Court: State same-sex marriage ban unconstitutional

Liz Butterfield
Capital News Service

The fight for marriage equality for same-sex couples in Virginia continues to progress through the courts after a federal judge ruled the state’s ban on gay marriage unconstitutional last week.

Federal District Judge Arenda Wright Allen struck down the law used in the controversial Bostic v. Rainey case as unconstitutional in Norfolk’s federal court this past Thursday. Virginia Attorney General Mark Herring declared his support of the ruling against the same-sex marriage ban in the commonwealth.

“The ruling by Judge Arenda Wright Allen is yet another step forward in the long road toward ensuring that all Virginians are treated fairly and equally under the law,” Herring said.

Herring announced just days after coming into office his administration would not support the commonwealth’s law in federal court.

In her 41-page opinion, the judge cited violations of the due process and equal protection clauses of the 14th Amendment of the Constitution as factors that ultimately reversed the ban.

“What Judge Wright Allen affirmed is that couples like them who are committed to sharing the marital bond deserve to be treated equally under the law,” Herring said.

Opponents of the decision are expected to support an appeal to the United States Court of Appeals for the Fourth Circuit.

Approximately 57 percent of voters ratified the same-sex marriage ban, known as the Marshall-Newman Amendment or the Virginia Marriage Amendment, in 2006. The law strictly defines marriage as exclusively between one man and one woman, and refuses to recognize similar legal status for other couples.

VCU’s own LGBTQ coordinator Michael Pisarcik, M.Ed. said the recent decision in the Bostic case is an important step towards marriage equality.

“Right now it’s a good first step, but it still has to go through the legal fields process,” Pisarcik said. “At this particular point it’s showing that they’re making steps towards appealing the law that’s in place.”

While the appeal progresses, same-sex couples will not be able to marry in Virginia because of a stay on the execution of the decision issued by Wright Allen.

“I think it’s going to give community members hope and some encouragement that they’re being recognized as being loving couples for each other,” Pisarcik said.

Virginia Solicitor General Stuart Raphael argued the case on the behalf of the commonwealth. Timothy Bostic, Tony London, Carol Schall and Mary Townley acted as plaintiffs in the case before the Norfolk court.

Herring reversed Virginia’s legal position on its stance in Bostic v. Rainey upon entering office in late January. During his 2013 election campaign, Herring said publicly he would investigate the constitutional issues of Virginia’s law before changing the commonwealth’s political position.

“When I ran for the office of attorney general I promised the people of Virginia that regardless of my personal support for marriage equality I would conduct a rigorous independent analysis of the constitution’s questions before determining the state’s legal position in this case,” Herring said. “I concluded that based on extensive court precedent … marriage is a fundamental right protected by the United States constitution.”

A class action lawsuit challenging the same-sex marriage ban still is pending review in a federal court in Harrisonburg.

The American Foundation for Equal Rights backed the Bostic ruling. The advocacy group works to support LGBT citizens fight against equality issues and discrimination, according to a press release.

“Following recent decisions in Utah, Oklahoma, Ohio and Kentucky this Virginia ruling proves that marriage equality is once again on the fast track to the United States Supreme Court,” stated Human Rights Campaign president Chad Griffin, in a press release.

“Right now this nation is divided into two Americas, one where full legal equality is nearly a reality, and the other where even the most basic protections of the law are nonexistent for loving gay and lesbian couples,” Griffin stated. “We cannot and will not tolerate that patchwork of discrimination, and we won’t stop fighting until fairness and dignity reaches each and every American in all 50 states.”