Va. Same-Sex Marriage Ban Struck Down

Posted: July 29, 2014

RICHMOND — A federal appeals court ruled Monday that Virginia’s same-sex marriage ban is unconstitutional, the latest in a string of decisions overturning bans across the country.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled that state constitutional and statutory provisions barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution. The Virginia gay marriage case is one of several that could go to the U.S. Supreme Court.

Chaz Evans-Haywood, clerk of the Rockingham County Circuit Court, said he’s in the wait-and-see mode.

“We follow what the law states,” he said. “If a change occurs, that’s when the process would be required to change in this office.”

If changed, the law would require his office to issue marriage licenses to same-sex couples, but wouldn’t require his office to perform wedding ceremonies.

“That’s where our responsibility ceases,” said Evans-Haywood, adding that he hasn’t decided whether his office, including himself, would perform same-sex ceremonies. His office does perform ceremonies for heterosexual couples.

“We will really have to think about that when the time comes,” he said, adding that there are several people, in addition to pastors, who would have to decide whether to perform same-sex weddings. “It would be up to those individuals to make their personal decisions.”

Virginia’s same-sex marriage bans “impermissibly infringe on its citizens’ fundamental right to marry,” Judge Henry F. Floyd wrote in the court’s opinion.

In February, U.S. District Judge Arenda Wright Allen ruled 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. Attorney General Mark Herring, representing a state official also named as a defendant, sided with the plaintiffs.

“Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans,” David Boies, an attorney for the plaintiffs, said in a statement. “This court has affirmed that our plaintiffs — and all gay and lesbian Virginians — no longer have to live as second-class citizens who are harmed and demeaned every day.”

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court last year struck down a key part of the federal Defense of Marriage Act.

Those rulings remain in various stages of appeal.

More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.

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 in Virginia, 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 in Harrisonburg and were allowed to intervene in the case before the appeals court.

In a press release from the American Civil Liberties Union, Harris said, “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.”

The ACLU and Lambda Legal, a national civil rights organization that focuses on LBGT issues, represented Harris and her partner, as well as the Winchester couple, in the case.

Greg Nevins, an attorney with Lambda Legal, was happy with the outcome. “We’re thrilled that the court saw that the fundamental right to marriage was at stake,” he said by telephone on Monday.

According to Nevin, the defendants have 21 days to appeal to the 4th Circuit Court to ask for a stay in the ruling or to ask the full court of appeals to hear the case.

If no action is taken within three weeks, same-sex marriage licenses could then be issued in the commonwealth, Nevin said. He also said the defendants have 90 days in which to appeal the decision to the U.S. Supreme Court.

Calls to David Oakley, attorney for one of the circuit court clerks that had been appealing the decision, were not returned by press time.

In 2006, Virginians voted 57 percent to 43 percent to approve the constitutional amendment banning gay marriage.

Virginia laws also prohibit recognition of same-sex marriages performed in other states.

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