By Matthew Cella and Andrea Noble-The Washington Times
A federal judge issued a landmark ruling Thursday night striking down Virginia’s constitutional amendment banning gay marriage and moving the Old Dominion a step closer to being the first state in the traditional South where such unions are legal.
The 41-page opinion by U.S. District Court Judge Arenda L. Wright Allen ruled that the constitutional amendment and “any other Virginia law that bars same-sex marriage or prohibits Virginia’s recognition of lawful same-sex marriages from other jurisdictions unconstitutional.”
The ban will remain in effect while appeals are heard.
Attorney General Mark R. Herring, who announced the opinion Thursday night via Twitter, applauded the ruling but said he expected a prompt appeal would be filed to the U.S. Circuit Court of Appeals for the 4th Circuit.
“The decision is a victory for the Constitution and for treating everyone equally under the law,” Mr. Herring said. “It is the latest step in a journey towards equality for all Virginians, no matter who they are or whom they love.”
The opinion comes after the attorney general said last month he would not defend the state’s voter-approved constitutional amendment banning same-sex marriage and that he would actively work to overturn the law.
Judge Allen, who was appointed by President Obama in 2011, said the ban denies the plaintiffs in the case due process and equal protection under the Fourteenth Amendment to the U.S. Constitution.
“Our nation’s uneven but dogged journey toward truer and more meaningful freedoms for our citizens has brought us continually to a deeper understanding of the first three words in our Constitution: we the people,” Judge Allen wrote. ” ‘We the People’ have become a broader, more diverse family than once imagined.”
She drew parallels in her opinion between this case and the historic Loving v. Virginia Supreme Court case in which the justices struck down state laws prohibiting interracial marriage.
Judge Allen led the opinion with a passage from remarks made in 2007 by Mildred Loving, the black woman who served as plaintiff in the 1967 case.
Virginia’s constitutional amendment banning gay marriage passed a public vote in 2006, 57 percent to 43 percent. But amid a growing number of states legalizing the unions, a poll conducted in October by Christopher Newport University’s Judy Ford Wason Center for Public Policy showed 56 percent of likely voters opposed the ban on same-sex marriage, while 36 percent support it and 7 percent had no opinion.
Gay marriage advocates were hopeful after a Democratic sweep of the state’s top three offices in November, led by Gov. Terry McAuliffe. But Republican control of the House of Delegates made any legislative change to Virginia’s constitutional amendment unlikely.
Virginia now joins Utah and Oklahoma in having voter-approved prohibitions on same-sex marriage lifted when federal courts intervened. It’s the first state in the former Confederacy in which gay marriage would be legalized.
Last year, the U.S. Supreme Court struck down the federal Defense of Marriage Act, which bars the federal government from recognizing same-sex marriage in states, as unconstitutional. Mr. Herring said the Constitution is “the law of the land” and a state law and state constitution cannot trump it.
Seventeen states and the District have legalized same-sex marriage, while 29 states have constitutional amendments banning it.
The federal case involves four plaintiffs. Timothy Bostic and Tony London applied for a marriage license from the Norfolk circuit court clerk on July 1, but were denied. Carol Schall and Mary Townley, who have lived in Virginia since 1982, were married in California in 2008 and want their marriage to be recognized in the commonwealth