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to Section One | to Arts & Entertainment
posted Friday, August 1 2014 - Volume 42 Issue 31
Fourth Circuit upholds Virginia marriage decision - North Carolina AG drops appeal
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Fourth Circuit upholds Virginia marriage decision - North Carolina AG drops appeal

by Mike Andrew - SGN Staff Writer

The Fourth Circuit Court of Appeals upheld a lower court ruling striking down Virginia's ban on same-sex marriages. In a July 27 decision, a three-judge panel of the Fourth Circuit ruled 2-1 that Virginia state law violates the equal protection and due process clauses of the U.S. Constitution, and is, therefore, unenforceable.

Just hours after the Fourth Circuit's decision, the Attorney General of North Carolina announced that his state will no longer defend its own same-sex marriage ban. North Carolina is also under the jurisdiction of the Fourth Circuit.

'We recognize that same-sex marriage makes some people feel uncomfortable,' the appeals court said in its ruling.

'However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. 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.'

Clinton appointee Judge Roger Gregory joined Judge Henry Floyd, who was named to the federal bench by George W. Bush and elevated to the circuit court by President Obama in 2011, to make up the majority. Presiding Judge Paul Niemeyer, a George H.W. Bush nominee, dissented.

The court's opinion is not effective immediately. The judges allowed time for the State of Virginia to ask for an en banc hearing - in other words a ruling by all the judges of the Fourth Circuit - or to file an appeal to the U.S. Supreme Court.

Nevertheless, AFER (American Foundation for Equal Rights), which represented the plaintiffs in the Virginia lawsuit, called the decision 'monumental' in scope.

'Today's decision sends the message that loving couples like our plaintiffs - Tim Bostic and Tony London, and Carol Schall and Mary Townley - are entitled to the same basic rights and protections as every other American,' AFER said in a statement.

'Today's decision is monumental as it also paves the way for West Virginia, North Carolina, and South Carolina to strike down their marriage bans as those states fall under the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit.'

Freedom to Marry called on the U.S. Supreme Court to establish a national precedent for marriage equality.

'Every day of denial is a day of injustice and tangible harms,' the group said. 'It's time for the Supreme Court to bring the country to national resolution and secure the freedom to marry for all.'

North Carolina goes along North Carolina Attorney General - and probable Democratic nominee for governor - Roy Cooper said that in light of the appeals court decision he saw no point in continuing to defend his state's ban on Gay and Lesbian marriages.

'After reviewing the Fourth Circuit decision and consulting with attorneys here, I have concluded that the State of North Carolina will not oppose the cases moving forward,' Cooper said in a statement issued soon after the Fourth Circuit ruled.

'In addition, the State of North Carolina will acknowledge the Fourth Circuit opinion that marriage is a fundamental right and that our office believes that the judges are bound by this Fourth Circuit decision. In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable. Since the U.S. Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time. So it's time for the State of North Carolina to stop making them.'

Cooper endorsed marriage equality in October 2013, but also said he felt bound by his office to defend state law.

Chris Brook, legal director for the ACLU of North Carolina, which is representing nine couples in two of the North Carolina cases, called the circuit court decision a victory, and said his clients planned to push forward with their cases on the district court level.

'State marriage bans, such as the one we have here in North Carolina, are living on borrowed time,' Brook said. 'It's a matter of when - not if - they are struck down.'

He added that Cooper's announcement only underscores the recent and continuing string of legal victories for same-sex marriage advocates.

'At a certain point, a good lawyer knows a losing cause when he sees one,' Brook said.

'Today's ruling is further proof that there is not a single valid legal argument to uphold [North Carolina's] Amendment One,' said Rev. Jasmine Beach-Ferrara, Executive Director of the Campaign for Southern Equality.

'It's not a question of if Amendment One will be struck down, but when. Each day that North Carolina's ban on same-sex marriage remains on the books, families are harmed. The Campaign for Southern Equality will continue to call for swift action from the courts to overturn Amendment One, and for citizens and elected officials to take a stand against this discriminatory and immoral law.'

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