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.