RICHMOND, Va. (WTVR) - The oral arguments in a landmark Virginia marriage case begin Tuesday morning at the Fourth Circuit Court.
The case, Bostic v. Schaefer (formerly Bostic v. Rainey) hopes to overturn the 2006 Virginia Marriage Amendment that was ratified by 57 percent of commonwealth voters.
Oral arguments will begin at 9:30 a.m. on Tuesday, heard by three randomly selected judges whose identity will be revealed the morning of the case.
The American Foundation for Equal Rights legal team is led by Ted Olson and David Boies, who took California's ban on same-sex marriage all the way to the U.S. Supreme Court, and many believe this case is headed there as well.
They will argue the District Court’s decision ruling unconstitutional all laws prohibiting gay and lesbian couples from marrying in the Commonwealth must be upheld.
The judge concluded that prejudice is behind Virginia’s same-sex marriage ban.
“Justice has often been forged from fires of indignities and prejudices suffered,” said Wright Allen.
She found that marriage is a fundamental right, protected by both the Due Process and Equal Protection clauses of the Fourteenth Amendment.
Virginia Solicitor General Stuart Raphael will argue 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 based on violation of the 14th Amendment.
Raphael said the idea that there is “no traditional right to same sex marriage” is a major flaw.
The Cato Institute, a well-known libertarian public policy think tank, argued that the current constitutional amendment conflicts with the equal rights of those same-sex couples whose unions are treated differently than those of opposite-sex couples.
“To the extent that states recognize marriage, every person has the right to choose whom to marry and to have that decision respected equally by the state in which they live,” wrote Elizabeth Wydra and Ilya Shapiro in their briefing.
The lawsuit was filed in July, on behalf of two couples. Tim Bostic and Tony London are the Norfolk couple together 20 years who were denied a marriage license in 2013.
The other two plaintiffs are women from Chesterfield County–Mary Townley and Carol Schall–who married in California and have a teenage daughter.
Norfolk Circuit Court Clerk George Schaefer is actually named as a defendant in the case, since his office denied Bostic and London their marriage license.
The Alliance Defending Freedom will represent Prince William County Clerk of Court Michéle B. McQuigg, who issues marriage licenses and who intervened in defense of Virginia’s marriage laws.
Defense attorneys previously 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 there are marriage laws in Virginia because marriage is all about children. He added that procreative dynamics are essential to marriage.
Nimocks said “marriage is ancient because it is rational,” and all things being equal, toward traditional marriage we should strive.
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.
Many Virginians convened outside the courthouse in Richmond on Tuesday to express their stance on the issue.
“Virginians have had enough: there is absolutely no reason for Virginia to continue denying lesbian and gay couples the freedom to marry the person they love here at home," said James Parrish, executive director of Equality Virginia, the group charged with organizing the marriage equality rally.
Earlier this month a report by the Williams Institute at the UCLA School of Law showed that if Virginia allowed its gay and lesbian couples to marry, the economic boost would be likely to add $2.5 million to $3.2 million tax dollars to state and local coffers.