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Another Appeals Court Tosses Same-Sex-Marriage Ban

By Alan Greenblatt

Published July 28, 2014 at 3:41 PM EDT

Plantiffs in the suit over Virginia's ban on gay marriage, Emily Schall-Townley (from left), Carol Schall and Mary Townley, after a hearing on May 13.

For the second time this summer, a federal appellate court has voted to strike down a ban on same-sex marriage.

A panel of the 4th U.S. Circuit Court of Appeals on Monday upheld a district court judge's decision that Virginia's ban on same-sex marriage is unconstitutional.

"We do not dispute that states have refused to permit same-sex marriages for most of our country's history. However, this fact is irrelevant in this case," Judge Henry Floyd wrote in the 2-to-1 ruling. "We conclude that the fundamental right to marry encompasses the right to same-sex marriages."

Floyd was appointed as a district court judge by President George W. Bush and elevated to the U.S. Court of Appeals by President Obama.

The decision would take effect in 21 days but will be stayed if there's an appeal from defendants, which is considered all but certain.

"Today's decision is significant because it also renders unconstitutional similar marriage bans in North Carolina, South Carolina and West Virginia — states that are part of the 4th Circuit," reports the Richmond Times-Dispatch. "Same-sex marriage is already legal in Maryland, which is also in the circuit."

Hours after the ruling, North Carolina Attorney General Roy Cooper said it would be futile to continue defending the state's ban.

Cooper said the ruling "predicts our law will be struck down."

Earlier this month, the 10th U.S. Circuit Court of Appeals upheld a ruling that threw out Oklahoma's ban on same-sex marriage.

Monday's ruling in the Virginia case was the 29th straight victory for same-sex-marriage advocates in federal and state courts since the Supreme Court struck down the federal Defense of Marriage Act last year, notes NPR legal affairs correspondent Nina Totenberg.

"Virginia holds a special place in the same-sex-marriage debate because gay-marriage advocates have based their legal appeals on the 1967 U.S. Supreme Court decision of Loving v. Virginia, which struck down Virginia's ban on interracial marriage," Nina points out.