On July 28, 2014, the Fourth Circuit ruled 2–1 that Virginia's ban on same-sex marriage is unconstitutional, affirming the district court. Judge Henry Floyd, who was described as the neutral party in the "sharply divided" arguments as noted above, wrote the majority opinion. The majority conclusion is that "Virginia's same-sex marriage bans impermissibly infringe on its citizens'
fundamental right to marry".
Standing In the ruling, the majority first has to tackle the issue of
standing: "Schaefer premises his argument that the Plaintiffs lack standing to bring their claims on the idea that every plaintiff must have standing as to every defendant. However, the Supreme Court has made it clear that 'the presence of one party with standing is sufficient to satisfy
Article III's case-or-controversy requirement.'" As one couple was refused marriage licenses, that "license denial constitutes an injury for standing purposes." As for the second couple, who was legally married in California but did not seek a license, the court finds standing as well, in two ways: (internal quotes and citations omitted) As to the merits of the case, the majority first has to overcome the presumption that
Baker v. Nelson controls the case. Noting that "[e]very federal court to consider this issue since the Supreme Court decided
United States v. Windsor, 133 S. Ct. 2675 (2013), has reached the same conclusion", the majority lists the cases and decides that doctrinal developments since have eroded the "binding force" that a summary dismissal such as
Baker has. The majority lists several major
equal protection decisions since
Baker, such as
Craig v. Boren,
Romer v. Evans, and
Windsor itself.
Level of scrutiny As to defendants' Fourteenth Amendment claims, the majority decides what level of constitutional scrutiny to apply: "Under both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of
strict scrutiny." It notes that the opponents and proponents of Virginia's ban both agree that marriage is such a right, but they disagree as to whether "same-sex marriage" is included. Noting
Loving v. Virginia,
Zablocki v. Redhail, and
Turner v. Safley the majority states: "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. ... These 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."
Analysis under strict scrutiny Finding that the fundamental right to marriage is inclusive of same-sex marriage, the majority goes on to strict scrutiny analysis. The state makes several arguments related to justifying the ban: "(1) Virginia's federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation, and (5) promoting the optimal childrearing environment." As to the first argument, and citing
Schuette v. Coalition to Defend Affirmative Action, the state notes that Virginia voters have the right to determine what marriage is. The majority counters with the reasoning that "the people's will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry," and goes on to cite
West Virginia State Board of Education v. Barnette: As to the second argument, the majority responds citing
Heller v. Doe ex rel. Doe: "The Supreme Court has made it clear that, even under rational basis review, the '[a]ncient lineage of a legal concept does not give it immunity from attack.'" In dismissing the third and fourth arguments, the majority finds that the Supreme Court severed the link between marriage and children and upheld a right not to procreate in
Griswold v. Connecticut: It also states: "If Virginia sought to ensure responsible procreation via the [same-sex marriage ban], the laws are woefully underinclusive. Same-sex couples are not the only category of couples who cannot reproduce accidentally. For example, opposite-sex couples cannot procreate unintentionally if they include a post-menopausal woman or an individual with a medical condition that prevents unassisted conception.... We therefore reject ... attempts to differentiate same-sex couples from other couples who cannot procreate accidentally. Because same-sex couples and infertile opposite-sex couples are similarly situated, the Equal Protection Clause counsels against treating these groups differently." Also, the "responsible procreation argument falters for another reason as well. Strict scrutiny requires that a state's means further its compelling interest. ... Prohibiting same-sex couples from marrying and ignoring their out-of-state marriages does not serve Virginia's goal of preventing out-of-wedlock births. Although same-sex couples cannot procreate accidentally, they can and do have children via other methods." Finally, on the optimal childrearing argument, the majority finds that the same-sex couples' and their
amici supporters' arguments on that issue are "extremely persuasive." However, the majority needs not resolve the dispute, as first, in
United States v. Virginia, it finds that "under
heightened scrutiny, states cannot support a law using overbroad generalizations about the different talents, capacities, or preferences of the groups in question" (internal quotes omitted), and second, "strict scrutiny requires congruity between a law's means and its end. This congruity is absent here. There is absolutely no reason to suspect that prohibiting same-sex couples from marrying and refusing to recognize their out-of-state marriages will cause same-sex couples to raise fewer children or impel married opposite-sex couples to raise more children."
Conclusion The majority concluded:
Dissent Circuit Judge Niemeyer dissented from the ruling. Citing
Washington v. Glucksberg, he rejected the majority's reasoning: In Niemeyer's view, the correct course of action would be to reverse the judgment below and to defer to Virginia's political determination of the definition of marriage. ==Post-appellate procedure==