Constitutional Law

Divided 4th Circuit panel strikes Virginia same-sex marriage ban


Applying strict scrutiny, a divided three-judge federal appeals court panel ruled Monday that a district court judge in Virginia got it right earlier this year when she struck the state’s ban on same-sex marriage as unconstitutional.

In a 2-1 ruling (PDF) on Monday, the 4th U.S. Circuit Court of Appeals said the ban impermissibly interferes with the fundamental constitutional right to marry, according to the National Law Journal (sub. req.), Politico and USA Today.

“Neither Virginia’s federalism-based interest in defining marriage nor our respect for the democratic process that codified that definition can excuse the Virginia Marriage Laws’ infringement of the right to marry,” wrote Judge Henry Floyd for the majority. “We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”

However, a dissenting judge on the Richmond-based appeals court said the ban should be upheld under a rational-basis analysis.

Judge Paul Niemeyer pointed to what he described as “deep, fundamental differences between traditional and same-sex marriage,” as he wrote that “the plaintiffs and the majority err by conflating the two relationships under the loosely drawn rubric of ‘the right to marriage.’”

The Associated Press, the Los Angeles Times (sub. req.), the Richmond Times Dispatch, the Virginian-Pilot and the Washington Post (reg. req.) also have stories.

Related coverage:

ABAJournal.com: “10th Circuit rules Utah gay-marriage ban is unconstitutional”

ABAJournal.com: “10th Circuit strikes Oklahoma ban on same-sex marriage”

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