Virginia Is for Gay Lovers

On Monday, a federal court ruled the state's same-sex-marriage ban unconstitutional—the latest to be overturned. What makes the decision in the Old Dominion different?

"[T]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

This is a line from the famous 1967 Supreme Court case Loving v. Virginia, which established interracial couples' right to marry. On Monday, the Fourth Circuit Court of Appeals recalled Loving in its ruling in Bostic v. Schaefer, which affirmed a lower court's ruling striking down Virginia's constitutional ban on same-sex marriage.

In his opinion for the 2-1 majority, Judge Henry F. Floyd delivered a strongly worded argument for the rights of same-sex couples. "We recognize that same-sex marriage makes some people deeply uncomfortable," he wrote. "However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws .... Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance."

Judge Paul Niemeyer, who dissented in the Fourth Circuit's decision, argued that the majority's ruling failed to account for the history of the "right to marry" in America. "[S]ame-sex marriage is a new notion that has not been recognized for most of our country’s history,” he wrote. "In holding that same-sex marriage is encompassed by the traditional right to marry, the majority avoids the necessary constitutional analysis, concluding simply and broadly that the fundamental 'right to marry'—by everyone and to anyone—may not be infringed."

The question of "rights" is exactly what makes this decision significant, said Claire Guthrie Gastañaga, the executive director of the American Civil Liberties Union of Virginia. Unlike some other cases on same-sex-union laws, Bostic examines whether couples have a fundamental right to marriage. The judges applied strict scrutiny, the highest standard of legal review, under which the government has to show a compelling interest for limiting the plaintiffs' ability to marry. "This court says very clearly: This is a fundamental right, and the government just didn't meet their burden of explaining why there should be a [ban on] same-sex marriage," Gastañaga said.

In his dissent, Niemeyer argued that applying strict scrutiny led to a decision that's far too sweeping. "If the fundamental right to marriage is based on 'the constitutional liberty to select the partner of one’s choice,' as [the plaintiffs] contend, then that liberty would also extend to individuals seeking state recognition of other types of relationships that States currently restrict, such as polygamous or incestuous relationships," he wrote. Perhaps the government's interests would withstand challenges to these laws, he said, but "today’s decision would truly be a sweeping one if it could be understood to mean that individuals have a fundamental right to enter into a marriage with any person, or any people, of their choosing."

This summer, courts have struck down same-sex marriage bans in other states, including Arkansas, Colorado, Florida, Idaho, Kentucky, Oklahoma, Pennsylvania, Utah, and Wisconsin. But same-sex-marriage advocates say the ruling in Virginia is distinctive in several ways.

For one thing, it's the first-ever ruling on a class-action suit for same-sex marriage. The original plaintiffs were a lesbian couple and a gay couple—the case is named for one of the partners, Timothy Bostic. When the Fourth Circuit ruled in Bostic, it combined this case with another case, Harris v. Rainey, which represented another set of plaintiffs and "14,000 couples across Virginia who wanted to get married or who are married and want their marriage to get recognized," Gastañaga said.* If the ruling stands, it may affect gay-marriage bans in the other states under the jurisdiction of the Fourth Circuit: North Carolina, South Carolina, and West Virginia.*

That might not happen for a while, though—if it happens at all. The ruling institutes a 21-day delay before implementation, during which time the defendants in the case may request a stay of the ruling. If a stay is granted, the ruling may not go into effect until the Supreme Court decides whether it wants to take up the issue of same-sex marriage in a future slate of cases.

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Emma Green is the assistant managing editor of, where she also writes about religion and culture.

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