July 28th, 2014
The Fourth Circuit Court of Appeals has upheld a lower court’s ruling which declared Virginia’s ban on same-sex marriage unconstitutional. In a 2-1 decision, Judges Henry Floyd (a George W. Bush appointee) and Roger Gregory (A Bill Clinton appointee) ruled that Virginia’s marriage ban violated Due Process and Equal Protection clauses of the Fourteenth Amendment. The majority also held that strict scrutiny applied in its review. Judge Paul Niemeyer, a George H.W. Bush appointee, dissented. The court’s decision now creates a precedent for Virginia, North Carolina, South Carolina and West Virginia. Maryland, which is also in the Fourth District, already provides marriage equality for same-sex couples.
The court’s analysis was in three steps: whether the all of the plaintiffs possessed standing (they did, the circuit ruled), whether the U.S. Supreme Court’s summary dismissal of Baker v. Nelson in 1972 remains binding, and the appropriate level of constitutional scrutiny to test the Virginia ban against.
The Baker case was brought by Minnesota couple Jack Baker and Michael McConnell after the Minneapolis clerk refused to issue them a marriage license. Baker and McConnell sued in state court, and that case made it all the way up to the Minnesota Supreme Court which ruled that the couple’s Equal Protection rights weren’t violated. They then appealed to to U.S. Supreme Court, which dismissed the case “for want of a substantial federal question.” Marriage equality opponents have argued that Baker was binding. But the Fourth Circuit countered, “Summary dismissals lose their binding force when ‘doctrinal developments’ illustrate that the Supreme Court no longer views a question as unsubstantial, regardless of whether the Court explicitly overrules the case,” and pointed to last summer’s Windsor decision striking down Section 3 of the Defense of Marriage Act as evidence of just such a “doctrinal development.”
The Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law. The Court’s development of its due process and equal protection jurisprudence in the four decades following Baker is even more instructive. On the Due Process front, Lawrence v. Texas, 539 U.S. 558 (2003), and Windsor are particularly relevant. In Lawrence, the Court recognized that the Due Process Clauses of the Fifth and Fourteenth Amendments “afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574. These considerations led the Court to strike down a Texas statute that criminalized same-sex sodomy. Id. at 563, 578-79. The Windsor Court based its decision to invalidate section 3 of DOMA on the Fifth Amendment’s Due Process Clause. The Court concluded that section 3 could not withstand constitutional scrutiny because “the principal purpose and the necessary effect of [section 3] are to demean those persons who are in a lawful same-sex marriage,” who — like the unmarried same-sex couple in Lawrence — have a constitutional right to make “moral and sexual choices.” 133 S. Ct. at 2694-95. These cases firmly position same-sex relationships within the ambit of the Due Process Clauses’ protection.
The Court has also issued several major equal protection decisions since it decided Baker… These cases demonstrate that, since Baker, the Court has meaningfully altered the way it views both sex and sexual orientation through the equal protection lens.
In light of the Supreme Court’s apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that case, we decline to view Baker as binding precedent and proceed to the meat of the Opponents’ Fourteenth Amendment arguments.
The court then turned to the question of the appropriate level of scrutiny to apply to Virginia’s same-sex marriage ban. The court said that the question turned on whether marriage is a fundamental right. Both sides argued that it was, but marriage equality opponents held that same-sex marriage wasn’t. The court disagreed:
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. Perhaps most notably, in Loving v. Virginia, the Supreme Court invalidated a Virginia law that prohibited white individuals from marrying individuals of other races. 388 U.S. at 4. The Court explained that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and that no valid basis justified the Virginia law’s infringement of that right. Id. at 12.
…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,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. 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.
Because Virginia’s same-sex marriage ban involves a “‘significant interference’ with a fundamental right,” the court held that strict scrutiny applies. This places the state in the position of proving that the law “may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” Among those interests, the state argued, was upholding the vote that placed Virginia’s marriage ban in the state’s constitution. The Court disagreed, saying “the people’s will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry.” Supporters of Virginia’s marriage ban also argued that upholding “history and tradition” was another compelling interest, but the Fourth Circuit held that this interest doesn’t even withstand a rational basis review. Supporters also argued that upholding Virginia’s marriage ban would safeguard the institution of marriage. Again, the court disagreed:
However, even if we view the Proponents’ theories through rose-colored glasses, we conclude that they are unfounded for two key reasons. First, the Supreme Court rejected the view that marriage is about only procreation in Griswold v. Connecticut, in which it upheld married couples’ right not to procreate and articulated a view of marriage that has nothing to do with children. …
Second, the primary support that the Proponents offer for their theory is the legacy of a wholly unrelated legal change to marriage: no-fault divorce. Although no-fault divorce certainly altered the realities of married life by making it easier for couples to end their relationships, we have no reason to think that legalizing same-sex marriage will have a similar destabilizing effect. 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. We therefore reject the Proponents’ concerns.
Proponents of Virginia’s marriage ban also argued that the state’s marriage laws were essential in ensuring “responsible procreation.” Again, the court disagreed:
If Virginia sought to ensure responsible procreation via the Virginia Marriage Laws, the laws are woefully underinclusive. Same-sex couples are not the only category of couples who cannot reproduce accidentally. For example, opposite-sex couples cannot procreate unintentionally if they include a post-menopausal woman or an individual with a medical condition that prevents unassisted conception.
The Proponents attempt to downplay the similarity between same-sex couples and infertile opposite-sex couples in three ways. First, they point out that sterile individuals could remedy their fertility through future medical advances. This potentiality, however, does not explain why Virginia should treat same-sex and infertile opposite-sex couples differently during the course of the latter group’s infertility. Second, the Proponents posit that, even if one member of a man-woman couple is sterile, the other member may not be. They suggest that, without marriage’s monogamy mandate, this fertile individual is more likely to have an unintended child with a third party. They contend that, due to this possibility, even opposite-sex couples who cannot procreate need marriage to channel their procreative activity in a way that same-sex couples do not. The Proponents’ argument assumes that individuals in same-sex relationships never have opposite-sex sexual partners, which is simply not the case. Third, the Proponents imply that, by marrying, infertile opposite-sex couples set a positive example for couples who can have unintended children, thereby encouraging them to marry. We see no reason why committed same-sex couples cannot serve as similar role models. We therefore reject the Proponents’ attempts to differentiate same-sex couples from other couples who cannot procreate accidentally.
…The Proponents’ responsible procreation argument falters for another reason as well. Strict scrutiny requires that a state’s means further its compelling interest. See Shaw, 517 U.S. at 915 (“Although we have not always provided precise guidance on how closely the means . . . must serve the end (the justification or compelling interest), we have always expected that the legislative action would substantially address, if not achieve, the avowed 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. According to an amicus brief filed by Dr. Gary J. Gates, as of the 2010 U.S. Census, more than 2500 same-sex couples were raising more than 4000 children under the age of eighteen in Virginia. The Virginia Marriage Laws therefore increase the number of children raised by unmarried parents.
Finally, the court turned to the Proponents’ argument that opposite-sex married couples represent an environment for “optimal childrearing.” The Court however cited evidence supplied by all of the major medical and mental health organizations which said otherwise:
In fact, the APA explains that, by preventing same-sex couples from marrying, the Virginia Marriage Laws actually harm the children of same-sex couples by stigmatizing their families and robbing them of the stability, economic security, and togetherness that marriage fosters. The Supreme Court reached a similar conclusion in Windsor, in which it observed that failing to recognize same-sex marriages “humiliates tens of thousands of children now being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. at 2694.
We find the arguments that the Opponents and their amici make on this issue extremely persuasive. However, we need not resolve this dispute because the Proponents’ optimal childrearing argument falters for at least two other reasons. First, under heightened scrutiny, states cannot support a law using “overbroad generalizations about the different talents, capacities, or preferences of” the groups in question. … The Proponents’ statements regarding same-sex couples’ parenting ability certainly qualify as overbroad generalizations. Second, as we explain above, strict scrutiny requires congruity between a law’s means and its end. This congruity is absent here. There 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. The Virginia Marriage Laws therefore do not further Virginia’s interest in channeling children into optimal families, even if we were to accept the dubious proposition that same-sex couples are less capable parents.
The court then affirmed that Virginia’s marriage ban violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and concluded:
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
This is the third federal appeals court to strike down marriage bans. The Tenth Circuit has recently upheld lower court decisions declaring same-sex marriage bans unconstitutional in Utah and Oklahoma.
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