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.)