Virginia same-sex marriage ban violates fundamental right, appeals court says

The 2-1 ruling from the Fourth US Circuit in Richmond is the third in recent weeks by a federal appeals court striking down a state same-sex marriage ban, making it more likely the Supreme Court will take up the issue.

Steve Helber/AP/File
Plaintiff in the Bostic v. Rainey case, Tony London, waves to the crowd as he and his partner, Tim Bostic (r.) leave Federal Court after a hearing on Virginia's ban on gay marriage in Norfolk, Va. Virginia's same-sex marriage ban is unconstitutional, a federal appeals court ruled Monday.

A divided federal appeals court ruled Monday that Virginia’s ban on same-sex marriages violates a fundamental right to marry without regard to sexual orientation.

The decision marks the third time in recent weeks that a federal appeals court has struck down a state-imposed ban on marriages of gay men and lesbians. The Denver-based Tenth US Circuit Court of Appeals recently affirmed two similar rulings invalidating bans in Utah and Oklahoma.

Monday’s decision from the Fourth US Circuit in Richmond increases the likelihood that the US Supreme Court will take up the issue of same-sex marriage, perhaps as early as next term.

Two other appeals courts are set to hear multiple cases involving state marriage restrictions in August. Those courts will examine measures struck down in Wisconsin, Indiana, Michigan, Ohio, Kentucky, and Tennessee

In Monday’s decision in Virginia, the appeals court panel voted 2-1 to affirm a decision in February by a US district judge who struck down Virginia’s marriage statutes and a state constitutional amendment that restricted marriage to a union between one man and one woman.

In affirming that decision, the appeals court said the Constitution protects a broad conception of freedom that embraces an individual’s ability to choose whom to marry.

“The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life,” Judge Henry Floyd wrote for the two-judge majority.

“Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance,” he said in a 63-page decision joined by Judge Roger Gregory.

In a dissent, Judge Paul Niemeyer said the court’s decision was “fundamentally flawed,” relying on linguistic manipulation rather than rigorous constitutional analysis.

If the majority is correct that there is a fundamental right to marry enjoyed by everyone and anyone, he said, then the Constitution must also encompass “the ‘right’ of a father to marry his daughter or the ‘right’ of any person to marry multiple partners.”

Instead, Judge Niemeyer said, there is no fundamental right to same-sex marriage.

For such a right to exist, he said, same-sex marriage would have to be deeply rooted in the nation’s history and tradition. Under the existing legal test, Niemeyer said, the recognition of same-sex marriages must be “implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.”

The majority opinion sidesteps Niemeyer’s approach.

“We do not dispute that states have refused to permit same-sex marriages for most of our country’s history,” Floyd wrote.

But he said the case was not about establishing a new fundamental right to same-sex marriage. Rather, he said, it was a recognition that the existing right to marry is broad and extends beyond traditional definitions of marriage.

“Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms,” the majority said.

Floyd rejected efforts by Virginia officials to justify the state’s policy choice of maintaining the existing definition of marriage.

The justifications included an effort to uphold tradition, to encourage responsible procreation, and foster optimal child rearing by encouraging biological parents to raise their own children within an intact family unit.

Floyd ridiculed Virginia’s argument as essentially claiming to safeguard children “by preventing same-sex couples from marrying and starting inferior families.”

He noted that Virginia marriage laws were actually harming the children being raised by same-sex couples “by stigmatizing their families and robbing them of the stability, economic security, and togetherness that marriage fosters.”

Some 2,500 same-sex couples in Virginia are currently raising more than 4,000 children, he said.

The majority also rejected arguments that federalism and the state’s traditional authority to regulate marriage should apply.     

In 2006, the state General Assembly approved a constitutional amendment banning same-sex marriage. That measure also won the support of 57 percent of voters.

The appeals court said such democratic processes could not trump fundamental rights. “Americans’ ability to speak with their votes is essential to our democracy,” Floyd said. “But the people’s will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry.”

In his dissent, Niemeyer said that since same-sex marriage is not a fundamental right, Virginia and its voters retain the authority to decide for themselves how to define marriage.

It is a decision, he said, that should be made by the voters and the political branches of a state government, not judges.

“We, in the Third Branch, must allow the States to enact legislation on the subject in accordance with their political processes,” Niemeyer wrote. “The US Constitution does not, in my judgment, restrict the States’ policy choices on this issue.”

He added that nothing in the Constitution prohibits a state from embracing a broad definition of marriage that would fully recognize marriages by same-sex couples.

Currently 19 states and the District of Columbia recognize same-sex marriages, while 31 states have statutes or constitutional amendments that restrict marriage to one man and one woman.

In the year since the US Supreme Court struck down a portion of the Defense of Marriage Act in June 2013, more than 70 lawsuits have been filed seeking to have the bans declared unconstitutional in all 31 states.

So far, 19 lower court judges at both the federal and state level have struck down marriage bans. And two state supreme courts have invalidated bans in their states. No trial judge has upheld a ban in the past year.

“This is truly a joyous and historic day for our Commonwealth,” Virginia Attorney General Mark Herring said in a statement.

“When our children study the fight for equality, they will know that Virginia was on the right side of the law and the right side of history,” he said.

Byron Babione, an attorney with the conservative group Alliance Defending Freedom, viewed the decision as a step closer to Supreme Court review.

“Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the US Supreme Court,” he said in a statement. “If the high court remains consistent … the states will ultimately be free to preserve man-woman marriage should they choose to do so.”

Evan Wolfson, president of the gay-rights group Freedom to Marry, praised the decision but said his work is not done.

“Every day of denial is a day of injustice and tangible harms,” he said in a statement. “It’s time for the Supreme Court to bring the country to national resolution and secure the freedom to marry for all.”

The case is Bostic v. Schaefer (14-1167). 

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