02/14/2014 08:51 EST | Updated 04/16/2014 05:59 EDT

Virginia Gay Marriage Ban: Judge Declares Ban Unconstitutional

NORFOLK, Va. - In a federal court ruling echoing decisions reached elsewhere in the U.S., Virginia on Thursday became the first state in the traditionally conservative Southeast to overturn a voter-approved prohibition of same-sex marriage.

U.S. District Judge Arenda Wright Allen issued a stay of her order while it is appealed, meaning that gay couples in Virginia still will not be able to marry until the case is ultimately resolved. Both sides believe the case won't be settled until the U.S. Supreme Court decides to hear it or one like it. Marriage-equality cases are now active in 24 of the 33 states that do not allow same-sex marriage.

Virginia's ruling came just days after legal attacks were launched on gay-marriage bans in three other states that tend to be socially conservative — Texas, Louisiana and Missouri — and a judge in another, Kentucky, ruled that state must recognize same-sex marriages performed in other states. The Supreme Court set the stage for the wave of litigation last June, when it ordered the federal government to recognize valid same-sex marriages, but stopped short of striking down state laws banning them. Gay-rights activists hope that one or more of the lawsuits will reach the high court and lead to nationwide legalization.

In a movement that began with Massachusetts in 2004, 17 states and the Washington capital district now allow gay marriage, most of them clustered in the Northeast. Three other states grant marriage-like rights though civil unions or domestic partnerships. None of them is in the Southeast.

It's been a busy week for gay marriage advocates in the region. Virginia is now the second southern state where a judge has issued a ruling recognizing the legality of gay marriages.

While a judge in Kentucky ruled Wednesday that the state must recognize same-sex marriages performed in other states, the ruling did not address the constitutionality of same-sex marriages within the state. Decisions similar to that of the Virginia judge have been issued in in Utah and Oklahoma federal courts.

In Virginia, the office of newly elected Virginia Attorney General Mark Herring took the unusual step of not defending the state's law because it believes the ban violates the equal protection clause of the Constitution's 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 favouring 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.

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 per cent 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."

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

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.

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

Attorneys general in other states have taken mixed approaches to court challenges to bans on gay marriage. Utah and Oklahoma are fighting rulings lifting their bans, while Nevada, like Virginia, has chosen not to defend it.


Brock Vergakis can be reached at