A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit struck Virginia’s ban against same-sex marriage today in s 2-1 ruling.
“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. 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,” wrote Judge Henry Floyd, originally appointed a district judge by George W. Bush and elevated to the circuit court by President Obama.
Presiding Judge Paul Niemeyer, a George H.W. Bush nominee, became only the second judge to dissent against same-sex marriage since the U.S. Supreme Court’s Windsor ruling.
“I do strongly disagree with the assertion that same-sex marriage is subject to the same constitutional protections as the traditional right to marry,” Neimeyer wrote. “I would reverse the district court’s judgment and defer to Virginia’s political choice in defining marriage as only between one man and one woman.”
More than 70 lawsuits are pending in each of the 31 states that still prohibit same-sex marriage. Some raise specific issues such as divorce or death benefits.
Experts believe the U.S. Supreme Court will take up the issue in the next year and can take any state’s appeal or combine the cases.
The court ruled that the case is not about the constitutional right to same-sex marriage, but about marriage itself.
“These cases 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.”
The court gave the state 21 days to appeal.
Virginia Attorney General Mark R. Herring, a Democrat, announced earlier this year that he agrees with the challengers that the state’s restrictions are unconstitutional.