Virginia inching towards legalizing same-sex marriage


by 13News Now & The Associated Press

Posted on July 28, 2014 at 2:23 PM

Updated Tuesday, Jul 29 at 6:13 AM

RICHMOND (AP) - A federal appeals court ruled Monday that Virginia's same-sex marriage ban is unconstitutional, the latest in a string of decisions overturning bans across the country.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled that state constitutional and statutory provisions barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution.

A jury of eight men and four women was seated Monday evening

Virginia's same-sex marriage bans "impermissible infringe on its citizens' fundamental right to marry," Judge Henry F. Floyd wrote in the court's opinion.

Virginia could be one step closer to making same-sex marriage legal 
The ruling does not mean same-sex marriage is immediately legal in Virginia. The ruling does not go into effect for 14 days. During that period, opponents can file a motion asking the court to delay enforcement of the ruling while an appeal is filed to the U.S. Supreme Court.

Senior Counsel Byron Babione said they are consulting with their client and "considering her options."

"Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court. If the high court remains consistent with its acknowledgement in its Windsor decision of the right of states to define marriage, the states will ultimately be free to preserve man-woman marriage should they choose to do so,” Babione said.

Read today's ruling here
The Virginia gay marriage case is one of several that could go to the U.S. Supreme Court.  13News now legal analyst Kevin Duffan says the U.S. Supreme Court will choose whether or not they want to hear the case.

"This has been on track for the Supreme Court all along and will ultimately be the defining case on gay marriage in the United States," Duffan said. 

In February, U.S. District Judge Arenda Wright Allen ruled that Virginia's same-sex marriage ban violates the U.S. Constitution's equal protection and due process guarantees. Lawyers for two circuit court clerks whose duties include issuing marriage licenses appealed. Attorney General Mark Herring, representing a state official also named as a defendant, sided with the plaintiffs.
"Marriage is one of the most fundamental rights - if not the most fundamental right - of all Americans," David Boies, an attorney for the plaintiffs, said in a statement. "This court has affirmed that our plaintiffs - and all gay and lesbian Virginians - no longer have to live as second-class citizens who are harmed and demeaned every day."
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court last year struck down a key part of the federal Defense of Marriage Act. Those rulings remain in various stages of appeal.
More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.
The Virginia lawsuit was filed by Timothy Bostic and Tony London of Norfolk, who were denied a marriage license, and Carol Schall and Mary Townley of Chesterfield County. The women were married in California and wanted their marriage recognized in Virginia, where they are raising a 16-year-old daughter.

“Each and every milestone in this fight for marriage equality brings Tony and me one step closer to making our dream of being married a reality,” said Plaintiff Tim Bostic. “Our victory today reminds us why we filed this lawsuit – to fight for respect and full equality not only for us, but for all Virginians.”

“The Circuit Court’s decision reminds me of how proud I am to be a Virginian,” said Plaintiff Carol Schall. “Mary and I have lived here for over forty years, have been in a wonderful relationship for nearly thirty, and have raised a beautiful daughter here in our home state. We could not be more thrilled with the judges’ decision.”

Attorney General Mark R. Herring called the court's decision a "victory for the principle of equality."

"I am proud that the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day," Herring said.

Statement from Attorney General Mark Herring
Two other same-sex couples, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, filed a similar lawsuit in Harrisonburg and were allowed to intervene in the case before the appeals court.

In 2006, Virginians voted 57 percent to 43 percent to approve the constitutional amendment banning gay marriage. Virginia laws also prohibit recognition of same-sex marriages performed in other states.

Senator Tim Kaine campaigned against the ballot initiative banning same-sex marriage in 2006 and said today's decision is a victory for equality.

"I am gratified that the 4th Circuit Court has recognized that this discriminatory provision has no rightful place in the Virginia Constitution,” Kaine said.

The Family Foundation expressed disappointment in the court's decision.  

"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,” said Victoria Cobb, President of The Family Foundation of Virginia.