By Alina Buccella

Today, the Fourth Circuit ruled in a 2-to-1 vote on the landmark case of Bostic v. Schaefer. The four plaintiffs, couple Timothy B. Bostic and Tony C. London, and couple Carol Schall and Mary Townley, challenged Virginia’s ban on gay marriage in the state, and the state’s refusal to acknowledge marriages between same-sex couples from other states, as violating the Due Process and Equal Protection clauses of the Fourteenth Amendment. The Eastern District Court of Virginia granted the plaintiffs summary judgment and enjoined Virginia from enforcing the laws subject to this suit. Defendants appealed.

The Marshall/Newman Amendment was the culmination of Virginia’s ban on same-sex marriage. The amendment passed in 2006 after voters ratified it with fifty-seven percent of the vote. The Amendment defined marriage as a union between a man and a woman, and denied the acknowledgement of any legal relationship between partners of the same sex. Bostic and London were denied a marriage license in Norfolk, Virginia in 2013, and Schall and Townley, married in California in 2008, were denied hospital visits, tax benefits, health insurance coverage, and adoption rights because Virginia did not recognize their union. Both couples claimed damages in the form of “significant hardship . . . and severe humiliation, emotional distress, pain, suffering , psychological harm, and stigma.”

The Fourth Circuit affirm the District Court and found that Virginia’s laws violated the Fourteenth Amendment. Relying onUnited States v. Windsor, the court found that Baker v. Nelson not longer held value as precedent, meaning that the issue of same-sex marriage poses a substantial federal question. The court applied strict scrutiny in its analysis, as the right to marry has been considered a fundamental right since as early as 1888 in Maynard v. Hill. Further, the court concluded that same-sex marriage is encompassed by the right to marry, despite the long history of states banning it. Citing Loving v. Virginia, the court acknowledged that “the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.”

Under strict scrutiny analysis, state action that interferes with a fundamental right is only permissible if compelling state interests are involved and restrictions on the right are narrowly drawn to meet those interests. Virginia made five arguments to show that it had a compelling state interest: (1) it has a federalism-based interest in controlling the definition of marriage; (2) it had an interest in protecting the history and tradition of marriages between the opposite sex; (3) protecting the institution of marriage; (4) encouraging responsible procreation; and (5) promoting the optimal childrearing environment. The Fourth Circuit dismissed each of these arguments.

First, the court noted that the Constitution does not give states authority over marriage, but that it has been a privilege, not a right, that states have traditionally exercised. The state argued that because Virginia’s voters approved of same-sex marriage bans by ratifying the Marshall/Newman Amendment, that their votes should not be overturned. The Fourth Circuit noted that the “very purpose of [the] Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.”

The court moved on to quickly dismiss Virginia’s second and third arguments by saying that history and tradition do not stand up to constitutional challenges and that the institution of marriage is not endangered because same-sex couples cannot procreate. The court noted that the link between marriage and procreation was already dismissed by the Supreme Court in Griswold v. Connecticut.

Virginia’s fourth argument also failed. The court found Virginia’s laws “woefully underinclusive” if their purpose was truly to promote responsible procreation. Since the state’s laws failed to further its interest, the court found it did not pass the strict scrutiny test. Quoting City of Cleburne v. Cleburne Living Center, Inc., the court concluded that the state’s motivation must be “rest[ed] on an irrational prejudice.”

Finally, Virginia’s “optimal childrearing” argument also failed for two reasons: (1) states cannot base their laws on “overbroad generalizations about the different talents, capacities, or preferences” of different groups of people, and (2) like the state’s fourth argument, there was no showing that the laws advanced the state’s interest. The court stated, “There is absolutely no reason to suspect that prohibiting same-sex couples form 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 Fourth Circuit’s holding affects three other states within its jurisdiction that have similar bans on same-sex marriage in place: North Carolina, South Carolina, and West Virginia. North Carolina’s Attorney General Roy Cooper has alreadyannounced his intention to no longer defend the same-sex marriage ban in court.

For Judge Niemeyer’s dissenting opinion, see here.

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