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Saturday, December 10, 2016

By Michael Muskal, Los Angeles Times

When the U.S. Supreme Court struck down parts of the federal Defense of Marriage Act, it left unresolved whether couples of the same sex had a constitutional right to marry. Other courts, especially in Virginia and Utah, are filling that vacuum, setting the stage for the top court to go a second round on the issue.

Virginia is the latest state in the fray after a federal judge struck down the state’s ban on same-sex marriage as unconstitutional Thursday, arguing that the country has “arrived upon another moment in history when ‘We the People’ becomes more inclusive, and our freedom more perfect.”

In a 41-page ruling released late Thursday, District Judge Arenda L. Wright Allen used language similar to that in legal decisions in a series of other states. She cited Virginia’s past in denying interracial marriage as she struck down the state’s constitutional amendment approved by voters on 2006 that bans same-sex marriage and forbids recognition of such unions performed elsewhere.

“Tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage,” Wright Allen wrote. She opened her ruling mentioning Mildred Loving, at the center of the Virginia case the U.S. Supreme Court used in 1967 to eliminate laws barring interracial marriage.

The jurist, however, stayed her decision, avoiding the Utah situation where some 1,000 gay and lesbian couples married before the Supreme Court issued a stay. The Virginia case now heads to the U.S. Court of Appeals for the 4th Circuit in Richmond. The Utah case is pending before the 10th Circuit in Denver.

It is not unusual for the U.S. Supreme Court to watch how different appeals courts deal with the same issue before considering how to respond. As the final arbiter of law, the court often moves slowly and watches how lower-level jurists deal with an issue before weighing in. The court can also be responsive to changing social mores and has often tested the political waters on controversial issues from slavery in the 19th century to the role of government power during the Great Depression and in more modern times on civil rights and abortion issues.

According to recent polls, U.S. society has already become more accepting of homosexuality. Slightly more than half of all Americans support same-sex marriage, compared with 27 percent who said they supported it in 1996. Seventeen states and the District of Columbia allow same-sex marriage. Even once-resistant institutions, such as the professional sports locker room, have been forced to deal with gay rights. A college football player, Michael Sam, will likely become the first openly gay man in the NFL.

When the Supreme Court in June struck down parts of the Defense of Marriage Act, it eliminated the legal bar that prevented same-sex couples from receiving the same federal benefits as heterosexual couples. In a dissent, Justice Antonin Scalia predicted proponents of same-sex marriage would use the majority decision to systematically attack state prohibitions.