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Virginia gay marriage ban declared unconstitutional

Federal judge stays ruling at request of attorney general

Virginia Attorney General Mark Herring did not defend the state’s ban on same-sex marriage because his office believes the ban violates the equal protection clause of the 14th Amendment. (Associated Press)
Virginia Attorney General Mark Herring did not defend the state’s ban on same-sex marriage because his office believes the ban violates the equal protection clause of the 14th Amendment. (Associated Press)
Brock Vergakis Associated Press

NORFOLK, Va. – A federal judge ruled Thursday that Virginia’s ban on same-sex marriage is unconstitutional, making it the first state in the South to have its voter-approved prohibition overturned.

U.S. District Judge Arenda Wright Allen issued a stay of her order while it is appealed, meaning that gay couples in Virginia will still not be able to marry until the case is ultimately resolved. Both sides believe the case won’t be settled until the Supreme Court decides to hear it or one like it.

Allen’s ruling makes Virginia the second state in the South to issue a ruling recognizing the legality of gay marriages.

A judge in Kentucky ruled Wednesday that the state must recognize same-sex marriages performed in other states. It did not rule on the constitutionality of same-sex marriages inside the state, however. The Virginia judge’s ruling also follows similar decisions in Utah and Oklahoma federal courts.

“Through its decision today, the court has upheld the principles of equality upon which this nation was founded,” the plaintiffs’ lead co-counsel, Theodore Olson, said in a statement.

The Virginia attorney general’s office took the unusual step of not defending the law because it believes the ban violates the equal protection clause of the 14th Amendment. In her ruling, Wright Allen agreed.

“The court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the 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,” Wright Allen wrote.

Wright Allen’s stay was requested by the Virginia attorney general’s office in order to avoid a situation similar to what happened in Utah after a federal judge declared that state’s ban on gay marriages unconstitutional.

More than 1,000 gay and lesbian couples were married in the days after the ruling before the U.S. Supreme Court granted the state an emergency stay, halting the weddings and creating a cloud of uncertainty for the status of the married couples. Soon after, a federal judge also declared Oklahoma’s ban unconstitutional. That ruling is also on hold while it is appealed.

“The legal process will continue to play out in the months to come, but this decision shows that Virginia, like America, is coming to a better place in recognizing that every Virginian deserves to be treated equally and fairly,” Virginia Attorney General Mark Herring, a Democrat, said in a statement.

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