On Tuesday afternoon, a three-judge panel of the Fourth Circuit Court of Appeals ruled that a 2006 amendment to Virginia’s constitution banning same-sex marriage violated the 14th Amendment to the federal Constitution. It is the 29th consecutive court decision in favor of same-sex marriage since the Defense of Marriage Act was effectively neutered last summer. This decision could potentially be one of the most far-reaching of these decisions to date. Why? It effectively puts similar bans in North Carolina, South Carolina, and West Virginia in danger of being overturned as well. The fifth state in the Fourth Circuit, Maryland, has recognized same-sex marriage since 2012.
Freedom to Marry got its hands on a copy of today’s ruling. Read it here. The case began last July, when Tim Bostic and Tony London, a couple from Norfolk, sued to have their 14-year relationship recognized after Norfolk court clerk George Schaefer refused to grant them a marriage license. In September, they were joined by Carol Schall and Mary Townley, a couple from Chesterfield County, south of Richmond. They had been legally married in California in 2008, but Virginia refused to recognize it. This past February, federal district judge Arenda Allen ruled that Virginia’s ban was unconstitutional. Newly elected state attorney general Mark Herring announced soon afterward that he believed the ban was unconstitutional and would not defend it in court. That left Schaefer, Prince William County court clerk Michelle McQuigg, and state registrar, Janet Rainey, to appeal the ruling to the Fourth Circuit.
The defendants essentially shot themselves in the foot when they conceded that marriage is indeed a fundamental right. However, they claimed this right doesn’t extend to same-sex marriage because states have historically only sanctioned opposite-sex marriages. Judge Henry Floyd, in an opinion joined by Judge Roger Gregory, disagreed. Floyd wrote that Supreme Court decisions on marriage have consistently referred to “a broad right to marry” that resides with the individual, and is not limited by “the characteristics of the individuals seeking to exercise that right.” It also found that there is a very important restriction on the longstanding principle that marriage is a state matter–that state laws on marriage can’t infringe basic constitutional guarantees.
The opinion also shredded two of the longstanding arguments against gay marriage. Rather than weaken the institution of marriage, Floyd wrote that since same-sex couples want access to the “hallmarks” of marriage, such as “faithfulness and permanence,” allowing same-sex relationships would actually strengthen marriage. The suggestion that same-sex couples don’t make good parents, Floyd wrote, is based on “overbroad generalizations” and was not supported by any evidence that denying recognition would cause gay couples to raise fewer children. All told, bans on same-sex marriage restrict LGBT couples’ rights in a way that amounts to “the type of segregation that the Fourteenth Amendment cannot countenance.” The ruling will go into effect unless it is stayed within 21 days–in this case, August 19. Whether it is stayed or not, this case is likely to be appealed to the Supreme Court.
As I mentioned in May, Schaefer’s counsel, David Oakley, didn’t do his case any favors during oral arguments in May. He claimed that there was no tradition of allowing same-sex marriage. Gregory retorted that there was no tradition of allowing interracial marriage either before the Supreme Court struck down all laws against interracial marriage in Loving v. Virginia–a decision heavily quoted in Floyd’s opinion. Oakley replied, in so many words, that since Pocahontas’ 1614 marriage to John Rolfe was upheld as constitutional, gay couples shouldn’t be allowed to marry. That argument could potentially go down in legal infamy along with the arguments in favor of maintaining segregated schools.
The ramifications of this ruling could be felt fairly soon. North Carolina’s odious Amendment One, approved two years ago, has three challenges pending against it, and even one of its proponents thinks it will be very hard for a judge in North Carolina to see them as any different from the case in Virginia. All indications are that bans like these are falling like dominoes–and the last domino to fall will be what remains of the Defense of Marriage Act.
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Edited/Published by JA
Darrell Lucus is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
