Virginia marriage ban overturned; Cooper drops defense
Updated: October 7, 2014 at 2:55 pm
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CHARLOTTE, N.C. — The Fourth Circuit Court of Appeals has ruled Virginia’s ban on same-sex marriage unconstitutional in a 2-1 decision affirming a lower court’s ruling that the ban infringes upon same-sex couples’ due process and equal protection rights. Additionally, North Carolina Attorney General Roy Cooper announced Monday afternoon that the state recognizes the Fourth Circuit’s “clear” ruling and says “there are no arguments left to be made” in support of North Carolina’s anti-LGBT marriage laws.
“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,” Judge Henry F. Floyd wrote in the opinion joined by Judge Roger Gregory. “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.”
Floyd added, “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.”
The ruling is not set to take effect for 21 days. Marriages could begin as soon as Aug. 18, but a stay could still be issued, putting marriages on hold.
Judge Paul V. Niemeyer dissented in the decision saying he “strongly disagree[d] with the assertion that same-sex marriage is subject to the same constitutional protections as the traditional right to marry.” He also said “there is no fundamental right to same-sex marriage and there are rational reasons for not recognizing it,” and concluded that the judicial branch should not infringe on states’ rights to make their own policy decisions. “If given the choice,” Niemeyer wrote, “some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism.”
Virginia Attorney General Mark Herring praised the ruling in a press conference held via conference call following the ruling by the American Foundation for Equal Rights and the American Civil Liberties Union.
“Today is yet another victory for the principles of equality so central to the American experience,” Herring said. “I am proud the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day.”
The case decided today was brought by Timothy Bostic and Tony London, a same-sex couple who was denied a marriage license in Virginia. The case was filed in July 2013. In September, couple Carol Schall and Mary Townley joined the suit, seeking to have their California marriage recognized in Virginia. The same month, the American Foundation for Equal Rights said they would join in representing the couples, including lawyers Ted Olson and David Boies. The two lawyers worked together to overturn California’s Proposition 8.
Olson said the ruling again makes it clear where the law stands on the question of marriage. Every federal district or appeals court that has considered similar cases have ruled in favor of equality.
“This has to tell the American people and other judges that denying equal rights to our gay and lesbian citizens with respect to their fundamental right to get married is wrong and has to end,” Olson said at the press conference.
The case challenged only the Virginia ban. The court’s ruling on Monday does not immediately affect anti-LGBT laws in the rest of the Fourth Circuit, which also includes the Carolina and West Virginia, as well as Maryland, where same-sex marriages are already recognized.
Virginia’s anti-LGBT amendment was approved by 57 percent of voters in 2006.
Cooper: State will not oppose lawsuits
At a press conference on Monday afternoon, North Carolina Attorney General Roy Cooper said he would, in effect, drop his defense of the state’s own anti-LGBT laws and constitutional amendment.
“Our attorneys have vigorously defended North Carolina’s marriage law, which is their job, but today our marriage law will almost surely be overturned as well,” Cooper said. “Simply put, it’s time to stop making arguments we will lose and instead move forward knowing that the ultimate resolution will likely come from the U.S. Supreme Court.”
“After reviewing the Fourth Circuit decision and consulting with attorneys here, I’ve concluded the State of North Carolina will not oppose the cases moving forward,” Cooper said. “The State of North Carolina will acknowledge the Fourth Circuit’s opinion that marriage is a fundamental right and our office believes judges in North Carolina are bound by this Fourth Circuit decision.”
Cooper, who has previously said he personally supports marriage equality, had nonetheless continued to defend the law. Cooper said he and his attorneys will continue to appear in court cases when arguments are scheduled on four lawsuits challenging North Carolina’s anti-LGBT constitutional amendment.
“We believe it will be important for us to present to the courts in North Carolina the Fourth Circuit decision,” Cooper said.
Statewide LGBT advocacy group Equality North Carolina praised Cooper’s decision to accept the Fourth Circuit’s ruling.
“The Fourth Circuit has spoken and Attorney General Roy Cooper’s statements today reflect the new reality for North Carolina’s constitutional ban on the freedom to marry: that it is indefensible, it is unconstitutional, and it should no longer deny North Carolina’s loving, same-gender couples from fully participating in our society,” Chris Sgro, Equality NC executive director, said in a release. “While we continue to look to the Supreme Court to provide a final, national resolution to this rising call for marriage equality in our home state and beyond, it’s now up to our state leaders to help us stand on the right side of history — and with the people of North Carolina — by no longer defending this discriminatory marriage ban.”
Listen to Roy Cooper’s press conference:
Virginia ruling does not strike North Carolina law
The ruling in Virginia does not immediately strike at the heart of North Carolina’s anti-LGBT marriage laws or constitutional amendment.
Attorneys involved in the Virginia case, however, said several general principles do apply.
“The decision itself does include some general principles about the freedom to marry — that it is a fundamental right and it applies strict scrutiny under both due process and equal protection,” said Jonathan Davidson of Lambda Legal. “Those principles do apply to the other states in the Fourth Circuit but the decision does not order the clerks in those states to allow same-sex couples to marry.”
Though no direct order applies to North Carolina, Davidson said some clerks could take matters into their own hands. Similar action was seen by a clerk in Boulder, Colo.
“What we could see is what happened in Colorado,” Davidson said. “When the 10th Circuit decided the case from Utah, a clerk in Colorado, based on that Utah decision, decided to start allowing same-sex couples and despite the efforts of the state of Colorado to stop the clerk in Boulder from issuing marriage licenses, she has continued to do.”
Davidson said other cases in West Virginia and North Carolina could also be affected. “We could go back into court and based on the decision from the Fourth Circuit argue that an order should be issued to clerks in those states … and to state officials to recognize same sex couples with marriages from other states,” he said.
North Carolina advocates react
Legal advocates and activists in North Carolina praised the Virginia ruling today, calling it a step forward in the movement toward marriage equality in the Tar Heel State. Four lawsuits are currently challenging North Carolina’s anti-LGBT constitutional amendment, which was passed by 61 percent of voters.
“Today’s ruling sets a clear precedent for courts in North Carolina and is the most significant step to date toward securing the freedom to marry for all loving and committed couples in our state,” Chris Brook, legal director for the ACLU of North Carolina Legal Foundation, said in a press release. “Though there is still much work that needs to be done, this ruling has given an enormous boost to our efforts to ensure that all loving and committed couples are able to have the security and dignity that comes only with marriage.”
The ACLU of North Carolina is involved in two challenges to the North Carolina ban.
The statewide Equality North Carolina also reacted, with executive director Chris Sgro saying in a release: “Winning the freedom to marry is no longer a matter of IF, it’s a matter of WHEN. And we’re close, but we’re not there yet – as today marks a historic first step forward, while we continue to look to the Supreme Court to provide a final, national resolution to this rising call for marriage equality in our home state and beyond.”
Another group, the Asheville-based Coalition for Southern Equality, said the ruling is good news for North Carolina. Executive director Jasmine Beach-Ferrara called it “further proof that there is not a single valid legal argument to uphold Amendment One.”
She added, “It’s not a question of if Amendment One will be struck down, but when. Each day that North Carolina’s ban on same-sex marriage remains on the books, families are harmed. The Campaign for Southern Equality will continue to call for swift action from the courts to overturn Amendment One, and for citizens and elected officials to take a stand against this discriminatory and immoral law.”
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About the author: Matt Comer was the editor of QNotes, first hired to serve in the role in October 2007, with his tenure ending August 23, 2015.