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U.S. appeals court rules Va. same-sex marriage ban unconstitutional

Virginia plaintiffs (from left back row), Carol Schall, Emily Schall-Townley, daughter of Schall and Townley and Mary Townley, Tim Bostic and Tony London on February 14, 2014, celebrate he ruling by federal Judge Arenda Wright Allen that Virginia’s same-sex marriage ban is unconstitutional. On Monday, the U.S. Court of Appeals for the Fourth Circuit upheld that ruling. Bill Tiernan, The Virginian-Pilot (AP)

The ruling came as Colorado’s attorney general, John Suthers, asked his state Supreme Court Monday to stop county clerks from issuing licenses to gay and lesbian couples. But North Carolina’s Cooper said his fellow attorneys general should give up the fight.

“In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable,” Cooper said in a statement. “All the federal courts have rejected these arguments each and every time. So it’s time for the State of North Carolina to stop making them.”

U.S. District Judge Arenda Wright Allen ruled in February that Virginia’s same-sex marriage ban violates the U.S. Constitution’s equal protection and due process guarantees. Lawyers for two circuit court clerks whose duties include issuing marriage licenses appealed with the help of the right-wing legal group Alliance Defending Freedom, based in Scottsdale, Arizona. It said in a statement that it may ask for a full circuit rehearing, or appeal directly to the Supreme Court.

“Every child deserves a mom and a dad, and the people of Virginia confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union,” ADF Senior Counsel Byron Babione said.

Carl Tobias, a law professor who watches the 4th Circuit closely, said he expects a direct appeal to the Supreme Court, since there is little reason to think the full circuit will rule any differently, given its current makeup.

The 4th Circuit long had a reputation as one of the nation’s most conservative courts, but that has changed in the last five years.

Most of the 14 active judges are Democratic appointees, including five named by President Barack Obama. Floyd was initially appointed as a federal judge in South Carolina by George W. Bush, and then nominated for the appellate court by Obama. Roger Gregory, who joined Floyd in the majority, was a recess appointment of Bill Clinton, re-nominated by Bush in 2001. Paul V. Niemayer, who wrote the dissent, was appointed by George H. W. Bush.

The Virginia lawsuit was filed by Timothy Bostic and Tony London of Norfolk, who were denied a marriage license, and Carol Schall and Mary Townley of Chesterfield County. The women were married in California and wanted their marriage recognized the state where they are raising a 16-year-old daughter.

Two other same-sex couples, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, filed a similar lawsuit were allowed to join the federal case.

“I am proud that the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day,” Virginia Attorney General Mark Herring said. “We are fighting for the right of loving, committed couples to enter the bonds of marriage.”

The ruling is here.

Developing story. This report will be updated.

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