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Judge Strikes Ban on Same-Sex Marriage in Virginia

iStock/Thinkstock(NEW YORK) -- A federal judge struck down Virginia’s ban on same-sex marriage late Thursday night, saying that two laws and a constitutional amendment "unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry."

"Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family," wrote Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia.

Wright Allen, who was nominated to the bench by President Obama, stayed her opinion pending the final disposition of any appeal to the Fourth Circuit Court of Appeals.

The ruling is a victory for two gay couples -- Timothy B. Bostic and Tony C. London, and co-plaintiffs Carol Schall and Mary Townley. The plaintiffs are represented by lawyers David Boies and Theodore B. Olson.

On Thursday night, Olson released a statement saying, "Through its decision today, the court has upheld the principles of equality upon which this nation was founded."

Virginia’s Attorney General, Mark Herring, refused to defend the ban in Court. He praised the decision but said the case presented fundamental questions that "may ultimately need to be decided by the Supreme Court."

"The legal process will continue to play out in the months to come, but this decision shows that Virginia, like America, is coming to a better place in recognizing that every Virginian deserves to be treated equally and fairly," Herring said in a statement.

The Virginia ban was defended in court by lawyer Austin R. Nimocks of Alliance Defending Freedom. He represented Michelle McQuigg, the clerk of the circuit court in Prince William County.

Nimocks told Wright Allen "we have marriage laws in society because we have children, not because we have adults."  He said it is "reasonable and constitutional" for Virginians to accept "that it is better -- all other things being equal -- for children to grow up with both a mother and a father."

But Wright Allen dismissed his arguments writing that the laws are "needlessly stigmatizing and humiliating children who are being raised by loving couples." She noted that one of the plaintiffs had "yearned" to adopt the child she is raising with her partner. Virginia’s law does not permit second-parent adoption unless the parents are married.

The judge acted swiftly in releasing her 41-page decision. The case had only been argued nine days ago.

Brian Brown, president of the National Organization for Marriage, a group opposed to same-sex marriage, released a statement calling the decision "another example of an Obama-appointed judge twisting the Constitution and the rule of law to impose her own views of marriage in defiance of the people of Virginia."

"There is no right to same-sex 'marriage' in the United States constitution," he said. Brown said he hoped the Supreme Court ends up reversing this "terrible decision."

In an unusual flourish, Wright Allen began her opinion by quoting a statement by Mildred Loving, the plaintiff in the Supreme Court’s landmark 1967 case that struck down Virginia's ban on interracial marriage.

"The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry," Loving said in 2007.

After excerpting the statement, Wright Allen wrote, "Our Constitution declares that 'all men' are created equal. Surely this means all of us."

She said, "Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. 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."

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