can’t have children can still provide a proper mother-father home environment through adoption.)

  24. Bill says

    @ KevinVT: it can be even worse than that. Some years ago there was an initiative on the California ballot to protect horses from being turned into horsemeat (a fate that only a tiny fraction of horses actually suffered).

    You can read about it at
    with both the arguments for and against, but the text of the initiative link is broken. It passed, primarily because people like horses and didn’t know that the initiative was solving a non problem.
    has the League of Women Voters analysis.

    The unanswered question: how could anyone write an analysis of this initiative while drinking a cup of coffee and not end up spitting it out due to laughing too hard.

  25. Bill says

    Just tell David Oakley that, if he’d just STFU and let people alone, the “gay community” would be more than happy to leave Caleb and Jethro in charge of any effort to extend same-sex marriage to same-sex siblings. The revenuers can put a dent in Caleb’s and Jethro’s fund raising by confiscating their moonshine.

    Meanwhile, with Oakley out of the way, all the gays in Virginia can go back to their stereotyped vapid selves and take off in late April for the White Party in Palm Springs, thereby giving Virginia homophobes a few days of a gay free existence. Laudate Iesum Christum (oops – forgot – Caleb and Jethro can barely manage English, much less Latin).

  26. Alan says


    There’s no requirement for anyone getting a marriage to take a fertility test or say they will have or adopt children. Secular marriage today has nothing to do with children, period. Honestly, why not let brothers get married? As long as they’re consenting adults I see no problem with it.

  27. Alan says


    There’s no requirement for anyone getting a marriage to take a fertility test or say they will have or adopt children. Secular marriage today has nothing to do with children, period. Honestly, why not let brothers get married? As long as they’re consenting adults I see no problem with it.

  28. ThomT says

    His logic escapes me. Same sex marriage has as much chance of leading to two brothers marrying each other as opposite gender marriage has of leading to a brother marrying his sister. Judges don’t like it when lawyers assume that they are stupid and putting forth such a ridiculous argument as this fails to show any respect for the judicial system and that does not make for a happy judge. Politicians and lawyers opposing marriage equality are getting more and more desperate as their chances of winning the battle become fewer and fewer by the day.

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