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US Court: Virginia marriage is for all lovers

By Michael Felberbaum

Associated Press

Published: Monday, July 28 2014 5:30 p.m. MDT

Updated: Monday, July 28 2014 6:31 p.m. MDT

Feb. 4, 2014 - Plaintiff in the Bostic v. Rainey case, Tony London, waves to the crowd as he and his partner, Tim Bostic, right, leave Federal Court after a hearing on Virginia's ban on gay marriage in Norfolk, Va. Virginia's same-sex marriage ban is unconstitutional, a federal appeals court ruled Monday, July 28, 2014 in a decision that could overturn similar prohibitions in the Carolinas and West Virginia.

Steve Helber, Associated Press

Enlarge photo»

RICHMOND, Va. — 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."

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