Virginia’s Gay-Marriage Ban Ruled Unconstitutional

Virginia’s ban on gay marriage was ruled unconstitutional by a federal judge who said it violated the equal-protection rights of the state’s residents including couples married legally in other states.

The ruling won’t take effect until any appeals are finished. It follows a federal judge’s Feb. 12 order requiring Kentucky to recognize same-sex marriages from other states and a Feb. 10 decision by Nevada officials to drop their effort to defend the state’s law banning gay marriage.

The case is part of a stream of litigation over state gay-marriage bans playing out against the backdrop of a June Supreme Court decision invalidating part of a federal law that limited U.S. recognition to marriages made up of one man and one woman. Since that decision, four judges have overturned state bans on same-sex unions.

“Virginia’s marriage laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry,” U.S. District Judge Arenda L. Wright Allen in Norfolk wrote in yesterday’s ruling. “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.”

Allen’s ruling linked the turmoil over same-sex marriage to the U.S. struggle against racial discrimination.

‘No Matter’

She began her opinion by quoting from a statement advocating freedom for all to marry, “no matter their sexual orientation” from Mildred Loving, the black woman whose marriage to a white man was at issue in the 1967 Supreme Court decision outlawing Virginia’s ban on interracial marriage.

Loving made the statement in 2007, the year before her death, on the 40th anniversary of the ruling in her case, Loving v. Virginia.

“Tradition is revered in the commonwealth, and often rightly so,” Allen said in her decision. “Tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.”

Allen, who was named to the bench by President Barack Obama in 2011, ruled in a lawsuit filed by two same-sex couples who challenged Virginia’s voter-approved 2006 constitutional amendment banning gay marriage as a violation of the U.S. Constitution’s guarantee of equal protection under the law.

Supreme Court

While the Supreme Court stopped short of explicitly saying that same-sex marriage is a constitutional right, its opinion in the June case, involving the federal Defense of Marriage Act, has been cited by U.S. judges who found that right in Utah and Oklahoma, as well as by a state judge in New Jersey.

“The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution,” U.S. District Judge Terence C. Kern in Tulsa, Oklahoma, said in his Jan. 14 decision as he recounted the high court’s expansion of legal protections for gays since 1996. “But this court knows a rhetorical shift when it sees one.”

The decisions striking down bans in Utah and Oklahoma are on hold while those states pursue appeals, which may eventually lead to the Supreme Court.

Wisconsin Prohibition

The American Civil Liberties Union on Feb. 3 sued to overturn Wisconsin’s prohibition. Similar challenges are pending in a federal court in the western Virginia city of Harrisonburg, as well as in Idaho, Florida, Alabama and Michigan, where a non-jury trial is scheduled for Feb. 25 before U.S. District Judge Bernard A. Friedman in Detroit.

Lawsuits challenging state bans were filed this week in Louisiana and Missouri. The Associated Press reported that two gay couples sued Kentucky today to overturn that state’s ban.

Same-sex marriage has been legalized in 17 U.S. states plus the District of Columbia.

Virginia Governor Terry McAuliffe in a statement hailed Allen’s ruling as “a significant step forward in achieving greater equality for all of our citizens,” and good for business as well. “In order to grow our economy and attract the best businesses, entrepreneurs, and families to Virginia, we must be open and welcoming to all who call our commonwealth home,” McAuliffe said.

Election Dispute

The Norfolk case, known as Bostic v. McDonnell, has assumed a high profile partly because attorneys for the plaintiffs included Theodore Olson and David Boies, adversaries in the contested 2000 election between George W. Bush and Al Gore.

Boies represented Gore when the election dispute went to the Supreme Court and Olson was Bush’s lawyer. Bush later named Olson solicitor general.

Olson and Boies helped upend a gay-marriage ban in California and triggered similar lawsuits in other states.

“Virginia’s prohibition on marriage for same-sex couples relegates gay and lesbian Virginians to second-class status,” Olson said in a statement after yesterday’s ruling. “Laws excluding gay men and lesbians from marriage violate personal freedom, are an unnecessary government intrusion, and cause serious harm. That type of law cannot stand.”

One of the couples in the Bostic case, Timothy Bostic and Tony London, sued after being denied a marriage license at a local clerk of court’s office. The other plaintiff couple, Mary Townley and Carol Schall, of Chesterfield County, Virginia, sought state recognition of their 2008 marriage in California.

Marriage Rights

The Schalls sued after they were denied rights available to partners in opposite-sex marriages, such as visiting and getting medical information about a hospitalized spouse, obtaining insurance coverage and jointly adopting a child.

When the couple tried to renew a passport for a child borne by Townley, a civil servant at a U.S. Post Office in Virginia told Schall that, “You’re nobody, you don’t matter,” according to a narrative of their experience of discrimination cited in Allen’s ruling.

Virginia’s failure to recognize their marriage stigmatized them and led to “humiliation and discriminatory treatment on the basis of their sexual orientation,” Allen wrote.

A phone message left at the office of David Oakley, an attorney for George Schaefer III, the clerk of court for the Norfolk Circuit Court, wasn’t immediately returned. Schaefer’s office declined to issue a marriage license to Bostic and London and is a defendant in the case.

Opinion Shift

In arguments in the case, Oakley said that, “if there truly has been a shift in political opinion, it is more appropriate to allow the General Assembly and the voters to make that decision.”

Byron Babione, senior counsel for the Alliance Defending Freedom, a nonprofit group that represented Michele McQuigg, the Prince William County clerk of circuit court, criticized the ruling as an overreach and may appeal. McQuigg intervened in the case to defend the law.

Allen’s reasoning “would permit nearly every relationship to be a marriage so long as it is grounded in choice and emotion, yet that’s not what marriage or true liberty has ever been,” Babione said in an e-mailed statement. “Because the court’s ruling interferes with the right of Virginians to determine the future of marriage in their state and raises serious constitutional issues, we are reviewing the judge’s decision with our client and considering our next steps.”

Attorney General

Virginia Attorney General Mark Herring, a Democrat who took office on Jan. 11, refused to defend the state’s ban. Herring, who beat Republican Mark Obenshain by 907 votes out of more than 2.2 million cast in November, compared the ban to the state’s prohibition of interracial marriage invalidated by the Loving case.

Some Republican lawmakers have called for Herring’s impeachment for refusing to continue defending the law, as his Republican predecessor, Kenneth Cuccinelli, did.

“Judge Wright Allen’s eloquent decision is only one step in what I suspect will be an extended legal process to definitively answer the questions raised in this case,” Herring said in a statement. “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 is at least the fifth state attorney general to decline to argue for gay-marriage prohibitions. His decision follows that of fellow Democrats Kamala Harris in California, Lisa Madigan in Illinois, Kathleen Kane in Pennsylvania and Catherine Cortez Masto in Nevada.

The case is Bostic v. McDonnell, 13-cv-00395, U.S. District Court, Eastern District of Virginia (Norfolk).

To contact the reporters on this story: Andrew Zajac in Washington at azajac@bloomberg.net; Andrew Harris in federal court in Chicago at aharris16@bloomberg.net; Edvard Pettersson in Federal court in Los Angeles at

epettersson@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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