Monday, July 28, 2014
Split panel of Fourth Circuit holds Virginia's marriage laws violate a fundamental individual right, protected by the Due Process Clause, to marry a same-sex partner
A split panel of the United States Court of Appeals for the Fourth Circuit held today that Virginia's definition of marriage to require a man and a woman violates the Due Process Clause. Judge Floyd wrote the opinion for the court in Bostic v. Schaefer, in which Judge Gregory joined. Judge Niemeyer authored a dissent.
I hope to have more analysis of the case down the road. My initial reaction is that the court's analysis in terms of fundamental rights presents a doctrinally clearer picture of the arguments on both sides.
If Glucksberg supplies the right framework of analysis (as I believe it should), then the majority's conclusion is untenable for the reasons set forth in Judge Niemeyer's dissent. The panel majority distinguishes Glucksberg by saying that Glucksberg's analysis "applies only when courts consider whether to recognize new fundamental rights." The crucial move, then, is the court's determination that "the fundamental right to marry encompasses the right to same-sex marriage." And that determination turns on a reading of Lawrence and Windsor. These decisions, Judge Floyd says, "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." Yet this attempt to harmonize Lawrence and Windsor with Glucksberg is unpersuasive. Those cases simply ignore Glucksberg and its fundamental-rights-based analysis rather than supply guidance for how to define the scope of fundamental rights.
Given how the Fourth Circuit decided this case and the fact that it is from Virginia, Bostic may turn out to be an attractive vehicle for a range of Justices. It is reasonable to assume that Justice Kennedy will probably continue to ignore Glucksberg's analysis. Yet this Virginia case provides a promising vehicle for maximizing the likelihood that the Court must confront its doctrinal incoherence in the substantive due process arena. After all, there would be something awkward about a Supreme Court decision that ignores the basic concept of a "fundamental right" that the lower court in a case like this thinks the Court's doctrine requires it to use. On the other side, those Justices interested in recognizing a constitutional right to same-sex marriage may be attracted by the symbolic significance of deciding same-sex marriage out of the same state that supplied Loving v. Virginia.