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Federal judge strikes down Virginia’s ban on same-sex marriage

LGBT Legal Cases Marriage equality Marriage Equality Trials

According to Virginia’s Attorney General Mark Herring, the state’s ban has been struck down in Bostic v. Rainey.

Here’s part of the conclusion:

The Court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry.Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.

Here is the decision, via Kathleen Perrin.

It is stayed pending appeal.


  • 1. peterplumber  |  February 13, 2014 at 7:09 pm

    Awesome news!

  • 2. renecito  |  February 13, 2014 at 7:13 pm

    I cant believe this is really happening guys 🙂

  • 3. Stefan  |  February 13, 2014 at 7:21 pm

    With strict scrutiny too!!!

  • 4. Bruno71  |  February 13, 2014 at 7:25 pm

    It's like the different justices from different locations are one-upping each other with every ruling.

  • 5. Ragavendran  |  February 13, 2014 at 8:20 pm

    Ah, yes, she acknowledges that strict scrutiny applies, but also says later on that the law doesn't withstand even rational basis review: "Virginia's Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs compelling arguments that the Laws should be subjected to heightened scrutiny."

  • 6. skrekk  |  February 13, 2014 at 8:27 pm

    Anyone here have any opinions on that aspect, specifically using strict scrutiny because marriage is a fundamental right?

    To me it seems that this creates the opportunity for SCOTUS to formally adopt strict scrutiny for sexual orientation, as the 9th circuit has done.

  • 7. Bruno71  |  February 13, 2014 at 9:55 pm

    The 9th applied heightened scrutiny in the SmithKline Beacham case, which is different than strict scrutiny. Technically, the judge applied rational basis here, but mentioned that strict scrutiny applies to marriage laws. We've talked about how, assuming Kennedy is still the guiding force in a SCOTUS ruling, the levels of scrutiny may not even be specifically utilized, as he hasn't mentioned any level of scrutiny in the 2 previous big gay rights cases.

  • 8. ebohlman  |  February 13, 2014 at 10:07 pm

    Strict scrutiny on matters of fundamental rights applies to due process claims, not equal protection ones; it's based on the nature of the right in question, not the nature of the people the law's applied to. In other words, it's not class-based the way levels of scrutiny for equal protection claims are.

  • 9. skrekk  |  February 13, 2014 at 11:19 pm

    So why not make a due process claim regarding the denial of a fundamental right, so that strict scrutiny can be applied?

  • 10. Ragavendran  |  February 13, 2014 at 11:50 pm

    The plaintiffs did, and the judge concurred that plaintiffs right to choose to marry is denied and so strict scrutiny must apply. (It is beautiful the way she lashed out at the claim that plaintiffs seek to create a "new" right to same sex marriage, similar to how Shelby dealt with it in Kitchen.) But then, she concludes that all three rationales provided by the defendants (tradition, federalism, for-the-children) defy even rational basis review, so it is not even necessary to bring out the big guns (strict scrutiny).

  • 11. ebohlman  |  February 14, 2014 at 12:18 am

    That's the same thing Shelby did in Kitchen; he applied strict scrutiny on the Due Process claims and intermediate scrutiny on the gender-discrimination Equal Protection claims, and in both cases found that Utah's arguments failed rational basis and thus automatically failed any higher level of scrutiny.

    In Bostic there were no EP claims involving gender discrimination, but otherwise the same DP claims and EP claims about sexual orientation (because VA's arguments failed on rational basis here the judge felt no need to consider whether higher levels of scrutiny were applicable).

  • 12. TimATL  |  February 14, 2014 at 4:57 am

    Is strict scrutiny the same thing as heightened scrutiny and people just use the terms interchangeably, or are they two different things?

  • 13. Pat  |  February 14, 2014 at 5:32 am

    I asked the same question recently, and the consensus reply was that there are typically 3 levels of scrutiny: rational < intermediate < strict (from lowest to highest).
    And "heightened scrutiny" means that the level is higher than merely 'rational', so heightened scrutiny is a generic term covering both intermediate and strict scrutinies.
    But more knowledgeable commenters might have a more complete answer than this.

  • 14. TimATL  |  February 14, 2014 at 5:47 am

    That makes total sense. Thanks!

  • 15. Frisky1  |  February 14, 2014 at 6:56 am

    I'm not suggesting that I'm more knowledgable, but I think you got it exactly right. Another aspect is that the burden of proof on the constitutionality of a law shifts from the disadvantaged group (rational basis) to the government (heightened scrutiny).

    There is also a fuzzy logic level called rational basis with bite which seems to be the level that was used in Romer and Lawrence. Still rational basis but with some of the heightened scrutiny criteria applied to it–namely animus against an unpopular group. Basically it's a cop out for the courts to strike down blatantly unconstitutional laws without openly declaring a group a suspect class.

  • 16. grod  |  February 14, 2014 at 4:58 am

    Ragavendran: In as much as Judge Wright-Allen quotes Shelby, I am sure Shelby, who has to February 25 to file a reply to the State's filing, will use Bostic v. Rainey reasoning on “for-the-children rationale” to argue the weakness of the State's position. “This is a profound distortion of what the plaintiffs seek” P 31. Here also, as in Kentucky's Heyburn decision, and Ohio's Black decision, the right to remain married and have valid marriages recognized find support. If anything, Windsor is about the right to have a valid marriage (Canadian) recognized by the federal government. Finally, Wright-Allen's reasoning in the dismissal of Baker v Nelson can be used by Utah's Kitchen et al's lawyer to further undercut the State's assertion the Baker is controlling.

  • 17. Valquiria  |  February 13, 2014 at 7:23 pm

    I can't wait for the sadz on THIS one.

  • 18. Seth From Maryland  |  February 13, 2014 at 7:27 pm

    YAY 🙂 another step closer

  • 19. Tyler O.  |  February 13, 2014 at 7:28 pm

    Wow, the language in the ruling is VERY strong. She pulled no punches.

  • 20. FYoung  |  February 13, 2014 at 7:31 pm

    I'm unclear as to whether anybody has standing to appeal who would want to do so.

  • 21. Seth From Maryland  |  February 13, 2014 at 7:35 pm

    the county clerk is the legal defendent so they have standing

  • 22. Bruno71  |  February 13, 2014 at 7:35 pm

    Wouldn't it be interesting if the county clerk decided "meh, I don't think I'll appeal."

  • 23. Seth From Maryland  |  February 13, 2014 at 7:36 pm

    it would 🙂

  • 24. Scottie Thomaston  |  February 13, 2014 at 7:36 pm

    Some clerks are defending it

  • 25. Pat  |  February 13, 2014 at 11:10 pm

    Are they? I thought they had all withdraw from the case and only the "Coalition" was left? Damn, i guess im mixing it up with the Nevada case! Getting hard to follow!

  • 26. StraightDave  |  February 13, 2014 at 11:23 pm

    Good thing we only have 33 states left or you'd really run out of fingers and toes. I can't believe how all this has exploded so suddenly. Apparently Kennedy really lit the fuse and everybody started piling on. NOMbies headed for the unemployment line 🙂

    Please let's not let it drag out for 5 more years. It's over.

  • 27. Chuck from PA  |  February 14, 2014 at 7:11 am

    Michigan case will be on the front burner next, and hopefully one of the Pennsylvania cases will show some progress toward being heard. Along with Virginia, those are all large population states. Keeping my fingers crossed for positive results in my home state.

  • 28. Thom  |  February 13, 2014 at 7:48 pm

    What are our odds with the 4th Circuit? Have they shifted enough to the center to uphold this decision?

  • 29. Seth From Maryland  |  February 13, 2014 at 7:49 pm

    yep infact i think the 4th tends to lean left now

  • 30. Dr. Z  |  February 13, 2014 at 8:26 pm

    This is a very big deal. The Fourth Circuit is no ordinary appeals circuit.

  • 31. Bruce  |  February 15, 2014 at 9:11 am

    As a local Virginian, I'm familiar with the basics of the Fourth Circuit, but what makes it special in a way that the Second or the Ninth are not?

  • 32. Kevin  |  February 14, 2014 at 11:52 am

    Um no. The Fourth Circuit is actually incredibly conservative in legal if not political terms.

  • 33. Paul  |  February 14, 2014 at 5:14 pm

    NOT ANYMORE! There are 18 justices on the 4th circuit with 6 of them having been appointed by Obama, 4 appointed by Clinton, and 1 appointed by Carter. Only 7-8 (depending on how you count) were appointed by Republican presidents. Obama has rocked this court decidedly to the left, proving once again that ELECTIONS MATTER.

  • 34. Dr. Z  |  February 14, 2014 at 6:38 pm

    It was until just a few months ago. Republicans had been trying to preserve their edge in this, the most important circuit. The Republicans refused to allow the Democrats to fill several vacancies, claiming rather disingenously that the circuit had sufficient judges and that the replacements weren't needed.

    The Senate Democrats under Harry Reid instituted the long-threatened "nuclear option" and forced through a Senate rules change that eliminated the filibuster for district and appellate court vacancies. That broke the power of the Senate Republicans to prevent the Democrats from reshaping the Fourth Circuit. The filibuster is still permitted for SCOTUS vacancies.

  • 35. bendreyfus  |  February 15, 2014 at 6:47 pm

    That was the DC Circuit.

  • 36. Ragavendran  |  February 13, 2014 at 8:25 pm

    The 4th seems to be comprised of a strong majority of democratic appointees (10 out of 15, of which 6 are Obama's). So, there seems to be hope there for this case. Also, according to Wikipedia, "the Fourth is the most efficient circuit, taking an average of just over seven months to resolve each appeal." This might be resolved by the 4th in time for it to reach SCOTUS before its deadline for filing cert petitions for their next term!

  • 37. Pat  |  February 14, 2014 at 12:30 am

    Yeah, just too bad marriage equality will probably need to wait till the end of the year because of that stay…

  • 38. Pat  |  February 14, 2014 at 12:42 am

    But now that I think of it, the advantage of a possible 4th circuit appeal means it's somewhat likely that marriage equality would come to West VIrginia, North Carolina and South Carolina this year!
    So game on! Please do appeal!

  • 39. Ragavendran  |  February 14, 2014 at 1:31 am

    Best case scenario: All states in the 4th, 9th, and 10th have marriage equality by this time next year. That brings the tally to 32 states and DC, if my calculation is correct.

  • 40. Pat  |  February 14, 2014 at 5:34 am

    And don't forget Michigan and Pennsylvania, among others…

  • 41. Ragavendran  |  February 14, 2014 at 2:08 pm

    True, but that will depend on the speed of those cases. Michigan, perhaps, but Pennsylvania – I doubt it as it is already scheduled in June (I think), which might be too late, but you never know…

  • 42. Mackenzie  |  February 13, 2014 at 7:56 pm

    Big week for us! Two victories in one week, a court hearing in TX, and two new challenges introduced. Not to name all the decisions and victories made already this year. Hard to keep track of it all 😀

  • 43. Seth From Maryland  |  February 13, 2014 at 8:07 pm

    i know right 🙂 it's starting to snowball

  • 44. Ragavendran  |  February 13, 2014 at 8:18 pm

    Also, Illinois's HJR-3 will not be on the ballot this November. So add this one to the list as well!

  • 45. Bruno71  |  February 13, 2014 at 8:24 pm

    Indiana. For a second I thought Illinois was pulling a fast one!

  • 46. Ragavendran  |  February 13, 2014 at 8:27 pm

    Oops! Yes, Indiana. I'm so excited and braindead at the same time!

  • 47. grod  |  February 14, 2014 at 5:02 am

    Mackenzie More than 55 cases before the Courts.

  • 48. davep  |  February 14, 2014 at 12:10 pm

    That's incredible. It was about 20 cases not that long ago…..

  • 49. Matt  |  February 13, 2014 at 7:58 pm

    Virginia IS for lovers! 🙂

  • 50. Whistleblower  |  February 13, 2014 at 8:09 pm

    You guys need to read the opinion. Smack, right in the first page there is a HUGE quote from Ms. Loving talking about the freedom to marry and how it applies to all regardless of sex, race, or sexual orientation. This judge could not have been more bold.

  • 51. Ragavendran  |  February 13, 2014 at 8:23 pm

    From Loving to Lincoln. What an awesome opinion. (The opinion ends with Lincoln's quote.)

  • 52. davep  |  February 13, 2014 at 8:58 pm

    Wow, the Conclusion section is some really powerful stuff. If you think this can't possibly get any better… read the conclusion.

  • 53. Guest  |  February 14, 2014 at 9:15 am

    Maybe it is the lingering flu, but reading the conclusion was – even across the Atlantic – powerful enough to brought a tear to my eye.

    Justice O'Connor said that she hoped her tombstone might one day read 'here lies a good judge'. This particular judge has certainly earned the same honor, after what will hopefully be a very long and successful career on the bench.

  • 54. davep  |  February 14, 2014 at 12:12 pm

    Yup, it had the same effect on me. While I've always been very happy about what these court decisions have said, I don't think I've had that type of emotional reaction since the original Perry decision.

  • 55. Weaver  |  February 14, 2014 at 9:30 am

    I think Loving would have been proud her quotation is the opening for this decision. Her words mean a tremendous amount to me, helping me emotionally in the aftermath of Prop 8. We were one of the 18K couples who married during the window in 2008, then waited with much angst to see if our marriage had been annulled by 8.

    I now understand on a gut level why marriage is so important. We married on our 27th anniversary. I didn't think I could love him any more than I already did. I was wrong. Becoming 'domestically partnered' had been anti-climactic; it was one more paper when we were signing papers in front of a notary when we re-financed the house. Standing up before our family & friends, making our vows to one another, "with this ring I thee wed" & all that, only served to cement an already strong bond even further. It was an affirmation for us I had not expected to hold the immense importance that it did – and still does, one that to my surprise, went far beyond just the legal protections it has brought. It clarified for me, just how basic a civil right this is, something Mrs. Loving truly understood.

  • 56. Dr. Z  |  February 14, 2014 at 7:04 pm

    Hey Whistleblower, it's good to you posting again. It seemed like you hadn't been posting as much lately.

  • 57. Bill  |  February 13, 2014 at 8:13 pm

    My native state, I was back there as a Katrina exile in time for the nasty marriage amendment referendum in '06. SO HAPPY TONIGHT!

  • 58. Zack12  |  February 13, 2014 at 8:19 pm

    This was a no brainer.
    The people who helped draft this ban made no secrets whatsoever about why they were doing it.
    Bob Marshall in particular made it known he viewed gays and lesbians as sinners who deserve to burn in hell.
    There was no way to spin this ban as anything but animus against gays and lesbians and nothing more.

  • 59. David  |  February 13, 2014 at 10:21 pm

    Yes, exactly. At the same time, Marshall et al understood the implications of that, and tried to prevent the full language of the amendment from appearing on the ballot. In the end, he was, and continues to be, unable to keep his animus hidden. He is quite a character. And now he's running for Congress.

  • 60. Mike in Baltimore  |  February 13, 2014 at 8:25 pm

    The Norfolk, Virginia 'The Virginian-Pilot' article:

    The Richmond 'Times Dispatch' (in the home city of the 4th Circuit):

    And the Washington Post article (DC is across the Potomac River from the most populous part of Virginia, locally known as NoVa):

  • 61. Ragavendran  |  February 13, 2014 at 8:34 pm

    The Richmond Times Dispatch erroneously states that the judge denied the plaintiffs motion for a preliminary injunction. She granted it, according to the penultimate page of the opinion. (Her stay was probably misconstrued as denying the motion for preliminary injunction.)

  • 62. Mike in Baltimore  |  February 14, 2014 at 2:05 pm

    You didn't write the article, and neither did I. All I did was provide the URL to the article.

    That would be one indication of why the newspaper, though the largest in the state (by circulation of newspapers published in the state), is less subscribed to in Virginia than the Washington Post – more people rely on the WaPo to get timely and accurate information than those who rely on the Richmond newspaper.

  • 63. Ragavendran  |  February 14, 2014 at 2:09 pm

    Sure, I didn't mean to blame you or anything, and I apologize if it came across as that. I emailed the author of the article, and he acknowledged his mistake and immediately corrected the article to reflect that.

  • 64. Pat  |  February 14, 2014 at 3:09 pm

    He was only pointing out a mistake in an article. Why do you always need to take it as a personal attack on you? .

  • 65. Mike in Baltimore  |  February 14, 2014 at 7:18 pm

    Maybe I take many (not all, but many) comments as personal attacks because many people, such as you, make a lot of comments that can ONLY be interpreted as personal attacks on me.

    I notice that you were 'brave enough' to post a comment (probably after marking me down). For that, I guess I give you credit. That means, however, at least three others were not that 'brave'.

  • 66. bayareajohn  |  February 14, 2014 at 10:26 pm

    Choosing to rate a post without replying is no more a sign of cowardice than dragging on pointless snits is a mark of nobility.

  • 67. Dr. Z  |  February 14, 2014 at 7:00 pm

    Hey Mike, I've noticed a pattern here. You expect perfection from others (e.g. correct usage of "can" vs. "may.) And yet, you are hypersensitive to the slightest hint of criticism directed against you. Time and again you have flown off the handle at people, as if you were trying to pick a fight.

    Ragavendran didn't say anything against you – but you overreacted as if he did.

  • 68. Mike in Baltimore  |  February 14, 2014 at 10:14 pm

    Please reread what I wrote above.

    I didn't say that Ragavendran attacked me, just that the article was not written by him nor I. Any 'determination' that I was attacking anyone in that post is solely the ASSumption of the person who read the comment, then posted a reply about 'patterns'.

    Who made a comment about 'buffaloes' existing in Indiana? Wasn't that by someone who has never admitted to living in Indiana, or even in the MidWest? I was born, raised and educated in Indiana, then I moved away from that state. As a result, I know quite a bit of the history of the state – one reason is the history of Indiana has historically been a required subject in Indiana education.

    I also commented (above) that one of the reasons the Richmond paper is NOT the most circulated in the state (although it is most circulated of newspapers published in the state) is because many people can't rely on the paper for accuracy as much as they can better rely on the timeliness and accuracy in other newspapers, such as the WaPo.

    That an inaccuracy was spotted by Ragavendran (who I presume doesn't live in or near Richmond, Virginia, otherwise a phone call, rather than an email inquiry, would most likely have been made) is an indication of the lack of accuracy in many articles the Richmond newspaper publishes.

  • 69. Ragavendran  |  February 14, 2014 at 10:43 pm

    Dear Mike (and others who might be interested),

    For future reference, a little about my background. I'm a 28 year old gay man, originally from Chennai (Madras), India. I'd love to go on a rant about the recent backward step in India which has made me a criminal there, and how much it heartens me to currently live here, where gay rights are progressing at breakneck speed, but I'll leave that for another time.

    I've been in the US for a little over five years now. Gay marriage was legal in CA when I set foot in Pasadena during Fall 2008. Then, Prop 8 passed that November. On my second day in the US, I was christened "Raga" (pronounced like Gaga) by my grad school advisor, who, bless him, tried really hard to pronounce my full name. I graduated with my PhD on June 14, 2013, mere days before Windsor and Hollingsworth were decided by SCOTUS. (My parents were visiting me from India for my graduation, and I came out to them two days before graduation.) Thus it was that gay marriage once again was legal in CA when I moved to Boulder, CO, where I'm now doing my 2-year post-doc.

    So, nope, I'm nowhere near VA, as you rightly presume. (The closest I've ever been is when I visited Philadelphia for a conference last summer and took a day trip to Elk Neck State Park in MD.)

    Also, I have some social anxiety issues, and I'm usually a reserved and shy person when it comes to verbal conversations even if not in-person, so I would have likely used email anyway, even if I lived next door to the author of that article. (I use email now, most of the time, to talk to my landlady who lives upstairs.)

  • 70. Straight Ally #3008  |  February 16, 2014 at 3:49 am

    I'm not really following this exchange, just wanted to say congratulations on earning your PhD! I know firsthand what an investment of time and effort that is – welcome to the club!

  • 71. Ragavendran  |  February 16, 2014 at 10:50 am

    Thank you very much! I was responding to Mike who, at the end of his previous comment, tried to deduce how far from Richmond I was physically located, with only information from my earlier comment that I had emailed the author of the Richmond Times article about an error. I thought I'd tell Mike more about myself so that in future he'd have information to work with, and, if he so wishes, psycho-analyze me better.

  • 72. bayareajohn  |  February 14, 2014 at 10:46 pm

    What's got you hot about buffalos? While it is certainly not debated that the proper species name is "bison", the term "buffalo" is engrained in the US psyche. "Home on the Range", the state song of Kansas and the unofficial theme of the west opens with "Give me a home where the buffalo roam"… why not tackle Kansas for their affront to bison, which is huge compared to Dr. Z's? The horror…. the horror…

    Point is, yes, Mike, you jump off at some pretty trivial stuff, and your posts often are assaultive and deliberately insulting (and name calling – "ASSumption") when its just not called for, addressing offenses only you see, leading to way off topic continuing nonsense like this reply. (Sorry.)

    You are the cause of your own upset, the maker of your own antagonism. And it makes others quicker to snap back at you when they probably shouldn't, because you've worn a thin spot in their patience.

    I really do want to encourage the informative and helpful Mike in Baltimore that often enlightens us with details no one else has brought forth. I'm dismayed to realize that it means we may also have to live with the the petty and belligerent Mike in Baltimore who bristles, snipes and hisses at the smallest slights (some real and more imagined) that just really don't matter.

  • 73. bayareajohn  |  February 14, 2014 at 11:08 pm

    With apologies to the rest for further pointless diversion for the sake of the absurdity of the discussion, but another ripe target for your ire, Mike- The Official Indiana State Code is clearly conspiring with Dr. Z against your defense of bison, calling their depiction a "buffalo" not once but twice in their legal description of their seal. This, from people who actually have lived in Indiana, not poseurs like Dr. Z:

    Indiana State Code: IC 1-2-4-1
    "The official seal for the state of Indiana shall be described as follows: A perfect circle, two and five eighths (2 5/8) inches in diameter, inclosed by a plain line. Another circle within the first, two and three eighths (2 3/8) inches in diameter inclosed by a beaded line, leaving a margin of one quarter (1/4) of an inch. In the top half of this margin are the words "Seal of the State of Indiana".
    At the bottom center, 1816, flanked on either side by a diamond, with two (2) dots and a leaf of the tulip tree (liriodendron tulipifera), at both ends of the diamond. The inner circle has two (2) trees in the left background, three (3) hills in the center background with nearly a full sun setting behind and between the first and second hill from the left.
    There are fourteen (14) rays from the sun, starting with two (2) short ones on the left, the third being longer and then alternating, short and long. There are two (2) sycamore trees on the right, the larger one being nearer the center and having a notch cut nearly half way through, from the left side, a short distance above the ground. The woodsman is wearing a hat and holding his ax nearly perpendicular on his right. The ax blade is turned away from him and is even with his hat.
    The buffalo is in the foreground, facing to the left of front. His tail is up, front feet on the ground with back feet in the air, as he jumps over a log.
    The ground has shoots of blue grass, in the area of the buffalo and woodsman."

    The point here is that there is no point in arguing about such things, for it is sound and fury signifying nothing. Reminding me of how an argument about how many angels could dance on the head of a pin once lead into a full annotated diatribe about how angels do not dance.

  • 74. Zack12  |  February 14, 2014 at 11:40 pm

    IMO, the information Mike provides us isn't worth the petty attacks he launches into if a person make a minor mistake or rubs him the wrong way.

  • 75. Background Gal  |  February 14, 2014 at 11:45 pm

    I suspect that we have a greater chance of encouraging more valuable posts than we have of discouraging nasty ones.

  • 76. bayareajohn  |  February 15, 2014 at 5:00 pm

    I hope we get both results. I am convinced that Mike is well intentioned.

  • 77. Mike in Baltimore  |  February 15, 2014 at 6:06 pm

    The word 'theory' in science means something MUCH different than the word 'theory' in the common language. Does that mean we try NOT to correct people when they incorrectly use the word 'theory'?

    Same with 'buffalo' and 'bison'.

    Remember, it was in Indiana that the state legislature essentially tried to 'square the circle', and in the process defining 'pi' as a 'regular' number, not the irregular number that it actually is.

    Or do you define Chihuahuas EXACTLY the same as Great Danes? Both breeds bark. Both breeds are canines. Both breeds are mammals. Both breeds descend from the same prehistoric ancestor. Etc. That must mean they are EXACTLY the same? Correct?

    Hint – even a blind person would be capable of telling the difference between a Chihuahua and a Great Dane.

    Same with buffalo and bison. They have many similarities, but they are NOT the same.

    Oh, and maybe YOU participated in a 'diatribe' of how many angels could or could not dance on the head of a pin, but I didn't.

  • 78. bayareajohn  |  February 15, 2014 at 6:14 pm

    I guess I stand corrected about thinking you are well intentioned.

  • 79. Johnny  |  February 15, 2014 at 6:31 pm

    Let's me realistic everyone on this site. I've seen time and time again that people on here only want to hear what they want to hear. They don't want to hear the worst case scenarios along with the good. Just because you bring up worst case scenarios doesn't mean you're a troll. I say a lot of the people on here have their heads up their buttholes. Get a grip! You want a discussion so let's discuss it.

  • 80. Frederic  |  February 15, 2014 at 10:47 pm

    Oh boy… Even when so many commenters try to nicely explain how annoying your pedantic and aggressive rants are, there you go again. Sigh.

  • 81. Zack12  |  February 16, 2014 at 1:23 am

    He'll attack posters as well if they make a mistake.

  • 82. Vince  |  February 15, 2014 at 4:26 am

    That was spot on, thanks! I wanted to write something similar but you did it with more patience and politeness than I would have…
    (oops, I just ended my sentence with "…", Mike will surely pick on me)

  • 83. davep  |  February 13, 2014 at 8:29 pm

    Yeah! Excellent news!! Thank you AFER!!

  • 84. FFV  |  February 13, 2014 at 8:32 pm

    I', afraid the judge is going to be quite embarrassed: "Our Constitution declares that 'all men' are created equal.". That was written by another Virginian, Thomas Jefferson in the Declaration of Independence.

  • 85. Dr. Z  |  February 13, 2014 at 9:29 pm

    The judge set "all men" apart in quotes. That was because the judge isn't a man.

    And Jefferson owned slaves.

  • 86. Michael Grabow  |  February 14, 2014 at 12:07 pm

    Was it amended? I see "Our Declaration of Independence recognizes that "all men" are created equal."

  • 87. FFV  |  February 14, 2014 at 1:09 pm

    Must have been. I'm sure the judge will still get some ribbing from the other members of the court.

  • 88. bythesea  |  February 14, 2014 at 1:32 pm

    Yes, she quickly corrected.

  • 89. Michael Grabow  |  February 15, 2014 at 2:13 pm

    I read somewhere she was "misquoted".

  • 90. allen  |  February 13, 2014 at 8:56 pm

    So is this the first state in the SOUTH?!

  • 91. ebohlman  |  February 14, 2014 at 12:24 am

    Strictly speaking, no. Maryland and Delaware are officially considered parts of the South, even though practically everyone thinks of them as parts of the Northeast and they politically and culturally behave as if they were. MD is in the 4th Circuit along with VA, WV, NC, and SC.

  • 92. Frisky1  |  February 14, 2014 at 7:05 am

    Agreed, tho Delaware was one of the 16 states that still had its interracial marriage ban when Loving was decided, so in that sense it's "southern".

  • 93. Dr. Z  |  February 14, 2014 at 2:02 pm

    Maryland, Kentucky, Missouri, and Oklahoma are all part of the Border South. West Virginia probably is too, but it's a bit of a special case.

  • 94. Mike in Baltimore  |  February 15, 2014 at 7:00 pm

    The term 'border state' goes back to the US Civil War. During the US Civil War, the border states were Delaware, Maryland, Kentucky and Missouri, but not Oklahoma (since Oklahoma was not a state until admitted in 1907. During the Civil War, what is now Eastern Oklahoma was Indian Territory.).

    Border states were so classified because they allowed slavery within the state, but did not secede from the Union. (And until after Fort Sumter, Arkansas, Tennessee, North Carolina and Virginia were also considered border states until they seceded.)

    And you are correct about West Virginia being a 'special case'.

  • 95. Mike in Baltimore  |  February 14, 2014 at 3:56 pm

    People think of the Mason-Dixon line as the dividing point. Maryland is to the South of the Mason-Dixon line. In that sense, Maryland is a Southern state.

    (The Mason-Dixon line was originally surveyed because the charters of the two colonies set Maryland's Northern line to include most of Philadelphia, especially South Philly, while Pennsylvania's Southern line would have included Baltimore and Frederick within the Pennsylvania line. There also were questions and controversy about the MD/DE line, so Mason and Dixon also surveyed that line.)

    Until the end of the US Civil War, Maryland was a state that allowed slavery. Strangely enough, DC (which is South of the majority of Maryland) had eliminated slavery (on April 16, 1862, and by compensation to the slave owners) prior to Maryland. In that sense, Maryland is a Southern state.

    It's really a toss-up between Baltimore and DC as to which is the most Northern city in the South, or the most Southern city in the North.

    Neither city handles snow particularly well (but both handle it much better than Atlanta. For instance, between Wednesday night and Thursday night, about a foot [or more] of snow fell, and today both cities are functioning.). Then again, Philadelphia, just 90 miles North of Baltimore seems to handle snow much better than either Baltimore or DC. In that sense, Maryland is a Southern(ish) state.

    Summers in Maryland (except far Western parts of the state) has average temperatures in the 80s and 90s, and sometimes the temperatures go into the low 100s, with high humidity for weeks at a time, something that NYC doesn't usually experience. In that sense, Maryland is a Southern state.

    The first Union troops to be fatalities in the US Civil War occurred in Baltimore City when troops from Massachusetts were fired upon by Southern Sympathizers as the troops marched along Baltimore's Pratt Street from the B&O's President Street rail station to Camden Station to get to DC. In that sense, Maryland is a Southern state.

    Maryland was held in the Union mainly by the stationing of Federal troops throughout the state. In that sense, Maryland is a Southern state.

    On the other hand, about 2/3rds of those who joined either the Union or CSA armies joined the Union Army, and about 1/3 joined the CSA army. In that sense, Maryland is a Northern state.

    Maryland has Marriage Equality in place and people being married under ME, while that is not the case in any Southern state (unless you consider DC and/or Delaware Southern states). In that sense, Maryland is a Northern state.

    All in all, Maryland is considered by most geographers and the residents of the state as neither Northern nor Southern, but a Mid-Atlantic state, along with Delaware and DC, parts of Pennsylvania and Virginia. Some say the Mid-Atlantic goes North as far as the Southern parts of New Jersey, and South to include the Northerner parts of NC's Outer Banks (not everyone agrees with that geography).

    And when you say Maryland is "officially considered" part of the South, who are you speaking of? The Census Bureau? USDA? The Pentagon? Interior Department?

  • 96. davep  |  February 14, 2014 at 12:15 pm

    Well, Oklahoma is pretty far south, and their decision happened first.

    (Of Course California is pretty far south too, but nobody considers it part of 'the south').

  • 97. Dr. Z  |  February 14, 2014 at 1:57 pm

    Many of the first white settlers of Oklahoma were bitter ex-Confederates. The state has had an insecure chip on its shoulder ever since. Growing up in OK, we considered ourselves part of the border South for that reason (especially the southeast corner of the state, locally known as "Little Dixie.")

  • 98. JimT  |  February 14, 2014 at 4:42 pm

    "Little Dixie" is a beautiful area, lots of deer, good fishing..

  • 99. Bill  |  February 14, 2014 at 12:38 pm

    Let's frame it another way- Virginia is the first state in the old Confederacy to arrive at this point.

  • 100. Keith  |  February 14, 2014 at 1:01 pm

    Aptly their nickname is "the old dominion" aka "the ancient dominion"

  • 101. Bill  |  February 14, 2014 at 3:13 pm

    King Charles II called us that, as we stayed loyal to Charles I and Charles II throughout the miserable English Civil War of the 1640s and 1650s, a nasty period made worse by the dominance of Religious Zealots.

  • 102. Mike in Baltimore  |  February 14, 2014 at 8:10 pm

    And it was the Religious Zealots, led by William Claiborne, from Virginia who attacked Maryland, sacked the government, and ran the government until they themselves were overthrown and driven out of the colony.

    The Battle of the Severn (fought on March 25, 1655) is considered by many to be the final battle of the English Civil War. At that battle, the forces of William Claiborne won the battle against the forces of the Maryland colony.

    After Charles II was restored to the throne, on April 27, 1658, he restored proprietorship of the Maryland colony to Lord Baltimore, religious freedom was restored and ensured, and an agreement of general amnesty was entered into. (It was in the period 1655-58 that many Catholics in Maryland took their worship 'underground', or built chapels into the houses and mansions of the colony. It was only several years after the Revolution that anyone approached the pope to have a bishop named in the US. Until that time, Catholics were under the 'leadership' of bishops in England, especially the bishops in London.)

    Just one of many reasons there are not many good feelings between Maryland and Virginia.

  • 103. Bill  |  February 14, 2014 at 8:44 pm

    With centuries' deep roots in both Va & Md, I've come to think of poor Maryland as the 'Poland of the Chesapeake'- always the corridor through which aggressors make their way: Claiborne, the British, the Yankees etc. Still, you have Captain May, Samuel Kirk & Son, and James Ryder Randall who wrote:

    "Dear Mother! burst the tyrant's chain
    Virginia should not call in vain,
    She meets her sisters on the plain,
    Sic Semper 'tis the proud refrain
    That baffles minions back again,
    But lo! there surges forth a shriek
    From hill to hill, from creek to creek-
    Potomac calls to Chesapeake,
    Maryland, my Maryland! "

  • 104. Mike in Baltimore  |  February 14, 2014 at 10:40 pm

    'Maryland, my Maryland' is the state song of Maryland, but was composed by Southern Sympathizers. In just about every legislative session now, a bill or two (or more) is introduced to change the state song. None have passed, as there is general agreement that the song is very derogatory to many in the state, but there is no agreement on what to change the state song to.

    Also remember, the bloodiest one day battle in the US Civil War was fought at Antietam in Maryland, and that General Lee went to and from the Battle of Gettysburg through Maryland. There are many who believe the war could have been ended in late summer of 1864 if the Union had pursued the CSA troops. The question is if the Union had enough force to defeat the CSA troops, or if any ensuing battle would have been, in effect, a draw. In any event, such battle probably would have occurred in the state of Maryland before the CSA troops traversed the Potomac River back into Virginia.

  • 105. Dr. Z  |  February 13, 2014 at 9:26 pm

    Interesting, intermediate scrutiny applies to illegitimacy (Mills v Habluetzel, 1982).

  • 106. Zack12  |  February 13, 2014 at 9:37 pm

    On a different note, in regards to what happened to Indiana,check out State Senator Mike Delph's twitter feed.
    You want a bigot meltdown, you got one.

  • 107. Pat  |  February 14, 2014 at 12:27 am

    Oh wow… This is amazing: this guy is nuts!

  • 108. Ragavendran  |  February 13, 2014 at 10:48 pm

    Just curious… does anyone think this was written in a week? Or that parts of it (procedural stuff, intro, history, etc.) were already in a draft stage before the hearing?

  • 109. ebohlman  |  February 14, 2014 at 12:25 am

    Probably the latter; remember that the judge asked the parties to justify why they thought oral arguments were even necessary.

    Oral arguments seldom have much impact on the outcome of a case; they're mostly just icing on the cake.

  • 110. Rick O.  |  February 15, 2014 at 5:16 am

    The evangelicals know their invented history by heart, this is part of it. My local library has about 3 dozen copies of American history books by a Texan named Barton propounding "we are a christian nation", which caused a big flap when the author finally had to admit HE MADE UP handy quotes from Jefferson. We forgot about this, they still breath this stuff. Now you know what all those home-schoolers are teaching.

  • 111. Ragavendran  |  February 13, 2014 at 10:50 pm

    Page 6: The judge keeps referring to the daughter of one of the plaintiff couples as EST – if expanded as "Eastern Standard Time", some of those passages are hilarious, e.g., "unable to adopt EST", "both parents provide EST", etc. 🙂

  • 112. Mike in Baltimore  |  February 14, 2014 at 12:35 am

    There is a hyphen between the 'S' and 'T'; I presume a hyphenated last name of both mother's maiden name.

  • 113. JustMe  |  February 14, 2014 at 4:31 am

    It is a federal requirement that children are not identified in judicial opinions. So they use their initials.

  • 114. Ragavendran  |  February 14, 2014 at 2:04 pm

    Whoa, I didn't mean any disrespect or offence to anyone. I apologize if it came across as that. I felt pretty welcome and accepted at this forum when I started joining the discussion in the comments a few weeks ago, and I thank everyone here for that. Maybe I should restrict myself to just reading from now on.

  • 115. JimT  |  February 14, 2014 at 3:09 pm

    @ Ragavendran Don't be dissuaded from participating in any online discussions. Text isn't always a great medium for conversation on the Internet so it can easily be misunderstood because everyone's communication and language skills varies.

  • 116. Dr. Z  |  February 14, 2014 at 6:49 pm

    Ragavendran: you are most welcome. Your contributions have been intelligent, and your voice has enriched the community here.

  • 117. Pat  |  February 14, 2014 at 12:34 am

    Had the ruling not be stayed, would it be certain that it would apply to the entire state of Virginia, instead of just that judge's district? Does the judge mention anything about this?

  • 118. KarlS  |  February 14, 2014 at 6:39 am

    Wouldn't the whole state be part of a federal judge's district?

  • 119. grod  |  February 14, 2014 at 7:25 am

    In the 4th Circuit, Virginia has Eastern and Western Districts. In West Virginia,there is the Northern and Southern Districts, while Carolina has 3 districts, aryland has 1. Confusing ah!

  • 120. Mike in Baltimore  |  February 14, 2014 at 4:12 pm

    Also, there is one district in South Carolina.

    And although Maryland has one district, with the main Federal court house in Baltimore, there also is a Federal court house in Greenbelt, Maryland, hearing cases from Calvert, Charles, Montgomery, Prince George's, and St. Mary's counties in Maryland.

  • 121. JustMe  |  February 14, 2014 at 7:19 pm

    Nope. For instance, Texas has Northern, Eastern, Western and Southern districts.

    The judges frequently disagree with each other and issue contradictory rulings. In fact judges in the same district, presiding in different cases, can reach different results on the same issues.

    It is an axiom of federal law that judges of coordinate jurisdiction do not review other judges decisions, nor are the bound by them.

  • 122. Zack12  |  February 14, 2014 at 4:11 am

    In other news, remember when the judge that struck down part of Kentucky's ban left the door open for the other part of it to be challenged?
    One couple has walked through that door.
    Hard to see how they can justify keeping one part intact while the other part got struck down.

  • 123. davep  |  February 14, 2014 at 12:19 pm

    Excellent! Those guys didn't waste any time.

  • 124. Dr. Z  |  February 14, 2014 at 7:21 am

    Yes, Virginia, there is a Due Process Clause.

  • 125. Hayley  |  February 14, 2014 at 9:26 am

    I never in a million years thought my "home" state would get marriage equality. Of course, I wish marriages could begin immediately – that would have been so perfect for Valentine's Day.

  • 126. Jim  |  February 14, 2014 at 3:05 pm

    Interesting comment from a commenter to Washington Post's story about the verdict. The comment:

    "I'm a Christian man. I'm married to a woman, I'm a military veteran, etc — I'm the stereotypical conservative Republican and I applaud this ruling. Why, you ask? Because the conservative position is one of opposition to government interference. We conservatives point to the US Constitution when we demand our 2A rights, our right to worship, our right utilize rules in the Senate to our advantage, etc. But we are guilty as charged by our Democrat-Liberal countrymen when it comes to picking and choosing when our laws should apply. If you're a true conservative, I implore you to support this decision because if the government can tell you who you can marry, then as we always say, there's no telling what else they will say we can't do. Limited government interference with an emphasis on personal responsibilities and choices — that's conservatism."

    Link to story:

  • 127. Michael Grabow  |  February 15, 2014 at 4:37 pm

    It's insane that this could be seen as an interesting comment. I have never been able to understand how conservatives don't see that their opposition to same sex marriage flies in the face of their small government mantra.

  • 128. bayareajohn  |  February 15, 2014 at 4:56 pm

    Michael, read it again. The comment makes your exact point. The writer AGREES with you, not sure how that would make it insane to see it as interesting.

  • 129. Bill  |  February 14, 2014 at 3:17 pm

    Now Delegate Marshall, father of the Unconstitutional Amendment is calling for the impeachment of the judge!

  • 130. sfbob  |  February 14, 2014 at 3:32 pm

    Good luck with that one, Sideshow Bob.

    Just curious: do you have a link? It might be amusing to see what that clown has to say.

  • 131. bythesea  |  February 14, 2014 at 4:43 pm

    I looked and could not find video of that, but sheesh dude's a real moron based on what came up.

  • 132. JimT  |  February 14, 2014 at 3:36 pm

    The right wing politicos love using the "i" word, it fires up their base and raises campaign funds.

  • 133. Straight Ally #3008  |  February 16, 2014 at 3:53 am

    I'm convinced that Del. Marshall is not right in the head.

  • 134. Michael Grabow  |  February 15, 2014 at 2:32 pm

    Does anyone know the deadline to appeal the ruling?

    "Opponents of same-sex marriage have vowed to appeal the decision" is as specific as I have seen on whether it will even be appealed at all.

  • 135. Mike in Baltimore  |  February 15, 2014 at 6:29 pm

    There is a statutory limit of 30 days for appeals, but I think a district judge can shorten it (especially if the Appeals Court agrees to shortening it(.

    If the judge didn't (or couldn't) place a shorter time frame on the appeal, we are looking to anytime between now and March 15 for an appeal to be filed (actually March 17, since March 15 is a Saturday), if one is actually filed.

  • 136. Equality On TrialVirginia&hellip  |  March 20, 2014 at 8:05 am

    […] of Appeals. The case will be heard on Tuesday, May 13, in Richmond, Virginia. The district court ruled in favor of the same-sex couples last […]

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