Virginia gay marriage ban is unconstitutional, federal court rules


Virginia’s ban on same-sex marriage is unconstitutional, a federal appellate court ruled Monday, becoming the second appellate circuit to rule on an issue almost certainly headed for the U.S. Supreme Court.

A panel of the U.S. 4th Circuit Court of Appeals in Richmond, Va., struck down the ban, 2 to 1. It was the first such ruling from a federal appeals court in the South, generally regarded as more conservative than the rest of the nation. Same-sex marriage is legal in 19 states and the District of Columbia, and every remaining state ban faces a court challenge.

Virginia is expected to seek a stay pending an appeal. It could ask for a review from the full appellate court or go directly to the Supreme Court.


The 4th Circuit ruling also affects cases in the Carolinas and West Virginia, which are in the same judicial district. After the decision was announced, the North Carolina attorney general said his office would no longer defend the state’s law.

The U.S. 10th Circuit Court of Appeals became the first federal appellate court to rule on the issue, striking down Utah’s gay marriage ban in June and Oklahoma’s in July. Both rulings were stayed to allow time for an appeal to the Supreme Court.

One of the central issues in many of the gay marriage cases has been whether states have the right to limit marriage to heterosexuals. Virginians, for example, voted 57% to 43% in 2006 to amend their constitution to ban same-sex marriage.

Appellate Judge Henry F. Floyd wrote that despite the vote, Virginia’s actions “impermissibly infringe on its citizens’ fundamental right to marry.”

“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” Floyd wrote, joined by Judge Roger L. Gregory. Judge Paul V. Niemeyer dissented.

Supporters of same-sex marriage were jubilant.

“The 4th Circuit’s ruling echoes what over 25 other federal and state courts have held: Same-sex couples deserve the dignity of marriage and anti-marriage laws are indefensible,” said Evan Wolfson, president of Freedom to Marry, an advocacy group. “Every day of denial is a day of injustice and tangible harms. It’s time for the Supreme Court to bring the country to national resolution and secure the freedom to marry for all.”


In the Virginia case, Timothy Bostic and Tony London were denied a marriage license at Norfolk Circuit Court on July 1, 2013. They sued, arguing that the state’s constitutional ban on same-sex marriage denied gays and lesbians equal protection of the law and rights guaranteed by the 14th Amendment.

On Feb. 13, just in time for Valentine’s Day, a federal judge in Norfolk struck down the state ban. U.S. District Judge Arenda L. Wright Allen compared it to Virginia’s past prohibition on interracial marriage — which prompted a case that led to the U.S. Supreme Court’s landmark decision in 1967 to strike down laws banning interracial marriage.

“It was in a case out of Virginia that the Supreme Court ended race discrimination in marriage. And today, in another Virginia marriage case, a federal circuit court ruled against discrimination in marriage, affirming the freedom to marry for loving and committed gay couples,” Wolfson said.

Proponents of upholding Virginia’s same-sex marriage ban, including Norfolk Circuit Court Clerk George Schaefer, a defendant in the case, argued that federal courts should defer to the states on the issue.

“References to marriage being only between a bride and groom, i.e. a husband and wife or one man and one woman, predate the Commonwealth of Virginia,” the defense said in its court papers. The 2006 action “did not redefine marriage; it memorialized existing laws.” Schaefer’s filing argued that “great weight” should be given to the will of the people.