And then came Virginia.
The U.S. Court of Appeals for the 4th Circuit ruled this afternoon that the commonwealth’s prohibition on same-sex marriage is unconstitutional because it violates the guarantee of equal protection under the 14th Amendment of the Constitution. This upholds a ruling by federal Judge Arenda Wright Allen on Feb. 13. It also marks the second time in a month that a federal appeals court has upheld a lower-court decision to strike down a ban on marriage equality.
In reading the 98-page decision in Bostic v. Schaefer, one passage jumped out at me. The proponents of upholding Virginia’s same-sex marriage ban tried to use the landmark Supreme Court ruling on U.S. v. Windsor ruling, which invalidated the so-called Defense of Marriage Act (DOMA) last year, to justify their position. In one sense, the majority agreed. “The Windsor decision rested in part on the Supreme Court’s respect for states’ supremacy in the domestic relations sphere,” Circuit Judge Henry F. Floyd wrote in the majority opinion. “The Court recognized that section 3 of DOMA upset the status quo by robbing states of their ability to define marriage.”
And then Floyd took the wind out of the sails of anti-marriage-equality proponents a few sentences later.
Citing Windsor, the Proponents urge us to view Virginia’s federalism-based interest in defining marriage as a suitable justification for the Virginia Marriage Laws. However, Windsor is actually detrimental to their position. Although the Court emphasized states’ traditional authority over marriage, it acknowledged that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” … Windsor does not teach us that federalism principles can justify depriving individuals of their constitutional rights; it reiterates Loving’s admonition that the states must exercise their authority without trampling constitutional guarantees. Virginia’s federalism-based interest in defining marriage therefore cannot justify its encroachment on the fundamental right to marry.
Translation: States’ rights have a limit.
“The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life,” Floyd wrote in the ruling’s closing paragraph. “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 2-to-1 ruling won’t take effect for 21 days to give time for a request by defendants for a rehearing by the entire circuit court of appeals or the Supreme Court or for a request of a stay of the ruling until the high court makes a decision. In addition to Virginia, the 4th Circuit covers North Carolina, South Carolina, West Virginia and Maryland, where marriage equality is already legal.
Nevertheless, the ramifications of the Virginia ruling were immediately felt. North Carolina Attorney General Roy Cooper announced hours after the ruling this afternoon that his state “will not oppose” cases challenging same-sex marriage. And, according to Chris Geidner at Buzzfeed, Cooper added, “There are really no arguments left to be made.”
No. There aren’t.
Follow Jonathan on Twitter: @Capehartj