Appeals court strikes down Virginia's ban on same-sex marriage

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An appeals court has struck down Virginia's ban against gay marriage.

The U.S. Court of Appeals for the Fourth Circuit on July 28 affirmed a federal district court's ruling striking down Virginia’s ban on marriage for same-sex couples.

The ruling by the three-judge panel will take effect in 21 days, unless the defendants file a motion for a stay or ask for a review by the full appeals court for the jurisdiction.

The case, Bostic v. Schaefer, included a class made up of about 14,000 same-sex couples in Virginia who either want to marry or who want their out-of-state marriages recognized.

The American Civil Liberties Union, the ACLU of Virginia, Lambda Legal and the law firm of Jenner & Block represent them.

Also, attorneys Ted Olson and David Boies and their law firms represent two couples in Norfolk in the case. These attorneys challenged Proposition 8 all the way to the U.S. Supreme Court. Olson stated in a news release, “Today’s decision stands as a testament that all Americans are created equal and denying loving gay and lesbian couples the opportunity to marry is indefensible."

In the Virginia ruling, Judge Henry F. Floyd wrote, “Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. 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.” 

“The historic Supreme Court case that allowed for people of different races to marry, so providentially named Loving v. Virginia, started here,” said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, who argued the case for the class before the federal appeals court. “In the 47 years since, committed same-sex couples in the commonwealth have been patiently waiting for the freedom to marry the person they love. Today’s decision sends a message that everyone deserves the dignity and protection that only comes with marriage.”

Joanne Harris, one of the plaintiffs, said in a news release from the ACLU, “We’re overjoyed that we’re a step closer to being recognized by our loved ones and community the same way that all of our opposite-sex married friends and relatives are. Although Jessi and I are absolutely committed to each other and our son, marriage holds an unparalleled meaning, both legally and emotionally.”

If there is no further appeal, whether to the full appeals court or to the U.S. Supreme Court, the decision will be final and same-sex couples could begin marrying in Virginia. The ruling also could impact similar bans in the remaining Fourth Circuit states — North Carolina, South Carolina and West Virginia.

“This news is thrilling. We argued that barring Virginia same-sex couples from marriage is unconstitutional and harms families and the court agreed. With this ruling, all of Virginia’s same-sex couples are one step closer to the freedom to marry,” stated Greg Nevins, counsel in Lambda Legal’s Southern Regional Office in Atlanta. “The fact that we’re seeing more and more decisions like these shows that America is ready for marriage equality.”

The decision marks the third time since the Supreme Court struck down Section 3 of the U.S. Defense of Marriage Act in U.S. v. Windsor last year that a federal appeals court has declared that state laws denying same-sex couples the freedom to marry or refuse to recognize the out-of-state marriages of same-sex couples are unconstitutional.

“Marriage is a fundamental right of all Virginians,” stated Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. “This resounding decision sends a message to every committed and married couple in the commonwealth that they are equal in the eyes of the law. The Virginia ACLU is proud to be able to say that we were advocates for the Lovings almost 50 years ago and grateful also to have had the privilege of representing the loving couples across Virginia who won the freedom to marry today.”

Virginia Attorney General Mark Herring, who is named in the suit as a defendant, supports marriage equality and has sided with the plaintiffs in this case.

And, after the 2-1 ruling from the appeals court on July 28, North Carolina's attorney general said he no longer would defend his state's constitutional ban on same-sex marriage.

Ahead on the calendar in the legal drive for the freedom to marry: The 6th Circuit Court of Appeals in Cincinnati will hear arguments on Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit Court of Appeals in Chicago will hear arguments on Aug. 26 for Wisconsin and Indiana.

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