Gay Marriage Must Be Allowed In Virginia, Federal Judge Orders In Striking Down Ban

In another victory for gay marriage, a federal judge ruled Thursday that Virginia's ban on couples of the same sex getting married must end. The state's law, which was both a statute and an amendment to Virginia's own constitution, violates the United States Constitution, District Court Judge Arenda Wright Allen ruled.

But Allen also decided that the gay marriage ban should remain in place as long as the case remains on appeal. That appeal is expected to be filed quickly.

Two couples sued the state to recognize their marriages. Virginia's ban also applies to unions licensed by states where gay marriage is legal. Under Virginia's law, the state refuses to recognize those legal marriages.

One of the couples involved in the lawsuit is legally married, with a marriage license from the state of California.

Virginia passed its law banning gay marriage in 2006, by a margin of 57 percent to 43 percent. But according to recent polling, public opinion in the state has flipped over the past seven years, with 56 percent of Virginia's likely voters now against the ban on gay marriage and only 36 percent in favor, with seven percent expressing no opinion.

Utah and Oklahoma also recently saw voter-approved bans on gay marriage thrown out by federal courts.

In her opinion, Allen compared the challenge to the state's gay marriage ban to the 1967 case Loving V. Virginia, which ultimately overturned the state's prohibition against interracial marriage.

In January, Virginia's newly elected Democratic Attorney General, Ken Herring, announced that he had examined the law and found the gay marriage ban in violation of the U.S. Constitution on his own. Therefore, the state would no longer defend the ban in court.

A private conservative group known as Alliance Defending Freedom then took up the case, in which it defended the state's freedom to take away the freedom of gay people to be married.

"Marriage and procreation are fundamental to the very existence and survival of the race," the group's Austin Nimocks argued. "Every child has a mother and a father."

But Judge Allen wrote that beliefs that favor "traditions" or "favoring one model of parenting over another" are less deserving of protection than "this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family."

Allen also brushed aside the Alliance's claim that allowing gay marriage would be establishing a "new right" where no such right existed before. The judge said that proponents of gay marriage simply want to give same sex couples the ability to "exercise a right that is enjoyed by the vast majority of Virginia's adult citizens."