A federal court in Virginia struck down that state’s traditional marriage law this morning, striding lock-step with other courts who have ruled same-sex marriage cannot be banned.
The state’s same-sex marriage bans “impermissibly infringe on its citizens’ fundamental right to marry,” Judge Henry F. Floyd wrote for the 4th U.S. Circuit Court of Appeals.
Virginia voters approved a constitutional amendment in 2006 designating marriage as only between one man and one woman. State law also forbids recognition for same-sex marriages from other states.
Although practically identical to cases in other states that outlaw same-sex marriage, the legal challenge in Virginia got a lot of attention because Attorney General Mark Herring, a Democrat, announced earlier this year he would not defend his state’s regulations. Herring was not the first attorney general to refuse to defend state marriage laws, but he took it one step further, joining the plaintiffs’ suit against the state.
The 4th Circuit judges did not immediately stay their ruling, so it’s not clear yet whether Virginia county clerks will have to begin issuing same-sex marriage licenses. In every other case in which the legal challenge is ongoing, courts have followed the precedent set by the U.S. Supreme Court in Utah’s marriage case. The nation’s highest court, which will eventually decide the issue, ruled that until it does, states cannot be forced by lower courts to issue licenses.
The state of marriage
Until 2003, same-sex marriage was banned in all 50 states. But a lot has changed in the last decade. Eighteen states now allow same-sex marriage, either through legislative action or voter referendum. After the U.S. Supreme Court overturned the federal Defense of Marriage Act in 2013, judges in 17 states have struck down statues upholding traditional marriage. Cases challenging traditional marriage laws have been filed in all states that ban same-sex marriage. The question of whether states can determine what constitutes marriage within their borders will eventually be decided by the nation’s highest court.
The map below shows the state of marriage in each state, with more details about each one listed below.
Judicial activism in 2013 and 2014:
- Florida—A circuit judge rules same-sex couples can marry in the Florida Keys. Another circuit judge issues a similar ruling for Miami-Dade County. Neither ruling applies to the rest of the state.
- Colorado—A state judge struck down the voter-approved same-sex marriage ban in July. A federal judge followed suit later that same month.
- Kentucky—A federal judge declared unconstitutional the state’s ban on same-sex marriage, approved by voters in 2004.
- Indiana—A federal judge declared unconstitutional the state’s statutory ban on same-sex marriage, enacted in 1997.
- Wisconsin—A federal judge ruled the state ban, approved by voters in 2006, was unconstitutional.
- Pennsylvania—A federal judge declares the state's voter-approved ban unconstitutional. Gov. Tom Corbett decides not to appeal.
- Oregon—A district judge declares its voter-approved ban unconstitutional.
- Idaho—A federal judge ruled the state's 2006, voter-approved ban is unconstitutional.
- Arkansas—A county circuit judge strikes down the state's ban, approved by voters in 2004.
- Ohio—Judge orders state to recognize same-sex marriages performed in other states. Ruling stayed pending appeal.
- Tennessee—A federal appeals court stays a lower court judge's orders that the state must recognize three same-sex marriages performed in other states. The ruling does not yet apply to other couples. The state is appealing the decision. Same-sex marriage was banned by constitutional amendment in 2006.
- Michigan—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal.
- Texas—Constitutional ban overturned by federal judge. Judge’s ruling stayed by the U.S. Supreme Court pending appeal.
- Kentucky—Judge orders state to recognize same-sex marriages performed in other states.
- Virginia—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal. The 4th Circuit upholds the lower court ruling.
- Oklahoma—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal.
- Utah—Constitutional ban overturned by federal judge. Judge’s ruling stayed by the U.S. Supreme Court pending appeal. (2013)
Legalized in 2013:
- New Mexico—by state Supreme Court ruling
- Illinois—by state statute
- Hawaii—by state statute
- New Jersey—by a judge’s ruling
- California—by a federal judge’s ruling in 2010. The ruling did not go into effect until the Supreme Court upheld it in 2013.
- Minnesota—by state statute
- Delaware—by state statute
- Rhode Island—by state statute
Legalized in 2012:
- Maine—by voter referendum
- Maryland—by voter referendum
- Washington—voter referendum
Legalized in 2011 and 2009:
- New York—by state statute (2011)
- New Hampshire—by state statute
- Vermont—by state statute
- Iowa—by state Supreme Court ruling
Legalized in 2008:
- Connecticut—by state Supreme Court ruling
- Massachusetts—by state supreme court ruling
Banned in 2012:
Banned by constitutional amendment in 2008:
Banned by constitutional amendment in 2006:
- South Carolina
- South Dakota
Banned by constitutional amendment in 2005 and 2004:
- Kansas (2005)
- North Dakota
- Oregon—Recognizes same-sex marriages performed in other states
- Nebraska—by constitutional amendment in 2000
- West Virginia—by state statute in 2000
- Alaska—by voter referendum in 1998
- Indiana—by state law in 1997
- Pennsylvania—by state statute in 1996
- Wyoming—by state statute in 1977