The dominoes keep falling . . . the Fourth Circuit Court of Appeals today upheld the order of the U.S. District Court for Virginia in Bostic v. Schaefer striking down that state’s same sex marriage ban. The Washington Post reports, Court rules Va.’s gay marriage ban unconstitutional:
A federal appeals court panel on Monday upheld a decision that said Virginia’s ban on same-sex marriage is unconstitutional.
In a 2 to 1 decision, a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond said that the fundamental right to marry is guaranteed under the Constitution regardless of sexual orientation.
“We recognize that same-sex marriage makes some people deeply uncomfortable,” said Circuit Judge Henry F. Floyd. “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life.”
Floyd was joined by Circuit Judge Roger L. Gregory.
Their colleague Paul V. Niemeyer dissented and called the ruling “fundamentally flawed.”
Read the opinion in Bostic v. Schaefer Here (.pdf).
The ruling upholds a decision by District Judge Arenda L. Wright Allen. It won’t take effect for 21 days to allow for a request for a rehearing or a stay.
The Virginia case is unusual because state Attorney General Mark R. Herring (D) announced shortly after taking office this year that he agreed with the challengers that the state’s restrictions are unconstitutional.
The laws are being defended by Norfolk circuit clerk George Schaefer III, who denied a marriage license to two of the challengers, and Prince William circuit clerk Michele McQuigg, who is being represented by Nimocks’s group, which also is defending other state bans.
The ruling make the 4th Circuit the second appeals court to decide that state bans are unconstitutional following the Supreme Court June 2013 rulings in favor of gay rights groups in June. The U.S. Court of Appeals for the 10th Circuit in Denver has struck down bans in Utah and Oklahoma.
Virginia Gov. Terry McAuliffe (D) applauded the court’s ruling and praised Herring for refusing to defend the ban, a move that helped define the attorney general as an advocate for Democratic causes.
“This is a historic ruling for our Commonwealth, and its effect will affirm once again that Virginia is a state that is open and welcoming to all,” McAuliffe said in a statement. “I want to thank Attorney General Mark Herring for his leadership in this case, and all of the men and women who fought for years to make this day a reality. Progress does not always come as quickly as we hope it will, but today is yet another example of how justice, equality and the people who fight for those values will always persevere in the end.”
The Circuit Court did not order a delay in its ruling, saying only that the decision would go into effect after the usual short period before it issues a formal order to implement it (a mandate). The county clerks who were defending the marriage ban in Virginia have a right to seek review before the en banc Fourth Circuit Court, which would delay the effective date. They could also seek a stay pending appeal from the U.S. Supreme Court, as the state of Utah has done.
The Sixth Circuit Court of Appeals has scheduled oral arguments in all six of its pending same-sex marriage appeals from four states on Wednesday, August 6. Sixth Circuit sets oral arguments in same-sex marriage cases from four states.
The Seventh Circuit Court of Appeals will hear oral arguments in two same-sex marriage appeals from Wisconsin and Indiana on Tuesday, August 26. Seventh Circuit to hear arguments in two marriage cases on August 26.
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