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.
John Eastman, chairman of the board of directors of the National Organization for Marriage, which opposes same-sex marriage, said this decision won't change much in Virginia or elsewhere. "It's not a major setback—it was not unexpected, given the panel and the raw politics that are playing out here. Everybody in the country fully expects that this thing is not going to be fully resolved until it makes its way to the Supreme Court."