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Religious Tolerance logo

Virginia: Recognition of same-sex relationships & marriage equality

Part 9:
2014-JUL: Bostic v. Rainey: Court of Appeals
issued ruling favoring marriage equality (Cont'd).
Various reactions to the ruling by media, judges,
state officials, and lawyers:

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"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
SSM refers to same-sex marriage.

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This topic is a continuation from the previous essay

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gavel2014-JUL-28: Court of Appeals issues ruling on same-sex marriage (Cont'd):

A three-judge panel of the 4th U.S. Circuit Court of Appeals declared that the Virginia ban on same-sex marriages is unconstitutional. The ban was contained in the Marshall-Newman Amendment that was approved by the voters and added to the state Constitution in 2006. Since that vote was taken, support for marriage by same-sex couples has increased in the state until now about 55% of voters favor marriage equality.

The Circuit Court judges voted 2 to 1 in favor of terminating the ban and introducing marriage equality to Virginia. This was the third decision by a panel of a Circuit Court of Appeals on the same topic. A three-judge panel of the 11th U.S. Circuit Court of Appeals had come to the same conclusion in rulings for Utah and Oklahoma earlier this year.

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Reactions from USA Today:

Richard Wolf, writing for USA Today said that this ruling makes it:

"... more likely that the [U.S.] Supreme Court will settle the issue as early as next year." 1

Opinions differ on whether this ruling will speed up or slow down an appeal to the high court:

  • Some feel that the more rulings in favor of marriage by same-sex couples that are issued by Circuit Courts of Appeals, the more likely it is that the U.S. Supreme Court will agree to issue certiorari and accept an appeal in one or more of the cases. When the Supreme Court finally rules, it would probably end the patchwork of marriage laws across the U.S., where 45% of adult same-sex couples live in locations where they can marry, and 55% are in states where they cannot. A couple going on a short road trip can be recognized as married in one location, as only civil unionized in others, and as legal strangers -- mere roommates -- in other states. The consequences if a medical emergency occurs can be life-threatening. Of course, the high could either ban same-sex marriages in all states, or make such marriages available in all states, or make them available in some states but not in others.

  • Others feel that the U.S. Supreme Court is more likely to accept an appeal if various Circuit Courts of Appeals' rulings have disagreed on the same topic. That way, the high court can follow one of its its main responsibility which is to resolve disputes between or among lower courts, and to harmonize laws across the country.

He also commented:

The Virginia case stands out for at least three reasons:

  • It comes from the South, a region that has yet to embrace gay marriage.

  • The state attorney general is the first at the appellate level to refuse to defend such a law since the California case [Hollingsworth v. Perry] that made it to the Supreme Court last year.

  • And the lawyers for the original gay and lesbian plaintiffs, Theodore Olson and David Boies, are the same ones who won gay marriage rights in California last year. 1

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Statements by two Circuit Judges from the 3-judge panel:

Judge Henry Floyd, was originally appointed a district judge by George W. Bush and elevated to the 4th Circuit Court by President Obama. Writing for the majority, he referred to the Due Process and Equal Protection clauses in the 14th Amendment of the U.S. Constitution. He wrote:

"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." 2

He also wrote a passage that might be widely quoted in the future:

"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." 2

In dissent, Presiding Judge Paul Niemeyer, who was nominated by George H.W. Bush, wrote.

"I do strongly disagree with the assertion that same-sex marriage is subject to the same constitutional protections as the traditional right to marry. I would reverse the district court's judgment and defer to [the voters of] Virginia's political choice in defining marriage as only between one man and one woman." 2

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Reactions by Virginia state officials:

Virginia Attorney General Mark Herring (D) said during a press conference that he is proud that:

"... the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day. ... Sometimes battles have been fought in the legislature, sometimes in the courtroom, sometimes even in the streets, but inevitably no effort to restrict the rights or limit the opportunities of our fellow Americans has ever succeeded in the long term." 3

Virginia Governor Terry McAuliffe (D) said:

"I think yesterday's decision sends the signal that Virginia is open and welcoming to everyone. I want you to stay here, I want you to start a business here. I want you to bring your businesses to Virginia." 4

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Reactions by the plaintiffs' and defendants' lawyers:

Theodore B. Olson (R) had joined with lawyer David Boies (D) to represent the plaintiffs in the case Hollingsworth v. Perry case. In mid-2013, the U.S. Supreme Court's ruling in mid-2013 overturned the famous Proposition 8 and restored marriage for same-sex couples in California. They joined again to represent the plaintiffs in Bostic v. Rainey.

Olson commented on the number of recent affirmative decisions by state and federal courts in favor of marriage equality. He said:

"I have never seen anything like it, where an important constitutional issue has been decided again and again and again by federal courts throughout the United States in precisely the same way." 3

David Boies described the court ruling as "powerful." He said:

"It holds that the Virginia marriage laws seriously harm plaintiffs, and seriously harms the children that the plaintiffs raise." 5

Brian Babione is a senior counsel at Alliance Defending Freedom, a conservative Christian legal defense group represented one of the defendants -- a country clerk who issues marriage licenses. He said:

"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'." 1

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This topic continues in the next essay

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. Richard Wolf, "Appeals court ruling clears way for gay marriage in the heart of Bible Belt ," Washington Post, 2014-JUL-29, at:
  2. "Appeals panel strikes down Virginia gay marriage ban," USA Today, 2014-JUL-28, at:
  3. Robert Barnes and Jenna Portnoy, "Appeals court upholds decision overturning Virginia’s same-sex marriage ban." Washington Post, 2014-JUL-28, at:
  4. Justin Ward, "McAuliffe responds to marriage ruling, 'I'm overjoyed'," WDBJ-7, 2014-JUL-29, at:
  5. Ariane de Vogue, "Gay Marriage: One Step Closer to the Supreme Court? Here’s Why Virginia Matters," 2014-JUL-28, at:

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How you got here

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Virginia > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JUL-29
Latest update: 2014-AUG-15
Author: B.A. Robinson

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