Ruling could ‘change the basic concept of marriage’ in Virginia

Posted at 6:49 AM, Feb 04, 2014
and last updated 2014-02-04 19:32:56-05

 NORFOLK, Va. (WTVR) - Crowds gathered outside the Federal Court in Norfolk had no problem letting everyone know where they stand on Virginia's same-sex marriage ban.

Those who support the ban and those who oppose it carried signs and flags that expressed their views. Others chanted for the world to hear.

Crowds gathered as oral arguments got underway Tuesday morning in the case of Bostic v. Rainey. The case challenges Virginia's amendment that bans same-sex marriage.

In 2006, 57 percent of Virginians voted in favor of the Virginia Marriage Amendment that defined marriage as only between a man and a woman.

Inside the courthouse

Ted Olson and David Boies presented the plaintiffs' side.

Olson said Virginia, "erects a wall around gay and lesbian citizens." He added that marriage is a fundamental right of an individual, and not of the state, citing previous Supreme Court rulings. Boise asked what motivates the supporters of the ban other than maintaining the status quo.

Newly-elected Virginia Attorney General Mark Herring announced last month, he would reverse Virginia's stance on the issue and would not defend the amendment in court.

Virginia's Solicitor General Stuart Raphael argued Attorney General Herring's position in court on behalf of the Commonwealth.

Raphael said the case is legally indistinguishable from Loving v. Virginia, which overturned a ban on interracial marriage in 1967. He said the idea that there is "no traditional right to same sex marriage" is a major flaw.

The Office of the Attorney General will continue to enforce the same-sex marriage amendment until they are told otherwise.

Defense attorneys representing the two circuit court clerks named as defendants argued that ruling the same-sex marriage ban unconstitutional would "change the basic concept of marriage" in Virginia. They argued marriage has been between a man and a woman for hundreds of years.

Defense attorney Austin Nimocks said we have marriage laws in Virginia because marriage is all about children. He added procreative dynamics are essential to marriage.

Nimocks said "marriage is ancient because it is rational," and all things being equal, traditional marriage is what should be strived for.

The defense disagreed that there is a fundamental right to same-sex marriage because there are no concrete examples to show that it is rooted in the traditions of our country.

Following Tuesday's oral arguments, the judge told the attorneys they would "hear from her soon" about the case.

Defense attorneys estimated the decision would come in about a month.

Outside the courthouse

As expected, Tuesday's hearing attracted people from both sides of the debate to the courthouse.

“We stand with the majority of Virginians that voted to pass a constitutional amendment supporting marriage because we believe every child deserves an opportunity to have a mom and a dad,” Family Foundation spokeswoman Victoria Cobb said in a Monday night interview.

Virginia has emerged as a critical voice in the nationwide fight to legalize gay marriage. As it stands now, 18 states allow same-sex marriage.

“Since we last passed that constitution amendment, which we regret now I believe, we’ve had many people who’ve now come to understand that gay and lesbian marriage does not threaten their marriage at all. It’s just like their marriage,” First Unitarian Universalist Church of Richmond Rev. Jeanne Purpke said.

Watch CBS 6 News for updates on this developing story.