NORFOLK, Va. (WAVY/AP) – An attorney representing court clerks in Norfolk and Prince William County says the judge who struck down the ban on same-sex marriage overstepped her authority.
Court papers filed Friday in Richmond say U.S. District Judge Arenda Wright Allen used authority the U.S. Supreme Court reserved for states.
Lawyers for the same-sex couples who filed the lawsuit may respond in April.
A three judge panel with the fourth circuit court of appeals will hear the case in May.
Attorney David B. Oakley wrote that under a Supreme Court precedent, “state laws respecting same-sex marriage are protected from federal intrusion.” Some lower courts have adhered to that while others have improperly taken it upon themselves to decide that standards have changed, he said in the brief.
“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,” he wrote. “However, the states cannot be compelled to alter the idea of marriage to include same-sex couples.”
He said clerks could be faced with lawsuits from other people who are prohibited to marry.
“For example, if the definition of marriage is no longer based on procreation and the ability to procreate naturally, then what is the purpose in prohibiting marriage between persons of close kinship,” Oakley wrote.
He also said Allen missed the mark in citing Loving v. Virginia, the Supreme Court case that struck down the state’s interracial marriage ban, as a basis for invalidating Virginia’s statutes and constitutional amendment prohibiting same-sex marriage.
“Unlike infringing on the right to marry based on invidious racial laws, the decision to restrict marriage to couples of the opposite sex is not based on any suspect or irrational classifications,” Oakley wrote.
Allen put her decision on hold while it is appealed, which means gay couples in Virginia remain unable to marry until the case is ultimately resolved.
The plaintiffs are Timothy Bostic and Tony London of Norfolk, who were denied a marriage license by Norfolk Circuit Court Clerk George E. Schaefer III’s office, and Carol Schall and Mary Townley of Chesterfield County, whose 2008 marriage in California is not recognized in Virginia.
Prince William County Circuit Court Clerk Michele McQuigg intervened as a defendant because the outcome affects clerks throughout the state.
Virginia Attorney General Mark Herring is not defending the gay marriage ban, which he says is unconstitutional.
At least 17 states and the District of Columbia have state laws or court decisions that allow same-sex couples to marry.