The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.
The 6th Circuit in Cincinnati will hear arguments Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8. The 10th Circuit in Denver overturned Utah’s ban in June.
The Virginia lawsuit was filed by Timothy Bostic and Tony London of Norfolk, who were denied a marriage license, and Carol Schall and Mary Townley of Chesterfield County. The women were married in California and wanted their marriage recognized in the state where they are raising a 16-year-old daughter.
"Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans," said plaintiffs’ attorney David Boies. "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 every day."
Herring said the decision evoked the notion from a 2003 landmark U.S. Supreme Court decision in which Justice Anthony Kennedy noted the framers of the U.S. Constitution "knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."
The decision by U.S. District Judge Arenda Wright Allen that Virginia’s ban violates the U.S. Constitution’s equal protection and due-process guarantees was challenged by two circuit court clerks whose duties include issuing marriage licenses. They were supported by Alliance Defending Freedom, a public interest law firm based in Scottsdale, Arizona.
The group said it may ask for a full circuit rehearing, or appeal directly to the Supreme Court.
"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," ADF Senior Counsel Byron Babione said.
The decision falls in line with the changing climate in the 4th Circuit, which had a reputation as one of the nation’s most conservative courts. That has changed in the past five years.
Most of the 14 active judges are Democratic appointees, including five named by President Barack Obama. Floyd was initially appointed as a federal judge in South Carolina by George W. Bush, and then nominated for the appellate court by Obama. Roger Gregory, who joined Floyd in the majority, was a recess appointment of Bill Clinton, re-nominated by Bush in 2001. Paul V. Niemayer, who wrote the dissent, was appointed by George H. W. Bush.