Virginia Is for Gay Lovers

"[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.

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."

Gay marriage has historically been divisive in Virginia—the state has had an uncommonly contentious battle over the issue. "Virginia has a very clear pattern of repeated efforts by the legislature to ban same-sex couples from getting married," said James Esseks, the director of the ACLU's Lesbian, Gay, Bisexual, and Transgender Project. "There are few—if any—states in America that have a history of banging on that drum quite as many times as Virginia."

This has sometimes shown up in subtle ways. This spring, married same-sex couples in the United States had to file federal taxes together for the first time following the Supreme Court's ruling in United States v. Windsor. While many states accepted gay couples' unions for tax purposes in order to simplify their filing process, Virginia didn't, requiring same-sex couples to follow a six-page document of special guidelines and file multiple returns.

Same-sex marriage advocates are understandably eager to declare this a landmark civil rights case. "I think that it's really quite appropriate that this decision today comes from Virginia," Esseks said. "The foundation for the fundamental right to marry was created in Loving v. Virginia in 1967—Virginia is where the fundamental right to marry was born."

And a lot has changed in 47 years: In Loving, the state ardently defended its ban on interracial marriage, while in Bostic, Virginia's attorney general refused to oppose the plaintiffs in the case.

"It's an utter abdication of duty, not defending a statue duly enacted by the people of the state of Virginia, and to do it on the grounds that there’s no argument to be made," Eastman said. "That’s patently false."

Esseks sees the attorney general's decision in a more symbolic light. "It's a big contrast—it shows that Virginia doesn't want to get it wrong again," he said.