Monday, July 28, 2014

Virginia! (round 2)

The 4th Circuit Court of Appeals agreed with a lower court that Virginia's ban on same-sex marriage is unconstitutional. The 4th Circuit covers Maryland, Virginia, West Virginia, and North and South Carolina. If this ruling isn't appealed it will apply to all five states.

This is the second Circuit Court to agree that same-sex marriage is a good thing. Last month the 10th Circuit struck down the bans in Utah and Oklahoma.

Shortly after the ruling the Attorney General of North Carolina said he would no longer defend that state's same-sex marriage ban because such effort would be "futile." There are four cases challenging the NC ban.

The three-judge panel that wrote this ruling was not unanimous. Judge Paul Niemeyer dissented. The majority opinion is familiar: Marriage is a fundamental right (which the Supremes have affirmed over 15 times). And it is a violation of the 5th and 14th Amendments to deny that right to same-sex couples.

While good hand helpful that opinion is not all that interesting. Which is why Ari Ezra Waldman takes a look at the dissenting opinion. Niemeyer was appointed by Bush I. The basic idea of his opinion is: Yeah, marriage is a fundamental right. But same-sex marriage isn't marriage. It is something new. Therefore it isn't what the Supremes talked about as a fundamental right.

Waldman says this reasoning was tried in the sodomy cases that went before the Supremes. There's sex and there's gay sex. And the first case said there is no right to gay sex. But the second ruling said looking at just the sex is crass. The actual rights are about freedom of association, freedom to love, and freedom of expression.

So there is a very good chance the Supremes will disagree with Niemeyer's dissent.

There are now two Circuit Courts who have affirmed same-sex marriage. Both will go to the Supremes. But since there is no conflict between these two rulings the Supremes don't have to take the cases.

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