In a 2-1 decision, a panel of the US Court of Appeals for the Fourth Circuit on Monday upheld a lower court decision overturning Virginia’s ban on same-sex marriage.

The panel ruled that both the Virginia ban on same-sex marriage, as well as the ban on state recognition of same-sex couples married elsewhere, were unconstitutional.

Writing for the majority, Judge Henry Floyd said, “We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.” He continued, “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.”

The Fourth Circuit Court of Appeals covers Virginia, Maryland, West Virginia , North Carolina and South Carolina. Following the ruling, the Attorney General of North Carolina Roy Cooper, a Democrat, indicated that his office would no longer defend his state’s marriage equality ban, saying, “There are really no arguments left to be made” in favor of the ban. A spokesman for South Carolina Attorney General Alan Wilson, a Republican, said that office would continue to defend the South Carolina marriage equality ban, cautioning that “Ultimately, this will be a decision for the U.S. Supreme Court. People should not rush to act or react until that time, when a decision is made by the highest court in the land.” A spokesman for South Carolina Governor Nikki Haley (R) stated that the governor would continue to support the ban. In West Virginia, perhaps awaiting an appeal of the Fourth Circuit’s decision, state Attorney General Patrick Morrisey, also a Republican, asked a federal judge to delay action on the legal challenge to his state’s marriage equality ban until the Fourth Circuit issues its formal order in the Virginia case.

Two federal appeals courts have now decided that same-sex marriage bans are unconstitutional. Other federal appeals courts are still reviewing appeals of trial court decisions overturning state bans. Commentators believe it is likely the the US Supreme Court will consider marriage equality soon, perhaps in the next Term that begins in October.

In a news conference in Richmond, Virginia Attorney General Mark Herring (D) said, “Sometimes battles have been fought in the legislature, sometimes in the courtroom, sometimes even in the streets, but inevitably no effort to restrict the rights or limit the opportunities of our fellow Americans has ever succeeded in the long term.”

Herring, however, suggested that couples wait until the Fourth Circuit issues its formal order – technically when the decision goes into effect – to get married. The order implementing the decision – the “mandate” – is usually issued 21 days after the decision.

Media Resources: SCOTUS Blog 7/28/14; US Court of Appeals for the Fourth Circuit; The Washington Post 7/28/2014; Huffington Post 7/28/14; Charleston Post & Courier 7/29/14; West Virginia MetroNews  7/30/14

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