4th Circuit: Marriage ban invalid

Bostic4thCirMonday afternoon, a panel of the 4th Circuit Court of Appeals agreed with the lower court’s ruling that Virginia’s marriage equality ban is unconstitutional. The 2-1 decision (pdf) represents the next step in the march to the U.S. Supreme Court. The only question is how we get there. The defendants could appeal for a hearing by the full court or go directly to SCOTUS, the latter having been the choice made by Utah.

I’ve no inside track on the strategy the defendants will take – even though I happened to have been the one to break the news of the 4th Circuit’s ruling to one of them: Norfolk Clerk of Court George Schaefer. It just so happens that I called him to ask about the next step – and reached him before his attorneys did. A decision on that will be made in the coming days – and as soon as I know, I’ll pass it along.

The final paragraph of the ruling – click on the picture to enlarge – captures a lot in a few words. As it turns out, instead of discussing the McDonnell case on WVEC as planned, we ended up talking about the marriage equality ruling. (As soon as the video is posted, I’ll update this post with a link.) Obviously, it is a topic of great importance to me.

Since the Windsor ruling, no court has ruled in favor of these marriage bans. Add the 4th Circuit – which covers VA, MD, NC, and WV – to the list.

Jim Hoeft and I will be on WVEC Thursday at 5:30pm to discuss the McDonnell case – assuming there’s no other big news of the day to talk about 😉

UPDATE: You can watch the video from Monday’s show here.


11 thoughts on “4th Circuit: Marriage ban invalid

  1. You did a great job on WVEC, Vivian. I’m always struck by how much more intelligent and knowledgeable you are compared to everyone else who has passed through Virginia’s political blogosphere. For instance, you clearly know more about the history and purpose of the Fourteenth Amendment than most.

    By contrast, while Jim was lamenting that the federal courts were redefining marriage and really it would be better for us to have some other form of unions that approximated the legal effects of marriage without using that particular name, I couldn’t help screaming at my television that the Marshall-Newman amendment also expressly prohibited us from “creat[ing] or recogniz[ing] another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

    That Jim is apparently unaware that the amendment he supports also foreclosed upon the compromise position that he also supports underscores why it was necessary for the federal judiciary to intercede on behalf of those Virginians against whom the amendment discriminated. Even among Virginians whose pro-amendment voters were not driven by irrational animus, too many voters simply did not understand the amendment’s scope and impact. It’s irrelevant what percentage of voters pulled the lever to amend the constitution in 2006 when–as Jim demonstrates–they didn’t know or understand what they were voting for.

    1. The question is, why should the government assign ANY rights or benefits to a marriage? Why is it any of the government’s business who marries whom?

      1. Not only is that not the question, but it has not been the question in Western Civilization literally for two thousand years at least. Once we decided that the most logical thing to do with the property of someone who died without a will was to convey that property to his surviving family members, it was necessarily a foregone conclusion that the law would need some way of recognizing who was a familial relation to whom.

          1. What a spectacular idea. Why don’t we strike every reference to marriage from our state and federal codes, repeal our intestacy statutes and instead impose a law requiring that every single American over the age of 18 get a will. We’ll incentivize it with a minor tax penalty that is assessed by the IRS each tax year that you can’t demonstrate that your will is up-to-date. If you can’t afford to pay for a lawyer to draft your will, we’ll offer some modest but important federal subsidies. The bar in each state can function as a point of referral–an exchange, if you will–that connects each consumer with an attorney who can meet his needs in devising his specific property.


    2. Silence – thanks for your kind words. But I’m afraid I didn’t even think to mention that Marshall-Newman prohibited civil unions 😦 (My answer should have been, “So you agree then, Jim, that Virginia’s ban should be overturned because it prohibits civil unions.” Or maybe, “Not even the federal government believes civil unions are equivalent to the rights and benefits of marriage.” Oh well.)

      I guess my brain has so thoroughly dismissed the separate-but-equal BS of civil unions that I just don’t even think about them anymore.

      1. Oh, I just figured that you might be trying to avoid making the dialogue an unnecessary personal confrontation between the two of you. I try to give Jim the benefit of the doubt when he says that he’d be willing to decouple the civil rights attendant upon marriage from the label. I think that would still run afoul of the Equal Protection clause for the reason you just alluded to, but as we all learned from his little “exclusive” during the Kellam campaign, Jim’s lack of understanding about the finer nuances of the law sometimes obscures his otherwise good intentions.

  2. > Why don’t we strike every reference to marriage from our state and federal codes,

    I have no problem with that.

    > … repeal our intestacy statutes…

    Why? If you die w/o a will, your estate goes to you biological or legally adopted children, and to the biological or adoptive parents thereof.

    > … and instead impose a law requiring that every single American over the
    > age of 18 get a will.

    Why? Do you always need a law to tell you to do what you should?

    1. Let me give you an example. My best friend has a six year old son. We’ll call him “Adam.” Adam was born to his father and mother, who divorced when Adam was two years old. His father since graduated from medical school a year later, and because he has no assets but a whole lot of debt, he does not yet have a will. Both of his parents have since remarried, and his mother is currently pregnant. Neither of Adam’s biological parents have since gotten over their custody battle, and they’re still adjusting to the idea of co-parenting. Consequently, I am Adam’s favorite person because he trusts that the boundaries I establish are not arbitrary but are there for his safety, but I’m extraordinarily patient with him while he’s within those boundaries. I also take him to museums in my limited free time and play with him because I believe that a healthy imagination is important.

      . . . This isn’t an example of how intestacy works, this is just me demonstrating that I already have one six-year-old in my life, Warren, so I’ve hit my quota on people who start every sentence with “why? why?” because they don’t how the world works. If you can’t figure out on your own why human beings have organized their laws like this since before the birth of Christ, it is not my job to tell you.

      1. Human being since before the birth of Christ have NEVER had same-sex marriage. Perhaps there is a reason for that which YOU do not understand.

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