RICHMOND, Va. — A federal appeals court on Monday struck down Virginia’s ban on same-sex marriage, the first such decision in a southern state and another victory for gay and lesbian couples seeking the right to legally wed.
“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” the divided three-judge panel of the 4th U.S. Circuit in Richmond concluded.
The decision follows similar conclusions reached in recent weeks by another federal appeals court when tossing out bans in Utah and Oklahoma.
Lower-court judges in a dozen states have also found voter-approved restrictions on the ability of same-sex couples to get married to be unconstitutional.
The 4th Circuit opinion also will affect marriage laws in other states within its jurisdiction, including West Virginia, North Carolina and South Carolina. Only Maryland has legalized same-sex marriage.
As a result, North Carolina prosecutors will drop opposition to challenges to state’s same-sex marriage ban, WGHP reported.
Separate orders would have to be issued for affected states in the region outside Virginia.
Gay and lesbian couples in Virginia cannot marry in the state until the current case is fully resolved. That may not happen until the Supreme Court decides whether to review the constitutional issues pending in several states, a process that may not begin at the earliest until later this year.
Couples Celebrate in Richmond’s Carytown
On Monday night, supporters of same-sex marriage held a victory celebration at Carytown’s New York Deli.
“It’s one more step in the right direction,” said India Lipton. Lipton and her partner, Shirley Lesser, were celebrating with their 2-year-old son, Dylan. While Lesser and Lipton have a civil union, they hope they can soon apply for a marriage license in the state of Virginia.
“We’re here by choice,” says Lesser. “We give back to the community, we pay taxes, we own a home and we’ll soon be a part of the school system. This is where we choose to live and this is where we should be able to marry.”
Attorney General Mark Herring also stopped by the deli to congratulate supporters. Herring has maintained Virginia’s ban on same-sex marriage was unconstitutional since taking office in January.
“I’m just really glad that we were able to have a part in vindicating the rights of thousands of Virginians,” Herring said.
A federal judge in February struck down Virginia’s ban on constitutional grounds, the first time that had been done in a traditionally southern state. The prohibition has effectively been in place since Colonial days, but only incorporated into the state’s constitution in 2006.
Monday’s ruling continues a near-unbroken string of state and federal court victories nationwide in the past year, giving marriage-equality supporters unbridled encouragement that their ultimate goal will be achieved: striking all laws limiting the rights of homosexuals to wed.
“The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life,” said the Virginia judges. “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.”
In dissent, Judge Paul Niemeyer said the issue should not be in the hands of the courts.
Same-sex marriage is legal in 19 U.S states plus the District of Columbia: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington state.
A separate federal appeals court next month will hear separate challenges to same-sex marriage bans in the four states in its jurisdiction: Michigan, Ohio, Kentucky, and Tennessee.
Reaction to the ruling
“I am overjoyed by the news that, as a result of today’s ruling, Virginia will become a state where two people who love each other can get married regardless of their sexual orientation,” Virginia Governor Terry McAuliffe said in a statement. “This is a historic ruling for our Commonwealth, and its effect will affirm once again that Virginia is a state that is open and welcoming to all.”
Senator Tim Kaine (D -Virginia) called the ruling a “big win” for marriage equality in Virginia.
“I am so happy that yet another federal court agrees that Virginia’s ban on gay marriage is unconstitutional,” Senator Mark Warner (D) – Virginia said in a statement. “Allowing people to marry who they love is the right thing to do, and it also strengthens our families and our communities. Virginia should be a welcoming place for all, and I am very pleased at the rapid progress toward marriage equality that we’re seeing in Virginia and around the country.””
The Family Foundation, which calls itself Virginia’s leading pro-family public policy organization, said it was disappointed with the ruling.
“Marriage expresses the reality that men and women bring distinct, irreplaceable gifts to family life, especially for children who deserve both a mom and a dad,” Family Foundation of Virginia President Victoria Cobb said in a statement. “Virginia’s laws have always rightly reflected the true and complementary nature of marriage. A substantial majority of Virginia’s voters approved an amendment to Virginia’s Constitution that affirms that marriage is the union of one man and one woman. It’s unfortunate that the court rejected the right of Virginians to define marriage consistent with their concern with what’s best for children and society as a whole. It’s sad that the judges have chosen to disenfranchise the 1.3 million Virginians who legally voted to amend our constitution.”
Rallies outside the hearing
While the three-judge panel heard oral arguments on the topic in May, hundreds of people attended dueling rallies outside the United States Court of Appeals for the Fourth Circuit in downtown Richmond.
Inside the courtroom – Judge Paul V. Niemeyer, Judge Roger L. Gregory, and Judge Henry F. Floyd heard arguments from lawyers on both sides of the issue.
It was an exchange full of interruptions – with lawyers being interrupted more than 40 times during the course of the one hour plus hearing. [Click here to listen to an audio recording of today’s court hearing]
After the hearing Virginia Attorney General Mark Herring, who earlier this year said he would refuse to defend Virginia’s law that prevented same-sex marriage, said he believed the court would ultimately rule Virginia’s same-sex marriage ban as unconstitutional.
“Nothing that was said in the courtroom today alters the basic incompatibility of this discriminatory ban with the protections guaranteed by the Constitution,” Herring (D – Virginia) said following the May hearing. “Every single federal court that has considered the question since last summer’s ‘Windsor decision has reached the same conclusion.”
The lawyers who argued to favor of Virginia law said marriage has been defined as a relationship between a man and a woman for hundreds of years and that there is no legal ground for change.
“The Constitution has always protected the right to enter into the union of husband and wife, it has not done anything beyond that,” attorney Austin Nimocks said. “We recognize that every child has a mom and a dad and every child deserves as much as possible to know, be loved and be raised by the mother and father that brought them into this world.”