Federal judge strikes down Va. ban on gay marriage

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

A federal judge in Norfolk struck down as unconstitutional Virginia’s ban on same-sex marriage Thursday night, saying the country has “arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.”

U.S. District Judge Arenda L. Wright Allen issued a sweeping 41-page opinion that mentioned at length Virginia’s past in denying interracial marriage and quoted Abraham Lincoln. She struck the constitutional amendment Virginia voters approved in 2006 that both bans same-sex marriage and forbids recognition of such unions performed elsewhere.

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.

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, has said the state will continue to enforce the prohibitions until the legal process is completed.

Wright Allen showed no hesi­ta­tion in overturning the state constitutional amendment, saying none of the reasons proponents offer for denying same-sex marriages make legitimate governmental interests.

“Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships,” Wright Allen wrote. “Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”

Wright Allen 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.”

She 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 case in Wright Allen’s courtroom marked the first time such a challenge has advanced so far in a state that was part of the Old South.

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

After the decision, he called the ruling “a victory for the Constitution and for treating everyone equally under the law.

“The legal process will continue to play out in the months to come, but this decision shows that Virginia, like America, is coming to a better place in recognizing that every Virginian deserves to be treated equally and fairly.”

Herring scheduled a press conference at noon Friday. 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.

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.

“This is 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,” said Brian Brown, president of the National Organization for Marriage. “There is no right to same-sex ‘marriage’ in the United States constitution. In fact, the U.S. Supreme Court has said that states have the preeminent duty of defining marriage.”

Virginia Cobb, president of the Family Foundation of Virginia, criticized Herring’s role. “Regardless of one’s stance on marriage, the people of Virginia were disenfranchised by this ruling as our voice and our vote that amended our Constitution have been rendered meaningless by a single federal judge with the assistance of our own attorney general,” she said.

Wright Allen’s reasoning was similar to what federal judges in Utah and Oklahoma have used in striking down same-sex marriage bans in those states. Same-sex marriages took place in Utah, but both decisions are now stayed pending appeal.

Another judge in Kentucky this week said that state must recognize same-sex marriage performed in other states.

The highest courts in New Jersey and New Mexico have held that same-sex couples have the right to be married there. Seventeen states, including Maryland but not counting Utah and Oklahoma, now allow such unions.

Even though the Supreme Court sidestepped the question of whether states may ban same-sex marriage, all of the federal judges have said the intent of the ruling was clear. And they have all quoted Justice Antonin Scalia’s fiery dissent in the case, in which he predicted proponents of same-sex marriage would used the majority decision to systematically attack state prohibitions.

Dozens of such lawsuits have been filed around the country.

Wright Allen’s ruling, which came just more than a week after she held oral arguments on the case, is the most important of her young judicial career. Confirmed to the bench in 2011, she is a Navy veteran who has served as both a prosecutor and federal public defender. She was nominated by President Obama on the recommendation of Sen. Mark R. Warner (D) and then-Sen. James Webb (D).

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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