Virginia’s gay marriage ban struck down

Federal judge says Virginia’s ban on gay marriage is unconstitutional, but couples may not marry until case is resolved

Spencer Geiger (left) and Carl Johansen (right) proclaim their support for same-sex marriage outside the Walter E. Hoffman U.S. Courthouse in Norfolk, Va. on Feb. 4, 2014.
Jay Paul/Getty Images

A federal judge ruled Thursday that Virginia's ban on same-sex marriage is unconstitutional, making it the first state in the South to have its voter-approved prohibition overturned.

U.S. District Judge Arenda Wright Allen in Norfolk, Va. issued a stay of her order while it is appealed, meaning that gay couples in Virginia are unable to marry until the case is ultimately resolved. Both sides believe the case, in which two same-sex couples sued to overturn the state's ban, won't be settled until the Supreme Court decides to hear it or one like it.

Allen's ruling makes Virginia the second state in the South to issue a ruling recognizing the legality of gay marriages.

A judge in Kentucky ruled Wednesday that the state must recognize same-sex marriages performed in other states, but did not rule on the constitutionality of conducting same-sex marriages inside the state, however. The Virginia judge's ruling also follows similar decisions in Utah and Oklahoma federal courts.

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. However, it asked for the judge to stay her order to avoid what happened in Utah. In December, a federal judge declared Utah's ban on gay marriages unconstitutional, but the Supreme Court put the ruling on hold in response to an emergency appeal filed by state lawyers.

More than 1,000 gay and lesbian couples were married in the days after the ruling and before the U.S. Supreme Court granted the state an emergency stay, halting the weddings and creating a cloud of uncertainty for the status of the married couples. Soon after, a federal judge also declared Oklahoma's ban unconstitutional. That ruling is also on hold while it is appealed.

In a movement that began with Massachusetts in 2004, 17 states and the District of Columbia now allow gay marriage, most of them clustered in the Northeast. Nationwide, there are more than a dozen states with federal lawsuits challenging state bans on same-sex marriage.

The Virginia case centered on a gay Norfolk couple who were denied a marriage license by the Norfolk Circuit Court in July, shortly after the Supreme Court struck down the federal Defense of Marriage Act. A Chesterfield County couple that married in California and is raising a teenage daughter also later joined the lawsuit, seeking to have their marriage recognized in Virginia. The attorneys for the plaintiffs are the same ones who successfully challenged California's voter-approved ban on gay marriages in court.

Opponents of the Virginia ban say the issue resonates in Virginia because of a landmark 1967 U.S. Supreme Court decision involving a Virginia couple and interracial marriage.

Mildred and Richard Loving were married in Washington, D.C., and were living in Virginia when police raided their home in 1958 and charged them with violating the state's racial integrity law. They were convicted but prevailed before the Supreme Court.

During verbal arguments in the gay marriage case, Virginia Solicitor General Stuart Raphael said that the ban on gay marriage is legally indistinguishable from the ban on same-sex marriage. Raphael also said supporters have failed to prove how allowing gay marriage would make heterosexual couples less likely to marry.

In defending the law, the attorney for the Norfolk clerk said that the issue is best left for the General Assembly and the voters to decide.

The Associated Press

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