Brett Turner, Senior Attorney, National Legal Research Group
A panel opinion has been released in Bostic v. Schaefer, the second Circuit Court case to decide the same-sex marriage issue after Windsor. The opinion holds by a 2-1 margin that Virginia's constitutional and statutory provisions barring same-sex marriage are unconstitutional. Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, 2014 WL 3702493 (4th Cir. July 28, 2014).
Like the Tenth Circuit majority opinion reaching the same result, Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014), the Fourth Circuit majority opinion finds that same-sex marriage is a fundamental right. The court denied that it was creating a new right, instead holding that the already-recognized fundamental right of marriage applies to same sex-couples. "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." Id. at *9. The Supreme Court's "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." Id. "If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed." Id.
Because the right to marriage was fundamental, it could be restricted only in the presence of a compelling state interest. The court rejected the argument that Virginia had a federalism-based right to define marriage however it wished, emphasizing a passage from Windsor stating that state law restrictions on marriage must respect constitutional rights. "Windsor does not teach us that federalism principles can justify depriving individuals of their constitutional rights; it reiterates Loving's admonition that the states must exercise their authority without trampling constitutional guarantees." Id. at *11.
The court further rejected the much more questionable arguments that restrictions upon same-sex marriage are justified by following history and tradition, safeguarding the institution of marriage, encouraging responsible procreation, and promoting optimal child-rearing.
Like Kitchen, Bostic contains remarkably little rhetoric on the positive policy value of recognizing a fundamental right to same-sex marriage. It fundamentally concludes that because the Supreme Court has extended the right to same-sex marriage to some groups of persons, the right applies to everyone.
But as this blog has noted previously, the fundamental right of marriage does not apply to everyone. In particular, it almost certainly does not extend to persons who wish to enter into incestuous or bigamous marriages. Why do same-sex marriages fall into the same category as opposite-sex marriages, and not into the same category as incestuous or bigamous marriages? The court gave the following answer:
Lawrence [v. Texas] and Windsor indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships. We therefore have no reason to suspect that the Supreme Court would accord the choice to marry someone of the same sex any less respect than the choice to marry an opposite-sex individual who is of a different race, owes child support, or is imprisoned.
Id. at *10. The court therefore read recent Supreme Court case law broadly to suggest that same-sex persons enjoy the same set of fundamental rights as opposite-sex persons. This is a satisfactory technical answer.
Still, the opinion would have been stronger if the court had stressed the remarkable change in public attitudes toward same-sex marriage occurring over the past decade. That change, more than any factor, is the reason why same-sex persons now have the same fundamental rights as opposite-sex persons. If this change in fundamental rights comes only from the policy preferences of judges, then judges have the power to rewrite the Constitution at will. The author is not a constitutional originalist, but he finds the notion of unlimited judicial power to rewrite the Constitution very troubling. Extending the fundamental right to marriage to same-sex couples is a fundamental change in American constitutional law, and it must be supported by something more than the policy preferences of judges.
Judge Niemeyer dissented, becoming the second federal judge to write an opinion that would allow states to restrict same-sex marriage. (The first opinion was Judge Kelly's dissent in Kitchen.) The dissenting opinion expressly noted the majority's failure to explain why its expansive definition of the fundamental right to marry does not extend to incestuous or bigamous marriages. The answer, logically, is that public support for same-sex marriage is strong and growing, especially among young people, while public opposition to incestuous and bigamous marriage is as strong as ever. Because the majority opinion failed to emphasize public opinion, the dissent won some debating points on the fundamental right to marriage issue.
More troubling, the dissent seemed to accept the arguments that same-sex marriage threatens procreation and encourages irresponsible child-raising. Based on these concerns, the dissent stated that "there exist deep, fundamental differences between traditional and same-sex marriage." Id. at 24. This portion of the dissent expresses views that a majority of Americans might well find to approach bigotry. Americans are increasingly rejecting the motion that same-sex marriage is different from opposite-sex marriage; that is why public opposition to same-sex marriage has dropped so sharply in recent years. Parts of the dissent seem to fall into the same trap as the majority: defining fundamental constitutional rights in terms of the personal policy views of judges.
A legal realist might claim that there is no way for judges to determine what rights are fundamental, other than to look at their own policy preferences. But there are ways to measure the "fundamentalness" of a right more objectively. This blog previously looked at two such sources: the number of states recognizing a right under state law, and the support for the right in public opinion surveys. The former measure suggests that the right to same-sex marriage is not yet fundamental; the latter measure suggests that the right probably is close to being fundamental.
After finding that the right to same-sex marriage was not fundamental, the dissent then argued that Virginia's restrictions upon same-sex marriage have a rational basis and are therefore constitutional.
Comparing Judge Kelley's dissent in Kitchen with Judge Niemeyer's dissent in Bostic, the author finds Judge Kelly's dissent stronger. Judge Kelly's dissent was based more clearly on federalism concerns, arguing that the debate over same-sex marriage should be resolved by elections and not by federal judges. This is by far the strongest argument against recognition of a fundamental right to same-sex marriage. Judge Niemeyer, by contrast, seemed to be more influenced by personal distaste for same-sex marriage, a distaste which is increasingly not shared by his fellow citizens. For opponents of a fundamental right to same-sex marriage to gain any ground in public opinion, they must articulate a solid legal argument without veering into bigotry. That is a fine line to walk, and Judge Kelly walked it better than Judge Niemeyer.
Looking forward, it is a defeat for opponents of same-sex marriage that they won only one panel vote in the Fourth Circuit. The Fourth Circuit is generally conservative, and it is one of the Circuits originally seen as most likely to reject a fundamental right to same-sex marriage. It will be interesting to see whether the appellants file a petition to have the case heard en banc, and if so, how the entire Fourth Circuit will rule.
