Appeals panel strikes down Virginia gay marriage ban

(USA TODAY) A federal appeals court panel in Virginia became the second one this summer to strike down a state ban against same-sex marriage Monday, making it more likely that the Supreme Court will settle the issue as early as next year.

The three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in Richmond ruled 2-1 that gay men and lesbians have a constitutional right to marry that is paramount to state marriage laws.

The circuit court has jurisdiction over Virginia, Maryland, West Virginia, North Carolina and South Carolina. The panel's decision can be appealed to the full court or to the Supreme Court.

Like the first appeals court panel to rule on the issue this year in Utah and Oklahoma, the three-judge panel was deeply divided, but the swing judge -- in this case Henry Floyd, who was named to the bench by George W. Bush and elevated to the circuit court by President Obama in 2011 -- came down on the side of same-sex marriage.

Judge Roger Gregory, originally appointed by Bill Clinton in 2000, joined Floyd in the majority. Presiding Judge Paul Niemeyer, a George H.W. Bush nominee, dissented.

The Virginia case, which involves two couples seeking to marry in the state and two couples seeking to have their marriages from other states recognized, now gives the Supreme Court a choice. It can hear the Utah or Oklahoma cases from the 10th Circuit, wait for Virginia's to be appealed, or wait even longer for other gay marriage cases scheduled for appellate hearings in August, September and beyond.

One way or another, legal experts agree the high court likely will accept a case for its 2014 term beginning in October or the 2015 term that follows. Niemeyer joked about that during oral arguments in May, calling his courtroom a "way-station" en route to Washington.

The justices paved the way last year for what has become an unbroken string of federal and state court victories for gay marriage proponents. They ruled 5-4 that the federal government cannot deny benefits to legally married same-sex couples without violating the equal protection and due process clauses of the Constitution.

Since then, district judges in 18 states have struck down bans on gay marriage or ruled that marriages performed elsewhere must be recognized in their states. Only three of those rulings -- in Utah, Oklahoma and Virginia -- have been heard by appeals courts so far.

The 10th Circuit appeals court includes Utah, Oklahoma, Kansas, Colorado and Wyoming, as well as New Mexico, where same-sex couples already can marry. The precedent set by the Utah ruling in June applies to all those states, but the panel blocked its ruling from taking effect pending appeal. Utah Attorney General Sean Reyes has said he will seek seek Supreme Court review.

Other appellate court cases involving marriage bans in Idaho, Kentucky, Michigan, Nevada, Ohio and Tennessee will be argued in August and September. Appeals also are pending from Arkansas, Texas, Wisconsin, Indiana and Colorado.

The high court ruled last June that the federal government must recognize legal same-sex marriages, and it cleared the way for California to become the 13th state where gays and lesbians could marry. Since then, six other states have legalized gay marriages by legislative action or court order — New Jersey, New Mexico, Illinois, Hawaii and, most recently, Pennsylvania and Oregon.

More than 70 lawsuits are pending in all 31 states that still have prohibitions. Some raise specific issues such as divorce or death benefits.

The Virginia case stands out for at least three reasons. It comes from the South, a region that has yet to embrace gay marriage. Its Democratic attorney general, Mark Herring, has refused to defend the ban, leaving that to two circuit clerks. And the lawyers for the original gay and lesbian plaintiffs, Theodore Olson and David Boies, are the same ones who won gay marriage rights in California last year.

The original plaintiffs are Timothy Bostic and Tony London, who were denied a marriage license in Norfolk, and Carol Schall and Mary Townley of Richmond, whose marriage in California isn't recognized by Virginia. They have been joined by the plaintiffs in another Virginia case, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, who seek to represent all gay and lesbian couples in the state.

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