Court hears challenge to Virginia’s gay marriage ban

If successful, the lawsuit could begin a process that would strike down Virginia’s constitutional amendment prohibiting same-sex marriage.

By Robert Dilday

A closely-watched hearing last Tuesday in a federal court in Norfolk, Va., could ultimately overturn Virginia’s constitutional ban on gay marriage — an outcome which would impact adjacent states and give same-sex marriage its first foothold in the South.

Two same-sex couples asked U.S. District Judge Arenda L. Wright Allen to strike down Virginia’s ban on gay marriage, adopted by voters as a constitutional amendment in 2006.

In the hearing, attorneys for the couples argued that the prohibition violates the U.S. Constitution’s guarantees of equal protection of the laws and due process and compared the law to Jim Crow-era prohibitions against interracial marriage.

Supporters of the law maintained there is no fundamental right to gay marriage, and the ban exists as part of the state’s interest in responsible procreation.

Following the hearing, Wright Allen said she would issue a ruling soon. But however she rules, the case is likely to be appealed to the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, whose decision would impact all states in its jurisdiction, which include Virginia, Maryland, North and South Carolina and West Virginia.

Like Virginia, both North and South Carolina have adopted constitutional amendments banning gay marriage. In West Virginia, statutory law restricts marriage to a man and a woman. Maryland legalized same-sex marriage in 2012.

Virginia attorney general Mark Herring, a Democrat, announced Jan. 23 he would not defend his state’s constitutional amendment because he thinks it violates the equal protection clause of the 14th Amendment. That decision prompted the Republican majority in the House of Delegates to adopt a measure Feb. 3 to allow any member of the General Assembly to defend a law in federal court if the attorney general refuses to do so.

A second challenge to Virginia’s gay marriage ban has been filed in federal court in Harrisonburg, Va.

Challenges to the banning on gay marriage have been brought in more than 12 states, increasing the likelihood that the Supreme Court eventually will weigh in.