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Virginia’s same-sex marriage ban falls

Opening with a quotation from Mildred Loving on the fortieth anniversary of the Supreme Court decision in 1967 striking down Virginia’s ban on interracial marriages, a federal judge in Norfolk on Thursday evening nullified the state’s ban on same-sex marriages.

U.S. District Judge Arenda L. Wright Allen wrote: “Our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice.  One of the judiciary’s noblest endeavors is to scrutinize laws that emerge from such roots.”

The judge put her decision on hold until any appeal to the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, is decided.

Her ruling struck down a provision of the state constitution, approved by Virginia voters in 2006, and state laws that excluded gays and lesbians from equal marriage rights.  Those measures both prohibit same-sex couples from marrying in the state and refuse to officially recognize such marriages performed where they were legal.

A separate challenge to those laws is awaiting a decision in a federal court in Harrisonburg, which is proceeding as a class-action lawsuit involving all same-sex couples in Virginia except those two couples involved in the Norfolk case.  That case, too, appears near to a decision.

As other judges have done, Judge Wright Allen on Thursday ruled that the two couples in her court were not seeking a newly created right — a free-standing right of gays and lesbians to marry — but rather were seeking equal access to existing marital rights open to opposite-sex couples.

The couples, the judge wrote, “ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia’s adult citizens.”  By gaining that right, the opinion added, the fundamental right to marry will not be transformed.

Virginia’s marriage bans, she added, “interject profound government interference into one of the most personal choices a person makes.”

In nullifying those bans under the Constitution’s Due Process Clause, Judge Wright Allen applied the most rigorous constitutional test of government action: “strict scrutiny.”  That is the standard that has long been used to judge discrimination based on race.  Some other courts that have struck down other states’ same-sex marriage have applied a lower level of analysis, known as “heightened scrutiny.”  This judge used the higher level in weighing the due process challenge because, she said, “marriage is a fundamental right.”

She applied less-exacting tests in finding that the bans violated guarantees of legal equality, concluding that the state had no legitimate purpose for excluding same-sex couples from marital rights.

She noted that, in defending the Virginia provisions, those in support of them had relied heavily upon tradition to avoid “radical change.”  The judge said that argument also had been advanced to try to maintain the ban on interracial marriage, struck down by the Supreme Court in Loving v. Virginia.

“Tradition is revered in the Commonwealth,” the judge declared, “and often rightly so.  However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.”

The judge also rejected defenders’ arguments that the bans were necessary to prevent the federal government from interfering in state matters, and were necessary to protect children from being raised by same-sex parents.

State officials had continued to defend the bans until recently.  In last November’s election, a new attorney general was chosen, Democrat Mark R. Herring.  He switched the state’s official position and abandoned the defense.  The defense was carried on by two county clerks, the officials who issue marriage licenses in the state.

Because the ruling is on hold, the two same-sex couples involved in the case will not be able to seek marriage licenses.

Recommended Citation: Lyle Denniston, Virginia’s same-sex marriage ban falls, SCOTUSblog (Feb. 13, 2014, 11:44 PM),