Emily Schall-Townley, 16, loves playing on her high school basketball team. She is acing her Latin class. She’s already been on a college visit.
And, in case you care to know, she has two moms.
Right now, in need of an after-school nap, Emily has drowsily draped all 5-feet-81 / 2 inches of herself onto one of their laps.
“She’s a big baby,” Mary Townley says, as Emily finds a shoulder to burrow into. Townley, 53 and four inches shorter than her daughter, seems wistful for the long-gone days of trundling the child she bore up the stairs.
It’s a spontaneous scene in an aggressively normal Richmond suburb that illustrates what Townley and her partner, Carol Schall, also 53, have been saying all afternoon in an interview while Emily scrolls on her smartphone and seeks further entertainment in the antics of Molly the cat and Junie the dog.
Emily is a well-loved child, her mothers say. Townley and Schall, both special educators, have been together for nearly 30 years. They raised Emily and consider themselves a family just like any other.
Nothing new here, and we’d move along, except Schall and Townley want to get married in Virginia, where they’ve lived since 1985. They are one of two couples fighting to void the 2006 voter-approved constitutional amendment that designated marriage as being only between a man and a woman and barred recognition here of same-sex unions performed in other states. (The women were married in California in 2008.)
Emily is, in some ways, at the core of the closely watched case, which will be argued at the U.S. Court of Appeals for the Fourth Circuit on Tuesday, three months after a U.S. district court voided Virginia’s constitutional ban against same-sex marriage on the night before Valentine’s Day.
Traditional-marriage supporters say the state must protect children from same-sex unions and that heterosexual parents provide “optimal child-rearing.”
Duly excused by her principal, Emily, a sophomore, says she will be in the Richmond courthouse to hear arguments Tuesday, just as she has been at other hearings and seen gay-marriage protesters marching, preaching and waving placards that say, “Children Do Best with a Mom and a Dad.”
The appellate judges are likely to question lawyers and might sound at times like they’re siding with the amendment backers, Schall, the mom with the dark hair and dark-frame glasses, warns Emily.
“It could be scary,” Schall says.
Emily is unfazed. She has stood between her moms at a news conference and clasped their hands in celebration after the state amendment was struck down in February by federal Judge Arenda L. Wright Allen.
Has exposure to such high legal drama, the palpable sense of a great shift in social thinking via jurisprudence, made Emily contemplate a law career?
No chance, she says.
“I hated civics.”
Townley and Schall joined the case in September, after answering an e-mail from the Human Rights Campaign that asked couples to share their stories. Their essay led to recruitment as plaintiffs to join a suit initially filed by Timothy Bostic and Tony London. The men, who have lived together for more than 20 years, were denied a marriage license in Norfolk last summer.
The women strengthened the case because they could challenge Virginia’s refusal to recognize their lawful California marriage or any other form of civil union. They also would seem to embody the argument that their parenting of Emily has caused no harm — and, as Schall says, “it would be in Emily’s best interest to have two legal parents.”
Judge Wright Allen’s order forcefully swept aside what she called the “for the children” arguments against same-sex marriage. “Gay and lesbian couples are as capable as other couples of raising well-adjusted children,” she wrote.
Virginia law has “needlessly stigmatized and humiliated” such kids, her order said, and went on to cite Emily Schall-Townley (referred to by initials only), who, “like the thousands of children being raised by same-sex couples, is needlessly deprived of the protection, the stability, the recognition and the legitimacy that marriage conveys.”
Emily says she can’t recall any kids making judgments about her two moms since first grade; it happened once on the school bus.
Three other members of the varsity and junior varsity girls’ basketball teams have same-sex parents, Emily says.
Anyway. Have some cookies, the moms insist. Crackers and cheese?
In the living room, the late-afternoon sun keeps inflicting its narcotic qualities. Emily, lolling stomach-down on the couch, clasps a flowered pillow and peers into her touch screen. Tap, tap. Scroll.
Now here comes Junie, a schnauzer-poodle mix, demanding attention. The gray-haired moocher has been part of the family, too, since Emily was 6, named after Junie B. Jones of children’s book fame.
There’s an oil painting of Emily around that age hanging above the fireplace, where the mantel is populated by more than a dozen angel figurines. Em, as her moms call her, wears a yellow sleeveless sundress.
“I hate my bangs!” she says of the painting. “I don’t know why you keep it up.”
Have you heard about all these new sexual-identity acronyms? Like, some people think LGBT should now be LGBTQA, Emily says.
“What’s the ‘A’?” Schall asks.
“Asexual,” says her daughter.
“Oh,” Schall says.
“In her generation I don’t think anyone sees this as an issue,” she adds.
Eighteen states (including Maryland) and the District of Columbia allow gay and lesbian partners to marry. Wright Allen stayed her Virginia decision in anticipation of appeals.
After the 4th Circuit rules, lawyers predict the case is almost certainly bound for the U.S. Supreme Court, perhaps to be docketed as early as next year, although cases in Oklahoma and Utah are also queued up to be heard by the high court.
Legal arguments for same-sex marriage in many jurisdictions invoke the equal protection and due process clauses of the 14th Amendment to the U.S Constitution. These were the basis, too, for the Supreme Court’s voiding Virginia’s ban on interracial marriage in 1967.
Wright Allen, an Obama appointee, pointedly referred to that landmark case, Loving v. Virginia; Mildred Loving, a plaintiff with her husband, Richard, is quoted at the top of the gay-marriage ruling.
“I have lived long enough now to see big changes,” Loving said in 2007. “The older generation’s fears and prejudices have given way, and today young people realize that if someone loves someone they have a right to marry.”
For some marriage-equality supporters, victory in Virginia would hold special significance because of that history and simply because it’s an incursion into Dixie; and if same-sex marriage advocates prevail here, state bans could be struck down elsewhere in the Fourth Circuit’s jurisdiction, including West Virginia, North Carolina and South Carolina.
The Virginia case also has drawn attention because of the famed legal duo fighting on behalf of the Commonwealth’s same-sex couples: Democrat David Boies and Republican Ted Olson, who have teamed up for the first time since winning their trailblazing challenge to California’s ban on same-sex marriage. (Their work is underwritten by the American Foundation for Equal Rights, the same organization that sponsored their fight against California’s Proposition 8.)
Olson, who served as U.S. solicitor general in the George W. Bush administration and has lived in Virginia for 32 years, calls the amendment particularly “ironic and irritating” because it’s folded into the state’s Bill of Rights. And this happened in the home of founding fathers Patrick Henry, George Washington, James Madison and, of course, Thomas Jefferson, who wrote in the Declaration of Independence that all men are created equal.
“It’s a very, very emblematic place for the litigation to take place,” Olson says in an interview, “because it’s Virginia, because Richmond was the headquarters of the Confederacy. . . . The Civil War brought about the Fourteenth Amendment.”
Emily and her mothers consider him a sort of grandfather figure. “I feel very attached to them personally,” Olson says. “All I want to do is help them to live the lives they are entitled to as Americans.”
Back to the living room of the family’s Dutch Colonial, with its comfy furniture and not-fancy rugs on hardwood floors. We’ve made short work of that plate of cookies (Butterstars, they’re called, a specialty of Ukrop’s, the noted Richmond bakery).
Emily takes to the couch in a stupor of nap-deprivation, wondering how she’ll be able to make it to see her high school’s production of “Hairspray” that night. Maybe some iced tea?
Townley regards her sprawled-out, pillow-hugging teenager and teasingly says, “You’re just making yourself right at home.”
To which Emily says, “I am at home.”