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By Michael Muskal, Los Angeles Times

In a closely watched case, a federal appeals court has ruled that Virginia’s ban on same-sex marriage is unconstitutional, the second appellate circuit to recently rule on an issue that is probably heading to the U.S. Supreme Court.

The decision, handed down on Monday by the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., is the first such ruling from a federal appeals court in the South, generally regarded as more conservative than the rest of the nation. Nineteen states and the District of Columbia have legalized same-sex marriage, though the issue is pending in courts in every state in the country.

The ruling is also the latest in a string of more than two dozen victories by supporters of gay marriage and moves another case up the judicial ladder, a needed step before the issue reaches the Supreme Court.

On June 25, in a 2-1 ruling, the U.S. Appeals Court for the 10th Circuit upheld gay marriage in a Utah case. On July 25, the same three-judge panel issued a similar split ruling in a case from Oklahoma. Both decisions were stayed to allow time for an appeal to the Supreme Court.

The ruling in the Utah case marked the first time a federal appeals court has ruled on gay marriage since the Supreme Court ruled that the federal government had to extend benefits to legally married same-sex couples a year ago.

Supporters of same-sex marriage were jubilant over the Virginia ruling.

“It was in a case out of Virginia that the Supreme Court ended race discrimination in marriage. And today, in another Virginia marriage case, a federal circuit court ruled against discrimination in marriage, affirming the freedom to marry for loving and committed gay couples,” said Evan Wolfson, president of Freedom to Marry, an advocacy group backing gay marriage.

“The 4th Circuit’s ruling echoes what over 25 other federal and state courts have held: Same-sex couples deserve the dignity of marriage, and anti-marriage laws are indefensible. Every day of denial is a day of injustice and tangible harms. It’s time for the Supreme Court to bring the country to national resolution and secure the freedom to marry for all,” he said.

In the Virginia case, Timothy Bostic and Tony London were denied a marriage license at Norfolk Circuit Court on July 1, 2013, and they promptly sued, arguing that the state’s constitutional ban on same-sex marriage denies gays and lesbians equal protection and rights guaranteed by the 14th Amendment.

“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” the judges wrote in the Virginia case.

“Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form life-long partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the 14th Amendment cannot countenance,” they said.

On Feb. 13, 2014, just in time for Valentine’s Day, a federal judge in Norfolk struck down the state constitutional amendment approved by voters in 2006.

In her original ruling, U.S. District Judge Arenda L. Wright Allen compared the ban on same-sex marriage to Virginia’s past prohibition to interracial marriage. That Virginia case led to a 1967 landmark ruling by the U.S. Supreme Court that struck down laws prohibiting interracial marriage — an argument that has returned in many states during the current campaign to eliminate state laws barring same-sex marriage.

London and Bostic are represented by attorneys David Boies and Theodore Olson, former adversaries in the 2000 Supreme Court case, Bush vs. Gore, which led to George W. Bush being elected president. Boies served as counsel for Vice President Albert Gore. Olson represented Bush and later served as his solicitor general.

In their papers, the lawyers argue that Virginia’s gay-marriage ban improperly discriminates against people on the basis of their sexual orientation.

“The Supreme Court has reaffirmed … that the right to marry is one of the most fundamental rights — if not the most fundamental right of an individual,” they said. “The right to marry has always been based on, and defined by, the constitutional liberty to select the partner of one’s choice,” they said.

Proponents of upholding Virginia’s constitutional ban, including Norfolk Circuit Court Clerk George Schaefer, a defendant in the case, argue that federal courts should defer to the states on the issue.

“References to marriage being only between a bride and groom, i.e. a husband and wife or one man and one woman, predate the Commonwealth of Virginia,” the defense said in its papers. The 2006 action “did not redefine marriage; it memorialized existing laws,” according to Schaefer’s filing, which also argued that “great weight” should be given to the will of the people.

Photo: Susan Melkisethian via Flickr

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