The Fourth Circuit Court of Appeals ruled 2–1 Monday that Virginia’s ban on same-sex marriage is unconstitutional, upholding a lower-court ruling from February. The majority concluded that “Virginia’s same-sex marriage bans impermissibly infringe on its citizens’ fundamental right to marry.”
The decision highlighted that “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,” citing Loving v. Virginia, which overturned the commonwealth’s ban on interracial marriage, as a notable example. These decisions, the majority wrote, “speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.”
Relying on the Supreme Court’s Windsor decision last summer overturning the federal Defense of Marriage Act, the majority resolved, that they “have no reason to suspect the Supreme Court would accord the choice to marry someone of the same sex any less respect than the choice to marry an opposite-sex individual who is of a different race, owes child support, is imprisoned.”
Addressing the county clerks’ arguments defending the ban, the panel rejected claims that the Supreme Court’s recent decision upholding Michigan’s voter-approved ban on affirmative action in higher education had any impact in this case. Though “Americans’ ability to speak with their votes is essential to our democracy,” they wrote, “the people’s will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry.”
The majority similarly rejected the clerks’ other arguments regarding history and tradition, protecting the institution of marriage, encouraging responsible procreation, and promoting the optimal childrearing environment, as many other courts have. In particular, they noted that if, as the clerks claim, “infertile opposite-sex couples set a positive example for couples who can have unintended children,” there’s “no reason why committed same-sex couples cannot serve as similar role models.” The clerks had argued in their briefs that marriage is only for couples that might accidentally get pregnant.
In their conclusion, the majority acknowledged that “same-sex marriage makes some people deeply uncomfortable,” but “inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”
Judge Paul V. Niemeyer, a George H. W. Bush appointee, dissented, arguing that “same-sex marriage” is a new right separate from marriage between a man and a woman — a distinction that must be recognized. “Only the union of a man and a woman has the capacity to produce children and thus to carry on the species,” he wrote. Because the right to same-sex marriage is not “deeply rooted in our Nation’s history,” Niemeyer believes the court has erred by conflating it with “marriage” as he more narrowly defines it, noting that it could lead to recognition of other types of relationships, such as “polygamous or incestuous relationships.”
Niemeyer was also swayed by the argument that Virginia provides marriage for the purpose of “ensuring stable families in the event of unplanned pregnancies,” an interest not furthered by allowing same-sex couples to marry. Given that the benefits the commonwealth provides to married couples are “clearly subsidies that come at a cost,” the government need not similarly incentivize same-sex couples to marry, because they’ll never need to provide for children from unplanned pregnancies. Niemeyer made no reference to the thousands of same-sex couples already raising children in Virginia.