Fourth Circuit Panel Strikes Down Virginia's Same-Sex Marriage Ban


"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." - Circuit Judge Henry F. Floyd

The U.S. Court of Appeals for the 4th Circuit today [July 28] affirmed a district court ruling striking down Virginia's ban on marriage for same-sex couples. The decision will not take effect immediately, but will go into effect in 21 days, unless the defendants file a motion to stay the ruling. The ruling will also be stayed if the defendants ask the full court of appeals to review the case.

"We recognize that same-sex marriage makes some people deeply uncomfortable," said Circuit Judge Henry F. Floyd. "However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life."

In a 2 to 1 vote, the panel of U.S. Court of Appeals for the 4th Circuit ruled that a fundamental right to marry is guaranteed under the constitution regardless of sexual orientation. Circuit Court Judge Rodger L. Gregory joined Judge Floyd in support of overturning the ban with Judge Paul V. Niemeyer in opposition.

"Civil marriage is one of the cornerstones of our way of life," Floyd said. "It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual's life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance."

This ruling makes the 4th Circuit the second appeals court to decide that state bans are unconstitutional. U.S. Court of Appeals for the 10th Circuit in Denver has struck down bans in both Utah and Oklahoma.

Virginia Gov. Terry McAuliffe praised Attorney General Mark R. Herring for refusing to defend the ban and applauded the court's ruling for equality. Herring came out in support of the challengers of the Virginia ban shortly after taking office this year.

"This is a historic ruling for our Commonwealth, and its effect will affirm once again that Virginia is a state that is open and welcoming to all," McAuliffe said. "I want to thank Attorney General Mark Herring for his leadership in this case, and all of the men and women who fought for years to make this day a reality. Progress does not always come as quickly as we hope it will, but today is yet another example of how justice, equality and the people who fight for those values will always persevere in the end."

The case, Bostic v. Schaefer, included a certified class made up of approximately 14,000 same-sex couples in the commonwealth who want to get married or want their out-of-state marriages recognized in Virginia and are represented by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal and the law firm of Jenner & Block. In addition, two plaintiff couples in Norfolk are represented in the case by attorneys Ted Olson and David Boies, their law firms, Gibson Dunn and Boies, Schiller & Flexner LLP and the law firm of Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C.

"The historic Supreme Court case that allowed for people of different races to marry, so providentially named Loving v. Virginia, started here," said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, who argued the case for the class before the federal appeals court. "In the 47 years since, committed same-sex couples in the commonwealth have been patiently waiting for the freedom to marry the person they love. Today's decision sends a message that everyone deserves the dignity and protection that only comes with marriage."

The couples representing the class in the case are Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester.

"We're overjoyed that we're a step closer to being recognized by our loved ones and community the same way that all of our opposite-sex married friends and relatives are," said Harris. "Although Jessi and I are absolutely committed to each other and our son, marriage holds an unparalleled meaning, both legally and emotionally."

If the Supreme Court doesn't grant review of the decision, the appeals court decision will be final, and all same-sex couples in Virginia who want to get married or want their marriages recognized will be able to do so. The ruling could also impact similar bans in the remaining 4th Circuit states (North Carolina, South Carolina and West Virginia) that continue to discriminate against same-sex couples.

More information on this case can be found at: www.aclu.org/lgbt-rights/harris-et-al-v-mcdonnell-et-a.


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