Federal Judge Strikes Down Virginia’s Ban On Same-Sex Marriage

Another victory for marriage equality. This time from the state that gave us the Supreme Court's landmark decision on interracial marriage.

Dont Tread On Me Rainbow Flag

Just a few months longer than seven years ago, Virginia joined much of the rest of the nation when voters passed, by an overwhelming margin, the Marshall-Newman Amendment, which not only banned same-sex marriage in the Commonwealth, but also made it a violation of Virginia law for gay couples to enter into private contracts that might create “another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.” Given that the vote took place at the height of the backlash against marriage equality that had begun sweeping the nation at the beginning of the 2000s, and the fact that at the time Virginia was very much a Republican bastion, was not entirely surprising. Indeed, exit polling in 2006 showed that the Amendment passed with a strong majority from pretty much every important demographic group and even received one-third of the votes of self-identified Democrats at the time.

In the years that have passed, of course, the political and legal tide has changed dramatically. There are now seventeen states, plus the District of Columbia and a number of Indian Tribes, where same-sex marriage has been recognized either via legislative action, referendum, or legal action. The Supreme Court of the United States issued a landmark opinion striking down Section Three of the Defense of Marriage Act, a decision that has spurred several Federal Courts across the country to strike down state bans in states such as Oklahoma and Utah. Meanwhile, similar challenges to state laws have been filed in virtually every state of the country. Two of those challenges were filed in the Commonwealth of Virginia, one in the portion of the state covered by the Eastern District of the U.S. District Court for the state and the other in the Western District. Last night, on the eve of Valentine’s Day, Federal Judge Arenda Wright Allen released her opinion in the Eastern District case, an opinion that emphatically finds the Commonwealth’s ban on same-sex marriage to be a violation of the rights granted under the United States Constitution:

A federal judge on Thursday evening declared that Virginia’s ban on same-sex marriage was unconstitutional, in the strongest legal reversal yet of restrictive marriage amendments that exist throughout the South.

“Our Constitution declares that ‘all men’ are created equal,” wrote Judge Arenda L. Wright Allen of United States District Court for the Eastern District of Virginia, in Norfolk. “Surely this means all of us.”

The ruling, which overturned a constitutional amendment adopted by Virginia voters in 2006 as well as previous laws, also said that Virginia must respect same-sex marriages that were carried out legally in other states.

But opponents of same-sex marriage have vowed to appeal the decision to the United States Court of Appeals for the Fourth Circuit in Richmond, and Judge Wright Allen stayed the execution of Thursday’s ruling pending the appeal.

This week, a federal judge in Kentucky ruled that the state must honor same-sex marriages legally performed in other states, but the ruling did not address Kentucky’s own ban on such marriages.

If the Court of Appeals upholds Thursday’s decision, the repercussions in the South could be wide. Similar amendments limiting marriage to a man and a woman would most likely be voided in other states of the Fourth Circuit, including North Carolina, South Carolina and West Virginia. (Maryland, the fifth member, approved same-sex marriage in 2012.)

But many legal experts believe that this case, or another among the dozens now being argued in federal district or appeals courts around the country, will eventually be taken up by the United States Supreme Court.


The plaintiffs in the case are Tim Bostic, an English professor, and Tony London, a real estate agent, who live in Norfolk and have been together for 24 years.

They are joined by Carol Schall, an autism researcher, and Mary Townley, who also works with special needs youth, from Richmond. The two women have been together for 28 years and have a 16-year-old daughter. They married legally in California in 2008, but Virginia refused to recognize that status.

“I am proud to say that today I am equal under the law in my home state of Virginia,” Mr. Bostic said Thursday. “Tony and I just want to get married like everyone else can.”

Ms. Schall said, “For us, marriage is about love and commitment and our family having the recognition and protection other families enjoy.

The Washington Post’s write up goes into a bit more detail regarding the ruling itself:

Wright Allen showed no hesi­ta­tion in overturning the state constitutional amendment, saying none of the reasons proponents offer for denying same-sex marriages make legitimate governmental interests.

“Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships,” Wright Allen wrote. “Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”

Wright Allen opened her decision with a quote from Mildred Loving, who was at the center of the Virginia case that the Supreme Court used in 1967 to strike down laws banning interracial marriage.

Wright Allen added: “Tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.”

She joined a so-far unanimous group of federal judges considering a question that Supreme Court justices left unanswered in June in their first consideration of gay marriage: Does a state’s traditional role in defining marriage mean it may ban same-sex unions without violating the equal protection and due process rights of gay men and lesbians?

All have answered that the reasoning the court used to strike part of the Defense of Marriage Act– which forbade federal recognition of same-sex marriages performed in those states where it is legal–means states cannot defend the marriage bans.

Wright Allen put it this way: “The legitimate purposes proffered by the proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse ‘responsible procreation’—share no rational link with Virginia marriage laws being challenged.”

She added: “The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.”

The case in Wright Allen’s courtroom marked the first time such a challenge has advanced so far in a state that was part of the Old South.

And Lyle Denniston goes into even more detail:

As other judges have done, Judge Wright Allen on Thursday ruled that the two couples in her court were not seeking a newly created right — a free-standing right of gays and lesbians to marry — but rather were seeking equal access to existing marital rights open to opposite-sex couples.

The couples, the judge wrote, “ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia’s adult citizens.”  By gaining that right, the opinion added, the fundamental right to marry will not be transformed.

Virginia’s marriage bans, she added, “interject profound government interference into one of the most personal choices a person makes.”

In nullifying those bans under the Constitution’s Due Process Clause, Judge Wright Allen applied the most rigorous constitutional test of government action: “strict scrutiny.”  That is the standard that has long been used to judge discrimination based on race.  Some other courts that have struck down other states’ same-sex marriage have applied a lower level of analysis, known as “heightened scrutiny.”  This judge used the higher level in weighing the due process challenge because, she said, “marriage is a fundamental right.”

She applied less-exacting tests in finding that the bans violated guarantees of legal equality, concluding that the state had no legitimate purpose for excluding same-sex couples from marital rights.

She noted that, in defending the Virginia provisions, those in support of them had relied heavily upon tradition to avoid “radical change.”  The judge said that argument also had been advanced to try to maintain the ban on interracial marriage, struck down by the Supreme Court in Loving v. Virginia.

“Tradition is revered in the Commonwealth,” the judge declared, “and often rightly so.  However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.”

The judge also rejected defenders’ arguments that the bans were necessary to prevent the federal government from interfering in state matters, and were necessary to protect children from being raised by same-sex parents.

I’ve embedded the opinion below for those who are interested in reading it in full. In essence, though, Wright Allen struck down Virginia’s law on much the same ground as we’ve seen in decisions from Federal Judges in California, Utah, and Oklahoma. The main difference between many of these opinions has been the level of Due Process scrutiny that has been applied by particular judges have applied in examining the law. Some, such as the Judge who struck down Proposition 8, have utilized the lowest level of scrutiny which is sometimes called a “rational basis” test. Under this standard, a law would be upheld if the state could provide just the slightest rational basis for the law, in this case a law that forbids gays and lesbians from receiving a benefit that straight couples are granted routinely. In that case, the Court found that there was not even a rational basis for the distinction that Proposition 8 made. Other judges have applied a heightened level of scrutiny that requires the government to show that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. In this case, though, Judge Wright Allen applied the highest level of scrutiny under Federal law, which requires that the law being challenged serve a compelling government interest in a way that is narrowly tailored to meet that interest. While laws against same-sex marriage have been struck down uniformly under all three levels of scrutiny, which of these three ultimately becomes the law of the land (via a Supreme Court decision) is important because it will have an impact on how courts in the future deal with subsequent litigation relation to the rights of same-sex couples in a wide ranging group of areas including adoptions and public accommodation laws. I can’t say that I have an opinion one way or another at this time as to which level of scrutiny is the most appropriate, but it’s worth noting that if it ends up being one of the heightened levels of scrutiny then laws that purport to discriminate against gays and lesbians across the country will be in serious legal trouble.

Appropriately enough, Judge Wright Allen starts out with a quote from Mildred Loving, the wife in the landmark, and appropriately named, Supreme Court case Loving v. Virginia, in which she states quite emphatically that she and her late husband were fighting for the same rights that same-sex couples are fighting for today. It’s also appropriate that the decision came out on the eve of Valentine’s Day. Moreover, speaking as one of the 999,687 Virginians who voted against the bill in November 2006, I am happy to see a Judge recognize the seemingly undeniable fact that the Amendment is simply incompatible with the idea of Due Process and Equal Protection of the Laws as set forth in the 14th Amendment, not to mention the tradition of individual liberty that Virginia can rightfully claim as its own thanks to men such as George Mason, James Madison, and Thomas Jefferson.

The next step for this case will be the Court of Appeals for the Fourth Circuit, an appeals court that has a reputation for being very efficient with its docket meaning that we could have a decision before the end of the current Supreme Court term. At that point, it will join cases from elsewhere around the country on a track to the United States Supreme Court, which looks increasingly likely to rule on this matter at some point during the term that begins in October of this year and ends in June 2015.  Between now and then, there will no doubt be a whole host of cases from other states joining the party.

Here’s the opinion itself:

Bostic Et Al v. Rainey Et Al by Doug Mataconis

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. OzarkHillbilly says:

    Love the flag that leads this Doug. Wonder where I can get one.

  2. rudderpedals says:

    I think Wright-Allen found it failed to meet even the least restrictive test, an easy-to-pass rational basis test:

    Wright Allen put it this way: “The legitimate purposes proffered by the proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse ‘responsible procreation’—share no rational link with Virginia marriage laws being challenged.”

    [added emphasis]

  3. Al says:

    Another activist judge taking away the rights of some people to take away the rights of other people.

  4. grumpy realist says:

    There’s something extremely karmic about this coming out on St. Valentine’s Day….(giggle).

  5. Stonetools says:

    There is an article in Slate that points out that of the 18 decisions courts have ruled on since Windsor ALL have come down in favor of marriage equality. The battle in the courts is done. The anti SSM side has no coherent legal arguments to make, and I think the USSC is going to face up to that and decide the issue in the next year or two.

  6. KM says:


    The battle in the courts is done

    But there’s still so much taxpayer money left to waste! Lawyers and talking heads have to grift eat too, ya know.

  7. There was a time when a body could earn a nice livin’ offa the campaign donations to the Hit The Gays PAC. Them days is over now that the institutional bully flees the State, last seen in VA.

    Who is the next (alleged) “enemy” that is also a fellow American citizen? What is their negative ad valuation?

  8. DrDaveT says:

    While I agree with the decision, I have to point out that it’s the Declaration of Independence that states that “all men are created equal” — not the Constitution. For a federal District Judge to get that wrong is… embarrassing.

  9. rudderpedals says:

    @DrDaveT: It looks that way, doesn’t it? The Judge probably should have pointed out in that passage that she was talking about the Virginia Constitution.

    See http://constitution.legis.virginia.gov/

  10. DrDaveT says:

    @rudderpedals: I actually checked that first — the Virginia Constitution says “all men are by nature equally free and independent”, not “all men are created equal”. Similar sentiment, but the ‘created’ terminology matters a lot to some people, and if she was quoting the Virginia document she got it wrong.

    Unless, of course, she was misquoted by the journalist who wrote the story, which is even more likely.

  11. rudderpedals says:

    @DrDaveT: Unfortunately the news story is probably correct. Unless Doug posted a sham pdf it really does in black letters credit the/a Constitution.