Opinion

Struck down

Ruling finds Virginia’s same sex marriage unconstitutional, but it is stayed pending appeal

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Print this page by Veronica Garabelli
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Virginia Attorney General Mark Herring
(AP Photo/Richmond Times-Dispatch, Bob Brown)

The ultimate fate of Virginia’s same-sex marriage ban likely will be decided by the U.S. Supreme Court.

Opponents of the ban, however, were heartened by the February ruling of a federal

District Court judge finding it to be unconstitutional.

Norfolk-based U.S. District Court Judge Arenda Wright Allen stayed her decision pending appeal to the Fourth Circuit Court of Appeals in Richmond. That means Virginia’s same-sex marriage ban remains in effect until a final decision is reached in the case, probably in the nation’s highest court.

Gov. Terry McAuliffe praised Allen’s ruling as a step toward equality that also makes economic sense.

“In order to grow our economy and attract the best businesses, entrepreneurs, and families to Virginia, we must be open and welcoming to all who call our commonwealth home,” McAuliffe said in a statement. “As this case continues through the judicial process, I will enforce the laws currently on the books, but this decision is a significant step forward in achieving greater equality for all of our citizens.”

McAuliffe backed a decision by Virginia Attorney General Mark Herring not to defend the ban, an amendment to the state constitution, against a suit filed by same-sex couples living in Norfolk and Chesterfield County. Herring, who, like McAuliffe, took office in January, joined the plaintiffs in the suit.        

“Although this process is far from over, it remains a great day for equality in Virginia,” Herring told reporters at a press conference after the decision was announced.

In her 41-page opinion, Allen said that Virginia’s same-sex marriage ban unconstitutionally denied same-sex couples their fundamental freedom to choose to marry.

“Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family,” Allen said in the ruling.

The decision follows similar rulings in recent months by federal judges in Utah and Oklahoma. In Kentucky, a federal judge ruled that the state must honor same-sex marriages that had been legally performed in other states. The decision, however, did not address Kentucky’s same-sex marriage ban.

Virginia Del. Bob Marshall (R-Prince William), the author of the commonwealth’s same-sex marriage ban amendment, denounced Allen’s ruling.

“If homosexuals can marry whoever they love, then it follows that bi-sexuals should be legally allowed to marry two people, polygamists should marry several, and pedophiles should marry children,” he said in a statement. “There is no logical line to draw once marriage as we have known it from the beginning of time is abolished. “

Tony Perkins, president of Washington, D.C.-based Family Research Council, took aim at Herring in criticizing the decision.

“This ruling comes on the heels of Attorney General Mark Herring’s refusal to fulfill his constitutional duty to defend the state’s marriage law,” Perkins said in a statement.  “His lawlessness is an insult to the voters of Virginia who rightfully expected elected officials to uphold the laws and constitution of the state, not attack them as Herring has done.” 

At the press conference, the attorney general said it was important that the case move through the appeal process as quickly as possible.

“We are going to work very quickly to get an order in this case entered,” Herring said in response to a question about the case’s time frame moving forward.

On Jan. 23, VirginiaBusiness.com reported on Herring’s decision not to defend the commonwealth’s constitutional amendment banning same-sex marriage. “It’s time for the commonwealth to be on the right side of history and the right side of the law,” he said.


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