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Virginia Judge Strikes Down Gay Marriage Ban

11:15 PM, Feb 13, 2014   |    comments
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Richard Wolf, USA TODAY

A federal judge in Virginia has struck down the state's prohibition on same-sex marriage, joining a growing list of state and federal courts that have granted gay and lesbian couples the right to marry following two landmark Supreme Court rulings in June.

District Court Judge Arenda Wright Allen's ruling had been expected since the case was heard in her Norfolk courtroom Feb. 4.

Her decision follows similar rulings in Oklahoma and Utah, even more conservative states, where federal judges recently struck down gay marriage bans. Those cases are scheduled to be heard by a federal appeals court panel in April; the Virginia case now joins them in a race toward the Supreme Court.

Seventeen states and the District of Columbia allow same-sex marriage. Since the high court restored gay marriage rights in California and struck down a portion of the federal Defense of Marriage Act in June, Hawaii and Illinois joined the passed new laws, and state courts in New Jersey and New Mexico legalized the practice. Nearly four dozen lawsuits remain pending in 24 states.

Wright Allen's opinion, like others in recent months, made note of the high court's ruling last year that the federal law denying benefits to legally married same-sex couples violated the Constitution's guarantees of equal protection and due process.

"Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia's adult citizens," she wrote.

The Virginia ban, passed by voters in 2006, had suffered several blows in recent months. First came the decision by Theodore Olson and David Boies, high-powered litigators who successfully challenged California's Proposition 8 ban last year, to join the legal team representing two gay and lesbian couples. Then came the announcement by newly elected state Attorney General Mark Herring, a Democrat, that Virginia would stop defending its law and join those seeking to defeat it.

Olson, Boies and state Solicitor General Stuart Raphael joined forces at the hearing in Wright Allen's court. They compared the ban on same-sex marriages, civil unions and domestic partnerships to Virginia's discriminatory history of blocking school integration, interracial marriage and the right of women to attend Virginia Military Institute.

"Marriage is a fundamental right. The United States Supreme Court has said that something like 14 times, by my count," said Olson, a former U.S. solicitor general under George W. Bush. The ban "denies them equal dignity because of who they are."

Stripped of the state's backing, the ban was left to be defended by lawyers for two local circuit court clerks whose jobs include issuing marriage licenses. They raised myriad issues, ranging from Virginia's 400-year tradition of heterosexual marriage and states' jurisdiction over domestic matters to the contention that marriage should be reserved for couples that can procreate.

"Marriage and procreation are fundamental to the very existence and survival of the race," said Austin Nimocks of the conservative Alliance Defending Freedom. "Every child has a mother and a father."

The couples at the center of the case are Timothy Bostic and Tony London, who filed the lawsuit in Norfolk last July, and Carol Schall and Mary Townley, who joined up later. Schall and Townley, whose marriage in California isn't recognized by Virginia, have a teenage daughter.

Another lawsuit in western Virginia, filed by Lambda Legal and the American Civil Liberties Union, was certified last week as a class action by federal District Court Judge Michael Urbanski. That means all gay and lesbian couples seeking to marry or have their marriages recognized could be affected by the outcome.

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