Another circuit rules for same-sex marriage (UPDATED)

UPDATE 6:10 p.m.  The attorney general of North Carolina said at a news conference following the ruling discussed below that his office would no longer defend his state’s ban on same-sex marriage, conceding that the Fourth Circuit decision had taken away all of the arguments that could be made for the ban.  However, in another state in the Fourth Circuit, South Carolina, the attorney general said his office would continue the defense of that state’s ban.

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Continuing the year-long, so far uninterrupted trend of court rulings against states’ bans of same-sex marriage, the U.S. Court of Appeals for the Fourth Circuit on Monday nullified the Virginia prohibition; the panel divided two to one.  This was the second federal appeals court to add its ruling to a lengthy string of district court and state court decisions reaching the same result.

Meanwhile, in Florida, a gay couple sought to move a test case directly to the state supreme court, bypassing a middle-level appeals court.  Their lawyers argued that “there is a need to bring finality to this issue on a statewide basis.”

The federal appeals court ruling in the Virginia case is highly symbolic, because that is the state whose long-standing ban on mixed-race marriages was struck down by the Supreme Court forty-seven years ago, in Loving v. Virginia.

Many judges have relied upon that precedent in ruling against state bans on same-sex marriage, and the Supreme Court  commented favorably on that ruling a year ago in June when it struck down a federal law denying marital benefits to same-sex couples who were already legally married (United States v. Windsor).  The Windsor decision itself has also contributed heavily to recent lower court opinions against the state bans, even though that ruling did not deal directly with the validity of such laws.  It was cited repeatedly in the new Fourth Circuit ruling.

The Fourth Circuit did not order a delay in its ruling, saying only that the decision would go into effect after the usual short period before it issues a formal order to implement it (a mandate).  However, the county clerks who were defending the marriage ban in Virginia have a right to seek review before the en banc Fourth Circuit, and that would delay the effective date.  The clerks stepped in to defend the state marriage laws when state officials chose not to do so.

The panel majority declared unconstitutional both the state ban on gays and lesbians who want to get married, and a separate ban on state recognition of same-sex couples who already were married elsewhere but live in Virginia.

The majority said that all of the arguments made by the supporters of the Virginia marriage laws fail, “and the laws cannot survive strict scrutiny” — the most demanding constitutional test for a law.   Circuit Judge Henry F. Floyd wrote the main opinion, joined by Circuit Judge Roger L. Gregory.  Circuit Judge Paul V. Niemeyer dissented.  Judge Niemeyer and a dissenting judge on the U.S. Court of Appeals for the Tenth Circuit are the only federal judges who, in the past year, have voted to uphold a state’s same-sex marriage ban.

The decision probably will have a wider impact beyond Virginia, because three other states located in the Fourth Circuit’s geographic area — North Carolina, South Carolina, and West Virginia — have similar bans.  Challengers have been filed to the bans in North Carolina and West Virginia.

As of now, nineteen states and Washington, D.C., permit same-sex marriage.  Although there have been more than two dozen rulings in the past year against state bans, most of those have been put on hold while appeals go forward.  The only places where such a ruling has not postponed same-sex marriages are the states where government officials gave up a defense of the ban and no one else was found to have a right to make the defense.

The Supreme Court has twice issued orders to delay same-sex marriages after lower court decisions; both of those orders came in test cases from Utah.

Other federal appeals courts are reviewing challenges to state bans after trial court judges nullified the prohibitions.  Those cases are on fast tracks for decisions, so there is likely to be a variety of cases from which the Supreme Court could choose when it is ready to consider the constitutionality of state bans — perhaps in the new Term that opens in October.

Rulings by the Tenth Circuit, in cases from Oklahoma and Utah, have been out in front in the movement toward the Supreme Court, but now the Fourth Circuit will join the competition to be at the Court first.  The Justices are not likely to act on any new cases until after the new Term has actually opened; they are in summer recess now.

Virginia’s constitutional amendment to ban same-sex marriages was first adopted by the state legislature in two succeeding sessions — in 2005 and 2006 — and was then ratified by state voters in 2006.  The margin of approval was fifty-seven percent to forty-three percent.  Other state laws similarly impose such a ban, both on celebrating same-sex marriages and in recognizing existing same-sex marriages.  All of those restrictions were nullified by the new decision.

Judge Floyd’s opinion for the majority followed a now-familiar pattern:  first, finding that the same-sex couples had a right to pursue their challenge (“standing to sue”), then declaring that the Supreme Court had not already resolved the constitutional issue by a summary, one-line ruling against same-sex marriage in 1972, and, finally, applying “strict scrutiny” as the test of each of the justifications suggested for the ban by the supporting county clerks, finding each claim to be constitutionally insufficient.