February 13, 2014 | by Michael K. Lavers
Judge strikes down Virginia gay marriage ban
Carol Schall, Mary Townley, gay marriage, same-sex marriage, marriage equality, Virginia

Carol Schall (left) with Mary Townley and their daughter Emily. (Washington Blade photo by Michael Key)

A federal judge Thursday struck down Virginia’s constitutional amendment that defines marriage as between a man and a woman as unconstitutional.

“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,” said Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia. “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.”

Allen, who President Obama nominated to the federal bench in 2010, repeatedly referenced the U.S. Supreme Court’s landmark 1967 ruling that struck down Virginia’s interracial marriage ban in her 41-page decision. She also opened her decision with a quote from Mildred Loving, who publicly backed marriage rights for same-sex couples before her death in 2008.

“Tradition is revered in the commonwealth, and often rightly so,” said Allen. “However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.”

Allen also dismissed arguments made by those who defend Virginia’s same-sex marriage ban that marriage rights for gays and lesbians harms children.

“Of course the welfare of our children is a legitimate state interest,” she said. “Limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.”

Allen’s ruling comes less than two weeks after she heard oral arguments in a lawsuit that Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield filed last year.

“We want to be married for the happy times, but we need to be married for the sad times,” Schall told the Washington Blade earlier this month before Wright heard oral arguments in their case. “When one of us is sick or when one of us needs surgery or when health care is an issue, we need to be there for each other. And Virginia should not be in the business of standing in the way of people wanting to care for each other and take responsibility for each other.”

Virginia voters in 2006 approved the marriage amendment by a 57-43 percent margin.

Attorney General Mark Herring last month announced he would not defend the amendment.

The Republican-controlled Virginia House of Delegates earlier this month overwhelmingly approved a bill that would allow any state lawmaker to defend a law if the governor and attorney general decline to do so. Gov. Terry McAuliffe a few days earlier denied a request from 30 state lawmakers to appoint a special counsel to defend the marriage amendment.

A federal judge in Harrisonburg on Jan. 31 certified a second lawsuit the American Civil Liberties Union, Lambda Legal and the ACLU of Virginia filed on behalf of two lesbian couples from the Shenandoah Valley who are seeking marriage rights in the commonwealth as a class action.

“This decision is a victory for the Constitution and for treating everyone equally under the law,” said Herring in a statement after Allen issued her ruling in the Bostic case.

McAuliffe also applauded the decision.

“In order to grow our economy and attract the best businesses, entrepreneurs, and families to Virginia, we must be open and welcoming to all who call our commonwealth home,” he said in a statement. “As this case continues through the judicial process, I will enforce the laws currently on the books, but this decision is a significant step forward in achieving greater equality for all of our citizens.”

Former U.S. Solicitor General Ted Olson, who successfully argued against California’s Proposition 8 before the U.S. Supreme Court with David Boies, joined the lawsuit last September with the American Foundation for Equal Rights. Olson said in an AFER press release that Allen’s decision has “upheld the principles of equality upon which this nation was founded.”

“Virginia’s prohibition on marriage for same-sex couples relegates gay and lesbian Virginians to second-class status,” he said. “Laws excluding gay men and lesbians from marriage violate personal freedom, are an unnecessary government intrusion, and cause serious harm. That type of law cannot stand.”

Equality Virginia Executive Director James Parrish said Wright’s ruling “finally puts Virginia on the path toward allowing lesbian and gay couples to marry the person they love here in the place they call home.”

“This is an historic day in Virginia,” added Parrish.

National Organization for Marriage President Brian Brown blasted Allen.

“This is 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,” said Brown in a statement.

Brown also again sharply criticized Herring for not defending the commonwealth’s marriage amendment.

“This case also leaves a particular stench because of the unconscionable decision of Attorney General Mark Herring to not only abandon his sworn duty to defend the laws of the state, but to actually join the case against the very people he is duty-bound to represent,” said Brown.

Victoria Cobb, president of the Family Foundation of Virginia, also criticized Herring.

“Regardless of one’s stance on marriage, the people of Virginia were disenfranchised by this ruling as our voice and our vote that amended our Constitution have been rendered meaningless by a single federal judge with the assistance of our own attorney general,” she said.

Neighboring Maryland is among the 18 states and D.C. that have extended marriage rights to same-sex couples.

The Southern Poverty Law Center earlier on Thursday filed a federal lawsuit against Alabama’s same-sex marriage ban on behalf of a gay widower who married his late-husband in Massachusetts in 2011.

A federal judge on Wednesday ruled Kentucky must recognize same-sex marriages legally performed in other states.

Gays and lesbians in West Virginia, Utah, Pennsylvania, Florida, Missouri, Louisiana and other states have filed lawsuits seeking marriage rights in the wake of the U.S. Supreme Court’s landmark decision last June that found a portion of the Defense of Marriage Act unconstitutional. Nevada Attorney General Catherine Cortez Masto earlier this week announced she will no longer defend her state’s same-sex marriage ban in court.

Attorney General Eric Holder on Feb. 10 announced the Justice Department will now recognize same-sex marriages in civil and criminal cases and extend full benefits to gay spouses of police officers and other public safety personnel. This directive applies to Virginia and the 31 other states that have yet to allow nuptials for gays and lesbians.

U.S. Sen. Ted Cruz (R-Texas) earlier on Thursday introduced a bill that would ban the federal government from recognizing same-sex marriages in states that ban gay nuptials.

Allen has stayed her ruling, pending the outcome of an appeal.

Michael K. Lavers has been a staff writer for the Washington Blade since May 2012. The passage of Maryland's same-sex marriage law, the HIV/AIDS epidemic, the burgeoning LGBT rights movement in Latin America and the consecration of gay New Hampshire Bishop V. Gene Robinson are among the many stories he has covered since his career began in 2002. Follow Michael

28 Comments
  • You mean I am no long a second class citizen who pays taxes to the support this country, but EQUAL finally and same rights as everyone else, HOW great is that

    • No, as a gay man, you can still be fired, denied accommodations and housing in Virginia legally even if you can eventually be married so you’re far from equal!

  • Fight all you want bigots…we won't give up until we are equal across the country. We have overcome.

  • i get so mad when the gay rights struggle is compared to racial justice; they are not similar at all. you are the race you are strictly based on the race(s) of your parents. people are not gay because their parents were gay! in fact all gay people are the result of a heterosexual encounter. this is laughable, i cannot believe human intellect comes to such a conclusion?? #delusional

    • I get mad when people like you are too blind to see that discrimination and injustice isn’t limited to race. Religion isn’t a benign characteristic that you are born with yet people have been discriminated against because of it. Gays have an established history of discrimination that can be traced back through history. Simply having had sodomy laws alone were a means to control, stigmatize and ostracize people.

  • i get so mad when the gay rights struggle is compared to racial justice; they are not similar at all. you are the race you are strictly based on the race(s) of your parents. people are not gay because their parents were gay! in fact all gay people are the result of a heterosexual encounter. this is laughable, i cannot believe human intellect comes to such a conclusion?? #delusional

  • John, the comparison illustrates the agony, harm and disrespect people feel when laws are set up for some people, but denied to others. No one is comparing the race of African American, black or brown people to LGBTI people. I respect and honor you as a person that has different struggles than I do. However, we can and should agree that equality of law is the most important issue here. In a country based on freedom, we should not tolerate it when laws deliberately exclude others, as evidenced by the the horrible ways racial bias played out in this nation.

  • John, the comparison illustrates the agony, harm and disrespect people feel when laws are set up for some people, but denied to others. No one is comparing the race of African American, black or brown people to LGBTI people. I respect and honor you as a person that has different struggles than I do. However, we can and should agree that equality of law is the most important issue here. In a country based on freedom, we should not tolerate it when laws deliberately exclude others, as evidenced by the the horrible ways racial bias played out in this nation.

  • Ken Nardone i can respect that and i believe everyone should be treated with respect and decency. i see LGBT rights compared to the black civil rights struggle frequently and I just don't see any similarity. it's just not an accurate comparison. my parents had to go to an all black high school because they were not allowed to attend the white public schools in virginia. all blacks were required to do that – be they male, female, gay, straight, whatever. they could not go to schools, stay in hotels, eat in restaurants, vote just because they were born with African blood. that is not the LGBT struggle at all. i've known lots of gay people throughout my life and they all have moved about freely, attending any schools they want, getting good jobs, and basically living day-to-day life without limitation. LGBT needs to find a different justification other than comparing their struggle to that of race. i never had to come out as black; it was obvious as soon as one laid eyes on me.

  • John Gould, thank you for your reply. As I stated in my post to you. "No one is comparing the race of African American, black or brown people to LGBTI people. I respect and honor you as a person that has different struggles than I do. However, we can and should agree that equality of law is the most important issue here."

    You did not have the same struggles as your parents or grandparents but you share the same race. However, the civil rights movement your parents and/or grandparents participated in created great change in our nation. Equality of law was enacted and enforced so that all people had basic human rights that include access to education, voting, and being a true, free and respected citizen with dignity in our nation.

    As we continue on this journey of equality of law, we look at the struggles we caused by wrong ways in the past that hurt, harmed, disrespected and excluded others.

    For example, if there were a large number of Asian Americans in this country that received horrible treatment in the past, we would point that out to show how wrong it was. It so happens, the fact of the matter is, our nation did treat your people very badly. It was wrong. It hurt people. It harmed people. We only point that out to illustrate that when our nation fails in applying the law equally, people get hurt. People are harmed. People are left out.

    I hope I explained it better. Remember, we are comparing your people's struggle with the LAW, not with your race or specific, terrible and uniquely bad situations they went through. No one can erase history and we have not intentions of doing so.

    Discrimination sucks, regardless of reason others are doing it. All people should be treated equally under the law.

  • Oh, John, another example I forgot to include that may help. What if you fell completely in love with a white woman and you wanted to marry her but the courts said you are not allowed? How would that make you feel?

    Our struggle is about marriage equality. There was a time, not too long ago that black and whites were not allowed to marry in our nation. That was wrong. That was discrimination to both people involved. This is an issue of marriage equality and it does compare directly to that issue. Peace.

  • “Elections matter,” it’s often said. And so they do.

    Virginia is reminded again of the promises of Mr. Jefferson– and that of his successor across an arc, Mr. Obama.

    “It’s been a long time coming,” Sam Cooke recorded fifty years ago this month. Lovers in and of Virginia will celebrate again when SCOTUS affirms, of course. But from the Chesapeake and Potomac through its beautiful Blue Ridge, we “know a change is going to come.”


    “It bends because each of us in our own ways put our hand on that arc and we bend it in the direction of justice…”
    –Barack Obama (April, 2008)

  • I am a tax paying citizen of the state of VA and I am also a gay man that has been a committed relationship with the man I love for many years now. This should have been done a long time ago and for those that live in Va that are still against marriage equality for all need to come out of the dark ages and look around, the GLBT community will overcome. As Martin Luther King once said Thank GOD almighty FREE at last FREE at last.

  • John so states like kansas say any person can deny goods or services to gays based on religon is ok? You say all this now because if a white did this you could sue sounds like jim crow to me sounds like those activist judges should not have voided loving v loving

  • John so states like kansas say any person can deny goods or services to gays based on religon is ok? You say all this now because if a white did this you could sue sounds like jim crow to me sounds like those activist judges should not have voided loving v loving

  • The only stench here is Brian Brown's ignorance

  • John Gould I appreciate this respectful conversation and would just add that while you may often see LGBT people moving about "freely" taking jobs and living/shopping where they please, this is a mis-perception. I have been required to live outside of the United States for the past fourteen years b/c my partner is a woman. we have risked being seperated when we cross the boarder and worse, having our children seperated from one of us. I am separated from my aging relatives and until very recently could not have moved there to be of help if they needed me. If we were in my home state, Florida, and I died (as the biological parent of the children) there were NO protections for their other mother and could have been apprehended by the state. Imagine living with that kind of worry. Similarly, my partner lives with a lot of fear because of her appearance and the homophobia that she expereinces (being stared at, told she's in the wrong washroom, glared at by angry bypassers.) these fears are based on reality. We do not live our daily lives without limitation—in fact, I'm deeply hurt by your assumption. My stories are not all our stories of discrimination and many LGBT live with much worse.

  • Just a brief comment…this struggle is not about marriage equality…it is about marriage REDEFINITION. Marriage is not a human invention or an accommodation of social engineering or evolutionary development…it was ordained and defined by its Originator. If we abandon this truth, then marriage is whatever anyone chooses to call it.

  • John Gould Jr, is that how you feel regarding interracial marriage? Did you read my comment above discussing this issue? Many people felt very strong about their "Originator", indicating that whites should only marry whites, blacks should only marry blacks, etc. Is that how you feel / what you believe? And if so, should those beliefs be forced on others in a free nation?

  • Ken Nardone, yes, I read your comments but am not persuaded in the least by your argument. Interracial marriage does not in any way redefine MARRIAGE…inter-gender "marriage" does…

  • "You mean I am no long a second class citizen who pays taxes to the support this country, but EQUAL finally and same rights as everyone else"

    Only if Virginia enacts a state ENDA

  • John Gould Jr, That is your interpretation of marriage and interracial marriage. We just just can't pick and chose some imaginary interpretation and say that's the law; we must look at how the law will benefit all adult citizens, regardless of race, gender, sexual orientation or gender identity. If the church you choose only marries certain types of people, that's OK for the religion and/or church, but it has no place imposing that belief on others.

    In a nation that clearly has separation of church and state as well as freedom from religion, we need to define equality of law that benefits all adult citizens. Soon as we start picking and choosing what citizens are "eligible" for laws, we deny freedoms, disrespect, harm and hurt countless other people. I know you understand that issue; you stated so previously.

    By the way, it's interesting that you started out objecting to these issues based on the judge in the article comparing LGBTI struggles to racial issues. However, now your argument seems to be more about redefining marriage to fit your interpretation of law.

    Frankly, I am disappointed that someone like you, that knows first hand exactly what discrimination feels like and knows first hand that it is wrong, would support such harmful ideologies. John, you know better. You are better than that. The only advice I can give you is try to understand the struggles of others and have more empathy and compassion.

    I supported civil rights issues my entire life and I always will because I know it's the right thing to do. I can only ask you consider the same for others; it's not your place or societies place to judge others. It's not your place or society's place to deny others equality of law. Our Constitution and Bill of Rights were intentionally set up that way. Peace.

  • Victoria Cobb needs to keep up with her own movement's talking points. Right after the Maryland marriage vote, the 'phobes did a 180 and said that morality should not be subject to a popular vote. It's almost as though their stated and actual reasons didn't line up perfectly.

  • All states need to do the same, Martin Luther King Jr widow even stated that it was an injustice to not only the GLBT community but to all that has faced oppression and injustice we all Need to unite as one and fight against the travesties that all the states try to put in place. As a tax paying American We are all entitled to our rights under the constitution, and one of those rights is to be able to love and marry the person we choose to without the local government bodies dictating whether we can or not.

  • I just wish the judge hadn't quoted, in her decision, the constitution as saying that all men are created equal. That's not in the Constitution, it's in the Declaration of Independence. That's a pretty big oops for a judge.

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