Fourth Circuit panel votes 2 to 1 to strike Virginia’s same-sex marriage ban
In fact, that third judge, Judge Henry Floyd, an appointee of President Obama who was recommended to the bench by Republican U.S. Senator Lindsey Graham, wrote the majority opinion. He was joined by Judge Roger Gregory, a recess appointee of President Clinton who was reappointed by President George W. Bush and became the first African American member of the Fourth Circuit bench.
The 2 to 1 decision in Bostic v. Schaefer marks the third federal appeals panel to vote 2 to 1 to strike down a state ban on same-sex couples marrying. The first time the Ninth Circuit in Brown v. Perry from California; the Supreme Court subsequently allowed the district court declaration that Proposition 8 is unconstitutional to stand on a procedural issue. The second was the Tenth Circuit in Kitchen v. Herbert, on Utah’s ban; that case will soon deliver a petition to the Supreme Court for review.
Attorneys for the two clerks who defended the Virginia ban are expected to file a petition either with the full Fourth Circuit or go, as Utah did, directly to the Supreme Court. The panel decision has been stayed for 21 days to given same-sex marriage opponents time to file an appeal.
As in the other federal panels, two judges on the Bostic case panel said the ban violates the U.S. constitution’s guarantees of equal protection and due process.
The majority held that the Supreme Court’s decisions in Lawrence v. Texas (2003, striking down state laws banning same-sex sexual intimacy) and U.S. v. Windsor (2013, striking down the key portion of the federal Defense of Marriage act, “indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships.”
“We therefore have no reason to suspect that the Supreme Court would accord the choice to marry someone of the same sex any less respect than the choice to marry an opposite-sex individual who is of a different race, owes child support, or is imprisoned. Accordingly, we decline the Proponents’ invitation to characterize the right at issue in this case as the right to same-sex marriage rather than simply the right to marry,” wrote Floyd.
The majority said it did not mean to suggest that every law “which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.” But it said Virginia’s ban “significantly interferes“ with the fundamental right to marry and that all the justifications for the ban fail. (Note: This paragraph has been corrected from its original.)
“We recognize that same-sex marriage makes some people deeply uncomfortable,” wrote Floyd in his conclusion. “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. 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.”
In dissent, Judge Paul Niemeyer, an appointee of President Reagan (to the district court) and President George H.W. Bush (to the Fourth Circuit) seemed to hold onto a position he seemed to signal during oral argument, supporting the marriage ban. Niemeyer said marriages between same-sex couples are not the same as between men and women and not fundamental.
“[S]ame-sex marriage is a new notion that has not been recognized ‘for most of our country’s history’,” he wrote. “Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation.”
“It is true that same-sex and opposite-sex relationships share many attributes, and, therefore, marriages involving those relationships would, to a substantial extent, be similar…..But there are also significant distinctions between the relationships that can justify differential treatment by lawmakers….
“Because there exist deep, fundamental differences between traditional and same-sex marriage, the plaintiffs and the majority err by conflating the two relationships under the loosely drawn rubric of “the right to marriage.”
The Bostic decision affects not only the two couples who pressed the Bostic case with the help of the Ted Olson-David Boies team, it also affects a separate lawsuit in another Virginia federal court. That case, brought by Lambda Legal and the ACLU, represented an estimated 14,000 same-sex couples who want to marry in Virginia or have their out-of-state marriage license recognized by Virginia.