Virginia is for Lovers: Court hearing on same-sex marriage tomorrow

Posted by AzBlueMeanie:

The Washington Post reports on the latest from Virginia, Race on same-sex marriage cases runs through Virginia:

The race to get the Supreme Court to decide whether it is unconstitutional for states to withhold marriage from same-sex couples may run through Virginia.

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Equal[T]he Virginia cases are moving quickly, and some lawyers are hopeful they emerge through the appeals process as favored vehicles for an ultimate decision by the Supreme Court.

U.S. District Judge Michael F. Urbanski ruled Friday that a suit brought by American Civil Liberties Union lawyers in Harrisonburg on behalf of four lesbians should become a class action covering Virginia’s estimated 15,000 same-sex couples who might want to marry. [Harris, et al. v. McDonnel, et al., U.S. District Court for the Western District of Virgina – Harrisonburg Division (Civil Action No. 5:13-cv-00077)]

And Tuesday, in a courtroom just over 200 miles away in Norfolk, U.S. District Court Judge Arenda L. Wright Allen will consider for the first time Virginia’s startling reversal of the commonwealth’s legal position on same-sex marriage. [Bostic v. Rainey, U.S. District Court for the Eastern District of Virginia – Norfolk Division (Civil Action No. 2:13-cv-395)]

New Attorney General Mark R. Herring (D) said the state’s ban, approved by voters in 2006, is unconstitutional and cannot be defended.

Herring infuriated Republican lawmakers by joining two gay couples in asking Wright Allen for a decision that, as he wrote in a brief, “will be a landmark ruling in Virginia on one of the most important civil rights issues of our time.”

The Norfolk case is on a fast track, and that was a lure for the American Foundation for Equal Rights, whose celebrity lawyers Theodore Olson and David Boies have joined the suit. They were successful in their battle to overturn California’s Proposition 8 and return same-sex marriage to the state, but the Supreme Court stopped short of reaching the question of whether states may ban such unions.

They are hoping Wright Allen’s decision, and the prospect of a speedy review in the U.S. Court of Appeals for the 4th Circuit, will allow them to again make the case at the Supreme Court.

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The Supreme Court’s ruling in U.S. v. Windsor . . . dismissed the arguments offered by Congress as to why the federal government should recognize only traditional definitions of marriage. It said the arguments were mostly window-dressing for unlawful prejudice based on sexual orientation.

So far, state courts and federal judges have embraced that latter reasoning to trump the rights of states, and bans on same-sex marriage have been found unconstitutional since June in New Jersey, New Mexico, Utah and Oklahoma. The Utah and Oklahoma decisions are being appealed to the U.S. Court of Appeals for the 10th Circuit in Denver.

In effect, said William Baude, a law professor at the University of Chicago who follows the issue, the majority’s rhetoric in Windsor has been seen as “permission” for judges “who might already have been inclined” to believe there is a constitutional right to marry.

James Esseks of the American Civil Liberties Union’s LGBT Project says 47 cases in federal and state courts are challenging same-sex marriage bans in 24 of the 33 states that have them.

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