RICHMOND, Va. (AP) — Virginia’s same-sex marriage ban was ruled unconstitutional on Monday in the first such decision by a federal appellate court in the South.
“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” Judge Henry F. Floyd wrote.
The 2-1 ruling applies throughout the circuit that also includes West Virginia, Maryland, and the Carolinas, where the attorneys general split Monday on what they’ll do next.
Virginians voted 57 percent to 43 percent in 2006 to amend their constitution to ban gay marriage. Virginia laws prohibit recognizing same-sex marriages performed in other states. Floyd said such measures “impermissibly infringe on its citizens’ fundamental right to marry.”
The 4th U.S. Circuit Court of Appeals in Richmond is the second federal appellate court to overturn gay marriage bans, and the first to affect the South, a region where the rising tide of rulings favoring marriage equality is testing concepts of states’ rights that have long held sway.
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under 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 U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.
The 6th Circuit in Cincinnati will hear arguments on Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8. The 10th Circuit in Denver overturned Utah’s ban in June.
“Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans,” said plaintiffs’ attorney David Boies. “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.”
Defenders of gay marriage bans are likely to ask for a stay pending their next appeal; otherwise, licenses could be issued to Virginia’s same-sex couples in 21 days. And once it becomes final, the decision will apply to the entire circuit, American Civil Liberties Union lawyer James Esseks said.
North Carolina’s top lawman, Roy Cooper, quickly announced that he’ll stop defending his state’s ban, saying it is “time to stop making arguments we will lose.” But a spokesman said South Carolina’s attorney general, Alan Wilson, sees no need to change course.
Maryland already allows same-sex marriages. West Virginia Attorney General Patrick Morrisey, for his part, said he’s reviewing the decision and won’t comment until it’s final.
The ruling came as Colorado’s attorney general, John Suthers, asked his state Supreme Court Monday to stop county clerks from issuing licenses to gay and lesbian couples. But North Carolina’s Cooper said his fellow attorneys general should give up the fight.
“In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable,” Cooper said in a statement. “All the federal courts have rejected these arguments each and every time. So it’s time for the State of North Carolina to stop making them.”
The decision by U.S. District Judge Arenda Wright Allen that Virginia’s ban violates the U.S. Constitution’s equal protection and due process guarantees was challenged by two circuit court clerks whose duties include issuing marriage licenses. They were supported by the right-wing legal group Alliance Defending Freedom, based in Scottsdale, Arizona.
The group said it may ask for a full circuit rehearing, or appeal directly to the Supreme Court.
“Every child deserves a mom and a dad, and the people of Virginia confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union,” ADF Senior Counsel Byron Babione said.
Carl Tobias, a law professor who watches the 4th Circuit closely, said he expects a direct Supreme Court appeal, since there is little reason to expect a different outcome from the full circuit, given its current makeup.
The circuit long had a reputation as one of the nation’s most conservative courts, but that has changed in the last five years.
Most of the 14 active judges are Democratic appointees, including five named by President Barack Obama. Floyd was initially appointed as a federal judge in South Carolina by George W. Bush, and then nominated for the appellate court by Obama. Roger Gregory, who joined Floyd in the majority, was a recess appointment of Bill Clinton, re-nominated by Bush in 2001. Paul V. Niemayer, who wrote the dissent, was appointed by George H. W. Bush.
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 the state where they are raising a 16-year-old daughter.
“I am proud that the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day,” Virginia Attorney General Mark Herring said. “We are fighting for the right of loving, committed couples to enter the bonds of marriage.”
Associated Press writers Brock Vergakis in Norfolk, Matt Barakat in McLean, Larry O’Dell in Richmond; Allen Breed in Raleigh, North Carolina; Jeffrey Collins in Columbia, South Carolina; and Amanda Myers in Cincinnati contributed to this report.
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