7/28/2014 

WASHINGTON – In a historic first, today the U.S. Court of Appeals for the Fourth Circuit issued a sweeping ruling affirming the February 2014 decision from U.S. District Judge Arenda L. Wright Allen in Bostic v. Schaefer that the amendment to the Virginia Constitution barring marriage for same-sex couples violates the U.S. Constitution, and further determining that strict scrutiny review dictates that marriage bans are unconstitutional on the basis of both equal protection and due process.  In a 2-1 decision authored by Judge Henry F. Floyd and joined by Judge Roger L. Gregory, the court declared in its ruling that:

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. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. 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.  

On page 39 of the decision, the majority opinion confirmed that, “[u]nder both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny.”

 “The Fourth Circuit has affirmed that equality is not just a California value, or a New York value – it’s a fundamental American value,” said Human Rights Campaign (HRC) president Chad Griffin. “No state should have the right to enforce this type of discriminatory amendment that singles out thousands of loving couples for unfair treatment, simply because they are gay or lesbian.  As we’ve seen with an undefeated string of federal court rulings over the last year from judges appointed by both Democrats and Republicans, the U.S. Constitution is on the side of equality and justice for all Americans – not just some.” 

Today’s ruling applies to the entire Fourth Circuit, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia.  This is the third appeals court ruling striking down state marriage bans in just one month.  Last week the U.S. Court of Appeals for the Tenth Circuit struck down Oklahoma’s same-sex marriage ban.  The Tenth Circuit issued a similar decision on June 25th in a case out of Utah, ruling that statutes or amendments to state constitutions banning marriage equality are unconstitutional.  Both rulings were stayed and the Utah Attorney General has already indicated the state will appeal its decision to the U.S. Supreme Court.

The defendants in Virginia now have the option to request an en banc appeal before the full bench of the Fourth Circuit, which decides whether or not to grant that request. They may also bypass an en banc session and appeal directly to the U.S. Supreme Court.

In July of 2013, Tim Bostic and Tony London went to the Norfolk Circuit Court Clerk’s office to obtain a marriage license, but they were turned away because of Virginia’s ban on marriage equality.  Soon after, the couple filed a lawsuit in the U.S. District Court for the Eastern District of Virginia. They are joined in the case by Mary Townley and Carol Schall, whose legal California marriage isn’t recognized by their home state of Virginia.  The plaintiffs are represented by attorneys Ted Olson and David Boies on behalf of the American Foundation for Equal Rights (AFER). Olson and Boies also successfully represented the plaintiffs in Hollingsworth v. Perry challenging California’s Proposition 8 – a case that was ultimately heard by the U.S. Supreme Court.

In March of 2014, attorneys from Lambda Legal and the ACLU were permitted to intervene in the Bostic case on behalf of all Virginia’s same-sex couples, including their clients in another case challenging the state’s marriage ban – Harris v. Rainey.

A three-judge panel of the Fourth Circuit heard argument in this case on May 13, 2014.  Judge Paul V. Niemeyer was appointed to the Fourth Circuit by President George H.W. Bush in 1990.  Judge Roger L. Gregory was first appointed by President Bill Clinton in 2000, and later re-appointed by President George W. Bush in 2001, making him the first African-American judge to serve on the Fourth Circuit.  Judge Henry F. Floyd was appointed in 2011 by President Barack Obama. 

There are over 70 court cases challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico.  Cases from ten other states are currently pending before four federal appeals courts.  The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction.  In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in court.  Since the Supreme Court’s historic marriage rulings last year, there have been 19 consecutive federal court decisions that bans on marriage equality are unconstitutional.  These rulings have come from judges appointed by both Democrat and Republican presidents.

The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal. 

Cases pending before federal appeals courts:

• DeLeon v. Perry, Texas [Argument date at the Fifth Circuit not set]
• Tanco v. Haslam, Tennessee [Arguments at the Sixth Circuit set for August 6]
• Bourke vs. Beshear, Kentucky [Arguments at the Sixth Circuit set for August 6]
• Obergefell v. Kasich, Ohio [Arguments at the Sixth Circuit set for August 6]
• Henry v. Himes, Ohio [Arguments at the Sixth Circuit set for August 6]
• DeBoer v. Snyder, Michigan [Arguments at the Sixth Circuit set for August 6]
• Wolf v. Walker, Wisconsin [Arguments at the Seventh Circuit set for August 26]
• Baskin v. Bogan, Indiana [Arguments at the Seventh Circuit set for August 26]
• Sevcik v. Sandoval, Nevada [Argument at the Ninth Circuit set for September 8]
• Latta v. Otter, Idaho [Argument at the Ninth Circuit set for September]
• Jackson v. Abercrombie, Hawaii [Argument at the Ninth Circuit set for September 8]
• Burns v. Hickenlooper, Colorado [Argument date at the Tenth Circuit not set] 

Cases petitioned or likely to be petitioned to the U.S. Supreme Court:

• Kitchen v. Herbert, Utah [Tenth Circuit struck down marriage ban June 25]
• Bishop v. United States, Oklahoma [Tenth Circuit struck down marriage ban July 18]
• Bostic v. Schaefer, Virginia [Fourth Circuit struck down marriage ban July 28]

Same-sex couples can legally marry in 19 states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman.  For more information on this and other marriage equality cases across the country, visit www.americansformarriageequality.org

The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

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