"Happy Valentine's Day Virginia..."

Federal Judge Strikes Down Virginia's Gay Marriage Ban

Markus Schmidt
February 13, 2014



A federal judge struck down Virginia’s same-sex marriage ban Thursday, finding that it violates the equal protection clause under the 14th Amendment to the United States Constitution.

U.S. District Judge Arenda L. Wright Allen followed arguments by the plaintiffs in Bostic v. Rainey who had argued that the 2006 amendment to the state Constitution defining marriage as between a man and a woman denies gays and lesbians the fundamental right to marry, essentially making them second-class citizens.

"There can be no serious doubt that in America, the right to marry is a rigorously protected fundamental right," the judge wrote in her ruling. "The Supreme Court has recognized repeatedly that marriage is a fundamental right protected both by the Due Process and the Equal Protection Clause of the Fourteenth Amendment."

Wright Allen, appointed to the bench in 2011 by President Barack Obama, added that marriage rights are "of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s 'unwarranted usurpation, disregard, or disrespect.' "

"The right to marry is inseparable from our rights to privacy and intimate association."

The judge's ruling, which broke after 9 p.m. the night before Valentine's Day, is the latest development in a stunning turnaround for same-sex marriage in Virginia.

In Virginia, 57 percent of voters backed the 2006 amendment to Virginia's constitution, defining marriage as the union of a man and a woman. Voters who backed it included Attorney General Mark R. Herring, then a state senator from Loudoun County.

Herring, who took office Jan. 11, announced Jan. 23 that he found the state's ban to be unconstitutional and would not defend it in federal court. He also said that he would side with the plaintiffs in Bostic v. Rainey.

"This decision is a victory for the Constitution and for treating everyone equally under the law," the attorney general said in a statement Thursday night.

"It is the latest step in a journey towards equality for all Virginians, no matter who they are or whom they love. But 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."

James Parrish, executive director of Equality Virginia, called it "an historic day in Virginia."

"I am proud that here in Virginia we are no longer asking if the freedom to marry the person you love will be a reality, but instead we are asking when," he said. "With this ruling, we are one step closer to gaining full equality for all lesbian, gay, bisexual, and transgender Virginians. Today Virginia is standing on the right side of history."

Attorneys defending the ban had countered in court that marriage is a traditional institution that “celebrates the diversity of the sexes,” and that it is in the best interests of children.

Backers of the ban expressed dismay Thursday night.

"Regardless of one's stance on marriage, the people of Virginia were disenfranchised by this ruling as our voice and our vote that amended our Constitution have been rendered meaningless by a judge with the aid and assistance of our own Attorney General," said Victoria Cobb, president of the Family Foundation of Virginia.

“Protecting a timeless institution for the well-being of children was the will of the overwhelming majority of Virginians and the ruling denies this important state interest as it places the desires of adults over the outcomes of children."

Cobb also charged that the decision's timing call's the judge's objectivity into question.

“This rushed release just prior to Valentine's reeks of political show. While we appreciate the stay on the ruling, the timing tempts lawlessness as each year on Valentine's Day, same-sex couples line up at the courthouse hoping a clerk will ignore the law and grant them a marriage license.”

The judge’s decision means that Virginia could be well on the way to becoming the first Southern state to legalize same-sex marriage – if the ruling holds up before the 4th U.S. Circuit Court of Appeals and, ultimately, the United States Supreme Court.

The judge granted a motion by the plaintiffs – two same-sex couples from Norfolk and Chesterfield County – for a preliminary injunction that technically would allow them to get married immediately, before the issue is resolved in a higher court. But that won't happen soon. The judge stayed her entire ruling until a federal appeals court rules on the same-sex marriage issue.

“The ruling is groundbreaking for Virginia in some ways like Loving v. Virginia (the case that legalized interracial marriage), but we have a long way to go to the U.S. Supreme Court,” said Carl Tobias, a constitutional law professor at the University of Richmond School of Law.

“It is bold in the sense that the Supreme Court precedent is unclear, but the Windsor case has language that can be read to allow same-sex marriage,” Tobias said.

In United States v. Windsor, the Supreme Court last summer struck down a central part of the federal Defense of Marriage Act.

The United States now recognizes gay marriage, but the constitutional basis for striking down the entire law was not entirely clear and states can still uphold bans that prohibit it.

However, A.E. Dick Howard, a professor of constitutional law at the University of Virginia, said that Justice Anthony M. Kennedy, in discussing the harm the Defense of Marriage Act has done to same-sex couples and their children, has essentially opened the door to a number of federal suits, including Bostic v. Rainey.

“Kennedy’s opinion is, in a sense, a road map for the attack now being made by plaintiffs attacking bans on same-sex marriage in state and federal courts around the country,” Howard said.

Currently 17 states allow same-sex marriage, while 33 have laws against it.

Last month in Oklahoma – which has a constitutional marriage amendment similar to Virginia’s – a federal judge threw out the state’s prohibition of same-sex marriage.

Judge Terence C. Kern called Oklahoma's ban on marriage by same-sex couples “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.”

In Utah, a federal judge in December struck down a referendum on the state’s constitution that 65 percent of voters had backed in 2004.

The Oklahoma and Utah cases are now before the 10th U.S. Circuit Court of Appeals.

More than 1,400 same-sex couples got married in Utah after the ruling – but then the U.S. Supreme Court put it on hold as long as the appeal is pending, putting these marriages in a legal limbo.

On Wednesday a federal judge in Kentucky ruled that state must recognize same-sex marriages performed in other states. In that case, according to the Associated Press, U.S. District Judge John G. Heyburn II struck down part of the gay-marriage ban that Kentuckians approved in 2004, saying it treated gays and lesbians "in a way that demeans them."

Norfolk couple Timothy Bostic and Tony C. London filed the suit last summer against state registrar of vital records Janet M. Rainey and Norfolk City Court Clerk George E. Schaefer after they were denied a marriage license. Chesterfield County residents Carol Schall and Mary Townley - who were legally married in California in 2008 - signed on as co-plaintiffs in the case because they want their marriage to be recognized in Virginia.

"The parties before this court appreciate the sacred principles embodied in our fundamental right to marry," the judge wrote in her ruling.

"Each party cherishes the commitment demonstrated in the celebration of marriage; each party embraces the Supreme Court’s characterization of marriage as 'the most important relation in life” and “the foundation of family and society, without which there would be neither civilization nor progress.' "

Wright Allen found the arguments of the ban's defenders to be lacking.

"Regrettably, the proponents and the opponents of Virginia’s marriage laws part ways despite this shared reverence for marriage. They part over a dispute regarding who among Virginia’s citizenry may exercise the fundamental right to marry," the judge wrote.

"The proponents’ insistence that plaintiffs have embarked upon a quest to create and exercise a new (and some suggest threatening) right must be considered, but, ultimately, put aside."

The judge added: "The reality that marriage rights in states across the country have begun to be extended to more individuals fails to transform such fundamental right into some 'new' creation.

"Plaintiffs ask for nothing more than to exercise a right by the vast majority of Virginia’s adult citizens. They seek 'simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares and intimate and sustaining emotional bond.'

"This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects and individual’s ability to make deeply personal choices about love and family free from government interference."

The judge also tossed a barb at Virignia's former attorney general, Republican Ken Cuccinelli.

"Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices – choices, like the choices made by every other citizens, that must be free from unwarranted government interference," the judge wrote.

"Virginia’s former attorney general directed colleges and universities in the commonwealth to eliminate protections that had been in place regarding 'sexual orientation,' 'gender identity,' 'gender expression' or like classification from the institutions’ nondiscrimination policies. This record alone gives rise to suspicions of prejudice sufficient to decline to defer to the state on this matter."

In March 2010 Cuccinell informed the state's public colleges and universities that they had no legal foundation for protecting gay students and employees from discrimination because the General Assembly had not granted such authority. The move outraged gays and led to McDonnell issuing a statement opposing any forms of discrimination.

Less than an hour after he was sworn in Jan. 11, Gov. Terry McAuliffe signed an executive order barring discrimination in state hiring. It protects gays and, for the first time in state history, transgender Virginians.
The plaintiffs' lead attorneys in the Norfolk case were Theodore B. Olson and David Boies, who had been on opposite sides in Bush v. Gore, the cliffhanger presidential election that went to the U.S. Supreme Court in 2000.

"Through its decision today, the court has upheld the principles of equality upon which this nation was founded," Olson said in a statement Thursday night.

"Virginia's prohibition on marriage for same-sex couples regulates gay and lesbian Virginians to second-class status. 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."

Adam Umhoefer, executive director of the American Foundation for Equal Rights, which led the challenge to the Virginia law, said: "The court's decision is clear: where you live should not determine who you can marry."

"Everyone -- in Virginia and every other state -- should have the freedom to dedicate their life to the person they love, and every state should recognize that right equally among all Americans. Today's victory gets us one step closer to making that a reality."

Herring said the case will continue to play out, likely awaiting resolution in the U.S. Supreme Court.
"When we announced the decision to change Virginia's legal position in Bostic v. Rainey, I said that the case presented fundamental questions that need to be decided by a court, and may ultimately need to be decided by the Supreme Court," he said.

"That remains true today. The legal process will continue to play out in the months to come, but 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."

The judge's ruling in the Norfolk case does not affect a separate challenge to the state's ban playing out in federal court in Harrisonburg. A motion for summary judgment is pending in that case.

The American Civil Liberties Union, the ACLU of Virginia, Lambda Legal, and the law firm Jenner and Block filed that case on behalf of two couples in Harrisonburg. The Harrisonburg case has been certified as a class action representing all same-sex couples in the state.

"This is a wonderful day for all loving and committed couples in Virginia who only ever wanted the same protections for their families as anyone else," said Claire Guthrie Gastanaga, executive director of the ACLU of Virginia.

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"Fear Eats the Soul"