(Photo: Diego M. Radzinschi/NLJ)
A divided federal appeals court Monday ruled that Virginia’s ban on same-sex marriage is unconstitutional.
The U.S. Court of Appeals for the Fourth Circuit, in a 2-1 decision, affirmed a lower court ruling striking down the marriage ban and a separate state law barring recognition of same-sex marriages legally performed elsewhere.
“Because we conclude that Virginia’s same-sex marriage bans impermissibly infringe on its citizens’ fundamental right to marry, we affirm,” Judge Henry Floyd wrote for the majority. He was joined by Judge Roger Gregory.
Floyd wrote at the end of the Monday’s ruling:
“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.”
Judge Paul Niemeyer dissented, writing that he would “defer to Virginia’s political choice in defining marriage as only between one man and one woman.”
The Fourth Circuit is the second federal appeals court to rule on constitutional challenges to state bans on same-sex marriage. In late June, a divided panel of the U.S. Court of Appeals for the Tenth Circuit struck down Utah’s ban on same-sex marriage. This month, the Tenth Circuit struck down Oklahoma’s ban.
The state of Utah is appealing the Tenth Circuit’s decision directly to the U.S. Supreme Court.
Gibson, Dunn & Crutcher partner Theodore Olson argued on behalf of same-sex couples in Virginia seeking to undo the bans.
“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 in a statement.
David Boies of Boies, Schiller & Flexner also represented the couples, and Olson and Boies were supported by the American Foundation for Equal Rights.
Virginia Attorney General Mark Herring, who took office in January, decided not to defend the ban before the Fourth Circuit. David Oakley of Poole Mahoney in Chesapeake, Va., and David Austin Nimocks of Alliance Defending Freedom argued for county circuit clerks who defended the bans.