(888) 277-4253

BREAKING! Appeals court rules Virginia's ban on gay marriage is unconstitutional

RICHMOND, Virginia -- A federal appeals court today ruled in favor of a lower court ruling in Bostic v. Schaefer that found that Virginia's ban on gay marriage was unconstitutional.

The decision will not take effect immediately, but will go into effect in 21 days, unless the defendants file a motion to stay the ruling. The ruling will also be stayed if the defendants ask the full court of appeals to review the case, according to the ACLU.

The state of Virginia as well as the Governor and Attorney General, both Democrats who support marriage equality, will not appeal the case. The only two officials with legal standing to appeal the decision are the two county clerks who were named defendants in the case.

In his opinion, Judge Henry F. Floyd wrote:

“Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

The ruling utilized "strict scrutiny" to uphold the lower court ruling, which AFER attorney David Boies called "a very powerful opinion."

Evan Wolfson, president of Freedom to Marry, was elated.

"It was in a case out of Virginia that the Supreme Court ended race discrimination in marriage. And today, in another Virginia marriage case, a federal circuit court ruled against discrimination in marriage, affirming the freedom to marry for loving and committed gay couples," he said.

"The Fourth Circuit’s ruling echoes what over 25 other federal and state courts have held: same-sex couples deserve the dignity of marriage, and anti-marriage laws are indefensible. Every day of denial is a day of injustice and tangible harms. It’s time for the Supreme Court to bring the country to national resolution and secure the freedom to marry for all.”

Same-sex couples can marry in 19 states and the District of Columbia, meaning 44% of Americans live in states where gay couples share in the freedom to marry. Recent polling by the Washington Post/ABC News shows 59% of Americans support marriage, including a majority of young evangelicals and Republicans under 45 in other polls.

In total, 29 federal and state rulings in recent months have struck down state bans on marriage for same-sex couples.

AFER reacts

The decision also paves the way for West Virginia, North Carolina, and South Carolina to strike down their marriage bans as those states are under the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit. Marriage equality has been legal in Maryland, the fifth state in the Fourth Circuit, since January 2013

“Today’s decision stands as a testament that all Americans are created equal and denying loving gay and lesbian couples the opportunity to marry is indefensible,” said Plaintiffs’ lead co-counsel Theodore B. Olson of Gibson, Dunn & Crutcher LLP.

“Today’s decision recognizes that marriage is one of the most fundamental rights – if not the most fundamental right – of all Americans,” said Plaintiffs’ lead co-counsel David Boies of Boies, Schiller & Flexner LLP. “This court has affirmed that our plaintiffs – and all gay and lesbian Virginians – no longer have to live as second class citizens who are harmed and demeaned everyday.”

“Each and every milestone in this fight for marriage equality brings Tony and me one step closer to making our dream of being married a reality,” said Plaintiff Tim Bostic. “Our victory today reminds us why we filed this lawsuit – to fight for respect and full equality not only for us, but for all Virginians.”

“The Circuit Court’s decision reminds me of how proud I am to be a Virginian,” Plaintiff Carol Schall said. “Mary and I have lived here for over 40 years, have been in a wonderful relationship for nearly thirty, and have raised a beautiful daughter here in our home state. We could not be more thrilled with the judges’ decision.”

The American Foundation for Equal Rights (AFER) is the primary sponsor of Bostic v. Schaefer. AFER brought together the bipartisan legal team of Olson and Boies to fight California’s Proposition 8 in Hollingsworth v. Perry. The Perry case was the first case involving the right of gay and lesbian Americans to marry ever to be fully briefed and argued before the Supreme Court and the first case in which a U.S. Court of Appeals found a state’s marriage ban unconstitutional.

“We have reached another milestone in our fight for full federal marriage equality,” AFER executive director Adam Umhoefer said. “There is no denying it: Americans want their gay and lesbian family members, friends, neighbors and co-workers to enjoy the same rights they enjoy — rights that are guaranteed by our Constitution and its promise of liberty and justice for all. Today’s decision helps ensure each and every state lives up to that promise.”

“This is a great day for our clients and all Virginians,” said Tom Shuttleworth of Shuttleworth, Ruloff, Swain, Haddad & Morecock, who is also representing the Plaintiffs. “Today’s decision continues Virginia’s progress toward ensuring all loving couples are guaranteed their freedom to marry the person whom they love.”

In November 2006, voters in the Commonwealth amended the Virginia Constitution to define marriage as solely between one man and one woman and ban recognition of any legal status “approximat[ing] the design, qualities, significance, or effects of marriage” for gays and lesbians. Preexisting laws also banned marriage for same-sex couples in Virginia.

Bostic was filed in the United States District Court for the Eastern District of Virginia in July 2013 on behalf of two loving Virginia couples — Tim Bostic and Tony London of Norfolk, and Carol Schall and Mary Townley of Richmond — to challenge the constitutionality of these laws on the grounds that they violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution.

On Feb. 13, 2014, U.S. District Court Judge Arenda L. Wright Allen ruled that all laws prohibiting gay and lesbian couples from marrying in Virginia are unconstitutional, and recognized that they single out gay and lesbian Virginians for a disfavored legal status, thereby creating a category of “second-class citizens.”

Since its founding in 2009, AFER has fought for full federal marriage equality for all Americans.

Bostic v. Schaefer 4th Circuit Court Decision