RICHMOND, Va. (AP) — Same-sex couples have the same right to marry as interracial heterosexual couples, Virginia's attorney general said Friday in papers urging an appellate court to uphold a judge's ruling that the state's gay marriage ban is unconstitutional.
Attorney General Mark Herring is backing two same-sex couples who filed a lawsuit challenging state laws and a constitutional provision barring gay marriage in Virginia and denying recognition of such unions performed in other states. U.S. District Judge Arenda Wright Allen in Norfolk struck down the laws in February but put the ruling on hold while it is appealed.
A three-judge panel of the 4th U.S. Circuit Court of Appeals will hear arguments May 13.
Lawyers for both sides expect the issue to ultimately be decided by the U.S. Supreme Court, either in the Virginia case or one from another state. Since the Supreme Court ruled last year that a law prohibiting the federal government from recognizing same-sex marriages was unconstitutional, federal judges have struck down state bans in Michigan, Oklahoma, Utah, Virginia and Texas. A judge in Kentucky has ordered the state to recognize same-sex marriages performed in other states, and a judge in Ohio has said he will do the same. Several other lawsuits have been filed.
Herring said in a brief filed with the appeals court that Allen was correct in citing the Supreme Court's 1967 Loving v. Virginia decision, which invalidated state interracial marriage bans, as a basis for striking down a prohibition against same-sex marriage. He said the U.S. Constitution's equal protection clause guards the fundamental right to marry and trumps the states' authority to decide the issue.
Lawyers for two circuit court clerks defending the ban have said in court papers that same-sex marriage is not a fundamental right because it was never contemplated by the framers of the equal protection clause, but Herring said that argument is unpersuasive.
"Loving teaches that the Fourteenth Amendment protects the fundamental right to marry, even if the way in which it is practiced would have surprised the Framers or made them feel uncomfortable," he wrote.