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Supreme Court Stays Virginia Marriage Ruling

Posted on: August 20th, 2014 by Art Leonard No Comments

The Supreme Court issued an unsigned order today staying the 4th Circuit’s mandate in Bostic v. Schaefer, the Virginia marriage equality case.  The 4th Circuit panel had rejected Prince William County Clerk Michele McQuigg’s motion to stay pending Supreme Court review, and McQuigg promptly renewed her request for a stay by filing the motion with Chief Justice John Roberts.  Roberts requested input from the other parties, and then referred the matter to the full Court, which issued the unsigned order on August 20.  If the order had not been issued, the 4th Circuit’s ruling would have gone into effect tomorrow morning, August 21, at 8 am.

Virginia Attorney General Mark Herring has already filed a petition for certiorari with the Supreme Court seeking review and affirmance of the 4th Circuit’s decision.  He had supported McQuigg’s motion for a stay.  The plaintiffs in the underling cases, represented by the ACLU and Lambda Legal, had opposed the stay request, and urged the Court that if it were to stay the 4th Circuit ruling, it move quickly to grant cert and decide the case on the merits.

County clerks and various licensed marriage celebrants in Virginia were already gearing up for the possibility of issuing licenses and performing ceremonies on August 21, since Virginia law does not require couples to observe any waiting period after getting their licenses.  But the Supreme Court’s granting of the stay was really no surprise, because it stayed the 10th Circuit’s Utah marriage ruling and, as lower courts have generally acknowledged, sent a clear signal that if a state wants to appeal a marriage equality ruling, the Supreme Court is willing to stay the ruling pending appeal.

If one applies the “guidelines” that the Supreme Court has set out in the past as its standard for granting stays pending appeal, then one can attribute to this stay ruling a view among the Justices that it is likely that a petition for certiorari will be granted in a marriage equality case this term, that there is at least a fair possibility that the Supreme Court might reverse the 4th Circuit’s decision, that irreparable harm to the state might result from allowing the 4th Circuit’s decision to go into effect and the balance of equities weighs in favor of the party seeking the stay.  But I would question how stringently the Court is applying these standards, and I think the issuance of this stay is more about politics and prudence than about applying these tests.

On the one hand, it seems highly likely to me that the Court will grant cert in one of the pending marriage equality cases.  Since U.S. v. Windsor last year, the Court’s latest word on same-sex marriage, was a 5-4 decision, there is certainly a “fair” possibility that the swing voter in the prior case could swing the other way on this one, and marriage equality proponents should not count any chickens before they are hatched.  But the rhetoric of Justice Anthony Kennedy’s opinions in Windsor, Lawrence v. Texas and Romer v. Evans strongly suggests that he may rule similarly in favor of the plaintiffs-respondents if the Court grants cert in the Utah, Oklahoma or Virginia cases.  As to irreparable harm, unless one accepts without question the contention that a state suffers irreparable harm every time a federal court blocks the enforcement of a state law, no matter how ill-conceived or potentially unconstitutional is the law, I have trouble seeing it.  Now that same-sex couples have been getting married in 19 states and the District of Columbia, in some states for several years, it is possible to see quite clearly that allowing such marriages to take place or be recognized does not cause any irreparable harm to the states.  In terms of the balance of the equities, it seems pretty clear that the harm to a state is to its “sovereign dignity” but will not adversely affect the public welfare or the economy of the state or its institution of marriage, whereas delaying the marriage rights of same-sex couples could clearly work irreparable injuries to them in terms of dignitary and economic losses, and even loss of life and liberty.  So the balance of the equities on these stay petitions clearly favors the respondents, in my opinion.

At any rate, what the Supreme Court says, even without explanation of its reasoning, is binding upon all parties, so the 4th Circuit’s mandate is stayed.

In its Order, the Court is very specific in providing that the stay will automatically be dissolved if the Court denies the petition for certiorari that Clerk Michele McQuigg is expected to file.  This suggests to me that if the Court decides to grant one of the other petitions, it will “hold” the McQuigg petition and neither deny nor grant it until it has decided on the merits the case that it accepts for review.

On the other hand, the Court is also very specific in stating that if the petition is granted, “the stay shall terminate upon the sending down of the judgment of this Court.”  Perhaps, as Chris Geidner suggests in his report on today’s Order, this is intended to avoid the court of appeals “jumping the gun” and allowing same-sex couples to start marrying right away upon announcement of the Supreme Court’s opinion, as happened in 2013 when the 9th Circuit lifted its stay shortly after the Supreme Court dismissed the appeal in Hollingsworth v. Perry on jurisdictional grounds.  The big difference, of course, is that in Hollingsworth the stay had been granted by the 9th Circuit at the request of the appellants, so it was up to the 9th Circuit when to lift it.  In this case, however, the stay is being granted by the Supreme Court (having previously been denied by the 4th Circuit), so it is the Supreme Court that sets the terms, and presumably the Court will not “send down” its judgment formally to the court of appeals until the time has expired for filing motions for reconsideration or for reargument.  Thus, if the Supreme Court affirms the 4th Circuit, the Court will retain control over the timing of its decision going into effect.  This seems like a pragmatic move, inasmuch as a sweeping Supreme Court marriage equality ruling will require the remaining 31 states that ban same-sex marriage to make whatever adjustments are necessary to their forms and procedures in order to facilitate the volume of license applications they may subsequently experience, as well as the filing of stepparent adoption petitions, employee benefit plan enrollment forms, etc., from already-married same-sex couples seeking recognition of their marriages.  There might even be a small flood of pent-up divorce petitions….

To those unfamiliar with the workings of the Supreme Court and the appellate process, do not be misled by headlines reporting today’s development along the lines of “Supreme Court Blocks Virginia Same-Sex Marriages.”  While it is technically true that the stay “blocks” same-sex couples from marrying in Virginia on August 21, this is not a ruling on the merits by the Supreme Court, and it does not represent a judgment by the Court that same-sex couples are not entitled to marry.  It is a technical move by the Court to preserve its jurisdiction and the orderly appellate process by relieving the state of Virginia of the obligation to ignore its same-sex marriage ban until the Supreme Court has decided whether to weigh in on the controversy.

And, Justice Ruth Bader Ginsburg has already stated publicly her opinion that the Court will not “duck” a ruling on marriage equality this time around, as it did in 2013 in the California Prop 8 case.  The pending cert petitions present no major jurisdictional impediment to a ruling on the merits.  If the Court grants review in one of the marriage equality cases, there is likely to be a ruling on the merits before the end of the term that gets underway on October 6 — most likely sometime in the spring or early summer of 2015.

Marriage Equality Case Developments Come Hot and Heavy

Posted on: April 8th, 2014 by Art Leonard No Comments

As anticipation builds for the first federal appellate arguments on marriage equality since the Supreme Court’s decision last June striking down the Defense of Marriage Act’s anti-gay federal marriage definition, new developments in marriage equality litigation continue to pile up in various parts of the country.

On Thursday, April 10, a panel of three judges of the Denver-based U.S. Court of Appeals for the 10th Circuit will hear the state of Utah’s appeal of last December’s federal district court order, Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), requiring that the state allow same-sex couples to marry and recognize same-sex marriages contracted out of state. That order was stayed by the Supreme Court on January 6 after a panel of the 10th Circuit had refused to stay it, and only after more than a thousand same-sex couples had married. A week later, on April 17, the same three-judge panel will hear the state of Oklahoma’s appeal from a narrower order by the federal court there, Bishop v. United States, 962 F.Supp.2d 1252 (N.D. Okla. 2014), requiring the state to allow same-sex couples to marry but avoiding the issue of recognition of out-of-state marriages. Then, on May 13, the 4th Circuit Court of Appeals, based in Richmond, Virginia, will hear oral arguments in an appeal by two county court clerks of another federal district court ruling, Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va., Feb. 13, 2014), requiring the state to allow same-sex couples to marry and to recognize out-of-state same-sex marriages. Arguments have yet to be scheduled for similar appeals in the 5th, 6th and 9th Circuits, but there have been developments in some of those cases as well.

First, turning to Virginia, where marriage equality lawsuits were filed in both the Eastern and Western federal district courts. . . The Western District case, Harris v. Rainey, the second to be filed, was brought as a classic test-case by the ACLU and Lambda Legal, which put out a call after the Windsor decision to identify suitable plaintiffs to challenge the Virginia ban. While these public interest law firms were carefully assembling their case, a same-sex couple living in the Eastern District found an attorney and went ahead with their own lawsuit.

News reports brought that case to the attention of the American Foundation for Equal Rights (AFER), which had been formed in 2009 to challenge the constitutionality of California Proposition 8, having recruited star appellate attorneys Ted Olson (former U.S. Solicitor General) and David Boies to litigate that case to the Supreme Court. Olson and Boies won Perry V. Schwarzenegger in the district court, but fell short of achieving a Supreme Court nation-wide victory because the state decided not to appeal and the Supreme Court held, in Hollingsworth v. Perry, 131 S. Ct. 2652 (2013), that the proponents of Proposition 8, who had tried to appeal, lacked the qualifications to represent the state’s interest in the case. The district court decision stood, and same-sex marriages resumed in California.

Then AFER was looking about for a new opportunity to get this issue to the Supreme Court and suddenly Virginia presented itself as a lively possibility. AFER contacted Bostic’s attorney and offered its services, which were readily accepted. The Olson-Boies team pushed the case forward faster than the ACLU/Lambda team, which filed their case shortly after the Bostic case was filed. The Bostic case moved forward much more quickly, and the federal district court granted summary judgment to the plaintiffs on February 13 in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va.), after the newly-elected governor and attorney general of Virginia announced that they agreed with plaintiffs that the state’s marriage amendment and statutory ban were unconstitutional. As these officials (and subsequently the state’s registrar of vital records) were no longer defending the ban, the case was being pushed forward on appeal by two county court clerks.

Meanwhile, the Harris case was still at the pre-trial stage, with the trial judge having certified it as a class action on behalf of all same-sex couples interested in marrying or having their marriages recognized in Virginia, except for the plaintiff couple in Bostic v. Schaefer (as the case was now called). This prompted ACLU/Lambda to petition the 4th Circuit to be allowed to participate in the appeal on behalf of their plaintiff class, and the 4th Circuit granted the motion on March 10. This left the judge in Harris v. Rainey, Michael F. Urbanski, in a rather odd position. He was facing a summary judgment motion from the plaintiffs, but nobody was actually opposing the motion, since all defendants in the case had dropped any support for the marriage ban. (The local clerk in this case, Thomas E. Roberts of the Staunton Circuit Court, officially takes no position on the constitutionality of the ban.) And, of course, whatever the 4th Circuit decides will be binding on Judge Urbanski, so it made little sense for him to issue a decision on the pending motion before that happened. He took the prudent step of issuing an opinion on March 31, see 2014 Westlaw 1292803, announcing that he would “stay this case” pending the 4th Circuit’s decision. Of course, if the 4th Circuit rules against marriage equality in Bostic, the plaintiffs will either apply for en banc rehearing or petition the Supreme Court for certiorari. But they may not be the first to get there, depending what happens in the 10th Circuit.

There has also been an interesting development in the 6th Circuit, which now has the distinction of being the only circuit to have marriage equality appeals pending from every state in the circuit: Michigan, Ohio, Kentucky, and Tennessee. Michigan Attorney General Bill Schuette filed a petition with the court on April 4, asking that Michigan’s appeal of a federal court order in DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich., March 21, 2014), requiring the state to allow and recognize same-sex marriages, by-pass the usual three-judge panel stage and go directly to en banc review, which in the 6th Circuit would mean review before the full bench of 15 active judges.

The 6th Circuit had already issued an expedited briefing schedule after issuing a stay of the district court’s ruling, mirroring the schedules issued in the Kentucky and Tennessee cases, and following shortly on the schedule for the earlier-filed Ohio death certificate case. Commented Schuette, “Accordingly, all four cases are proceeding swiftly in parallel and will have briefing completed within weeks of each other.” Referencing Federal Rules of Appellate Procedure 35, which recognizes that some cases are “so significant that they warrant initial hearing en banc,” Schuette asserted, “This is such a case. It presents the question whether one of our most fundamental rights — the right to vote — matters, or whether a judge can take an important social issue out of the hands of the voters by concluding it is not something about which reasonable citizens can disagree.” This is a very loaded way of stating the question. For one thing, the Supreme Court has not recognized voting as a fundamental right; if it had, recent decisions upholding voter ID laws would certainly have come out differently. For another, it mischaracterizes the “rational basis test” as applied by the district court in this and other cases.

At any event, Schuette is undoubtedly correct that an early resolution of this case would be helpful. No matter how it turns out, it is likely headed to the Supreme Court. On the other hand, Schuette may be playing a numbers game here. The 6th Circuit now has 10 active judges appointed by either George H.W. or George W. Bush, three judges appointed by Clinton and two by Obama, with one vacancy. The en banc court has a 10-5 Republican-appointed majority. A three-judge panel, on the other hand, depending on the luck of the draw (and assuming random panel compositions) might even have a majority of Democratic appointees. On the other hand, several of the marriage equality decisions rendered since Windsor have been issued by Republican appointees, so it looks like pre-judicial political affiliations of the judges are not playing a big role in these post-Windsor cases. Be that as it may, this issue is not going to be finally decided in any federal court of appeals; only a Supreme Court resolution will be accepted by any of the states that are actively defending their bans in court. (The one major looming exception is Oregon, where state officials have informed the federal district judge in a pending marriage equality case that if he rules in favor of plaintiffs after a summary judgment hearing scheduled soon, the state will comply and not appeal, and no objecting county clerks have moved to intervene as defendants to take the case on appeal.) So, stay tuned for possible interesting developments in the 6th Circuit. What might be most efficient, of course, would be for the court to consolidate the pending appeals from the four states into one grand proceeding, hear it en banc, and issue an opinion dealing with all the cases simultaneously. That would be something special, no matter how it turned out!

There are also interesting developments in the 9th Circuit, where an appeal is pending by Lambda Legal of an adverse decision from the federal district court in Nevada that predates Windsor, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). The state was actively defending this case on appeal, but abruptly altered its position after a three-judge panel of the 9th Circuit ruled on January 21 in SmithKline Beecham v. Abbott Laboratories, 2014 U.S. App. LEXIS 1128, that sexual orientation discrimination claims are subject to “heightened scrutiny” under the 14th Amendment. That case is an antitrust lawsuit between competing pharmaceutical companies about HIV-related drugs, and Abbott, the defendant, used a peremptory challenge to keep a gay man off the jury. The 9th Circuit panel held that a peremptory challenge could not be used for that purpose; after Windsor, held the panel, prior 9th Circuit cases on point were no longer valid and the heightened scrutiny standard meant that in order to remove a juror because he was gay, the defendant would have to show that there was cause to question the particular juror’s ability to decide the case fairly. When Abbott announced it was not seeking en banc review or planning to appeal this to the Supreme Court, Nevada’s governor and attorney general announced their conclusion that the Nevada ban was not defensible in the 9th Circuit. They didn’t withdraw their appeal, however, as amicus parties would step up to argue in support of the ban and, presumably, if the case got to the Supreme Court, state officials might again take up the argument.

The 9th Circuit had scheduled oral argument to take place on April 9, a day before the 10th Circuit Utah argument, but then, mysteriously, cancelled that hearing date without announcing a new one. Word was that a judge of the circuit asked for more time to prepare for the hearing. But it eventually appeared that there was some sentiment within the Circuit to reconsider the panel decision in SmithKline before proceeding with the Nevada marriage case, as the court issued a notice to the parties informing them that a judge of the circuit had asked to consider going en banc, and the parties were directed to submit briefs on the question whether the case should be reconsidered en banc. This effectively puts off the Nevada case for a while, since it is unlikely the Circuit would scheduled a new hearing until it has decided whether to reconsider SmithKline, and how such reconsideration turns out would affect whether Nevada officials reconsider their decision not to defend their ban before the 9th Circuit. Complicated, what? In addition, of course, what happens in this case affects the marriage equality lawsuits pending in several other states in the 9th Circuit: Arizona, Idaho, and Oregon. So here is some real legal suspense playing itself out.

Finally, turning back again to the 6th Circuit, and specifically to Ohio, there was a new development on April 4 when District Judge Timothy Black, in Cincinnati, held a hearing on a more recently filed marriage equality case, Henry v. Wymsylo, brought by some married lesbian couples seeking an order that Ohio recognize their marriages. Plaintiffs had filed a motion for permanent injunction and declaratory relief. Judge Black, who had previously issued a ruling that the state must recognize out-of-state same-sex marriages for purposes of recording death certificates in Obergefell v.Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), announced at this hearing that he “anticipates striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states,” and would issue an opinion to that effect “on or before April 14, 2014.” This order would go beyond the Obergefell case, since it would extend beyond recognition for a specific purpose (death certificates, birth certificates) to a more general recognition requirement, similar to those issued by other trial judges in the 6th Circuit in Kentucky, Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky., Feb. 12, 2014), and Tennessee, Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn., March 14, 2014). Presumably, the state would quickly file its appeal and this could be consolidated with the pending appeal of the Obergefell decision and perhaps, as noted above, consolidated by the 6th Circuit with its hearings in the Michigan, Tennessee and Kentucky cases. It would certainly make sense to do so, as the legal issues are identical in all these cases.

So, things are quickly coming to a boil at the appellate level, even as new marriage equality cases have been filed in recent weeks in other states, and the count of marriage equality cases on file nationwide is rapidly approaching litigation in every state that does not already allow same-sex couples to marry. As of now, same-sex couples can marry in 17 states and the District of Columbia, and a majority of those states, as well as D.C., achieved marriage equality through the legislature, not through judicial action. In addition, of course, as a result of the Windsor decision, the federal government now recognizes same-sex marriages validly concluded under state law for most purposes, providing at least partial recognition for same-sex couples who marry in states other than where they reside. The tide toward marriage equality appears irresistible, as public opinion polls show majority support in the electorate (and even, when things are broken down demographically, by residents of many non-marriage-equality states and by young Republicans). This will likely end up in the Supreme Court next term, so spring 2015 may be when the marriage equality issue is resolved in the United States.

Virginia Marriage Equality Ruling Both a Big Deal and the New Normal

Posted on: February 14th, 2014 by Art Leonard No Comments

Since the U.S. Supreme Court ruled last year that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition for same-sex marriages, was unconstitutional, a wave of litigation over marriage equality has descended on the federal (and some state) trial courts, and so far every judge who has ruled on a motion for summary judgment has concluded that bans on performing or recognizing same-sex marriages violate the 14th Amendment of the U.S. Constitution as a matter of law. In that sense, there is really nothing new about U.S. District Judge Arenda L. Wright Allen’s decision in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19080, announced on February 13 in the case of Bostic v. Rainey, holding Virginia’s ban on same-sex marriage unconstitutional, since the opinion falls within what is now the mainstream of a growing body of trial court decisions issued by judges of just about every political stripe.

On the other hand, each of the decisions issued so far, by federal judges in Ohio, Utah, Oklahoma, Kentucky, and now Virginia, presents its own particular perspective on the issue, and each of the judges has managed to inject his or her own brand of eloquence in explaining why the quest for equal marriage rights deserves to win.

Judge Wright Allen, who was appointed to the bench by President Obama and unanimously confirmed by the Senate in 2011, prefaces her decision with a lengthy quote from a public statement issued by Mildred Loving, one of the parties in the historic 1967 case of Loving v. Virginia, in which the Supreme Court laid the doctrinal foundations for Judge Write Allen’s decision. Mildred, whose maiden name was Mildred Jeter, and her husband Richard Loving, had been prosecuted by Virginia for going to the District of Columbia to marry and then returning home to Virginia, living in open defiance of that state’s law forbidding marriages between people of color and white people. The Supreme Court ruled in that case that Virginia’s law was an unconstitutional interference in the right of individuals to marry the partner of their choice, not only because the statute enacted race discrimination, but also because of the fundamental role of marriage in our society.

Mrs. Loving said, in marking the 40th anniversary of her Supreme Court victory, “The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. . . I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. . . I support the freedom to marry for all. That’s what Loving (the case), and loving, are all about.”

And, to close out her opinion, Judge Wright Allen quoted remarks by Abraham Lincoln, from a letter he wrote in May 1860 while contemplating his bid for the Republican presidential nomination in the upcoming national election. Reflecting the coming struggle over slavery, Lincoln wrote, “It can not have failed to strike you that these men ask for just the same thing – fairness, and fairness only. This, so far as in my power, they, and all others, shall have.” Echoing Lincoln, the judge concluded her opinion by stating, “The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.”

This lawsuit was initiated last summer by Timothy Bostic and Tony London, a gay couple who inquired about getting a marriage license from the Norfolk court clerk and were advised that Virginia law prohibited it. Although the ACLU and Lambda Legal had put out the word that they were planning a lawsuit in the wake of the DOMA decision, Bostic and London were not inclined to wait and filed their own lawsuit in the Eastern District of Virginia. The American Foundation for Equal Rights (AFER), which had litigated the California Proposition 8 case, quickly offered them the opportunity to be represented by Ted Olson and David Boies, the prominent appellate litigators who presented that case to the federal courts, and Bostic and London accepted the offer. The case was amended to add a second couple, Carol Schall and Mary Townley, who had married in California in 2008 but whose marriage was not recognized in Virginia. As a practical matter, this non-recognition had raised a barrier to Schall adopting their daughter, who was born in 1998 through donor insemination, since Virginia’s adoption law does not permit second-parent adoptions for same-sex couples. The Virginia marriage and recognition bans are embodied both in statutes and in a state constitutional amendment adopted in 2006.

The lawsuit originally named as defendants then-Governor Bob McDonnell and then-Attorney General Ken Cuccinelli, as well as George E. Schaefer III, the Norfolk Circuit Court Clerk whose office had denied the license to Bostic and London. As the case developed, McDonnell and Cuccinelli were dropped as defendants, Janet Rainey, the state’s Registrar of Vital Records was added, and the Prince William County Circuit Court Clerk, Michele McQuigg, was allowed to intervene as a defendant. Perhaps equally significant for the direction of the lawsuit, soon after the newly-elected Democratic governor and attorney general, Terry McAuliffe and Mark Herring, took office, they announced that the executive branch of the state government was no longer interested in defending Virginia’s marriage ban, and the state’s Solicitor General was dispatched by Herring to join the plaintiffs during the summary judgment hearing a few weeks ago to argue that the ban is unconstitutional. Thus, the only defenders of the ban at this stage of the litigation are two county clerks, who are represented by their own counsel, including lawyers from Alliance Defending Freedom, a curiously-named group that has intervened in several marriage equality cases to oppose the freedom of same-sex couples to marry. ADF claims to be vindicating religious freedom as its main goal, but evidently just the religious freedom of those who share ADF’s religious opposition to same-sex marriage.

In the first part of her opinion, the judge rejected defendants’ argument that the plaintiffs in this case lacked standing to pursue a federal court challenge, and also rejected their argument that the Supreme Court’s 1972 holding in Baker v. Nelson that same-sex marriage does not present a “substantial federal question” was binding on the court. In line with the other recent marriage equality rulings, Judge Wright Allen concluded that “doctrinal developments since 1971 compel the conclusion that Baker is no longer binding,” and observed that the 2nd Circuit Court of Appeals, based in New York, had “recognized this explicitly” when it ruled against the constitutionality of DOMA in U.S. v. Windsor. The judge also referred to District Judge Robert Shelby’s opinion in the Utah marriage case, Kitchen v. Herbert, holding that Baker “has little if any precedential effect today.”

Judge Wright Allen considered both due process and equal protection arguments against the ban, and concluded that it was unconstitutional on both theories.

Focusing first on due process, she concluded that the Supreme Court had established in Loving v. Virginia and subsequent cases that the right to marry is a fundamental right, and as such could not be abridged by the state without a narrowly-tailored law that was justified by a compelling state interest. “The reality that marriage rights in states across the country have begun to be extended to more individuals fails to transform such a fundamental right into some ‘new’ creation,” she wrote. “Plaintiffs ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia’s adult citizens.” She continued, “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”

Having found that a fundamental right was at stake, Judge Wright Allen asserted that the “strict scrutiny” standard of judicial review applied to this case, and rejected the defendants’ arguments that the marriage ban could be justified by tradition, federalism, or the “responsible procreation” and “optimal child rearing” theories. Her analysis is by now quite familiar, following the lines of the recent decisions from Ohio, Utah, Oklahoma and Kentucky. Responding to the federalism point, she quoted from Justice Scalia’s dissent in Windsor, where he wrote: “As I have said, the real rationale of [the Windsor opinion] is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.” The judge rejected the argument that on grounds of federalism the court should abstain from ruling on the merits in order to give the Virginia electorate and legislature a chance to reconsider their position, remarking that this “proposal disregards the gravity of the ongoing significant harm being inflicted upon Virginia’s gay and lesbian citizens.”

In addition to rejecting the argument that there was no logical connection between any state goal to channel procreation responsibly or provide an optimal setting for child rearing and forbidding same-sex couples from marrying, she also asserted that this “rationale misconstrues the dignity and values inherent in the fundamental right to marry as primarily a vehicle for ‘responsibly’ breeding ‘natural’ offspring,” which “ignores the profound non-procreative elements of marriage, including ‘expressions of emotional support and public commitment,’ ‘spiritual significance,’ and ‘expression of personal dedication.'” The quotations were from an opinion for the Supreme Court by Justice Sandra D. O’Connor, striking down a state’s ban on marriage for prison inmates.

Having found the Virginia marriage ban in violation of the Due Process Clause, Judge Allen Wright turned to the Equal Protection Clause. The standard of review for equal protection claims can vary depending upon whether the challenged discrimination involves a fundamental right or discriminates because of a so-called “suspect classification.” As she had already found a due process violation based on the conclusion that the right to marry is fundamental, the judge concluded that the marriage ban also violated the Equal Protection Clause by discriminating concerning a fundamental right. But she also addressed the “suspect classification” issue, finding that same-sex and different-sex couples are “similarly situated” for purposes of an equality analysis. “Deference to Virginia’s judgment on this question is unwarranted,” she wrote, “because there are reasonable grounds to suspect ‘prejudice against discrete and insular minorities which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities,'” quoting a venerable Supreme Court precedent from 1938 that is foundational in equal protection doctrine. She found plenty of evidence “manifest in Virginia in state-sanctioned activities” that showed animus against gay people, including, for example, Ken Cuccinelli’s action as attorney general directing colleges and universities to rescind their anti-discrimination policies on the ground that Virginia’s civil rights statutes provided no protection against discrimination to gay people.

However, she concluded that it was not necessary for her to determine an appropriate level of judicial review in this case. “Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose,” she wrote, “and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs’ compelling arguments that the Laws should be subjected to heightened scrutiny.”

“The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.” Having reached this conclusion, the judge stated that the plaintiffs are entitled to injunctive relief commanding the state to stop enforcing the marriage ban. However, acknowledging that the Supreme Court had stayed the Utah decision and thus signaled its view that district judges should not order states to allow same-sex marriage until any appeals to higher courts are exhausted, Judge Wright Allen “stayed execution of this injunction pending the final disposition of any appeal to the Fourth Circuit Court of Appeals.”

Presumably the two county clerks will quickly file their appeals with the 4th Circuit, which is based in Richmond, Virginia. The state, represented by Ms. Rainey, could also appeal, although in light of the governor and attorney general both stating their view that Virginia should allow and recognize same-sex marriages, that seems unlikely. In any event, unless the 4th Circuit handles the case with extraordinary speed, it is unlikely that it would be ruling before the 9th and 10th Circuits rule on the pending appeals from Nevada, Utah and Oklahoma. The 10th Circuit has already scheduled oral arguments on Utah and Oklahoma during April, and the 9th Circuit has granted a motion by Lambda Legal for an expedited hearing in the Nevada case, with the date to be set shortly. Final reply briefs are due in the Nevada case by February 25, and the court has granted a request by the state government to withdraw its brief, leaving the field in that case to an intervenor group that had supported the passage of the state’s anti-gay marriage amendment. Ted Olson and David Boies got involved in the Bostic case with the explicit goal of taking it to the Supreme Court, but as of now it seems more likely that the National Center for Lesbian Rights, which has become associated with the Utah case, or Lambda Legal, which represents plaintiffs in the Nevada case, may get there first. There is another Virginia marriage equality case, Harris v. Rainey, filed in the Western District by the ACLU and Lambda Legal, which is also pending. In that case, the trial judge certified the case as a class action, but arguments on summary judgment have yet to occur, so it is uncertain whether there might be a second Virginia ruling to present to the 4th Circuit before it decides any appeal in the Bostic case.