A federal judge in Norfolk, Virginia, today struck down the state's ban on same-sex couples marrying but stayed the execution of her order, that the state stop enforcing the law, pending appeal to the Fourth Circuit U.S. Court of Appeals.
The decision marks the first time a judge in a southern state has struck down a ban on same-sex couples marrying. Whatever the Fourth Circuit's decision, it will apply to Virginia, North Carolina, South Carolina, Maryland, and West Virginia.
"Equality isn't something that happens just up north," said American Foundation for Equal Rights executive director Adam Umhoefer, at a press conference Friday morning.
Judge Arenda Wright Allen (an Obama appointee) opened her 41-page decision with a quote from a book by Mildred Loving, the African American woman who, with her white husband, won a lawsuit striking down bans against interracial couples marrying.
"We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn't that what marriage is?" wrote Loving in Loving for All.
In an eloquent, history-laden opinion, Allen acknowledged that a "spirited and controversial debate is underway" regarding same-sex couples marrying, but added, "Our Constitution declares that 'all men' are created equal. Surely this means all of us." She said the ban violates the rights to due process and equal protection and deprives same-sex couples of the fundamental freedom to choose to marry.
"Although steeped in a rich, tradition- and faith-based legacy, Virginia's Marriage Laws are an exercise of governmental power," wrote Allen. "For those who choose to marry, and for their children, Virginia's laws ensure that marriage provides profound legal, financial, and social benefits, and exacts serious legal, financial, and social obligations. The government's involvement in defining marriage, and in attaching benefits that accompany the institution, must withstand constitutional scrutiny. Laws that fail that scrutiny must fall despite the depth and legitimacy of the laws' religious heritage."
The case, Bostic v. Virginia, was argued by Ted Olson, David Boies, and a team supported by the American Foundation for Equal Rights which pressed the successful challenge against California's statewide ban, Proposition 8.
The decision was dated 9 p.m. Thursday but entered into the record Friday, February 14, Valentine's Day. At a press conference in Norfolk Friday morning, plaintiff Tim Bostic read from the decision an excerpt from a letter by President Lincoln in 1860 regarding the need to end slavery: "It can not have failed to strike you that these men ask for just. . . the same thing—fairness, and fairness only. This, so far as in my power, they, and all others, shall have."
Casey Mattox, senior counsel for the Alliance Defending Freedom which represented a northern Virginia county clerk who intervened in the case to defend the ban, was out of the office today and could not be reached for comment. But Family Research Council leader Tony Perkins called the decision "another example of an arrogant judge substituting her person preferences for the judgment of the General Assembly and 57 percent of Virginia voters."
Interestingly, however, judges have struck down only eight of the 21 state and D.C. bans since 2004. Nine of the reversals were done by legislatures, three by voters, and one by a combination of court and legislature. Three of the eight court decisions finding state bans unconstitutional are pending review by federal appeals courts and, along with many other lawsuits, are expected to find their way to the U.S. Supreme Court for a final decision.
Virginia Attorney General Mark Herring, who took office in early January and decided the ban was unconstitutional and that his office would not attempt to defend it, called the decision "a victory for the Constitution and for treating everyone equally under the law."
Judge Allen examined the Virginia ban using "strict scrutiny," the highest level of judicial review, because it infringed upon the fundamental right to marry. Laws violating fundamental rights can pass constitutional muster only if they are narrowly drawn to serve a compelling state interest.
Virginia Governor Terry McAuliffe released a statement Friday morning, applauding the decision. And while he said he would continue to enforce the ban as long as it is "on the books," he considers the decision "a significant step forward in achieving greater equality for all of our citizens."
In a telephone call with reporters Friday morning, attorney Ted Olson praised the "eloquent" and "beautiful" decision written by Judge Allen, saying it should be read by every American.
"Judge after judge after judge has determined we cannot any longer withhold the fundamental right to marriage and the right to be treated equally," said Olson. "We feel confident in outcome of this case" on appeal, ultimately to the U.S. Supreme Court.
Olson said he thinks the Supreme Court was constrained by the Proposition 8 case because of an issue involving standing. But he said the high court could take up the merits on any of the several dozen cases percolating through the federal court system now as soon as next session.
Tim Bostic and Tony London have been together for 24 years; Mary Townley and Carol Schall have been together for nearly 30 years, and have a teenage daughter Emily.
Schall remarked that the decision being issued on Valentine's Day has many special meanings for her. She noted that Virginia's marketing motto has for many years been, "Virginia is for Lovers," and that she and Townley celebrated their 29th anniversary this week."
"The steady march toward equality continues today with this historic decision," said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. "Support for the freedom to marry has seen an amazing increase in the past few years, and we will continue to work to ensure that all couples have access to the dignity and protection that only comes with marriage."

The ACLU and Lambda Legal have teamed up in another federal court challenge to Virginia's ban. That case, Harris v. Virginia, is in the Western District federal court in Harrisonburg and is proceeding as a class action suit on behalf of all same-sex couples in Virginia who wish to marry.
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