Judge Arenda Wright Allen entered the judgment in Bostic v. Rainey, the case that resulted in Virginia’s same sex marriage law being declared unconstitutional earlier this month, clearing the way for the expected appeal to the U.S. Court of Appeals for the fourth circuit.
Following Judge Wright Allen’s entering of the judgment, the Commonwealth of Virginia filed a notice of appeal with the Fourth Circuit, a procedural move that will help expedite the appeals process, but will not change the Commonwealth’s position that it is unconstitutional to deny the rights of marriage to same sex couples.
“Throughout this process I have maintained that the law requires equal treatment for same sex couples,” said Attorney General Herring. “Although the court agreed with the Commonwealth’s position that the state’s ban on same sex marriage is unconstitutional, I have filed a notice of appeal to ensure that higher courts can swiftly rule on the critical issues in this case, consistent with my commitment to the rule of law.”
On Jan. 23, Attorney General Herring announced he would not defend Virginia’s ban on same sex marriage because he concluded it violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. He expressed his desire for the ban to receive a vigorous defense in court, which it did, and for the ban to remain in force, which it has, until a definitive judicial ruling. On Feb. 4, Judge Wright Allen heard oral arguments both for and against the constitutionality of the marriage ban.
On Feb. 13, in a 41-page ruling, Judge Wright Allen reached a similar conclusion as Attorney General Herring and struck down Virginia’s constitutional and statutory prohibitions on same sex marriage as violations of the Fourteenth Amendment, while granting the Commonwealth’s request that the decision be stayed pending appeal.
A briefing schedule for the appeal will be developed in the coming weeks.
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