In another victory for proponents of gay marriage, a federal appellate court Monday ruled that a Virginia law banning same-sex nuptials is unconstitutional.
The 2-1 ruling from the 4th Circuit Court of Appeals “stands as a testament that all Americans are created equal and denying loving gay and lesbian couples the opportunity to marry is indefensible,” said Theodore B. Olson, one of the lead attorneys for the gay couples in Bostic v. Schaefer.
“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,” wrote Judge Henry F. Floyd and Judge Roger L. Gregory.
Denying same-sex couples the choice of whether and whom to marry stops them “from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance,” they wrote.
Presiding Judge Paul V. Niemeyer dissented, saying there is no constitutional right of gay or lesbian marriage, and states should be permitted to use their political processes to decide their marriage laws.
The appellate ruling does not go into effect for at least 21 days, and requests for a stay are expected.
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Prince William Circuit Court Clerk Michele B. McQuigg, who is defending the marriage law, is considering whether to appeal the case to the Supreme Court, said attorney Byron Babione, who is with Alliance Defending Freedom.
Norfolk County Circuit Court Clerk George Schaefer III is also a defendant in the case. His attorney David Oakley could not be immediately reached for comment.
The 4th Circuit ruling has the potential to affect gay marriage lawsuits in West Virginia, South Carolina and North Carolina, which are part of the court’s jurisdiction.
North Carolina Attorney General Roy Cooper said Monday that, based on his review, North Carolina will now recognize gay marriage as a fundamental right and “not oppose” the marriage cases “moving forward.” Meanwhile, in South Carolina, spokesman Mark Powell said Attorney General Alan Wilson sees no need to change course in its defense of traditional marriage, since the U.S. Supreme Court will likely make the final decision about gay marriage. Thus, South Carolina’s gay marriage ban remains intact, Mr. Powell told The Associated Press.
Monday’s ruling raises the likelihood that a gay marriage case will reach the Supreme Court, possibly as early as this year.
Carol Schall, one of the plaintiffs, said she was thrilled with the ruling. “Names matter,” she said, referring to being seen as a legal wife to co-plaintiff Mary Townley and legal mother to daughter Emily. The lesbian couple married in California in 2008 and want their union recognized in Virginia. Another set of plaintiffs, Timothy Bostic and Tony London, applied for a marriage license from the Norfolk Circuit Court but were denied.
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Virginia Gov. Terry McAuliffe said he was “overjoyed” by the ruling because it meant Virginia will become a place “where two people who love each other can get married, regardless of their sexual orientation.”
In 2005, Virginia’s General Assembly approved a measure saying marriage was the union of one man and one woman. This was ratified into law in 2006 by 57 percent of voters, or around 1.3 million people.
Judge Niemeyer, appointed by President Reagan, was named a judge in 1987. Judge Gregory received a recess appointment from President Clinton in 2000 and was nominated to the same position by President George W. Bush in 2001. Judge Floyd was appointed by Mr. Bush in 2003.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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