11:50am UPDATE: Speaking Friday from Richmond, Attorney General Herring "Although this is far from over, it remains a great day for equality in Virginia."
Herring stated that same-sex couples will not be allowed to marry and clerks will not issue licenses, noting that he realizes it's difficult to wait for loving to couples to wait even a day longer to be able to marry.
NORFOLK-A federal judge in Norfolk has ruled Virginia's ban on same-sex marriage as "unconstitutional."
Timothy Bostic and Tony London were denied a marriage license by the Norfolk Circuit Court on July 1, 2013.
Speaking outside their home Friday, London said he and his partner of 24 years were "very, vey glad to be out here and put a face on it (the issue) with everyone else. It could not have happened without support and to everybody, the attorneys, everybody. Thank you so very much, thank you so very much."
Bostic added, “It’s important to us to get married in the state we love … in the state we call home.”
Judge Arenda L. Allen Wright stayed her injunction, however, directing both sides to submit a proposed final order by no later than March 14. An appeal is expected to the U.S. Court of Appeals for the Fourth Circuit in Richmond.
The ruling came late Thursday after a hearing last week where Attorney General Mark Herring and others made arguments about the 2006 voter-approved ban called the Virginia Marriage Amendment, a provision in the state Constitution that prohibits same-sex marriage.
Same-sex supports and traditional marriage supporters expect that the case to be decided in the U.S. Supreme Court.
In her 41-page ruling (see attachment), Judge Allen-Wright says, "These laws deny the plaintiffs their rights to due process and equal protection guaranteed under the 14th amendment of the United States Constitution."
She ruled that the law interferes with the fundamental right to marry and not only failed such "strict scrutiny," but lacked even a "rational basis."
Attorney General Mark R. Herring called the decision a victory for the Constitution and for treating everyone equally under the law.
"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. 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. 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."
"Virginia has erected a wall around the gay and lesbian community," said Bostic attorney Ted Olsen to open the hearing last week. "The Supreme Court has said marriage is a fundamental right at least 14 times, calling it vital to America and being fundamental to the core of the individual."
Much of the debate that lasted nearly two hours centered about marriage - whether it was a fundamental right - and the issue of children.
"I contend we have marriage laws because we have children, not because we have adults," said Austin Nimocks, senior counsel with Alliance Defending Freedom. "A lot has changed in the world, but what has not changed is how a child is created and comes into this world."
Nimocks represented Prince William County in the hearing, where another challenge to Virginia's gay marriage ban is taking place. Carol Schall and Mary Townley of Chesterfield joined the case. The couple married in California in 2008. They have a teenage daughter and want Virginia to recognize their marriage.
However, in her ruling, Judge Allen-Wright says "The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court's power, they and all others shall have."
"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 Gastañaga, executive director of the ACLU of Virginia. "The court is right to strike down this sweeping and discriminatory ban. We congratulate the attorneys and their clients."