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Federal judge promises quick ruling on Virginia's ban on gay marriage

Steve Helber / AP

Former Republican candidate for Lt. Gov. E.W. Jackson, front center, speaks to the media during a demonstration outside Federal Court in Norfolk, Va., Tuesday, Feb. 4, 2014. Jackson spoke in favor of the law banning same sex marriage.

A federal judge hearing arguments Tuesday on whether Virginia's ban on gay marriage should be struck down told the parties she’d rule quickly in a case that could have repercussions for marriage equality throughout the South.

At the end of the nearly two-hour-long hearing, U.S. District Judge Arenda L. Wright Allen said: "You'll be hearing from me soon."

The plaintiffs are represented by attorneys from the American Foundation for Equal Rights, Theodore B. Olson and David Boies, who won the battle to overturn California's Proposition 8 and the ban on gay marriage in that state.

Both sides have asked the judge to rule without going to a full trial, said Olson, who expects the case to soon move onto the 4th Circuit Court of Appeals, which covers five states. If she rules for the plaintiffs, Virginia’s solicitor general has requested that a temporary stay be issued on same-sex marriages, as an Oklahoma judge did recently in knocking down that state’s ban.

"The constitutional rights of citizens are being denied that causes irreparable injury to them and their families every single moment of their lives," Olson said. "What the courts owe all of these citizens is to deal with these issues promptly and expeditiously." 

If the ban is deemed unconstitutional, Virginia will become the first state in the old Confederacy to allow gay marriage. Currently, Washington, D.C., and 17 states, mostly in the Northeast, allow gay marriage. 

Last month, Virginia Attorney General Mark Herring announced he would go head-to-head with the state on the issue of gay marriage, and would not defend the 2006 voter-approved ban. That decision from the newly elected Democratic attorney general infuriated many Republican lawmakers, who accused Herring of failing to live up to his duty to defend state laws. But Herring's office stuck with the plaintiffs in the case: Norfolk, Va., couple Timothy Bostic and Tony London, who were denied a marriage license by the Norfolk Circuit Court on July 1.

"There have been times when brave citizens have led the fight for civil rights while their state stood against them," Herring said after the hearing, referring to cases such as Loving v. Virginia, in which the Supreme Court ended the ban on interracial marriage in 1968. “Virginia has too often found itself on the wrong side of landmark civil rights cases. The injustice of Virginia’s position in those cases will not be repeated this time."

Olson on Tuesday called Herring’s decision not to defend the ban "courageous."

Protesters and gay-marriage supporters alike gathered at the Norfolk courthouse before the hearing on Tuesday, The Associated Press reported. Protesters carried signs that read, "Herring's herring. AG's must uphold the law," while supporters of the plaintiffs held ones that said "Marry who you love." 

Herring attended the hearing, although Virginia Solicitor General Stuart Raphael argued in court on behalf of the state.

In their lawsuit, Bostic and London argue that the state law denied them liberties that are guaranteed by the 14th Amendment. Chesterfield County couple Carol Schall and Mary Townley, who were married in California in 2008, later joined the case.

"We had many moments in court where we were nearly in tears hearing about how these learned men understand what it is that we go through," Schall said. "We’re just moved, humbled and grateful for all that we’ve gotten."

The lawsuit was filed just before the Supreme Court last year struck down part of the federal Defense of Marriage Act that blocked gay couples from accessing more than 1,100 benefits that married couples are entitled to.

Nationwide, supporters of the right of gays and lesbians to wed have filed 35 lawsuits in 19 states targeting state-level marriage bans, mostly after the Supreme Court’s DOMA decision.

The Virginia case is likely to move through the legal system quickly, a draw for the two attorneys for the plaintiffs, who hope to again make a case before the high court, The Washington Post reported.

A Quinnipiac University poll in July found that 50 percent of registered Virginia voters support same-sex marriage, and 43 percent oppose it.

The hearing comes one month after the Supreme Court ordered a stay on gay marriage in Utah ahead of an upcoming court challenge in a federal appeals court. 

Though more than 30 state marriage bans remain on the books nationwide, gay marriage supporters saw 2013 as a watershed year: If the Utah ruling stands, the number of states that allow gays and lesbians to wed will be 18, up from nine states, plus the District of Columbia last January. Popular support has grown for same-sex marriage nationally, with 54 percent of Americans supporting it in a July 2013 Gallup poll.

Are you a same-sex couple in the South? Want to share your thoughts on this lawsuit or on living in a state where same-sex marriage is banned? Contact reporter Miranda Leitsinger at miranda.leitsinger@nbcuni.com

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