Norfolk Circuit Court Clerk George Schaefer appealed U.S. District Judge Arenda L. Wright Allen Feb. 13 ruling to the 4th U.S. Circuit Court of Appeals in Richmond. Prince William County Circuit Court Clerk Michèle McQuigg has also appealed the decision.
The state on Monday filed filed its own notice of appeal that Attorney General Mark Herring hopes will expedite the case.
“Throughout this process I have maintained that the law requires equal treatment for same-sex couples,” said Herring in a statement. “Although the court agreed with the commonwealth’s position that the state’s ban on same-sex marriage is unconstitutional, I have filed a notice of appeal to ensure that higher courts can swiftly rule on the critical issues in this case, consistent with my commitment to the rule of law.”
Tim Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield last year filed a lawsuit against Virginia’s same-sex marriage amendment that voters in 2006 approved by a 57-43 percent margin.
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 subsequently denied a request from Marshall and 29 other state lawmakers to appoint a special counsel to defend the marriage amendment.
“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 judge with the assistance of our own attorney general,” said Family Foundation of Virginia President Victoria Cobb after Allen issued her ruling.
Judge Michael F. Urbanski of the U.S. District Court for the Western District of Virginia in Harrisonburg last week held a hearing in class action lawsuit challenging the commonwealth’s gay nuptials ban to determine whether oral arguments are necessary in the case since Herring is no longer defending the marriage amendment. The American Civil Liberties Union, the ACLU of Virginia and Lambda Legal last August filed the lawsuit on behalf of two lesbian couples from the Shenandoah Valley who are seeking marriage rights in the Old Dominion.
Neighboring Maryland is among the 18 states and D.C. that have extended marriage rights to same-sex couples.
Gays and lesbians in West Virginia, Utah, Pennsylvania, Florida, Alabama, 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 month announced she will no longer defend her state’s same-sex marriage ban in court.
A federal judge on Feb. 12 ruled Kentucky must recognize gay nuptials legally performed in other jurisdictions. U.S. District Judge Sharon Johnson Coleman on Feb. 21 said same-sex couples in Illinois’ Cook County, where Chicago is located, could immediately begin to tie the knot even though the state’s same-sex marriage law does not take effect until June.
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 public safety personnel. This mandate applies to Virginia and the 31 other states that have yet to allow gays and lesbians to marry.
Same-sex marriage bans in West Virginia, North Carolina and South Carolina could be found unconstitutional if the 4th U.S. Circuit Court of Appeals upholds Allen’s ruling. Former U.S. Solicitor General Ted Olson and other lawyers who are representing Bostic and London and Schall and Townley expect the U.S. Supreme Court may ultimately decide the case.
“We want to be married for the happy times, but we need to be married for the sad times,” Schall told the Blade before Allen heard oral arguments in the 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.”