(Plaintiffs Mary Townley at right, Carol Schall and their daughter Emily. Photo courtesy AFER.)
The 4th U.S. Circuit Court of Appeals on Monday upheld a lower court ruling in Bostic v. Schaefer that Virginia's ban on same-sex marriages and on the recognition of such marriages from other jurisdictions is unconstitutional, Justin Snow reports in Metro Weekly:
A federal appeals court found Virginia’s ban on same-sex marriage unconstitutional in a ruling handed down Monday.
With a 2-1 decision, the 4th Circuit Court of Appeals upheld a lower court’s ruling finding Virginia law prohibiting same-sex marriage and recognition of same-sex marriages performed in other states in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.
The ruling is here. The attorney general of North Carolin said after the ruling that he will no longer defend that state's same-sex marriage ban, as it will not hold up in court. Lyle Denniston discusses the ruling at SCOTUSblog. As he notes, the county clerks who defended the ban have a right to seek an en banc review by the full 4th Circuit; stay tuned on that.
Ari Ezra Waldman at Towleroad analyzes the lone dissent by Judge Paul V. Niemeyer, who during oral arguments kept calling gay relationships "new" and "different," echoing Justice Byron White's notorious opinion in the 1986 Bowers decision in which he framed the dispute over sodomy laws as whether the constitution guarantees a right to have gay anal sex. Of course the constitution lays out broad principles, and was never set up to be a list of permitted activities. Indeed, it specifies the powers of the three branches of the federal government, leaving all others to the states and the people. Conservative judges like Niemeyer were effectively rebuked in 2003 by Justice Anthony Kennedy's Lawrence decision, but they persist in their discredited, biased approach.
The celebrity superlawyer team of Boies and Olson, touted in NYT reporter Jo Becker's much-criticized book on the Prop 8 case, Forcing the Spring, were involved in the Virginia case. Be assured that they will be fighting like alley cats for the right to do the oral arguments if the Virginia case is taken up by SCOTUS.
The Catholic Bishops of Virginia slammed the 4th Circuit's decision, saying, "This action reflects a fundamental misunderstanding of the intrinsic nature of marriage and is an injustice to Virginia voters." Their arguments, based on "natural law" and other doctrine dressed up in pseudoscientific drag, have been refuted many times -- as has their suggestion that voters should be able to deny a fundamental right like marriage to people they don't like. These bullies are losing, and the final blow at the Supreme Court, likely in the coming term, cannot come soon enough to suit me.