Federal Appeals Court Strikes Down Virginia Same-Sex Marriage Ban

WASHINGTON — The 4th Circuit Court of Appeals held Monday that Virginia's ban on same-sex couples' marriages is unconstitutional.

On a 2-1 vote, the appeals court joined the wave of court decisions declaring such bans unconstitutional. The decision, by Judge Henry Floyd acknowledged both the debate over such laws and, in the court's view, the clear constitutional impediment to laws banning same-sex couples from marrying.

"We recognize that same-sex marriage makes some people deeply uncomfortable," he wrote. "However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws."

The court's opinion is not effective immediately. According to the court's judgment in the case, the judgment will take effect after the mandate is issued in the case. The mandate, under the court's rules, will be issued "7 days after expiration of the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, rehearing en banc, or motion for stay of mandate, whichever is later."

The 4th Circuit is the second federal appeals court to consider a state's marriage ban after the Supreme Court's decision striking down part of the Defense of Marriage Act in June 2013. The 10th Circuit earlier this summer agreed with the federal trial courts in Utah and Oklahoma that those states' respective bans on same-sex couples' marriages are unconstitutional.

Although this specific case is only about Virginia's ban, the decision creates a precedent for all federal courts in Virginia, as well as Maryland, which has marriage equality, and West Virginia, North Carolina, and South Carolina, which do not.

In considering the matter, Floyd, joined by Judge Roger Gregory, ruled, "The Virginia Marriage Laws ... impede the right to marry by preventing same-sex couples from marrying and nullifying the legal import of their out-of-state marriages. Strict scrutiny therefore applies in this case."

Importantly, the court ruled that the right being sought in the case was not a right to "same-sex marriage," but rather that the case was instead one of same-sex couples seeking the previously recognized fundamental right to marriage.

Judge Paul Niemeyer saw it otherwise, dissenting from the decision and writing, "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."

The lead plaintiffs in the lead case, Timothy Bostic and Tony London, filed their lawsuit initially in July 2013, in the month after the Supreme Court's DOMA ruling in United States v. Windsor. Although initially represented solely by local private attorneys, the American Foundation for Equal Rights — which had successfully challenged California's Proposition 8 — and their legal team of Ted Olson and David Boies joined the case. A second case, filed by the ACLU and Lambda Legal, also was filed in Virginia. Those plaintiffs successfully moved to intervene in the Bostic case on appeal to the 4th Circuit.

Meanwhile, the Virginia Attorney General's Office under then-Attorney General Ken Cuccinelli, had been defending the ban, but after Mark Herring took office, he reversed position, agreeing with the plaintiffs that the ban is unconstitutional. The move left two county clerks defending the ban before the 4th Circuit, which heard arguments in the case in May.

In Cooper's prepared remarks, he said in part:

After reviewing the 4th Circuit decision and consulting with attorneys here, I have concluded that the State of North Carolina will not oppose the cases moving forward. In addition, the State of North Carolina will acknowledge the 4th Circuit opinion that marriage is a fundamental right and that our office believes that the judges are bound by this 4th Circuit decision.

In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable. Since the US Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time. So it's time for the State of North Carolina to stop making them.