RICHMOND, VA – Virginia's constitutional marriage amendment lost a divided decision Monday before a three-judge panel of the Fourth Circuit Court of Appeals, on a 2-1 margin.
Judge Henry Floyd, appointed by President George W. Bush and elevated by President Barack Obama, wrote the opinion in Bostic v. Schaefer on behalf of himself and Judge Roger L. Gregory, originally a controversial Clinton recess appointment adopted by Bush-43. Their decision upholds a ruling by U.S. District Judge Arenda L. Wright Allen, who was appointed by President Obama.
Virginia voters adopted a constitutional marriage protection amendment, defining marriage as the union of one man and one woman, in 2006 with 57 percent of the vote.
Judge Floyd blamed the state's decision not to elevate gay unions to the level of traditional marriages on the majority's “inertia and apprehension.”
In his dissent, Judge Paul V. Niemeyer, a Reagan appointee, called the majority ruling “fundamentally flawed,” saying his colleagues “failed to conduct the necessary constitutional analysis.”
The other two judges erred by “concluding simply and broadly that the fundamental ‘right to marry’ – by everyone and to anyone – may not be infringed,” because the ruling fails to address “why this broad right to marry, as the majority defines it, does not also encompass the ‘right’ of a father to marry his daughter or the ‘right’ of any person to marry multiple partners.”
“If the majority were to recognize and address the distinction between the two relationships – the traditional one and the new one – as it must, it would simply be unable to reach the conclusion that it has reached,” he wrote.
Peter Sprigg, the Family Research Council's senior fellow for policy studies, agreed with Niemeyer. “The court ruling defines the 'right to marry' so broadly that it raises the question whether the logic would allow society to maintain any coherent definition of marriage,” he said in a press release.
In a statement, Virginia Delegate Bob Marshall, who co-authored the amendment, asked, “Will three lesbian women in Massachusetts, a 'throuple,' move to Virginia to have their aberrant 'marriage' relationship sanctioned by Judges Gregory and Floyd?”
Marriage redefinition proponents have held that excluding homosexuals is a new legal stratagem, and concerns about the well-being of children serve only to hide lawmakers' “animus” against homosexuals.
But Niemeyer quoted state marriage laws, in some cases stretching back more than 100 years, which affirm marriage as the “mutual agreement of a man and a woman to marry each other” for the purpose of “establishing a family, the continuance of the race, the propagation of children, and the general good of society.”
“Virginia’s laws have always rightly reflected the true and complementary nature of marriage,” Victoria Cobb, president of The Family Foundation of Virginia, said in a statement. “It’s unfortunate that the court rejected the right of Virginians to define marriage consistent with their concern with what’s best for children and society as a whole” and “chosen to disenfranchise the 1.3 million Virginians who legally voted to amend our constitution.”
The case was left to Norfolk clerk George Schaefer III, after newly-elected state Attorney General Mark Herring refused to defend the law in court. Virginia's Democratic governor, Terry McAuliffe, who defeated former Attorney General Ken Cuccinelli in the 2013 governor's race, celebrated the legal imbalance.
“I want to thank Attorney General Mark Herring for his leadership in this case, and all of the men and women who fought for years to make this day a reality,” the governor said in a statement. “Progress does not always come as quickly as we hope it will, but today is yet another example of how justice, equality, and the people who fight for those values will always persevere in the end.”
Despite a string of rulings invalidating voter-backed amendments across the nation, traditional marriage supporters refuse to concede.
Alliance Defending Freedom Senior Counsel Byron Babione, who is representing Prince William County Clerk of Court Michéle B. McQuigg, said in a press release, “Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court. If the high court remains consistent with its acknowledgment in its Windsor decision of the right of states to define marriage, the states will ultimately be free to preserve man-woman marriage, should they choose to do so.”
Marshall hoped the justices will not impose their social views on the nation at large. “If judicial elites impose a radical and immoral marriage regime on American citizens in defiance of the 'Laws of Nature and Nature's God,' the result would be to tear the social fabric in ways that can scarcely be imagined,” he said.
Sprigg disagreed that even a Supreme Court's ruling would settle the issue. “While the Left continues to use the federal courts as the means to fulfill their radical social agenda, the courts will not have the final say,” he said. “They cannot change natural law and the fact that society needs children, and children need a mom and a dad.”