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BREAKING: Federal judge rules Va. ban on same-sex marriage unconstitutional

Thursday, February 13, 2014
Steve Helber,  APSpencer Geiger, left, of Virginia Beach, and Carl Johanson, of Norfolk, hold signs as they demonstrate outside Federal Court in Norfolk, Va., Tuesday, Feb. 4, 2014. A federal judge heard arguments on whether Virginia's ban on gay marriage is unconstitutional.

Steve Helber, AP
Spencer Geiger, left, of Virginia Beach, and Carl Johanson, of Norfolk, hold signs as they demonstrate outside Federal Court in Norfolk, Va., Tuesday, Feb. 4, 2014. A federal judge heard arguments on whether Virginia’s ban on gay marriage is unconstitutional.

Updated: Friday, 2/14/2104 – 10:00 a.m. EST

NORFOLK, Va. — Virginia on Thursday became the first state in the South to have its same-sex marriage ban overturned, with a late-night federal court ruling that declared the voter-approved amendment unconstitutional.

U.S. District Judge Arenda Wright Allen issued a stay of her order while it is appealed, meaning that gay couples in Virginia still won’t 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.

U.S. District Judge Arenda L. Wright Allen

U.S. District Judge Arenda L. Wright Allen

Steve Helber, APPlaintiffs in the Bostic v. Rainey case, Tony London, waves to the crowd as he and his partner, Tim Bostic, right, leave Federal Court after a hearing on Virginia's ban on gay marriage in Norfolk, Va., Tuesday, Feb. 4, 2014.

Steve Helber, AP
Plaintiffs in the Bostic v. Rainey case, Tony London, waves to the crowd as he and his partner, Tim Bostic, right, leave Federal Court after a hearing on Virginia’s ban on gay marriage in Norfolk, Va., Tuesday, Feb. 4, 2014.

Schall and Townley

Steve Helber, AP
Carol Schall (left) and Mary Townley at their home in Richmond, Va. The couple, who were married in California in 2008, joined the lawsuit challenging Virginia’s ban on same-sex marriage.

Allen’s decision echoes recent rulings elsewhere in the U.S. and is the strongest foothold yet in the South for the gay-marriage movement. On Wednesday, a judge declared that Kentucky must recognize same-sex marriages performed in other states, but didn’t rule on the constitutionality of whether such marriages can be performed in the state.

Decisions similar to that of the Virginia judge have been issued in in Utah and Oklahoma federal courts.

The office of newly elected Virginia Attorney General Mark Herring 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.

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

Wright Allen’s stay was requested by the Virginia Attorney General’s Office to avoid a situation similar to what happened in Utah after that state’s ban on gay marriages was declared unconstitutional.

More than 1,000 gay and lesbian couples were married in the days after the ruling until 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 also is 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,” Herring, a Democrat, said in a statement.

Supporters of the state ban on same-sex marriages issued statements decrying Wright Allen’s ruling.

“It appears that we have yet another example of an arrogant judge substituting her personal preferences for the judgment of the General Assembly and 57 percent of Virginia voters,” said Tony Perkins, president of the conservative Family Research Council. “Our nation’s judicial system has been infected by activist judges, which threaten the stability of our nation and the rule of law.”

Brian Brown, President of the National Organization for Marriage, called the ruling “another example of an Obama-appointed judge twisting the constitution and the rule of law to impose her own views of marriage in defiance of the people of Virginia.”

“There is no right to same-sex ‘marriage’ in the United States constitution,” Brown said. “In fact, the U.S. Supreme Court has said that states have the pre-eminent duty of defining marriage. The people of Virginia did just that in voting overwhelmingly to affirm marriage as the union of one man and woman. That decision should be respected by federal judges and we hope that the U.S. Supreme Court end s up reversing this terrible decision.”

In a movement that began with Massachusetts in 2004, 17 states and the District of Columbia now allow gay marriage, most of them clustered in the Northeast. None of them is in the old Confederacy.

The Virginia case centered on a gay Norfolk couple, Timothy Bostic and Tony London, who were denied a marriage license by the Norfolk Circuit Court on July 1, shortly after the Supreme Court struck down parts of the federal Defense of Marriage Act. Since then, a Chesterfield County couple, Carol Schall and Mary Townley, have joined the case. The couple married in California in 2008. They have a teenage daughter and want Virginia to recognize their marriage.

In her ruling, Wright Allen said the lesbian couple “suffer humiliation and discriminatory treatment on the basis of their sexual orientation.”

“This stigmatic harm flows directly from current state law.”

Opponents of the Virginia ban say the issue resonates i n Virginia in particular because of a landmark 1967 U.S. Supreme Court decision involving a Virginia couple and interracial marriage.

Mildred and Richard Loving were married in Washington, D.C., and lived in Virginia when police raided their home in 1958 and charged them with violating the state’s Racial Integrity law. They were convicted but prevailed before the Supreme Court.

During verbal arguments in the gay marriage case, Virginia Solicitor General Stuart Raphael said that ban is legally indistinguishable from the one on interracial marriage. He said the arguments used to defend the ban now are the same ones used back then, including that marriage between two people of the same sex has never been historically allowed. Wright Allen concurred with that assessment in her ruling.

“Tradition is revered in the Commonwealth, 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,” she wrote.

Raphael also said supporters have failed to prove how allowing gay marriage would make heterosexual couples less likely to marry.

In defending the law, the attorney for the Norfolk clerk said the issue is best left for the General Assembly and the voters to decide.

Nationwide, there are more than a dozen states with federal lawsuits challenging state bans on same-sex marriage.

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127 more reader comments:

  1. Yes we did!!!

    Posted on Friday, February 14, 2014 at 3:48am
  2. Woot woot!!!

    Posted on Friday, February 14, 2014 at 3:49am
  3. Ok, the rest of the states just as well fall in line. :)

    Posted on Friday, February 14, 2014 at 3:49am
  4. About time

    Posted on Friday, February 14, 2014 at 3:49am
  5. Yaaaaaay!

    Posted on Friday, February 14, 2014 at 3:49am
  6. Perfect Valentine’s Day gift :)

    Posted on Friday, February 14, 2014 at 3:50am
  7. I know I love it

    Replied on Friday, February 14, 2014 at 3:58am
  8. Waiting, but not patiently for Nebraska to fall, and do the right thing................

    Replied on Friday, February 14, 2014 at 4:18am
  9. What are these miserable a$$ holes going to do when we have marriage equality in every state. I will let Arizona go first if Nebraska gets to follow.

    Replied on Friday, February 14, 2014 at 4:21am
  10. So va can get married

    Posted on Friday, February 14, 2014 at 3:50am
  11. THANK YOU!

    Posted on Friday, February 14, 2014 at 3:50am
  12. It’s a start. Do it Virginia!!!

    Posted on Friday, February 14, 2014 at 3:50am
  13. Awesome!!!

    Posted on Friday, February 14, 2014 at 3:50am
  14. When the fuck I’m going to hear that news about AZ?

    Posted on Friday, February 14, 2014 at 3:51am
  15. Virginia IS for lovers!

    Posted on Friday, February 14, 2014 at 3:51am
  16. yeh I love the state but unfortunately I am living in Pakistan !!!!

    Replied on Friday, February 14, 2014 at 3:56am
  17. I don’t live in Virginia but I’m heartbroken.
    My daughter should have the right to marry whomever she chooses, regardless of the state.

    Posted on Friday, February 14, 2014 at 3:52am
  18. ...the judge declared the ban of gay marriage unconstitutional, meaning the ban will be reversed.

    Replied on Friday, February 14, 2014 at 4:29am
  19. this is great news for your daughter, Shondrick, and for anyone who believes in equal rights!

    Replied on Friday, February 14, 2014 at 4:49am
  20. They say Virignia is for lovers

    Posted on Friday, February 14, 2014 at 3:52am
  21. Wow. My boyfriend and I can’t wait to get our marriage license in Virginia.

    Posted on Friday, February 14, 2014 at 3:52am
  22. Now I am a proud Virginian. ;D

    Posted on Friday, February 14, 2014 at 3:52am
  23. Learn to read, Shondrick. Seriously.

    Posted on Friday, February 14, 2014 at 3:53am
  24. Shondrick, READ THE ARTICLE

    Posted on Friday, February 14, 2014 at 3:53am
  25. I think she is trying to say that the ban in the first place is pointless and stupid, not the ruling. She's heart broken that her daughter can't marry whoever she loves currently.

    Replied on Friday, February 14, 2014 at 4:09am
  26. Shondrick, this is GOOD news!

    Posted on Friday, February 14, 2014 at 3:54am
  27. well it’s legal there now.

    Posted on Friday, February 14, 2014 at 3:55am
  28. It’s ok Shondrick, I misread too. Geez, Michele learn to not be such a harsh arrogant ass.

    Posted on Friday, February 14, 2014 at 3:55am
  29. As a resident here, this makes me super happy! I am bouncing off the walls

    Posted on Friday, February 14, 2014 at 3:56am
  30. i dont understand, i thought it says ban...?

    Replied on Friday, February 14, 2014 at 4:14am
  31. NO they ruled it as unconstitutional!!!!!

    Replied on Friday, February 14, 2014 at 4:18am
  32. and another one bites the dust! :)

    Posted on Friday, February 14, 2014 at 3:56am
  33. Same here amen

    Posted on Friday, February 14, 2014 at 3:57am
  34. If only north Carolina would overturn the ban here me and my baby could get married

    Posted on Friday, February 14, 2014 at 3:57am
  35. Yay!!!

    Posted on Friday, February 14, 2014 at 3:58am
  36. Ashley Dodson let’s do it :)

    Posted on Friday, February 14, 2014 at 3:59am
  37. One at the time but here we going!

    Posted on Friday, February 14, 2014 at 3:59am
  38. Ashley Nichole your silly

    Posted on Friday, February 14, 2014 at 4:00am
  39. Well duh?

    Posted on Friday, February 14, 2014 at 4:00am
  40. Happy day here in VA!

    Posted on Friday, February 14, 2014 at 4:01am
  41. Now we wait for other states to follow suit.

    Posted on Friday, February 14, 2014 at 4:02am
  42. Let’s celebrate !

    Posted on Friday, February 14, 2014 at 4:04am
  43. Marriage isn’t legal yet. It just means the ban against it is unconstitutional

    Posted on Friday, February 14, 2014 at 4:04am
  44. Dominoes. And they are doing it to themselves by trying to ban it. UNCONSTITUTIONAL. Boom

    Posted on Friday, February 14, 2014 at 4:06am
  45. Just patiently waiting for the day I can go marry my other half… this is the best valentines day gift I could have ever asked for!! ♥♡♥♡

    Posted on Friday, February 14, 2014 at 4:06am
  46. Another domino falling.

    Posted on Friday, February 14, 2014 at 4:07am
  47. Congratulations Virginia! Hopefully North Carolina will be coming up

    Posted on Friday, February 14, 2014 at 4:10am
  48. Lawsuits 40 Filed in Alabama YAY ! Dixieis a changin like it or not, Civil Rights are held dear here.

    Posted on Friday, February 14, 2014 at 4:11am
  49. Zach Lumb

    Posted on Friday, February 14, 2014 at 4:12am
  50. Where is Arizona in all of this!???

    Posted on Friday, February 14, 2014 at 4:13am
  51. Arizona changed their constitution in 2008 and it now states that marriage is defined by a man and woman. It would take a lot of work to make marriage legal here, for us anyway.

    Replied on Friday, February 14, 2014 at 4:41am
  52. Terrific. Another state that’s known for being behind the times jumps ahead of MY state. Florida, time to grow up!

    Posted on Friday, February 14, 2014 at 4:15am
  53. Indiana needs this to happen!!!

    Posted on Friday, February 14, 2014 at 4:16am
  54. Shame shame

    Posted on Friday, February 14, 2014 at 4:17am
  55. Kansas you’re next hate state

    Posted on Friday, February 14, 2014 at 4:17am
  56. So, Virginia really is for lovers!!!!!!

    Posted on Friday, February 14, 2014 at 4:19am
  57. I applaud Virginia! This is excellent news. :)

    Posted on Friday, February 14, 2014 at 4:19am
  58. Let the fucking faggots get married.

    Posted on Friday, February 14, 2014 at 4:22am
  59. I’m not a resident of VA yet, but by the end of the year I will be. This makes me very happy :)

    Posted on Friday, February 14, 2014 at 4:23am
  60. Virginia is for lovers

    Posted on Friday, February 14, 2014 at 4:27am
  61. Where is Ohio?!?!?!?!?!?!

    Posted on Friday, February 14, 2014 at 4:33am
  62. I’m confused as to why the rest of these states aren’t SIMULTANEOUSLY finding their marriage bans unconstitutional when the others do. Like…what could possibly be so different in their individual bans? States from the north and south are legalizing it…so how is that I’m not seeing “breaking news: the rest of the states pulled their heads out of their asses and saw what other states are doing”?? Maybe it’s the wine talking…but duh. This is wonderful news, but it’d be really cool to see country-wide, collective, wonderful news. End rant.

    Posted on Friday, February 14, 2014 at 4:36am
  63. just a matter of filing the lawsuits. the federal courts are assigned jurisdictions--they usually oversee cases pertaining to a select few states.

    Replied on Friday, February 14, 2014 at 6:55am
  64. I don't understand why so many states are against Love.

    Replied on Friday, February 14, 2014 at 8:22am
  65. You know how it is when they say great minds think alike?sometimes the narrow ones don't think quite on the same meal.

    Replied on Friday, February 14, 2014 at 11:29am
  66. I meant wave length.

    Replied on Friday, February 14, 2014 at 11:30am
  67. I meant keel,my computer spell checker is on leave of a sense.

    Replied on Friday, February 14, 2014 at 11:31am
  68. Absence

    Replied on Friday, February 14, 2014 at 11:31am
  69. Change is the war host that can not be stopped steadily no matter the odds change wins the war.

    Replied on Friday, February 14, 2014 at 12:47pm
  70. No, Cindee, Virginia is now for ALL lovers! Hurray !! . Sic semper tyrannis.

    Posted on Friday, February 14, 2014 at 4:38am
  71. Oh my that was pretty fast. So happy

    Posted on Friday, February 14, 2014 at 4:40am
  72. HISTORY RIGHT HERE IN NORFOLK. AWESOME!

    Posted on Friday, February 14, 2014 at 4:41am
  73. NOW TIME TO REPEAL AMENDMENT ONE IN NORTH CAROLINA!!!!!!!!

    Posted on Friday, February 14, 2014 at 4:42am
  74. <3

    Posted on Friday, February 14, 2014 at 4:44am
  75. Another one down!

    Posted on Friday, February 14, 2014 at 4:44am
  76. Ok, North Carolina??????

    Posted on Friday, February 14, 2014 at 4:44am
  77. Smh what the hell at carol Larson.. Lame!! Love is love why do people have to be so harsh on us

    Posted on Friday, February 14, 2014 at 4:47am
  78. i am now honored to be from Virginia now Virginia is truly is for lovers !!!!! <3

    Posted on Friday, February 14, 2014 at 4:48am
  79. Awesome. It’s happening.

    Posted on Friday, February 14, 2014 at 4:49am
  80. YIPPPPPPEEEEEEEE <3

    Posted on Friday, February 14, 2014 at 4:49am
  81. Thank you Brenda Siegelman, we’re working on the fight here on Portland Oregon

    Posted on Friday, February 14, 2014 at 4:50am
  82. This makes me happy to be a Virginian

    Posted on Friday, February 14, 2014 at 4:59am
  83. Sad

    Posted on Friday, February 14, 2014 at 5:01am
  84. i think its funny how congress complains about same sex marriages, but cant fix hea

    Posted on Friday, February 14, 2014 at 5:11am
  85. healthcare or stuff thats important… they’re always quick to bring up the bible.. do they really not sin @ all..?

    Posted on Friday, February 14, 2014 at 5:12am
  86. Federal judges can rule state constitution amendments unconstitutional as far as federal constitution.

    Posted on Friday, February 14, 2014 at 5:14am
  87. Virginia is for Lovers, once again!!

    Posted on Friday, February 14, 2014 at 5:14am
  88. Look’s like you may have to change that line about gettin’ married in the South! ;)

    Posted on Friday, February 14, 2014 at 5:16am
  89. Well thats BS. What ever happened to the peoples vote?

    Posted on Friday, February 14, 2014 at 5:28am
  90. REMEMBER YOU ARE NOT JUST ONE STATE… SO if you DO NOT WANT EQUALITY THERE ARE OTHER STATE TO STAY AND BE LOVED IT DOES NOT HAVE TO BE IN VIRGINIA …

    Posted on Friday, February 14, 2014 at 5:29am
  91. They do this after I leave of course lol

    Posted on Friday, February 14, 2014 at 5:32am
  92. Oh please

    Posted on Friday, February 14, 2014 at 5:36am
  93. Yaaaaay VA! I’m in SC…moving on down!

    Posted on Friday, February 14, 2014 at 5:38am
  94. Might need to move to VA!

    Posted on Friday, February 14, 2014 at 5:40am
  95. They ban same sex marriage yet condone incest…& think 15 is old enough to marry & start having kids…go figure that one. :(

    Posted on Friday, February 14, 2014 at 5:44am
  96. Dropping like flies!!

    Posted on Friday, February 14, 2014 at 5:49am
  97. Joe “people” should not vote on my rights

    Posted on Friday, February 14, 2014 at 6:12am
  98. Thank You Judicial System!

    Posted on Friday, February 14, 2014 at 6:13am
  99. here it comes! it’s inevitable. the dominoes are falling…falling…falling…

    Posted on Friday, February 14, 2014 at 6:53am
  100. I think that the LGBTQ (( As a group used to be called gays in general)).should be allowed to get married, set up house keeping and do all of the things that straight people do and have done. Which also includes going through a bitter divorce !! That will take care of them being so damn gay(( old term for being HAPPY )).!!! All kidding aside anyone and everyone deserves the right to be with the one that they love and if both parties are consenting adults they should be allowed to marry the marriage license is a formality giving ligitamacy to their union and I am not sure if it is strictly based on their( straight people) moral values alone or if maybe they(straight) are afraid that the “gays” might be a good model of what happy married people should be like. I also believe that not only should they be allowed to marry, but should have the same benefits of married people including health insurance, social security survivor benefits as the old saying goes The whole nine yards worth.

    Posted on Friday, February 14, 2014 at 7:16am
  101. And the right wing fundamentalists are running scared

    Posted on Friday, February 14, 2014 at 7:18am
  102. Now on to SC, NC and the rest of the southern states!

    Posted on Friday, February 14, 2014 at 7:34am
  103. Now if only they could do this in Texas & Leah McCaskill

    Posted on Friday, February 14, 2014 at 8:33am
  104. The hippies had/have it right peace. Love. Not hate no war

    Posted on Friday, February 14, 2014 at 8:33am
  105. Even though im from the philippines.. im happy to read this news.. . congratz to all the lgbt community in virginia.

    Posted on Friday, February 14, 2014 at 9:10am
  106. Equality, Justice and Love for “ALL!”

    Posted on Friday, February 14, 2014 at 10:18am
  107. States are still allowed to have state laws and immorality has not eaten up the whole of them yet !

    Posted on Friday, February 14, 2014 at 10:53am
  108. Slowly but surely we’ll get there

    Posted on Friday, February 14, 2014 at 11:17am
  109. Virginia is definitely for the lovers.

    Posted on Friday, February 14, 2014 at 11:28am
  110. Virginia is definitely for the lovers.

    Posted on Friday, February 14, 2014 at 11:28am
  111. I reside in Virginia in Norfolk where the couple took it to court I can say I am a very proud Virginian….

    Posted on Friday, February 14, 2014 at 12:00pm
  112. I would love to be able to live there and not worry about my well being. It is such a beautiful state and rich in history!

    Posted on Friday, February 14, 2014 at 12:11pm
  113. Yeah nice

    Posted on Friday, February 14, 2014 at 12:48pm
  114. From the state that brought you Virginia v. Love.

    Posted on Friday, February 14, 2014 at 1:05pm
  115. I thought ” Virginia is for Lovers”. ?!!!

    Posted on Friday, February 14, 2014 at 1:08pm
  116. IM VERY HAPPY ABOUT THIS
    I KNEW IT WAS GOING TO HAPPEN IT WAS JUST A MATTER OF TIME

    Posted on Friday, February 14, 2014 at 1:12pm
  117. Is it true we are legal now?

    Posted on Friday, February 14, 2014 at 1:20pm
  118. excellent !

    Posted on Friday, February 14, 2014 at 2:10pm
  119. How awesome! Although some states haven’t reached the same common ground, congradulations VA!

    Posted on Friday, February 14, 2014 at 2:13pm
  120. Omg this is wonderful! I never thought it would happen in the south so soon! Happy Valentines day to the gays in VA!

    Posted on Friday, February 14, 2014 at 2:24pm
  121. Posted on Friday, February 14, 2014 at 2:26pm
  122. Stop allow same sex marriage

    Posted on Friday, February 14, 2014 at 2:33pm
  123. it is very sad to know the People of Virginia needed a Federal Decision to grant Human Rights, Dignity, and Freedom to America: WELCOME TO AMERICA, but not Virginia. Virginia is not for lovers, anymore…Keep Out of Virginia…

    Posted on Friday, February 14, 2014 at 2:37pm
  124. im from texas n im not going to,another dam,state to be marryes to my luv of my life fck that but congrats to all over the world n i say WE ALL EQUAL no matter wat sex we want

    Posted on Friday, February 14, 2014 at 2:44pm
  125. Yahoo

    Posted on Friday, February 14, 2014 at 2:56pm
  126. Can anyone tell me what’s happened to separation of Church and State? I will never believe for one minute that God is against anyone as He’s made everyone in his image. And stop blaming the devil! Geez! It’s getting old!

    Posted on Friday, February 14, 2014 at 3:12pm
  127. I don’t really give a flying fuck what those two hate groups have to say.

    Posted on Friday, February 14, 2014 at 3:15pm