4th Circuit strikes down Va. marriage amendment, clerk considering appeal

The following quote may be attributed to Alliance Defending Freedom Senior Counsel Byron Babione regarding the U.S. Court of Appeals for the 4th Circuit’s 2-1 decision Monday in Bostic v. Schaefer to strike down Virginia’s voter-approved constitutional amendment that affirmed marriage as the union of one man and one woman. ADF attorneys represent Prince William County Clerk of Court Michéle B. McQuigg in defense of the amendment.

“Every child deserves a mom and a dad, and the people of Virginia confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union. In his dissent, Judge Niemeyer correctly noted that ‘there is no fundamental right to same-sex marriage and there are rational reasons for not recognizing it’ and that the 4th Circuit, as with other courts, ‘must allow the States to enact legislation on the subject in accordance with their political processes.’ We are consulting with our client and considering her options. Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court. If the high court remains consistent with its acknowledgement in its Windsor decision of the right of states to define marriage, the states will ultimately be free to preserve man-woman marriage should they choose to do so.”

Excerpts from dissent by 4th Circuit Judge Paul V. Niemeyer:

pp. 64-65: “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, 23 S.E. 749, 749 (Va. 1895), and that a marriage’s purposes include ‘establishing a family, the continuance of the race, the propagation of children, and the general good of society,’ Alexander v. Kuykendall, 63 S.E.2d 746, 748 (Va. 1951). In recent years, it codified that understanding in several statutes, which also explicitly exclude from the definition of ‘marriage’ the union of two men or two women. Moreover, in 2006 the people of Virginia amended the Commonwealth’s Constitution to define marriage as only between ‘one man and one woman.’ Va. Const. art. I, § 15-A…. The majority…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.”

pp. 67-68: “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.”

p. 98: “Because there is no fundamental right to same-sex marriage and there are rational reasons for not 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.”