Richmond, Va. (WCIV/AP) - Virginia's same-sex marriage ban is unconstitutional, a federal appeals court ruled Monday in a decision that could overturn similar prohibitions in the Carolinas and West Virginia.
The 4th U.S. Circuit Court of Appeals in Richmond is the second federal appellate court to overturn gay marriage bans, and is the first to affect the South, where states' rights have held particular sway for generations, but politicians are under increasing pressure to give up the fight.
The judges ruled 2-1 Monday that Virginia's constitutional and statutory provisions barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution. The defendants are likely to ask for the ruling to be stayed pending more appeals to the full 4th circuit and the U.S. Supreme Court; otherwise, marriage licenses to same-sex couples could begin to be issued in 21 days.
The 4th Circuit decision also will apply to other states in the circuit when the decision becomes final in 21 days, providing that the court does not issue a stay at the request of the supporters of Virginia's gay marriage ban, said James Esseks, an attorney with the American Civil Liberties Union. Maryland, one of the states in the circuit, already allows same-sex marriages.
North Carolina Attorney General Roy Cooper quickly announced Monday that his office will stop defending his state's ban, saying, it is "time to stop making arguments we will likely lose." But a spokesman for South Carolina's attorney general, Alan Wilson, said he sees no need to change course.
The Attorney General's office in South Carolina, however, said its attorneys are still reviewing the case and determining what impact it would have on South Carolina.
"Currently, South Carolina's law remains intact, and, of course, our office will continue to defend it. However, it should be noted that in other circuits, stays have been granted following invalidation of individual state laws, which have caused confusion in those states," said Communications Director Mark Powell. "Ultimately, this will be a decision for the U.S. Supreme Court. People should not rush to act or react until that time, when a decision is made by the highest court in the land."
One South Carolina politician who has come out in favor of the court's decision is Thomas Ravenel, who is fighting for Sen. Lindsey Graham's seat.
"I strongly support the court's ruling," Ravenel said. "While I feel the government has no place in marriage, if it is going to confer benefits on heterosexual married couples - the government must also under the Fourteenth Amendment's equal protection clause treat gay marriages the same. Many Republicans also support this position, but Republican politicians like Lindsey Graham have been silenced and intimidated by the strident, intolerant and hateful voices of certain religious right leaders. Those voices do not intimidate me."
Ravenel said freedom from discrimination on the basis of sexual orientation is a principle rooted in America's founding liberties.
"The Declaration of Independence contains the fundamental expression of liberty, stating that 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these Life, Liberty and the pursuit of Happiness,'" Ravenel said. "I would add 'regardless of race, religion, sex or sexual orientation' to that. The 'pursuit of Happiness' means as we as individuals determine who we love, not the state."
Ravenel said he was sending a letter to Gov. Nikki Haley, a defendant in South Carolina's same-sex marriage case, urging her to move forward with striking down the state's law.
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under appeal. More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.
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 on 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.
For many years, the 4th Circuit had a reputation as one of the nation's most conservative courts, but that has changed in the last five years.
Most of the 14 active judges are Democratic appointees, including five who were named by President Barack Obama. Floyd was initially appointed to the federal bench as a district court judge for 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.
Associated Press writers Brock Vergakis in Norfolk, Matt Barakat in McLean, Larry O'Dell in Richmond; Allen Breed in Raleigh, North Carolina; Jeffrey Collins in Columbia, South Carolina; and Amanda Myers in Cincinnati contributed to this report.