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Monday
Jul282014

Gay Marriage: One Step Closer to the Supreme Court? Why Virginia Matters

iStock/Thinkstock(WASHINGTON) -- Though the Supreme Court issued a major opinion concerning gay rights in 2013, it has so far sidestepped the issue of whether states can ban gay marriages.

The Fourth Circuit Court of Appeals ruling Monday striking down Virginia's strict marriage laws brought the issue one step closer to the justices.

It's the second time a federal appeals court has struck down a state ban since the Supreme Court ruling in United States vs. Windsor.

"We are talking about the Commonwealth of Virginia!" Theodore Olson, an attorney for the challengers of the gay marriage ban, exclaimed after the decision was handed down. "It's the birth place of George Washington."

David Boies, another lawyer representing the challengers called the opinion "powerful" and said "it holds that the Virginia marriage laws seriously harm plaintiffs, and seriously harms the children that the plaintiffs raise."

If, down the road, the Supreme Court were to adopt the 4th Circuit’s reasoning, "It would mean that everyone in every state in the nation would be able to marry the person that they love," Boies said, declining to speculate which case the Supreme Court might ultimately take up if it does indeed decide to take up one or more cases.

It will take at least a few weeks for the 4th Circuit's ruling to go into effect. In the meantime, supporters of the law could ask for a re-hearing with either the full court of appeals or the Supreme Court.

Though the opinion deals directly with Virginia's laws, the reasoning could apply to other states under the 4th Circuit's jurisdiction, "including to states with bans that, as the majority noted, are similar to Virginia's, including South Carolina, North Carolina, and West Virginia," said Elizabeth Wydra of the Constitutional Accountability Center.

Boies noted that the opinion "does not depend upon anything that is unique to Virginia." "I think," he said, "it is clearly controlling law in all of the states in the Fourth Circuit."

Because Virginia's attorney general has declined to defend the law, the conservative group, the Alliance Defending Freedom (ADF) has stepped in to represent clerks supporting the marriage law.

After Monday's ruling, ADF's senior counsel Byron Babione released a statement, saying, "Every child deserves a mom and a dad, and the people of Virginia confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union."

Babione has not announced any plans for appeal, but he said, "Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court."

For some, Virginia is an important landmark because of the 1967 Supreme Court decision, Loving vs. Virginia, regarding interracial marriage.

"It's appropriate that marriage for same-sex couples took a big step forward today in a case from Virginia, since Virginia is where the fundamental right to marry was born," said James Esseks, one of the ACLU lawyers who won the Windsor decision at the Supreme Court.

In the 1967 decision the Supreme Court struck down the Commonwealth's ban on inter-racial marriages.


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