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

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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. 


  • Mike Jones

    It’s sad how people call themselves Christians and say they believe in God and what His word says but when it interferes with what they want to do they quickly denounce Him. Enjoy your so-called freedom while you can. All I can say is remember Sodom and Gomorrah.

    • Proud Lesbian!

      we still believe in God but God made us who we are and if it just so happen that we fell in love with each other (even though we are both females) than so be it. If you can be happily married with who you chose than we should also be able to be happily married with who we chose. I been with my girlfriend for years and I wouldn’t want it or have it no other way. I love my girlfriend and I hope and pray that we can soon get married here where we both lived our whole lives

      • Gwen Cummings

        God didn’t make you a lesbian! He isn’t flawed and He did not make us flawed but in His image. All of us then fall short, of course – but blaming that of the Lord is just horrid.

        Do what you want – like you say, none of others’ business. But when you make your choices at least own them as YOUR choices – for better or worse.

      • Beth M

        Thank you Gwen for very clearly showing that this is about discrimination and hatred. “God didn’t make you a lesbian! He isn’t flawed and He did not make us flawed but in His image.” So you assume lesbians are “flawed”, therefor not worthy of equal protection under the law? Glad to know you have the authority to judge others. Even Jesus said he wasn’t able to judge others… you must be better than Him. Wow…

    • airjackie

      Good point Mike in the 50’s Christian religious leaders and the faithful said blacks were evil and God wanted them to be servants. Christians fought hard before the change to Equality. Many still feel laws should not apply to States. Just think if the Confederate Army had won the War things would be as they were and people would be in their place. Virginia made history with the Lovings vs Virginia and still people are upset as look at the US President is biracial. When the Democrat Dixiecrats and the Republicans ruled the nation the South was one of the riches parts of America.

    • Dustin Cavanaugh

      “but it is against my Constitutional rights to have your lifestyle shoved in my face” OH THE IRONY HERE! IT’S AMAZING!

    • Beth M

      Mike, do you eat bacon? Do you stone your neighbor if he works on the Sabbath? I’m sure you don’t see the hypocrisy of cherry-picking the Bible, yet feeling fine imposing your views on others. And what in the world thinks you have the right to FORCE your religion on others? If you think gay marriage is a sin, fine, don’t marry a gay. But religious freedom doesn’t mean that you have the freedom to force your religion on others!

    • Beth M

      Mike. “Religious Freedom” doesn’t mean that one group has the freedom to force its religious beliefs on others. If you think gay marriage is a sin, fine don’t marry a gay. Your church will also still be able to not perform gay marriages. (There are still churches in the south that refuse to perform interracial marriages, and while I find that repugnant, that’s fine because those couples can still get married elsewhere.) What you are saying is that a minority of Virginians should NEVER be allowed to participate in the 1,138 rights, benefits and protections afforded by marriage simply because YOU think its a sin.

  • Diana

    It amazes me how an Obama appointed judge can override the Virginia voters. This is another far left grab for immorality. What you do in your home is your business but it is against my Constitutional rights to have your lifestyle shoved in my face. We have the right to our beliefs and values and no matter what the liberal side thinks, we don’t have to accept,condone or provide services to you if it goes against our beliefs. Time for us to head to court and take our rights back.

    • Dustin Cavanaugh

      If I believed you should have your tongue cut out and you not having your tongue cut out was against my beliefs then do you think you should have to cut your tongue out for me? This is strictly hypothetically but you don’t have to bite your tongue but your beliefs are your beliefs, if anyone is shoving anything in anyone’s face it’s you saying what these people can do and can’t do in their our private dwelling. If you have a problem with doing things for them then I point you to. Matthew – CHapter 7 – “1 Judge not, that ye be not judged.

      2 For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.

      3 And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?

      4 Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam [is] in thine own eye?

      5 Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye.”

      Is your life sin free? Don’t lie. Deny them entry into your life and how do you know God won’t deny you entry into his?

    • Taylor Moore

      Then, Diana, it is a violation of their Constitutional rights to have YOUR lifestyle shoved into their faces. Guess you shouldn’t be allowed to get married to someone you love, too.

  • Roger Miller

    We are missing one important point here. It doesn’t matter which side of the argument you come down on, Mark Herring refused to argue the case, making it clear that he felt it was unconstitutional. Whether he agrees or not, that is not his distinction to make. He is an elected official that is REQUIRED to represent that 57% of voters that voted for the Virginia Marriage Amendment. It’s his job. He doesn’t get to decide which cases he will argue for the state. Otherwise, he should resign.

    • Dustin Cavanaugh

      His job is to uphold the constitution first and foremost. Also how do you expect him to arguefor something he doesn’t agree with? Anyways you are a bigot so it doesn’t really matter.

      • Gwen Cummings

        Dustin – some simple “Law 101”

        An AG is not empowered to determine constitutionality. That’s up to the courts, and ultimately SCOTUS. An AG has no more legal standing to rule something constitutional (or not) than do you or I.

        Rather, he is REQUIRED BY LAW to accept as legally correct and binding all valid laws enacted by the Legislative Branch. Until a law is ruled NOT legal he is REQUIRED to enforce it. THAT, Sir, is his job.

        I’m guessing an AG refusing to uphold valid law is an offense that normally would result in removal from office. Of course, the same thing has happened in, for example, Caifornia with Prop. 8 and neither the AG nor the governor there were canned. So, given we are now in a lawless country, Herring will probably skate.

      • Dustin Cavanaugh

        HE is not the one determining it’s constitutionality. HE is just refusing to support it because HE DOES NOT support it. HE is not the one deciding it’s constitutionality. THIS has been going to court way before either him or the governor were even in office. Stop crying and get used to people being equal you bigot.

      • Beth M

        Exactly Dustin. The previous AG (he who should not be named) also refused to support laws he thought was unconstitutional, such as a law limiting access to education. Their job is to uphold the law, and sorry folks but the US Constitution trumps an amendment to the Virginia Constitution.

      • athynz

        Gwen were you okay with Cuccinelli not defending a law that he considered unconstitutional i.e. Obamacare? Or did you feel that it was an abuse of his position? I’m curious because if you supported Cuccinelli’s actions why not support Herring’s as they are much the same.

    • Sandy

      Please see the part about (former) attorney general Jerry Kilgore…

      [JURIST] Virginia Attorney Genera lMark Herring [official profile] announced [press release] Thursday that his office will no longer defend legal challenges to the commonwealth’s ban on same-sex marriage. Herring explained his position saying, “After thorough legal review, I have now concluded that Virginia’s ban on marriage same sex couples violates the Fourteenth Amendment [text] of the US Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender.” Herring’s choice to refuse to defend the law is rare but not unprecedented. Former Virginia attorney general Jerry Kilgore joined with 43 other state attorneys general in a legal brief to argue that an attorney general is properly carrying out his constitutional duties when he seeks to invalidate a law that he believes to be unconstitutional. Virginia’s shift in legal position [press release] came after the inauguration of Governor Terry McAuliffe [official website], who replaced Bob McDonnell after he was indicted for accepting gifts while in office [BBC report], and Herring replaced Ken Cuccinelli as attorney general. The previous administration defended the same-sex marriage ban.

  • Jay

    The Bible might say homosexuality is wrong. This is a book that not only allowed for slavery but even gave a mandate on how to treat slaves.

    Exodus 21:20-21 And if a man smite his servant, or his maid, with a rod, and he die under his hand; he shall be surely punished. Notwithstanding, if he continue a day or two, he shall not be punished: for he is his money.

    Also the purpose of our government is to protect the well being of its people, particularly those who are constantly oppressed. American slavery and even segregation in the South were once favored by the majority of the people within certain regions. Did that make it morally right? So, the problem with trying to justify that gay marriage is unconstitutional solely because it is a “law” of the state is that it leaves you morally inept.

  • MizViv

    I find it incredibly sad that the woman who officiated at my marriage is unable to marry the person she loves here in Virginia.

    I just hope that one day soon I will be able to attend her wedding.

  • Robo

    Welcome to the 21st Century…
    In 10 years or less folks will look at this and wonder what the fuss was all about.

  • Austin P

    If we are the image of God and we are the best thing he was able to come up with… Well, ‘He’ isn’t as great as you all think he is. Get a grip. Religion has harmed more people than it has helped.

  • C-

    This ruling does not impact my marriage one way or the other. It does make me happy because my fellow citizens will be treated equally under the law.

    Hey Virginia, don’t write unconstitutional laws. It’s a waste of everyone’s time. It should’ve never been part of the Virginia Constitution.

    And if you don’t want a gay marriage, don’t have one. Live and live. I know it’s too hard when it has to do with gays and gods….

  • me

    The “Bait & Switch” Con, Herring, thinks it is perfectly correct to use Constitution(s) for party agendas and refuse them for party agendas.
    Pick/Choose/Refuse whatever suits current Party pol-“I”-ticking
    Agendas. Use & Abuse at personal wills and whims.

  • me

    Correct Party Agenda is also “Law Suits Made to Suit” through set up
    Federal courts, with Party in Federal Power. It prefers to skirt,
    usurp, circumvents the legislated processes, by legislatures, established of, by, and “Law Makers” and enacted as Constitutional due process.
    Party prefers by hook, crook, or any means necessary for Our Will;
    Our Way, Come What May.
    To hell with the Majority of Voters of Virginia
    that enacted their Constitution, under Legal Process.

  • Ken Sosinsky

    There are different concepts of liberty, or the quality individuals have to control their own actions and how it relates to life under a social contract. In a civilized society, liberty requires boundaries to prevent a person who claims their right to control their own actions means imposing on other members of society’s right to liberty. There is a war going on in America where one specific group of Americans is claiming their religious liberty affords them power to abridge other Americans’ rights in spite of state and federal laws or guarantees of freedom in the U.S. Constitution. What the religious right and their Republican enablers are pushing in Congress and GOP-controlled states under the guise of religious liberty is religious tyranny, and now another group of Republican fascists are passing legislation to violate the Constitution and other Americans’ rights. Americans should not be deluded for one second that theocratic-driven laws denying Americans their Constitutional rights will stop until this country’s rule of law comes from the Christian bible and the people are ruled by a theocracy along the lines of the Islamic Republic of Iran and Taliban-controlled Afghanistan.

  • Keith Pullman

    There is no good reason to deny that we must keep evolving until an adult, regardless of gender, sexual orientation, monogamy or polyamory, race, or religion is free to marry any and all consenting adults. The limited same-gender freedom to marry is a great and historic step, but is NOT full marriage equality, because equality “just for some” is not equality. Let’s stand up for EVERY ADULT’S right to marry the person(s) they love. Get on the right side of history!

  • Glen Allen

    If discriminating against the gays and lesbians is unconstitutional, we had no right voting on it in 2006 in the first place. Discrimination is discrimination, I mean really, should gays and lesbians sit on the back of the bus, use separate drinking fountains, go to separate schools, be denied the right to vote, etc., etc.??? Get real, who flippin cares if they get married.

  • NS

    To the Citizens of the USA who do not believe in equal rights….You have it all wrong. Don’t be narcissistic and judge others and then expect not to be judged by the Lord himself. Don’t fall victim to the lies and sins that have been told to you by the sinners you surround yourself with. Believe that every man, woman and child should be treated equal and the Lord will believe in you. You can’t take politics with you when you die.

  • Too Much Gov't

    I want to know how this is fairness and equality to single people. This is discrimination to them. Why cant they have the same 1138 benefits?

  • TJ Smith

    we still believe in God but God made us who we are and if it just so happen that we fell in love with each other (even though she is my first cousin) than so be it. If you can be happily married with who you chose than we should also be able to be happily married with who we chose. I been with my cousin for years and I wouldn’t want it or have it no other way. I love my cousin and I hope and pray that we can soon get married here where we both lived our whole lives

  • John

    “ ‘If a man has sexual relations with a man as one does with a woman, both of them have done what is detestable. They are to be put to death; their blood will be on their own heads. (Leviticus 20:13 NIV)

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