Lead Opinion
Affirmed by published opinion. Judge FLOYD wrote the majority opinion, in which Judge GREGORY joined. Judge NIEMEYER wrote a separate dissenting opinion.
Via various state statutes and a state constitutional amendment, Virginia prevents same-sex couples from marrying and refuses to recognize same-sex marriages performed elsewhere. Two same-sex couples filed suit to challenge the constitutionality of these laws, alleging that they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The district court granted the couples’ motion for summary judgment and enjoined Virginia from enforcing the laws. This appeal followed. Because we conclude that Virginia’s same-sex marriage bans im-permissibly infringe on its citizens’ fundamental right to marry, we affirm.
I.
A.
This case concerns a series of statutory and constitutional mechanisms that Virginia employed to prohibit legal recognition for same-sex relationships in that state.
Virginia’s efforts to ban same-sex marriage and other legally recognized same-sex relationships culminated in the Marshall/Newman Amendment to the Virginia Constitution:
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.
This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
Va. Const, art. I, § 15-A. The Virginia Constitution imposes two hurdles that a potential amendment must jump before becoming law: the General Assembly must approve the amendment in two separate legislative sessions, and the people must ratify it. Va. Const, art. XII, § 1. The General Assembly approved the Marshall/Newman Amendment in 2005 and 2006. In November 2006, Virginia’s voters ratified it by a vote of fifty-seven percent to forty-three percent. In the aggregate, Virginia Code sections 20-45.2 and 20-45.3 and the Marshall/Newman Amendment prohibit same-sex marriage, ban other legally recognized same-sex relationships, and render same-sex marriages performed elsewhere legally meaningless under Virginia state law.
B.
Same-sex couples Timothy B. Bostic and Tony C. London and Carol Schall and Mary Townley (collectively, the Plaintiffs) brought this lawsuit to challenge the constitutionality of Virginia Code sections 20-45.2 and 20-45.3, the Marshall/Newman Amendment, and “any other Virginia law that bars same-sex marriage or prohibits the State’s recognition of otherwise-lawful same-sex marriages from other jurisdictions” (collectively, the Virginia Marriage Laws). The Plaintiffs claim that the “inability to marry or have their relationship recognized by the Commonwealth of Virginia with the dignity and respect accorded to married opposite-sex couples has caused them significant hardship ... and severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma.”
Bostic and London have been in a long-term, committed relationship with each other since 1989 and have lived together for more than twenty years. They “desire to marry each other under the laws of the Commonwealth in order to publicly announce their commitment to one another and to enjoy the rights, privileges, and protections that the State confers on married couples.” On July 1, 2013, Bostic and London applied for a marriage license from the Clerk for the Circuit Court for the City of Norfolk. The Clerk denied their application because they are both men.
• Schall could not visit Townley in the hospital for several hours when Town-ley was admitted due to pregnancy-related complications.
• Schall cannot legally adopt E. S.-T., which forced her to retain an attorney to petition for fall joint legal and physical custody.
• Virginia will not list both Schall and Townley as E. S.-T.’s parents on her birth certifícate.
• Until February 2013, Schall and Town-ley could not cover one another on their employer-provided health insurance. Townley has been able to cover Schall on her insurance since then, but, unlike an opposite-sex spouse, Schall must pay state income taxes on the benefits she receives.
• Schall and Townley must pay state taxes on benefits paid pursuant to employee benefits plans in the event of one of their deaths.
• Schall and Townley cannot file joint state income tax returns, which has cost them thousands of dollars.
On July 18, 2013, Bostic and London sued former Governor Robert F. McDonnell, former Attorney General Kenneth T. Cuccinelli, and George E. Schaefer, III, in his official capacity as the Clerk for the Circuit Court for the City of Norfolk. The Plaintiffs filed their First Amended Complaint on September 3, 2013. The First Amended Complaint added Schall and Townley as plaintiffs, removed McDonnell and Cuccinelli as defendants, and added Janet M. Rainey as a defendant in her official capacity as the State Registrar of Vital Records. The Plaintiffs allege that the Virginia Marriage Laws are facially invalid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment and that Schaefer and Rainey violated 42 U.S.C. § 1983 by enforcing those laws.
■The parties filed cross-motions for summary judgment. The Plaintiffs also requested a permanent injunction in connection with their motion for summary judgment and moved, in the alternative, for a preliminary injunction in the event that the district court denied their motion for summary judgment. The district court granted a motion by Michele McQuigg-the Prince William County Clerk of Court-to intervene as a defendant on January 21, 2014. Two days later, new Attorney General Mark Herring-as Rainey’s counsel-submitted a formal change in position and refused to defend the Virginia Marriage Laws, although Virginia continues to enforce them. McQuigg adopted Rainey’s prior motion for summary judgment and the briefs in support of that motion.
The district court held that the Virginia Marriage Laws were unconstitutional on February 14, 2014. Bostic v. Rainey,
Rainey, Schaefer, and McQuigg timely appealed the district court’s decision. We
Our analysis proceeds in three steps. First, we consider whether the Plaintiffs possess standing to bring their claims. Second, we evaluate whether the Supreme Court’s summary dismissal of a similar lawsuit in Baker v. Nelson,
II.
Before we turn to the merits of the parties’ arguments in this case, we consider Schaefer’s contention that “[t]he trial court erred as a matter of law when it found all Plaintiffs had standing and asserted claims against all Defendants.” We review the district court’s disposition of cross-motions for summary judgment-including its determinations regarding standing-de novo, viewing the facts in the light most favorable to the non-moving party. Libertarian Party of Va. v. Judd,
To establish standing under Article III of the Constitution, a plaintiff must “allege (1) an injury that is (2) fairly traceable to the defendant’s allegedly unlawful conduct and that is (3) likely to be redressed by the requested relief.” Lujan v. Defenders of Wildlife,
Schaefer serves as the Clerk for the Circuit Court for the City of Norfolk. In Virginia, circuit court clerks are responsible for issuing marriage licenses and filing records of marriage. Va.Code Ann. §§ 20-14, 32.1-267. Although Schall and Townley did not seek a marriage license from Schaefer, the district court found that Bostic and London did so and that Schaefer denied their request because they are a same-sex couple.
Rainey — as the Registrar of Vital Records — is tasked with developing Virginia’s marriage license application form and distributing it to the circuit court clerks throughout Virginia. Va.Code Ann. §§ 32.1-252(A)(9), 32.1-267(E). Neither Schaefer’s nor Rainey’s response to the First Amended Complaint disputes its description of Rainey’s duties:
Defendant Rainey is responsible for ensuring compliance with the Commonwealth’s laws relating to marriage in general and, more specifically, is responsible for enforcement of the specific provisions at issue in this Amended Complaint, namely those laws that limit marriage to opposite-sex couples and that refuse to honor the benefits of same-sex marriages lawfully entered into in other states.
In addition to performing these marriage-related functions, Rainey develops and distributes birth certificate forms, oversees
Rainey’s promulgation of a marriage license application form that does not allow same-sex couples to obtain marriage licenses resulted in Schaefer’s denial of Bostic and London’s marriage license request. For the reasons we describe above, this license denial constitutes an injury. Bostic and London can trace this injury to Rainey due to her role in developing the marriage license application form in compliance with the Virginia Marriage Laws, and the relief they seek would redress their injuries. Bostic and London consequently have standing to sue Rainey.
Schall and Townley also possess standing to bring their claims against Rai-ney. They satisfy the injury requirement in two ways. First, in equal protection cases-such as this case — “[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, .... [t]he ‘injury in fact’ ... is the denial of equal treatment resulting from the imposition of the barrier[.]” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville,
Schall and Townley’s injuries are traceable to Rainey’s enforcement of the Virginia Marriage Laws. Because declaring the Virginia Marriage Laws unconstitutional and enjoining their enforcement would redress Schall and Townley’s injuries, they satisfy standing doctrine’s three requirements with respect to Rainey. In sum, each of the Plaintiffs has standing as to at least one defendant.
III.
Having resolved the threshold issue of whether the Plaintiffs have standing to sue
Summary dismissals qualify as “votes on the merits of a case.” Hicks,
Windsor concerned whether section 3 of the federal Defense of Marriage Act (DOMA) contravened the Constitution’s due process and equal protection guarantees. Section 3 defined “marriage” and “spouse” as excluding same-sex couples when those terms appeared in federal statutes, regulations, and directives, rendering legally married same-sex couples ineligible for myriad federal benefits.
The Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law. The Court’s development of its due process and equal protection jurisprudence in the four decades following Baker is even more instructive. On the Due Process front, Lawrence v. Texas,
The Court has also issued several major equal protection decisions since it decided Baker. The Court’s opinions in Craig v. Boren,
In light of the Supreme Court’s apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that case, we' decline to view Baker as binding precedent and proceed to the meat of the Opponents’ Fourteenth Amendment arguments.
IV.
A.
Our analysis of the Opponents’ Fourteenth Amendment claims has two components. First, we ascertain what level of constitutional scrutiny applies: either rational basis review or some form of heightened scrutiny, such as strict scrutiny. Second, we apply the appropriate level of scrutiny to determine whether the Virginia Marriage Laws pass constitutional muster.
Under both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny.
The Opponents and Proponents agree that marriage is a fundamental right. They strongly disagree, however, regarding whether that right encompasses the right to same-sex marriage. The Opponents argue that the fundamental right to marry belongs to the individual, who enjoys the right to marry the person of his or her choice. By contrast, the Proponents point out that, traditionally, states have sanctioned only man-woman marriages.
Relying on Washington v. Glucksberg, the Proponents aver that the district court erred by not requiring “a careful description of the asserted fundamental liberty interest,”
We do not dispute that states have refused to permit same-sex marriages for most of our country’s history. However, this fact is irrelevant in this case because Glucksberg’s analysis applies only when courts consider whether to recognize new fundamental rights. See id. at 720, 727 & n. 19,
Over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms. Perhaps most notably, in Loving v. Virginia, the Supreme Court invalidated a Virginia law that prohibited white individuals from marrying individuals of other races.
These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of
The Proponents point out that Loving, Zabloeki, and Turner each involved opposite-sex couples. They contend that, because the couples in those cases chose to enter opposite-sex marriages, we cannot use them to conclude that the Supreme Court would grant the same level of constitutional protection to the choice to marry a person of the same sex. However, the Supreme Court’s decisions in Lawrence and Windsor suggest otherwise. In Lawrence, the Court expressly refused to narrowly define the right at issue as the right of “homosexuals to engage in sodomy,” concluding that doing so would constitute a “failure to appreciate the extent of the liberty at stake.”
Of course, “[b]y reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.” Zablocki
B.
Under strict scrutiny, a law “may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” Carey v. Population Servs. Int’l,
1. Federalism
The Constitution does not grant the federal government any authority over domestic relations matters, such as marriage. Accordingly, throughout our country’s history, states have enjoyed the freedom to define and regulate marriage as they see fit. See Windsor,
The Windsor decision rested in part on the Supreme Court’s respect for states’ supremacy in the domestic relations sphere.
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 em
The Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action, — U.S. -,
The Proponents emphasize that Virginia’s voters approved the Marshall/Newman Amendment. Like the Michigan amendment at issue in Schuette, the Marshall/Newman Amendment is the codification of Virginians’ policy choice in a legal arena that is fraught with intense social and political debate. Americans’ ability to speak with their votes is essential to our democracy. But the people’s will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry.
The very purpose of a Bill of Rights9 was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
W. Va. State Bd. of Educ. v. Barnette,
2. History and Tradition
The Proponents also point to the “history and tradition” of opposite-sex marriage as a compelling interest that supports the Virginia Marriage Laws. The Supreme Court has made it clear that, even under rational basis review, the “[a]n-cient lineage of a legal concept does not give it immunity from attack.” Heller v. Doe ex rel. Doe,
3. Safeguarding the Institution of Marriage
In addition to arguing that history and tradition are compelling interests in their own rights, the Proponents warn that deviating from the tradition of opposite-sex marriage will destabilize the institution of marriage. The Proponents suggest that legalizing same-sex marriage will sever the link between marriage and procreation: they argue that, if same-sex couples who cannot procreate naturally-are allowed to marry, the state will sanction the idea that marriage is a vehicle for adults’ emotional fulfillment, not simply a framework for parenthood. According to the Proponents, if adults are the focal point of marriage, “then no logical grounds reinforce stabilizing norms like sexual exclusivity, permanence, and monogamy,” which exist to benefit children.
We recognize that, in some cases, we owe “substantial deference to the predictive judgments” of the Virginia General Assembly, for whom the Proponents purport to speak. Turner Broad. Sys., Inc. v. FCC,
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
4. Responsible Procreation
Next, the Proponents contend that the Virginia Marriage Laws’ differentiation between opposite-sex and same-sex couples stems from the fact that unintended pregnancies cannot result from same-sex unions. By sanctioning only opposite-sex marriages, the Virginia Marriage Laws “provid[e] stability to the types of relationships that result in unplanned pregnancies, thereby avoiding Or diminishing the negative outcomes often associated with unintended children.” The Proponents allege that children born to unwed parents face a “significant risk” of being raised in unstable families, which is harmful to their development. Virginia, “of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years.” Palmore v. Sidoti,
If Virginia sought to ensure responsible procreation via the Virginia Marriage Laws, the laws are woefully underinclu-sive. Same-sex couples are not the only category of couples who cannot reproduce accidentally. For example, opposite-sex couples cannot procreate unintentionally if they include a post-menopausal woman or an individual with a medical condition that prevents unassisted conception.
The Proponents attempt to downplay the similarity between same-sex couples and infertile opposite-sex couples in three ways. First, they point out that sterile individuals could remedy their fertility through future medical advances. This potentiality, however, does not explain why Virginia should treat same-sex and infertile opposite-sex couples differently during the course of the latter group’s infertility. Second, the Proponents posit that, even if one member of a man-woman couple is sterile, the other member may not be. They suggest that, without marriage’s monogamy mandate, this fertile individual is more likely to have an unintended child with a third party. They contend that, due to this possibility, even opposite-sex couples who cannot procreate need marriage to channel their procreative activity in a way that same-sex couples do not. The Proponents’ argument assumes that individuals in same-sex relationships never have opposite-sex sexual partners, which is simply not the case. Third, the Proponents imply that, by marrying, infertile opposite-sex couples set a positive example for couples who can have unintended children, thereby encouraging them to marry. We see no reason why committed same-sex couples cannot serve as similar role models. We therefore reject the Proponents’ attempts to differentiate same-sex couples from other couples who cannot procreate accidentally. Because same-sex couples and infertile opposite-sex couples are similarly situated, the Equal Protection Clause counsels against treating these groups differently. See City of Cleburne,
Due to the Virginia Marriage Laws’ un-derinclusivity, this case resembles City of Cleburne v. Cleburne Living Center, Inc. In City of Cleburne, the Supreme Court struck down a city law that required group homes for the intellectually disabled to obtain a special use permit. Id. at 447-50,
The Proponents’ responsible procreation argument falters for another reason as well. Strict scrutiny requires that a state’s means further its compelling interest. See Shaw,
The Proponents acknowledge that same-sex couples become parents. They contend, however, that the state has no interest in channeling same-sex couples’ procreative activities into marriage because same-sex couples “bring children into their relationship^] only through intentional choice and pre-planned action.” Accordingly, “[t]hose couples neither advance nor threaten society’s public purpose for marriage” — stabilizing parental relationships for the benefit of children — “in the same manner, or to the same degree, that sexual relationships between men and women do.”
In support of this argument, the Proponents invoke the Supreme Court’s decision in Johnson v. Robison,
Johnson applied rational basis review, id. at 374-75,
5. Optimal Childrearing
We now shift to discussing the merit of the final compelling interest that the Proponents invoke: optimal childrearing. The Proponents aver that “children develop best when reared by their married biological parents in a stable family unit.” They dwell on the importance of “gender-differentiated parenting” and argue that sanctioning same-sex marriage will deprive children of the benefit of being raised by a mother and a father, who have “distinct parenting styles.” In essence, the Proponents argue that the Virginia Marriage Laws safeguard children by preventing same-sex couples from marrying and starting inferior families.
The Opponents and their amici cast serious doubt on the accuracy of the Proponents’ contentions. For example, as the American Psychological Association, American Academy of Pediatrics, American Psychiatric Association, National Association of Social Workers, and Virginia Psychological Association (collectively, the APA) explain in their amicus brief, “there is no scientific evidence that parenting effectiveness is related to parental sexual orientation,” and “the same factors” — including family stability, economic resources, and the quality of parent-child relationships — “are linked to children’s positive development, whether they are raised by heterosexual, lesbian, or gay parents.” According to the APA, “the parenting abilities of gay men and lesbians — and the positive outcomes for their children— are not areas where most credible scientific researchers disagree,” and the contrary studies that the Proponents cite “do not reflect the current state of scientific knowledge.” See also DeBoer,
We find the arguments that the Opponents and their amici make on
Because the Proponents’ arguments are based on overbroad generalizations about same-sex parents, and because there is no link between banning same-sex marriage and promoting optimal childrearing, this aim cannot support the Virginia Marriage Laws. All of the Proponents’ justifications for the Virginia Marriage Laws therefore fail, and the laws cannot survive strict scrutiny.
V.
For the foregoing reasons, we conclude that the Virginia Marriage Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages. We therefore affirm the district court’s grant of the Plaintiffs’ motion for summary judgment and its decision to enjoin enforcement of the Virginia 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. 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. 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.
AFFIRMED.
Notes
. Three other states in this Circuit have similar bans: North Carolina, N.C. Const, art. XIV, § 6; N.C. Gen.Stat. §§ 51-1, 51-1.2; South Carolina, S.C. Const, art. XVII, § 15; S.C.Code Ann. §§ 20-1-10, 20-1-15; and West Virginia, W. Va.Code § 48-2-603. The Southern District of West Virginia has stayed a challenge to West Virginia's statute pending our resolution of this appeal. McGee v. Cole, No. 3:13-cv-24068 (S.D.W.Va. June 10, 2014) (order directing stay).
. Schaefer contends that Schall and Townley cannot bring a § 1983 claim against him for the same reason: he did not commit any act or omission that harmed them. To bring a successful § 1983 claim, a plaintiff must show that "the alleged infringement of federal rights [is] 'fairly attributable to the state[.]’ " Rendell-Baker v. Kohn,
. For this reason, and contrary to Schaefer's assertions, Schaefer is also a proper defendant under Ex parte Young,
. Virginia does not explicitly prohibit same-sex couples from adopting children. The Virginia Marriage Laws impose a functional ban on adoption by same-sex couples because the Virginia Code allows only married couples or unmarried individuals to adopt children. Va. Code Ann. § 63.2-1232(A)(6).
. The constitutionality of a law that prohibited marriage from encompassing same-sex relationships was also at issue in Hollingsworth v. Perry, — U.S. -,
. The Equal Protection Clause also dictates that some form of heightened scrutiny applies when a law discriminates based on a suspect or quasi-suspect classification, such as race or gender. See City of Cleburne v. Cleburne Living Ctr.,
. Although some of these arguments appear only in McQuigg’s briefs, we attribute them to
. In Windsor, the Court did not label the type of constitutional scrutiny it applied, leaving us unsure how the Court would fit its federalism discussion within a traditional heightened scrutiny or rational basis analysis. The lower courts have taken differing approaches, with some discussing Windsor and federalism as a threshold matter, see, e.g., Wolf,
. Of course, the Fourteenth Amendment is not part of the Bill of Rights. This excerpt from Barnette is nevertheless relevant here due to the Fourteenth Amendment’s similar goal of protecting unpopular minorities from government overreaching, see Regents of Univ. of Cal. v. Bakke,
. Because we are able to resolve the merits of the Opponents’ claims, we need not consider their alternative request for a preliminary injunction. We assume that the district court's decision to enjoin enforcement of the Virginia Marriage Laws encompassed a permanent injunction, which the Plaintiffs requested in connection with their motion for summary judgment.
Dissenting Opinion
dissenting:
To be clear, this case is not about whether courts favor or disfavor same-sex marriage, or whether States recognizing or declining to recognize same-sex marriage have made good policy decisions. It is much narrower. It is about whether a State’s decision not to recognize same-sex marriage violates the Fourteenth Amendment of the U.S. Constitution. Thus, the judicial response must be limited to an analysis applying established constitutional principles.
The Commonwealth of Virginia has always recognized that “marriage” is based on the “mutual agreement of a man and a woman to marry each other,” Burke v. Shaver,
The plaintiffs, who are in long-term same-sex relationships, are challenging the constitutionality of Virginia’s marriage laws under the Due Process and Equal Protection Clauses of the U.S. Constitution. The district court sustained their challenge, concluding that the plaintiffs have a fundamental right to marry each other under the Due Process Clause of the Fourteenth Amendment and therefore that any regulation of that right is subject to strict scrutiny. Concluding that Virginia’s definition of marriage failed even “to display a rational relationship to a legitimate purpose and so must be viewed as constitutionally infirm,” the court struck down Virginia’s marriage laws as unconstitutional and enjoined their enforcement. Bostic v. Rainey,
The majority agrees. It concludes that the fundamental right to marriage includes a right to same-sex marriage and that therefore Virginia’s marriage laws must be reviewed under strict scrutiny. It holds that Virginia has failed to advance a compelling state interest justifying its definition of marriage as between only a man and a woman. In reaching this conclusion, however, the majority has failed to conduct the necessary constitutional analysis. Rather, it has simply declared syllogistically that because “marriage” is a fundamental right protected by the Due Process Clause and “same-sex marriage” is a form of marriage, Virginia’s laws declining to recognize same-sex marriage infringe the fundamental right to marriage and are therefore unconstitutional.
Stated more particularly, the majority’s approach begins with the parties’ agreement that “marriage” is a fundamental right. Ante at 375-76. From there, the majority moves to the proposition that “the right to marry is an expansive liberty interest,” ante at 376, “that is not circumscribed based on the characteristics of the individuals seeking to exercise that right,” ante at 376. For support, it notes that the Supreme Court has struck down state restrictions prohibiting interracial marriage, see Loving v. Virginia,
This analysis is 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.” And this failure is even more pronounced by the majority’s acknowledgment that same-sex marriage is a new notion that has not been recognized “for most of our country’s history.” Ante at 376. Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation. Thus, the majority never asks the question necessary 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.” Glucksberg,
At bottom, in holding that same-sex marriage is encompassed by the traditional right to marry, the majority avoids the necessary constitutional analysis, concluding simply and broadly that the fundamental “right to marry” — by everyone and to anyone — may not be infringed. And it does not anticipate or address the problems that this approach causes, failing to explain, for example, why this broad right to marry, as the majority defines it, does not also encompass the “right” of a father to marry his daughter or the “right” of any person to marry multiple partners.
If the majority were to recognize and address the distinction between the two relationships — the traditional one and the new one — as it must, it would simply be unable to reach the conclusion that it has reached.
I respectfully submit that, for the reasons that follow, Virginia was well within its constitutional authority to adhere to its traditional definition of marriage as the union of a man and a woman and to exclude from that definition the union of two men or two women. I would also agree that the U.S. Constitution does not prohibit a State from defining marriage to include same-sex marriage, as many States have done. Accordingly, I would reverse the judgment of the district court and uphold Virginia’s marriage laws.
I
As the majority has observed, state recognition of same-sex marriage is a new phenomenon. Its history began in the early 2000s with the recognition in some States of civil unions. See, e.g., Vt. Stat. Ann. tit. 15, §§ 1201-1202 (2000); D.C.Code § 32-701 (1992) (effective in 2002); Cal. Fam.Code §§ 297-298 (2003); N.J. Stat. Ann. § 26:8A-2 (2003); Conn. Gen.Stat. Ann. § 46b-38nn (2006), invalidated by Kerrigan v. Comm’r of Pub.
Virginia only recognizes marriage as between one man and one woman, and, like a majority of States, it has codified this view. See Va.Code Ann. § 20-45.2 (prohibiting same-sex marriage and declining to recognize same-sex marriages conducted in other States); id. § 20-45.3 (prohibiting civil unions and similar arrangements between persons of the same sex). The bill originally proposing what would become § 20-45.3 noted the basis for Virginia’s legislative decision:
[Hjuman marriage is a consummated two in one communion of male and female persons made possible by sexual differences which are reproductive in type, whether or not they are reproductive in effect or motivation. This present relationship recognizes the equality of male and female persons, and antedates recorded history.
Affirmation of Marriage Act, H.D. 751, 2004 Gen. Assembly, Reg. Sess. (Va.2004). The bill predicted that the recognition of same-sex marriage would “radically transform the institution of marriage with serious and harmful consequences to the social order.” Id. Virginia also amended its Constitution in 2006 to define marriage as only between “one man and one woman” and to prohibit “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage.” Va. Const, art. I, § 15-A. The plaintiffs commenced this action to challenge the constitutionality of Virginia’s marriage laws.
Plaintiffs Timothy B. Bostic and Tony C. London have lived in a committed same-sex relationship since 1989 and have lived in Virginia since 1991. The two desired to marry in Virginia, and on July 1, 2013, when they applied for a marriage license at the office of the Clerk of the Circuit Court for the City of Norfolk, they were denied a license and told that same-sex couples are ineligible to marry in Virginia. In their complaint challenging Virginia’s marriage laws, they alleged that their inability to marry has disadvantaged them in both economic and personal ways — it has prevented them from filing joint tax returns, kept them from sharing health in
Plaintiffs Carol Schall and Mary Town-ley likewise have lived in a committed same-sex relationship since 1985 and have lived in Virginia throughout their 29-year relationship. In 1998, Townley gave birth to a daughter, E.S.-T., whom Schall and Townley have raised together, and in 2008, the two traveled to California where they were lawfully married. They alleged in their complaint that because Virginia does not recognize their marriage as valid, they have been injured in several ways. Schall is unable to legally adopt E.S.-T., and the two are unable to share health insurance on a tax-free basis. The two also claimed that they and E.S.-T. have experienced stigma as a result of Virginia’s nonrecognition of their marriage.
The plaintiffs’ complaint, filed in July 2013, alleged that Virginia’s marriage laws violate their constitutional rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They named as defendants George E. Schaefer, III, Clerk of Court for the Norfolk Circuit Court, and Janet M. Rainey, the State Registrar of Vital Records. A third Virginia official, Michele B. McQuigg, Clerk of Court for the Prince William County Circuit Court, was permitted to intervene as a defendant. As elected circuit court clerks, Schaefer and McQuigg are responsible for issuing individual marriage licenses in the localities in which they serve. And Rainey, as the State Registrar of Vital Records, is responsible for ensuring compliance with Virginia’s marriage laws, including the laws challenged in this case.
After the parties filed cross-motions for summary judgment, Virginia underwent a change in administrations, and the newly elected Attorney General of Virginia, Mark Herring, filed a notice of a change in his office’s legal position on behalf of his client, defendant Janet Rainey. His notice stated that because, in his view, the laws at issue were unconstitutional, his office would no longer defend them on behalf of Rainey. He noted, however, that Rainey would continue to enforce the laws until the court’s ruling. The other officials have continued to defend Virginia’s marriage laws, and, for convenience, I refer to the defendants herein as ‘Virginia.”
Following a hearing, the district court, by an order and memorandum dated February 14, 2014, granted the plaintiffs’ motion for summary judgment and denied Virginia’s cross-motion. The court concluded that same-sex partners have a fundamental right to marry each other under the Due Process Clause of the Fourteenth Amendment, thus requiring that Virginia’s marriage laws restricting that right be narrowly drawn to further a compelling state interest. It concluded that the laws did not meet that requirement and, indeed, “fail[ed] to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny.” Bostic,
II
The plaintiffs contend that, as same-sex partners, they have a fundamental right to marry that is protected by the substantive component of the Due Process Clause of the U.S. Constitution, U.S. Const, amend. XIV, § 1 (prohibiting any State from depriving “any person of life, liberty, or property, without due process of law”), and that Virginia’s laws defining marriage as only between a man and a woman and excluding same-sex marriage infringe on
The Constitution contains no language directly protecting the right to same-sex marriage or even traditional marriage. Any right to same-sex marriage, therefore, would have to be found, through court interpretation, as a substantive component of the Due Process Clause. See Planned Parenthood of Southeastern Pa. v. Casey,
The substantive component of the Due Process Clause only protects “fundamental” liberty interests. And the Supreme Court has held that liberty interests are only fundamental if they are, “objectively, ‘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 they were sacrificed.’” Glucksberg,
The Court of Appeals stated that “[pjroperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one’s death,” or, in other words, “[i]s there a right to die?” Similarly, respondents assert a “liberty to choose how to die”-and a right to “control of one’s final days,” and describe the asserted liberty as “the right to choose a humane, dignified death,” and “the liberty to shape death.” As noted above, we have a tradition of carefully formulating the interest at stake in substantive-due-process eases.... The Washington statute at issue in this case prohibits “aidfing] another person to attempt suicide,” and, thus, the question before us is whether the “liberty” specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.
Glucksberg,
Under this formulation, because the Virginia laws at issue prohibit “marriage between persons of the same sex,” Va.Code Ann. § 20-45.2, “the question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right” to same-sex marriage. Glucksberg,
When a fundamental right is so identified, then any statute restricting the right is subject to strict scrutiny and must be “narrowly tailored to serve a compelling state interest.” Flores,
[W]e “ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field, ” lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.
Glucksberg,
The plaintiffs in this case, as well as the majority, recognize that narrowly defining the asserted liberty interest would require them to demonstrate a new fundamental right to same-sex marriage, which they cannot do. Thus, they have made no attempt to argue that same-sex marriage is, “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty.” Glucksberg,
Instead, the plaintiffs and the majority argue that the fundamental right to marriage that has previously been recognized by the Supreme Court is a broad right that should apply to the plaintiffs without the need to recognize a new fundamental right to same-sex marriage. They argue that this approach is supported by the fact that the Supreme Court did not narrowly define the right to marriage in its decisions in Loving,
It is true that, in those cases, the Court did not recognize new, separate fundamental rights to fit the factual circumstances in each case. For example, in Loving, the Court did not examine whether interracial marriage was, objectively, deeply rooted in our Nation’s history and tradition. But it was not required to do so. Each of those cases involved a couple asserting a right to enter into a traditional marriage of the type that has always been recognized since the beginning of the Nation-a union between one man and one woman. While the context for asserting the right varied in each of those cases, it varied only in ways irrelevant to the concept of marriage. The type of relationship sought was always the traditional, man-woman relationship to which the term “marriage” was theretofore always assumed to refer. Thus, none of the cases cited by the plaintiffs and relied on by the majority involved the assertion
To now define the previously recognized fundamental right to “marriage” as a concept that includes the new notion of “same-sex marriage” amounts to a dictionary jurisprudence, which defines terms as convenient to attain an end.
It is true that same-sex and opposite-sex relationships share many attributes, and, therefore, marriages involving those relationships would, to a substantial extent, be similar. Two persons who are attracted to each other physically and emotionally and who love each other could publicly promise to live with each other thereafter in a mutually desirable relationship. These aspects are the same whether the persons are of the same sex or different sexes. Moreover, both relationships could successfully function to raise children, although children in a same-sex relationship would come from one partner or from adoption. But there are also significant distinctions between the relationships that can justify differential treatment by lawmakers.
Only the union of a man and a woman has the capacity to produce children and thus to carry on the species. And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit. Every person’s identity includes the person’s particular biological relationships, which create unique and meaningful bonds of kinship that are extraordinarily strong and enduring and that have been afforded a privileged place in political order throughout human history. Societies have accordingly enacted laws promoting the family unit-such as those relating to sexual engagement, marriage rites, divorce, inheritance, name and title, and economic matters. And many societies have found familial bonds so critical that they have elevated marriage to be a sacred institution trapped with religious rituals. In these respects, the traditional man-woman relationship is unique.
Thus, when the Supreme Court has recognized, through the years, that the right to marry is a fundamental right, it has emphasized the procreative and social ordering aspects of traditional marriage. For example, it has said: “[Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill,
Because there exist deep, fundamental differences between traditional and same-sex marriage, the plaintiffs and the majority err by conflating the two relationships under the loosely drawn rubric of “the right to marriage.” Rather, to obtain constitutional protection, they would have to show that the right to same-sex marriage is itself deeply rooted in our Nation’s history. They have not attempted to do so and could not succeed if they were so to attempt.
In an effort to bridge the obvious differences between the traditional relationship and the new same-sex relationship, the
This reading of Loving is fortified by the Court’s summary dismissal of Baker v. Nelson,
In short, Loving simply held that race, which is completely unrelated to the institution of marriage, could not be the basis of marital restrictions. See Loving,
The plaintiffs also largely ignore the problem with their position that if the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice,” as they contend, then that liberty would also extend to individuals seeking state recognition of other types of relationships that States currently restrict, such as polygamous or incestuous relationships. Cf. Romer v. Evans,
At bottom, the fundamental right to marriage does not include a right to same-sex marriage. Under the Glucksberg analysis that we are thus bound to conduct, there is no new fundamental right to same-sex marriage. Virginia’s laws restricting marriage to man-woman relationships must therefore be upheld if there is any rational basis for the laws.
Ill
Under rational-basis review, courts are required to give heavy deference to legislatures. The standard
simply requires courts to determine whether the classification in question is, at a minimum, rationally related to legitimate governmental goals. In other words, the fit between the enactment and the public purposes behind it need not be mathematically precise. As long as [the legislature] has a reasonable basis for adopting the classification, which can include “rational speculation unsupported by evidence or empirical data,” the statute will pass constitutional muster. The rational basis standard thus embodies an idea critical to the continuing vitality of our democracy: that courts are not empowered to “sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.”
Wilkins v. Gaddy,
In contending that there is a rational basis for its marriage laws, Virginia has emphasized that children are born only to one man and one woman and that marriage provides a family structure by which to nourish and raise those children. It claims that a biological family is a more stable environment, and it renounces any interest in encouraging same-sex marriage. It argues that the purpose of its marriage laws “is to channel the presumptive procreative potential of man-woman relationships into enduring marital unions so that if any children are born, they are more likely to be raised in stable family units.” (Emphasis omitted). Virginia highlights especially marriage’s tendency to promote stability in the event of unplanned pregnancies, asserting that it has “a compelling interest in addressing the particular concerns associated with the birth of unplanned children.... [C]hildren born from unplanned pregnancies where their mother and father are not married to each other are at significant risk of being raised outside stable family units headed by their mother and father jointly.”
Virginia states that its justifications for promoting traditional marriage also explain its lack of interest in promoting
The plaintiffs accept that family stability is a legitimate state goal, but they argue that licensing same-sex relationships will not burden Virginia’s achievement of that goal. They contend that “there is simply no evidence or reason to believe that prohibiting gay men and lesbians from marrying will increase ‘responsible procreation’ among heterosexuals.”
But this argument does not negate any of the rational justifications for Virginia’s legislation. States are permitted to selectively provide benefits to only certain groups when providing those same benefits to other groups would not further the State’s ultimate goals. See Johnson v. Robison,
The plaintiffs reply that even if this is so, such “line-drawing” only makes sense if the resources at issue are scarce, justifying the State’s limited provision of those resources. They argue that because “[m]arriage licenses ... are not a remotely scarce commodity,” the line-drawing done by Virginia’s marriage laws is irrational. But this fundamentally misunderstands the nature of marriage benefits. When the Commonwealth grants a marriage, it does not simply give the couple a piece of paper and a title. Rather, it provides a substantial subsidy to the married couple — economic benefits that, the plaintiffs repeatedly assert, are being denied them. For example, married couples are permitted to file state income taxes jointly, lowering their tax rates. See Va. Code Ann. § 58.1-324. Although indirect, such benefits are clearly subsidies that come at a cost to the Commonwealth. Virginia is willing to provide these subsidies because they encourage opposite-sex couples to marry, which tends to provide children from unplanned pregnancies with a more stable environment. Under Johnson, the Commonwealth is not obligated to similarly subsidize same-sex marriages, since doing so could not possibly further its interest. This is no different from the subsidies provided in other cases where the Supreme Court has upheld line-drawing, such as Medicare benefits, Mathews v. Diaz,
As an additional argument, Virginia maintains that marriage is a “[c]omplex social institution! ]” with a “set of norms, rules, patterns, and expectations that powerfully (albeit often unconsciously) affect people’s choices, actions, and perspec
The plaintiffs agree that changing the definition of marriage may have unforeseen social effects, but they argue that such predictions should not be enough to save Virginia’s marriage laws because similar justifications were rejected in Loving. The Loving Court, however, was not applying rational-basis review. See Loving,
Virginia has undoubtedly articulated sufficient rational bases for its marriage laws, and I would find that those bases constitutionally justify the laws. Those laws are grounded on the biological connection of men and women; the potential for their having children; the family order needed in raising children; and, on a larger scale, the political order resulting from stable family units. Moreover, I would add that the traditional marriage relationship encourages a family structure that is inter-generational, giving children not only a structure in which to be raised but also an identity and a strong relational context. The marriage of a man and a woman thus rationally promotes a correlation between biological order and political order. Because Virginia’s marriage laws are rationally related to its legitimate purposes, they withstand rational-basis scrutiny under the Due Process Clause.
IV
The majority does not substantively address the plaintiffs’ second argument— that Virginia’s marriage laws invidiously discriminate on the basis of sexual orientation, in violation of the Equal Protection Clause — since it finds that the laws infringe on the plaintiffs’ fundamental right to marriage. But because I find no funda- • mental right is infringed by the laws, I also address discrimination under the Equal Protection Clause.
The Equal Protection Clause, which forbids any State from “denying] to any person within its jurisdiction the equal protection of the laws,” U.S. Const, amend. XIV, § 1, prohibits invidious discrimination among classes of persons. Some classifications — such as those based on race, al-ienage, or national origin — are “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or
But when a regulation adversely affects members of a class that is not suspect or quasi-suspect, the regulation is “presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne,
where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.
Id. at 441-42,
The plaintiffs contend that Virginia’s marriage laws should be subjected to some level of heightened scrutiny because they discriminate on the basis of sexual orientation. Yet they concede that neither the Supreme Court nor the Fourth Circuit has ever applied heightened scrutiny to a classification based on sexual orientation. They urge this court to do so for the first time. Governing precedent, however, counsels otherwise.
In Romer v. Evans, the Supreme Court did not employ any heightened level of scrutiny in evaluating a Colorado constitutional amendment that prohibited state and local governments from enacting legislation that would allow persons to claim “any minority status, quota preferences, protected status, or discrimination” based on sexual orientation. Romer,
And the Supreme Court made no change as to the appropriate level of scrutiny in its more recent decision in Windsor, which held Section 3 of the Defense of Marriage Act unconstitutional. The Court was presented an opportunity to alter the Romer standard but did not do so. Although it did not state the level of scrutiny being applied, it did explicitly rely on rational-basis eases like Romer and Department of Agriculture v. Moreno,
Finally, we have concluded that rational-basis review applies to classifications based on sexual orientation. See Veney v. Wyche,
The vast majority of other courts of appeals have reached the same conclusion. See Cook v. Gates,
Thus, following Supreme Court and Fourth Circuit precedent, I would hold that Virginia’s marriage laws are subject to rational-basis review. Applying that standard, I conclude that there is a rational basis for the laws, as explained in Part III, above. At bottom, I agree with Justice Alito’s reasoning that “[ijn asking the court to determine that [Virginia’s marriage laws are] subject to and violate[ ] heightened scrutiny, [the plaintiffs] thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting.” Windsor,
V
Whether to recognize same-sex marriage is an ongoing and highly engaged political debate taking place across the Nation, and the States are divided on the issue. The majority of courts have struck down statutes that deny recognition of same-sex marriage, doing so almost exclusively on the idea that same-sex marriage is encompassed by the fundamental right to marry that is protected by the Due Process Clause. While I express no viewpoint on the merits of the policy debate, I do strongly disagree with the assertion that same-sex marriage is subject to the same constitutional protections as the traditional right to marry.
Because there is no fundamental right to same-sex marriage and there are rational reasons for not recognizing it, just as there are rational reasons for recognizing it, I conclude that we, in the Third Branch, must allow the States to enact legislation on the subject in accordance with their political processes. The U.S. Constitution does not, in my judgment, restrict the States’ policy choices on this issue. If given the choice, some States will surely recognize same-sex marriage and some will surely not. But that is, to be sure, the beauty of federalism.
I would reverse the district court’s judgment and defer to Virginia’s political choice in defining marriage as only between one man and one woman.