Comparing Two Federal Appellate Court Decisions on Same-Sex Marriage

On Monday, a panel of the U.S. Court of Appeals for the Fourth Circuit ruled that Virginia’s ban on same-sex marriages in that state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution. This decision follows closely on the heels of a decision by a panel of the U.S. Court of Appeals for the Tenth Circuit, which came to the same conclusion just over a month ago with respect to Utah’s same-sex marriage ban.

In this column, I examine the Fourth Circuit panel majority’s reasoning striking down Virginia’s ban and compare that with the reasoning employed by the Tenth Circuit panel that struck Utah’s similar law last month. I note that the majority opinions from both courts closely track one another, both in precedents cited and in reasoning. I also discuss the similarities and differences between the dissenting opinions and argue that these dissenting opinions likely indicate the focal points of these cases if and when they reach the U.S. Supreme Court.

Bostic v. Schaefer: The Fourth Circuit Strikes Down Virginia’s Same-Sex Marriage Ban

A panel of the U.S. Court of Appeals for the Fourth Circuit held Monday that Virginia’s constitutional and statutory bans on same-sex marriage are unconstitutional. In a 2-1 decision, the panel quickly disposed of the arguments put forth by the proponents of the law, making it the second federal appeals court this summer to rule against a state’s same-sex marriage ban.

The panel first considered the threshold question whether the plaintiffs had judicial standing to bring their claims in federal court at all. Finding that they had, the court turned to a second preliminary question: whether the U.S. Supreme Court’s summary dismissal of a case in 1972 “for want of a substantial federal question” precluded the instant case. That prior case, Baker v. Nelson, involved an appeal from the Minnesota Supreme Court upholding a ban on same-sex marriage. Summary dismissals are considered to be rulings on the merits, but they do not carry the same precedential value as an opinion after briefing and oral arguments. They do, however, prevent lower courts from “coming to opposite conclusions on the precise issues presented and necessarily decided by those actions” except “when doctrinal developments indicate otherwise.” The majority found that the Supreme Court’s decisions in Lawrence v. Texas, in 2003, and United States v. Windsor, a decade later, constituted such doctrinal developments. Thus, it concluded, Baker was no longer binding.

The panel then turned to the opponents’ Fourteenth Amendment arguments. First, it considered the appropriate level of constitutional scrutiny: rational basis review or some form of heightened scrutiny. The laws’ opponents argued that the ban infringes on their right to marriage, which the Supreme Court has recognized as a fundamental right subject to strict scrutiny. The proponents agreed that marriage is a fundamental right, but argued that the fundamental right to marriage does not encompass a right to same-sex marriage and thus that the law triggers only rational basis review. The panel found that the Supreme Court’s precedents on the fundamental right to marriage do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry”; rather these seminal cases speak of “a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” Thus, the panel held, the right to marriage encompasses the right to marry the person of one’s choosing and therefore includes the right to same-sex marriage. Finding that the law implicated the fundamental right of marriage, the panel applied strict scrutiny. Under this level of review, the government must show that the laws in question are narrowly tailored and necessary to further compelling state interests.

The law’s proponents put forth five interests that they argued justified the laws: “(1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation, and (5) promoting the optimal childrearing environment.” Even assuming that each of these reasons was indeed compelling, the panel still found that the laws prohibiting same-sex marriage were not sufficiently narrowly tailored to further any of these interests.

In reaching its conclusion that Virginia’s ban on same-sex marriage violates the Constitution, the panel notably placed great weight on the Supreme Court’s language in Lawrence and Windsor recognizing the equal legitimacy of gay couples’ intimate relationships.

Comparison to the Tenth Circuit’s Decision in Kitchen v. Herbert

At the end of June, a panel of the U.S. Court of Appeals for the Tenth Circuit issued a similar ruling striking down Utah’s same-sex marriage ban. Verdict co-columnist Joanna Grossman discusses that decision here. In that case, the majority also found that the plaintiffs had standing to challenge the state law and that Baker v. Nelson was no longer binding authority.

The law’s proponents provided four allegedly compelling state interests: “(1) fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children; (2) children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home; (3) ensuring adequate reproduction; and (4) accommodating religious freedom and reducing the potential for civic strife.”

The Tenth Circuit panel’s reasoning was very similar to that of the Fourth Circuit panel, albeit more directly critical of the law. The panel questioned the state’s purported interests, stating that “each of the appellants’ justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.” However, even assuming the interests are compelling, the panel found the argument “that procreative couples must be channeled into committed relationships in order to promote the State’s interests in childbearing and optimal childrearing . . . fails because the prohibition on same-sex marriage has an insufficient causal connection to the State’s articulated goals.”

I found the Fourth Circuit’s reasoning somewhat more thoroughly explained and supported as to the question whether same-sex marriage is encompassed in the fundamental right to marriage, particularly in that it more directly relied on Loving v. Virginia to reach its conclusion.

The Dissenting Opinions

Judge Paul Kelly concurred in part and dissented in part with the Tenth Circuit panel majority. He concurred only with respect to the issue of standing and dissented with respect to the treatment of Baker v. Nelson as no longer binding, the conclusion that same-sex marriage is encompassed within the fundamental right to marry (and therefore he concluded that under the rational basis test, the law should be upheld).

Judge Paul Niemeyer dissented from the Fourth Circuit panel’s majority opinion and argued that the fundamental right to marry does not include a right to marry someone of the same sex.

While Baker v. Nelson is certainly important and a determination of its applicability may ultimately affect the outcome of the issue if it reaches the U.S. Supreme Court, the scope of the fundamental right to marry is at the crux of both cases, as the two dissents illustrate.

It seems to me disingenuous to deny the strong parallels between these cases and Loving. The dissents both contend that the fundamental right to marry is distinguishable from a right to marry someone of the same sex, and that the latter is a “new” right that departs from history and tradition. Yet at the same time, they deny that Loving involved a similar  departure, even though marriage had historically been denied to interracial couples.

To attempt to characterize same-sex marriage as a category separate and apart from marriage as an institution is to ignore exactly what it is that gay couples seek—recognition of their relationships as equal to those of straight couples. As Justice Kennedy wrote in Lawrence, and as quoted by the Tenth Circuit majority, the drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”