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Second judge ponders Virginia’s same-sex marriage ban

A Virginia federal judge said Wednesday that he has not decided whether he needs to rule on a class-action lawsuit seeking the right for same-sex couples in the state to marry, since another federal judge already has struck down the state’s ban.

U.S. District Judge Michael F. Urbanski asked lawyers at a hearing in Harrisonburg whether he should put the case in front of him on hold. In a separate case, filed in Norfolk, U.S. District Judge Arenda L. Wright Allen ruled last Thursday that the law violates constitutional protections of due process and equal protection.

Wright Allen stayed her decision, and same-sex marriages cannot take place at least until her ruling is reviewed by the U.S. Court of Appeals for the 4th Circuit in Richmond. Wright Allen is a judge in Virginia’s eastern district, while Urbanski is in the western district.

Joshua A. Block, an attorney with the American Civil Liberties Union representing some of the plaintiffs, said he urged Urbanski to add his voice to the debate. The appeals court “will benefit from having more courts weigh in,” Block said.

Wright Allen’s decision is likely to be appealed soon to the 4th Circuit, and Block said that a quick decision by Urbanski would allow the two cases to move in tandem.

Both cases challenge a constitutional amendment, which voters approved in 2006, that recognizes marriage in Virginia as only between a man and a woman. It also forbids the recognition of same-sex marriages performed in states where the practice is legal. There are now 17 such states, including Maryland, as well as the District.

Urbanski said he would make his decision “in due course” but would not hold oral arguments either way. The lawyers agreed that arguments were unnecessary and said Urbanski could rely on briefs in his case and arguments made before Wright Allen earlier this month if he decides to rule on the case rather than postpone it.

The cases are in a peculiar stance since November’s elections, in which Democrats won Virginia’s statewide offices. Unlike their Republican predecessors, Gov. Terry McAuliffe (D) and Attorney General Mark R. Herring (D) support same-sex marriage. Herring created a political storm in Richmond when he announced last month that he has concluded Virginia’s ban is unconstitutional and he would not defend it.

In the Norfolk case, Bostic v. Rainey, two circuit clerks have retained lawyers who defended the Virginia ban. But in the Harrisonburg case, Harris v. Rainey, Staunton Circuit Clerk Robert E. Thomas has taken no position on the law’s constitutionality.

Virginia Solicitor General Stuart Raphael told Urbanski that he could rely on the state’s previous defense of the constitutional amendment as well as the defense from attorneys in the Norfolk case to make sure the case was properly briefed.

The question of whether states may ban same-sex marriage was left unanswered in June, when the Supreme Court struck down part of the Defense of Marriage Act, which had withheld federal recognition of same-sex marriages performed where they are legal. But the majority’s reasoning, even dissenting justices agreed, knocked down arguments states have used to justify the bans.

Since then, federal judges in Utah and Oklahoma struck down bans in those states, just as Wright Allen has done, and judges in Ohio and Kentucky have said those states must recognize same-sex marriages performed elsewhere. Additionally, the Supreme Court’s reasoning was used by the highest state courts in New Jersey and New Mexico to allow same-sex marriage there.

The next step in the legal process will be come at the appellate level. The U.S. Court of Appeals for the 10th Circuit in Denver will review the Utah and Oklahoma decisions. Raphael said that if all proceeds as scheduled in Virginia, the first briefs could be filed with the 4th Circuit next month.

Those could lead to the Supreme Court receiving the issue in time for its term that begins in October.

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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