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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Majority: Va. Law Violates Due Process, Equal Protection
Proponents of Virginia's ban proffered five "compelling" interests to justify Virginia's marriage laws:
Much like every other court that has addressed same-sex marriage, the majority here found the state's arguments on all five points unavailing.
On the issue of federalism, the panel noted that "[a]lthough the Court emphasized states' traditional authority over marriage, it acknowledged that '[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons.'" (Quoting Windsor and Loving v. Virginia.)
As for history, the panel quoted Lawrence v. Texas: "The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."
Stability of Marriage
Proponents of Virginia's ban also argued that it was necessary in order to protect the stability of marriage as a vehicle for procreation. However, the U.S. Supreme Court rejected the argument that marriage is about only procreation in Griswold v. Connecticut:
"Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."
As for long-term stability, the law's backers argued that gay marriage will have the same effect as no-fault divorce: destabilization. The panel disagreed:
"In fact, it is more logical to think that same-sex couples want access to marriage so that they can take advantage of its hallmarks, including faithfulness and permanence, and that allowing loving, committed same-sex couples to marry and recognizing their out-of-state marriages will strengthen the institution of marriage."
Promoting Responsible Procreation
There was also a barely comprehensible argument about accidental pregnancies: Because same-sex couples can't accidentally procreate, they shouldn't be allowed to marry because Virginia's laws "provide stability to the types of relationships that result in unplanned pregnancies," which is good for children. The panel noted that even if this this argument actually made any sense, then Virginia's under-inclusive laws would have to cover infertile opposite-sex couples as well.
Also, such a justification fails strict scrutiny because it doesn't advance the state's proffered purpose:
"Prohibiting same-sex couples from marrying and ignoring their out-of-state marriages does not serve Virginia's goal of preventing out-of-wedlock births. Although same-sex couples cannot procreate accidentally, they can and do have children via other methods ... Virginia Marriage Laws therefore increase the number of children raised by unmarried parents."
Hetero Couples Make Better Parents
The final justification for the state's ban was "optimal childrearing:" "In essence, the Proponents argue that the Virginia Marriage Laws safeguard children by preventing same-sex couples from marrying and starting inferior families." The majority cited a number of studies that all point to the same conclusion: "there is no scientific evidence that parenting effectiveness is related to parental sexual orientation."
Plus, under strict scrutiny, state laws can't be justified by "'overbroad generalizations about the different talents, capacities, or preferences of' the groups in question." And finally, "[t]here is absolutely no reason to suspect that prohibiting same-sex couples from marrying and refusing to recognize their out-of-state marriages will cause same-sex couples to raise fewer children or impel married opposite-sex couples to raise more children ... even if we were to accept the dubious proposition that same-sex couples are less capable parents."
Dissent: New Fundamental Right Requires Different Analysis
Judge Paul V. Niemeyer, writing in dissent, argued that because a right to same-sex marriage is a new concept, it must pass the more stringent test outlined in Washington v. Glucksberg -- a test that requires the court to determine "whether same-sex marriage is a right that is 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.'"
And because, under Niemeyer's analysis, same-sex marriage is not a fundamental right, he also would've applied the rational basis level of scrutiny rather than strict scrutiny and upheld Virginia's ban as a matter of federalism.
"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," Judge Niemeyer's dissent concluded.