Federal court strikes down Virginia gay marriage ban
Same-sex marriage supporters hailed a three-judge panel’s decision Monday striking down Virginia’s ban on those marriages.
Opponents criticized the judges for overturning a law approved in a referendum by Virginia voters.
In a 2–1 decision, the 4th Circuit of the U.S. Court of Appeals declared unconstitutional Virginia’s 2006 Marshall–Newman Marriage Amendment, which defined marriage as an act between one man and one woman.
Circuit Judge Henry Floyd wrote the opinion in the case. He was joined by Circuit Judge Roger Gregory in his affirmation.
While the majority opinion recognizes that same-sex marriage has historically not been recognized, it states that, “The Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.”
The opinion contends that preventing civil marriage between same-sex couples “prohibits them from participating fully in our society,” marking the ban as a violation of the U.S. Constitution’s 14th Amendment.
Circuit Judge Paul Niemeyer wrote a dissenting opinion stating that same-sex marriage was not a fundamental right and that the court should have deferred to Virginia’s “political choice” in its passing of the 2006 amendment.
“The U.S. Constitution does not, in my judgment, restrict the States’ policy choices on this issue,” he wrote. “If given the choice, some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism.”
The original lawsuit was filed by Timothy Bostic and Tony London of Norfolk, and Carol Schall and Mary Townley of Chesterfield County. Bostic and London had been denied a marriage license in Norfolk, while Schall and Townley had been denied legal recognition of their California marriage license.
The appeal was in response to the February ruling in favor of the couples by District Judge Arenda Wright Allen.
Virginia Attorney General Mark Herring said that the ruling was about committed, loving couples “asking the commonwealth to convey the same rights and responsibilities that every other couple enjoys.”
Herring has previously stated that the state would not defend the ban. Unless the clerks named as defendants attempt additional action to have the decision reversed, the court’s ruling will be finalized in mid-August.
In a statement, Sen. Mark Warner said that he was happy the ban had been found unconstitutional.
“Virginia should be a welcoming place for all,” it reads, “and I am very pleased at the rapid progress toward marriage equality that we’re seeing in Virginia and around the country.”
Libertarian candidate Robert Sarvis said he looked forward to “seeing same-sex couples celebrating marriage in Virginia.”
Paul Logan, communications director for Republican candidate Ed Gillespie, said Gillespie reiterated his stance that “marriage is properly the jurisdiction of the states.”
Sen. Tim Kaine said there was no rightful place for the amendment in Virginia’s constitution.
Rabbi Jeremy R. Weisblatt of the Beth Sholom Temple in Fredericksburg said he welcomed the ruling.
“Reform Judaism holds as one of its principles and beliefs the equality of all people,” he said, “and supports full equality for same-sex couples under the law, including legal recognition of these relationships.”
Virginia Del. Bob Marshall, co-author of the overturned state amendment, released a statement that said Gregory and Floyd were “arrogant to think they have the moral and legal authority to negate the votes of 1.3 million Virginia voters” who approved the amendment.
The Virginia Christian Alliance released a statement asserting that court rulings have wrongly replaced “original intent,” and said, “We are in a time of what was right is now wrong. What was wrong is now right.”
Virginia’s Catholic bishops, Bishop Paul S. Loverde and Bishop Francis X. DiLorenzo, said the ruling is a “misunderstanding of the intrinsic nature of marriage and is an injustice to Virginia voters.” The joint statement said the ruling extended a right “that does not—and cannot—exist between people of the same sex.”
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under appeal.
More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.
The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.
The 4th Circuit decision also will apply to other states in the circuit when the decision becomes final in 21 days, providing that the court does not issue a stay at the request of the supporters of Virginia’s gay marriage ban, said James Esseks, an attorney with the American Civil Liberties Union. Maryland, one of the states in the circuit, already allows same-sex marriages.
The rising tide of rulings in favor of marriage equality has left elected officials tasked with defending gay marriage bans searching for safe political ground.
North Carolina Attorney General Roy Cooper quickly announced Monday that his office will stop defending his state’s ban, saying, it is “time to stop making arguments we will likely lose.”
But a spokesman for South Carolina’s attorney general, Alan Wilson, said he sees no need to change course.
The Associated Press contributed to this report.
Dawnthea Price: 540/374-5403