(July 28, 2014) The United States Court of Appeals for the Fourth Circuit affirmed by a 2-1 vote the strike down of Virginia’s ban on same-sex marriage.
On May 13, 2014 about an hour before I argued before the Court, Judge Niemeyer acknowledged that this case was here just for a pit stop on its way up [interstate] 95.
The end result from the Fourth Circuit today was unsurprising. How they got there is very concerning.
Political reaction from Bob Marshall of the Marshall-Newman Amendment can be found at thebullelephant here.
Majority opinion
Judges Floyd and Gregory wrote the majority opinion finding that Virginia’s ban on same-sex marriage is unconstitutional. In doing so they determined that the right to marriage is a preexisting fundamental right, and therefore any restriction on that right is subject to a strict scrutiny analysis.
Strict scrutiny requires that for a law to be constitutional it must be narrowly tailored to meet a compelling state interest. Strict scrutiny is a death knell for most laws.
In the courtroom in May, Judge Gregory was clearly siding with the Plaintiffs, while Judge Floyd did not show much inclination one way or another.
Minority opinion
Judge Niemeyer wrote the lone minority dissent. Judge Niemeyer determined that the Plaintiffs were seeking establishment of a new fundamental right. As such, rational basis scrutiny applies.
Rational basis scrutiny simply requires the government to show that the law is reasonably related to a legitimate governmental interest. Nearly any law can be justified under rational basis scrutiny.
In the courtroom in May, Judge Niemeyer clearly sided with the Defendants.
The opinion remains consistent with other recent opinions throughout the country…
Since the Supreme Court decision in U.S. v. Windsor, every federal court that has faced the issue of same-sex marriage has struck down state bans on same-sex marriage. Only one other appellate court has ruled. The 10th Circuit affirmed a strike down of a ban on same-sex marriage in Utah on the same strict scrutiny grounds as the Fourth Circuit did today.
But these opinions deviate from the case law in Windsor
Review the Supreme Court majority opinion in U.S. v. Windsor. Find the part where strict scrutiny is identified in the majority opinion, or rational basis for that matter. You will have a tough time finding it, because the majority deviated from previous constitutional analysis in U.S. v. Windsor, and did not identify a standard.
By applying strict scrutiny, the federal appellate and district courts are attempting to put this controversial issue within existing constitutional analysis paradigms, and it is not working. This will all but guarantee that these cases, as Judge Niemeyer predicts will end up back before the Supreme Court, for clarification.
