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Fourth Circuit may invalidate Virginia’s same-sex marriage ban

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Fourth Circuit map
Fourth Circuit map
Much like arguments last month in the Tenth Circuit Court of Appeals, there appeared to be one lone dissenter in today’s hearing in the Fourth Circuit in a challenge to Virginia’s same-sex marriage ban. Judge Paul Niemeyer asked several questions in apparent defense of the ban, and seemed to gain no support from his colleagues.

Judge Niemeyer insisted that the family unit is a “political unit” made up only of one man and one woman. He told Ted Olson, who was arguing on behalf of the American Foundation for Equal Rights (AFER) and their plaintiff couples, that a marriage has distinctly different purposes from a same-sex relationship, and that a state may have the right to define the same-sex relationship differently. He also suggested that “every person” in the courtroom was “the product of a marriage.”

But the other judges stayed mostly on track, arguing the familiar points.

Baker v. Nelson

Baker v. Nelson, the Supreme Court’s 1972 summary dismissal “for want of a substantial federal question” in a same-sex marriage case that began Minnesota made several appearances. David Oakley, the attorney who appeared for Norfolk County Circuit Court Clerk George Schaefer, argued that because Baker is binding on lower courts, and because of language in a recent Supreme Court decision – Schuette v. BAMN – which had discussed the people’s right to decide certain issues through the legislative and referendum process, courts should “defer to the democratic process.” He cited language from United States v. Windsor, the decision striking down Section 3 of the federal Defense of Marriage Act (DOMA), that said states have an almost exclusive right to legislate on issues related to marriage.

The first question, from Judge Henry Floyd, a nominee of President Barack Obama, was about Baker: he wanted to know if Windsor left Baker intact, or if it altered that decision. Schaefer’s lawyer argued that it left the Baker precedent intact.

Austin Nimocks, arguing for Alliance Defending Freedom (ADF) on behalf of Prince William County Circuit Court Clerk Michele McQuigg, who intervened in the case to defend the ban, took up the Baker thread during his argument time. He pressed McQuigg’s argument that Baker remains precedential unless the Supreme Court itself says otherwise. There’s a dispute over this point: Supreme Court decisions suggest that “doctrinal developments” after a summary dismissal can erode the precedent, and make it less useful in the lower courts. The briefs for the same-sex couples who are plaintiffs cite this language, pointing out that so many things have changed since the 1970s that it’s not clear whether Baker is relevant.

Deference to a state’s choices

Another theme that was repeated throughout the arguments was deference to states in deciding which couples may marry. Picking up on comments that there should be deference to the legislative process, Judge Gregory suggested that state’s can’t trample on the Fourteenth Amendment, and must comply with the Constitution’s commands. According to one lawyer, “Fifty-seven percent” of voters supported the ban on same-sex marriage, and it’s “equally” demeaning to them “if not more” so, to say that the state’s voters aren’t able to decide an issue like this for themselves.

However, one judge pointed out that Windsor did give short shrift to the federalism argument, deciding the case based on due process and equal protection principles.

Nimocks addressed the arguments on deference to state legislative judgments, arguing that the issue presented in the case is whether the Constitution dictates an answer to whether same-sex marriage should be allowed, or whether the people can decide for themselves. He suggested Virginia doesn’t have to recognize marriages that are inconsistent with its public policy.

Fundamental rights

The judges pondered the question of whether marriage is a fundamental right, and whether the right extends to same-sex couples. In the briefs, these points had been disputed: defenders of the ban admit that marriage is indeed a fundamental right, however, they argue that only opposite-sex marriage is a fundamental right, and same-sex marriage is a “new” form of relationship, so it’s not a longstanding right that can be considered fundamental.

“According to defenders of the ban, “every single case” has said that marriage is between a man and a woman. On his rebuttal, Nimocks went back to that point. He said that every case that has said marriage is a fundamental right has involved opposite-sex couples. Judge Gregory pointed out that this is true simply because those were the facts of these cases: they all happened to involve opposite-sex couples. And every case so far except United States v. Windsor has involved only those couples.

Judge Gregory asked if the fundamental right to marry “is an individual right,” and suggested that the “essence” of fundamental rights like marriage is that the right is for individual people, not groups. He questioned whether Virginia could define a fundamental right like marriage “to the point that its fundamental essence is unrecognizable?”

“You’re saying the state can define marriage any way it wants to,” he asked.

Defenders of the ban only said that states could define marriage however they want, as long as they are otherwise complying with the Constitution.

Stuart Raphael, for the state of Virginia, argued against the ban. He said that while there is a question over the level of specificity a court should use to define a right, the proper way to define it here is the fundamental right to marry. That’s the way numerous Supreme Court decisions have already defined it. The defenders of the ban disagreed, saying that this “new” relationship is defined as “same-sex marriage,” an argument that seemed to get partial support from Judge Niemeyer.

In response to an argument that no one would have assumed the fundamental right to marry extended to same-sex couples, Judge Gregory pointed out that the same is true for interracial marriage.


Perhaps the most heated moments of the argument came during the judges’ discussions of children of same-sex parents. Asked “what[] the governmental interest in marriage” is, one defender of the ban said that it steers the procreative potential of opposite-sex couples into a marriage in which they will raise children.

Judge Gregory said that the “protect the children” rationale “sounds totalitarian.”

Nimocks argued that the fundamental right to marriage is “inextricably linked” to procreation. He pointed to a case involving the right of prisoners to marry – Turner v. Safley, citing a passage that referred to prisoners who were expected to be released and consummate their marriages.

But Judge Gregory pushed back on claims that Virginia doesn’t have to recognize marriages performed outside of the state. He said, “I thought your policy was child-centered. What about the children,” whose parents were married out of state but can’t have their legal marriages recognized by Virginia?

Nimocks started to say that “Virginia has interest in all” families, but he was cut off:

“Why do you want to deny them those warm and wholesome things about marriage,” like family stability and dignity?

Comparing the children of same-sex relationships to the children of single mothers, Nimocks argued that the state isn’t denying same-sex couples anything.

Although “same-sex couples don’t provide a child with a mother and a father,” Nimocks said in response to a question that he doesn’t think “at all” that a child would love their parents less if their parents were of the same-sex. He argued that “gender diversity” is important in marriage, just as it’s important in education and on juries.

Level of scrutiny

The parties disputed what level of judicial scrutiny should apply in this case. Ted Olson argued for the plaintiffs that strict scrutiny – the most stringent form of judicial scrutiny for a law to withstand – applies because marriage is a fundamental right, and that, under equal protection, heightened scrutiny should apply because the law discriminates based on sexual orientation and gender.

Olson said, “Virginia’s marriage laws single out a class according to their sexual orientation and gender,” pointing out that Virginia’s ban goes further: it prohibits same-sex couples from civil unions or domestic partnerships in addition to the marriage ban.

Asked if the court “could […] rule a man could marry six wives [or] his daughter,” Olson pointed out that Virginia’s ban discriminates on the basis of sexual orientation and on the basis of gender, two grounds which wouldn’t require courts to find a right to polygamy or incestuous marriage. Aside from that, there are issues related to the hierarchical structure of polygamous marriages as well as issues related to child care that would be compelling to states.

James Esseks of the ACLU argued on behalf of the plaintiffs in Harris v. Rainey, a class-action challenge to Virginia’s ban filed by Lambda Legal along with the ACLU.

Esseks argued that deferential rational basis review would be “inappropriate” because it wouldn’t comport with the “dignity” the Supreme Court should be afforded to families led by same-sex couples. He pointed out that under rational basis review, a state is entitled to a “presumption of constitutionality” in terms of its own statutes, but that this type of ban shouldn’t be presumed to be constitutional. “The government,” he said, “should come forward” and offer defenses for laws that discriminate against people based only on their sexual orientation.

He argued, as a fallback position, that the ban would violate the Equal Protection Clause under any level of scrutiny, though he stressed that rational basis is inappropriate, and the question of the level of judicial scrutiny to be applied is an “open question” in the Fourth Circuit Court of Appeals.

Asked if the Fourth Circuit should follow Judge Boudin’s opinion in Massachusetts v. HHS, the First Circuit case striking down Section 3 of the federal Defense of Marriage Act (DOMA), and whether “careful review” without applying heightened scrutiny by name has merit, he said that it’s one approach, but not one that he would think is proper in this case.

For the state, Stuart Raphael addressed the level of scrutiny issue, suggesting that if you combine the Supreme Court precedents on the fundamental right to marry with its trilogy of cases involving gay rights (Lawrence, Romer, and Windsor) one can only conclude that the fundamental right to marry extends to same-sex couples, which necessarily means that strict scrutiny applies.

On rebuttal, Nimocks argued with Judge Gregory over the definition of marriage, and couples who adopt, refusing to answer the judge’s questions on those points.

Two of the three judges seemed skeptical of Virginia’s ban, and the arguments in defense of the ban didn’t seem to pick up any new support. There is no word on when the Fourth Circuit will rule in the case, but it is a fast-tracked case, and the Fourth Circuit is reportedly one of the fastest courts in terms of turnaround for opinions.

For more information on Bostic v. Rainey (formerly Bostic v. McDonnell)from The Civil Rights Litigation Clearinghouse, click here.


  • 1. Alan948  |  May 13, 2014 at 2:47 pm

    The opening sentence of this article says "there appeared to be one lone dissenter". That phrase makes it sound like one is an extraordinarily small number of dissenters, but it's actually the greatest number of dissenters possible when there are only three judges making a decision.

  • 2. Scottie Thomaston  |  May 13, 2014 at 3:01 pm

    Well there are three judges. So one person on the opposite side means that person loses. It might be the maximum number of people who can lose the case, sure.

  • 3. Retired_Lawyer  |  May 13, 2014 at 4:18 pm

    I listened to the audio very carefully. Your summary is excellent in all respects. Thank you for all your good work.

  • 4. Tim  |  May 13, 2014 at 2:55 pm

    Thanks Scottie for this detailed analysis. I read it all, and I appreciate it. Also enjoying some of the commenters impressions of the audio that they're posting.

  • 5. Zack12  |  May 13, 2014 at 3:06 pm

    I'm reading different reports on what this will do.
    If the ban is struck down, would that apply to the entire circuit or just VA?

  • 6. Rik  |  May 13, 2014 at 3:31 pm

    My impression is that it would set precedent for the entire circuit, although I suppose a ruling could possibly be tailored to apply specifically to the VA ban (maybe?). It is considerably more severe than many other bans, so perhaps if they looked at it that way

  • 7. Bruno71  |  May 13, 2014 at 3:52 pm

    I just don't see how they could narrow it. The plaintiffs are seeking marriages, not civil contracts. They can't satisfy the plaintiffs in this case without addressing the issue of marriage one way or the other, and that has to bind the whole Circuit.

  • 8. Rik  |  May 13, 2014 at 4:13 pm

    Thanks for the clarification, Bruno!

  • 9. Zack12  |  May 13, 2014 at 4:24 pm

    That's what I thought but wanted to be sure.

  • 10. Steven H  |  May 13, 2014 at 6:00 pm

    North Carolina's ban is substantially the same as Virginia's (both ban all forms of legal recognition), and I'm willing to bet that South Carolina's does as well. Maryland is already one of the good states, of course; so that just leaves West Virginia. Unless they find some hitherto unheard of Prop 8 style off-ramp, I doubt any ruling can be tailored to Virginia alone. Of course, if the decision is stayed, it won't really matter.

  • 11. Bruno71  |  May 13, 2014 at 6:04 pm

    Even if it's stayed, it would matter if ultimately SCOTUS decides not to grant cert on the case.

  • 12. Zack12  |  May 13, 2014 at 6:16 pm

    Yup, if they decline to grant cert, then all states in that district would have to obey that ruling.
    Honestly, the reactions from WV would scare me more then the ones out of NC and SC.

  • 13. Bruno71  |  May 13, 2014 at 6:18 pm

    Hmmm I say it's neck & neck between WV & SC. NC actually is getting more liberal by the day, though there'll still be a lot of freakouts. Actually the same can be said for VA itself.

  • 14. Zack12  |  May 13, 2014 at 6:39 pm

    I'd say WV just because they don't bother to behind the fake niceness that the folks in South Carolina do.
    I have a friend that lives in WV and many of the voters there have made it clear the reason they hate Obama is the fact he is black and nothing more then that.

  • 15. Zack12  |  May 13, 2014 at 3:42 pm
    I wasn't aware the 10th circuit moved this fast.

  • 16. sfbob  |  May 13, 2014 at 4:13 pm

    Everything is moving quickly. The article is two days old and already out of date….

    "Alaska — which approved a constitutional amendment banning same-sex weddings in a 1998 referendum and then made it illegal for gay and lesbian couples to achieve any form of civil union or domestic partnership in 2007 — is the only state in the country whose law is not being challenged in court."

    Of course, now there IS a marriage equality case in Alaska.

  • 17. Zack12  |  May 13, 2014 at 4:25 pm

    Yup, Montana and North Dakota are the only two left standing.

  • 18. Guest  |  May 13, 2014 at 4:09 pm

    Does anyone know the current status on the 9th The Ninth Circuit’s judges reviewing/rehearing the “heightened scrutiny” from the SmithKline Beecham v. Abbott Laboratories case?

  • 19. Kevin  |  May 13, 2014 at 4:13 pm

    Briefs have been submitted regarding whether the 3-panel decision should be reconsidered by an 11-judge panel. We are waiting the court's decision about whether it will permit the en banc review.

  • 20. Steve  |  May 13, 2014 at 4:13 pm

    >>"citing a passage that referred to prisoners who were expected to be released and consummate their marriages."

    Lying douchebag. He is just selectively quoting. That's just one point among money. The ruling also lists several other important points such as companionship, legal security or spiritual/religious reasons.

  • 21. KarlS  |  May 13, 2014 at 5:27 pm

    Niemeyer was wrong from the get-go…there was definitely at least one bastard in the room.

  • 22. Zack12  |  May 13, 2014 at 6:13 pm

    That was going to be unavoidable. Yes the court has become more moderate but many of the jerks that made it the most far right district court in the land were still on the bench along with a couple of George W's appointees.
    No way we were going to miss one of them, just lucky that there seems to be a 2-1 ruling in our favor.

  • 23. USA, Virginia: Fourth Cir&hellip  |  May 13, 2014 at 7:16 pm

    […] Scottie Thompson at Equality on Trial has a great analysis: […]

  • 24. Matt  |  May 13, 2014 at 8:07 pm

    Not to take anything away from Virginia, but Idaho just joined the party!

  • 25. Margo Schulter  |  May 13, 2014 at 9:27 pm

    Scottie, please let me join in thanking you for a great summary of the argument!

  • 26. Margo Schulter  |  May 13, 2014 at 9:42 pm

    Steve, on Turner v. Safley, “selective quoting” is exactly right! And the pro-ban argument that another case cited in Safley, Johnson v. Rockerfeller, where New York’s marriage prohibition as of 1973 for a life-term prisoner was upheld, depended on procreation, is highly disputable.

    In fact, Safley, 482 U.S. 78, 96 (1987), notes “That case involved a prohibition on marriage only for inmates sentenced to life imprisonment; and, importantly, denial of the right was part of the punishment for crime.”

    In Johnson v. Rockerfeller, 365 F. Supp. 377 (1973), it appears that the marriage prohibition for life-terms prisoners was part of a “civil death” statute. That’s a radically different situation than marriage equality outside prisons.

  • 27. Equality On TrialThis sum&hellip  |  July 12, 2014 at 10:42 am

    […] being litigated by Ted Olson and David Boies for the American Foundation for Equal Rights (AFER), was argued on May 13. The Fourth Circuit reportedly has the fastest turnaround rate for decisions after oral […]

  • 28. Equality On TrialFourth C&hellip  |  August 7, 2014 at 1:34 am

    […] The decision was 2-1 with Judge Niemeyer dissenting, a result that was anticipated. […]

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