NORFOLK, Va. — In a first for the South, Virginia’s same-sex marriage ban has been overturned, with a federal judge ruling that the voter-approved amendment is unconstitutional and declaring the move “another moment history when We the People becomes more inclusive.”
U.S. District Judge Arenda Wright Allen on Thursday issued a stay of her order while it is appealed, meaning that gay couples in Virginia still won’t be able to marry until the case is ultimately resolved. Lawyers for the clerks in Norfolk and Prince William County who defended the ban are expected to file the appeal, which will be heard by the 4th Circuit Court in Richmond. It could uphold the ban or side with Wright Allen. If the 4th Circuit sides with overturning the ban, it too could issue a stay while the case is appealed to the U.S. Supreme Court. Both sides believe the case won’t be settled until then — or until the high court rules on a similar case.
Wright Allen’s decision echoes recent rulings elsewhere in the U.S. and is the strongest foothold yet in the South for the gay-marriage movement. On Wednesday, a judge declared that Kentucky must recognize same-sex marriages performed in other states, but didn’t rule on the constitutionality of whether such marriages can be performed in the state.
The office of newly elected Virginia Attorney General Mark Herring took the unusual step of not defending the law because it believes the ban violates the equal protection clause of the 14th Amendment. In her ruling, Wright Allen agreed.
She struck down the three key arguments offered for denying gay marriages.
“Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family,” Wright Allen wrote.
She also wrote: “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships.”
Wright Allen’s stay was requested by the Virginia Attorney General’s Office to avoid a situation like what happened in Utah when a gay-marriage ban was declared unconstitutional. More than 1,000 couples were married in the days after the ruling until the U.S. Supreme Court granted the state an emergency stay, creating a cloud of uncertainty for their status. Soon after, a federal judge also declared Oklahoma’s ban unconstitutional. That ruling also is on hold while it is appealed.
In a Valentine’s Day news conference, the two couples at the center of a Virginia case said that while the decision has been stayed, it brings them one step closer to marriage.
“The saying here is Virginia is for lovers, and truly we are experiencing that today in a way that we never have before,” Carol Schall said. She and Mary Townley have been together about 30 years. They married in California in 2008 and have a teenage daughter. The couple wants Virginia to recognize their marriage.
Timothy Bostic — who was denied a marriage license with Tony London by the Norfolk Circuit Court on July 1, shortly after the Supreme Court struck down parts of the federal Defense of Marriage Act — said the judge in this case “gets it.”
“She understands why we’re doing this and how important this is to us, and anyone that believes in the ideals upon which this country was founded can’t help but understand,” Bostic said.
Adam Umhoefer of the American Foundation for Equal Rights, which sponsored the challenge for the plaintiffs, emphasized the message the ruling sent to the South. “Today in places like Birmingham and Biloxi, Chattanooga and Charleston, gay and lesbian couples know that equality isn’t just something that happens up north,” he said.
Supporters of the state ban on same-sex marriages issued statements decrying Wright Allen’s ruling.
“It appears that we have yet another example of an arrogant judge substituting her personal preferences for the judgment of the General Assembly and 57 percent of Virginia voters,” said Tony Perkins, president of the conservative Family Research Council.
Brian Brown, President of the National Organization for Marriage, called the ruling “another example of an Obama-appointed judge twisting the constitution and the rule of law to impose her own views of marriage in defiance of the people of Virginia.”
In a movement that began with Massachusetts in 2004, 17 states and the District of Columbia now allow gay marriage, most of them clustered in the Northeast. None of them is in the old Confederacy.
Opponents of the Virginia ban say the issue resonates in Virginia in particular because of a landmark 1967 U.S. Supreme Court decision involving a Virginia couple and interracial marriage.
Mildred and Richard Loving were married in Washington, D.C., and lived in Virginia when police raided their home in 1958 and charged them with violating the state’s Racial Integrity law. They were convicted but prevailed before the Supreme Court.
During verbal arguments in the gay marriage case, Virginia Solicitor General Stuart Raphael said that ban is legally indistinguishable from the one on interracial marriage. He said the arguments used to defend the ban now are the same ones used back then, including that marriage between two people of the same sex has never been historically allowed. Wright Allen concurred with that assessment in her ruling.
“Tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage,” she wrote.
In defending the law, the attorney for the Norfolk clerk said the issue is best left for the General Assembly and the voters to decide.
Attorney General Herring, in a news conference Friday, said his decision not to defend the ban was “consistent with the rule of law.”
“Although this process is far from over, it remains a great day for equality in Virginia,” he said.
Nationwide, there are more than a dozen states with federal lawsuits challenging state bans on same-sex marriage.
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