Strong reaction on all sides to federal judge's decision to overturn Virginia gay marriage ban

A federal judge’s decision to strike down Virginia’s ban on same-sex marriage has sparked broad and emotional reaction from celebratory cheers to calls for impeachment.

Virginia Attorney General Mark R. Herring (D), who had switched the state’s legal position on the issue and joined two gay couples in asking that the ban be struck down, declared in a press conference Friday that he was “proud that the commonwealth is on the right side of the law in this case.”

Gov. Terry McAuliffe (D) has said little about Herring’s involvement in the case. But on Friday he called U.S. District Judge Arenda L. Wright Allen’s decision “a significant step forward in achieving greater equality for all of our citizens.”

And People of Faith for Equality in Virginia hastily planned 12 Valentine’s Day celebrations at courthouses across the state in anticipation of the expanded right to marry.

Meanwhile, opponents of same-sex marriage criticized Wright Allen for reversing a constitutional amendment that passed in 2006 with 57 percent of the vote.

Victoria Cobb, president of the Family Foundation of Virginia, labeled the decision “an emotional outburst by a judge.” The release of the ruling the night before Valentine’s Day, she said at a press conference, “reeks of political show” and a “personal political agenda.”

The ruling prompted Del. Robert G. Marshall (R-Prince William), co-author of the ban, to call for the judge’s impeachment in a speech on the House floor.

“Legislating through the courts against the will of the people is lawless disregard for our representative form of government,” Marshall said.

Del. Thomas “Tommy” C. Wright Jr. (R-Lunenburg) rose on the House floor as well to declare that marriage was created for “the purpose of procreation.”

“Legislatures can pass the laws they want to. Judges can make the rules they want to. The law of God will stand,” he said to applause and a whistle from the Republican side.

Herring infuriated Republicans and conservatives in the state when he decided soon after taking office last month that he would not defend the ban.

“Voters who legally exercised their rights in amending Virgina’s constitution with their votes have been disenfranchised, first by our attorney general and now by a federal judge.” Del. Kathy J. Byron (R-Lynchburg) said.

On Friday, the attorney general contended that the ban received a “vigorous defense” and that his position was based on a “careful and rigorous analysis.” The defense of the ban, he said, recalled the arguments previous Virginia attorneys general have made in support of segregation and interracial marriage. Herring was glad, he said, that “the injustice of Virginia’s position in those cases are not being repeated this time.”

Wright Allen’s sweeping 41-page opinion mentioned at length that history. She opened her decision with a quote from Mildred Loving, who was at the center of the Virginia case that the Supreme Court used in 1967 to strike down laws banning interracial marriage.

Wright Allen added: “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.”

The country, she wrote, has “arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.”

She stayed her decision pending appeal to the U.S. Court of Appeals for the 4th Circuit in Richmond, meaning same-sex marriages will not be immediately available in the commonwealth. The attorney general’s office asked for that decision, Herring said, to avoid marriages caught in “legal limbo.” Both he and McAuliffe have said the state will continue to enforce the prohibitions until the legal process is completed.

Wright Allen joined a so-far unanimous group of federal judges considering a question that Supreme Court justices left unanswered in June in their first consideration of gay marriage: Does a state’s traditional role in defining marriage mean it may ban same-sex unions without violating the equal protection and due process rights of gay men and lesbians?

All have answered that the reasoning the court used to strike part of the Defense of Marriage Act-- which forbade federal recognition of same-sex marriages performed in those states where it is legal--means states cannot defend the marriage bans.

Wright Allen put it this way: “The legitimate purposes proffered by the proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse ‘responsible procreation’—share no rational link with Virginia marriage laws being challenged.”

She added: “The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.”

The law was defended last week in a hearing before Wright Allen by lawyers representing circuit court clerks in Norfolk and Prince William County, who issue marriage licenses. Those constitutional officers, one of whom is represented by a conservative legal group defending other same-sex marriage bans, will have the right to appeal the decision.

The lawsuit was brought on behalf of two Virginia couples. Timothy Bostic and Tony London have lived together for more than 20 years and were denied a marriage license last summer by the Norfolk Circuit Court clerk. Mary Townley and Carol Schall of Chesterfield County were married in California and have a teenage daughter. They want Virginia to recognize their marriage.

Their cause was joined last fall by lawyers Theodore Olson and David Boies, who challenged California’s ban on same-sex marriage and have been leading the charge to have the Supreme Court recognize a fundamental right to marriage that states may not prohibit.

They joined the case in hopes that quick rulings in Virginia courts might get the issue before the high court again.

“Laws excluding gay men and lesbians from marriage violate personal freedom, are an unnecessary government intrusion, and cause serious harm,” Olson said after Wright Allen’s ruling. “ That type of law cannot stand.”

Lawyers who defended proponents of Virginia’s constitutional amendment did not immediately comment after the decision.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
Rachel Weiner covers cops and courts in Arlington and Alexandria.
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