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News analysis: Fourth Circuit's "strict scrutiny" opinion on gay marriage is huge

Today's opinion by the Fourth Circuit Court of Appeals upholding a lower court's ruling that Virginia's ban on gay marriage is unconstitutional just may be a bigger deal than the one by the Tenth Circuit in the Utah and Oklahoma cases.


Because the majority of appellate judges applied strict scrutiny to the Virginia appeals case, unlike in the Tenth Circuit. Strict scrutiny is the most stringent standard of judicial review and is typically applied in cases involving constitutional rights or principles.

In the Tenth Circuit case, Judge Jerome Holmes (a George W. Bush appointee and the first African-American to sit on the Tenth Circuit bench) argued that animus toward gay people did not play an issue in 2004 passage of the ban on gay marriage in Oklahoma. He noted that only four cases out of about 20 gay marriage cases had decided that animus was a factor. Judge Holmes' argument led The New York Times today to write this article: Ruling Poses Potential Obstacle at Supreme Court for Same-Sex Marriage.

Celebrated lawyer David Bois, one of the plaintiffs' attorneys for AFER in Bostic v. Schaefer, stressed today during a conference call with the national media that the Fourth Circuit's ruling was a "very powerful opinion" because the appellate judges said that strict scrutiny was utilized to reach their decision. The lone dissenting appellete judge disagreed that strict scrutiny was necessary.

Furthermore, Bois predicted that this ruling will become "controlling law" for the Fourth Circuit, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia. While Maryland has already embraced marriage equality, the other states are being sued for marriage rights.

The Fourth Circuit did not stay its opinion today, and Jon Davidson of Lambda Legal discussed what could happen.

"Today's Fourth Circuit decision is not yet final. It won't be final until at least Aug. 18 (it could be longer if a petition for rehearing is sought) and, of course, a stay of today's decision by the Fourth Circuit or the Supreme Court might be sought by the clerks who defended the Virginia marriage ban. In addition, while nothing in the decision is unique to Virginia law and, once it becomes final, it will be binding precedent on the district courts in North Carolina, South Carolina and West Virginia, the decision itself does not order the clerks in North Carolina, South Carolina or West Virginia to do anything. Nonetheless, just as the Boulder County (Colorado) clerk decided to allow same-sex couples to marry once the Tenth Circuit issued its decision invalidating Utah's marriage ban, clerks in North Carolina, South Carolina or West Virginia might conclude that their obligation to follow the mandates of the U.S. Constitution (as now explicated by the 4th Circuit) overrides their duty to follow state law," Davidson said.

"The problem is that there would be some cloud over the validity of any marriages entered in derogation of state law before a final ruling governing that state has issued, as is true regarding the marriages entered by same-sex couples in Boulder and other counties in Colorado. While strong arguments exist that such marriages are valid, people need to remember that same-sex couples who married in San Francisco and Portland, Oregon before there was a ruling that those states' marriage laws were ruled to be unconstitutional saw their marriages held void. Because there is no decision yet on that precise issue in Colorado, the clerk in Boulder is warning same-sex couples who marry there that their marriages might subsequently be held to be void. So, the best advice for same-sex couples is to wait until there are final rulings unless it is worth taking the risk that the marriage might be voided (for example, if a child of the couple may be born in the interim, or if one of the members of the couple is gravely ill)."

During the conference call, AFER legal lion Ted Olson warned to expect a stay to be issued if and when the ruling is appealed. Since the state of Virginia, the Democratic Governor and Democratic Attorney General will not defend the discriminatory ban, any appeal -- either to the full appeals court or directly to the U.S. Supreme Court -- would have to come from the two county clerks who were granted legal standing.

Like in the Tenth Circuit ruling, other states affected by the Fourth Circuit opinion have reacted. After the Tenth Circuit issued its opinion, county clerks in Colorado began issuing marriage licenses and, indeed, hundreds of Colorado gay and lesbian couples married. The state's Republican Attorney General has been suing the clerks in court to halt the marriages, pending appeal.

North Carolina's Attorney General Roy Cooper, a Democrat, said he reviewed the opinion and said his office will no longer defend lawsuits seeking to overturn the recently passed ban on gay marriage.

Evan Wolfson, president of Freedom to Marry, said the sign is on the wall.

"Attorney General Roy Cooper's principled decision to stop spending North Carolina's taxpayers' money to defend indefensible marriage discrimination puts him in good company, alongside the U.S. Attorney General and eight of his state counterparts. The Constitution's command is clear, as is the writing on the wall -- and it's time to end marriage discrimination and proclaim liberty throughout the land, including North Carolina and Virginia where so many loving and committed couples are eager to share in the freedom to marry," Wolfson said.

According to Freedom to Marry, Cooper becomes the ninth state attorney general who has refused to defend a state marriage ban. Cooper joins AGs in California, Illinois, Kentucky, New Mexico, Nevada, Oregon, Pennsylvania and Virginia. Each refused to defend anti-marriage laws in their states, declaring them unconstitutional and indefensible, as have nearly 30 consecutive rulings in state and federal courts across the country.

However, the Attorney Generals of South Carolina and West Virginia have not taken such a stand. South Carolina's AG Alan Wilson, a Republican, vows to continue to defend the state's gay marriage ban. West Virginia's AG Pattrick Morrisey, a Republican, is "withholding comment," according to a tweet by Charleston Daily Mail's Capitol Bureau Chief Dave Boucher, until the decision is final. But Boucher also tweeted that the AG's Office noted that "West Virginia’s case remains pending, so...marriage laws are still in effect as enacted by the Legislature,” according to BuzzFeed.

Bostic v. Schaefer 4th Circuit Court Decision