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Fourth Circuit rules Virginia’s same-sex marriage ban unconstitutional

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The Fourth Circuit Court of Appeals has ruled that Virginia’s same-sex marriage ban is unconstitutional. The ruling in Bostic v. Schaefer comes after the Tenth Circuit ruled similarly in cases from Utah and Oklahoma.

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

The court held that the ban violates the fundamental right to marry:

The choice of whether and whomto marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits themfromparticipating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

The American Foundation for Equal Rights (AFER) and its attorneys Ted Olson and David Boies litigated the challenge. Lambda Legal and the ACLU, who filed their own challenge to Virginia’s ban in the form of a class-action, intervened in the case.

Virginia’s attorney general has declined to defend the ban. It was defended in court by two county clerks.

EqualityOnTrial will have updates on this developing story…

Thanks to Equality Case Files for these filings


  • 1. brandall  |  July 28, 2014 at 10:43 am

    My blood is boiling reading the Niemeyer dissent:

    In reaching this conclusion, the majority “decline[s] the Proponents’ invitation to characterize the right at issue in this case as the right to same-sex marriage rather than simply the right to marry.” Ante at 44. And in doing so, it explicitly bypasses the relevant constitutional analysis required by Washington v. Glucksberg, 521 U.S. 702 (1997), stating that a Glucksberg analysis is not In reaching this conclusion, the majority “decline[s] the Proponents’ invitation to characterize the right at issue in this case as the right to same-sex marriage rather than simply the right to marry.” Ante at 44. And in doing so, it explicitly bypasses the relevant constitutional analysis required by Washington v. Glucksberg, 521 U.S. 702 (1997), stating that a Glucksberg analysis is not necessary because no new fundamental right is being recognized. Ante at 41-42.

  • 2. DoctorHeimlich  |  July 28, 2014 at 10:58 am

    Niemeyer's dissent may be aggravating, but it's also extraordinarily weak. He simply says that "same-sex marriage" is a new thing, and not marriage. He provides nothing new to counter the argument that Loving, Zablocki, and Turner all declined to define marriage in similarly narrow terms — just the same old "but men and women!" stammering and the threatening specter of incestuous and bigamous marriages.

    Neimeyer also offers nothing to counter the argument that gays should be deemed a suspect class. (A point the majority declines to touch on.) He simply says "the Supreme Court and all these old Appeals Court cases didn't do so," without actually conducting the four part analysis and attempting to explain how gays don't meet the criteria. A disingenuous omission, of course, as he couldn't possibly demonstrate that.

    In short, no new ammunition for our adversaries to latch onto. (Unsurprisingly.)

  • 3. sfbob  |  July 28, 2014 at 11:47 am

    I wondered whether it was worth the aggravation needed to read Niemeyer's dissent. Thank you, DoctorHeimlich, for letting me know I needn't bother. 🙂

  • 4. JayJonson  |  July 28, 2014 at 3:39 pm

    Thank you, DoctorHeimlich. I did read the aggravating dissent. I am glad to be reassured that it is devious bs.

  • 5. RemC_in_Chicago  |  July 28, 2014 at 12:24 pm

    His insistence that we don't need the governmental protections because we're incapable of producing unwanted pregnancies had me thinking…what about those of us gay couples who have adopted unwanted children and taken the burden of their upkeep off the government's hands?

  • 6. JayJonson  |  July 28, 2014 at 3:40 pm

    Excellent point.

  • 7. JoshLmno  |  July 28, 2014 at 8:21 pm

    This is the type of point that needs to be loudly broadcast in every article about ME. You're so very right that your family needs protection and support just as much if not more than biologically related families. You are doing a great thing raising your kids, thank you! 🙂

  • 8. Silvershrimp0  |  July 28, 2014 at 10:44 am

    Any word on a stay? Does this immediately affect other states in the 4th circuit?

  • 9. brandall  |  July 28, 2014 at 10:46 am

    Page 63 just says "affirmed"….looking further. Searched for "stay"….nothing in terms of an order or instruction from the court.

  • 10. Tinmanic  |  July 28, 2014 at 10:47 am

    No word on a stay.

  • 11. BenG1980  |  July 28, 2014 at 10:47 am

    Searched the PDF for "stay" and I don't think so!

  • 12. DaveM_OH  |  July 28, 2014 at 10:48 am

    There is no Order in this Opinion. The Order will issue as the mandate in 14 days, unless stayed by the 4CA or SCOTUS upon motion of Rainey etc.

    The circuit justice for the 4th is Roberts.

  • 13. BenG1980  |  July 28, 2014 at 10:53 am

    Will the clerk (Michele McQuigg) seek a stay from SCOTUS? I doubt the state will. Terry McAuliffe and Mark Herring are on our side.

  • 14. MichaelGrabow  |  July 28, 2014 at 10:58 am

    Mark Herring has inexplicably stated that he will request a stay in the recent past.

  • 15. ranjitbahadur0  |  July 28, 2014 at 11:28 am

    Despite his public position opposing the ban he probably wants to avoid creating another "window" situation where several Virginia couples get married before the SC inevitably stays the ruling (even if the 4th doesn't) and the additional litigation regarding recognition that will follow.

    There are already 7 states with couples that are both married (according to the federal government) and unmarried (according to their respective state governments) and may potentially get "un-married" at a later date.

  • 16. brandall  |  July 28, 2014 at 11:37 am

    Herring, a Democrat, announced in January that he would not defend the ban in court and has subsequently filed briefs in support of plaintiff couples.

  • 17. Bruno71  |  July 28, 2014 at 11:52 am

    As we see happened in Boulder, Colorado, this may not just be an issue for Virginia. Although the chances for a "renegade clerk" in South Carolina, North Carolina or West Virginia seem smaller than Colorado.

  • 18. DACiowan  |  July 28, 2014 at 11:54 am

    The best chance for a renegade clerk is probably Buncombe County, NC (Asheville).

  • 19. brandall  |  July 28, 2014 at 11:57 am

    Shall we make a phone call together?


  • 20. Jen_in_MI  |  July 28, 2014 at 12:11 pm

    Brandall, you make me giggle. 🙂

  • 21. MichaelGrabow  |  July 28, 2014 at 1:49 pm

    I would rather test the waters to see if someone will stay it. I don't see any problem with the "window" situation you referenced. Those couples know full well what they are getting themselves into and aside from that, it is not going to go backwards from here. Also, they have the chance of having AG Holder recognizing them as he has done for several other states.

    Seven states? AR, IN, WI, UT, MI, CO…?

  • 22. ranjitbahadur0  |  July 28, 2014 at 3:43 pm

    Did couples actually get married in AR ?

    As remote as those chances might be since the "State" is not pursuing it, NOM and the Orphan Lady refuse to give up in OR and PA respectively, those states have active appeals seeking to reinstate their bans.

  • 23. BenG1980  |  July 28, 2014 at 6:23 pm

    Yes, over 450 marriage licenses were issued to same-sex couples.

  • 24. RobW303  |  July 28, 2014 at 4:25 pm

    Missouri (4 couples only, licenses issued by the mayor of St. Louis, probably in preparation for another challenge).

  • 25. Corey_from_MD  |  July 28, 2014 at 4:07 pm

    @MichaelGrabow, earlier today you posted the link below to say that Mark Herring will issue a stay:

    His comments were after the Wright ruling earlier this year in February. I have seen no indication whatsoever that Herring will issue a stay in Virginia. In fact his comments today indicate that that is not something is considering at all:

    If a stay occurs sometime over the next 21 days, I would be shocked if it comes from Herring.

  • 26. brandall  |  July 28, 2014 at 4:18 pm

    Herring's Press Release from today. There is no closer source than this.

    "Attorney General Mark R. Herring, the first attorney general in the nation to argue successfully in court that his state's constitutional ban on same-sex marriage should be struck down"

  • 27. MichaelGrabow  |  July 28, 2014 at 7:19 pm

    I said he would request a stay, he cannot issue one. I looked earlier for what I read a few weeks back and couldn't find it. If he doesn't then obviously I will be happy, I'm just telling you what read in the not too distant past.

  • 28. Corey_from_MD  |  July 28, 2014 at 9:51 pm

    Nah, not buying it. Still would be shocking unless out of some sense to keep progress going…

    He was very gleefully poetic today…

  • 29. MichaelGrabow  |  July 29, 2014 at 5:38 am

    Not buying what??

    Yes, I'm lying. You caught me.

  • 30. Corey_from_MD  |  July 29, 2014 at 8:24 am

    I am not buying that he will take this action. You made such a prediction; however, I never used the extreme word lie.

  • 31. MichaelGrabow  |  July 29, 2014 at 8:29 am

    I did not make any prediction. I simply recalled what I previously read that he stated. Also, like I already said, CLEARLY I would prefer him not to.

  • 32. Corey_from_MD  |  July 29, 2014 at 9:45 am

    @MichealGrabow, Mark Herring was being diplomatic in February and actually trying to mollify concerns. He never "inexplicably stated that he will request a stay" as you mentioned in the first place. He was referring to the stay that was already issued. He was encouraging us to let the process run its course.

  • 33. MichaelGrabow  |  July 29, 2014 at 10:27 am

    If I had known that you are able to accurately interpret what he meant by a certain statement, I would have called you today rather than his office! Oh well, live and learn.

  • 34. Corey_from_MD  |  July 29, 2014 at 10:40 am

    According to your comment later in this article, you called the office today and the administrative assistant seemed a little off-put about the appeal question. This is not a surprise. Nevertheless, there is still is no indication whatsoever that the office will "inexplicably" appeal or "request a stay". As a final comment, we will simply see what happens

  • 35. MichaelGrabow  |  July 29, 2014 at 8:44 am

    Also, I do not see any quotes from Mark Herring in that article. There is one from Governor McAuliffe.

  • 36. DaveM_OH  |  July 28, 2014 at 11:00 am

    I don't see why not. Schaefer is an elected official serving in his role and was represented by the ADF at 4CA. He has standing to pursue the appeal.

  • 37. Mike_Baltimore  |  July 28, 2014 at 12:06 pm

    Just because a person is elected does not automatically mean a person has standing. Elected officials may, or may not, have standing, but just because they are an elected official does not automatically confer standing onto the official.

    A California legislator (by definition, elected), tried to defend Prop H8, but was found by the courts to not have standing. Orphan's Court clerks in Pennsylvania (who are the people who handle marriage licenses in the state) are elected, but state and federal courts have found they do not have standing.

    Again, just because a person is elected does not automatically mean a person has standing. There are additional factors that must be met.

    There are three standing requirements:

    1. Injury-in-fact: The plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent (that is, neither conjectural nor hypothetical; not abstract). The injury can be either economic, non-economic, or both.

    2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.

    3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.

    Which of the 3 above definitions of standing do the clerks have? Please note, the term 'elected official' is NOT stated in any of the definitions.

    See also:… (a SCOTUS decision from January 2014)

  • 38. DaveM_OH  |  July 28, 2014 at 12:18 pm

    From Bostic:

    "For this reason, and contrary to Schaefer’s assertions,
    Schaefer is also a proper defendant under Ex parte Young, 209
    U.S. 123 (1908). Pursuant to Ex parte Young, the Eleventh
    Amendment does not bar a citizen from suing a state officer to
    enjoin the enforcement of an unconstitutional law when the
    officer has “some connection with the enforcement of the act.”
    Lytle v. Griffith, 240 F.3d 404, 412 (4th Cir. 2001) (emphasis
    omitted) (quoting Ex parte Young, 209 U.S. at 157). Schaefer
    bears the requisite connection to the enforcement of the
    Virginia Marriage Laws due to his role in granting and denying
    applications for marriage licenses."

    If he is a "proper defendant", then surely he has the required standing to pursue an appeal.

  • 39. RemC_in_Chicago  |  July 28, 2014 at 12:26 pm

    My assumption as well.

  • 40. Eric  |  July 28, 2014 at 5:14 pm

    Just because plaintiffs have standing, doesn't necessarily mean the defendant does on appeal.

    He still needs to meet the requirement for Article III standing. Specifically, if his role is purely ministerial, what is his injury-in-fact?

    One could also argue, that based on Schaefer's own assertions, he doesn't have standing to appeal. It's a bit contradictory for him to argue that he doesn't have standing to be sued, but does have standing to appeal.

  • 41. _Schteve_  |  August 2, 2014 at 10:49 pm

    Being forced to do something he would not do (issue a license) absent the injunction is by definition an injury redressable by appeal. The official proponents of Proposition 8 were not forced to do anything by the court, which is why they lacked any personal injury. (Personal injury was never their serious claim though; they claimed they were representing the state which did in fact suffer harm by one of its laws being struck down.) There is no doubt that a named defendant forced to do something has standing to appeal.

  • 42. Mike_Baltimore  |  July 28, 2014 at 6:25 pm

    "If he is a "proper defendant", then surely he has the required standing to pursue an appeal."

    That is what you ASSume, but it isn't necessarily so. Will the defendant be harmed, and in what manner, for instance?

    The Ninth Circuit Court issued an opinion in a case called Hollingsworth v. Brown. The Circuit court ruled that Hollingsworth had standing. When it reached SCOTUS, the Supreme Court ruled that Hollingsworth did NOT have standing. Whether SCOTUS was correct or not is not the question. What SCOTUS determines over-rules any Circuit court.

    So when you quote a Circuit court decision, please consider how SCOTUS (to whom any appeal of a Circuit court decision must go) has ruled on the subject in the past, and thus will probably rule in the future.

  • 43. BenG1980  |  July 28, 2014 at 9:30 pm

    That's not an assumption. It's a fact. As DaveM_OH knows, a proper defendant, by definition, must have standing.

  • 44. brandall  |  July 28, 2014 at 11:55 am

    I wish they were only given 1 day….

    "The decision will not take effect immediately, but will go into effect in 21 days, unless the defendants file a motion to stay the ruling. The ruling will also be stayed if the defendants ask the full court of appeals to review the case."

  • 45. F_Young  |  July 28, 2014 at 10:46 am


    I can't access the decision; does it order a stay?

    Here's the Wikipedia map:

  • 46. brandall  |  July 28, 2014 at 10:50 am

    No, see DaveM_OH above.

  • 47. DACiowan  |  July 28, 2014 at 10:51 am

    Heads up, the map may be in flux as we figure out just what is going on. I'm Dralwik on Wiki.

  • 48. DaveM_OH  |  July 28, 2014 at 10:52 am

    See my reply. The map should stay just as it is for now, because there was no Order.

  • 49. BenG1980  |  July 28, 2014 at 6:33 pm

    IMHO the map is a mess. Colorado should not be blue, Wyoming should not be yellow, Kansas should not be gold, and for that matter Virginia should be neither blue nor gold because while marriage licenses are not currently being issued to same sex couples, there's not a stay in place either. You have my sympathy.

  • 50. brooklyn11217  |  July 28, 2014 at 10:52 am

    See this article with the Judgment:

  • 51. MichaelGrabow  |  July 28, 2014 at 10:59 am

    "Strict scrutiny therefore applies in this case."

  • 52. sfbob  |  July 28, 2014 at 11:08 am

    Yes. If we are talking about the right to marriage and not the "right to same sex marriage" (and the former is what is at issue, despite Niemeyer's whining) then this is correct.

    You will note as well that the court has very neatly sidestepped the question of whether sexual orientation constitutes a suspect class (which, under 4th Circuit precedent, it does not). Since the infringement of a fundamental right is deemed the pertinent question and infringement of a fundamental right always requires strict scrutiny, consideration of other issues isn't necessary. It would be nice to get the question of status as a suspect class on the table and deal with it once and for all but it seems pretty clear to me that SCOTUS is leery of creating any new suspect classes. Cowardice, if you ask me. And at some point it's going to become an unavoidable issue unless and until federal civil rights law is amended to address sexual orientation and gender identity.

  • 53. Zack12  |  July 28, 2014 at 12:10 pm

    Indeed, at some point they will HAVE to declare us a suspsect class, it will be unavoidable.

  • 54. FredDorner  |  July 28, 2014 at 4:45 pm

    Technically they'll be declaring sexual orientation a suspect class, not gays. But they'll be doing so because of the history of persecution to that class instance.

    It's why "national origin" is a suspect class, rather than "Irish."

  • 55. _Schteve_  |  August 2, 2014 at 10:53 pm

    This is actually a key point and the proper response to those claiming we seek special rights. Discrimination against heterosexuals because of their sexual orientation (as rare as it would be) would be just as protected.

  • 56. davepCA  |  July 28, 2014 at 10:55 am

    Fundamental right, and STRICT SCRUTINY applies.

  • 57. robbyinflorida  |  July 28, 2014 at 10:59 am

    With Cuccinelli out of office and McAuliffe not defending the ban, who is left?

  • 58. Steve  |  July 28, 2014 at 11:01 am

    The Alliance Defense Fund or some of the other Christian extremist ambulance chaser organizations

  • 59. sfbob  |  July 28, 2014 at 11:05 am

    Can't see how they'd have Article III standing to appeal this decision. But as DaveM_OH has noted, Schaefer and McQuigg are elected officials and have standing. No doubt they'll file the appeal (request for en banc hearing? go directly to SCOTUS for cert?) using the intervenors' counsel.

  • 60. MichaelGrabow  |  July 28, 2014 at 11:01 am

    AG Herring has said he will request a stay.

  • 61. Bruno71  |  July 28, 2014 at 1:01 pm

    You can see the implication from this EOT post:

    Herring said he would continue enforcing the ban pending appeal to SCOTUS. It implies he would ask for a stay.

  • 62. MichaelGrabow  |  July 28, 2014 at 1:01 pm

    “While I deeply understand that it is difficult to ask loving couples to wait even a day longer to exercise their fundamental rights, our commitment to the rule of law dictates that this process moves forward in an orderly way that a stay will provide,” Herring said at Friday’s press conference.

    “When a federal district court judge in Utah overturned that state’s ban on gay marriage without issuing a stay, couples who quickly married there have now found themselves in a legal limbo after the Supreme Court issued a stay pending appeal.”

    I cannot find what I previously read, but this is right up the same alley.

  • 63. Corey_from_MD  |  July 28, 2014 at 1:24 pm

    Damn! A bit surprised that he said that… 🙁

  • 64. Eric  |  July 28, 2014 at 9:10 pm

    Huh? The rule of law is honoring the Constitution and not depriving people of their fundamental rights. The AG is a joke.

  • 65. MichaelGrabow  |  July 29, 2014 at 8:58 am

    You wouldn't like the alternative (Mark Obenshain) very much then.

  • 66. Randolph_Finder  |  July 29, 2014 at 9:42 am

    Yeah, this would be going *slightly* differently if a thousand people had made different decisions in the voting booth.

  • 67. Corey_from_MD  |  July 28, 2014 at 4:35 pm

    Many of us disagree and we have commented up above…

  • 68. Eric  |  July 28, 2014 at 5:24 pm

    Then he does support imposing an irreparable harm on same-sex couples by continuing the denial of their fundamental right to marry.

  • 69. DaveM_OH  |  July 28, 2014 at 11:01 am

    Schaefer and McQuigg both are elected officials and have standing to pursue the appeal.

  • 70. brandall  |  July 28, 2014 at 11:08 am

    This ruling puts 6 other cases back in play in the 4th AC.

    4in NC, 1 in SC, 1 in WV. They were all on hold pending this decision.

    And we have 6 of the 11 circuits with actual ME (1st, 2nd, 3rd) or AC rulings for stayed ME (4th, 9th, 10th). Stayed, there's that word I hate again.

  • 71. Bruno71  |  July 28, 2014 at 11:17 am

    Technically the 1st and the 3rd still have jurisdictions that do not have ME (Puerto Rico & US Virgin Islands). The 9th does not currently have a valid ME ruling, although its "vapor" ruling in Hollingsworth and heightened scrutiny ruling in SmithKline tell us all we need to know about where they'll end up later on.

  • 72. RobW303  |  July 28, 2014 at 1:13 pm

    Don't forget the other Virginia case, Harris v. Rainey in Virginia, it's how the ACLU and Lambda Legal got involved in Bostic.

  • 73. Mike_Baltimore  |  July 28, 2014 at 6:36 pm

    When Harris v Rainey was combined with the Bostic case, didn't that in effect dissolve the case? Or is it combined, but separate from Bostic?

    I'm not an attorney, so I'm not sure, in detail, how the 'life' of a case combined with another would work to keep the case alive.

  • 74. RobW303  |  July 28, 2014 at 8:09 pm

    I may have missed it, but I don't believe the cases were ever combined. Last I heard (back in May), Harris was just being put on hold until Bostic was decided. The ACLU and Lambda Legal (representing the Harris parties) were just allowed to intervene in Bostic because of the similar issues and the impact inadequate or incomplete arguments might have on the Harris case.

  • 75. BenG1980  |  July 28, 2014 at 8:14 pm

    Yes, that is my understanding as well. From the ACLU website:

    "In a separate case, Bostic v. Schaefer, a federal judge in Norfolk ruled on February 13, 2014, that Virginia’s laws prohibiting same-sex couples from marrying or having their out-of-state marriages recognized are unconstitutional. The government defendants appealed to the Court of Appeals for the Fourth Circuit, and the Norfolk judge’s ruling was stayed pending appeal."

    "The Fourth Circuit allowed us to intervene in the case, so that the class we represent is now a party to the Bostic appeal. We filed our brief on April 11, 2014, and oral argument took place on May 13, 2014. On July 28, 2014, the Fourth Circuit affirmed the lower court decision, holding that Virgina’s prohibition on marriage for same-sex couples is unconstitutional."

  • 76. Mike_Baltimore  |  July 28, 2014 at 8:58 pm

    "The Fourth Circuit allowed us to intervene in the case, so that the class we represent is now a party to the Bostic appeal."

    OK, but it doesn't say that the non-Bostic case is still alive. The court allowed the ACLU to intervene, but it doesn't state whether the non-Bostic case is on hold, or was 'put on hold' (and is now effectively moot) because of the Bostic case opinion from the 4th Circuit. In fact, "the class we represent is now a party to the Bostic appeal" phrasing would seem to indicate that the non-Bostic case was (effectively) combined with the Bostic appeal, and thus is no longer an ongoing case separate from the Bostic case.

    If it is still an 'active' case (even if soon to be declared moot), how if it was combined with Bostic? If not, why would the ACLU state that "the class" it represents was a party to the Bostic appeal? Or was it just the ACLU allowed to intervene, not the class the ACLU represents (even though the ACLU statement says the class was allowed to intervene)?

    I know details can many times be an irritant, but many times details can be important.

  • 77. BenG1980  |  July 28, 2014 at 9:12 pm

    You're right. Details are very important. As Rob stated above, the two cases weren't combined, hence the need for Lambda Legal and the ACLU to intervene.

    Per Freedom to Marry, Harris v. Rainey "has been stayed pending a decision in Bostic v. Schaefer, with Lambda Legal and the ACLU intervening in arguments for that case on May 13."

  • 78. Mike_Baltimore  |  July 29, 2014 at 10:56 am

    So why did the ACLU state ". . . the class we represent is now a party to the Bostic appeal"?

    The 'class' the ACLU is referencing is all couples of the same sex who wish to get married in Virginia, but the original Bostic case did not include anyone but the plaintiffs.

    Did 'the class' of all couples join the Bostic case, and keep their case alive at the same time (is that even possible?), or did the Appeals Court combine the cases? The note from Freedom to Marry is a reference to the District judges' decisions, not the Appeals Court judges' decision.

    And how could the 'class' of plaintiffs be part of the Bostic case without the suit for the 'class' being combined with the Bostic case? I can understand the attorneys being interveners without the 'class' being part of the suit (similar to a personal injury attorney representing several similar cases at once, but not combining them), but the ACLU clearly states ". . . the class we represent is now a party to the Bostic appeal". Unless I'm missing something, the 'class' could not be a party to the Bostic case without the cases being combined.

    Again, with the Appeals Court decision, the non-Bostic case appears to be moot (if it is still active), and will not go any further. If it has been combined with the Bostic case, then it travels as Bostic travels (en banc, then appeal to SCOTUS, or appeal to SCOTUS).

    The other major question I have is when the appeal is made to SCOTUS (if one is made), will SCOTUS accept it. For many reasons, I hope SCOTUS does (seeing Boies and Olson together, arguing the same side of the issue before SCOTUS would be delightful, and for many other reasons). If SCOTUS rejects the appeal for whatever reason, the opinion of the 4th stands, and ME gains are made in the four states in the 4th Circuit without ME without additional time and effort needing to be invested. The fly in the ointment of SCOTUS rejecting the case would be that the opinion by the 4th Circuit Court then would only apply to the states covered by the 4th Circuit, but not to any other Circuit. Also, strict scrutiny of ME cases could be lost (except maybe in the 4th Circuit), and to a lessor extent the determination that marriage is a fundamental right (although SCOTUS has made that determination more than a dozen times, from the Windsor case in 2013 all the way back to 'Maynard v Hill' in 1888.

  • 79. BenG1980  |  July 30, 2014 at 7:22 am

    The ACLU stated that because the class they represent in Harris became a party in Bostic through intervention. Intervention in one case, in and of itself, has absolutely zero impact on any other cases (e.g. Harris).

    However, in light of the intervention of the class in Bostic, the judge in the Harris case independently stayed the proceedings. The case was not dismissed; it was simply stayed. Therefore, the cases were never combined.

    There is no way for an attorney to intervene in a case without having a party to the case as a client. In Bostic, any attorney not representing a party (along with any other interested person or group who was not a party to the case) was free to submit an amicus ("friend" of the court) brief.

    The Harris case is not moot because the plaintiffs are still being denied the right to marry. It would only become moot if Virginia started issuing marriage licenses to same-sex couples and started recognizing out-of -state marriages between same-sex couples.

    Regarding your question about SCOTUS, nobody knows for sure what it will do. However, I personally hope the Court denies cert in all the cases we win and then grants cert in a case if we lose. That would result in many more states with marriage equality sooner rather than later.

  • 80. BenG1980  |  July 28, 2014 at 5:43 pm

    The 9th doesn't have a stayed marriage equality case … does it? I think we're all ready to bank it because of SmithKline, but the 9th hasn't even held oral argument yet in Latta, Sevcik, and Jackson. Also, I don't think Perry v. Brown (2012) counts because of the narrow way in which the 9th ruled (see quote below), and because it lacks any precedental value due to the Supreme Court's ruling in Hollingsworth v. Perry (2013).

    "Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of `marriage' to describe their relationships."

  • 81. RobW303  |  July 29, 2014 at 10:42 am

    I think you're right. Furthermore, wasn't the appellate ruling in Perry vacated when SCOTUS knocked the case back down to district court (which wasn't appealed back to the circuit level, since no one attempting to defend the ban had standing)? Meaning that Perry carries no direct weight on other states in the 9th.

    It also bears mentioning that the Nevada case currently being appealed to the 9th was a loss in US district court. How sweet it will be this fall to have that blot expunged. Almost as sweet as hearing the anguished cries from Idaho, Arizona, Alaska and Montana as those "low-hanging fruit" are plucked one by one.

  • 82. BenG1980  |  July 30, 2014 at 7:30 am

    Rob: "Perry carries no direct weight on other states in the 9th" = Ben: "it lacks any precedential value"

  • 83. Virginia Marriage Equalit&hellip  |  July 28, 2014 at 11:11 am

    […] Equality on Trial reports: […]

  • 84. haydenarwen  |  July 28, 2014 at 11:13 am

    Actually don't we want this appealed for at least two reasons — Because of Strict Scrutiny and to have Boise and Olson argue this case to SCOTUS

  • 85. MichaelGrabow  |  July 28, 2014 at 11:27 am

    If there is a chance that about 25 million people in VA, WV, NC, and SC can have marriage equality in the very near future, then I'll take that instead.

  • 86. haydenarwen  |  July 28, 2014 at 11:47 am

    I see that as being valid too…. I can with live that if our MI case then is the one SCOTUS hears or if ti combined with Bishop or Kitchen

  • 87. Bruno71  |  July 28, 2014 at 11:54 am

    SCOTUS will either deny cert on all 3 cases likely to come before them before the end of the year (Bishop, Kitchen, Bostic), or accept one and put the rest on hold pending outcome. There's little chance they could combine the 10th Circuit cases with DeBoer unless the 6th moved really quickly on a ruling.

  • 88. brooklyn11217  |  July 28, 2014 at 12:05 pm

    Unfortunately, SCOTUS doesn't have to deny or grant cert right away….they can keep relisting a case for conferences as long as they want, thereby dragging things out.

  • 89. Bruno71  |  July 28, 2014 at 12:13 pm

    They can, but it's highly unlikely.

  • 90. brooklyn11217  |  July 28, 2014 at 12:45 pm

    I would hope that they would make a quick decision. However, I believe that based on information from, every case that was granted last year was relisted at least once, with many being relisted multiple times.

  • 91. Bruno71  |  July 28, 2014 at 12:57 pm

    I should have qualified that I mean it's unlikely they'll relist for a long length of time (i.e. past the end of the year or into their next term), even though they have the power to do so.

  • 92. Japrisot  |  July 28, 2014 at 2:22 pm

    That is true for this past year, but it is abnormal.

  • 93. Dr. Z  |  July 28, 2014 at 4:56 pm

    There are several unusual factors here that make it difficult to extrapolate from other historical data.

    1. The stays.
    2. The sheer volume of cases across the country.
    3. The timing of specific cases coming to the court.

  • 94. Jen_in_MI  |  July 28, 2014 at 12:24 pm

    I too am waiting on DeBoer – I've been "limbo married" for over 4 months and counting. Bill Schuette is an ass boil on our great state!

  • 95. haydenarwen  |  July 29, 2014 at 5:50 am

    agreed on Bill Schuette . We need to rally our community, Friends, family, neighbors, coworkers etc…. to vote him and the gov out of office . This will give us in MI the quicker path to equality by Jan 2015

  • 96. debater7474  |  July 28, 2014 at 11:18 am

    Interesting that Floyd wrote the opinion. I wonder if that's because Gregory was busy with the ACA opinion.

  • 97. BenG1980  |  July 28, 2014 at 6:43 pm

    Perhaps, or maybe Gregory wanted to go farther (i.e., declare sexual orientation a suspect or quasi-suspect classification) so Floyd wanted the power of the pen to take the arguably more conservative approach of just using the fundamental right to marry. Someday, when volumes upon volumes are being written about this period of history, some clerk might tell us why.

  • 98. DaveM_OH  |  July 28, 2014 at 11:38 am

    Nth-dimensional chess point-of-order.

    Herring's office was technically a defendant in this case. There's no reason he couldn't file a cert petition *tomorrow* and start the clock ticking. Such a case would be docketed for distribution at the September 29 Long Conference.

    Now, I'm not sure the Court would look favorably on that, and would probably just sit on the cert petition until McQuigg and Schaefer file theirs, due no later than October 27.

  • 99. BenG1980  |  July 28, 2014 at 6:50 pm

    Interesting thought. What impact would such a move have on the timing of the respondents' reply brief? It would arguably be risky to reply to only the AG's petition if a later petitioner were to subsequently raise an unexpected point.

  • 100. Zack12  |  July 28, 2014 at 11:51 am

    If you want to know why elections matter, this ruling shows a reason why.
    Ten years ago this ruling would have been reversed En Banc due to the conservative nature of this court.
    But since Obama has able to put six (hopefully soon to be 7) judges on the court, this ruling will stand.

  • 101. Ryan K.  |  July 28, 2014 at 1:34 pm

    In my opinion, one of the most impactful things about elections, especially at the presidential level and the US Senate. We really, really need to hold onto at least 50 Senate seats after the midterms!

  • 102. Zack12  |  July 28, 2014 at 1:40 pm

    That is something our base has only recently begun to understand.
    Also why I like the judge who is going to get confirmed tonight, she is 52.
    If we win in 2016, Democrats have to be smart like conservatives are in making sure more young progressives in their late 30's and early 40's get on the bench.

  • 103. jdw_karasu  |  July 29, 2014 at 10:46 am

    Harris got confirmed in a tight vote (though with a view Dems "allowed" to vote against and abstain for election reasons).

    It's a 10-5 Dem court now, treating Roger Gregory as a Dem as he should be.

    It was 8-7 GOP when Obama came into office. He flipped it way back in 2010 replacing two GOP judges (Nixon and RR appointments). That made it 9-6, then 10-5 when replacing a Bush Sr. judge in 2011. Harris simply replaces an Obama judge, Andre Davis.

    Davis is an interesting case. He'd been nominated in 2000 by the Big Dog, but then screwed because of the election year. This was a nice "make good" by Obama. In turn, Davis wasn't young in turning 65 earlier this year. So he bowed out to take Sr status, while giving Obama the chance to appoint a long term judge to the Circuit. Harris is 13 years younger. The other positive is that the Sr Judge bench is really thing in the 4th: two inactive 88+ year old judges (JC & RR), a GHWB judge (Hamilton) who just turned 80, and now Davis the young one at 65. Sr Judges can have a long run of being active: Hamilton is in his 15th year. So unlike some courts where we have a lot of active Sr Judges (RR & GHWB judges) who took a powder while GWB could safely keep their spot in GOP hands, the 4th is one of the exceptions.

    On the flip side, it's also a Circuit at some risk if we don't retain the Senate. 6 judges are 66+, three of them Clinton, one RR, one GHWB… and one Obama (Floyd). You'd had to see any of those come open in the last two years of the Obama Admin and not be able to be filled. More than that, you hate to see those 4 not be able to consider taking Sr status while Obama is in office to ensure the seats stay in Dem hands if something horrible happens and we lose the WH in 2016.

    So the Court has gone great. There's potential to make it even more safe. If we win in 2016, there are chances of picking off even more seats. But there is also some risk as the 10-5 isn't rock firm if things break badly. That's the case with a number of courts Obama has flipped.

  • 104. Zack12  |  July 28, 2014 at 12:07 pm

    Unlike many other cases, the clerks in this case DO have standing and will most certainly appeal if Herring doesn't.

  • 105. RnL2008  |  July 28, 2014 at 12:12 pm

    So, this Justice who dissented is basing his WHOLE dissension merely on a term known as "SAME-SEX" marriage instead of looking at this as an infringement on the Fundamental Right to marry someone of the Same-Sex…….you'd have thought that a common sense approach would be to simply substitute the word "SAME-SEX" for the word "RACE"and by doing so, would clearly see that the State has shown NO compelling State interest to deny the right to marry to Gays and Lesbians.

    To just continue to spout utter BS without making ANY point shows that this Justice alone has animus towards a minority group of individuals for no other reason because of who they are or who they love.

    Hell, if this Justice had been around and on SCOTUS when the Loving case was before them, he'd have probably ruled against the Lovings for the same reason he has ruled against Gays and Lesbians………bigotry and hate will ALWAYS be around, but folks like this Justice and others will eventually die off and we WON'T notice the hate or bigotry because folks will learn to keep it to themselves……but hey, that is just my opinion!!!

    Has this Justice NOT been aware that Gays and Lesbians have been fighting for the right to marry since before Baker vs Nelson? This is NOT a fight over some supposed NEW right, but to be INCLUDED in an existing right that the Loving's had to fight…the simple right to marry the person of one's choosing WITHOUT being denied simply because the person is of the Same gender!!!

    The question that lawyers for us NEED to be asking is whether or NOT marriage is a Fundamental right without regards to specific gender make-up or is it truly ONLY a Fundamental right when it involves 2 people of the opposite-sex? It CAN'T be one way because that would make it a SPECIAL right only for those of opposite gender and our laws DON'T work that way!!!

  • 106. Jen_in_MI  |  July 28, 2014 at 12:20 pm

    Every time I am actually able to sleep – even for just a couple of hours! – a ruling in our favor is handed down. At this rate, I should try to sleep until June 30, 2015! LOL

  • 107. Ragavendran  |  July 28, 2014 at 8:54 pm

    I'm in India. I woke up to find the opinion released, article posted on EoT, and 125+ comments on said post alone. This sucks 🙂

  • 108. SeattleRobin  |  July 28, 2014 at 10:06 pm

    I don't even have the excuse of being in India. I just didn't get around to being online until late in the day, for no particular reason, and missed all the initial excitement. That'll teach me to take a day off from obsessively checking the EOT site!

  • 109. Zack12  |  July 28, 2014 at 12:43 pm

    One has to excuse the dissenting judge in this case, Paul Niemeyer.
    He is still adjusting to the fact that eleven years ago, the 4th circuit was so conservative this article was written about it.
    If you want to know why elections matter, this article will show you why. Obama has been able to change the 4th circuit from a far right hell hole to a court that actually respects the rights of all citizens.
    And make no mistake, if this ruling had happened back then, you would have seen it reversed en banc just like they did on ANY case where a three judge panel went against the far right views of the court.

  • 110. Mike_Baltimore  |  July 28, 2014 at 7:28 pm

    I've lived in the jurisdiction of the 4th Circuit for more than 40 years now (just over a year in VA, and 40 years in MD). I'm still trying to get my mind around the fact that the 4th now is not one of the most, if not the most, conservative court in the nation.

    Does anyone wonder why shrub sent the Gitmo cases to a court in the 4th? It wasn't because the Federal District court in Alexandria was conveniently just across the river from DC and the Justice Department (probably within actual eyesight of the White House). It was because the Federal District court in Alexandria was in the 4th Circuit (and the Pentagon is actually sited in Virginia). And Richmond, VA (where the 4th Circuit is located) is just 90 miles South of DC via Interstate 95.

  • 111. samg68  |  July 28, 2014 at 1:26 pm

    NC stops defending its ban as a result of the ruling,

  • 112. DACiowan  |  July 28, 2014 at 1:30 pm

    Whoa! *happy dance*

  • 113. Randolph_Finder  |  July 28, 2014 at 1:55 pm

    Does that mean ME in North Carolina?

  • 114. samg68  |  July 28, 2014 at 2:06 pm

    No not yet, but with no opposition and the 4th circuit ruling it shouldn't take long for the ban to be struck down. In fact Cooper could not have been any less subtle in telling the judges that that's precisely what they should do.

  • 115. Zack12  |  July 28, 2014 at 2:09 pm

    No, all it means it the ban won't be defended by him anymore.

  • 116. BenG1980  |  July 28, 2014 at 6:52 pm

    Exactly. It only means the AG himself won't continue to defend the ban. North Carolina has a Republican governor who could always hire outside counsel to defend it on behalf of the state.

  • 117. Bruno71  |  July 28, 2014 at 1:40 pm

    Interesting move. While he acknowledges that SCOTUS will be the ultimate decider, he also seems to suggest that the streak of courts that have ruled against their arguments spells doom for those arguments.

  • 118. DACiowan  |  July 28, 2014 at 1:48 pm

    He's also aiming for the Governor's Mansion in 2016 and North Carolina is still majority opposition, so he wouldn't be doing this if he didn't see the clear writing on the wall that this will be over by next summer.

  • 119. BobxT  |  July 28, 2014 at 1:50 pm

    Somebody should have asked him – what will you do if a North Carolina county clerk begins to issue SS licenses tomorrow?

  • 120. Bruno71  |  July 28, 2014 at 2:07 pm

    The media seems rather ignorant and unaware of many of the in's and out's of recent marriage equality jurisprudence. It apparently didn't occur to them to ask. I have to wonder if his announcement might bolster a clerk like that.

  • 121. DACiowan  |  July 28, 2014 at 2:09 pm

    Paging Asheville or a university city, paging Asheville… 😉

    Asheville is seen as perhaps the most LGBT-inclusive city in the South, and is home to the churches that sued in favor of marriage equality.

  • 122. Bruno71  |  July 28, 2014 at 2:32 pm

    I'm sure the Asheville clerk is at least being asked to pull a Hillary Hall.

  • 123. davepCA  |  July 28, 2014 at 2:45 pm

    Some OT Asheville trivia – it is home to Moog Music, where Moog synthesizers are manufactured.

  • 124. davepCA  |  July 28, 2014 at 2:04 pm


  • 125. Zack12  |  July 28, 2014 at 1:57 pm

    Where the NC AG is dropping the defense, his South Carolina counterpart has made it clear he will do no such thing.

  • 126. Zack12  |  July 28, 2014 at 2:45 pm

    One more thing, John Roberts and his wife adopted their children.
    I wonder if he'll note the dissent which more or less states that adoptive parents aren't capable of being "real families."

  • 127. JayJonson  |  July 28, 2014 at 3:47 pm

    Roberts's allegiance is not to his children, but to the radical right that got George W. Bush to appoint him. He will do nothing to advance gay rights.

  • 128. robbyinflorida  |  July 28, 2014 at 2:58 pm

    North Carolina AG will not oppose the ruling in the 4th circuit.

  • 129. davepCA  |  July 28, 2014 at 3:24 pm

    The comments in that article about how the judge wants to broaden the decision & rule on both recognition of out-of-state marriages (the actual complaint filed), as well as allowing same sex couples to marry in the state, seems really encouraging. Especially since he says he doesn't need any additional briefs or arguments to allow him to do so….

  • 130. jdw_karasu  |  July 28, 2014 at 3:30 pm

    This would be an awesome one to get since he's a RR judge.

  • 131. OctaA  |  July 28, 2014 at 3:35 pm

    Well I'm hopeful that he will. As to him being appointed by Reagan so was Judge Friedman who struck down Michigan's ban back in March.

  • 132. JayJonson  |  July 28, 2014 at 3:49 pm

    Some caution re Feldman: He is a friend of Scalia. He is also a Roman Catholic convert (orginally Jewish, but married into a New Orleans Italian family). I think he will rule in our favor, but it will be reluctantly.

  • 133. Bruno71  |  July 28, 2014 at 5:33 pm

    Whenever people bring up his Scalia ties, he reminds people that he mentored Sotomayor at some point. I don't think he's a fire breathing Scalia clone. However, he did, apparently, in the original hearing diminish Loving as a factor for our side. I don't know if that's bad or not, but it's not totally encouraging. Winning that case would be a tremendous boon to our side, in a deep, deep south state.

  • 134. _Schteve_  |  August 2, 2014 at 11:22 pm

    Ginsburg is also a friend of Scalia. That alone doesn't tell us anything about how he will rule.

  • 135. debater7474  |  July 28, 2014 at 4:26 pm

    Hate to be the debbite downer, but the reporters who were in the hearing filed reports saying that the Louisiana judge was much more hostile to the plantiffs than the defendants. If anyone has any contradictory evidence, I would welcome it.

  • 136. RobW303  |  July 28, 2014 at 5:25 pm

    He already requested and received additional briefs responding to his broadening of scope. He just doesn't need the flood of hate-filled amicus briefs that has become a standard feature of these cases.

  • 137. OctaA  |  July 28, 2014 at 3:29 pm

    Just wondering if we are likely to get the first brief from the 5th circuit Texas case? I know the brief is supposedly due today, but Texas has been granted several extensions so far and I don't know if they have applied for another one?

  • 138. brooklyn11217  |  July 28, 2014 at 4:23 pm

    Docket review seems to indicate that it is still due today, but not filed as of now.

  • 139. brandall  |  July 28, 2014 at 5:16 pm

    I agree. Poorly written. It should have said he has all the information he needs and he is now ready to begin writing his decision. Not issue his decision as the article implies.

    I'm probably reading/scanning over 100 articles per day. Today, I read "since the Supreme Court stuck down gay marriage bans last June" and "today's 4th is the first circuit court to rule on marriage bans"….Sometimes I send them an e-mail correcting their poor journalism. And to think in 2010 when I would read EoT comments and I had no bloody idea what the heck you were talking about! /KeepingMyBrainActive

  • 140. Mike_Baltimore  |  July 28, 2014 at 7:48 pm

    The 'keeper of the meme' that 'gay marriage bans' were struck down goes mainly to the AP. It is an extremely rare AP article that even touches on ME that says differently.

    SCOTUS struck down Section 3 of DOMA, but it left Section 2 in place (mainly because Sect. 2 was not at issue in any case, partially because SCOTUS didn't want to strike down Sect. 2 in June 2013 [or never?], partially for who knows what reason).

    You have to wonder why reporters are reporting on state and federal court cases about state bans on ME if SCOTUS struck down "gay marriage bans". If the bans were struck down, why would state bans be an issue in court cases?

  • 141. Dr. Z  |  July 29, 2014 at 7:26 am

    Isn't the AP wire service just a vehicle for distributing local news coverage, with the consequence that their quality is all over the map for all news stories?

  • 142. Mike_Baltimore  |  July 29, 2014 at 11:01 am

    From what I understand, the AP does have some reporters on staff, but the majority of the reported news is from local reporters.

    So yes, the quality of the reporting tends to be all over the map.

  • 143. Ragavendran  |  July 28, 2014 at 9:43 pm

    They just met their deadline this time. Filed a 54-page opening brief.

  • 144. brooklyn11217  |  July 29, 2014 at 6:36 am

    Here is link:

    Haven't read it yet, but can there really be anything new at this point?

  • 145. StraightDave  |  July 29, 2014 at 6:52 am

    (This is the appeal in DeLeon v Perry in TX)
    I only got as far as the Table of Authorities when I had to sit down and take a break when I discovered that they had included Bowers v Hardwick but had somehow forgot to include Lawrence v Texas. I mean, it was only a TX case, so it couldn't be all that relevant or easy to remember.

    If this is how the rest of it's gonna go maybe I should just quit now.

  • 146. StraightDave  |  July 29, 2014 at 7:16 am

    After reading further, I now see that the Bowers reference was used to cite the dissent by Blackmun, but only in the context of complaining about why his dissent was a bad idea.

    That did not improve things at all.

  • 147. DACiowan  |  July 29, 2014 at 8:47 am

    Lawrence was the same Governor and (barely) the same Attorney General, even. But considering Governor Glasses' performance in the 2012 debates and AG Asshat's tactics so far in drawing out this case, I'm not surprised they "forgot" that scolding.

  • 148. Ragavendran  |  July 29, 2014 at 8:37 am

    Texas's best case scenario is that the Fifth Circuit hands down a five page ruling that Baker still controls and forecloses everything, and so they need not proceed to analyze the case any further. And I won't be surprised if they actually do that. It will even be a quick ruling, and if we're going to lose, lose quickly so the case can get to SCOTUS?

  • 149. brandall  |  July 29, 2014 at 8:45 am

    Just copy the Nayminor Niemeyer dissent from yesterday's Fourth and submit it. Much faster.

  • 150. brandall  |  July 28, 2014 at 3:30 pm

    AZ: Another loosing case. Defendant's Final motion in Connolly v Roche. Here's one paragraph. The rest is equally bad. All motions have been filed, so hopefully, this is a late August/Sept decision.

    "No constitutional principle requires Arizona to recognize relationships that do not implicate its overriding interest in marriage. “[W]here a group possesses distinguishing characteristics relevant to interests the State has the authority to implement, a State’s decision to act on the basis of those differences does not give rise to a constitutional violation.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001). Put differently, the Fourteenth Amendment does not require the State to treat two groups the same when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of [the] other group[] would not.” Johnson v. Robison, 415 U.S. 361, 383 (1974). The Constitution, therefore, does not mandate that the State redefine marriage to include same-sex couples."

  • 151. davepCA  |  July 28, 2014 at 3:40 pm

  • 152. bayareajohn  |  July 28, 2014 at 6:20 pm

    This of course turns a blind eye to things like fundamental rights, suspect classes, and indicia of animus which all change the outcome. Justice is supposedly blind, but this is stupid.

  • 153. Mike_Baltimore  |  July 28, 2014 at 8:14 pm

    Remember, Arizona effectively handed over all the state functions in these cases to the anti-equality 'law' (aka bigoted) group that calls itself 'Alliance Defending Freedom' (ADF). Arizona even deputized the attorneys as Asst. AGs (I hope for only the defense of these cases – if not, what hell will the group cause the state?). (These are attorneys who seem to place religious rites and beliefs above the US Constitution – reading the ADF web site, I see several references to religion and religious beliefs, but nothing about the US Constitution.)

    So whatever is written in a brief is not necessarily the state of Arizona's opinion, but the opinions and writings of the ADF.

  • 154. BillinNO  |  July 28, 2014 at 4:13 pm

    I read nothing new in this article; it is written (and published yesterday) as if to suggest that something new has occurred since Feldman said he needed no further briefings last week. I see no sources. Correct me if I'm wrong, but its kind of soft on journalism. I'd love to be wrong, so please tell me if I am.

  • 155. Retired_Lawyer  |  July 28, 2014 at 4:59 pm

    A few choice quotes from Bostic v. Schaefer:

    "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." at 41, after which the Court cites Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley.

    "If courts limited the right to marry to certain couplings, they would effectively create a list of preferred spouses, rendering the choice of whom to marry a hollow choice indeed." at 43

    "We therefore have no reason to suspect the 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, or is imprisoned." at 44.

    As for the effect of a referendum: "But the people's will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry." at 49.

    And the finishing touch: "Denying same-sex couples this choice [of spouses] prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance."

    Very satisfying reading material.

  • 156. sfbob  |  July 28, 2014 at 5:24 pm

    Yes, a very well-written opinion with lots to recommend and lots of good stuff to quote.

    And, off-topic, now that I'm at home instead of at work, I can actually post to this thread again.

  • 157. andrewofca  |  July 28, 2014 at 5:49 pm

    And this one: "The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life."

    It's so gratifying to hear, articulated by so many judges – what we've intuitively known to be a fundamental right.

  • 158. ranjitbahadur0  |  July 28, 2014 at 5:49 pm

    My personal favorite –

    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. Pg 61

    That should be printed on a flyer which should be stapled to the head of the next attorney who brings out the (at this point) tired defense of "States are all about responsible procreation"

  • 159. Margo Schulter  |  July 28, 2014 at 6:48 pm

    What Judge Niemeyer may not have considered, among other things, is the implications of the decision in Zablocki v. Redhail (1978), striking a statute requiring court permission for marriages involving people in arrears on child support. By Niemeyer’s logic, they could have reasoned: “Since when has there been a `fundamental right’ for people with child support obligations to enter a new marriage and possibly take on new obligations to forthcoming children? Would ordered liberty really be impossible without such an alleged `right’?”

    Actually, that argument seems a lot more “rational” than the idea, for example, that the Commonwealth of Virginia could simply decide that the “unplanned” children of heterosexual couples are worth protecting, but the planned or adopted children of same-sex couples aren’t. Windsor strongly suggests otherwise.

  • 160. Zack12  |  July 28, 2014 at 7:57 pm
    An article about the OK ruling. I don't think this will be as big of an issue as this writer makes it out to be but who knows?

  • 161. BenG1980  |  July 28, 2014 at 8:04 pm

    brandall posted a link to that article this morning on the "Seventh Circuit to hear arguments in two marriage cases on August 26" thread. Please read the replies over there, but generally both the article and the argument were panned.

  • 162. Ragavendran  |  July 28, 2014 at 9:09 pm

    Retired_Lawyer beat me to the quotes from the majority opinion, but I will, nevertheless, post a list of my favorite/decisive ones, which include almost all of the ones Retired_Lawyer posted, plus a few:

    (1) 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.

    (2) Citing Windsor, the Proponents urge us to view Virginia’s federalism-based interest in defining marriage as a suitable justification for the Virginia Marriage Laws. However, Windsor is actually detrimental to their position. […] Windsor does not teach us that federalism principles can justify depriving individuals of their constitutional rights; it reiterates Loving’s admonition that the states must exercise their authority without trampling constitutional guarantees. Virginia’s federalism-based interest in defining marriage therefore cannot justify its encroachment on the fundamental right to marry.

    (3) Americans’ ability to speak with their votes is essential to our democracy. But the people’s will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry. (followed by the infamous Barnette quote – "fundamental rights may not be submitted to vote; they depend on the outcome of no elections.")

    (4) We recognize that, in some cases, we owe “substantial deference to the predictive judgments” of the Virginia General Assembly, for whom the Proponents purport to speak. However, even if we view the Proponents’ theories through rose-colored glasses, we conclude that they are unfounded…

    (5) 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.

    (6) If Virginia sought to ensure responsible procreation via the Virginia Marriage Laws, the laws are woefully underinclusive.

    – [T]he 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.

    – [T]he 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.

    – Because same-sex couples and infertile opposite-sex couples are similarly situated, the Equal Protection Clause counsels against treating these groups differently.

    – [A] stable marital relationship is attractive regardless of a couple’s procreative ability.
    Allowing infertile opposite-sex couples to marry does nothing to further the government’s goal of channeling procreative conduct into marriage. Thus, excluding same-sex couples from marriage due to their inability to have unintended children makes little sense.

    (7) 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.

    And then the conclusion, of course.

  • 163. Steve  |  July 29, 2014 at 8:39 am

    Barnette really isn't quoted enough when it comes to idiots citing "the will of the people"

    This is a nice twist that's entirely new:
    "The Proponents’ argument assumes that individuals in same-sex relationships never have opposite-sex sexual partners, which is simply not the case. "

  • 164. Ragavendran  |  July 28, 2014 at 9:40 pm

    Is this the first time a court of law has held that committed same-sex couples can serve as positive role models for marriage, if allowed to marry?

    "[T]he 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."

  • 165. davepCA  |  July 28, 2014 at 10:16 pm

    I know that this phrasing has appeared in briefs for our side, to debunk the denigrating remarks from the opposition, but I think this may be the first time it has carried over into the text of court's ruling.

  • 166. SeattleRobin  |  July 28, 2014 at 10:21 pm

    No, another judge said something similar. I can't remember which case, but I think it was a state or Fed. district court judge. Thinking about it, I think it might have been in Oklahoma or Texas, but it's so difficult to remember with so many cases.

  • 167. haydenarwen  |  July 29, 2014 at 5:56 am

    I believe it was Judge Friedman

  • 168. Jen_in_MI  |  July 29, 2014 at 9:17 am

    I think you're correct – DeBoer was an actual full trial unlike most other ME cases since Prop 8, and Friedman was crystal clear about the quality of parenting in same-sex-partnership families being at least equal to the so-called "gold standard" of opposite-sex couples rearing children within the context of marriage.

  • 169. KahuBill  |  July 29, 2014 at 5:43 pm

    This line of thinking might have some legs with SCOTUS. Chief Justice Roberts and his wife have for whatever reason extended their family through adoption. Given the age of most members of SCOTUS and their spouses, it can reasonably be assumed that most are "infertile" in the reproductive sense. That is not to say that they (or same-sex couples) are "infertile" with respect to the love, comfort, commitment and help given to one another in marriage and to others as role models.

    That moves the discussion from "tradition" and the "Natural Law" theology/ideology of Scalia/Niermeyer to a more universal understanding or marriage and its benefits to the couples and the greater society.

  • 170. Fortguy  |  July 28, 2014 at 10:54 pm

    Am I being reasonable to assume that this will be a busy week with the plaintiffs in the remaining states in the 4th making motions for summary judgement in their respective cases?

  • 171. Ragavendran  |  July 29, 2014 at 1:39 am

    Depends. Judges in some cases that are stayed pending the outcome of Bostic at the Fourth Circuit might insist that a mandate needs to be issued in order to move forward. As we know, there is a good chance the mandate will be stayed either by the Fourth or the Supremes (when a motion to stay is filed by Schaefer/Rainey). It will be interesting to see if a clerk pulls off a Hillary Hall in any of the states in the circuit in the coming weeks.

  • 172. Ragavendran  |  July 29, 2014 at 3:58 am

    Excellent piece by the National Journal: [#Sarcasm]

    The U.S. Court of Appeals for the 4th Circuit in Virginia has struck down that state's same-sex marriage ban as unconstitutional, by a 2-1 vote.

    The decision Monday upheld a ruling by U.S. Judge Arenda L. Wright Allen in February that found the ban violates the U.S. Constitution's equal protection clause. In 2006, Virginia passed an amendment to the state Constitution declaring marriage to be between a man and a woman.

    "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," Judge Henry Floyd wrote in the appeals ruling.

    "The U.S. Constitution does not, in my judgment, restrict the States' policy choices on this issue. If given the choice, some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism."

    Federal judges in other states such as Colorado, Nevada, Utah, and Wisconsin have struck down similar state bans in the past year, with varying success. In Utah's case, the state ban could go all the way to the U.S. Supreme Court.

    (By the time you're reading this, the fatal error might have been corrected – I have written to the author of the article.)

  • 173. BenG1980  |  July 29, 2014 at 4:49 am

    OMG! Attributing Niemeyer's dissent to Floyd is not only sloppy, but completely contradicts the first sentence of the article.

  • 174. SeattleRobin  |  July 29, 2014 at 5:41 am

    They not only got the judges mixed up, but they seem to be confused over the difference between a ruling and a dissent.

    I also don't understand what they mean by "varying success" in that last part. It doesn't make any sense.

  • 175. BenG1980  |  July 29, 2014 at 6:51 am

    That's another good point. And why is Nevada even included in that list? The district court there did not strike down the state ban at all and Sevcik wasn't decided "in the past year."

  • 176. Retired_Lawyer  |  July 29, 2014 at 5:58 am

    A mistake like that from the National Journal appalls. More predictable were the errors in the NOM Blog: Brian Brown thinks the Judges of the Fourth Circuit are Justices, and calls, "on the state to appeal the decision to the US Supreme Court, " so he hasn't yet figured out that the Virginia Attorney General, representing the only Commonwealth official, Registrar Rainey, supports marriage equality.

  • 177. StraightDave  |  July 29, 2014 at 6:06 am

    Brian seems a bit overwhelmed by Armageddon, poor fellow.

  • 178. MichaelGrabow  |  July 29, 2014 at 7:22 am

    With varying success?

  • 179. StraightDave  |  July 29, 2014 at 7:53 am

    OT, but maybe not so much, after all:
    (a musical interlude)

    I recently ran across the following song from Mary Chapin Carpenter that seems to reflect a lot of what we see happening right now, though quite inadvertantly. Nevertheless, a miracle is indeed on the way, with the red-robed monks played by the courageous country clerks.
    Lyrics below, but the music is also quite nice on the ears

    "The Age of Miracles", (2010)

    The past comes upon you like smoke on the air
    You can smell it and find yourself gone
    To a place that you lived without worry or care
    Isn't that where we all once came from

    Green leaves and tall trees and stars overhead
    And the sound of the world through the screen
    But now you sleep with the covers pulled over your head
    And you never remember to dream

    You think you're just standing still
    One day you'll get up that hill
    In the age of miracles
    Is one on the way

    Greenland is melting, the west is on fire
    But don't ever stop praying for rain
    It's a curious place between hope and desire
    Different gods, but the prayer is the same

    And thousand-year storms seem to form on a breeze
    Drowning all living things in their paths
    And when a small southern town finds a rope in a tree
    We're all once again trapped in the past

    It seems we're just standing still
    One day we'll get up that hill
    In the age of miracles
    Is one on the way

    We can fly through space with the greatest of ease
    We can land in the dust of the moon
    We can transform our lives with the tap of the keys
    Still we can't shake this feeling of doom
    But I woke to find monks pouring into the streets
    Marching thousands strong into the rain
    Now if courage comes dressed in red robes and bare feet
    I will never be fearful again

    If I'm just standing still
    One day I'll get up that hill
    In the age of miracles, is one on the way

    Seems we're just standing still
    One day we'll ride up that hill
    In the age of miracles
    There's one on the way
    There's one on the way
    There's one on the way
    There's one on the way
    There's one on the way
    There's one on the way

  • 180. SeattleRobin  |  July 30, 2014 at 1:34 am

    I've been in love with Mary Chapin Carpenter for years. So she's never OT as far as I'm concerned. 😉

  • 181. brandall  |  July 29, 2014 at 7:56 am

    CO: Here's "Suther's Last Stand" petition to the CO Supreme Court. Filed late Sunday night.

    "if this Court does not exercise jurisdiction over this case and allows the Boulder Clerk to likewise continue issuing same-sex marriage licenses, then the rationale behind the stay in Brinkman would become suspect."

    Yes, yes. It is already suspect! Please Supreme Court, review the rules for stays on both the CO 6-point scale and the Federal 4-point scale.


  • 182. MichaelGrabow  |  July 29, 2014 at 8:11 am

    I called the Office of the Attorney General and asked whether it was clear if Mark Herring was going to appeal yesterday's ruling. The woman I spoke with seemed a bit caught off guard and said she didn't "know why he would do that". I agreed, but brought up that he previously said the best course of action was to have the district court's ruling stayed until the Fourth Circuit ruled and seemed to indicate the same should take place until the SCOTUS rendered a decision. She just said she couldn't elaborate and that the best bet was to keep an eye on their website where any such announcements would be posted.

  • 183. FredDorner  |  July 29, 2014 at 6:29 pm

    If I understand the court's reasoning correctly:

    1) Marriage is undeniably a fundamental right of all persons via the liberty clause of due process.

    2) Fundamental rights are subject to strict scrutiny and thus the burden shifts to the state.

    3) None of the state's claims constitute a narrowly tailored compelling interest.

    4) Thus the ban fails strict scrutiny without needing to directly address the scoping of the fundamental right, except to note that SCOTUS has always treated it as a general right to marry rather than a set of specific kinds of marriage or a right to marry someone from a set of specific appropriate spouses.

    Is that all correct, and it was strict scrutiny only?

    Did the court choose not to address the rational basis tests which the lower court found the ban failed to meet, merely because it didn't need to do so? Wouldn't the appeals court ruling be more bulletproof if it had done so?

  • 184. SeattleRobin  |  July 30, 2014 at 1:43 am

    I asked the same question after the 10th ruled the same way. They also only addressed it as a fundamental right and thus only used strict scrutiny. They didn't touch on equal protection or level of scrutiny.

    I can't specifically remember now how people answered me, but the upshot was that it's normal for an appeals court to take a single tactic and base the entire decision on it. It's generally the lower courts that cover all the arguments in detail so that if one fails on appeal another might be accepted.

    We're just used to seeing all these decisions from district courts so have become accustomed to all the I dotting and T crossing.

  • 185. FredDorner  |  July 30, 2014 at 10:39 am

    Thanks for the response, Robin. I can see why an appeals court wouldn't want to tread the same ground the lower court did given that they're affirming the decision. So I guess it makes sense to more fully flesh out the issues which the lower court noted but didn't really address.

    Presumably SCOTUS will look at the full court record if they choose to hear an appeal.

  • 186. Equality On TrialFurther &hellip  |  August 7, 2014 at 1:26 am

    […] Fourth Circuit struck down Virginia’s ban in Bostic, and its decision will bind district courts in states that fall […]

  • 187. Equality On TrialNorth Ca&hellip  |  August 7, 2014 at 1:27 am

    […] made the announcement shortly after the Fourth Circuit Court of Appeals struck down Virginia’s ban in Bostic v. Schaefer. That decision is binding on all states within the […]

  • 188. ohio bobcats&hellip  |  October 23, 2014 at 4:47 am

    ohio bobcats

    Equality On TrialFourth Circuit rules Virginia’s same-sex marriage ban unconstitutional » Equality On Trial

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