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Monday, October 24, 2016

By David G. Savage, Tribune Washington Bureau

WASHINGTON — The legal campaign for marriage equality is picking up speed, moving at a pace that has surprised even longtime advocates and increasing the likelihood of a definitive Supreme Court test as early as next year.

Efforts by some lawyers to plan a careful strategy for which cases to push forward to the high court have largely been put aside amid a rush of lower-court rulings striking down bans on same-sex marriage. The most recent came last week in Virginia, the first such ruling in the South.

“I don’t think there is any way to predict” which case will arrive at the Supreme Court first, lawyer David Boies said after the Virginia ruling.

In the last eight weeks, in addition to the Virginia decision, federal judges in Utah and Oklahoma have struck down laws limiting marriage equality. A federal judge in Kentucky ruled the state must recognize same-sex marriages from other states. And in Ohio, a federal judge issued a more narrow ruling that cast doubt on the state’s ban.

Increasingly, the judges are saying they can see no legitimate justification for denying marriage licenses to same-sex couples. With the Supreme Court having said that states cannot validly base marriage laws on traditional religious disapproval of homosexuality, the remaining justifications offered to defend the laws fail to pass muster, the judges have ruled.

U.S. District Judge Arenda Wright Allen in the Virginia case began her opinion with a lengthy quotation from Mildred Loving, the plaintiff who successfully challenged Virginia’s law against interracial marriage in the high court in 1967.

That opening served notice that the judge, a former Navy lawyer appointed in 2011 by President Barack Obama, did not accept Virginia’s argument that history and tradition were enough to justify the state’s ban on same-sex marriage.

She also forcefully rejected the state’s argument that limiting marriage to heterosexual couples is good for children. She noted that one of the two couples who sued — Mary Townley and Carol Schall — have a 16-year-old daughter, Emily.

“Like the thousands of children being raised by same-sex couples, (Emily) is needlessly deprived of the protection, the stability, the recognition and the legitimacy that marriage conveys,” the judge wrote. Though the state has “compelling interests in protecting and supporting our children,” they are “not furthered by a prohibition on same-sex marriage.”

If marriage is good for families, for children and for society — as all sides agree — then the state may not deprive its “gay and lesbian citizens of the opportunity and the right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life,” she concluded.

The sequence of rulings amounts to “a fundamental shift in the legal landscape,” said Evan Wolfson, president of Freedom to Marry. Jurists increasingly are saying that “marriage discrimination against loving and committed gay couples is indefensible under our Constitution,” he said.

That shift is not limited to judges. The chief state attorneys in Virginia, Pennsylvania and Nevada refused to defend the constitutionality of their long-standing laws forbidding gay marriage.

The pace of the rulings may be more rapid than some Supreme Court justices would have preferred.

Last year, the high court avoided ruling directly on whether gays and lesbians had a constitutional right to marry. Instead, the justices issued a 5-4 ruling that struck down the federal Defense of Marriage Act and extended equal rights to legally married same-sex couples.

Although the ruling had a limited reach, it included broadly worded passages about equal rights that lower-court judges are now citing as a basis for striking down bans on same-sex marriage.