Virginia Attorney General Mark Herring
filed a brief Friday asking the Fourth Circuit Court of Appeals in
Richmond to affirm a lower court's decision declaring Virginia's ban
on gay marriage invalid.
A three-judge panel will hear arguments
in the case next month.
Herring called on the judges to uphold
U.S. District Judge Arenda Wright Allen's decision handed down in
February.
“This Court should affirm the
district court's decision because it correctly held that Virginia's
ban on same-sex marriage could not satisfy rational-basis review, let
alone heightened or strict scrutiny,” Herring wrote in his 79-page
brief.
He also urged the court to stay its
decision.
“The trial court was correct to stay
its injunction pending appeal, and this Court should likewise stay
the mandate pending review by the Supreme Court,” the document
states.
The state's ban is being defended by
court clerks in Norfolk and Prince William County, who argued in a
brief that “if the definition of marriage is no longer based on
procreation and the ability to procreate naturally, then what is the
purpose of prohibiting marriage between persons of close kinship.”
Herring responded: “The Clerks and
many of their amici resort to slippery-slope arguments, warning that,
if States cannot ban same-sex marriage, they will have to allow
plural marriage, marriage between siblings, and marriage to young
children. … Even assuming someone could rationally explain how
permitting an interracial or same-sex couple to marry will force the
State to permit three or more people to marry, the Supreme Court
upheld the constitutionality of laws barring polygamy in Reynolds
v. United States.”
(Document provided by Equality
Case Files.)