Same-sex marriage is now taking place in Virginia for the first time in the state’s more than 400-year history, after the U.S. Supreme Court on Monday declined to take up the issue.
In a surprise move, the high court simply passed on hearing the same-sex marriage dispute, letting stand five federal court rulings around the country that overturned state bans on nuptials between gay and lesbian couples.
That means a February decision by U.S. District Judge Arenda L. Wright Allen tossing Virginia's ban on same-sex marriage — a ruling later upheld by a federal appeals court — immediately went into effect.
The Supreme Court’s move — rebuffing calls from both sides to hear the case — meant same-sex couples were getting marriage licenses by early Monday afternoon in Virginia and several other states that had previously barred gay marriage.
The Supreme Court's decision not to hear the Virginia case will mean gay marriage bans will unravel in three other states in the same federal circuit — North Carolina, South Carolina and West Virginia. The court’s decision not to hear other cases will apply to Utah, Oklahoma, Kansas, Colorado, Wisconsin and Indiana.
Before Monday, it was widely assumed the U.S. Supreme Court would take up the issue in the coming term and that it was only a matter of deciding whether to hear Virginia’s case or another state’s case, or a combination.
Under that scenario, it would not have been until mid-2015 that the issue would have been decided in landmark fashion after historic arguments before the nation’s highest court.
Those urging such a course included the attorneys for the Virginia case’s plaintiffs, despite the fact that they had won at the district and appeals courts. They wanted the high court to use the Virginia case to outlaw bans in dozens of states at once.
On the other hand, defenders of state gay marriage bans also exhorted the Supreme Court to hear the issue. They wanted the high court to declare that states can limit marriage to one man and one woman.
Though the Supreme Court passed on the issue for now, it could still take up the matter at a later date. Still, the decision not to hear the case means the lower court ruling is the law — and same-sex couples are now able to able to walk into circuit courts in Virginia for marriage licenses.
A new era
The state’s same-sex marriage ban is now history. As passed in a 1975 law and 2006 state constitutional amendment, Virginia’s ban also outlawed civil unions, barred adoption by same-sex couples and blocked the recognition of same-sex marriages from other states.
“We’re finally going to be recognized as individuals,” said Tony London, one of the lead plaintiffs in the Virginia case, said in a conference call spearheaded by the American Foundation for Equal Rights. “We’re going to be able to spend the rest of our lives together. … I can’t even talk, I’m so excited.”
Same-sex marriage officially became legal in Virginia at 1 p.m. An hour later, London and his partner of 25 years, Tim Bostic, got a marriage license at the Norfolk Circuit Court. It was issued by Clerk of Court George Schaefer III, whom London and Bostic had sued over the issue.
“It seems surreal,” Bostic said. “To say we are overjoyed would be an understatement.”
When they first filed the suit in federal court last year, they thought it could take several years to get a ruling. It later appeared that a ruling would happen as soon as next summer.
“The fact that it happened today was just a shock,” Bostic said. “I know that some people are disappointed that it didn’t go to the Supreme Court to resolve the issue across the country, but we did this to resolve the issue in Virginia, and guess what — we won. So we are very happy. It’s exactly what we wanted.”
Though they now have their marriage license in hand, a wedding date has not yet been set. Bostic said a date would soon be set at their church, St. Luke's Episcopal Church in Ghent.
Before same-sex marriage went into effect at 1 p.m. Monday, the attorney general’s office said it was giving guidance “and necessary forms” to clerk’s offices across the state. Also new is that same-sex marriages from other states are now fully recognized in Virginia.
To that end, two other plaintiffs in the Virginia case, Carol Schall and Mary Townley, renewed their wedding vows in Richmond on Monday. They had sought to have their 2008 California marriage recognized in Virginia.
Virginia Attorney General Mark Herring led a renewal ceremony for Schall and Townley in Richmond, which culminated with Herring telling them to seal their bond with a kiss. Their daughter, Emily, 16, cried and embraced them afterward.
Schall said she was at work Monday morning when she got the news by email. “My officemates heard a gasp,” she said, “only to see me in a puddle of tears to know that our long journey has ended in such joy and such happiness.”
With the ruling, local circuit courts — where people get marriage licenses in Virginia — began to get traffic Monday afternoon from gay and lesbian couples.
Four same-sex couples got marriage licenses in Newport News, said Chief Deputy Clerk Gary Anderson, with the first issued just after 1 p.m. In Hampton, one gay couple got a marriage license, issued by Clerk of Court Linda Batchelor Smith at 1:50 p.m.
The battle isn’t over
The Alliance Defending Freedom, an Arizona-based Christian rights organization that had worked to uphold Virginia’s ban on same-sex marriage, said the fight is not over.
“The court’s decision not to take up this issue now means that the marriage battle will continue,” said senior counsel Byron Babione. “Several federal courts — including those in the 5th, 6th, 8th and 11th circuits — still have cases working their way to the Supreme Court. … The people should decide this issue, not the courts.”
The Family Foundation of Virginia said the decision not to hear the case was a letdown.
“We are disappointed that the Supreme Court has sidestepped this important issue, at least for now, and left Virginians without a definitive answer,” said Victoria Cobb, the group’s executive director.
“Until the Supreme Court makes a final determination, we will continue to advocate for natural marriage because children deserve, whenever possible, to have both a mom and a dad,” Cobb said. She said the group will work to ensure that “the rights of those who disagree with the redefinition of marriage” are not discriminated against.
In August, lawyers for all sides — including the plaintiffs — had urged the Supreme Court to take up the issue. “Only a ruling by this court invalidating marriage discrimination … can assure plaintiffs and all other same-sex couples of the validity of their marriages throughout the United States,” the plaintiffs’ filing said, urging a “definitive” nationwide ruling.
But though they didn’t get the sweeping ruling, the plaintiffs’ lawyers cast the high court’s decision to pass on the case to be a great victory for marriage equality. “It’s an extraordinarily exciting and extremely gratifying moment,” said Ted Olson, of the Washington firm of Gibson Dunn, and the nation’s former solicitor general who’s been representing the plaintiffs in the Virginia case.
Olson added: “Soon, many, many, many more people in the United States … who have been waiting so long to be treated equally under the Constitution will finally receive the benefits of equality … that the Constitution guarantees.”
Likewise, Herring — who had also urged the high court to hear the case — also voiced praise at the decision, saying that “a new day has dawned, and the rights guaranteed by our Constitution are shining through.”
“All Virginians have the constitutional right to be treated fairly and equally, to … enjoy the blessings of married life,” Herring said. “We should all be proud that our fellow Virginians helped lead us forward.”
With the lower federal court rulings being allowed to stand, 30 states allow or will soon allow same-sex couples to get married. And same-sex marriage proponents contend it’s only a matter of time before the other bans fall, too.
“The Supreme Court has sent a very clear signal here that it has no problem with same-sex couples marrying,” said Jon Davidson, a lawyer with Lambda Legal who represented some plaintiffs in a western Virginia case.
He added: “We expect the refusal to hear the cases will send that message to all the pending cases across the country and that we will very soon be seeing the right of same sex couples to marry throughout the United States. It’s an incredible day.”
Daily Press reporters Ashley Speed, Diana McFarland and Travis Fain contributed. Dujardin can be reached by phone at 757-247-4749757-247-4749