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Gay marriage fight comes to Southern courtroom

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Former Republican candidate for Lt. Gov. E.W. Jackson, front right, gestures as he speaks to the media during a demonstration outside Federal Court in Norfolk, Va., Tuesday, Feb. 4, 2014. Jackson spoke in favor of the law banning same sex marriage. A federal judge will hear arguments Tuesday on whether Virginia’s ban on gay marriage is unconstitutional. The state’s newly elected Democratic attorney general has already decided to side with the plaintiffs and will not defend the ban. (AP Photo/Steve Helber)

Former Republican candidate for Lt. Gov. E.W. Jackson, front right, gestures as he speaks to the media during a demonstration outside Federal Court in Norfolk, Va., Tuesday, Feb. 4, 2014. Jackson spoke in favor of the law banning same sex marriage. A federal judge will hear arguments Tuesday on whether Virginia’s ban on gay marriage is unconstitutional. The state’s newly elected Democratic attorney general has already decided to side with the plaintiffs and will not defend the ban. (AP Photo/Steve Helber)

Spencer Geiger, left, of Virginia Beach, and Carl Johanson, of Norfolk, hold signs as they demonstrate outside Federal Court in Norfolk, Va., Tuesday, Feb. 4, 2014. A federal judge heard arguments on whether Virginia’s ban on gay marriage is unconstitutional. (AP Photo/Steve Helber)

FILE – In this Jan. 23, 2014 file photo, Virginia Attorney General Mark Herring speaks at a news conference at his office in Richmond, Va. A federal judge will hear arguments Tuesday, Feb. 4, on whether Virginia’s ban on gay marriage is unconstitutional. Herring, the state’s newly elected Democratic attorney general, said he has already decided to side with the plaintiffs and will not defend the ban. (AP Photo/Richmond Times-Dispatch, Bob Brown, File)

Spencer Geiger, left, of Virginia Beach, and Carl Johanson, of Norfolk, hold signs as they demonstrate outside Federal Court in Norfolk, Va., Tuesday, Feb. 4, 2014. A federal judge heard arguments on whether Virginia’s ban on gay marriage is unconstitutional. (AP Photo/Steve Helber)

Virginia Attorney General Mark Herring leaves Federal Court after a hearing on Virginia’s ban on gay marriage in Norfolk, Va., Tuesday, Feb. 4, 2014. Herring the state’s newly elected Democratic attorney general has already decided to side with the plaintiffs and will not defend the ban. (AP Photo/Steve Helber)

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NORFOLK, Va. (AP) — The ban on same-sex marriage is just like an old Virginia law that made interracial marriages illegal, and it’s time for Virginia to stop discriminating against gays and lesbians, a state attorney told a federal judge Tuesday.

But lawyers who support the ban said if the law is to change, it should be done by the legislature, and there has never been a fundamental right to same-sex marriage.

“We have marriage laws in society because we have children, not because we have adults,” said attorney David Nimocks of the religious group Alliance Defending Freedom.

The case is the first one in the South to reach oral arguments before a federal judge. Recently elected Democratic Attorney General Mark Herring announced Jan. 23 that he would not defend the state in the lawsuit because he believed it violates the equal protection clause of the 14th Amendment.

In overturning bans in Utah and Oklahoma, federal judges have also said those laws violate the 14th amendment.

Virginia Solicitor General Stuart Raphael told the judge Virginia had frequently been on the wrong side of history, citing the state’s ban on interracial marriages, its defense of segregation as well as its opposition to allowing female students into the Virginia Military Institute.

Raphael said supporters of the ban have failed to prove how allowing gay marriage would make opposite sex couples less likely to marry.

“That’s the Achilles heel in the argument,” he said.

Before the hearing, dozens of protesters gathered at the courthouse and shouted phrases decrying Herring’s position. Some of them carried signs saying: “Herring’s herring. AG’s must uphold the law.” Across the street, a much smaller group of supporters shouted their support for gay marriage and carried signs saying: “Marry who you love,” which drew honks of support from drivers passing by downtown.

U.S. District Judge Arenda L. Wright Allen said she would rule soon. If Wright Allen finds Virginia’s law unconstitutional, Raphael asked her to issue a stay so that nobody can get married until the case is heard on appeal.

He said the state wanted to avoid the situation Utah found itself in after marriages were briefly allowed to occur there before a stay was issued.

With Herring’s office deciding to side with the plaintiffs, the job of defending the law fell to the legal team of Norfolk’s Circuit Court clerk.

Attorney David Oakley said the court should respect the legislative process that created the law. If the law is to be changed, it should be done through the legislature, he said.

In addition, an attorney for the religious group Alliance Defending Freedom argued on behalf of the Prince William County’s clerk, which was allowed to intervene in the case. The clerk asked to intervene because of worries the attorney general’s office wouldn’t do an adequate job defending the law.

While Herring attended the hearing, he did not speak. At a later news conference, Herring dismissed criticisms that he was ignoring his responsibility to defend the state constitution. He said he also swore to uphold the U.S. constitution, and he believes they conflict in this case.

The lawsuit challenging the ban was filed on behalf of Norfolk couple Timothy Bostic and Tony London, who were denied a marriage license by the Norfolk Circuit Court on July 1. The lawsuit said the state’s law denies them liberties that are guaranteed by the 14th Amendment.

Since then, a Chesterfield County couple, Carol Schall and Mary Townley, have joined the case. The couple married in California in 2008. They have a teenage daughter and want Virginia to recognize their marriage.

The attorneys representing the plaintiffs on behalf of the American Foundation for Equal rights are the same ones that successfully challenged California’s

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