July 28, 2014 at 1:34 pm EDT | by Michael K. Lavers
BREAKING: Federal appeals court strikes down Va. marriage ban
Fourth Circuit Court of Appeals, marriage equality, gay marriage, same-sex marriage, Virginia, Richmond, gay news, Washington Blade, Emily Schall-Townley, Carol Schall, Mary Townley

Emily Schall Townley spoke at a press conference following oral arguments in the Virginia same-sex marriage case on May 13. (Washington Blade photo by Michael Key)

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., on Monday struck down Virginia’s constitutional amendment that defines marriage as between a man and a woman.

The 2-1 decision comes slightly more than two months after Judges Paul V. Niemeyer, Roger L. Gregory and Henry F. Floyd heard oral arguments in a lawsuit that Tim Bostic and Tony London of Norfolk filed against the marriage amendment last year.

Carol Schall and Mary Townley of Chesterfield joined the Bostic case last September.

“We conclude that Virginia’s same-sex marriage bans impermissibly infringe on its citizens’ fundamental right to marry,” wrote Floyd for the majority.

Floyd also rejected the defendants’ arguments that Virginia’s marriage amendment is necessary for the procreation and rearing of children.

“A stable marital relationship is attractive regardless of a couple’s procreative ability,” he wrote. “Allowing infertile opposite-sex couples to marry does nothing to further the government’s goal of channeling procreative conduct into marriage. Thus, excluding same-sex couples from marriage due to their inability to have unintended children makes little sense.”

Niemeyer took a different view in his dissenting opinion.

“Only the union of a man and a woman has the capacity to produce children and thus to carry on the species,” he wrote. “And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit.”

Niemeyer also said “the fundamental right to marriage does not include a right to same-sex marriage.”

The ruling comes less than six months after U.S. District Court Judge Arenda L. Wright Allen struck down Virginia’s marriage ban that voters in 2006 approved by a 57-43 percent margin.

Norfolk Circuit Court Clerk George Schaefer, III, and Prince William County Circuit Court Clerk Michèle McQuigg, who is represented by the anti-LGBT Alliance Defending Freedom, appealed Allen’s decision.

The 4th Circuit earlier this year ruled the American Civil Liberties Union and Lambda Legal, who represent Joanne Harris and Jessica Duff of Staunton and Victoria Kidd and Christy Berghoff of Winchester who filed a separate lawsuit against Virginia’s marriage amendment last August, could intervene in the case.

Virginia Attorney General Mark Herring announced shortly after he took office in January that he would not defend the gay nuptials ban. The Alliance Defending Freedom and other anti-LGBT groups filed briefs with the 4th Circuit in support of the marriage amendment.

“Today is yet another victory for the principle of equality that is so central to the American experience,” said Herring in a statement. “I am proud that the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day.”

White House Press Secretary Josh Earnest also welcomed the 4th Circuit’s decision.

“It does sound like the kind of decision that is consistent with the president’s views on this topic,” he said.

Victoria Cobb, president of the Family Foundation of Virginia, noted in a statement that criticized the 4th Circuit’s ruling that 1.3 million commonwealth residents voted for the state’s marriage amendment.

“A substantial majority of Virginia’s voters approved an amendment to Virginia’s Constitution that affirms that marriage is the union of one man and one woman,” she said. “It’s unfortunate that the court rejected the right of Virginians to define marriage consistent with their concern with what’s best for children and society as a whole.”

Same-sex couples are able to legally marry in 19 states and D.C.

More than two dozen federal and state courts have ruled in favor of nuptials for gays and lesbians since the U.S. Supreme Court in June 2013 struck down a portion of the Defense of Marriage Act. These include the 10th U.S. Circuit Court of Appeals’ decisions in recent weeks that upheld lower court rulings that found state constitutional amendments banning same-sex marriage in Oklahoma and Utah unconstitutional.

Utah Attorney General Sean Reyes earlier this month announced he would appeal the ruling to the U.S. Supreme Court, as opposed to seeking an en banc re-hearing before the full 10th Circuit. Oklahoma officials have yet to formally announce an appeal of the federal appellate court’s decision, but they are widely expected to do so.

The decision is scheduled to take effect on Aug. 18, but it will likely be stayed pending the outcome of a likely motion for an en banc hearing with the full 4th Circuit or an appeal directly to the U.S. Supreme Court.

The decision’s ultimate outcome could also impact same-sex marriage bans in West Virginia, North Carolina and South Carolina that fall under the court’s jurisdiction.

North Carolina Attorney General Roy Cooper announced shortly after the 4th Circuit released its ruling in the Bostic case that his office will no longer defend his state’s constitutional amendment that bans same-sex marriage.

“Our attorneys have vigorously argued this case every step of the way,” said Cooper during a press conference as WNCN, a Raleigh television station, reported. “But the 4th Circuit has ruled and the 4th Circuit is clear. There are really no arguments left to be made.”

Maryland, which is also in the 4th Circuit, has already extended marriage rights to same-sex couples.

Chris Johnson contributed to this report.

Brian Brown, NOM, National Organization for Marriage, gay marriage, same-sex marriage, marriage equality, Virginia, Fourth Circuit Court of Appeals, gay news, Washington Blade

Brian Brown of the National Organization for Marriage speaks outside the 4th U.S. Circuit Court of Appeals in Richmond, Va., on May 13 (Washington Blade photo by Michael Key)

Michael K. Lavers has been a staff writer for the Washington Blade since May 2012. The passage of Maryland's same-sex marriage law, the HIV/AIDS epidemic, the burgeoning LGBT rights movement in Latin America and the consecration of gay New Hampshire Bishop V. Gene Robinson are among the many stories he has covered since his career began in 2002. Follow Michael

  • El Dorado

    Niemeyer took a different view in his dissenting opinion. “Only the union of a man and a woman has the capacity to produce children and thus to carry on the species,” he wrote. “And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit.” Niemeyer also said “the fundamental right to marriage does not include a right to same-sex marriage.”
    ========================================================================
    I don’t see anything in his view that’s based on a constitutional reference. Where does it state exactly that same-sex couples do not have a fundamental right to marry let alone anything about marriage being about procreation? I thought conservatives like him adhere to a strict word-by-word interpretation of the law?

    If this doesn’t reek of a right-wing activist judge nothing does. Is Neimeyer a Christian conservative activist? Is he a member of groups like the Family Research Council? Is that what he means by a “stable Political Unit”? I thought the law was supposed to be blind not political when it comes to equal justice under the law.

    Where exactly does it say that marriage is only about procreation? Since when it a fertility test required for a marriage license? I guess infertile heterosexual couples have no rational reason to be married then.

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