Plaintiffs Timothy Bostic and Tony London. | AMERICAN FOUNDATION FOR EQUAL RIGHTS
BY ARTHUR S. LEONARD | A three-judge panel of the US Fourth Circuit Court of Appeals, in a 2-1 ruling, has declared Virginia’s ban on same-sex marriage unconstitutional.
The July 28 ruling did not go into immediate effect, and the two county clerks who are defending the ban –– Governor Terry McAuliffe and fellow Democrat Mark Herring, the attorney general, are not doing so –– have two weeks to indicate their intention to seek either en banc review by all of the circuit’s judges or review by the Supreme Court. Otherwise, the appeals panel would issue a final order no later than seven days after that –– which would be August 18.
However, since the clerks are represented by Alliance Defending Freedom, a right-wing litigation group strongly dedicated to defeating same-sex marriage, they will undoubtedly seek further review, which would stay the ruling until those appeals are disposed of.
Following lead of 10th Circuit, Richmond-based panel concludes marriage is fundamental right state abridges without compelling rationale
Marriage equality litigation in three other states in the Fourth Circuit –– North and South Carolina and West Virginia –– has been on hold pending this ruling, which is binding on those cases. The district courts hearing those cases could decide to see if there is further review in the Virginia litigation before moving forward. Shortly after the ruling came out, North Carolina's attorney general, Roy Cooper, a Democrat, told reporters he viewed it as “futile” to continue litigating the issue there, since the Fourth Circuit has made its views known and final resolution will come from the Supreme Court. The remaining state in the Fourth Circuit, Maryland, enacted equal marriage rights in 2012 in legislation approved by the state’s voters.
The Virginia case originated with a single plaintiff couple, Timothy Bostic and Tony London, who filed a lawsuit last year in the state’s Eastern District with a private attorney. The American Foundation for Equal Rights (AFER), which litigated against California’s Proposition 8, quickly offered to provide representation by Ted Olson and David Boies, the renowned litigators who handled that case. The new legal team added a second plaintiff couple, Carol Schall and Mary Townley, who married in California in 2008 and were seeking recognition of their marriage.
On February 13, District Judge Arenda L. Wright Allen ruled in favor of the plaintiff couples on summary judgment, a decision she stayed pending appeal.
The American Civil Liberties Union’s LGBT Rights Project was separately pursuing a challenge in Virginia’s Western District and had sought Judge Michael Urbanski’s approval to certify it as a class action to ensure that a win would be binding throughout the state. When an appeal of Wright Allen’s decision was filed in the Eastern District, Urbanski put the ACLU case on hold, but that group was then allowed to intervene on behalf of its plaintiff class in the AFER case before the Fourth Circuit.
Matters were also complicated on the defense side after McAuliffe and Herring, elected in November to replace Republicans opposed to marriage equality, announced they would not defend the ban. In their place, Norfolk Clerk George E. Schaefer, III, and Michèle McQuigg, the Prince William County clerk, took on that task. David Oakley, an attorney from Chesapeake, Virginia, and Austin Nimocks from Alliance Defending Freedom argued on behalf of the clerks.
At the May 13 arguments, Virginia Solicitor General Stuart Raphael represented the McAuliffe-Herring position that the ban was unconstitutional, Olson argued for the AFER plaintiffs, and James Esseks, who heads the LGBT Rights Project at the ACLU, argued for the class action plaintiffs.
The Fourth Circuit panel that heard the case was remarkably diverse. Paul V. Niemeyer was appointed to the court by George H.W. Bush in 1990. Roger L. Gregory was named by Bill Clinton toward the end of his second term, blocked in the Senate, but then reappointed by George W. Bush as part of a deal to break a deadlock threatening the new president’s first batch of appeals court appointees. Gregory is the first African-American to serve on the Fourth Circuit. The panel’s junior member, who wrote the majority opinion, was Henry F. Floyd, appointed by Barack Obama in 2011.
Plaintiffs Mary Townley and Carol Schall. | AMERICAN FOUNDATION FOR EQUAL RIGHTS
Floyd’s opinion followed closely on the path set by the 10th Circuit in June when it struck down the Utah marriage ban. Both courts –– faced with existing circuit precedent that sexual orientation discrimination claims be analyzed by subjecting the law under challenge to the most deferential standard of review, under which it has a good chance of being upheld –– avoided that route entirely.
Instead, they based their decisions on the conclusion that the plaintiffs were being denied a fundamental right –– the right to marry –– which required that the state marriage bans be held to strict scrutiny. Under such a standard, a law under challenge survives only if it is narrowly tailored to achieve a compelling state interest. Most laws subjected to strict scrutiny are found unconstitutional by the courts.
Floyd first knocked the down the defendants’ first argument –– that the Supreme Court, by declining to hear an appeal of a 1972 Minnesota marriage equality case for lack of a “substantial federal question,” established a precedent that should end the Virginia suit. The judge noted that “every federal court to consider this issue” since last year’s ruling in the Defense of Marriage Act case had found the Minnesota precedent no longer relevant.
Turning to the main issue, Floyd found that the plaintiffs were not seeking a new constitutional right –– a right of same-sex marriage –– but rather an individual right to get married to the partner of their choice. The majority saw this case, then, as falling into the same category as Loving v. Virginia, the 1967 Supreme Court ruling that struck down Virginia’s ban on interracial marriages.
“Over the decades,” Floyd wrote, “the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.” The significant precedents, he continued, “do not define the rights in question as ‘the right to interracial marriage,’ ‘the right of people owing child support to marry,’ and ‘the right of prison inmates to marry.’ Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of ‘freedom of choice’ that ‘resides with the individual.’ If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.”
Niemeyer vehemently disagreed.
“In reaching this conclusion,” he argued, “the majority has failed to conduct the necessary constitutional analysis. Rather, it has simply declared syllogistically that because ‘marriage’ is a fundamental right protected by the Due Process Clause and ‘same-sex marriage’ is a form of marriage, Virginia’s laws declining to recognize same-sex marriage infringe the fundamental right to marry and are therefore unconstitutional… This analysis is fundamentally flawed because it fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly-proposed relationship of a ‘same-sex marriage.’”
Niemeyer suggested that the majority’s approach would lead to the argument that polygamous and incestuous marriages came within the fundamental right to marry.
Examining the justifications the defendants made for abridging what the panel majority concluded is a fundamental right, Floyd found them wanting largely on the same bases as have judges in the previous two dozen marriage equality rulings –– citing, for example, the consensus of reputable opinion about the comparable abilities of same-sex and different-sex couples in parenting and the conclusion that denying marriage to same-sex couples disadvantages their children without in any way increasing the likelihood that different-sex couples will raise children they produce in married households.
And, as other judges have, Floyd pointed to Justice Antonin’s Scalia’s dissent in last year’s DOMA case, in which he warned that once it is concluded that the 1996 federal law was motivated by “bare desire to harm” same-sex couples, “how easy it is, indeed how inevitable” to conclude that is the motivation for state marriage bans as well.
“Inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” Floyd wrote. “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 contrast, Niemeyer asserted that the arguments the defendants made sufficed to uphold Virginia’s ban when it was subjected to deferential review. Disclaiming any view about whether same-sex couples should be allowed to marry as a matter of public policy, Niemeyer asserted this was a decision for the state to make –– and its voters had done so by adopting the 2008 marriage amendment.
Niemeyer became only the second federal judge to rule against a marriage equality claim since District Judge Robert Shelby got the post-DOMA ball rolling with his Utah marriage decision in December. The first was the dissenter in the two recent 10th Circuit rulings –– in Utah and Oklahoma –– Judge Paul Joseph Kelly, also appointed by the first President Bush a quarter century ago. Every other federal judge, whether appointed by a Democratic or a Republican president, has ruled for marriage equality.
There are 14 active judges serving on the Fourth Circuit, nine of whom were appointed either by Clinton (counting Judge Gregory) or Obama. Faced with that line-up, it seems likely the two county clerks’ attorneys will bypass a motion for en banc review and petition the Supreme Court directly, as the State of Utah is doing in response to the 10th Circuit’s ruling.