Over the last decade, opponents of marriage equality have used a variety of anti equality talking points full of fear and discrimination when arguing the need to preserve “traditional marriage.” It appears that the lawyers defending Virginia’s same-sex marriage ban have chosen to continue this strategy as the concept of tradition and the use of fear of the unknown has crept its way into the legal brief filed with the 4th U.S Court of Appeals in the case of Bostic v Rainey.
In February U.S District Judge Arenda Writght declared that Virginia’s same-sex marriage ban was a violation of the equal protection clause of the United States Constitution.
In the legal brief filed on Friday March 28, lawyer Davis Oakley, stated that the court “correctly found marriage is a fundamental right,” but added that “the trial court overstepped its authority in declaring this fundamental right extended so far as to override the state’s authority to regulate the definition of marriage.”
Moving forward with the case, the lawyers in support for the same-sex marriage ban are relying on the concept of tradition rather than focusing on any substantial evidence that proves that any harm is endured by society by the allowance of marriage equality within a state.
“States have the right to define marriage, and if they choose to allow same-sex marriage or other non-traditional marriage, they are free to do so,” Oakley stated. “However, the states cannot be compelled to alter the idea of marriage to include same-sex couples.”
Oakley also brought up the concerns that if the state is permitted to allow same-sex couples the right to marry that the courts would be opening the pathway for lawsuits by other excluded groups who wish to marry.
“If the definition is of marriage is reduced down in this way and federalized, state legislatures would have to consider whether other restrictions on marriage remain constitutional. Those persons issuing marriage licenses, such as Clerk Schaefer, would face exposure to additional lawsuits from other persons denied the right of marriage by statutes. 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 own property as tenants by the entireties, file joint tax returns, qualify for health benefits, and obtain better insurance rates?” wrote Oakley.
The use of fear and fraud were once a powerful tool in the fight against LGBTQ equality but as the majority of society begin to favor LGBTQ rights, it is unclear as to how beneficial this tactic will be as Virginia continues to battle its marriage equality case. A stay is currently in place while the appeal is pending and a three-judge panel of the appeals court will hear oral arguments in the case on May 13.