Judge Declares Virginia's Same-Sex Marriage Ban Unconstitutional

A federal district court judge declared Virginia's voter-approved ban on same-sex marriage unconstitutional Thursday.

U.S. District Judge Areda Wright Allen declared the ban unconstitutional on the basis that it violates the plaintiffs' rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. She also issued a stay on the ruling, however, which prevents gay couples from marrying in the state until the case is resolved.

Virginia's ban on same-sex marriage was incorporated into the state's constitution in 2006. The ban is being challenged by a gay couple, Timothy Bostic and Tony London, who were denied a marriage license by the Norfolk Circuit Court last summer. Carol Schall and Mary Townley, a lesbian couple who married in California, later joined the case as plaintiffs with the hope that their marriage would be recognized by the state.

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Virginia Attorney General Mark Herring, who refused to defend the ban in court, said he supports the judge's ruling.

"This decision is a victory for the Constitution and for treating everyone equally under the law," Herring said in a statement. "It is the latest step in a journey towards equality for all Virginians, no matter who they are or whom they love."

Tony Perkins, president of the Washington D.C.-based Family Research Council, issued a statement in response to the decision that is critical of both the judge and Herring.

"It appears that we have yet another example of an arrogant judge substituting her personal preferences for the judgment of the General Assembly and 57 percent of Virginia voters," Perkins's statement says, in part. "Our nation's judicial system has been infected by activist judges, which threaten the stability of our nation and the rule of law.

"This ruling comes on the heels of Attorney General Mark Herring's refusal to fulfill his constitutional duty to defend the state's marriage law. His lawlessness is an insult to the voters of Virginia who rightfully expected elected officials to uphold the laws and constitution of the state, not attack them as Herring has done."

Mat Staver, founder and chairman of Liberty Counsel , called the judge's decision "outrageous and legally flawed."

"The Constitution cannot be changed by the stroke of a judge's pen, nor does it bow to a judge's personal ideology," said Staver in a statement. "The overwhelming majority of Virginia voters who make up 'we the people' voted to affirm natural marriage.

"Same-sex marriage, as a policy matter, sends the message that children do not need moms and dads. There is ample evidence that children fair best when raised with a mother and a father. Same-sex marriage is not the equivalent of natural marriage. Judges should be careful to render decisions grounded in the Constitution and the rule of law. Otherwise, judges and courts will render themselves impotent when the people lose confidence in the judicial system."

Another federal judge ruled this week that Kentucky must recognize same-sex marriages that are performed in other states, The Associated Press reports, but Virginia is the first state in the South to have its voter-approved ban on gay marriage overturned.

There are now more than a dozen states in which federal lawsuits challenging state gay marriage bans have been filed.

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