Wednesday, July 30, 2014



I previously highlighted U.S. District Judge Arenda L. Wright Allen's decision striking down Virginia's laws and constitutional amendment forbidding same sex marriages or the recognition of those from states that permit them. I gave the equally heartwarming and heart-wrenching stories of the plaintiffs in that case before. The Circuit Court repeats the details.

A three judge panel of the Fourth Circuit Court of Appeals has now upheld Judge Allen's decision in a 2-1 vote.

That now makes some 29 straight court decisions, Federal and state, that have found bans of same sex marriages to be invalid. I wish the Yankees had anything near that winning streak.

Judge Allen, in a nice touch, opened her decision with a quote from Mildred Loving, the plaintiff in Loving v. Virginia, that struck down laws, incredibly a mere 47 years ago, against interracial marriages:
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, and loving, are all about.
It is historic resonance that Judge Allen and the Fourth Circuit have now recognized the same injustice done by Virginia to same sex couples.

There are some interesting technical arguments in the majority decision but the bottom line is that the Fourth Circuit majority found that such laws must be measured by "strict scrutiny," the highest constitutional test but that "even under rational basis review, the "[a]ncient lineage of a legal concept does not give it immunity from attack."

Ultimately, I don't think it will matter much for bans on same sex marriage which test is applied ... it fails all of them, as various courts have found. It will matter for other issues, such as attempts to "protect" Christians from anti-discrimination laws that deny them the right to discriminate against gays. But that's down the road a bit.

One interesting event is that the attorney general of North Carolina has said that his office would no longer defend his state's ban on same-sex marriage, because the Fourth Circuit decision had taken away all of the arguments that could be made for the ban. That's not quite true. Decisions by 3 judge panels of a Circuit Court are not really binding precedent unless confirmed by the full court in an en banc decision or the full court refuses to grant an en banc review. Still, it's nice some people see the writing on the wall.

Does the concession by N. Carolina's AG mean that marriage licenses can now be issued to same sex couples?
Interesting question. I don't know the state of any challenges to SSM in NC at this time. There have been challenges in all 50 states, most Federal but some in state courts. The quick answer is "probably no." The NC AG is a Democrat who will probably run against the Republican governor in 2016. If he refuses to defend the law, the governor probably could or county clerks might (as was the case when the Virginia governor and AG refused to defend the laws in the case the 4th Circuit just decided).

Here is some background on the situation in NC:
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