Virginia AG Herring, Attorneys Boies, Olson Optimistic After Today’s Same Sex Ban Challenge

February 4, 2014 2:20 PM32 comments
Virginia Attorney General Mark Herring.

Virginia Attorney General Mark Herring.

After a two-hour hearing in the federal Eastern District of Virginia this morning, key legal figures standing on the side of overturning Virginia’s ban on same-sex marriage emerged and in a telephone conference call with reporters expressed optimism that their case was strongly made before Judge Arenda L. Wright Allen, noting that the judge said that her ruling will come “soon.”

With Virginia’s new attorney general, Mark Herring, having found last week that Virginia’s ban is unconstitutional, was in attendance for today’s hearing, and the state’s solicitor general Stewart Raphael argued that position before the judge, along with now famous team of Ted Olson and David Boies, the attorneys normally from opposite ends of the political spectrum who effectively began the cascade of legal rulings in support of same-sex marriage with their efforts to overturn Proposition 8 in California.

Boies and Olson both stressed in the conference call that Virginia’s current ban is harmful not only to adult gay couples, but also to their children, while there is “no advantage and no legitimate state interest” that can be found in maintaining the ban.” As usual, they said, there was “no convincing or rational argument to fence gay people off from their basic civil rights.”

“All we heard,” Boies said, “were the same ‘traditional marriage since the beginning of time’ arguments that were the same used to justify a ban on interracial marriage in Virginia.”

Although the case will undoubtedly be appealed if the judge rules in favor of same-sex marriage, that appeal would go to the Fourth Circuit Court of Appeals, where it could result in a ruling that would impact all the southern states covered by that court, spreading the ruling to those states, as well.

The anti-gay marriage Family Foundation, which was on the schedule to present as a friend of the court today did not appear.

The two long-term relationships that brought the suit — all four were in the courtroom today and made comments afterwards — may be able to get married right away if the judge also grants a preliminary injunction to that effect, but Boies and Olson were not willing to speculate at this stage how long it would be before same-sex couples could begin to get legally married in Virginia.

A second challenge to the state’s ban is in the Western District of Virginia and will proceed apace. Olson and Bois are not involved in that one, but they said the legal counsel in it is “excellent.”




  • Wow a great day for equal rights!

  • This judge is an Obama-appointed judge so beware. I sure hope that traditional marriage is upheld by the courts. At the minimum, the states should have the right to define marriage as they see fit.

    • As opposed to the Bush appointed judge in the Utah case?

      But then again ANY judge that points out these laws are “unconstitutional” are labeled as “activist judges” who are “legislating from the bench” .

    • Judges that have ruled in favor of same-sex marriage includes ones appointed by Bush senior, Bush W. and Ronald Reagan. Funny… it turns out that even conservatives are able to read the Constitution once in a while.

    • Jeff Jankowiak

      prsteve…If the state told you could not marry the person you love and want to start a family with I am sure you would be jumping all over the place and running for your nearest gun. I ask you to please think before you type. You may sound a bit more sane.

  • Amazing: the judge listens to Herring, when what she should have been doing was referring him to the State Bar of Virginia for disbarment for violating his duties to his clients.

    • Nope. Not her job.

      • Local Rule 83.1(I), E.D. Va. — “The ethical standards relating to the practice of law in civil cases in this Court shall be Section II of Part Six of the Rules of the Virginia Supreme Court as it may be amended or superceded from time to time.”

        In a word, wrong, Ms. Magrath. In fact, anyone can file a charge against a member of the Bar for violating ethical rules, and judges frequently do for egregious cases such as this one.

        Try to inform yourself, lest you sound ignorant. Then again, looking at your comments elsewhere, it’s readily apparent that that ship has sailed.

        • Jeff Jankowiak

          James…if you are so sure of your position then why dont you file a charge against a member of the Bar? The judge knows the laws and does not want to look like a fool. Are you interested in playing the role?

          • How do you know that I haven’t? Or that others haven’t (I know it’s being discussed)? Bar charges are confidential, but a judge — even a judge who rules in favor of the plaintiffs in this case — would send a strong message against the kind of gamesmanship being played by the far Left in this case and in California by former AG Jerry Brown by referring the case to the Bar for discipline. Indeed, in many ways, Herring is worse than Brown; even Governor Moonbeam didn’t have the temerity to betray his client by taking the OTHER side’s position!

          • Jeff Jankowiak

            Good luck if you have. I hope your law career will not go down the drain…Oh…my apologies…I only assumed you had legal credentials behind your name.

          • Knox v. Service Employees International Union, 132 S.Ct. 2277 (2012) (win; arguing counsel); Locke v. Karass, 555 U.S. 207 (2009) (loss; arguing counsel); Prescott v. County of El Dorado, cert. granted, vac. and rem., 528 U.S. 1111 (2000) (win, no argument); Orr v. National Football League Players Association, 145 LRRM (BNA) 2224 (VA.CIR.CT. 1993), 147 LRRM (BNA) 2845 (VA.CIR.CT. 1994), aff’d 150 LRRM (BNA) 2191 (VA. 1995) (win).

            Now, Jeff, would you care to demonstrate your ignorance in ANOTHER way?

          • Jeff Jankowiak

            You seem to have access to Lexicon I will grant you that. I am
            Aware of Knox v. Service Employees but I am trying to what point you are making? How is AG Herring’s actions related to this case? The point I was making was the AG has a responsibility not only to the majority but also to each individual in the State of VA. He is hired to protect both and not just the MOB. If he is to protect every amendment passed you might as well elect a robot.

          • What point am I making? Let me remind you: after you threatened me with a faux hope (“I hope your law career will not go down the drain”), you questioned my legal credentials (“I only assumed you had legal credentials behind your name”). Now, to be sure, mine are not of the caliber of an opinionated insurance agent, but you should probably check such things out, lest you reveal yourself as a fool.

            And by the way, you reaffirm that ignorance with the assertion that “He is hired … to protect … each individual in the State of VA.” That’s nonsense, of course — his oath is to the Constitution — but if you’d like to educate yourself, you might want to review this:

            Not that I’d expect someone from California to require such knowledge, but some of us would prefer you to keep your perversions there.

          • Jeff Jankowiak

            James…just keep showing your true motive here. It has nothing to do with the AG…just your desire to hammer gays and lesbians. Nice job.

          • How that responds to my last comment is a mystery.

            But to your point, which is just another far-Left fantasy which avoids the heavy intellectual lifting of justifying your position: I’d prefer not to think about sexual deviants at all, but I remember when all that they were demanding was to practice their perversions in the privacy of their own bedrooms, something more than adequately protected by the Fourth Amendment. Now, however, they demand societal acceptance, attack mercilessly anyone with the temerity to defend the standards of 5000 years of human civilization, and ever major religion (up until a few shrinking ones decided that fashionable apostasy was preferable to actual standards), and feign shock that anyone would dare to do so.

          • Jeff Jankowiak

            If you cannot get my point after your previous message and then this one you are lost or possibly just delusional. I hope you are enjoying your time behind the keyboard in your ivory tower. It must feel so nice to feel so superior.

    • Jeff Jankowiak

      James…sorry I do not agree with you. The AG is a duly elected official with a law degree. When he took is first oath as an attorney he swore to uphold the US Constitution which includes the 1st, 10th, and 14th Amendments. If he is not to uphold these basic principles we might as well just vote in a robot.

      • Yes, he is, but this behavior suggests that he got his law degree out of a Cracker Jack box. And this isn’t about the Constitution, Virginia or Federal: this is about a lawyer’s duty to not betray his client, wholly independent of the merits or lack thereof in the position he’s taking. While an Attorney General who does not agree with a provision of the law he is charged to defend can certainly decline to do so — never mind the fact that he didn’t advise the people he asked to vote for him that he would do so, though I suspect that most of Herring’s voters cast their ballots with a wink and a nod to his deception — Herring has taken it a step further, but jumping to the OTHER side. An ethical attorney does not have to represent clients or causes with which he disagrees, but an ethical attorney certainly should not behave as Herring did, no matter the cause.

        • “this is about a lawyer’s duty to not betray his client”

          But his client cannot require him to violate the Constitutional Rights of others, which he is sworn to uphold. And the client of an Attorney should not ask him to. Your alleged “betrayal” is a self injury if you expected your Attorney to violate the Constitution.

          • You’re assuming that the Federal Constitution creates a right for sexual deviants to alter the definition of marriage to suit their deviance. The United States Supreme Court has not so held. Indeed, under current Supreme Court decisionmaking, states have the right to define marriage to its normal meaning.

            Which is completely aside from the fact that Herring is acting unethically. Of course, for the far Left, there’s no such thing as ethics, because the ends justify any means.

        • Jeff Jankowiak

          James..Since the AG received his degree from University of Richmond School of Law with honors you are not only knocking him but all the graduates from this Cracker Jack Box university. You also need to understand the AG does not just defend the State of VA but also every citizen of the state but I am sure you don’t think that way. You only think the AG protects the wishes of the majority.

          • Jeff, no, I’m not. I know many fine and ethical lawyers who received their law degrees from the University of Richmond School of Law. Herring’s behavior reflects badly on them, and sadly so.

          • Jeff Jankowiak

            It might be interesting to poll the University of Richmond Law School Graduates to see what they think. But since you called the school a Cracker Jack Box university I would suggest you not be the one posing the question.

          • I suppose that once you’ve told your lie (“you are … knocking … all the graduates from this Cracker Jack Box university”), you’ve got to stick with it. But even if UofR graduates shared your same woeful lack of comprehension of the normal meaning of the English language — which is not my experience — since when do you care about the outcome of polls? You apparently have no regard for the one on marriage in California (Proposition 8). And the one in Virginia (the Marshall-Newman Amendment codifying real marriage)

          • So do we sweep under the carpet the Quinlan Rosner/Target Point Consulting poll? Not that it matters … The only thing more repulsive than a bigot is a pompous, educated, whining bigot jumping up and down like an 8-YO screaming, “You have to be on Team Bigot!”

          • Ah, the “bigot” gambit! Or more accurately, the childish, far-Left name-calling gambit. While the appropriate response is to suggest that you go to a corner and do something to yourself which is anatomically impossible, I’ll refrain.

            We took a poll in Virginia, in 2006, and a reliable one. If you had the courage of your convictions, you’d try to take another, equally reliable one. We call them “elections.”

          • James O'Leary

            I’d love a referendum. Let’s do it!

          • James O'Leary

            Oh, and I am a Republican like Abraham Lincoln who understands that our country does not base civil rights on biological traits of other humans. “Bigot” is not just a name, your speech and behavior define it. At this point, “loser” would be just a name.

          • If you’re attacking the fundamental institution of human civilization, you’re not much of a Republican. Defining people by their sexual behavior — is there anything more pathetic? — is not “civil rights,” it’s “special rights.” Indeed, it is highly doubtful that Abraham Lincoln would even have recognized the concept of “civil rights,” and certainly not as bastardized by today’s grievance industry.

            Neither is one a “bigot” simply because one considers and rejects moonbat arguments, particularly ones which seek to mainstream behavior condemned by every society and religion over 5000 years of human history. What is it about you far-Lefties which makes you presume that people who REJECT your arguments have not CONSIDERED your arguments, and therefore are bigots? Vanity?

            And yes, it is name-calling.

          • James O'Leary

            The fact that your post is full of historical inaccuracies is one thing that leads me to believe you have not fully considered the arguments and evidence; also that the Supreme Court disagrees with lawyers’ arguments on why same-sex marriage ban is “constitutional,” and also just because blind hate prevents people from accepting reason — and it gets their undies in a bunch. Ordinary people can check history, current U.S. Christian religions that fully accept same-sex marriage, etc, etc, while you lie, lie, lie. Ordinary people also can recognize hate and bigotry. Don’t need a law degree for that.

          • do you believe or think?

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