At least four federal judges have now ruled state gay-marriage bans unconstitutional

February 14
A federal judge rules Virgina’s same-sex marriage ban unconstitutional - the first among Southern states. (Reuters)

A federal judge on Thursday overturned Virginia’s same-sex marriage ban, adding it to a growing list of states whose bans have been deemed unconstitutional.

The Virginia ruling doesn’t change anything, for now. Same-sex marriages won’t begin because Judge Arenda Wright Allen issued a stay of her own decision while it’s appealed. In other words, she is keeping her ruling from taking effect until a higher court gets a chance to weigh in. Both sides think it won’t be settled until the Supreme Court hears the case. Washington Post Supreme Court reporter Robert Barnes explained what happened in a piece Friday:

The Virginia Attorney General’s Office 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.

“The court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. 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.

If all of this sounds familiar, it’s because it is. A well-financed, coordinated campaign to legalize gay marriage in about a dozen states kicked off almost immediately in the aftermath of the Supreme Court’s summer ruling last year. Before and since then, litigation has been brought forth in at least 29 states, according to Freedom to Marry, a campaign to secure gay marriage nationwide. And, like Virginia, federal judges have ruled at least three other state same-sex marriage bans unconstitutional. Here’s a look at each:

Oklahoma

What happened to Oklahoma’s ban last month is broadly similar to Virginia’s. As in that ruling, the Oklahoma decision is stayed pending appeal, meaning no gay marriages for now. And, as in Virginia’s ruling, Fourteenth Amendment protections were at the core of the decision:

“Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights,” U.S. District Judge Terence Kern wrote in his decision.

Utah

In December, another federal judge ruled Utah’s ban unconstitutional for similar reasons.

“The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution,” Judge Robert J. Shelby, of the United States District Court for the District of Utah, wrote in his opinion.

That decision is currently being appealed in a Denver court.

California

California’s is perhaps the most famous ban to be overturned. In the summer of 2010, Chief U.S. District Judge Vaughn Walker ruled that the recently passed ban — known widely by its ballot title, Proposition 8 — was not constitutional.

It “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” he wrote in his decision. Of course, it didn’t end there. The case made its way up to the U.S. Supreme Court, which in June ruled that proponents of the ban had no legal standing to appeal Walker’s decision. In doing so, it also wiped out a 9th Circuit ruling, leaving Walker’s decision standing.

Niraj Chokshi reports for GovBeat, The Post's state and local policy blog.
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Niraj Chokshi · February 14