In the latest demolition exercise, a divided panel of the Fourth Circuit ruled today that Virginia’s marriage laws violate the Due Process and Equal Protection Clauses of the 14th Amendment.
The basic issue on which Judge Henry Floyd’s majority opinion (joined by Judge Roger Gregory) and Judge Paul Niemeyer’s dissent divide is how to read the Supreme Court’s 1997 precedent in Washington v. Glucksberg—and therefore what standard of review to apply. In Glucksberg, the Court emphasized that a right, in order to be recognized as fundamental, must be “objectively, deeply rooted in this Nation’s history and tradition” and that this inquiry requires “a careful description of the asserted fundamental liberty interest.”
The majority, acknowledging that “states have refused to permit same-sex marriages for most of our country’s history,” contends that “Glucksberg’s analysis applies only when courts consider whether to recognize new fundamental rights.” It maintains that the “fundamental right to marry encompasses the right to same-sex marriage” and that Glucksberg’s analysis is therefore inapplicable. (Slip op. at 41.) The Court’s cases, it says, “speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” (Slip op. at 43.) It proceeds to apply strict scrutiny to Virginia’s laws and concludes that they fail strict scrutiny.
Judge Niemeyer criticizes the majority’s analysis as “fundamentally flawed because it fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a ‘same-sex marriage.’” He faults the majority “for never ask[ing] the question necessary [under Glucksberg] to finding a fundamental right—whether same-sex marriage is a right that is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.’” He points out that the majority can’t explain why its right to marry “does not also encompass the ‘right’ of a father to marry his daughter.” (Slip op. at 67-68; see also slip op. at 74-84.) He proceeds to apply rational-basis review and determines that Virginia’s laws survive that review.
I had initially assumed that Virginia attorney general Mark Herring’s irresponsible failure to defend his state laws meant that the case is now over. But I gather from the update to this post by law professor Josh Blackman that Supreme Court review remains possible.