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to Section One | to Arts & Entertainment
posted Friday, February 7 2014 - Volume 42 Issue 06
Ruling in VA marriage case 'soon,' judge says - Couples may file class action, second judge rules
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Ruling in VA marriage case 'soon,' judge says - Couples may file class action, second judge rules

by Mike Andrew - SGN Staff Writer

The judge in one lawsuit challenging Virginia's ban on same-sex marriage promised a ruling 'soon' at the initial February 4 hearing in the case, while in a second case, the judge ruled that Gay and Lesbian couples may file a class action to secure marriage rights.

Federal District Judge Arenda Wright Allen, sitting in Norfolk, told the court 'You'll be hearing from me soon,' after hearing opening arguments in the suit before her. Reporters present in the courtroom say she emphasized the word 'soon.'

The case before Judge Wright Allen involves a Gay couple who wish to marry and a Lesbian couple who were married in California and want Virginia to recognize their marriage.

In a second case, before Federal District Judge Michael Urbanski, two Lesbian couples in western Virginia have asked for declaratory judgment striking down Virginia's ban on their marriages and a permanent injunction preventing the state from enforcing the ban in the future.

On January 31, Urbanski ruled that the case could be expanded into a class action that included all of the estimated 15,000 Gay and Lesbian couples who wish to marry in Virginia.

In the Norfolk case, Virginia Solicitor General Stuart Raphael - following the lead of his boss, Attorney General Mark Herring - compared the state's ban on same-sex marriage to its previous laws banning interracial marriage.

'We are not going to make the mistakes our predecessors made,' Raphael told the judge.

The plaintiffs in this case are represented by AFER (American Foundation for Equal Rights) attorneys Theodore Olson and David Boies, who won the California Prop. 8 case before the U.S. Supreme Court.

'Virginia erects a wall around its gay and lesbian citizens, excluding them from the most important relation in life,' Olson said in oral arguments, adding that marriage was a fundamental right that is about 'freedom' and 'liberty.'

Boies said the state is harming children being raised in same-sex households by 'denying recognition and legitimacy' to their parents' relationships.

Olson added that the judge should be suspicious of decisions by the majority that single out groups that have historically been the victims of discrimination.

'Sometimes the voters and the legislature get it wrong,' and the result violates the constitution, he told Wright Allen. 'So, we have you.'

The two county officials defending the existing law - the only government officials who were willing to defend it - were represented by the anti-Gay group Alliance Defending Freedom. Their attorneys argued that only opposite-sex couples could procreate and successfully raise children.

Wright Allen did not question any of the attorneys who spoke during the hearing.

AFER wanted to represent plaintiffs in the Norfolk case because that one is apparently on the fast track to a decision. Once Judge Wright Allen rules at the District Court level, the Fourth Circuit Court of Appeals is also expected to expedite its decision, allowing Olson and Boies to argue marriage equality before the U.S. Supreme Court once again.

On the other hand, the ACLU which is representing the two Lesbian couples in Judge Urbanski's court, said there are plenty of other candidates for Supreme Court review.

James Esseks of the ACLU's Lesbian, Gay, Bisexual, Transgender and AIDS Project said 47 cases in federal and state courts are challenging same-sex marriage bans in 24 of the 33 states that have them.

'No one knows where the next decision might come from,' Esseks said. None of the cases will reach the high court for consideration in its current term, which ends in June, and none has yet been reviewed by appeals courts.

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