Same-sex marriagesd have hit legal obstacles with a Federal Judge in Virginia saying the same-sex “right” actually violates the Constitution’s guarantee of equal protection.
Although a growing number of state and federal courts that have granted gay and lesbian couples the right to marry following the two landmark Supreme Court rulings in June, the view of District Court Judge Arenda Wright Allen differs.
She stayed her decision so that it can be appealed, and so same-sex marriages in the commonwealth will not begin immediately. Virginia Attorney General Mark R. Herring, 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 ban until the legal process is over.
USA Today report that Judge Allen’s ruling had been expected since the case was heard in her Norfolk courtroom Feb. 4. Also as expected, she blocked it from taking immediate effect until appeals are heard, meaning gay marriages in Virginia cannot begin yet.
Her decision follows similar rulings in Oklahoma and Utah, even more conservative states, where federal judges recently struck down gay marriage bans. Those cases are scheduled to be heard by a federal appeals court panel in April; the Virginia case now joins them in a race toward the Supreme Court.
And in recent days, Nevada state officials decided they could no longer defend the state’s same-sex marriage ban, and a judge in Kentucky ruled that the state must recognize gay marriages from other states.
Seventeen states and the District of Columbia allow same-sex marriage. Since the high court last June restored gay marriage rights in California and struck down a portion of the federal Defense of Marriage Act, Hawaii and Illinois joined the passed new laws, and state courts in New Jersey and New Mexico legalized the practice. Nearly four dozen lawsuits remain pending in 24 states.
Wright Allen’s opinion, like others in recent months, made note of the high court’s ruling last year that the federal law denying benefits to legally married same-sex couples violated the Constitution’s guarantees of equal protection and due process.
The Court is compelled to conclude that Virginia’s marriage laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry,” Wright Allen wrote. “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.”
The Virginia ban, passed by voters in 2006, had suffered several blows in recent months. First came the decision by Theodore Olson and David Boies, high-powered litigators who successfully challenged California’s Proposition 8 ban last year, to join the legal team representing two gay and lesbian couples. Then came the announcement by newly elected state Attorney General Mark Herring, a Democrat, that Virginia would stop defending its law and join those seeking to defeat it.
Olson, Boies and state Solicitor General Stuart Raphael joined forces at the hearing in Wright Allen’s court. They compared the ban on same-sex marriages, civil unions and domestic partnerships to Virginia’s discriminatory history of blocking school integration, interracial marriage and the right of women to attend Virginia Military Institute.
“Marriage is a fundamental right. The United States Supreme Court has said that something like 14 times, by my count,” said Olson, a former U.S. solicitor general under George W. Bush. The ban “denies them equal dignity because of who they are.”
Stripped of the state’s backing, the ban was left to be defended by lawyers for two local circuit court clerks whose jobs include issuing marriage licenses. They raised myriad issues, ranging from Virginia’s 400-year tradition of heterosexual marriage and states’ jurisdiction over domestic matters to the contention that marriage should be reserved for couples that can procreate.
“Marriage and procreation are fundamental to the very existence and survival of the race,” said Austin Nimocks of the conservative Alliance Defending Freedom. “Every child has a mother and a father.”
See: USA Today
The couples at the center of the case are Timothy Bostic and Tony London, who filed the lawsuit in Norfolk last July, and Carol Schall and Mary Townley, who joined up later. Schall and Townley, whose marriage in California isn’t recognized by Virginia, have a teenage daughter.