WASHINGTON — Appellate judges on Monday struck down Virginia’s same-sex marriage ban, further teeing up the marriage equality question for final resolution by the Supreme Court.
In a 2-1 decision, the 4th U.S. Court of Appeals concluded Virginia’s marriage restrictions violated constitutional guarantees of equal protection.
“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,” Judge Henry F. Floyd wrote for the majority.
Floyd and one colleague, Judge Roger L. Gregory, systematically rejected an assortment of conservative claims that same-sex marriages deprived children of appropriate parenting and threatened traditional marriage. Underscoring the case’s extraordinarily high profile, a listing of friend-of-the-court briefs filled the first 19 pages of the 63-page majority opinion
“The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life,” Floyd wrote. “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.”
Formerly known as a conservative bench, the Richmond, Va.-based 4th Circuit is now the second appellate court to conclude same-sex marriage bans violate the Constitution. In late June, a divided panel of the 10th U.S. Court of Appeals struck down Utah’s ban. Last week, the same appellate court likewise struck down Oklahoma’s marriage restrictions.
Rulings by circuit courts of appeal are important, but they apply only to states within the circuit. The decision Monday covers five states: Virginia, North Carolina, South Carolina, Maryland and West Virginia. The 10th Circuit’s decisions cover six states: Kansas, Colorado, New Mexico, Oklahoma, Utah and Wyoming.
North Carolina Attorney General Roy Cooper said after the ruling that he will no longer defend in court the state’s voter-approved ban on same sex marriage.
A nationally uniform interpretation of the Constitution will require a ruling by the Supreme Court, which now seems inevitable. Utah Attorney General Sean Reyes already has indicated he will appeal his state’s loss.
“We look forward to the court taking this case,” Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage, said in a statement following the Utah decision, adding that “we look forward to this issue being put to rest.”
One scenario is for the Supreme Court to consolidate several appellate challenges, once they have all been filed. Unlike the Utah case, though, Virginia’s Democratic attorney general is not defending the state’s same-sex marriage ban, instituted in 2006.
The solo dissent in the decision Monday was penned by Judge Paul Niemeyer, a Republican appointee who warned that the “broad right to marry, as the majority defines it,” might logically apply as well to “the ‘right’ of a father to marry his daughter or the ‘right’ of any person to marry multiple partners.”
“Because there is no fundamental right to same-sex marriage and there are rational reasons for not recognizing it, just as there are rational reasons for recognizing it, I conclude that we, in the Third Branch, must allow the states to enact legislation on the subject in accordance with their political processes,” Niemeyer wrote.
So far, though, Brown’s group and other like-minded conservatives have been on a losing streak, as trial judges have consistently rejected the same-sex marriage bans adopted either through legislation or state constitutional amendments.
On July 9, a judge in Colorado ruled that state’s same-sex marriage prohibition, approved by state voters in 2006, infringed on the fundamental and constitutionally protected right to marry. The Colorado ruling was the 16th in a row striking down the marriage restrictions since a landmark 2013 Supreme Court ruling against the federal Defense of Marriage Act.
In its 5-4 decision, the Supreme Court struck down Section 3 of the federal law, which declared that for purposes of providing federal benefits, marriage is “only a legal union between one man and one woman as husband and wife” and a spouse is only a “person of the opposite sex.”
“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons,” Justice Anthony Kennedy wrote for the majority, adding that the federal law restricting benefits “demeans the couple, whose moral and sexual choices the Constitution protects.”
In his angry dissent, Justice Antonin Scalia correctly predicted that the high court’s ruling made it “inevitable” that state laws banning same-sex marriage would soon start falling as a result.
More sympathetically, the 4th Circuit noted Monday that “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.”
Nineteen states and the District of Columbia now expressly allow same-sex marriage.
The Supreme Court will receive a petition and response from the Utah case and, almost certainly, from the Virginia case as well before formally deciding whether to return to the same-sex marriage issue. Any argument would be held after the next term starts in October.