An appeals courts’ decision to strike down Virginia’s same-sex marriage ban adds to the growing list of decrees on a hot-button issue that will likely end up being decided by the U.S. Supreme Court.
The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, is the second federal appellate court to overturn gay marriage bans, after the Denver circuit, and is the first to affect the South, a region where the rising tide of rulings favoring marriage equality is testing concepts of states’ rights and traditional, conservative moral values that have long held sway.
"I am proud that the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day," said Virginia Attorney General Mark Herring, who had refused to defend the state ban when he took office in January. "We are fighting for the right of loving, committed couples to enter the bonds of marriage."
Virginians voted 57 percent to 43 percent in 2006 to amend their constitution to ban gay marriage and state law prohibits recognizing same-sex marriages performed in other states, which the court said infringes on its citizens’ fundamental right to marry.
The court itself also highlighted the debate that pits moral values and the idea of equality against states’ rights, recognizing that same-sex marriage "makes some people deeply uncomfortable," but argued in its ruling Monday that those concerns are "not legitimate bases for denying same-sex couples due process and equal protection of the laws."
"Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security," Judge Henry F. Floyd wrote. "Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance."
The 2-1 ruling applies throughout the circuit that also includes West Virginia, Maryland, and the Carolinas, where the attorneys general split Monday on what they’ll do next.
North Carolina’s top lawman, Roy Cooper, quickly announced that he will stop defending his state’s ban, but a spokesman said South Carolina’s attorney general, Alan Wilson, sees no need to change course.
Maryland already allows same-sex marriages. West Virginia Attorney General Patrick Morrisey, for his part, said he’s reviewing the decision and won’t comment until it’s final.
The ruling came as Colorado’s attorney general, John Suthers, asked his state Supreme Court on Monday to stop county clerks from issuing licenses to gay and lesbian couples.
Colorado’s gay marriage ban, passed by voters in 2006, is still the law although recent rulings in federal and state court have found it to be unconstitutional. Those rulings have been put on hold during appeals. Suthers argues the state needs to have a consistent practice on gay marriage licenses until the issue is ultimately settled.
Defenders of gay marriage bans are likely to ask for a stay pending their next appeal; otherwise, licenses could be issued to Virginia’s same-sex couples in 21 days. And once it becomes final, the decision will apply to the entire circuit, American Civil Liberties Union lawyer James Esseks said.
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under appeal. More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.
The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.
The 6th Circuit in Cincinnati will hear arguments Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8. The 10th Circuit in Denver overturned Utah’s ban in June.
The Virginia lawsuit was filed by Timothy Bostic and Tony London of Norfolk, who were denied a marriage license, and Carol Schall and Mary Townley of Chesterfield County. The women were married in California and wanted their marriage recognized in the state where they are raising a 16-year-old daughter.
"Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans," said plaintiffs’ attorney David Boies. "This court has affirmed that our plaintiffs — and all gay and lesbian Virginians — no longer have to live as second-class citizens who are harmed and demeaned every day."
Herring said the decision evoked the notion from a 2003 landmark U.S. Supreme Court decision in which Justice Anthony Kennedy noted the framers of the U.S. Constitution "knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."
The decision by U.S. District Judge Arenda Wright Allen that Virginia’s ban violates the U.S. Constitution’s equal protection and due-process guarantees was challenged by two circuit court clerks whose duties include issuing marriage licenses. They were supported by Alliance Defending Freedom, a public interest law firm based in Scottsdale, Arizona.
The group said it may ask for a full circuit rehearing, or appeal directly to the Supreme Court.
"Every child deserves a mom and a dad, and the people of Virginia confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union," ADF Senior Counsel Byron Babione said.
The decision falls in line with the changing climate in the 4th Circuit, which had a reputation as one of the nation’s most conservative courts. That has changed in the past five years.
Most of the 14 active judges are Democratic appointees, including five named by President Barack Obama. Floyd was initially appointed as a federal judge in South Carolina by George W. Bush, and then nominated for the appellate court by Obama. Roger Gregory, who joined Floyd in the majority, was a recess appointment of Bill Clinton, re-nominated by Bush in 2001. Paul V. Niemayer, who wrote the dissent, was appointed by George H. W. Bush.
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