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Federal Appeals Court Says Virginia’s Same-Sex Marriage Ban Is Unconstitutional

The Supreme Court could be the next stop.

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A federal appeals court in Richmond on Monday upheld an lower court’s earlier decision ruling that Virginia’s ban on same-sex marriage is unconstitutional, notching another win for marriage-equality advocates and further pushing the issue back toward the Supreme Court.

A panel of judges in on the Fourth Circuit Court of Appeals found in a 2-1 decision that Virginia’s ban, which the state’s voters adopted in 2006, “impermissibly infringe[s] on its citizens’ fundamental right to marry.” A federal district court judge struck down the ban in February, but that ruling has been stayed pending a series of appeals.

“We recognize that same-sex marriage makes some people deeply uncomfortable,” Judge Henry F. Floyd wrote in his majority opinion today in Bostic v. Rainey. “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”

The case is being waged on behalf of two gay couples in Norfolk and Prince William counties, and the state switched to the plaintiffs’ side in January when Attorney General Mark Herring announced his office would no longer defend the ban. Instead, the ban is being defended by local court clerks in the counties where the plaintiffs attempted to obtain marriage licenses; the clerks are being defended by lawyers from the Alliance Defending Freedom, a conservative group. The plaintiffs are also being represented by Ted Olson and David Boise, the high-profile litigators who won last year’s Supreme Court case that overturned a same-sex marriage ban in California.

Besides Virginia, the Fourth Circuit covers Maryland, where same-sex marriage became legal in 2013, and West Virginia, North Carolina, and South Carolina, which still have bans on the books. Floyd’s ruling, which only applies to Virginia, doesn’t take effect for three weeks to allow for appeals, but doesn’t include a long-term stay. The Alliance for Defending Freedom says it will appeal, though, either to the entire Fourth Circuit bench or to the Supreme Court, which could take it up next year.

Find Benjamin Freed on Twitter at @brfreed.

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Benjamin Freed joined Washingtonian in August 2013 and covers politics, business, and media. He was previously the editor of DCist and has also written for Washington City Paper, the New York Times, the New Republic, Slate, and BuzzFeed. He lives in Adams Morgan.