4th Circuit Civil Rights Law News - U.S. Fourth Circuit
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There may not be another court to turn to for relief, but two-time Pulitzer Prize winner James Risen still won't back down in a fight to force him to turn over his confidential sources for his 2006 book, "State of War," which contained confidential CIA secrets regarding Iran's nuclear program.

The Fourth Circuit ruled against Risen last year, holding that Branzburg v. Hayes controlled and that there was no reporter's privilege that would keep a reporter off the stand during grand jury proceedings. It was a terrible outcome for press freedom, but as we noted before, it was a precedent required by precedent: The Supreme Court stated in Branzburg it could not "seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof ..."

Only the Supreme Court could have changed that precedent, and it declined to take the case earlier this year. Legally, the battle ended there, but Risen, and his supporters, are still not backing down.

The big news of the week in the Mid-Atlantic region is that the Fourth Circuit has declined to issue a stay pending appeal in Bostic, the same-sex marriage case out of Virginia. For those who were comatose over the past few weeks, a three-judge panel ruled against the state's ban on gay marriages.

The county clerks who are defending the law have filed an appeal with the Supreme Court and want the panel's decision put on hold pending that appeal. Even Virginia Attorney General Mark Herring, who declined to defend the law, asked for a stay, as even a brief period of legalized gay marriage, as we saw in Utah, leads to confusion regarding the status of those marriages and the extension of benefits to same-sex spouses.

The Bostic same-sex marriage decision was huge, and not just for Virginians. All across the Fourth Circuit, cases were on hold pending the resolution of that case. And now, with a decision in, states are reacting differently, with some promising to fight on and others declining to fight what they see as a losing battle.

And even in Virginia itself, the decision isn't completely final. Local county clerks, who are defending the state's ban, are pressing forward with their defense of the ban, adding another gay marriage case to the U.S. Supreme Court's cert. pool.

Gay marriage is now 24-0, undefeated in courts since the U.S. Supreme Court decided Windsor barely more than a year ago. The Fourth Circuit, applying strict scrutiny, held today that none of Virginia's arguments could justify discriminatory treatment of same-sex couples.

"We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws," Judge Henry Floyd wrote for the majority of the Fourth Circuit panel in Bostic v. Schaefer.

"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."

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It's been less than a month since the Fourth Circuit heard oral arguments in Bostic, the gay marriage appeal, and the panel's decision can't come fast enough. Of course, even once that arrives, there will inevitably be an en banc petition, and then, perhaps an appeal to the Supreme Court, if one of the other circuit courts' cases doesn't arrive first.

The importance of the decision can't be understated -- the Fourth Circuit panel, and perhaps an en banc panel, will determine the fate of marriage throughout Maryland, Virginia, West Virginia, and North and South Carolina. (Indeed, the district courts in West Virginia, and in North Carolina, put those cases on hold pending the Bostic decision.)

With so much at stake, you might be curious: who's deciding the case?

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Though the Tenth Circuit got there first, yesterday's Fourth Circuit oral arguments in Virginia's gay marriage ban appeal were highly anticipated. The Tenth is handing appeals from Utah and Oklahoma, while the Fourth Circuit is debating Virginia's ban. If a split emerges between these circuits, or the other circuits with same-sex marriage appeals, a Supreme Court showdown could be (okay, almost certainly is) on the horizon.

How did the arguments go? If the judges' comments were any indication, the court is like the rest of this country: confused and conflicted.

We have a couple of updates on ongoing Fourth Circuit litigation for you today.

In the Virginia same-sex marriage battle, oral arguments have been extended to an hour, rather than the typical 30 minutes, to account for the intervening parties.

And last week, the Fourth Circuit denied relief to Lavabit, the private email service that was held in contempt for failing to comply with a court order. The secure email service chose to shut down rather than comply with an order that would have violated its users' privacy. Then the company turned its eyes toward the courts, hoping that the Fourth Circuit would nix the order. Unfortunately, procedural gaffes doomed the company's claims.

What do you think of when you hear the name GM? If you've been watching news, you're thinking faulty ignition switches and rolling death traps, even though only thirty-four cars, out of millions recalled, have actually crashed as a result of recalled switches.

Of course, that defect is real. In the case of Company Doe, the report of an allegedly unsafe product, which was linked to a child's death, was labeled "materially inaccurate" by a Maryland federal judge in 2012. He then sealed the case files, hoping to avoid unfairly damaging the company's reputation by releasing the report.

Noble intentions, but with constitutional implications, it seems. The Fourth Circuit yesterday reversed the trial court's ruling and ordered all case files unsealed and unredacted, though likely appeals mean that the public won't hear much about Company Doe or the allegedly defective product any time soon.

Last week, we reported that a parallel challenge to Virginia's gay marriage ban was being put on hold pending the Fourth Circuit's decision in Bostic v. Schaefer. The Bostic case was the first to be decided, and once the Fourth Circuit issues a ruling, will bind the rest of the state, as well as the rest of the circuit.

It's unsurprising news, then, that a district court in North Carolina appears to be holding a challenge to that state's barely three-year-old ban on gay marriage until after the Fourth Circuit rules. The American Civil Liberties Union, however, is suing to speed up the process, arguing that their clients' health issues make urgency a must.

Parallel challenges to Virginia's ban on gay marriage have, for all practical purposes, been consolidated, with Bostic v. Schaefer being the caption to watch over the next few months.

The last time we checked in on Virginia's same-sex marriage battle, the parties from a pending distirct court case, Harris v. Rainey, were seeking to intervene in the Bostic case, over the objections of the plaintiffs in that case. The request was granted, and the Harris plaintiffs will have their day at the Fourth Circuit a bit earlier than expected.

That also means that their day in district court will be delayed, per an order from Judge Michael Urbanski of the U.S. District Court for the Western District of Virginia. Meantime, the briefing in the Bostic case has already begun, with two county clerks submitting their opening briefs in defense of Virginia's law.