In what has become almost a foregone conclusion in challenges to state marriage laws, a Virginia judge late Thursday struck down that state’s voter-approved prohibition of same-sex marriage.
U.S. District Judge Arenda Wright Allen called the law upholding traditional marriage a violation of the 14th Amendment’s equal protection clause.
“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,” she wrote. “Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring 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.”
Following the lead of an Oklahoma judge who struck down that state’s same-sex marriage ban last month, Allen stayed her ruling, preventing gay marriage from becoming law until the legal challenges are exhausted. Virginia is just the latest state to have marriage laws struck down by judges. At least one of those cases, if not all of them, will eventually end up before the U.S. Supreme Court.
In Virginia, newly elected Attorney General Mark Herring chose not to defend his state’s law, approved by 57 percent of voters in 2006. He campaigned on a platform of support for gay marriage, saying the Virginia ban was unconstitutional. “The legal process will continue to play out in the months to come, but this decision shows that Virginia, like America, is coming to a better place in recognizing that every Virginian deserves to be treated equally and fairly,” Herring, a Democrat, said in a statement issued after Allen’s ruling.
With Herring refusing to argue on his state’s behalf, and Democratic Gov. Terry McAuliffe unwilling to appoint outside legal counsel, the county clerk trying to defend the traditional marriage law is relying on attorneys from Alliance Defending Freedom to argue the case.
Two other attorneys general, Kathleen Kane in Pennsylvania, and Catherine Cortez Masto in Nevada, also declined to defend their states’ marriage laws. In the last few months, judges have struck down same-sex marriage bans in Utah and Oklahoma. A ruling in a Texas case is expected soon. A Kentucky judge ruled on Wednesday his state could not refuse to recognize same-sex marriages performed in other states.
In response to Allen’s ruling, Brian Brown, president of the National Organization for Marriage, said the judge twisted the Constitution to conform to her own views on marriage.
“There is no right to same-sex ‘marriage’ in the United States Constitution,” he said. “In fact, the U.S. Supreme Court has said that states have the pre-eminent duty of defining marriage. The people of Virginia did just that in voting overwhelmingly to affirm marriage as the union of one man and woman. That decision should be respected by federal judges and we hope that the U.S. Supreme Court ends up reversing this terrible decision.”
Seventeen states and the District of Columbia now allow same-sex marriage, and more than a dozen lawsuits are pending in states that ban the unions.