Judge rules Virginia’s ban on same-sex marriage unconstitutional

Posted at 10:31 PM, Feb 13, 2014
and last updated 2014-02-14 00:06:32-05

NORFOLK, Va. (WTVR) – A federal judge declared late Thursday night that Virginia's ban on same-sex marriage is unconstitutional,  and issued a 41-page opinion which several times emphasized the notion of "unlawful prejudice."

News of the ruling was first posted on Herring's Facebook page and his Twitter account, and confirmed by Michael Kelly, Director of Communications for Attorney General Mark Herring.

"Equality in Virginia took a big step forward tonight as a federal district judge declared Virginia's ban on same-sex marriage to be unconstitutional," Herring, whose stance on gay marriage has flipped since 2006,  wrote.

"The judge issued a stay with her injunction pending appeal, meaning marriage licenses will not yet be issued to same-sex couples, but today is a great day for those who want to see all Virginians treated equally regardless of who they love."

A lawsuit challenging the commonwealth’s ban on same-sex marriage went before U.S. District Judge ­Arenda L. Wright Allen on February 4, in Norfolk. The case of Bostic vs. Rainey argued that the Virginia Marriage Amendment, passed in 2006 by 57 percent of voters, is unconstitutional.

Tim Bostic and Tony London are the Norfolk couple who applied for a marriage license last year, after 20 years together, and were denied.

Since then they have gained the support of Virginia’s top brass. State Attorney General Mark Herring and Governor Terry McAuliffe, both Democrats, have said they won’t defend the state’s constitutional ban.

Herring’s office issued a statement a couple of weeks ago saying they hope it“will be a landmark ruling in Virginia on one of the most important civil rights issues of our time.”

The judge concluded that prejudice is behind Virginia's same-sex marriage ban. "Justice has often been forged from fires of indignities and prejudices suffered," said Wright Allen.

"We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect."

The opinion also states that former directives issued by former Attorney General Ken Cuccinelli, to eliminate the state's non-discrimination protections of sexual orientation,  gave rise "to suspicion of prejudice sufficient to decline to defer to the state on this matter."

An excerpt from  the judge's conclusion reads:

"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. 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."

That ruling can be read in full here:  Bostic Memorandum Opinion.

Organizations that have worked towards marriage equality in the Commonwealth  for years, like Equality Virginia, said that the ruling is historic.

"The ruling finally puts Virginia on the path toward allowing lesbian and gay couples to marry the person they love here in the place they call home," James Parish, executive director for Equality Virginia said.

The lawsuit was on behalf of two couples, the other two plaintiff are women from Chesterfield County--Mary Townley and Carol Schall--who married in California and have a teenage daughter.

Speaking publicly Friday, Schall said that Valentine's Day will never be the same again for Virginians.

"A lot of people thought the timing wasn’t coincidental. Here was a decision made a day before Valentine’s Day where people are expressing their love for one another and all across the country it’s the day when gay couples go to courthouses seeking to get married only to be turned down," Dr. Bob Holsworth, political analyst, said.

The Family Foundation called into question the Valentine’s Day Eve announcement.

“The timing of this decision certainly calls into question Judge Wright Allen’s objectivity,” a Friday morning statement from the group stated. “This rushed release just prior to Valentine’s Day reeks of political show, making her ruling less a legal argument and more a press release. It’s disappointing that a federal judge would so blatantly expose her personal political agenda at the expense of not just marriage, but our entire social fabric.”

It still remains to be seen if Virginia will be the first state in the South to legalize same-sex marriage, though even the judge's ruling is seen as historic.

"While I deeply understand that it is difficult to ask loving couples to wait even a day longer to exercise their fundamental rights, our commitment to the rule of law dictates that this process moves forward in an orderly way that a stay will provide," Herring said at Friday's press conference.

"When a federal district court judge in Utah overturned that state’s ban on gay marriage without issuing a stay, couples who quickly married there have now found themselves in a legal limbo after the Supreme Court issued a stay pending appeal."

Herring concluded that Wright Allen chose the path " similar to the one pursued by the judge in the recent Oklahoma case, and in my opinion, it is the right path."

The video and transcript of Herring's comments are here.