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Appeals court strikes down Virginia gay marriage ban

In a 2-1 decision Monday, a three-judge panel of the 4th Circuit Court of Appeals found Virginia’s ban on same-sex nuptials to be unconstitutional.
Mary Townley, Emily Schall-Townley, Carol Schall,
Plantiffs in the federal suit over Virginia's ban on gay marriage, Emily Schall-Townley, left, Carol Schall, center, and Mary Townley, raise their arms after a hearing on Virginia's same sex-marriage ban in Richmond, Va., May 13, 2014.

For the third time since the nation’s highest court set off a chain reaction of victories for marriage equality last year, a federal appeals court has ruled in favor of allowing gay and lesbian couples the right to legally wed.

In a 2-1 decision Monday, a three-judge panel of the 4th Circuit Court of Appeals found Virginia’s ban on same-sex nuptials to be unconstitutional, upholding a lower court’s decision from February. The 4th Circuit is the second appeals court to rule in favor of marriage equality this summer, following dual rulings from the 10th Circuit in cases from Utah and Oklahoma. State officials are appealing both 10th Circuit decisions.

Voters approved Virginia’s constitutional amendment banning same-sex nuptials in 2006. But that law, determined the 4th Circuit court, “impermissibly” violates gay and lesbian citizens’ “fundamental right to marry.”

"The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual's life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the 14th Amendment cannot countenance," the court said in its 63-page opinion.

Acknowledging the polarizing nature of marriage equality, the court added that “inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”

The 4th Circuit Court of Appeals has jurisdiction over Virginia, Maryland, West Virginia, North Carolina, and South Carolina. Hours after Monday's decision came down, North Carolina's Democratic Attorney General Roy Cooper told reporters that prosecutors would stop defending the state's two-year old constitutional ban on same-sex marriage, which is currently facing a unique First Amendment challenge from the United Church of Christ. By preventing church leaders from marrying gay and lesbian members of their congregation, states the lawsuit, the ban violates their constitutional guarantee to free exercise of religion. 

“Simply put, it’s time to stop making arguments we will lose and, instead, move forward, knowing that the ultimate resolution will likely come from the U.S. Supreme Court,” said Cooper during a press conference Monday. A number of other attorneys general have also walked away from their states' same-sex marriage bans, including Virginia's chief law officer, Mark Herring, a Democrat who was the first attorney general in the nation to successfully argue against his state's ban in federal court.

"Today is yet another victory for the principle of equality that is so central to the American experience, and I am proud that the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day," said Herring in a statement Monday.

Unlike similar decisions from the 10th Circuit, which found Utah and Oklahoma’s same-sex marriage bans to be unconstitutional, the 4th Circuit court did not put its ruling on hold pending an appeal. That means that gay and lesbian couples can begin marrying in Virginia after a period of 21 days, unless state officials decide to seek a stay. The ruling would also be put on hold if the defendants ask the full court for review.

The class action lawsuit, Bostic v. Schaefer, represents approximately 14,000 same-sex couples who wish either to marry, or to have their out-of-state marriage recognized in Virginia. It brings together the legal forces of virtually every group responsible for the major gay rights victories of the last twenty years, including the American Civil Liberties Union, Lambda Legal, Jenner & Block’s Paul Smith, and the American Foundation for Equal Rights (AFER) — the organization that spearheaded last year’s high-profile Proposition 8 case, which returned marriage rights to gay and lesbian couples living in California.

For the Bostic case, AFER once again called on legal odd couple Theodore Olson and David Boies, who argued against each other before the U.S. Supreme Court in the 2000 lawsuit, Bush v. Gore. When it comes to marriage equality, however, the two are on the same side.

"Today's decision stands as a testament that all Americans are created equal, and denying loving gay and lesbian couples the opportunity to marry is indefensible," said Olson, a Republican, in a statement reported by USA Today.

The plaintiffs were even more thrilled.

“We’re overjoyed that we’re a step closer to being recognized by our loved ones and community the same way that all of our opposite-sex married friends and relatives are,” said Joanne Harris in a statement. “Although Jessi [Jessica Duff] and I are absolutely committed to each other and our son, marriage holds an unparalleled meaning, both legally and emotionally.”


Correction: A previous version of this article stated that former Virginia Attorney General Mark Herring was among a group of chief law officers who declined to defend their states’ bans on same-sex marriage. However, Herring was actually the first attorney general in the nation to successfully argue against his state’s ban in federal court.