U.S. appeals court hears challenge to Virginia’s gay marriage ban

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Timothy Bostic and Tony London. - PHOTO: AFER

The U.S. Court of Appeals for the Fourth Circuit on May 13 heard oral arguments in what could be a landmark case for marriage equality and a debate on whether gay and lesbian couples have the right to marry under the U.S. Constitution.

In February, ruling in Bostic v. Schaefer, a federal judge said that Virginia’s prohibition against same-sex marriage is unconstitutional — a violation of the Equal Protection and Due Process Clauses of the 14th Amendment. That ruling has reached the appeals court.

Due Process Clauses of the 14th Amendment. That ruling has reached the appeals court.

The gay couples involved in the case are represented by Theodore B. Olson and David Boies, who were the lead attorneys for the American Foundation for Equal Rights in the challenge to California’s Proposition 8. In that case, the anti-gay ban was overturned in federal court.

Olson said on May 13, “Today, the Fourth Circuit heard precisely why our plaintiffs and gay men and lesbians across the country are entitled to exercise their fundamental right to marry. Our plaintiffs have shared decades of love and commitment, and they desire nothing more than to have their home state recognize those relationships.

Boies, in a statement, added, “Our plaintiffs represent thousands of Virginians — and millions of Americans — who have been denied their fundamental right to marry the person whom they love. These discriminatory laws excluding loving gay and lesbian couples from marriage violate their personal freedom and cause them and their families serious harm.”

The case also involves attorneys from the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal and the law firm Jenner and Block. The attorneys represent a certified class of all same-sex couples in the state who originally had filed a class action suit seeking to overturn Virginia’s ban on gay marriage.

The suit was filed in August on behalf of Joanne Harris and Jessica Duff of Staunton, Virginia, and Christy Berghoff and Victoria Kidd of Winchester, Virginia.

"We’re hopeful that we’ll finally be able to pledge our love to each other like any other couple that’s ready to make that commitment," said Harris. "Jessi and I are completely devoted to each other, and it’s important to us and to our son that our family is recognized in Virginia with all the dignity and protections that only come with marriage."

The appeals court panel that heard the arguments consisted of Judge Henry F. Floyd, Judge Roger L. Gregory and Judge Paul V. Niemeyer.

The states in the court’s jurisdiction include Virginia, West Virginia, North Carolina and South Carolina.

"All across the country courts are recognizing what a majority of Virginians already know — that it's unfair to exclude same sex couples from marriage," said James Esseks of the ACLU. "Today brings us one step closer to the day when all families are able to marry in their home states. Every family should know that they will be able to care for each other no matter what."