RICHMOND, Va. — Virginia’s same-sex marriage ban is unconstitutional, a federal appeals court ruled Monday in a decision that could overturn similar prohibitions in the Carolinas and West Virginia.
The 4th U.S. Circuit Court of Appeals is the second federal appellate court to overturn gay marriage bans, and is the first to affect the South, where states’ rights have held particular sway for generations, but politicians are under increasing pressure to give up the fight.
The 4th Circuit also covers Maryland, which already recognizes same-sex marriage.
The three-judge panel ruled 2-1 Monday that Virginia’s constitutional and statutory provisions barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution. The defendants are likely to ask for the ruling to be stayed pending more appeals to the full 4th circuit and the U.S. Supreme Court; otherwise, marriage licenses to same-sex couples could begin to be issued in 21 days.
Virginians voted 57 percent to 43 percent in 2006 to amend their constitution to ban gay marriage. Virginia laws prohibit recognizing same-sex marriages performed in other states. Writing for the 2-1 majority, Judge Henry F. Floyd said Virginia’s bans “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.
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under 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 U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.
The 6th Circuit in Cincinnati will hear arguments on Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26 and the 9th Circuit in San Francisco for Sept. 8. The 10th Circuit in Denver overturned Utah’s ban in June.
The 4th Circuit decision also will apply to other states in the circuit when the decision becomes final in 21 days, providing that the court does not issue a stay at the request of the supporters of Virginia’s gay marriage ban, said James Esseks, an attorney with the American Civil Liberties Union.
The rising tide of rulings in favor of marriage equality has left elected officials tasked with defending gay marriage bans searching for safe political ground.
North Carolina Attorney General Roy Cooper quickly announced Monday that his office will stop defending his state’s ban, saying, it is “time to stop making arguments we will likely lose.” But a spokesman for South Carolina’s attorney general, Alan Wilson, said he sees no need to change course.
Cooper joins a growing number of top state lawmen, including Virginia Attorney General Mark Herring, who have refused to defend their state bans.
“I am proud that the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day,” Herring said. “We are fighting for the right of loving, committed couples to enter the bonds of marriage.”
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.
“Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans,” plaintiffs’ attorney David Boies 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.”
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 federal case.
Floyd, who wrote the opinion, was initially appointed to the federal bench as a district court judge for South Carolina by George W. Bush, and then nominated for the appellate court by Obama. Judge Roger Gregory, who joined Floyd in the majority, was a recess appointment of Bill Clinton re-nominated by Bush in 2001. Judge Paul V. Niemeyer, who wrote the dissent, was appointed by George H. W. Bush.