A federal appeals court panel in Virginia became the second one this summer to strike down a state ban against same-sex marriage Monday, making it more likely that the Supreme Court will settle the issue as early as next year.
The three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond ruled 2-1 that gay men and lesbians have a constitutional right to marry that is paramount to state marriage laws. The ruling affirmed a district judge's decision rendered in February.
"We recognize that same-sex marriage makes some people deeply uncomfortable," said Judge Henry Floyd, originally appointed a district judge by George W. Bush and elevated to the circuit court by President Obama. "However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws."
The circuit court has jurisdiction over Virginia, Maryland, West Virginia, North Carolina and South Carolina. The panel's decision will not take effect until at least Aug. 18 while circuit clerks defending the state's ban decide whether to appeal to the full appellate court or the Supreme Court.
Like the first appeals court panel to rule on the issue this year in Utah and Oklahoma, the three-judge panel was deeply divided. But Floyd, considered the swing vote, came down on the side of same-sex marriage. Judge Roger Gregory, originally appointed by Bill Clinton in 2000, joined the majority. Presiding Judge Paul Niemeyer, a George H.W. Bush nominee, dissented.
"I do strongly disagree with the assertion that same-sex marriage is subject to the same constitutional protections as the traditional right to marry," Niemeyer said. "I would reverse the district court's judgment and defer to Virginia's political choice in defining marriage as only between one man and one woman."
The Virginia case, which involves two couples seeking to marry in the state and two couples seeking to have their marriages from other states recognized, now gives the Supreme Court a choice. It can hear the Utah or Oklahoma cases from the 10th Circuit, wait for Virginia's to be appealed, or defer action even longer for other gay marriage cases scheduled for appellate hearings in August, September and beyond.
One way or another, legal experts agree the high court likely will accept a case for its 2014 term beginning in October or the 2015 term that follows. Niemeyer joked about that during oral arguments in May, calling his courtroom a "way-station" en route to Washington.
Because Virginia's new Democratic attorney general, Mark Herring, had refused to defend the state's gay marriage ban, that task was left to circuit court clerks from two counties. Brian Babione, senior counsel at Alliance Defending Freedom, which represented one of the clerks, said they were considering their options.
"In his dissent, Judge Niemeyer correctly noted that 'there is no fundamental right to same-sex marriage, and there are rational reasons for not recognizing it,'" Babione said.
The justices paved the way last year for what has become an unbroken string of federal and state court victories for gay marriage proponents. They ruled 5-4 that the federal government cannot deny benefits to legally married same-sex couples without violating the equal protection and due process clauses of the Constitution.
Since then, district judges in 18 states have struck down bans on gay marriage or ruled that marriages performed elsewhere must be recognized in their states. Only the Utah, Oklahoma and Virginia cases have been heard by appeals courts so far.
"The 4th Circuit has affirmed that equality is not just a California value or a New York value — it's a fundamental American value," said Chad Griffin, president of the Human Rights Campaign, the nation's leading gay rights organization.
The 10th Circuit appeals court includes Utah, Oklahoma, Kansas, Colorado and Wyoming, as well as New Mexico, where same-sex couples already can marry. The precedent set by the Utah and Oklahoma rulings applies to all those states, but the panel blocked them from taking effect pending appeal. Utah Attorney General Sean Reyes has said he will seek seek Supreme Court review.
Other appellate court cases involving marriage bans in Idaho, Indiana, Kentucky, Michigan, Nevada, Ohio, Tennessee and Wisconsin will be argued in August and September. Appeals also are pending from Arkansas, Texas and Colorado.
The high court ruled last June that the federal government must recognize legal same-sex marriages, and it cleared the way for California to become the 13th state where gay men and lesbians could marry. Since then, six other states have legalized gay marriages by legislative action or court order — New Jersey, New Mexico, Illinois, Hawaii and, most recently, Pennsylvania and Oregon.
More than 70 lawsuits are pending in all 31 states that still have prohibitions. Some raise specific issues such as divorce or death benefits.
The Virginia case stands out for at least three reasons. It comes from the South, a region that has yet to embrace gay marriage. The state attorney general is the first at the appellate level to refuse to defend such a law since the California case that made it to the Supreme Court last year. And the lawyers for the original gay and lesbian plaintiffs, Theodore Olson and David Boies, are the same ones who won gay marriage rights in California last year.
"Today's decision stands as a testament that all Americans are created equal, and denying loving gay and lesbian couples the opportunity to marry is indefensible," Olson said.
The original plaintiffs are Timothy Bostic and Tony London, who were denied a marriage license in Norfolk, and Carol Schall and Mary Townley of Richmond, whose marriage in California isn't recognized by Virginia. They have been joined by the plaintiffs in another Virginia case, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, who seek to represent all gay and lesbian couples in the state.
Judge Floyd's ruling left little doubt about where the panel majority stands on their right to marry.
"The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual's life," the court majority said. "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."