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Fourth Circuit Court Appears to Side with Plaintiffs at Hearing on Virginia's Gay Marriage Ban

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Some good early reports from today's Fourth Circuit hearing on Virginia's gay marriage ban, via Buzzfeed's Chris Geidner:

Two of the court’s three judges appeared ready to strike down the ban Tuesday at oral arguments in Richmond — the third federal appellate hearing on the question currently winding its way through federal and state courts throughout the nation.

Judge Paul Niemeyer was the only judge hearing the arguments who pressed heavily on the side of the state’s ban, saying that same-sex couples are creating a “brand new relationship” and that “it takes a male and female to have a child, to have a family.”

The “core of a family” is the mother-father relationship, Niemeyer told Ted Olson, who was arguing for same-sex couples fighting the 2006 marriage ban. Describing that relationship as “A” and same-sex couples’ relationships as “B,” Niemeyer said that “the state can redefine it and call it marriage,” but that wouldn’t change the fact that “these are two different relationships.”

Geidner adds:

The other judges mostly did not engage directly with Niemeyer’s argument, appearing prepared to continue the path laid out by the Supreme Court in its trilogy of “gay rights” cases in providing additional protections to gay, lesbian, and bisexual people and, in striking down the Defense of Marriage Act last year, same-sex couples’ relationships.

It's not clear when the court will rule.

Listen to the full audio of today's hearing HERE.

Read our earlier report on the case from Ari Ezra Waldman HERE.


Virginia Gay Marriage Ban Before the Fourth Circuit Court of Appeals Today: What To Watch For

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By ARI EZRA WALDMAN

Virginia's restrictive ban on same-sex marriage was struck down by District Court Judge Arenda Wright Allen in February. Today, Judge Wright Allen's decision gets an appellate hearing at the Fourth Circuit Court of Appeals, the intermediate appellate court based in Richmond that stands between the lower court and the U.S. Supreme Court.

The case, originally captioned Bostic v. Rainey, offers the appellate court a relatively "clean" same-sex marriage challenge without many of the complications that doomed the Prop 8 case to an anticlimactic end. Virginia's ban was comprehensive, banning both in-state gay marriages and recognition of out-of-state marriages between two gay people. And there is a certain poetic symmetry to bringing a federal challenge to marriage discrimination in the same state that gave us the landmark decision of Loving v. Virginia, which ended bans on interracial marriage.

A three judge panel of both Democratic and Republican appointees will consider the ban given the Supreme Court's decision in United States v. Windsor and the decision of sister courts across the country striking down all state bans on same-sex marriages. Given that context, two things are clear: First, gay marriage opponents will be arguing against the tide, and, second, the Supreme Court's decision in Windsor will be the primary reason why this court is likely to affirm the unconstitutionality of the ban.

I provide a brief preview of the major players and the arguments to come this morning,
AFTER THE JUMP...

Continue reading "Virginia Gay Marriage Ban Before the Fourth Circuit Court of Appeals Today: What To Watch For" »


Tuesday Speed Read: Virginia, Keith Crisco, Clay Aiken, Mike Huckabee, Trans Military, Sam Kiss,

BY LISA KEEN / Keen News Service

BosticAT THE FOURTH CIRCUIT THIS MORNING:

One of the fastest moving cases among the 60 or so lawsuits challenging state bans on same-sex couples marrying is the Bostic v. Schaefer case from Virginia. This morning, that case will be argued before a panel of one of the nation’s most conservative federal appeals courts, the Fourth Circuit U.S. Court of Appeals, in Richmond, Virginia. The identity of the three-judge panel is to be released this morning. The argument begins at 9:30 and Equality Virginia says it expects to have more than 100 people at a rally outside. The Fourth Circuit says an audio recording of proceedings will be available on its website by 2 this afternoon.

CriscoCLAY AIKEN CHALLENGER DIES:

Businessman Keith Crisco, who was fewer than 400 votes behind openly gay candidate Clay Aiken in the Democratic primary race for North Carolina’s Second Congressional District, died Monday. The News and Observer reported the Crisco family as saying the 71-year-old succumbed from injuries he sustained in a fall at home around midday. He reportedly planned to concede the primary to Aiken on Tuesday. Aiken issued a statement calling Crisco “a gentleman, a good and honorable man, and an extraordinary public servant.” Aiken will now face incumbent Tea Party Republican U.S. Rep. Renee Ellmers in November.

PiazzaHUCKABEE IMPLORES IMPEACHMENT:

Former Arkansas Governor Mike Huckabee called on current Governor Mike Beebe, a Democrat who opposes same-sex marriage, to call a special session of the Arkansas legislature to impeach county circuit Judge Chris Piazza. Huckabee, according to The Hill newspaper, said Piazza usurped the authority of the legislature and the voters when he declared the state’s ban on same-sex marriage to be unconstitutional. The state attorney general filed a motion with the state supreme court Monday morning, seeking a stay of Piazza’s decision; at deadline, the state high court had yet to respond. Only five out of Arkansas’ 75 counties have issued licenses to same-sex couples.

HagelHAGEL OPEN TO DOD TRANS REVIEW:

Defense Secretary Chuck Hagel said on ABC’s This Week program Sunday that he is open to having DOD review its policy banning transgender people from the military, but that it’s a “bit more complicated” than gays because of special medical needs. He made his comment in response to a question from reporter Martha Raddatz, adding “every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it.”

ThekissANALYZING THE KISS:

There was a lot of air time given Monday to talk about a widely seen video of openly gay football player Michael Sam getting the news Saturday that he had just been drafted by the St. Louis Rams and was becoming the first openly gay professional football player. The video shows Sam getting off the phone in tears and turning to his boyfriend Vito Cammisano who gives him a quick kiss on the lips and then they hug for a long time as Sam is clearly overcome with emotion. After viewing the video, a Miami Dolphins player tweeted “OMG” and “Horrible;” but his team general manager quickly released a statement, saying he was “disappointed” in the post and would “handle” the matter. MSNBC political commentator Chuck Todd had this perspective: “That could be the most significant cultural moment in hindsight. We may look back on that moment being sort of THE big moment when same-sex marriage and same-sex relationships as far as pop culture was concerned went mainstream. … That was as significant as a state legalizing, as being the first state to legalize same-sex marriage.”

© 2014 Keen News Service. All rights reserved.


4th Circuit Court of Appeals to Hear Challenge to Virginia’s Ban on Same-Sex Marriage this Tuesday

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Bostic v. Rainey – the Ted Olson and David Boies-backed challenge to Virginia’s ban on same-sex marriage is set to be heard before a three-judge panel of the 4th U.S. Circuit Court of Appeals this Tuesday.  

The AP looks at what might happen in the case before the court:

HerringA three-judge panel randomly selected from the 16-member appeals court will hear arguments from lawyers for both sides. The Richmond-based 4th Circuit, once widely considered the most conservative appeals court in the country, has become more moderate with the addition of five appointees by President Barack Obama. Lawyers typically face what they call a "hot bench," which means the judges ask a lot of questions. The court usually issues its rulings several weeks, or even months, after hearing arguments.

Last month, Virginia Attorney General Mark Herring [pictured right] filed a brief supporting the plaintiffs in the case, a move that has drawn criticism from conservatives in the state. The job of defending the law during verbal arguments is now with the legal team of Norfolk’s Circuit Court clerk George E. Schaefer III – the clerk who originally denied Timothy Bostic and Tony London their marriage license.  


Virginia School Committee Votes Unanimously To Keep 'Two Boys Kissing' On Shelves

After a public hearing following a parent’s request to remove David Levithan’s Two Boys Kissing from the Fauquier High School library in Virginia, a review committee voted unanimously to keep the book on school shelves.

Two_boysFauquier.com has more:

A large crowd upwards of fifty people gathered in the Falcon Room at FHS. About 24 people gave their opinions on the matter and about six letters were read from those who couldn’t attend the meeting, including one from the author of the book, David Levithan. The comments made at the hearing showed an even split in opinion…

FHS parent Jessica Wilson made an official complaint to remove the book from the school library on Feb. 7, because she believed that the cover of the book condoned public displays of affection, which are against school policy…

Marie Miller, a teacher at FHS and the advisor for the school publication The Falconer said… “If the focus of this book was on heterosexual teen relationships, it would not be the subject of a book challenge…

The committee included Judy Olson, a parent of an FHS student, Lauren Milburn, an administrator at Liberty High School, Emmett Bales, a teacher at FHS, Kim Ritter, a librarian at Kettle Run High School, Weiher and chaired by Fauquier County Public Library Director Marie Del Rosso.

While other parents said that the book’s repeated use of “the f-word” would make it an R-rated movie inaccessible to most high school age teens, a  LGBT-identified graduate from Fauquier’s public schools attested that books like Two Boys Kissing and The Perks of Being a Wallflower helped him feel less alone and more comfortable with his identity.

Levithan’s book (which we reviewed) was nominated for a 2013 The National Book Awards in Young People's Lit. The parent who lodged the initial complaint may still appeal the committee’s decision to the school board if she so chooses.


Virginia AG Mark Herring Joins Court Challenge to State’s Ban on Gay Marriage

Virginia Attorney General Mark Herring has filed a brief supporting Bostic v. Rainey – the Ted Olson and David Boies-backed challenge to the state’s ban on same-sex marriage that is currently awaiting further ruling in the Fourth Circuit Court of Appeals. 

The Virginian-Pilot reports:

Mark herringIn a 79-page brief filed Friday, Herring argued that the Supreme Court has consistently found marriage to be a fundamental right protected by the due process and equal protection clauses of the federal Constitution.

Herring leaned heavily on the 1967 Loving v. Virginia case, in which the Supreme Court overturned Virginia's ban on interracial marriage.

To argue that the framers of the Constitution never envisioned same-sex marriage is of no legal consequence, Herring argued. The Loving case, he said, taught that the Constitution "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."

Virginia's gay-marriage ban was enshrined in a state constitutional amendment in 2006.

"Many good and decent Virginians" undoubtedly voted for the amendment "because of sincerely held religious beliefs that homosexuality is wrong or that gay marriage conflicts with Biblical teachings," Herring argued. "But religion cannot justify state-sponsored discrimination."

 You can read the brief in full, HERE


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